Uzelac v. Fire Insurance Exchange

2018 UT App 57

THE UTAH COURT OF APPEALS

MICHAEL UZELAC AND HOLLY UZELAC,
Appellants,
v.
FIRE INSURANCE EXCHANGE,
Appellee.

Opinion
No. 20150699-CA
Filed April 5, 2018

Third District Court, Salt Lake Department
The Honorable Denise P. Lindberg
No. 110903573

L. Rich Humpherys and J.D. Lauritzen, Attorneys
for Appellants
Andrew M. Morse, Kenneth L. Reich, and Brian A.
Mills, Attorneys for Appellee

JUDGE GREGORY K. ORME authored this Opinion, in which JUDGES
MICHELE M. CHRISTIANSEN and KATE A. TOOMEY concurred. 1

ORME, Judge:

¶1 Only days before Appellants Michael and Holly Uzelac
were scheduled to close on a permanent mortgage for their new,
custom-built vacation home, they learned that vandals had
broken into the home and caused extensive damage. The Uzelacs
submitted several claims to their insurer, Appellee Fire

1. After hearing the arguments in this case, Judge Stephen L.
Roth recused himself and did not participate in the consideration
of the case. Judge Michele M. Christiansen, having reviewed the
briefs and listened to a recording of the oral arguments,
substituted for Judge Roth and participated fully in this decision.
Uzelac v. Fire Insurance Exchange

Insurance Exchange (FIE), and FIE made payments to cover most
of the necessary repairs. Nevertheless, believing they were
entitled to more, the Uzelacs filed suit against FIE to obtain
additional compensation. The parties proceeded to litigate, and
ultimately the district court entered summary judgment in favor
of FIE. The Uzelacs now appeal. For the reasons discussed
below, we affirm the district court’s decision in part and reverse
it in part, and we remand the case for further proceedings.

BACKGROUND 2

¶2 In February 2008, having received word that the
construction and interior decoration of their new vacation home
had finally been concluded, the Uzelacs set out to view the
completed home for the first time. The home, set in the
mountains above Fruitland, was large and luxurious, with
lavish, custom-designed furnishings. Upon arriving, they were
horrified to find that their expensive new home was in shambles.

¶3 Vandals had forced their way into the home; torn apart
the walls and ceiling; smashed exterior windows; and ripped the
plumbing from the framework, flooding the structure with hot
water. Combined with the frigid winter temperatures, the water
continued to wreak havoc upon the home even after the vandals
departed. Hardly a square foot of the home was left undamaged.

¶4 The Uzelacs immediately filed a homeowner’s insurance
claim with FIE, claiming extensive damage to the home and its
contents. Soon after, an FIE representative visited the scene to
inspect the home and inventory the damaged personal property.

2. “When reviewing a district court’s grant or denial of a motion
for summary judgment, we view the facts in a light most
favorable to the party opposing the motion.” Anderson Dev. Co. v.
Tobias, 2005 UT 36, ¶ 31, 116 P.3d 323 (citation and internal
quotation marks omitted).

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Uzelac v. Fire Insurance Exchange

FIE arranged for a third party, ServiceMaster, to conduct
mitigation and remediation services, the bulk of which consisted
of drying out the home and its contents and boxing up and
storing the Uzelacs’ furniture and belongings. 3 FIE never took
the position that the Uzelacs’ policy was not in effect when the
vandalism occurred or that vandalism did not fall within the
scope of the policy’s coverage.

¶5 FIE received and processed numerous claims from the
Uzelacs in connection with the vandalism. Nearly all of the
claims were approved, some on the same day they were
received. Indeed, altogether, FIE disbursed over $900,000 to
cover repairs to the home and over $100,000 to cover damage to
the Uzelacs’ personal property. But FIE did reject some of the
Uzelacs’ claims.

¶6 In particular, the Uzelacs assert they made three requests
that FIE wrongfully rejected. 4 The first request involved an

3. As a factual matter, FIE maintains that it was the Uzelacs who
contracted with ServiceMaster to conduct mitigation and
remediation services. The Uzelacs contend that, on the contrary,
FIE contracted with ServiceMaster pursuant to its “preferred
vendor” program. We recognize that this issue carried some
legal significance below, but with respect to the claims now on
appeal, it is largely immaterial. Nonetheless, as stated above, we
view the facts in favor of the party against whom summary
judgment was rendered—here, the Uzelacs. See id. ¶ 31.

4. FIE raises the point, which the Uzelacs do not contest, that the
Uzelacs did not submit the first two of these three requests to
FIE in the form of a formal, written claim. The Uzelacs respond
that FIE should not be permitted to raise this as a defense
because the only reason the Uzelacs never submitted a formal
claim is that an FIE agent orally informed them that the policy
would not cover their requests. We conclude that, because FIE
has not pointed to anything in the policy clearly stating that an
(continued…)

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attempt to recoup certain unanticipated financing expenses that
arose as a consequence of the vandalism. Although the Uzelacs
had found a lender willing to provide permanent mortgage
financing for their new home before construction was
completed, closing was contingent on the Uzelacs’ first obtaining
a certificate of occupancy for the home. As a result of the
extensive vandalism, the Uzelacs were unable to obtain the
certificate, and they therefore had no choice but to secure a
“bridge loan” during the interim reconstruction period. In
response to the Uzelacs’ inquiry, FIE informed them that the
additional expenses flowing from the bridge loan’s higher
interest rate were not recoverable under the policy.

¶7 The second request involved the question of whether and
on what terms the Uzelacs’ policy would cover the expense of
substitute accommodations. In a declaration attached to the
Uzelacs’ opposition to FIE’s motion for summary judgment, Mr.
Uzelac averred that shortly after the vandalism occurred, he
contacted FIE to inquire whether his policy would cover the
expense of renting a substitute vacation home while theirs was
being rebuilt. According to him, an FIE representative informed
him that it would not. For its part, FIE has conceded that the
policy would have covered the expense of renting a second
home, but only if the Uzelacs had actually incurred that expense.
In turn, Mr. Uzelac stated in his declaration that the only reason
he and his wife did not rent a second home is that FIE led them
to believe the expense would not be covered.

¶8 Finally, the third request involved the malfeasance of
ServiceMaster. In November 2009, as the repairs to the home
neared completion, ServiceMaster retrieved the Uzelacs’
salvaged personal property from storage and delivered the items

(…continued)
insured’s request will not be considered absent a formal, written
claim, the Uzelacs’ failure to submit a claim in such a manner is
not dispositive, and we need not consider the point further.

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back to the home. To the Uzelacs’ dismay, many of the items
were returned in a ruined condition. For example, mattresses
were rotten and mildewed, and the pages of books and
photograph albums were stuck together in brittle clumps. The
property apparently had not been properly dried out before
being placed in storage, and as a result much of it was beyond
repair. The Uzelacs submitted a claim for this damage, but FIE
denied it, explaining that the Uzelacs would need to pursue their
claim against ServiceMaster directly.

¶9 Early in 2011, the Uzelacs filed suit against FIE and
ServiceMaster, asserting breaches of contract and the implied
covenant of good faith and fair dealing. In support, they alleged
that FIE had “failed and refused . . . to pay [the Uzelacs] the
moneys owing to them, despite demand therefor,” and that FIE
had “engaged . . . in a course of conduct to further its own
economic interest . . . in violation of its obligations to [the
Uzelacs].” Yet the complaint contained few specifics, and the
Uzelacs’ initial disclosures did not clarify matters much. In their
disclosures, under the heading “Computation of Damages,” the
Uzelacs claimed they were seeking “[t]he amounts that would be
owing under the policy as set forth in the complaint” in addition
to “[g]eneral and consequential damages,” “[e]xemplary and
punitive damages,” and costs and attorney fees. The Uzelacs’
“computation” did not make direct reference to any itemized list
of expenses or specific dollar figures.

¶10 Somewhat perplexed by the Uzelacs’ reluctance to state
their damages with specificity, FIE asked Mr. Uzelac at his
deposition just what it was that he wanted FIE to cover that had
not already been paid:

Q. Okay. Before we get into this I want to make
sure I understand a couple of things. First, this list
of damaged items [of personal property that you
provided to us, which I have marked Exhibit 6], is
this the extent of your damages in this case? I
understand that there’s on page 4 of Exhibit 1 also

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Uzelac v. Fire Insurance Exchange

a list of some items . . . . So the list that you made in
Exhibit 6 and the final page of Exhibit 1, is that the
sum total of everything . . . that you think [FIE]
ought to cover?

A. No.

Q. Okay. What else are we talking about?

....

A. . . . [T]he bridge loan that we had to get.

The two deposition exhibits to which FIE’s counsel directed Mr.
Uzelac’s attention each contained a list of expenses that the
Uzelacs had submitted to FIE for reimbursement. The first,
Exhibit 6, identified certain items of personal property that had
been damaged during the vandalism, and the second, Exhibit 1,
itemized reconstruction services, including snow-removal
services, the costs for which exceeded $50,000. Notably, during
his deposition Mr. Uzelac did not indicate that he and his wife
intended to pursue a claim relating to the costs of substitute
vacation accommodations.

¶11 Shortly after the Uzelacs settled their claims against
ServiceMaster, resulting in its dismissal from this action, FIE
moved for summary judgment. In its supporting memorandum,
FIE explained that Mr. Uzelac had “identified in his deposition
only two issues as the basis for his litigation against FIE. First,
[the Uzelacs] believed that FIE did not compensate [them] for
certain personal property items that were damaged during the
vandalism of their cabin.” FIE explained that the items in
question were the items listed in Exhibit 6 and other items that
were allegedly mishandled by ServiceMaster. “Next, [the
Uzelacs] believed FIE should have to pay for the interest on a
‘bridge loan’ [they] obtained.” FIE then devoted the bulk of its
motion to arguing that it was entitled to judgment as a matter of

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Uzelac v. Fire Insurance Exchange

law on these two issues, without mentioning the reconstruction
expenses identified in Exhibit 1.

¶12 In their opposition, the Uzelacs began by defending the
validity of the claims Mr. Uzelac raised in his deposition and
then identified a number of additional factual issues they
believed should preclude summary judgment. Chief among
these was their claim that FIE made misrepresentations
regarding the scope of their policy coverage, thereby leading
them to believe, incorrectly, that the expense of renting a
substitute vacation home would not be covered. In connection
with that claim, the Uzelacs asserted—for the first time during
the proceedings before the district court—that they would be
seeking the reasonable value of the expenses they would have
incurred in renting a comparable vacation home if they had been
properly informed about the policy’s coverage for this expense.
In addition, the Uzelacs maintained that summary judgment was
inappropriate because a factual issue remained as to whether FIE
should be held vicariously liable for the property damage caused
by ServiceMaster—to the extent, presumably, that these losses
remained unpaid after the Uzelacs’ settlement with
ServiceMaster.

¶13 After hearing oral arguments on FIE’s motion, the district
court orally entered its ruling, granting the motion in part and
denying it in part. With respect to the Uzelacs’ claim for the
damaged items of personal property, the court concluded that
judgment should be rendered in FIE’s favor because there was
no genuine dispute that the Uzelacs had been adequately
reimbursed for those expenses, albeit in a somewhat smaller
amount than they had hoped for. The court further concluded
that FIE was entitled to judgment as a matter of law on the
Uzelacs’ claims for the additional bridge loan expenses and the
substitute accommodations expenses, as the former expense
category was not recoverable under the terms of their policy and
the latter was recoverable only if the expenses had actually been
incurred. The court did, however, determine that a genuine issue
of fact remained as to whether a principal–agent relationship

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existed between FIE and ServiceMaster, such that FIE might be
vicariously liable for certain losses attributable to ServiceMaster
that remained unpaid after the Uzelacs’ settlement with
ServiceMaster. The court directed counsel for FIE to prepare a
proposed order based on its oral ruling, which counsel filed on
March 7, 2014.

¶14 The Uzelacs filed an objection to FIE’s proposed summary
judgment order on March 17, 2014, 5 arguing that it improperly
purported to dispose of all the Uzelacs’ direct claims against FIE
when in fact one remained: their claim to recoup the expenses
identified in Exhibit 1. The Uzelacs maintained that, by omitting
any reference to the Exhibit 1 expenses in its initial motion, FIE
had effectively excluded them from the scope of the summary
judgment proceedings. 6 The court, however, was not persuaded.

5. As FIE correctly observes, the Uzelacs filed their objection
three days after the deadline for doing so had passed. See Utah
R. Civ. P. 7(j)(4) (“A party may object to the form of the proposed
order by filing an objection within 7 days after the order is
served.”). Nevertheless, because the district court expressly
agreed to consider the objection on its merits before entering its
final order, the issues presented in the objection were properly
preserved for appeal. American Fork City v. Robinson, 2012 UT
App 357, ¶ 3, 293 P.3d 1105 (“To preserve an issue for appeal,
the issue must be presented to the trial court in such a way that
the trial court has an opportunity to rule on that issue.”) (citation
and internal quotation marks omitted).

6. In their briefing on appeal, the Uzelacs identified the expenses
in Exhibit 1 that they contend should have been excluded from
the scope of the district court’s summary judgment order:
“fabricate base and case—$1,267.25; molding material—
$1,962.10; final cleaning after construction—$3,385.00; labor for
paint and stain/remolding—$27,157.50; general labor—$2,822.00;
specific labor re demolition/remolding—$14,557.50; and Sizzer
(continued…)

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In a note to the parties delivered on the same day that it entered
its final order, the court stated that it had “reviewed and
considered [the Uzelacs’] objections to the proposed [o]rder” and
“conclude[d] that FIE’s [o]rder accurately reflect[ed its] ruling.”
Accordingly, the court adopted FIE’s proposed order without
change.

¶15 Thereafter, the Uzelacs and FIE settled the claims on
which the court had specifically denied summary judgment, but
the Uzelacs reserved their right to appeal the court’s summary
judgment decision. This appeal followed.

ISSUES AND STANDARDS OF REVIEW

¶16 The Uzelacs ascribe four errors to the district court’s
summary judgment decision. First, they maintain that the
district court erred by concluding that the additional expenses

(…continued)
[sic] lift rental—$232.88.” Strangely, though, while Exhibit 1
contains an expense for “snow removal,” and while neither FIE’s
motion nor the court’s order makes any specific reference to a
snow-removal expense, the Uzelacs do not argue that this
expense should be excluded from the summary judgment along
with the other Exhibit 1 expenses. Perhaps this is because the
Uzelacs concluded—erroneously, as we explain below, see infra
note 12—that by making a passing reference to “snow-plowing”
in their opposition memorandum, they inadvertently placed the
snow-removal expense within the scope of the summary
judgment proceedings. Rather, they address the expense in a
separate, rather anomalous section of their opening brief, which
is only a single paragraph in length. Because we ultimately
conclude that the Uzelacs’ claim to recover the snow-removal
expense survived summary judgment for the same reasons that
their other Exhibit 1 expense claims did, we address these claims
together in part III.

20150699-CA 9 2018 UT App 57
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they incurred as a consequence of the bridge loan were not
recoverable under their policy. Second, they maintain that the
court should have determined that there remained a triable issue
of fact as to whether FIE should be liable to them for the fair
rental value of their home during the period it was being
reconstructed, as a reasonable measure of the value of the
substitute vacation accommodations to which they were entitled
under the policy. Third, they argue that the court should not
have dismissed their claims relating to the expenses identified in
Exhibit 1. And finally, the Uzelacs maintain that the court erred
by dismissing their claim for breach of the implied covenant of
good faith and fair dealing.

¶17 “Summary judgment is appropriate when there are no
genuine issues of material fact and the moving party is entitled
to judgment as a matter of law.” Jones v. Farmers Ins. Exch., 2012
UT 52, ¶ 6, 286 P.3d 301. “We review a district court’s grant of
summary judgment for correctness and afford no deference to
the court’s legal conclusions.” Salt Lake City Corp. v. Big Ditch
Irrigation Co., 2011 UT 33, ¶ 18, 258 P.3d 539. Finally, as
previously noted, “when reviewing a grant of summary
judgment, we view the facts and all reasonable inferences drawn
therefrom in the light most favorable to the nonmoving party.”
Ault v. Holden, 2002 UT 33, ¶ 15, 44 P.3d 781 (citation and
internal quotation marks omitted).

ANALYSIS

¶18 With the applicable standard of review in mind, we
address each of the Uzelacs’ assignments of error in turn.

I. The Bridge Loan Expenses

¶19 The Uzelacs contend that the district court erred in
concluding that the additional expenses they incurred as a result
of obtaining the bridge loan were not recoverable under the

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Uzelac v. Fire Insurance Exchange

terms of their policy. On this issue, we conclude that the Uzelacs
have failed to carry their burden of persuasion.

¶20 The party aggrieved by the district court’s decision bears
the burden of persuasion on appeal. See Utah R. App. P. 24(a)(8)
(requiring appellants to provide reasoned legal argument, with
“citations to legal authority and the record”). See also 2010-1
RADC/CADC Venture, LLC v. Dos Lagos, LLC, 2017 UT 29, ¶ 32,
408 P.3d 313 (explaining that a party’s contentions on appeal will
not be addressed where the party fails to support them with
“reasoned argument and legal authority”) (citation and internal
quotation marks omitted). And “[a]n appellate court is not a
depository in which [a party] may dump the burden of
argument and research.” Allen v. Friel, 2008 UT 56, ¶ 9, 194 P.3d
903 (second alteration in original) (citation and internal
quotation marks omitted). Accordingly, “where a party attempts
to meet its burden of persuasion with general arguments rather
than an analysis of the key contractual language,” Dos Lagos,
2017 UT 29, ¶ 32, the burden will go unmet and affirmance
ordinarily follows, see id. ¶ 33.

¶21 The Uzelacs maintain that the bridge loan expenses fall
under the umbrella of their policy’s “Additional Living
Expense” (ALE) coverage. The relevant provision of the policy
states that “[i]f a covered property loss makes the resident
premises unfit to live in, we cover the necessary increase in
living expense incurred by you so that your household can
maintain its normal standard of living.” Significantly, this
language is nearly identical to the language of other ALE
provisions that courts in this and several other states have had
occasion to interpret. See, e.g., Error v. Western Home Ins. Co., 762
P.2d 1077, 1082 (Utah 1988).

¶22 “Insurance policies are generally interpreted according to
rules of contract interpretation.” Utah Farm Bureau Ins. Co. v.
Crook, 1999 UT 47, ¶ 5, 980 P.2d 685. “Courts interpret words in
insurance policies according to their usually accepted meanings[.]”
Id. (emphasis added). “[C]ourts must enforce an unambiguous

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Uzelac v. Fire Insurance Exchange

contract and may not rewrite an insurance contract . . . if the
language is clear.” Id. ¶ 6 (omission in original) (citation and
internal quotation marks omitted).

¶23 In support of their claim that the bridge loan expenses are
embraced by the “usually accepted meaning[]” of an ALE
provision like the one in their policy, Crook, 1999 UT 47, ¶ 5, the
Uzelacs offer only “general arguments rather than an analysis of
the key contractual language,” Dos Lagos, 2017 UT 29, ¶ 32. They
maintain that the additional interest on the temporary loan
should be considered a “necessary increase in living expense”
because, “without the private money bridge loan, [they] would
have potentially lost their mountain home to foreclosure.” But
the Uzelacs do not direct our attention to any language in the
policy providing that the loss of their home in foreclosure
proceedings would be a covered loss. Furthermore, while an
abundance of case law construes the scope of ALE coverage, the
Uzelacs do not point to a single decision from any jurisdiction
holding or even suggesting that home-financing charges qualify
as an additional living expense.

¶24 We recognize that the Uzelacs have dedicated several
pages of their opening brief to arguing this issue. But as our
Supreme Court has recently stated, when it comes to meeting the
burden of persuasion on appeal, “it is not the size of an
argument that matters.” Id. ¶ 30. Here, while the Uzelacs have
cited cases and offered arguments, their cases are inapposite,
and their arguments are unfocused.

¶25 The Uzelacs’ treatment of our Supreme Court’s decision
in Error v. Western Home Insurance Co., 762 P.2d 1077 (Utah 1988),
is illustrative in this regard. In that case, the Court held that an
ALE award was proper to allow an insured to maintain her
normal standard of living while her house was being rebuilt
following a fire. Id. at 1082. The case did not involve any request
to recover expenses related to the financing of the home.
Nevertheless, the Uzelacs maintain that the case is relevant here
because it stands for the proposition that “the primary objective

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Uzelac v. Fire Insurance Exchange

of property insurance” is “to put the insured back in the position
he or she occupied prior to the loss.” Therefore, their argument
goes, FIE “owes the Uzelacs the duty of putting them back in the
same place they were prior to” the vandalism, which included
having access to a more favorable mortgage interest rate. But the
principle they extract from Error is stated with such generality
that it might well have been culled from any case involving the
interpretation of an insurance policy. It sheds no light on the
unique nature of ALE coverage.

¶26 For these reasons, we conclude that the Uzelacs have
failed to carry their burden of persuasion on appeal.
Accordingly, we hold that their bridge loan interest claim was
properly dismissed on summary judgment.

II. The Rental Value of a Comparable Vacation Home

¶27 The Uzelacs contend that the district court erred in
dismissing their claim for the reasonable value of renting a
comparable vacation home during the time theirs was being
rebuilt. We conclude that the claim was properly dismissed on
summary judgment because the Uzelacs did not produce
evidence sufficient to raise a triable issue of fact.

¶28 In response to FIE’s summary judgment motion, the
Uzelacs maintained that a genuine factual dispute remained as
to whether FIE breached the contract by affirmatively
misrepresenting the scope of the policy’s ALE coverage. They
supported their argument by filing a declaration from Mr.
Uzelac, in which he stated that an unidentified FIE
representative orally informed him that the costs of renting
substitute accommodations while the home was being rebuilt
were not reimbursable under the policy. On appeal, FIE
concedes that, in fact, such costs would have been covered under
the policy’s ALE provision. Nevertheless, the district court
concluded that the claim should be dismissed, regardless of the
truth of Mr. Uzelac’s statement, as no expenses could be

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reimbursed under the ALE provision unless they were actually
incurred. 7

¶29 By not addressing Mr. Uzelac’s allegation of
misrepresentation head on, the district court improperly
discounted the possibility that such a misrepresentation could
indeed have constituted breach of contract under these
circumstances. Clearly, it would be unacceptable for insurers to
avoid paying ALE claims simply by misrepresenting the scope of
coverage in response to inquiries from their insureds.
Nevertheless, we affirm the court’s decision because the Uzelacs
failed to support their argument with specific facts
demonstrating the existence of a triable factual issue. 8

¶30 “When a moving party makes and supports a motion for
summary judgment, the non-moving party ‘may not rest upon
the mere allegations or denials of the pleadings, but the
response . . . must set forth specific facts showing that there is a
genuine issue for trial.’” Advanced Forming Techs., LLC v.

7. In the alternative, the Uzelacs argue—in two short
paragraphs—that the policy permits recovery of substitute-
accommodation expenses irrespective of whether such expenses
have been incurred because the policy defines “Property
Damage,” with our emphasis, as “physical injury to or
destruction of tangible property . . . and resulting loss of use.” The
term “property damage,” however, does not appear in the
policy’s ALE provision. We therefore fail to see how it is of any
relevance here.

8. When reviewing a summary judgment decision, we are free to
affirm on legal grounds other than those adopted by the district
court. See, e.g., RJW Media, Inc. v. CIT Group/Consumer Fin., Inc.,
2008 UT App 476, ¶ 36, 202 P.3d 291.

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Uzelac v. Fire Insurance Exchange

Permacast, LLC, 2015 UT App 7, ¶ 9, 342 P.3d 808 (omission in
original) (quoting Utah R. Civ. P. 56(e) (2015) 9). Indeed,

[a] major purpose of summary judgment is to
avoid unnecessary trial by allowing the parties to
pierce the pleadings to determine whether there is
a genuine issue to present to the fact finder. In
accordance with this purpose, specific facts are
required to show whether there is a genuine issue
for trial. The allegations of a pleading or factual
conclusions on an affidavit are insufficient to raise a
genuine issue of fact.

Stevens-Henager College v. Eagle Gate College, 2011 UT App 37,
¶ 25, 248 P.3d 1025 (alteration and emphasis in original) (citation
and internal quotation marks omitted).

¶31 We conclude that Mr. Uzelac’s declaration did not state
facts with the requisite specificity to preclude summary
judgment against the Uzelacs. The relevant language from the
declaration is as follows:

The [FIE] adjuster told us that there was no
coverage for a rental of a second home or any loss
of use for a second home. Had I known that there
was coverage, we would have found [a]
comparable second home to rent somewhere else. I
didn’t do so because of what the adjuster told us.

9. Rule 56 of the Utah Rules of Civil Procedure was amended in
2015, after our decision in Permacast had already been issued.
However, the advisory committee note makes clear that the
amendment was intended to bring the rule in line with its
federal counterpart, “without changing the substantive Utah
law.” Utah R. Civ. P. 56 advisory committee note.

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The lack of specificity is conspicuous. There is no mention of the
adjuster’s name, when the conversation took place, whether it
was over the phone or in person, and whether he or she referred
to a specific policy provision. None of these basic details are
provided, and without them, Mr. Uzelac’s allegation was a
“factual conclusion[,] . . . insufficient to raise a genuine issue of
fact.” See id. The declaration was therefore insufficient to defeat
FIE’s motion for summary judgment.

¶32 Accordingly, we conclude the Uzelacs have failed to set
forth specific facts demonstrating the existence of a genuine
factual dispute for trial relating to their claim for the fair rental
value of alternate vacation accommodations. We therefore hold
that the district court properly dismissed this claim on summary
judgment.

III. The Exhibit 1 Expenses

¶33 The Uzelacs maintain that the district court should not
have dismissed their claims relating to the unreimbursed
reconstruction expenses identified in Exhibit 1, including the
snow-removal expense, as those expenses were never raised in
FIE’s motion for summary judgment. On this point, we agree.

¶34 FIE invites us to hold that the Uzelacs “waived” their
claims relating to the Exhibit 1 expenses because the Uzelacs did
not mention it in their opposition to the motion for summary
judgment. Indeed, it does seem rather odd that the Uzelacs
omitted this relatively straightforward issue from their
opposition when they raised so many other, more complicated
arguments. But regardless of the wisdom of these decisions on
the Uzelacs’ part, the fact remains that it is the moving party
who determines the scope of summary judgment proceedings. 10

10. FIE also complains that, “[b]ecause of the vague nature of the
Uzelacs’ pleadings and disclosures, [it] could not be certain what
(continued…)

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¶35 The Utah Supreme Court articulated the dispositive rule
in Timm v. Dewsnup, 851 P.2d 1178 (Utah 1993):

The moving party determines the scope of a
motion for summary judgment. That party decides
what issues to present to the court for adjudication.
He or she may move for summary judgment on all
or less than all of the issues raised by the
complaint . . . . When the moving party has decided
what the scope of the motion for summary
judgment shall be, rule 56 contemplates that a
written motion shall be served on the opposite
party setting forth with clarity the relief sought by
the motion so that the opposite party may prepare
to defend against it if he or she chooses to do so.

Summary judgment procedure is generally
considered a drastic remedy, requiring strict
compliance with the rule authorizing it . . . . If the
[requirements of the rules] are not fulfilled, both in

(…continued)
claims the Uzelacs were pursuing[.]” Yet it is clear from the
record that FIE was made aware that the Uzelacs would seek to
recover the expenses identified in Exhibit 1 as damages in their
lawsuit. To begin with, the Uzelacs included the list of expenses
among the documents they provided in their initial disclosures.
And lest FIE complain that its failure to take notice of the list
was attributable to the vague and conclusory nature of the
Uzelacs’ allegations and damages computation, we observe that,
at least as of the date of Mr. Uzelac’s deposition, these
deficiencies were obviously not so severe as to prevent FIE from
learning of the expenses. On the contrary, during Mr. Uzelac’s
deposition FIE specifically inquired about the expenses listed in
Exhibit 1, and Mr. Uzelac gave no indication that he intended to
abandon the claim.

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letter and spirit, the summary judgment procedure
may become a vehicle of injustice rather than a
salutary medium of reaching a swift but just result
on a pure matter of law, as intended by the framers
of the rules.

Id. at 1181 (alteration in original) (citations and internal
quotation marks omitted). In Timm, our Supreme Court held that
a party’s counterclaim had survived summary judgment, despite
the district court’s subsequent ruling that the claim was
implicitly dismissed by its summary judgment order. Id. at 1182.
The Court reasoned that, because the party originally moving for
summary judgment had “made no express reference to the
counterclaim or the issues raised by it in [its] motion,” the
summary judgment order did not dispose of the counterclaim
issues. Id. Thus, “in accordance with the policy that the
procedure for summary judgment should be strictly observed,”
the Court concluded that the claim “remain[ed] unaffected in the
trial court.” Id.

¶36 Likewise, here, the scope of the summary judgment
proceedings was determined by FIE’s original motion. 11 By

11. FIE urges us to hold that its motion for summary judgment
effectively placed the Exhibit 1 expenses within the scope of
summary judgment proceedings because the motion itself—as
opposed to the supporting memorandum—contained the
general statement that “there is no dispute as to any material fact
relating to the claims in Plaintiff’s Complaint.” But the
generalized language in the single-paragraph motion cannot be
read apart from the specific, detailed articulation of the motion’s
scope contained in the introductory section of the motion’s
supporting memorandum. There, FIE made clear that its motion
was limited to addressing two issues, namely certain personal
property losses and the additional bridge loan expenses. To
conclude that the statement contained in the motion was
(continued…)

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Uzelac v. Fire Insurance Exchange

failing to expressly include the Uzelacs’ claim to recover the
Exhibit 1 expenses in its summary judgment motion, FIE
effectively excluded the issue from the district court’s
consideration. 12 Furthermore, the express conclusions in the
district court’s summary judgment order are not inconsistent
with the claim’s survival. The court granted FIE’s motion only as
to the Uzelacs’ claims for personal property losses, the additional
bridge loan expenses, and the substitute accommodations
expenses that they did not actually incur. The issue of whether
FIE should be held liable for reimbursing the Uzelacs for the
reconstruction services identified in Exhibit 1 is wholly
independent of those claims. 13

(…continued)
sufficient to place all the Uzelacs’ claims in issue would be to
thwart the Supreme Court’s “strict compliance” instruction,
thereby running the risk of transforming the summary judgment
procedure into “a vehicle of injustice rather than a salutary
medium of reaching a swift but just result.” Timm v. Dewsnup,
851 P.2d 1178, 1181 (Utah 1993) (citation and internal quotation
marks omitted).

12. We observe that in their opposition memorandum, the
Uzelacs made a passing and rather cryptic reference to FIE’s
refusal to consider “other additional expenses, including extra
utilities and snow-plowing.” Arguably, the reference alluded to
the list of expenses appearing in Exhibit 1. But even so, it did not
suffice to bring the expenses within the scope of the summary
judgment proceedings, because it appeared in the Uzelacs’
opposition and it is the “moving party” that “decides what issues
to present to the court for adjudication.” Id.

13. Alternatively, FIE invites us to hold that, regardless of the
substantive merits of the Uzelacs’ objection to FIE’s proposed
order, the district court properly denied the objection because it
(continued…)

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Uzelac v. Fire Insurance Exchange

¶37 Finally, we turn to the snow-removal expense. We
recognize that if one were to imagine all the different types of
expenses that might arise in the ordinary course of repairing a
vandalized home, snow-removal services would not readily
come to mind. Still, it does not necessarily follow that the
Uzelacs’ claim for such expenses was illegitimate in this case. It
is possible, for instance, that during the winter months the task
of removing debris and beginning the extensive repairs could
not be accomplished without first clearing a path to the home
through the snow. We therefore leave it to the district court to
determine the legitimacy of this expense, as a factual matter, on
remand.

¶38 For the reasons stated above, we conclude that the issue
of whether FIE is obligated to reimburse the Uzelacs for the
expenses listed in Exhibit 1, including the expense of
snow-removal, was not effectively placed before the court
during summary judgment proceedings. It therefore “remains

(…continued)
was served ten days after the proposed order was served and
was therefore untimely. See Utah R. Civ. P. 7(j)(4) (“A party may
object to the form of the proposed order by filing an objection
within 7 days after the order is served.”). In a similar vein, FIE
also asks us to hold that, because “the objection was related to
the substance of the [o]rder” rather than its form, it was
effectively a motion to reconsider, which is not recognized by the
Utah Rules of Civil Procedure. See Gillett v. Price, 2006 UT 24, ¶ 7,
135 P.3d 861 (“[P]ostjudgment motions to reconsider and other
similarly titled motions . . . are not recognized by our rules.”).
But these arguments miss the point. The issue of the Exhibit 1
expenses was never placed before the court on summary
judgment and therefore “remain[s] unaffected in the trial court.”
Timm, 851 P.2d at 1182. Thus, the issue would remain pending
before the district court even if the Uzelacs had not filed any
objection at all to the proposed order.

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Uzelac v. Fire Insurance Exchange

unaffected in the trial court” and can be properly resolved on
remand. See Timm, 851 P.2d at 1182.

IV. The Implied Covenant of Good Faith and Fair Dealing

¶39 The Uzelacs’ final contention is that the district court
erred in dismissing their claim that FIE breached the implied
covenant of good faith and fair dealing. “As a general rule, every
contract is subject to an implied covenant of good faith and fair
dealing, under which both parties to a contract promise not to
intentionally or purposely do anything which will destroy or
injure the other party’s right to receive the fruits of a contract.”
Malibu Inv. Co. v. Sparks, 2000 UT 30, ¶ 19, 996 P.2d 1043 (citation
and internal quotation marks omitted). However, “we will not
interpret the implied covenant of good faith and fair dealing to
make a better contract for the parties than they made for
themselves. Nor will we construe the covenant to establish new,
independent rights or duties not agreed upon by the parties.” Id.
(citation and internal quotation marks omitted).

¶40 The Uzelacs maintain that there remained triable issues of
fact as to whether FIE breached the covenant by rejecting their
claims for the additional bridge loan expenses, the rental value
of substitute accommodations, and the expenses associated with
ServiceMaster’s negligent handling and storage of their personal
property. As to the first claim, we have already concluded that
the Uzelacs failed to show that the bridge loan expenses were
recoverable under the policy’s ALE provision. Thus, FIE’s
decision to reject this claim has been fully vindicated. As to the
second claim, we concluded above that the Uzelacs failed to
properly establish any disputes of material fact bearing on their
claimed entitlement to recover substitute accommodation
expenses without having actually incurred them. Accordingly,
because it is undisputed that the Uzelacs never incurred any
expense for FIE to reimburse, the plain terms of the policy
permitted it to deny this claim as well. Finally, as to the third
claim, the Uzelacs have not argued that FIE had a duty under the
policy to compensate them for ServiceMaster’s misfeasance.

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Because we will not “construe the covenant to establish new,
independent rights or duties not agreed upon by the parties,” id.
(citation and internal quotation marks omitted), we conclude
that the district court properly dismissed this claim on summary
judgment, too. 14

CONCLUSION

¶41 For the reasons stated above, we affirm the district court’s
decision in part, and we reverse it in part. We remand for the
limited purpose of addressing the Exhibit 1 expenses, including
the snow-removal expense, which we have concluded were not
effectively placed before the court during the summary
judgment proceedings.

14. The Uzelacs attached an expert report to their opposition to
FIE’s summary judgment motion in support of their claims for
breach of the implied covenant of good faith and fair dealing.
We have not considered it in our analysis here because the
district court excluded it as untimely. See Sunridge Dev. Corp. v.
RB&G Eng’g, Inc., 2013 UT App 146, ¶ 17, 305 P.3d 171
(“Inadmissible evidence cannot be considered in ruling on a
motion for summary judgment.”) (brackets, citation, and internal
quotation marks omitted).

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