author: Judge ROGER L. KEITHLEY

text:
    The PEOPLE of the State of Colorado, Complainant, v. Maria R. COSTA, Respondent.
    No. 02PDJ012.
    Office of the Presiding Disciplinary Judge of the Supreme Court of Colorado.
    Oct. 16, 2002.
   Opinion by the Presiding Disciplinary

Judge ROGER L. KEITHLEY

and Hearing Board members MARK D. SULLIVAN, a member of the bar, and FRANCES L. WINSTON, a representative of the public.

REPORT, DECISION AND IMPOSITION OF SANCTIONS

SANCTION IMPOSED: ATTORNEY DISBARRED

A sanctions hearing pursuant to C.R.C.P. 251.15 was held on September 27, 2002, before a Hearing Board composed of Roger L. Keithley, the Presiding Disciplinary Judge ("PDJ"), Mark D. Sullivan, a member of the bar, and Frances L. Winston, a representative of the public. James S. Sudler, Assistant Attorney Regulation Counsel represented the People of the State of Colorado (the "People"). Maria R. Costa, the respondent, ("Costa") did not appear either in person or by counsel.

The Complaint in this action was filed February 14, 2002. Costa did not file an Answer to the Complaint. On May 29, 2002, the People filed a Motion for Default. Costa did not respond. On July 9, 2002, the PDJ issued an Order granting default, stating that all factual allegations set forth in the Complaint were deemed admitted pursuant to C.R.C.P. 251.15(b). The default Order also found that all violations of The Rules of Professional Conduct ("Colo.RPC") alleged in the Complaint except for Colo. RPC 8.4(h) were deemed established, eg., People v. Richards, 748 P.2d 341 (Colo.1987). The People did not move to amend the Complaint and therefore the charge of Colo. RPC 8.4(h) was deemed dismissed pursuant to the PDJ's order dated July 9, 2002.

The Hearing Board considered the People's argument, the facts established by the entry of default, considered exhibits 1 and 2 offered and admitted into evidence, and made the following findings of fact which were established by clear and convincing evidence.

I. FINDINGS OF FACT

Costa has taken and subscribed to the oath of admission, was admitted to the bar of the Supreme Court on November 1, 1985 and is registered upon the official records of this court, registration number 14968. Costa is subject to the jurisdiction of this court pursuant to C.R.C.P. 251.1(b).

All factual allegations set forth in the Complaint were deemed admitted by the entry of default. The facts set forth therein are therefore established by clear and convincing evidence. See Complaint attached hereto as exhibit 1. The Order entering default also granted default as to all alleged violations of The Rules of Professional Conduct set forth in the Complaint exeept for Colo. RPC 8.4(h). The facts established by the entry of default reveal the following misconduct.

In January 1997, Costa filed a personal injury action in the state court for the State of New Mexico naming five defendants. In May 1997, Costa filed returns of service indicating two of the five defendants had been served. In June 1997 attorneys for those two defendants entered appearances and in addition to other pleadings, submitted formal written discovery requests and served those requests upon Costa.

On August 5, 1997, one of the defendant's lawyers sent Costa a letter saying that the interrogatories and the request for production were overdue, that. he had not received responses to his discovery requests, and asked Costa to promptly provide discovery. The very next day the other defendant's lawyer sent Costa a similar letter requesting that Costa respond to the interrogatories and requests for production. When no responses were forthcoming from Costa, one of the defendant's lawyers called and spoke to her on August 22, 1997. Costa assured counsel that discovery responses would be hand-delivered in two days, on August 22, 1997. Thereafter, she failed to provide the promised discovery responses.

Approximately two months after the discovery responses were to have been filed, both defendants' lawyers separately filed motions to compel Costa's clients to comply with the outstanding discovery requests. Costa did not file responses to these motions on behalf of her clients nor did she attend the hearing held on November 8, 1997. At that hearing, both defendants' motions to compel were granted. Costa was ordered to produce discovery to one of the defendants by November 24, 1997, and to pay attorney fees related to the motion. On November 21, 1997, the court issued its Order to Compel with regard to the other defendant's discovery requests and Costa was ordered to comply within ten days of the service of that Order.

Costa failed to respond to either of the Court's orders and in December 1997 both defendants' lawyers filed motions to dismiss based upon Costa's failure to obey the Court's orders. Costa did not respond to either of the motions to dismiss and she failed to attend the February 2, 1998, hearing on the motions.

As the result of Costa's actions and inac-tions, on February 5, 1998, the Court dismissed the case Costa had filed on behalf of her clients. On March 9, 1998, Costa filed a Motion to Set Aside Order for Dismissal and for Reinstatement of the Cause of Action. The findings of the Disciplinary Board of the Supreme Court of New Mexico ("the New Mexico Board") provide that the bases for Costa's motion were, inter alia:

1.She "did not receive notice of said hearing," referring to the hearing of February 2, 1998;
2."All discovery material is ready to be delivered to counsel for the defense ..."; and,
3."Plaintiffs and there (gic) counsel are ready and willing to proceed in this matter and request this matter be reinstated."

On April 15, 1998, a hearing was held on Costa's Motion to Set Aside Order of Dismissal. At that hearing, Costa informed the Court, "[Aljlround December 1, is the last time I had communication with [the plaintiffs]." When questioned by the court, Cos-ta admitted her misstatement:

The Court: You say all discovery materials are ready to be delivered to counsel for the defense in your motion, but what you're telling me today is your clients have not provided you with verified answers to the interrogatories or requests or anything with respect to the requests for production.
Ms. Costa: They have not provided me with anything for requests for production your Honor.
The Court: When you say the discovery material is ready to be delivered to counsel for the defense, that's not true?
Ms. Costa: It's not true, no, Judge.

As a result of these actions, Costa was prosecuted before the New Mexico Board. On August 17, 2001, after Costa successfully completed an unspecified period of supervised probation and after she agreed to the audit of her law practice, the New Mexico Board imposed a sanction of formal reprimand against Costa for her misconduct in lieu of a period of suspension. In their written decision, which is attached to and incorporated in the Complaint filed in this case, the New Mexico Board found that Costa had "made a blatant misrepresentation to the Court when [she] stated in [her] motion that the discovery material was ready for delivery."

The New Mexico Board also found that Costa had absolutely no explanation for missed hearings or failures to respond to opposing counsel other than her clients were not cooperative and she did not receive notice of hearings. Costa provided no evidence to support her allegations, nor did she provide any explanation as to why she failed to attend one hearing after admitting she had received sufficient notice. The New Mexico Board found that Costa had violated nine separate provisions of the New Mexico Rules of Professional Conduct, had a prior informal admonition for professional misconduct, committed multiple disciplinary offenses and had substantial experience in the practice of law.

Costa has not participated in the within proceedings in Colorado. Proper notice of this disciplinary proceeding has been duly served upon the respondent according to the applicable rules. C.R.C.P. 251.14(b) and 251.15(b).

II. CONCLUSIONS OF LAW

Under Claim 1 of the Complaint in this action, the entry of default established the following violations of The Colorado Rules of Professional Conduct ("Colo.RPC"): Colo. RPC 1.3 (neglect of a legal matter); Colo. RPC 1.4(a)(failure to communicate adequately); Colo. RPC 14(b)(failure to explain a matter to the client so that the client can make informed decisions regarding the representation); Colo. RPC 3.2 (failure to expedite litigation); Colo. RPC 3.3(a)(1)(making a false representation to a tribunal); Colo. RPC 34(c) (knowingly disobeying an obligation to a tribunal); Colo. RPC 8.4(c)(en-gaging in dishonesty), and Colo. RPC 8.A(d)(engaging in conduct prejudicial to the administration of justice). Grounds for discipline have been established pursuant to C.R.C.P. 251.5(d)(failure to respond without good cause to the Office of the Attorney Regulation Counsel) and 251.10 (failure to respond to the allegations in a request for investigation).

Claim II alleged in the Complaint seeks imposition of reciprocal discipline under CRCP. 251.21. As required by CRCP. 251.21, the Complaint alleged and therefore provided sufficient notice to Costa at paragraphs 8 and 9 that the Office of Attorney Regulation Counsel sought greater discipline in Colorado than that imposed in New Mexico. © *

The validity of a disciplinary order issued by a foreign jurisdiction must be viewed as conclusive unless the respondent lawyer files "an answer and a full copy of the record of the disciplinary proceedings which resulted in the imposition of that disciplinary order within twenty days after service of the complaint or such greater time" as may be allowed. C.R.C.P. 251.21(d). Costa neither filed an answer to the Complaint nor sought additional time to do so. Accordingly, the findings of fact set forth in the New Mexico Board's decision are conclusively established before the Hearing Board in this Colorado disciplinary action.

III SANCTION/IMPOSITION OF DISCIPLINE

In the case of In re DeRose, 55 P.3d 126 (Colo.2002), 2002 Colo.LEXIS 820 the Colorado Supreme Court recently stated:

Attorneys must adhere to high moral and ethical standards. Truthfulness, honesty, and candor are core values of the legal profession. In re Pautler, 47 P.8d 1175, 1178-79 (Colo.2002). Lawyers serve our system of justice as officers of the court, and if lawyers are dishonest, then there is a perception that the system must also be dishonest. Id. at 1179. Attorney misconduct perpetuates the public's misperception of the legal profession and breaches the public and professional trust. Id. at 1188.

Id. at 181.

A lawyer who knowingly misstates material facts to a tribunal fails to meet those high moral and ethical standards. Notwithstanding the New Mexico State Supreme Court's formal reprimand of Costa, the People requested that the Hearing Board impose the sanction of disbarment for the same conduct in this reciprocal discipline matter.

' C.R.C.P. 251.21(d) provides in relevant part:

Upon receiving notice that an attorney subject to these Rules has been publicly disciplined in another jurisdiction, the Regulation Counsel shall obtain the disciplinary order and prepare and file a complaint against the attorney as provided in C.R.C.P. 251.14. If the Regulation Counsel intends either to claim that substantially different discipline is warranted or to present additional evidence, notice of that intent shall be given in the complaint.
At the conclusion of proceedings brought under this Rule, the Hearing Board shall issue a decision imposing the same discipline as was imposed by the foreign jurisdiction, unless it is determined by the Hearing Board that:
(1) The procedure followed in the foreign jurisdiction did not comport with requirements of due process of law;
(2) The proof upon which the foreign jurisdiction based its determination of misconduct is so infirm that the Hearing Board cannot, consistent with its duty, accept as final the determination of the foreign jurisdiction;
(3) The imposition by the Hearing Board of the same discipline as was imposed in the foreign jurisdiction would result in grave injustice; or
(4) The misconduct proved warrants that a substantially different form of discipline be imposed by the Hearing Board.

The facts established that Costa knowingly made a misrepresentation of material fact to the court in New Mexico. In Colorado, knowing misrepresentation of a material fact to a court warrants disbarment. In re Cardwell, 50 P.3d 897, 901 (Colo.2002)(attorney suspended for three years with eighteen months stayed for, among other rule violations, making a material misrepresentation of fact to a tribunal); In re Elinoff 22 P.3d 60, 64-65 (Colo.2001)(attorney suspended for three years with one year stayed and subject to conditions of probation for engaging in conduct constituting the offense of bribery, a class three felony); People v. Lopez, 980 P.2d 983, 984 (Colo.1999)(disbarring attorney subject to conditional admission of misconduct for making misrepresentations of material fact on liquor license application, misrepresenting material information to liquor licensing authority, and to prospective investors); People v. Kolbjornsen, 35 P.3d 181, 185 (Colo.P.D.J. 1999)(attorney disbarred for submitting material false testimony in the course of his bankruptey proceeding); People v. Rudman, 948 P.2d 1022, 1026 (Colo.1997)(in light of mitigating cireumstances, suspension for three years, rather than disbarment was appropriate for lawyer who engaged in intentional pattern of lies).

The court in Kolbjornsen set forth the following rational for the harsh sanction of disbarment where an attorney has made a material misrepresentation of fact to a tribunal:

An attorney's misrepresentation of material facts to a court with the aim of benefiting himself or others to the detriment of his adverse party cannot be tolerated under an adversary system which depends upon the honesty of its officers to render fair and just decisions. Judicial officers, members of the profession and the public at large must be able to rely upon the truthfulness of an attorney's statements to the court. Confidence in the truth-seeking process engendered in our system of justice cannot exist absent such reliance.

Id. at 185.

Costa's knowing misrepresentation to the court that discovery was ready for production had the potential of persuading the court that the case could now proceed in a timely fashion and that any basis for justifying the earlier Order of Dismissal was now extinguished. The factual misrepresentation was material to the issues under consideration by the court. Knowing misrepresentations of material facts to a court by an attorney invariably bears a potentially significant adverse effect on the legal proceeding, places the client at significant risk, demeans the profession and diminishes the public trust in the administration of justice. Costa's misconduct falls squarely within the rational which supports the presumptive discipline of disbarment for the knowing misstatement of a material fact to a tribunal.

Costa's additional misconduct serves to reinforce the presumptive sanction of disbarment: neglecting her clients' case in violation of Colo. RPC 1.3, failing to communicate with them in violation of Colo. RPC 1.4(a), failing to expedite litigation in violation of Colo. RPC 3.2, knowing failure to obey orders of the New Mexico court concerning discovery in violation of Colo. RPC 3.4(c), dishonest conduct in violation of Colo. RPC 8.4(c), and engaging in conduct prejudicial to the administration of justice in violation of Colo. RPC 84(d).

The ABA Standards for Imposing Lawyer Sanctions (1991 & Supp.1992) ("ABA Standards ") is the guiding authority for selecting the appropriate sanction to impose for lawyer misconduct and is consistent with the deci-gions in Colorado. ABA Standard 6.11 provides:

Disbarment is generally appropriate when a lawyer, with the intent to deceive the court, makes a false statement, submits a false document, or improperly withholds material information, and causes serious or potentially serious injury to a party, or causes a significant or potentially significant adverse effect on the legal proceeding.

ABA Standard 4.41(b) and (c) provide that disbarment is generally appropriate when:

(b) a lawyer knowingly fails to perform services for a client and causes serious or potentially serious injury to a client; or
(c) a lawyer engages in a pattern of neglect with respect to client matters and causes serious or potentially serious injury to the client.

ABA Standard 4.42(a) and (b) provide that suspension is generally appropriate when:

(a) a lawyer knowingly fails to perform services for a client and causes injury or potential injury to a client; or
(b) a lawyer engages in a pattern of neglect and causes injury or potential injury to a client.

The presumptive sanction recommended by ABA Standards 4 A1 and 442 are distinguished by the degree of injury or potential injury occasioned by the lawyer's misconduct. Serious injury as opposed to less than serious injury suggests disbarment rather than suspension. The Hearing Board considers the injury or potential injury to which Costa exposed her clients to be serious injury warranting disbarment under the ABA Ston-dards.

Determination of the appropriate sanction requires the Hearing Board to consider aggravating and mitigating factors. Since Cos-ta did not participate in these proceedings, no mitigating factors were established. The facts deemed admitted in the Complaint establish several aggravating factors pursuant to ABA Standard 9.22: Costa engaged in a pattern of misconduct, see id. at 9.22(c); she engaged in multiple offenses, see id. at 9.22(d); and she failed to cooperate in the disciplinary proceeding, see id. at 9.22(0).

The Hearing Board finds that: (1) the imposition of the same discipline as was imposed in New Mexico is contrary to the law in Colorado and would result in grave injustice; and (2) the misconduct established under Colorado law warrants substantially different discipline pursuant to C.R.C.P. 251.21(d), and accordingly the Hearing Board finds that substantially different discipline must be imposed.

IV. ORDER

It is therefore ORDERED:

1. MARIA R. COSTA, attorney registration number 14968 is disbarred from the practice of law in the State of Colorado effective thirty-one days from the date of this Order and her name shall be stricken from the roll of attorneys licensed to practice law in this state;
2. Costa is Ordered to pay the costs of these proceedings; the People shall submit a Statement of Costs within ten (10) days of the date of this Order. Respondent shall have five (5) days thereafter to submit a response thereto.

EXHIBIT 1

COMPLAINT

THIS COMPLAINT is filed pursuant to the authority of C.R.C.P. 251.9 through 251.14 and 251.21, and it is alleged as follows:

1. The respondent has taken and sub-seribed the oath of admission, was admitted to the bar of this court on November 1, 1985, and is registered upon the official records of this court, registration number 14968. She is subject to the jurisdiction of this court in these disciplinary proceedings. The respondent's registered business address is 500 17th Street NW, Albuquerque, New Mexico 87104.

CLAIM I

2. The respondent received a formal reprimand from the Disciplinary Board of the Supreme Court of the State of New Mexico on August 17, 2001. A copy of the formal reprimand is attached to this complaint as Exhibit A and is incorporated herein. The facts concerning the respondent's conduct as stated on pages 1 through 4 of Exhibit A, which led to that discipline are specifically incorporated herein as if set out verbatim.

3. The respondent was placed on a supervised probation before she received the formal reprimand.

4. Upon information and belief, the respondent successfully completed the supervised probation after which she was issued the formal reprimand.

5. The respondent's conduct violated the following rules: Colo. RPC 1.1 (lack of competence), 1.8 (lack of diligence), 1.4 (lack of adequate communication), 3.2 (failure to expedite litigation), 3.3(a)(1) (making false representation to a tribunal), 3.4(c) (knowingly disobeying an obligation under the rules of a tribunal), 8 4(c) (engaging in conduct involving dishonesty, fraud, deceit or misrepresentation), 8.4(d) (engaging in conduct prejudicial to the administration of justice), and 84(h) (engaging in conduct that adversely reflects on her fitness to practice law).

WHEREFORE, the complainant prays at the conclusion hereof.

CLAIM II

6. Paragraphs 1 through 5 are incorporated herein.

7. The respondent's conduct in knowingly making a blatant misrepresentation of material fact to the court in New Mexico, as described in Exhibit A, was misconduct that, according to precedent in Colorado, results in the lawyer being disbarred. See People v. Kolbjornsen, 35 P.3d 181 (Colo.PDJ 1999), 1999 Colo. Discipl. LEXIS 6. ("Colorado law provides that, in the absence of substantial mitigating factors, disbarment is the presumed sanction when an attorney knowingly makes a false statement of material fact to a court.")

8. The presumed sanction in this matter is that the respondent should be disbarred and her name stricken from the list of registered attorneys in Colorado.

9. This sanction is significantly greater than that imposed in New Mexico, pursuant to the authority conveyed by C.R.C.P. 251.21.

10. A hearing board should decide whether the sanction should be disbarment or some lesser sanction.

WHEREFORE, it is prayed that the respondent be found guilty of violations of various rules of conduct which establish grounds for discipline as provided in C.R.C.P. 251.5 and 251.21, and the Colorado Rules of Professional Conduct and that she be appropriately disciplined and assessed the costs of these proceedings.

      . Apparently, Costa took it upon herself to file a motion to reinstate the case despite having no contact with her alleged clients for more than three months.


source: Caselaw Access Project

author: CAROL M. HANSEN, Presiding Judge:

license: Public Domain

text:
    2002 OK CIV APP 90
    In the Matter of R.S., an alleged deprived child. Meranda Stephens, Respondent/Appellant, v. State of Oklahoma, ex rel. Department of Human Services, Petitioner/Appellee.
    No. 97,467.
    Court of Civil Appeals of Oklahoma, Division No. 3.
    Aug. 23, 2002.

      Rita Smith, Fayetteville, AR, for Respondent/Appellant.
    Susan Kerr Hopper, Office of Thomas H. May, District Attorney, Jay, OK, for Petitioner/Appellee.
   Opinion by

CAROL M. HANSEN, Presiding Judge:

" 1 In this action concerning R.S., an adjudicated deprived child, Appellant, Meranda Stephens (Mother), appeals from the trial court's judgment terminating her parental rights. We find there is competent evidence supporting the jury's verdict and resultant judgment, and that reversal of the trial court's judgment is not warranted because of ineffective assistance of her counsel at trial. We affirm.

12 After prevention services by the Department of Human Services (DHS) to keep the family intact were unsuccessful, R.S. was removed from Mother's custody at the age of five weeks and placed in the emergency custody of DHS. Appellee, State of Oklahoma (State), initiated this action by its Petition requesting the trial court find RS. was a deprived child in accordance with the Okla homa Children's Code, 10 0.$.2001 §§ 7001-1.1 et seq. RS. was adjudicated deprived and made a ward of the court by the trial court's order filed on May 1, 2001. The court allowed Mother only supervised visitation.

13 At the adjudication hearing, Mother stipulated to State's allegations that [1] R.S. had suffered "inappropriate handling" by Mother as a newborn, [2] Mother had a substance abuse problem, [3] RS. did not have "proper care and guardianship by reason of neglect due to Mother's inability or unwillingness to provided this care due to her mental health condition and her inability to control her anger", and [4] continued placement of R.S. in his own home was contrary to his "health, safety or welfare."

T 4 In August 2001, State filed a Petition to terminate Mother's parental rights. State's Petition noted the conditions which led to adjudication of R.S. as a deprived child, and alleged Mother had not corrected those conditions. State cited 10 O0.98.2001 § 7006-1.1(A)(5) as authority for termination.

15 State's Petition for termination was tried to a jury in February 2002. The jury found Mother's parental rights should be terminated and the trial court entered its judgment from that verdict. The court's Judgment was consistent with the allegations contained in State's Petition and was based on the same statutory authority.

16 Mother brings this appeal from the trial court's judgment terminating her parental rights. In the trial court State must prove termination is justified by clear and convincing evidence. In the Matter of A.D.W., 2000 OK CIV APP 110, 12 P.3d 972. However, on appellate review, the findings of the trial court, entered on a jury verdict, must be affirmed if there is any evidence tending to support them. In re T.E.B, 2001 OK CIV APP 70, 24 P.3d 900.

T7 Mother's first allegation of trial court error is that State "failed to satisfy the statutory criteria for termination pursuant to 10 0.8. § 7006-1.1". More specifically, Mother's contention is that State; having alleged, inter alia, that R.S. did not have proper care and guardianship by reason of neglect due, in part, to Mother's "mental health condition", was required to satisfy 10 0.8.2001 $ 7006-1.1(A)(18).

T8 Section 7006-1.1(A)(13) authorizes termination of parental rights where, in pertinent part:

c. the parent whose rights are sought to be terminated has a mental illness or mental deficiency, as defined by Section 6-201 of Title 43A of the Oklahoma Statutes, which renders the parent incapable of adequately and appropriately exercising parental rights, duties and responsibilities,

1 9 Section 6-201 of Title 48A defines mental illness as "mental disease to such extent that a person so afflicted requires care and treatment for his own welfare, or the welfare of others, or of the community." That seetion defines mental deficiency as that "defined by appropriate clinical authorities to such extent that a person so afflicted is incapable of managing himself and his affairs, but shall not include mental illness as defined herein." |

10 Mother cites Matter of L.S., 1990 OK CIV APP 94, 805 P.2d 120, in support of her contention State must satisfy § 7006-1L1(A)(13). In Matter of LS., the Court of Appeals found fundamental error in State's failure to allege and prove termination was justified in accordance with the statutory predecessor to § 7006-1.1(A)(18). There, the Court, whose holding was driven by the particular facts of the case, noted:

The evidence below is replete with references to mother's "retardation" and other severe developmental handicaps as well as the father's "borderline intelligence", "organic brain injury", "serious personality problems" and "seizure disorder" with the possibility of treatment and control by medication.... By the state's own admission the parents are "handicapped" and have mental "inabilities."

{11 Without deciding whether the holding in Matter of LS. was otherwise correct, we find the facts before us are distinguishable. First, State asserted Mother's parental rights should be terminated because she failed to show she corrected the conditions which led to R.S. being adjudicated deprived, which included her inability or unwillingness to provide proper care due to her mental health condition and inability to control her anger. This is not an allegation that Mother's parental rights should be terminated because she has a mental illness or mental deficiency within the meaning of § 7006-1.1(A)(18). If that were State's intention, it would have used the requisite statutory term.

{12 Further, the evidence here is much different than that in Matter of L.S. State's expert witness testified regarding his psychological testing of Mother. He stated her cognitive capacity was low average, not mentally retarded and not borderline intellectual functioning. He further testified Mother was "bright enough to function day to day", that he "saw no form of mental illness or intellectual deficit that would incapacitate her to the extent she would be unable" to complete the treatment plan, and that his evaluation did not indicate anything which would prevent Mother from completing such things as parenting classes, anger management classes, visiting and acting appropriately with RS., getting a job, paying child support or establishing a stable home. 6C

13 While State's expert did diagnose personality disorders which could benefit from counseling and enlistment in other support services, we find nothing in his testimony which would raise the issue of mental illness or mental deficiency as those conditions are relevantly defined. It was not error for the trial court to enter judgment without making findings in 1.1(A)(13). accordance with § 7006-

114 Mother's sole allegation of substantive error as to the court's judgment was the court's "failure to satisfy the specific statutory criteria of 10 O.8. § 7006-1.1(A)(18).",. She therefore implicitly concedes the trial court's judgment was otherwise supported by competent evidence of record. In re T.E.B, 24 P.3d at 902. Without reciting the evidence, we have reviewed the record and find it sufficient to support the trial court's findings that Mother failed to show she had corrected the conditions which led to R.S. being adjudicated deprived and that it was in the best interests of R.S. that Mother's parental rights be terminated. 10 ©.9.2001 $ 7006-1.1(A)(B).

1115 As her second appellate proposition, Mother contends her trial attorney's representation was so deficient as to constitute ineffective assistance of counsel. In Matter of D.D.F., 1990 OK 89, 801 P.2d 708, the Supreme Court reiterated its holding that one who may be deprived of parental rights has a right to counsel, and further held such right is the right to effective representation of counsel. There the Court noted "(tlhe right to counsel would be of no consequence if such counsel were not required to represent the parent in a manner consistent with an objective standard of reasonableness."

116 The Court of Civil Appeals adopted more definitive standards for determining the effectiveness of counsel in In Re K.L.C., 2000 OK CIV APP 98, 12 P.3d 478. Noting the absence of right to counsel in most civil proceedings, the Court of Civil Appeals looked to criminal law. To require reversal, a criminal defendant's claim of ineffective representation must show [1] the attorney's performance was deficient, and [2] the deficient performance prejudiced the defense. Id., at 480, 12 P.3d 478 citing Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

T 17 The Strickland Court held representation was deficient if counsel's performance fell outside the broad range of professionally acceptable performance, and that the defense was prejudiced if there was "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Our scrutiny of counsel's performance must be highly deferential. Strickland v. Washington, at 689, 104 S.Ct. at 2065.

118 Whether there has been ineffective assistance of counsel must be determined from examination of the proceedings as a whole. Id., at 690, 104 S.Ct. at 2066. There is a strong presumption that counsel's performance falls within the "wide range" of professional assistance. Id., at 689, 104 S.Ct. at 2065. We note here, while acknowledging each case must be decided on its own merits, that the courts in each of the cases cited by Mother in support of this contention found counsel's performance not to be deficient.

119 Mother asserts her trial attorney "arguably committed several egregious errors that prejudiced" her defense. These included allowing one of State's witnesses to testify regarding "highly sexualized behavior" exhibited by Mother towards R.S. This behavior had been documented in Mother's DHS case file, but Mother's trial attorney had not requested access to the file through discovery. Mother argues her defense was prejudiced because her attorney objected to this testimony only after it was completed, and then moved for a mistrial on the ground the testimony was an "evidentiary harpoon" and was not alleged in the treatment plan.

120 The trial court did deny Mother's motion for a mistrial in part because there was no objection at the time the testimony was being given, but also found it was nonetheless probative of the allegation that Mother stipulated to regarding inappropriate handling of R.S. as a newborn. We agree the testimony is relevant to that issue and would have been properly admitted for that reason. It is evident the testimony would have been admitted even over timely objection by Mother's trial counsel. While it may have been better practice for Mother's trial counsel to have raised the objection in controversy, we do not find that failure affected the outcome of the proceedings.

«21 Another error Mother asserts to document counsel's alleged deficiency was the failure to ensure the presence of a witness through whom a purportedly favorable exhibit could have been admitted. Mother was not allowed to admit the document, a case report, through a previous caseworker because the caseworker had not prepared the report. The absent caseworker, who was ill at, the time of trial, was on two witness lists and Mother's trial counsel told the court he had anticipated her being in court. Mother's request for a continuance to obtain the presence of the preparing caseworker was, however, denied when the trial court was informed it was State, not Mother, who had endorsed and subpoenaed the witness.

T 22 This professional omission is similar to one of the alleged deficiencies in In re KLC. There the trial attorney did not file a witness list, but opted to use the other parties' witness lists. All but one of the witnesses not on those lists appeared voluntarily. While not commenting specifically, the KLC. Court did not find the attorney's decision beyond the range of professionally acceptable performance. Further, viewing the content of the report which was not admitted in light of the totality of the evidence, we find it improbable that it would have materially affected the outcome.

T 23 Review of the record reflects Mother's trial counsel was actively involved in the case before and during trial He successfully prosecuted a motion in limine to prevent certain police reports from being introduced. He raised other pretrial issues regarding Mother's psychological evaluation and medical records and references to the ethnicity of Mother's boyfriends. He endorsed and called other witnesses, including Mother herself, on her behalf. He actively eross-exam-ined State's witnesses and raised other appropriate objections. He, in fact, did object, although somewhat misdirected and tardy, to the witness who testified regarding Mother's "sexualized" behavior. He continued to argue this objection and moved for a mistrial.

T24 Examining the proceedings as a whole, and in consideration of the presumption that counsel's conduct on Mother's behalf falls within the wide range of professional performance, we cannot say Mother's trial counsel's representation was so deficient that she met her burden of proving ineffective assistance of counsel. In re K.L.C., 12 P.3d at 482.

T 25 The trial court's judgment terminating Mother's parental rights is AFFIRMED.

ADAMS, J., and MITCHELL, J., concur.

      . For a comprehensive survey of what states have held those facing loss of parental rights are entitled to effective representation of counsel, and the standards for detefmining that question, See, L.W. v. Dept. of Children and Families, 812 So.2d 551 (Fla.2002).


author: RUSSON, Justice:

text:
    2002 UT 68
    Garrett PRINCE, Plaintiff and Appellant, v. BEAR RIVER MUTUAL INSURANCE CO., Defendant and Appellee.
    No. 20010298.
    Supreme Court of Utah.
    July 23, 2002.
    Rehearing Denied Aug. 30, 2002.

      Trent J. Waddoups, Salt Lake City, for plaintiff.
    Joseph J. Joyce, Kristin A. Van Orman, Salt Lake City, for defendant.
   RUSSON, Justice:

T1 Garrett Prince ("Prince") appeals an order granting partial summary judgment to Bear River Mutual Insurance Company ("Bear River") and asks us to hold that Bear River breached the insurance policy that afforded Prince personal injury protection ("PIP") coverage. Further, Prince appeals the trial court's award of $450 in attorney fees. We affirm.

BACKGROUND

T2 The matters on appeal arose out of Prince's allegations that Bear River improperly refused to pay PIP benefits under an insurance policy to Prince for injuries Prince suffered in an automobile accident. At all times relevant to this appeal, Bear River insured Prince for PIP coverage with a policy limit of $3,000, and Prince was current in paying the insurance premiums required by the policy. ,

13 On November 8, 1995, Prince was injured in an automobile accident. In connection with his injuries, Prince claims he incurred more than $3,000 in medical expenses. On May 12, 1997, at Bear River's request,. Prince underwent a medical examination to investigate the necessity of Prince's medical expenses. Bear River retained Dr. Stephen Marble to conduct the examination.

1 4 After the examination, Dr. Marble prepared a report summarizing his findings in which he explained:

By the time Mr. Prince presented to Dr. Howard for chiropractic care, he would have been considered presenting with a complicated spine injury, owing to the delay in treatment initiation. As such, a maximum of 12 weeks of chiropractic care could have been justified. I do not think that the chiropractic care exceeding 12 weeks was medically necessary. No further chiropractic care should continue. The chiropractic care has been palliative rather than curative. The patient was only getting up to two days of pain relief with these treatments, but there has been no long-term benefit. Following such a whiplash injury, a multi-disciplinary consultation should have been obtained within 12 weeks from treatment initiation, rather than waiting six months, as was the case here.

(Emphasis added and omitted.) Pursuant to Dr. Marble's report, Bear River concluded that Prince was not entitled to PIP benefits to cover chiropractic care beyond the original twelve weeks of treatment because such care was unnecessary and therefore was excluded from coverage. As a result, Bear River discontinued PIP payments to Prince. Before Bear River received Dr. Marble's report, Bear River had paid $1,924.34 in PIP benefits to Prince.

1 5 To obtain additional PIP benefits up to the policy limit to which Prince believed he was entitled, Prince brought suit against Bear River on August 11, 1997, alleging breach of contract, breach of the covenant of good faith and fair dealing, intentional infliction of emotional distress, fraud, and the tort of violation of public policy embodied in the No-fault Automobile Insurance Act, Utah Code Ann. §§ 31A-22-306 to -309 (2001) (the "Act"). After answering Prince's complaint, Bear River moved for partial summary judgment on all of Prince's claims except for the breach of contract claim. On April 1, 1998, the trial court granted summary judgment on these claims, leaving only Prince's breach of contract claim.

'I 6 On April 16, 1998, Bear River paid the balance of Prince's PIP claims up to the $3,000 policy limit although Bear River's liability remained in dispute. Then, on March 10, 2000, Bear River tendered a draft to Prince for statutory interest on Prince's PIP claims as set forth in section 81A-22-309(5)(c) of the Utah Code. Prince rejected the draft's tender and returned it to Bear River.

T7 On February 16, 2000, Bear River again moved for summary judgment, this time on Prince's breach of contract claim. Bear River contended summary judgment should be granted because Bear River had paid the PIP insurance policy limit in full. The trial court denied the motion. Then, on October 2, 2000, the trial court entered a minute entry decision, awarding Prince interest that had accrued on $1,100 from August 7, 1997, to April 6, 1998, but declined to award attorney fees.

T8 Subsequently, on November 8, 2000, Prince moved to amend his complaint to, among other things, convert the lawsuit into a class action. Prince also asked the trial court to reconsider its denial of attorney fees. In response, Bear River moved for rule 11 sanctions. On January 12, 2001, the trial court denied Prince's motion to amend the complaint and requested that Prince file an affidavit concerning the claimed attorney fees.

T9 Complying with the request, Prince filed an affidavit regarding attorney fees on January 28, 2001. On February 27, 2001, the trial court entered a final order of dismissal awarding Prince a total of $882.15. The award included interest, costs, and $450 in attorney fees, equivalent to three hours billed for preparing the complaint.

110 Prince appeals, raising numerous issues. First, Prince contends that Bear River improperly denied Prince PIP benefits under the Act when Bear River concluded that Prince's continued chiropractic treatment was unnecessary. Specifically, Prince contends that Bear River violated the Act because Bear River refused to pay PIP benefits when such benefits were due and that the term "necessary" in the Act and the policy is not a term that limits the policy's coverage. Bear River counters that the term "reasonable and necessary" is a recognized standard used in the insurance industry to determine when PIP benefits must be paid and that Bear River was not required to pay Prince additional PIP benefits because they were not covered by the policy.

111 Prince also contends that the trial court erred in granting Bear River summary judgment on Prince's breach of the covenant of good faith and fair dealing claim because Bear River failed to plead as an affirmative defense that Prince's claim for PIP benefits was fairly debatable and because denial of PIP benefits in reliance on only the opinion of Bear River's own doctor contravenes the covenant. In response, Bear River contends that summary judgment was appropriate because Prince's PIP benefits claim was fairly debatable and Bear River was not required to plead its fairly debatable defense as an affirmative defense.

[12 Additionally, Prince contends that the trial court erred in granting Bear River summary judgment on its fraud and intentional infliction of emotional distress claims because Bear River did not properly support its summary judgment motion. Bear River counters that Prince did not make out all the elements of these claims and that therefore judgment as a matter of law was appropriate.

£13 Finally, Prince asserts that the trial court abused its discretion by refusing to permit Prince to amend his complaint and by refusing to award him more than $450 in attorney fees. In response, Bear River contends, among other things, that the trial court properly denied Prince's motion to amend because Prince sought to revive with the amended complaint causes of action that the trial court had already dismissed and because Prince's motion to amend was untimely. Bear River also argues that the trial court did not abuse its discretion in not awarding additional attorney fees.

STANDARD OF REVIEW

114 Summary judgment is proper when "there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law." Utah R. Civ. P. 56(c); see also Ault v. Holden, 2002 UT 33, ¶ 15, 44 P.3d 781. We review the trial court's order granting Bear River summary judgment for correctness and accord no deference to the trial court's legal conclusions. Holmes Dev., LLC v. Cook, 2002 UT 38, ¶ 21, 48 P.3d 895; Regal Ins. Co. v. Bott, 2001 UT 71, ¶ 6, 31 P.3d 524. In making this determination, " 'we view the facts and all reasonable inferences drawn therefrom in the light most favorable to the nonmoving party'" Ault,2002 UT 33 at ¶ 15, 44 P.3d 781 (quoting DCM Inv. Corp. v. Pinecrest Inv. Co., 2001 UT 91, ¶ 6, 34 P.3d 785).

ANALYSIS

I. PIP INSURANCE

A. No-Fault Automobile Insurance Act

115 Before we address the questions at issue, we find it necessary to expound the statutory background serving as the basis for Prince's causes of action. Utah's No-fault Automobile Insurance Act has two primary components: (1) no-fault PIP insurance coverage, and (2) partial tort immunity from certain PIP-type claims for tortfeasors that maintain no-fault insurance on their own vehicles. Bear River Mut. Ins. Co. v. Wall, 1999 UT 33, ¶ 10, 978 P.2d 460.

116 First, the Act requires that insurers provide no-fault PIP coverage to their insureds under any policy "purchased to satisfy the owner's or operator's security requirement" of the Utah Code. Utah Code Ann. § 31A-22-302(2) (2001). This component of the Act "allows accident victims to claim PIP benefits from their own insurers-regardless of fault-up to statutory limits." Bear River Ins. Co., 1999 UT 33 at ¶ 10, 978 P.2d 460; see also Allstate Ins. Co. v. Ivie, 606 P.2d 1197, 1200 (Utah 1980). The PIP benefits under the Act include the payment of the reasonable value, up to the statutory limit of $3,000, of necessary medical and related expenses incurred as a result of personal injury sustained in an automobile accident. Utah Code Ann. § 81A-22-807(1)(a) (2001). PIP benefits are to "be [paid] on a monthly basis as expenses are incurred," id § 81A-22-309(5)(a), "so that claimants can continue to meet basic living expenses," Versluis v. Guar. Nat'l Cos., 842 P.2d 865, 867 (Utah 1992). Such benefits are overdue on any valid claim for PIP benefits if not paid within thirty days of the insurer's receipt of reasonable proof of the "fact and amount of expenses incurred." Utah Code Ann. § 31A-22-309(5)(b) (2001).

117 In general, the purpose of PIP coverage under the Act "is to ensure that insurance companies provide immediate minimal benefits for covered individuals [injured] in automobile accidents in order to equitably and effectively handle the greater bulk of personal injury claims arising out of automobile accidents." Regal Ins. Co. v. Bott, 2001 UT 71, ¶ 11, 31 P.3d 524; see also Versluis, 842 P.2d at 867. Regardless of fault, PIP benefits under the Act are intended to expeditiously cover out-of-pocket expenses incurred for necessary medical treatment that do not exeeed $3,000, obviating the need to sue the purported tortfeasor to recover the same. Regal Ins. Co., 2001 UT 71 at ¶ 11; 31 P.3d 524; Versluis 842 P.2d at 867. In other words, the intent of PIP benefits is to preclude vexatious lawsuits against tortfea-sors to recover relatively minor damages and to protect the injured party from "bearing the expense of lengthy delay associated with litigation to establish [the] fault" of the alleged tortfeasor. Warren v. Melville, 937 P.2d 556, 558-59 (Utah Ct.App.1997).

T18 Further, "PIP benefits were not intended 'to provide an automatic reward or a "windfall" for being involved in an accident by requiring payment when there was no loss actually suffered. ...'" Versluis, 842 P.2d at 867 (quoting Jamison v. Utah Home Fire Ins. Co., 559 P.2d 958, 960 (Utah 1977)). A PIP insurer can deny coverage if no loss was actually suffered or if the expenses incurred were outside the seope of coverage as set forth in Utah Code section 81A-22-207(1) and the PIP insurance policy. Accordingly, if a dispute arises between the PIP insurer and its insured regarding coverage or if an insured is entitled to benefits but has not been timely paid, the insured can bring a first-party insurance contract claim against its insurer to recover sums the insurer agreed to pay for the insured's losses under the insurance contract, plus statutory interest and attorney fees. Utah Code Ann. § 31A-22-309(5)(d). Because a first-party insurance claim is purely contractual, an insurer owes no fiduciary duties to its insured when it denies PIP benefits as it does under a third-party insurance claim. See Billings v. Union Bankers Ins. Co., 918 P.2d 461, 465 (Utah 1996); Beck v. Farmers Ins. Exch., 701 P.2d 795, 800 (Utah 1985).

119 Second, the Act provides for partial, limited tort immunity for tortfeasors who maintain no-fault insurance on their vehicles. Bear River Ins. Co., 1999 UT 33 at ¶ 10, 978 P.2d 460. However, this court has explained that "this immunity is partial: tort victims may still bring claims against tort-feasors for pain and suffering, as well as for economic losses, in excess of the statutory PIP limit." Id. (citations omitted); see also Allstate Ins. Co., 606 P.2d at 1200 (stating that if insured's injuries are more than $3,000, then insured "may maintain a claim for general damages"). In addition to bringing a suit to recover if medical expenses exeeed $3,000, an injured person or his estate can also bring suit against the tortfeasor in the event of death, dismemberment, permanent disability, or permanent disfigurement. Utah Code Ann. § 31A-22-309(1)(a) (2001).

B. Necessity of Medical Expenses

120 Bear River denied Prince's claims for additional PIP benefits because Bear River concluded that Prince's continued chiropractic care was unnecessary, relying on Dr. Marble's opinion that Prince's care was unnecessary beyond the first twelve weeks. Prince contends that Bear River improperly denied Prince PIP benefits under the Act, asserting the term "necessary" in the Act and the policy is not a coverage term that limits the risk transferred by the policy. To determine whether Bear River can deny coverage because the expenses were unnecessary, we first look to the Act and the underlying insurance policy.

When we interpret statutes, unless a statute is ambiguous, we look exelu-sively to a statute's plain language to ascertain the statute's meaning. Blackner v. State, 2002 UT 44, ¶ 12, 48 P.3d 949. Similarly, because an insurance policy is the contract between the insurer and the insured, we first look to the plain language of the policy to ascertain its meaning if it is not ambiguous. Holmes Dev., LLC v. Cook, 2002 UT 38, ¶ 24, 48 P.3d 895; Miller v. USAA Cas. Ins. Co., 2002 UT 6, ¶ 49, 44 P.3d 663. Neither the language of the relevant provision of the Act nor the relevant portion of the policy is ambiguous.

11 22 According to the Act:

Personal injury protection coverages and benefits include:
(a) the reasonable value of all expenses for necessary medical, surgical, X-ray, ... hospital, and nursing services, not to exceed a total of $3,000 per person|[.]

Utah Code Aun. § 31A-22-807(1)(a) (2001) (emphasis added).

123 Likewise, the policy itself provides: "(Bear River] will pay personal injury protection benefits that are reasonable and meces-sary to or on behalf of each eligible injured person for: (a) medical expenses...." (Emphasis added.) Further, the policy provides:

If [Prince] incurs medical expenses which are unreasonable or unnecessary, we may refuse to pay for those medical expenses and contest them.... [U/mnecessary medical expenses are fees for medical services which are not usually and customarily performed for the treatment of the injury, including fees for an excessive number, amount, or duration of medical services.

(Emphasis added.)

124 Under both the plain language of the relevant statute and the relevant policy provisions, Bear River was required to pay PIP benefits to cover only expenses incurred for necessary medical treatments. See Nasser v. Auto Club Ins. Ass'n, 435 Mich. 33, 457 N.W.2d 637, 645 (1990) ("Under [Michigan's no-fault] statutory scheme, an insurer is not Hable for any medical expense to the extent that ... the product or service itself is not reasonably necessary."); Elkins v. New Jersey Mfrs. Ins. Co., 244 N.J.Super. 695, 583 A.2d 409, 412 (1990) (holding that for medical expenses occasioned by vehicle accident to be compensable under New Jersey statute expenses had to be "reasonable and necessary"). If Prince incurred unnee-essary medical expenses, then Bear River was not required to pay PIP benefits to cover those expenses.

II. BREACH OF CONTRACT

( 25 On appeal, Prince asks us to hold that Bear River breached the insurance policy by refusing to pay PIP benefits up to the policy limit when due. According to the Utah Code and the relevant insurance policy, Bear River was required to pay for "the reasonable value of all expenses for necessary medical, surgical, X-ray, ... ambulance, hospital, and nursing services" incurred as a result of the accident that do not "exceed a total of $3,000," Utah Code Ann. § 31A-22-807(1)(a) (2001), "within 30 days after the insurer receives reasonable proof of the fact and amount of expenses incurred," id. § 31A-22-309(5)(b). Prince averred that he incurred more than $3,000 in medical expenses allegedly occasioned by the automobile accident, but Bear River paid only $1,924.34 and denied Prince further PIP benefits because Bear River concluded that further benefits were unnecessary. In response, Prince initiated this breach of contract action.

126 Pursuant to statute, Prince was entitled to seek as contract damages only (1) payment of overdue expenses, (2) "interest at the rate of 1 1/2% per month after the due date," and (8) reasonable attorney fees. Id. § 31A-22-309(5). In the instant case, Bear River paid the allegedly overdue benefits, and the trial court awarded Prince statutory interest and attorney fees, rendering Prince's appeal of the breach of contract action moot. Jensen v. Eddy, 30 Utah 2d 154, 156, 514 P.2d 1142, 1143 (1973); see also Bennion v. Pennzoil Co., 826 P.2d 187, 138 (Utah 1992).

III. BREACH OF COVENANT OF GOOD FAITH AND FAIR DEALING

127 The next issue on appeal is whether the trial court properly granted Bear River summary judgment on Prince's breach of the covenant of good faith and fair dealing claim. Under Utah law, "an implied covenant of good faith and fair dealing generally inheres [in] all contractual relationships." Rawson v. Conover, 2001 UT 24, ¶ 44, 20 P.3d 876. Under this covenant, the contracting parties each impliedly promise not to "intentionally or purposely do anything [that] will destroy or injure the other party's right to receive the fruits of the contract," Brown v. Moore, 973 P.2d 950, 954 (Utah 1998) (quotations omitted), and "to comply [with the covenant], a party must act consistently 'with the agreed common purpose and the justified expectations of the other party,'" Rawson,2001 UT 24 at 144, 20 P.3d 876 (quoting St. Benedict's Dev. Co. v. St. Benedict's Hosp., 811 P.2d 194, 200 (Utah 1991)). In the first-party insurance context, this

"implied covenant of good faith performance contemplates, at the very least, that the insurer will diligently investigate the facts to enable it to determine whether a claim is valid, will fairly evaluate the claim, and will thereafter act promptly and reasonably in rejecting or settling the claim."

Gibbs M. Smith, Inc. v. United States Fid. & Guar. Co., 949 P.2d 337, 344 (Utah 1997) (quoting Beck v. Farmers Ins. Exch., 701 P.2d 795, 801 (Utah 1985)); see also Lieber v. ITT Hartford Ins. Cir., Inc., 2000 UT 90, ¶ 19, 15 P.3d 1030. If an insurer acts reasonably in denying a claim, then the insurer did not contravene the covenant. 14 Lee R. Russ & Thomas F. Segalla, Couch on Insurance 3d § 207:53 (1999).

128 The denial of a claim is reasonable if the insured's claim is fairly debatable. Under Utah law, if an insurer denies an " 'insured's claim [that] is fairly debatable, [then] the insurer is entitled to debate it and cannot be held to have breached the implied covenant if it chooses to do so."" Morris v. Health Net of Calif., Inc., 1999 UT 95, ¶ 7, 988 P.2d 940 (quoting Billings v. Union Bankers Ins. Co., 918 P.2d 461, 465 (Utah 1996)); see also Callioux v. Progressive Ins. Co., 745 P.2d 888, 842 (Utah Ct.App.1987); 14 Russ & Segalla, Couch on Insurance 3d § 204:28.

€29 In the instant case, the trial court concluded that Prince's claim was fairly debatable and that, therefore, Prince's breach of the covenant of good faith and fair dealing claim failed as a matter of law. Prince appeals, arguing that (1) Bear River failed to plead its fairly debatable defense as an affirmative defense, and (2) nonpayment or delayed payment of PIP benefits in reliance on only Dr. Marble's opinion violated Bear River's covenant of good faith and fair dealing because denial in reliance on only the doctor's opinion is "insufficient to satisfy the 'fairly debatable' defense."

A. Affirmative Defense

930 Prince first contends that Bear River waived its "fairly debatable" defense when Bear River failed to affirmatively plead the defense according to rule 8(c) of the Utah Rules of Civil Procedure. Rule 8(c) provides:

In pleading to a preceding pleading, a party shall set forth affirmatively accord and satisfaction, arbitration and award, assumption of risk, contributory negligence, discharge in bankruptcy, duress, estoppel, failure of consideration, fraud, illegality, injury by fellow servant, laches, license, payment, release, res judicata, statute of frauds, statute of limitations, waiver, and any other matter constituting an avoidance or affirmative defense.

Utah R. Civ. P. 8(c) (emphasis added). Unless a matter must be affirmatively pleaded as a defense under rule 8(c), a defendant can merely deny the plaintiff's averments under rule 8(b). Jones, Waldo, Holbrook & McDonough v. Dawson, 923 P.2d 1366, 1374 (Utah 1996). The purpose of requiring a party to plead affirmative defenses under rule 8(c) is to ensure that parties "have adequate notice of the issues and facts in the case." Price-Orem Inv. Co. v. Rollins, Brown & Gunnell, Inc., 713 P.2d 55, 59 (Utah 1986).

131 A fairly debatable defense to an insured's first-party bad faith claim against its insurer is not specifically enumerated in the rule as an affirmative defense that must be affirmatively pleaded. Utah R. Civ. P. Sich Thus, we must determine whether an insurer's defense to a bad faith claim that an insured's claim is "fairly debatable" is "any other matter constituting an avoidance or affirmative defense." Id. Rule 8(c) does not define or explain what constitutes an avoidance or an affirmative defense. Jones, Waldo, Holbrook & McDonough, 923 P.2d at 1373. Nevertheless, a rule 8(c) affirmative defense is a defense employed to defeat the plaintiff's claim by raising matters outside or extrinsic to the plaintiff's prima facie case. Id. at 1374; see also Creekview Apts. v. State Form Ins. Co., 771 P.2d 693, 695 (Utah Ct.App.1989) (explaining that avoidance under rule 8(c) is "a defense independent of the allegations in the pleadings"). In other words, if a defense directly assails or "merely controverts [a] plaintiff's prima facie case," it is not an affirmative defense and can be simply denied under rule 8(b). Jones, Waldo, Holbrook & McDonough, 923 P.2d at 1374.

132 In its answer, Bear River denied all the allegations giving rise to Prince's bad faith claim and added that Bear River "affirmatively states that it has acted in good faith and has dealt fairly with [Prince]." Bear River's assertion that Prince's claim was fairly debatable controverts Prince's averment that Bear River denied Prince's claim without "a reasonable basis for doing so." Thus, Bear River's fairly debatable defense served only to directly refute Prince's allegations in the complaint that Bear River denied Prince PIP benefits in bad faith, and thus, controverted Prince's prima facie case. The fairly debatable defense did not extrinsically attack Prince's claims as would an affirmative defense or avoidance such as a statute of limitations defense or a contractual limitations defense, see Creekview Apts., Til P.2d at 695, which defeat a plaintiff's claim but do so without directly assailing the elements of the prima facie case, see Jones, Waldo, Holbrook & McDonough, 923 P.2d at 1374. Further, Bear River's denial in the answer sufficiently afforded Prince " 'notice of the [fairly debatable defense] raised and [afforded him] an opportunity to meet [it], " which is all that is required under rule 8. Id. at 1374 (quoting Cheney v. Rucker, 14 Utah 2d 205, 211, 381 P.2d 86, 91 (1968)). Therefore, Bear River's fairly debatable defense was not an avoidance or an affirmative defense, and Bear River was not required to affirmatively plead such as a defense in its answer.

B. Fairly Debatable

T383 Prince next contends that the fairly debatable standard did not apply in this case because reliance on only Dr. Marble's opinion was an insufficient basis upon which Bear River could deny Prince's PIP benefits claim. The trial court's conclusion that Prince's PIP benefits claim was fairly debatable under the facts of this case is a question of law that we review for correctness. Billings v. Union Bankers Ins. Co., 918 P.2d 461, 464 (Utah 1996). Nevertheless, trial courts have "some discretion" in concluding that an insurance claim is fairly debatable "because of the complexity and variety of the facts upon which the fairly debatable determination depends," and we will therefore "grant the trial court's conclusion some deference." Id.

134 We concur with the court of appeals that "[ilf the evidence presented creates a factual issue as to the claim's validity, there exists a debatable reason for denial, . eliminating the bad faith claim." Callioux v. Progressive Ins. Co., 745 P.2d 838, 842 (Utah Ct.App.1987); see also 14 Lee R. Russ & Thomas F. Segalla, Couch on Insurance 3d § 204:28 (1999) ("A 'debatable reason,' for purposes of determining whether a first-party insurer may be subjected to bad-faith liability, means an arguable reason, a reason that is open to dispute or question.").

185 In this case, there was a legitimate factual issue as to the validity of Prince's claim for PIP benefits after the first twelve weeks of chiropractic care. Denying benefits under an insurance policy in reliance on an expert's report, such as a doctor's report, even if the expert's opinion is provided in exchange for remuneration, is not a bad faith denial because the expert's report creates a legitimate factual question regarding the validity of an insured's claim for benefits, making the insured's claim at least fairly debatable. Callioux, 745 P.2d at 842. Bear River, under the Act and the policy, was entitled to deny Prince benefits if Prince's medical care was not necessary. See supro part LB. Bear River denied Prince PIP benefits in reliance on the opinion of Dr. Marble, its medical examiner, that more than twelve weeks of chiropractic care was not "medically necessary." As such, the validity of Prince's claim was fairly debatable because Bear River denied continued benefits in reliance on the doctor's opinion.

136 Because the validity of Prince's PIP benefits claim was fairly debatable, Bear River's denial of benefits did not breach the covenant of good faith and fair dealing as a matter of law. Therefore, the trial court correctly granted Bear River summary judgment on this claim.

IV. INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS

937 The next issue on appeal is whether the trial court correctly granted Bear River summary judgment on Prince's intentional infliction of emotional distress claim. Prince contends that because Bear River did not properly support its summary judgment motion, the trial court erred in granting Bear River summary judgment on this claim. Under Utah law, a plaintiff must prove four elements to establish an intentional infliction of emotional distress claim:

(1) the [defendant's] conduct [complained of} was outrageous and intolerable in that it offended ... generally accepted standards of decency and morality; (M) [the defendant] intended to cause, or acted in reckless disregard of the likelihood of causing, emotional distress; (Mi) [the plaintiff] suffered severe emotional distress; and (iv) [the defendant's] conduct proximately caused [the] emotional distress.

Retherford v. AT & T Communications of the Mountain States, Inc., 844 P.2d 949, 970-71 (Utah 1992).

138 If the trial court determines that a defendant's conduct was not outrageous as a matter of law, then the plaintiff's claim fails, see Franco v. Church of Jesus Christ of Latter-day Saints, 2001 UT 25, 11 28-29, 21 P.3d 198, and a court may properly grant the defendant summary judgment on an intentional infliction of emotional distress claim, see Schuurman v. Shingleton, 2001 UT 52, ¶¶ 24-25, 26 P.3d 227. A court is to determine whether a " 'defendant's conduct may reasonably be regarded as so extreme and outrageous as to permit recovery?" Id. at 128 (quoting Gygi v. Storch, 28 Utah 2d 399, 401, 503 P.2d 449, 450 (Utah 1972) (quotation omitted)). Outrageous conduct, for purposes of the tort of intentional infliction of emotional distress, is conduct that evokes " 'outrage or revulsion; it must be more than unreasonable, unkind, or unfair?" Franco, 2001 UT 25 at ¶ 28, 21 P.3d 198 (quoting 86 C.J.S. Torts § 70 (1997). Additionally, conduct is not outrageous simply because it is " 'tortious, injurious, or malicious, or because it would give rise to punitive damages, or because it is illegal!" Id.

139 Prince alleged in his complaint that the outrageous and intolerable conduct that proximately caused him emotional distress was Bear River's denial of his claim for PIP benefits and its reliance on Dr. Marble's report in doing so. We have recognized that an insured can sue an insurer for intentional infliction of emotional distress for refusing to pay benefits under the contract in appropriate cases. Broadwater v. Old Republic Sur., 854 P.2d 527, 536 (Utah 1998); Culp Constr. Co. v. Buildmart Mall, 795 P.2d 650, 654-55 (Utah 1990). As a matter of law, however, if Bear River's reason for denying benefits under the policy is fairly debatable, then Bear River's denial does not rise to the level of outrageous conduct that could give rise to liability for intentional infliction of emotional distress. See Reedy v. White Consol. Indus., Inc., 890 F.Supp. 1417, 1448 (N.D.Iowa 1995) (holding that if insurer's obligation to pay benefits is fairly debatable, then "refusing to pay the benefits cannot be outrageous within the meaning of the tort of intentional infliction of emotional distress").

In this case, sufficient evidence was presented to the trial court on summary judgment for the trial court to conclude that Bear River's denial of PIP benefits to Prince in reliance on Dr. Marble's report was fairly debatable. As stated above, if an insurance company solicits the opinion of a doctor and relies on the doctor's opinion in denying an insured's claim, then the claim is at least fairly debatable. See supra 1385. Bear River denied Prince PIP benefits in reliance on Dr. Marble's report, which accompanied Bear River's summary judgment motion. In the report, Dr. Marble opined that Prince's continued chiropractic treatment was unnecessary. Regardless of whether the insurer properly denied the claim as a matter of law, denial under such cireumstances should not evoke outrage or revulsion, nor does it offend generally accepted standards of decency or morality. Accordingly, Bear River's denial of Prince's PIP benefits in reliance on Dr. Marble's report was not "outrageous and intolerable" as a matter of law because it was fairly debatable and reasonable. Therefore, the trial court properly granted Bear River summary judgment on the intentional infliction of emotional distress claim.

V. FRAUD

T41 We next address whether the trial court correctly granted Bear River summary judgment on Prince's fraud claim. To successfully establish a fraud claim, the party asserting fraud must show by clear and convincing evidence

"(1) [that a representation was made; (2) concerning a presently existing material fact; (8) which was false; (4) which the representor either (a) knew to be false, or (b) made recklessly, knowing that he had insufficient knowledge upon which to base such representation; (5) for the purpose of inducing the other party to act upon it; (6) that the other party, acting reasonably and in ignorance of its falsity; (7) did in fact rely upon it; (8) and was thereby induced to act; (9) to his injury and damage."

Franco v. Church of Jesus Christ of Latter-day Saints, 2001 UT 25, ¶ 33, 21 P.3d 198 (emphasis omitted) (quoting Mikkelson v. Quail Valley Realty, 641 P.2d 124, 126 (Utah 1982) (quotations omitted)). Accordingly, essential to making out a fraud claim is "that the defendant either knew the representation [it made was] false or [that the defendant] made the representation recklessly, knowing that [it] had insufficient knowledge upon which to base [the] representation." Id. at T 36.

142 Prince alleged in the complaint that Bear River knew Prince was entitled to the statutory limit of $3,000 in PIP benefits or, in the alternative, that Bear River refused to pay Prince the benefits knowing that Bear River lacked sufficient knowledge upon which to base such a representation. However, the evidence before the trial court on summary judgment established that (1) Bear River did not know Prince was legally entitled to the benefits up to the statutory limit and (2) Bear River did not know it had insufficient knowledge upon which to make a representation that Prince's continued chiropractic care was unnecessary and that Prince was therefore not legally entitled to continued PIP benefits.

T43 First, Bear River did not know that Prince was legally entitled to continued PIP benefits when it denied Prince's claim for benefits as a matter of law. Section 31A-22-307(1) of the Utah Code and the PIP insurance policy provided that Prince was entitled to PIP benefits only if the benefits covered mecessary medical care. See supra part LB. Dr. Marble opined that continued chiropractic care after the first twelve weeks was unnecessary. Bear River considered and relied upon Dr. Marble's opinion that continued care was unnecessary when it denied Prince's claim. Thus, Bear River reasonably believed that Prince was not entitled to the benefits, and therefore Bear River clearly did not know that Prince was entitled to continued PIP benefits.

T44 Second, Bear River did not know that it lacked sufficient knowledge upon which it could make a representation as to Prince's continued chiropractic care. "To have made a false representation recklessly, defendants would have to know that they had insufficient knowledge upon which to base the representation made." Rawson v. Conover, 2001 UT 24, ¶ 28, 20 P.3d 876 (emphasis added). If an insured's claim is fairly debatable, an insurer has sufficient information to reasonably conclude that it can deny the claim. To be fairly debatable, evidence must establish that there is an arguable or debatable basis underlying the insurer's nonpayment or delayed payment of a claim. See Callioux v. Progressive Ins. Co., 745 P.2d 838, 842 (Utah Ct.App.1987). It follows, then, that a debatable reason arises only in a situation where the insurer reasonably be-Heves it is denying a claim based upon sufficient knowledge to deny the claim, and therefore, as a matter of law, the insurer cannot know it lacks sufficient knowledge upon which to determine that the insured is not entitled to coverage.

$45 In this case, Dr. Marble's report called into question Prince's claim, making Prince's claim fairly debatable. The trial court had before it undisputed evidence that "Bear River relied on the ... report of Dr. Marble to determine whether [Prince's] medical expenses were reasonable and necessary." Prince failed to counter with any evidence that Bear River otherwise knew that Dr. Marble's report was an insufficient basis upon which it could rely in denying Prince's PIP benefits claims. Therefore, the undisputed evidence shows that Bear River did not know it lacked sufficient knowledge in representing that Prince was not entitled to PIP benefits. Thus, because the undisputed evidence presented to the trial court on summary judgment established, as a matter of law, that Bear River did not deny Prince PIP benefits either knowing Prince was entitled to such benefits or knowing it lacked sufficient knowledge to make a representation as to whether additional chiropractic visits were necessary and as to Prince's entitlement to the benefits, the trial court correctly granted Bear River summary judgment on Prince's fraud claim.

VI. TORT OF VIOLATION OF PUBLIC POLICY EMBODIED IN NO-FAULT INSURANCE ACT

146 The next issue is whether the trial court correctly granted Bear River summary judgment on Prince's claim that Bear River committed the tort of violation of public policy embodied in the No-fault Insurance Act. Prince's claim for the violation of this tort merely recasts his breach of contract claim, which necessarily includes breach of the No-fault Insurance Act's provisions, and is thus wholly repetitive.

{47 Where a statute provides a specific civil legal remedy to redress an injury in violation of that statute, a tort action for violation of the public policy embodied in the statute will not lie. McClure v. Am. Family Mut. Ins. Co., 223 F.3d 845, 856 (8th Cir.2000); Herman v. United Bhd. of Carpenters & Joiners of Am., 60 F.3d 1375, 1385 (9th Cir.1995); Schwartz v. Comcorp, Inc., 91 Ohio App.3d 639, 683 N.E.2d 551, 557 (19983) (per curiam). Utah's public policy with respect to no-fault insurance and a remedy for breach of that policy are contained within the plain language of the Act itself, see supra part I, and the Act's public policy does not emanate therefrom to fashion novel causes of action. Indeed, the Act provides statutory remedies for its violation, including interest on overdue payments and attorney fees, and the Act does not need to be augmented by common law remedies to vindicate the public policy embodied in the Act. See Utah Code Ann. § 31A-22-309(5). Therefore, the trial court correctly granted Bear River summary judgment on this claim.

VII. MOTION TO AMEND COMPLAINT

148 Next, we address whether the trial court abused its discretion by denying Prince's motion to amend the complaint. Prince argues that the court should have granted his motion to amend because (1) Dr. Marble is an indispensable party and (2) Prince offered an adequate explanation for his delay in moving to amend. Rule 15(a) of the Utah Rules of Civil Procedure provides that onee a responsive pleading has been served, "a party may amend his pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires." Utah R. Civ. P. 15(a); see also Holmes Dev., LLC v. Cook, 2002 UT 38, ¶ 57, 48 P.3d 895. We will affirm a trial court's denial of a motion to amend unless the trial court abused its discretion. Aurora Credit Servs., Inc. v. Liberty W. Dev., Inc., 970 P.2d 1273, 1281 (Utah 1998).

149 It is settled that a trial court does not abuse its discretion when it denies a motion to amend a pleading that was filed after an extensive delay without an adequate justification, after some issues have been resolved, and when that pleading would add new parties and claims, especially when the moving party "knew that all of the parties it sought to add were involved with each other from the outset of the case and therefore ... they could have been joined in a timely manner." R & R Energies v. Mother Harth Indus., Inc., 936 P.2d 1068, 1080 (Utah 1997); see also Atcitty v. Bd. of Educ. of San Juan County Sch. Dist., 967 P.2d 1261, 1264 (Utah Ct.App.1998). In this case, Prince sought to amend his complaint after an excessive delay: more than three years after he filed his original complaint. The amended complaint Prince sought to file attempted to join Dr. Marble as a defendant, alleging that (1) Dr. Marble "aided and abetted" Bear River in making secret profits as a fiduciary by retaining Prince's premiums paid without paying PIP benefits and (2) Dr. Marble intentionally interfered with Prince's economic relations by improper means to legitimize Bear River's breach of contract and attempted to resurrect Prince's claims, which the trial court had already disposed of on summary judgment, by converting his individual claims into class action claims. Permitting Prince to amend at this late date would be prejudicial to Bear River because Bear River would incur attorney fees in addition to those already amassed to address issues the trial court has decided.

50 Additionally, Prince has not tendered a satisfactory justification for moving to amend three years after filing the original complaint. As near as we can ascertain from Prince's brief, Prince intimates that his delay in moving to amend should be excused because until the present legal environment is changed by a judge willing to interpret the No-fault Insurance Act properly, moving to amend would be futile. Prince's proffered exeuse is unclear and unpersuasive. Accordingly, the trial court did not abuse its discretion by denying Prince's motion to amend the complaint. See Neztsosie v. Meyer, 883 P.2d 920, 922 (Utah 1994) (concluding that trial court did not abuse its discretion by denying plaintiff's motion for leave to file second amended complaint where plaintiff moved to amend after case had been pending three years and after trial court had entered summary judgment order and plaintiff knew or should have known of claim when previous amended complaint was filed).

VIII. ATTORNEY FEES

T51 The final issue on appeal is whether the trial court's award of $450 in attorney fees was proper. Prince argues that inasmuch as he was the prevailing party below, the trial court should have awarded him all attorney fees he reasonably incurred in this litigation. Both parties seek attorney fees on appeal.

A. Attorney Fees Below

152 Prince contends that because he was the prevailing party on the breach of contract claim, he should be awarded all of his attorney fees that were reasonably incurred in pursuing this litigation. Attorney fees are generally recoverable in Utah only when authorized by statute or contract. Miller v. USAA Cas. Ins. Co., 2002 UT 6, ¶ 69, 44 P.3d 663. The Utah Code provides in pertinent part:

The person entitled to the benefits may bring an action in contract to recover the expenses plus the applicable interest. If the insurer is required by the action to pay any overdue benefits and interest, the insurer is also required to pay a reasonable attorney's fee to the claimant.

Utah Code Ann.. § 81A-22-809(5)(d) (2001) (emphasis added). In the instant case, Bear River paid the overdue benefits that Prince alleged he was owed, and in connection therewith, the trial court required Bear River to pay interest in conformity with Utah Code section 31A-22-309(b)(c) and awarded Prince $450 in attorney fees.

153 Once the trial court decided that Prince was entitled to an attorney fee award under section 31A-22-309(5)(d), the trial court had broad discretion in deciding what constitutes reasonable attorney fees, and we will not reverse that determination absent an abuse of discretion. Bakowski v. Mountain States Steel, Inc., 2002 UT 62, ¶ 33, 52 P.3d 1179.

§54 After hearing argument on the amount of reasonable fees and after considering the parties' contentions, the trial court concluded that $450 was a reasonable attorney fee award. Prince contends that (1) Bear River misled the trial court in countering Prince's arguments for substantial attorney fees by arguing that Prince's counsel had spent only three hours preparing the breach of contract elaim for which Prince may recover attorney fees, and (2) Prince should be able to recover all his attorney fees incurred because he prevailed on the primary issue in this case, the breach of contract claim.

$55 First, in exercising its discretion in awarding attorney fees, a trial court congiders all the evidence and arguments presented regarding the award and in its discretion determines a reasonable fee. Regardless of whether Prince believes the trial court was misled by Bear River, accepting one party's argument over the other is not an abuse of discretion in the absence of substantial proof that the trial court abused its discretion. Even if Prince believes that $450 is insufficient, the amount itself does not prove that the trial court abused its discretion. Id. at 188 (stating that "a trial court is not required to adopt the prevailing party's assertion of what constitutes a reasonable attorney fee").

156 Second, Prince is not entitled to all the attorney fees he incurred pursuing this suit because he prevailed only on the contract claim. Because Prince can recover attorney fees only if authorized by section 31A-22-809(5)(d), Prince can recover attorney fees only if incurred pursuing the contract action to recover "any overdue benefits and interest." Utah Code Ann. § 31A, 22-309(5)(d) (2001). The trial court can award attorney fees to Prince on the other issues before the court only if Prince is the prevailing party on those issues. Ault v. Holden, 2002 UT 33, ¶¶ 47-48, 44 P.3d 781; see also Utah Code Ann. § 78-27-56(1) (1996). In other words, the trial court can award Prince attorney fees only for those issues on which he was the prevailing party. Indeed, we have explained that

a party seeking fees must allocate its fee request according to its underlying claims. Indeed, the party must categorize the time and fees expended for "(1) successful claims for which there may be an entitlement to attorney fees, (2) unsuccessful claims for which there would have been an entitlement to attorney fees had the claims been successful, and (8) claims for which there is no entitlement to attorney fees."

Foote v. Clark, 962 P.2d 52, 55 (Utah 1998) (citation omitted) (quoting Cottonwood Mall Co. v. Sine, 830 P.2d 266, 268 (Utah 1992)). In addition, "[wlhile a trial court may, in its discretion, deny fees altogether for failure to allocate, it may not award wholesale all attorney fees requested if they have not been allocated as to separate claims and/or parties." Valcarce v. Fitzgerald, 961 P.2d 305, 318 (Utah 1998). In the instant case, Prince was not the prevailing party with respect to whether the statute required that Bear River pay only necessary claims. See supra part L.B. Prince was the prevailing party on the contract claim only to the extent that Bear River voluntarily paid Prince's claim, and in connection therewith the trial court awarded Prince interest and attorney fees as mandated by statute.

57 Further, Prince was not the prevailing party on any other claims. Although under Utah law a plaintiff can recover attorney fees if the plaintiff is successful in pursuing a first-party bad faith suit against its insurer, see Lieber v. ITT Hartford Ins. Ctr., Inc., 2000 UT 90, ¶ 16, 15 P.3d 1030, Prince's first-party bad faith claim failed because it was fairly debatable. In addition, the trial court properly granted summary judgment on Prince's intentional infliction of emotional distress, fraud, and violation of public policy claims. See supra parts IV-VI. Accordingly, Prince was not entitled to any attorney fees with respect to those claims. Therefore, the trial court did not abuse its discretion in awarding $450 in attorney fees.

B. Attorney Fees on Appeal

158 Both parties seek attorney fees on appeal. Prince contends that he is entitled to attorney fees on appeal because "[alp-pellate courts routinely allow attorney fees on appeal when contracts and/or statutes expressly provide for fees." Although Utah Code section 81A-22-309(5)(d) provides for an award of attorney fees to the prevailing party, Prince is not the prevailing party on appeal and is therefore not entitled to attorney fees under the statute.

T59 Likewise, Bear River contends that it is entitled to attorney fees because it had to defend a frivolous appeal. Although Bear River presented reasons why we should grant it attorney fees on appeal, it did not cite any authority to support its position, contrary to Utah Rule of Appellate Procedure 24. On myriad occasions, we have held that we will not address issues inadequately briefed. Associated Gen. Contractors v. Bd. of Oil, Gas & Mining, 2001 UT 112, ¶ 37 & n. 8, 38 P.3d 291; State v. Lusk, 2001 UT 102, ¶ 36, 37 P.3d 1103. Nevertheless, even if we assume that Bear River seeks attorney fees under rule 38 of the Utah Rules of Appellate Procedure, its contention fails. Under rule 33, a frivolous appeal is one that "is not grounded in fact, not warranted by existing law, or not based on a good faith argument to extend, modify, or reverse existing law." Utah R.App. P. 88(b); see also Gildea v. Guardian Title Co., 970 P.2d 1265, 1272 (Utah 1998). Although we have concluded that all of Prince's claims except for the breach of contract claim, which was paid before it was resolved, fail as a matter of law, Prince's appeal of the trial court's conclusions with respect to those claims is not frivolous. Therefore, neither party is entitled to attorney fees on appeal.

CONCLUSION

T60 In light of the foregoing, the trial court properly granted partial summary judgment in favor of Bear River on Prince's breach of the covenant of good faith and fair dealing, intentional infliction of emotional distress, fraud, and violation of public policy embodied in the No-fault Insurance Act claims. Further, Prince's arguments with respect to the breach of contract claim are moot because Prince has already been awarded all damages recoverable. Moreover, the trial court did not abuse its discretion in denying Prince's motion to amend the complaint. Finally, the trial court was within its discretion in awarding Prince $450 in attorney fees. Accordingly, we affirm.

€ 61 Chief Justice DURHAM, Associate Chief Justice DURRANT, Justice HOWE, and Justice WILKINS concur in Justice RUSSONS opinion.

ADDENDUM

1 62 We feel it necessary to comment on the briefs in this case. Appellant's counsel has submitted briefs that are replete with pejorative remarks and epithets regarding opposing counsel, the trial court, Dr. Marble, and indirectly, this court. Statements such as Bear River's arguments are 210 & "supercilious," "absolutely foolish and asinine," and "ridiculous," that Bear River is "ignorant," that the trial court "ignored ... every opinion ever written by this [clourt" and "failled] to read and comprehend the actual language" of the applicable statute, that Dr. Marble is "notorious" and a "charlatan," and that Dr. Marble's opinion is "inarticulate" and an "absurd legal opinion" are wholly inappropriate in an appellate brief. Statements implying that small claims judges are not "real judge[s]" and that this court disregards the truth by prefacing an argument with "[o}n the outside chance the truth matters" are likewise inappropriate. Such remarks are merely argumentative and repugnant to fundamental and rudimentary notions of civility and decorum expected of attorneys, and as we have stated before, "[djerogatory references to others ... halve] no place in an appellate brief and [are] of no assistance to this [clourt in attempting to resolve any legitimate issues presented on appeal." State v. Cook, 714 P.2d 296, 297 (Utah 1986) (per curiam).

      . Prince casts this appeal as having at least eleven distinct issues. We set forth here only the issues that are relevant to our opinion, which address all of Prince's causes of action pleaded in the complaint.

      . Prince contends that his claim is a third-party situation in which Bear River owes him fiduciary duties. However, we recently held in Tucker v. State Farm Mutual Automobile Insurance Co. that a plaintiff's claim against his insurer to recover unpaid or overdue PIP benefits that the insurer was obligated to pay under the PIP provisions of an insurance policy is a first-party insurance claim. 2002 UT 54, ¶ 12-14, 53 P.3d 947; see also Utah Code Ann. § 31A-1-301(46) (2001); Lieber v. ITT Hartford Ins. Ctr., Inc., 2000 UT 90, ¶ 18, 15 P.3d 1030; C.T. ex rel. Taylor v. Johnson, 1999 UT 35, n. 3, 977 P.2d 479; Billings v. Union Bankers Ins. Co., 918 P.2d 461, 465 (Utah 1996); Beck v. Farmers Ins. Exch., 701 P.2d 795, 798 n. 2 (Utah 1985). Because Prince is suing to recover allegedly unpaid PIP benefits from Bear River, his claim is a first-party insurance claim.

      . The New Jersey statute at issue in Elkins v. New Jersey Manufacturers Insurance Co. is comparable to Utah's statutes.

      . Prince asserts that the trial court did not award sufficient attorney fees, we address Prince's attorney fees argument as a separate issue below.

      . We take no position on whether Prince was legally entitled to PIP benefits We state only that Bear River reasonably believed it could deny them.

      . We have never recognized this tort.