Gudmundson v. Del Ozone

2010 UT 33
232 P.3d 1059
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
----oo0oo----
Wendy Gudmundson and
Kay Gudmundson, 	No. 20080537
Plaintiffs and Appellants,
v.
Del Ozone; OzoneSolutions, L.C.;
Johnson Controls, Inc.; and 	F I L E D
John and Jane Does 1-10,
Defendants and Appellees. 	May 14, 2010
---
Third District, Salt Lake
The Honorable Denise P. Lindberg
No. 050916518
Attorneys: 	Randall K. Edwards, Rick S. Lundell, Brian K.
Lofgren, Salt Lake City, for plaintiffs
John R. Lund, R. Scott Young, Scott Powers, Salt
Lake City, for defendant Del Ozone
Heinz J. Mahler, Salt Lake City, for defendant
OzoneSolutions, L.C.
Joseph E. Minnock, Sara N. Becker, Salt Lake City,
Brian C. Lewis, Richard K. Wray, Chicago, IL, for
defendant Johnson Controls, Inc.
Brent Gordon, Idaho Falls, ID, for amici Utah
Association for Justice
---
NEHRING, Justice:
INTRODUCTION
¶1 	This appeal comes from a district court’s grant of
summary judgment on Ms. Gudmundson’s claims against third parties
for injuries she sustained in the workplace. 	Ms. Gudmundson, a
former employee of the Utah State Prison, claims that ozone
exposure from a newly installed ozone-laundry system injured her,
causing significant brain injuries.

No. 20080537 	2
¶2 	Ms. Gudmundson initially sought workers’ compensation
benefits. 	The Utah Labor Commission denied her claim because it
concluded there was no causal link between her condition and her
employment. 	In her subsequent civil action, the district court
held that because the administrative law judge who presided over
Ms. Gudmundson’s workers’ compensation proceeding against the
State determined her injuries were not medically caused by ozone
exposure, she was collaterally estopped from recovering damages
from the installers, distributors, and manufacturers of the
ozone-generating system. 	We affirm in part and reverse in part.
BACKGROUND
¶3 	In December 2004, an ozone-generating system was
installed in the Wasatch Laundry Facility of the Utah State
Prison. 	The State contracted with Johnson Controls, which hired
OzoneSolutions, L.C., to furnish the ozone system.
OzoneSolutions contracted with Del Ozone, a component
manufacturer, to provide the ozone generator.
¶4 	At that time Wendy Gudmundson worked as a supervisor at
the laundry facility. 	The ozone generator was first operated in
the prison on December 13, 2004; Ms. Gudmundson complained of a
headache the next day. 	She had similar headaches the next few
days but continued to go to work. 	She went to the hospital on
December 20 and was administered an MRI, which showed normal
findings. 	The hospital also administered a spinal tap because
her headache symptoms suggested meningitis. 	Ms. Gudmundson did
not return to work at the prison. 	On January 27, 2005, she
returned to the hospital and was diagnosed with a Chiari I
Malformation, a condition requiring surgery on her brain stem.
¶5 	In May 2005, Ms. Gudmundson filed an Application for
Hearing with the Utah Labor Commission seeking compensation for
her injuries, which she believed were due to ozone overexposure.
Ms. Gudmundson alleged that she had sustained an occupational
disease under Chapter 3, rather than a workplace injury under
Chapter 2, of Utah Code Title 34A. 	The Utah Labor Commission
requested an independent medical examination from Dr. Edwin
Holmes. 	Dr. Holmes concluded that the Chiari I Malformation
could not be caused by exposure to ozone, that Ms. Gudmundson had
not shown common symptoms of ozone overexposure, and that the
presence of the Chiari I Malformation was coincidental to the
installation of the ozone-generator system. 	A panel commission
headed by Dr. Joseph Jarvis, a physician whose participation was
stipulated to by the parties, agreed with this analysis. 	As a
result, Administrative Law Judge Debbie Hann (the “ALJ”) denied

1 Ms. Gudmundson also appealed to the Labor Commission’s
Appeals Board on November 2, 2006, seeking to reopen the
proceedings. 	Ms. Gudmundson wished to pursue a different theory,
namely, that the ozone exposure caused her to have a spinal tap,
which, in turn, caused the Chiari I Malformation. 	The Appeals
Board affirmed the ALJ’s decision and declined to reopen the
proceedings. 	Ms. Gudmundson did not appeal this decision to the
court of appeals as permitted by the Utah Administrative
Procedures Act.
2 Depositions have been taken from Doug Wright, facilities
coordinator at the Utah Department of Corrections; George
Eddleman, former laundry employee at the Utah Department of
Corrections; John Downey, part owner of OzoneSolutions; and Ms.
Gudmundson. 	Ms. Gudmundson has since obtained experts that have
diagnosed her with complications due to ozone byproducts such as
chemical encephalopathy, chemical sensitivity, and vagal
maladaption.
3 	No. 20080537
Ms. Gudmundson’s workers’ compensation claim, citing lack of
medical causation.
¶6 	In September 2005, Ms. Gudmundson and her husband sued
Johnson Controls, OzoneSolutions, and Del Ozone alleging
negligent installation, strict liability based on a defective
product, res ipsa loquitur, breach of implied warranty and
merchantability, and negligent manufacture. 1
¶7 	Nearly two years after the commencement of the suit,
Ms. Gudmundson changed counsel. 	Although Ms. Gudmundson claimed
that the parties agreed in a telephone conference to extend the
discovery deadline, all three defendants filed for summary
judgment. 	In response, Ms. Gudmundson sought leave under rule
56(f) of the Utah Rules of Civil Procedure to conduct additional
discovery to develop various elements of her claims. 2
¶8 	The district court denied Ms. Gudmundson’s rule 56(f)
motion and granted summary judgment in favor of all three
defendants. 	The court denied the rule 56(f) motion because it
had twice extended the discovery deadline and reasoned that Ms.
Gudmundson had not adequately explained why her claims would
survive summary judgment if given the benefit of additional
discovery. 	The district court next determined that Ms.
Gudmundson was collaterally estopped from challenging causation
in her suit because the ALJ had already determined that her
disease was not medically caused by the ozone-generator system.

No. 20080537 	4
The court granted summary judgment to the defendants because it
concluded that all of Ms. Gudmundson’s claims required some
showing of causation and that she had the opportunity to fully
and fairly litigate causation in her workers’ compensation
proceeding. 	The district court also granted summary judgment to
Del Ozone on the alternative ground that Ms. Gudmundson had not
shown that the ozone generator was defective as required to
prevail on her products liability claim.
¶9 	Ms. Gudmundson appeals the district court’s denial of
her rule 56(f) motion, its determination that her claims against
appellees were collaterally estopped, and its determination that
she could not recover from Del Ozone because she had not
presented evidence that the ozone generator was defective. 	Also
at issue in this appeal is Del Ozone’s and Johnson Controls’
argument that this court does not have subject-matter
jurisdiction over this case due to the untimeliness of Ms.
Gudmundson’s notice of appeal. 	We review each issue below.
STANDARD OF REVIEW
¶10 	“We review the district court’s decision to grant
summary judgment for correctness, granting no deference to the
[district] court.” 	Daniels v. Gamma W. Brachytherapy, LLC, 2009
UT 66, ¶ 40, 221 P.3d 256 (alteration in original) (internal
quotation marks omitted). 	We review the district court’s rule
56(f) decision under an abuse of discretion standard, asking
whether the “grant or denial exceed[s] ‘the limits of
reasonability.’” 	Price Dev. Co. v. Orem City, 2000 UT 26, ¶ 9,
995 P.2d 1237 (quoting Crossland Sav. v. Hatch, 877 P.2d 1241,
1243 (Utah 1994)).
ANALYSIS
I. 	THIS COURT HAS SUBJECT-MATTER JURISDICTION OVER THIS APPEAL
¶11 	Del Ozone and Johnson Controls contend this court does
not have jurisdiction over this appeal as to them because Ms.
Gudmundson did not file a timely notice of appeal naming them as
parties. 	We disagree and hold that Ms. Gudmundson timely
appealed the district court’s grant of summary judgment as to all
parties.
¶12 	A party wishing to appeal a final judgment or order of
a district court must file a notice of appeal “within [thirty]
days after the date of entry of the judgment or order appealed
from.” 	Utah R. App. P. 4(a). 	“An appeal may be taken from a
district . . . court to the appellate court with jurisdiction

5 	No. 20080537
over the appeal from all final orders and judgments, except as
otherwise provided by law . . . .” 	Utah R. App. P. 3(a). 	“The
final judgment requirement is jurisdictional”; if not met, “we
lack jurisdiction over the appeal and must dismiss it.” 	Powell
v. Cannon, 2008 UT 19, ¶ 12, 179 P.3d 799. 	“For an order or
judgment to be final, it must dispose of the case as to all the
parties, and finally dispose of the subject-matter of the
litigation on the merits of the case.” 	Id. ¶ 11 (internal
quotation marks omitted). 	The order from which a party appeals
is not final if “action[s] against other defendants . . .
remain[] alive.” 	Kennedy v. New Era Indus., Inc., 600 P.2d 534,
536 (Utah 1979).
¶13 	Here, the district court granted summary judgment to
Del Ozone and Johnson Controls in an order dated March 24, 2008.
It did not grant summary judgment to OzoneSolutions, however,
because it found OzoneSolutions had not properly filed a separate
memorandum in support of its motion for summary judgment. 	In
response to the March 24 order, Ms. Gudmundson filed her first
notice of appeal on April 2. 	The notice contained all three
defendants as named parties and was given an appellate case
number. 	Because the March 24 order did not include
OzoneSolutions, however, it was not final as to all parties and
was not appealable under our rules. 	Accordingly, this court
issued an order dismissing Ms. Gudmundson’s first notice of
appeal without prejudice because it was filed prematurely.
¶14 	Shortly after the March 24 order, OzoneSolutions filed
a separate memorandum in support of summary judgment. 	The
district court granted the motion on May 28, 2008. 	The court
explained that it “hereby incorporates by reference its prior
analysis as reflected in the Del Ozone summary judgment,” and
concluded that “this Ruling and Order shall constitute the final
Order of the Court on this matter. 	No further Order need be
submitted by the parties.”
¶15 	In response, Ms. Gudmundson filed her second notice of
appeal on June 4, 2008. 	The caption included all three
defendants. 	Ms. Gudmundson also stated that she wished to
“consolidat[e]” the second notice of appeal with the first notice
of appeal because it stemmed “from the same claim, ar[ose] from
the same set of facts, and the [second] order . . . was based on
the same legal theories and findings as the [first] order.” 	The
body of the appeal, however, stated that Ms. Gudmundson “appeals
to the Utah Supreme Court the Ruling and Order Granting Defendant
OzoneSolutions’ Motion for Summary Judgment.” 	On June 27, this
court sent a letter with a different case number than the number

3 On June 28, Ms. Gudmundson filed a third notice of appeal
out of an “abundance of caution.” 	She indicated that to the
degree it was unnecessary, the third notice of appeal should be
stricken. 	Because this third notice of appeal was filed thirty-
one days after the May 28 summary judgment order, however, it was
untimely. 	See Utah R. App. P. 4(a) (“[T]he notice of
appeal . . . shall be filed . . . within [thirty] days after the
date of entry of the judgment or order appealed from.”).
No. 20080537 	6
assigned to the first notice of appeal, advising the parties that
“the notice of appeal in this case has been filed.” 3
¶16 	Del Ozone and Johnson Controls argue that this second
notice of appeal is not an appeal from the March 24 order
granting summary judgment to them. 	Rather, they claim that
because the May 28 summary judgment order named only
OzoneSolutions, any reference to Del Ozone or Johnson Controls in
the second notice of appeal has no jurisdictional effect. 	We
disagree.
¶17 	The district court clearly stated that the May 28
summary judgment order operated as the final appealable order of
the court. 	Although the second notice of appeal is not as clear
as it could have been, its reference to the first notice of
appeal is sufficient to properly subject all three defendants to
this court’s jurisdiction. 	Because Ms. Gudmundson filed this
second notice of appeal within the required thirty-day period, we
conclude Ms. Gudmundson timely appealed as to all parties.
Having determined that we have subject-matter jurisdiction over
this appeal, we now address whether the district court abused its
discretion when it denied Ms. Gudmundson’s rule 56(f) motion for
additional time to conduct further discovery.
II. 	THE DISTRICT COURT DID NOT ABUSE ITS DISCRETION WHEN IT
DENIED MS. GUDMUNDSON’S RULE 56(f) MOTION FOR ADDITIONAL TIME FOR
DISCOVERY
¶18 	In response to Del Ozone and Johnson Control’s Motions
for Summary Judgment, Ms. Gudmundson moved the district court for
time to conduct further discovery under rule 56(f) of the Utah
Rules of Civil Procedure. 	Specifically, Ms. Gudmundson argued
she needed to conduct discovery on (1) the interpretation of her
MRIs, (2) the neurotoxicity or carcinogenic effects of an ozone-
disinfectant system, (3) the water being pulled from a geothermal
well below the prison, and (4) further information from Del Ozone
relating to Del Ozone’s denial of whether any of its instruments
that are similar to the generator have ever been known to cause
health problems.

7 	No. 20080537
¶19 	The district court denied the motion. 	It reasoned that
“[p]laintiffs have had two-and-a-half years to obtain the
necessary evidence to oppose summary judgment, which the Court
finds to have been more than adequate to uncover any available
evidence to support their claims.” 	The district court further
noted that “plaintiffs have failed to identify the specific facts
that are within the defendants’ exclusive knowledge, the steps
that they have taken to obtain that information, and how that
information would help them respond to defendants’ motions for
summary judgment.”
¶20 	“We will not reverse the district court’s decision to
grant or deny a rule 56(f) motion for discovery unless it
‘exceeds the limits of reasonability.’” 	Overstock.com, Inc. v.
SmartBargains, Inc., 2008 UT 55, ¶ 20, 192 P.3d 858 (quoting
Crossland Sav. v. Hatch, 877 P.2d 1241, 1243 (Utah 1994)). “The
‘limits of reasonability’ standard is based on the specific
circumstances of each case.” 	Id. ¶ 21. 	In Overstock.com, we
listed some of the relevant considerations in determining whether
the grant of a rule 56(f) motion is warranted
(1) an examination of the party’s rule 56(f)
affidavit to determine whether the discovery
sought will uncover disputed material facts
that will prevent the grant of summary
judgment or if the party requesting discovery
is simply on a “fishing expedition,” (2)
whether the party opposing the summary
judgment motion has had adequate time to
conduct discovery and has been conscientious
in pursuing such discovery, and (3) the
diligence of the party moving for summary
judgment in responding to the discovery
requests provided by the party opposing
summary judgment.
Id.
¶21 	We now review Ms. Gudmundson’s conduct measured against
these three considerations. 	Ms. Gudmundson argues that the
district court’s denial of her rule 56(f) motion exceeds the
limits of reasonability because she had just obtained new counsel
and because the needed discovery would reveal evidence relevant
to her claims. 	We find neither argument persuasive.
¶22 	Although Ms. Gudmundson’s counsel may be faulted for
failing to conduct discovery in a conscientious and diligent

4 Indeed, during the hearing on the parties’ motions for
summary judgment, the district court noted Ms. Gudmundson had
failed to present evidence that she could meet the requirements
of a rule 56(f) motion. 	For instance, the district court stated,
“You haven’t even shown me how the discovery that was conducted
under prior counsel failed to give you adequate tools to respond
to these motions.” 	The district court also noted, “[Y]ou’ve
failed to point out to me even the slightest bit how none of that
discovery could allow you to answer or [to] mount a response to
their motion for summary judgment.”
No. 20080537 	8
manner to some extent, the district court’s denial of the rule
56(f) motion was not unreasonable. 	Ms. Gudmundson filed her
complaint on September 20, 2005, and fact discovery closed
September 5, 2007. 	Ms. Gudmundson’s current counsel entered his
appearance on August 28, 2007. 	Although Ms. Gudmundson’s current
counsel entered an appearance only eight days before the close of
fact discovery, Ms. Gudmundson has not sufficiently demonstrated
that her former counsel was incompetent or otherwise unable to
diligently perform the needed discovery. 	She has not shown why
her former counsel could not perform the needed discovery. 4
Instead, Ms. Gudmundson concludes that defendants’ suggestion in
phone conferences that they would stipulate to a discovery
extension forms an adequate basis on which to grant a rule 56(f)
motion. 	This argument does nothing to explain why the district
court abused its discretion when it found that Ms. Gudmundson had
not adequately shown why she could not obtain the needed
information within the previous two years.
¶23 	Although rule 56(f) motions are to be granted
liberally, in this case, Ms. Gudmundson’s failure to adequately
explain the lack of diligence does not convince us that the
district court exceeded the limits of reasonability when it
denied the motion. 	See Jensen v. Smith, 2007 UT App 152, ¶¶ 2,
4-5, 163 P.3d 657; Jones v. Bountiful City Corp., 834 P.2d 556,
560-62 (Utah Ct. App. 1992).
¶24 	Although the district court did not abuse its
discretion when it denied Ms. Gudmundson’s rule 56(f) motion, we
must still address whether the district court nevertheless erred
when it granted summary judgment to Del Ozone and Johnson
Controls on the basis of collateral estoppel.
III. 	THE DISTRICT COURT ERRED WHEN IT GRANTED SUMMARY JUDGMENT
TO DEL OZONE AND JOHNSON CONTROLS ON THE BASIS OF COLLATERAL
ESTOPPEL BECAUSE MS. GUDMUNDSON’S WORKERS’ COMPENSATION
ADJUDICATIONS ON THE ISSUE OF CAUSATION DID NOT GARNER PRECLUSIVE
EFFECT IN THIS CASE

5 The Workers’ Compensation Act has been amended since the
complaint was filed in this case. 	Because the changes do not
substantively affect the provisions at issue here, we cite to the
current version for convenience.
9 	No. 20080537
¶25 	The core issue in this appeal, and a question we have
not confronted before, is whether a district court may give a
workers’ compensation adjudication on the issue of causation
preclusive effect in a civil action against a nonemployer third-
party defendant. 	Stated another way, can a third-party defendant
use a workers’ compensation adjudication on the issue of
causation to block relitigation of that issue in a civil suit?
¶26 	Ms. Gudmundson contends that the district court erred
when it gave preclusive effect to her workers’ compensation
adjudication in her civil lawsuit against Johnson Controls,
OzoneSolutions, and Del Ozone. 	She further contends that the
district court erred when it declined to address whether her
alternative theory--that ozone byproducts caused her injuries
rather than overexposure to ozone itself--was sufficient to
overcome the application of collateral estoppel. 	We address each
issue in turn.
A. 	The District Court Erred When It Gave Preclusive Effect to
Ms. Gudmundson’s Workers’ Compensation Adjudication
¶27 	We first address whether the district court erred when
it gave Ms. Gudmundson’s workers’ compensation determination
preclusive effect in her civil lawsuit against nonemployer third
parties. 	We conclude that the district court erred.
¶28 	The Utah Workers’ Compensation Act represents a
compromise between employee and employer. 	An injured employee
receives “‘a simple and speedy procedure which eliminates the
expense, delay and uncertainty’ in proving fault,” Workers’ Comp.
Fund v. Wadman Corp., 2009 UT 18, ¶ 8, 210 P.3d 277 (quoting
Wilstead v. Indus. Comm’n, 407 P.2d 692, 693 (Utah 1965)), while
the employer is granted immunity from suit by the employee. 	See
Utah Code Ann. § 34A-2-105 (Supp. 2009) (“The right to recover
compensation pursuant to [the Utah Workers’ Compensation
Act] . . . is the exclusive remedy against the employer and . . .
any officer, agent, or employee of the employer . . . .”). 5 	This
compromise does not affect an employee’s statutory right to sue
negligent third parties. 	See Utah Code Ann. § 34A-2-106(1)
(Supp. 2009) (“When any injury . . . is caused by the wrongful
act or neglect of a person other than an employer, officer,
agent, or employee of the employer . . . the injured

No. 20080537 	10
employee . . . may have an action for damages against the third
person.”).
¶29 	Collateral estoppel, or issue preclusion, is a
judicially-created doctrine that “‘prevents parties or their
privies from relitigating facts and issues in the second suit
that were fully litigated in the first suit.’” 	Buckner v.
Kennard, 2004 UT 78, ¶ 12, 99 P.3d 842 (quoting Macris & Assocs.
v. Neways, Inc., 2000 UT 93, ¶ 19, 16 P.3d 1214). 	A party
seeking to invoke collateral estoppel must show
(1) the issue decided in the prior
adjudication is identical to the one
presented in the instant action; (2) the
party against whom issue preclusion is
asserted was a party, or in privity with a
party, to the prior adjudication; (3) the
issue in the first action was completely,
fully, and fairly litigated; and (4) the
first suit resulted in a final judgment on
the merits.
Id. ¶ 13.
¶30 	Collateral estoppel serves three primary purposes:
“(1) preserving the integrity of the judicial system by
preventing inconsistent judicial outcomes; (2) promoting judicial
economy by preventing previously litigated issues from being
relitigated; and (3) protecting litigants from harassment by
vexatious litigation.” 	Id. ¶ 14.
¶31 	This court has also recognized, however, that
“[c]ollateral estoppel is not an inflexible, universally
applicable principle,” id. ¶ 15 (internal quotation marks
omitted), and that it “can yield an unjust outcome if applied
without reasonable consideration and due care.” 	Id.
Accordingly, its “[a]pplication . . . may be unwarranted in
circumstances where its purposes would not be served.” 	Id. ¶ 14.
Furthermore, its use may be limited in situations where it would
subvert other legitimate policy considerations. 	See id. ¶ 15
(“Policy considerations may limit [the] use [of collateral
estoppel] where the . . . underpinnings of the doctrine are
outweighed by other factors.” (third alteration in original)
(internal quotation marks omitted)).
¶32 	Both parties have presented this court with a broad
array of cases concluding that workers’ compensation
adjudications either do, or do not, have preclusive effect in

11 	No. 20080537
civil lawsuits. 	These cases involve widely varying facts,
procedural postures, and types of defendants. 	Some concern
third-party tort claims. 	Many do not. 	In considering the Utah
Workers’ Compensation statutory scheme, our case law under that
scheme, and cases from other jurisdictions, we conclude that
while workers’ compensation adjudications may be given preclusive
effect in some instances, both the policy that justifies workers’
compensation and the purposes of the collateral estoppel doctrine
prevent the application of collateral estoppel in this case.
¶33 	We have held that administrative adjudications may be
given preclusive effect. 	See Career Serv. Review Bd. v. Utah
Dep’t of Corr., 942 P.2d 933, 938 (Utah 1997); Salt Lake Citizens
Cong. v. Mountain States Tel. & Tel. Co., 846 P.2d 1245, 1251
(Utah 1992) (“[T]he doctrine of res judicata has been applied to
administrative agency decisions in Utah since at least 1950.”).
In this context, collateral estoppel generally applies “‘when an
administrative agency has acted in a judicial capacity in an
adversary proceeding to resolve a controversy over legal rights
and to apply a remedy.’” 	Career Serv., 942 P.2d at 938 (quoting
Mountain States, 846 P.2d at 1251). 	In Stoker v. Workers’
Compensation Fund, however, we suggested that workers’
compensation adjudications may not have the same collateral-
estoppel applications as other administrative adjudications. 	889
P.2d 409, 411 (Utah 1994) (finding that workers’ compensation
remedies “are not analogous to an ordinary lump-sum judgment that
the common law provides for personal injury actions,” partly
because “an award of benefits does not generally have the res
judicata effect of a judgment”).
¶34 	Indeed, if workers’ compensation adjudications were
given preclusive effect in suits against nonemployer third
parties, injured workers would face a vexing dilemma: 	either
elect the more simple and immediate relief afforded by workers’
compensation or the more complex but potentially more lucrative
civil litigation process. 	See Messick v. Star Enter., 655 A.2d
1209, 1212-13 (Del. 1995) (explaining this dilemma); Cunningham
v. Prime Mover, Inc., 567 N.W.2d 178, 182-83 (Neb. 1997) (same).
The Utah Workers’ Compensation Act does not require an employee
to make such an election of remedies.
¶35 	On the one hand, Utah Code section 34A-2-105(1) clearly
explains that a claim under the Workers’ Compensation Act is “the
exclusive remedy against the employer . . . in place of any and
all other civil liability whatsoever, at common law or otherwise,
to the employee.” 	(emphasis added). 	Section 34A-2-106, on the
other hand, clearly preserves an employee’s civil remedies
against nonemployer third parties when it states,

6 In contrast to defensive collateral estoppel, offensive
collateral estoppel “occurs when the plaintiff seeks to foreclose
the defendant from litigating an issue the defendant has
previously litigated unsuccessfully in an action with another
party.” 	Parklane Hosiery Co. v. Shore, 439 U.S. 322, 326 n.4
(1979).
Offensive use of collateral estoppel . . .
creates precisely the opposite incentive [as
defensive use]. 	Since a plaintiff will be
(continued...)
No. 20080537 	12
(1) When any injury or death for which
compensation is payable under [the Workers’
Compensation Act] . . . is caused by the
wrongful act or neglect of a person other
than an employer, officer, agent, or employee
of the employer:
. . .
(b) the injured employee or the
employee’s heirs or personal representative
may have an action for damages against the
third person.
(emphasis added).
¶36 	We decline to read these provisions as permitting an
employee to engage third parties in the rigor of litigation while
containing an implied threat that rulings made by an
administrative law judge in a workers’ compensation adjudication
may, through the invocation of collateral estoppel, derail the
employee’s lawsuit. 	To compel an election of this nature would
subvert the general purpose behind workers’ compensation, which
is “to provide compensation to injured employees ‘by a simple and
speedy procedure which eliminates the expense, delay and
uncertainty’ in proving fault.” 	Wadman Corp., 2009 UT 18, ¶ 8
(quoting Wilstead, 407 P.2d at 693). 	Employees must not be
forced to confront such a risk.
¶37 	Furthermore, giving preclusive effect to Ms.
Gudmundson’s workers’ compensation adjudication does not
necessarily serve the purposes of collateral estoppel. 	The
district court granted summary judgment based on defensive
collateral estoppel, which “prevent[s] a plaintiff from asserting
a claim the plaintiff has previously litigated and lost against
another defendant.” 6 	Parklane Hosiery Co. v. Shore, 439 U.S.

6 (...continued)
able to rely on a previous judgment against a
defendant but will not be bound by that
judgment if the defendant wins, the plaintiff
has every incentive to adopt a “wait and see”
attitude, in the hope that the first action
by another plaintiff will result in a
favorable judgment. 	Thus offensive use of
collateral estoppel will likely increase
rather than decrease the total amount of
litigation . . . .
Id. at 330 (citations omitted).
7 Additionally, an employee who receives a favorable outcome
from a workers’ compensation adjudication would have little hope
of enjoying any offensive collateral estoppel use of that result
in a third-party civil action. 	First, the employer would have
little incentive to “defend vigorously” the workers’ compensation
adjudication as compared to the full-blown civil action faced by
the third-party defendants. 	See Parklane Hosiery, 439 U.S. at
330. 	Second, the minimal amount of procedure available in
workers’ compensation adjudications would likely make offensive
use of collateral estoppel unfair, especially because the third-
party defendants would be unable to choose the forum in the first
place. 	See id. at 330-31.
13 	No. 20080537
322, 326 n.4 (1979). 	Typically, courts favor the use of
defensive collateral estoppel because it “gives a plaintiff a
strong incentive to join all potential defendants in the first
action,” which, in turn, accomplishes the general purposes of
collateral estoppel: 	increased judicial efficiency, prevention
of inconsistent judicial outcomes, and protection of litigants
from vexatious lawsuits. 	See id. at 329-30; Buckner, 2004 UT 78,
¶ 14.
¶38 	Under the unique facts of this case, however, giving
preclusive effect to Ms. Gudmundson’s workers’ compensation
adjudication does not promote the purposes of collateral
estoppel. 	Because the Workers’ Compensation Act is only
available to remedy wrongs committed by employers or their
agents, Ms. Gudmundson could not involve third-party defendants
in her workers’ compensation adjudication even if she had so
desired. 	Accordingly, her subsequent lawsuit against defendants
was neither a waste of judicial resources nor an attempt to
harass the defendants through vexatious litigation. 7 	See Heine
v. Simon, 702 N.W.2d 752, 762 (Minn. 2005) (“[G]iven the
exclusivity of the Workers’ Compensation Act as a remedy against
the employer, invocation of collateral estoppel in an employee’s

8 The district court did not address whether the ozone-
byproducts theory constituted a different issue such that the
elements of collateral estoppel were not satisfied. 	Instead, the
district court determined that it could not hear the theory
because it was not first argued to the ALJ or the Appeals Board.
In other words, Ms. Gudmundson had not exhausted her remedies as
to that particular theory and was therefore barred from arguing
the theory in district court.
We disagree. 	The Workers’ Compensation Act does not require
an employee who brings a claim against a third party to first
exhaust his or her remedies through the administrative process.
See Utah Code Ann. § 34A-2-106 (Supp. 2009). 	Regardless, because
we find that Ms. Gudmundson failed to adequately plead her
alternative theory of causation to the district court, she is
precluded from arguing that chemical toxicity caused her
injuries.
No. 20080537 	14
third-party action in a case . . . where the third party had, and
could have had, no involvement in the workers’ compensation
proceedings does not necessarily serve the purposes of collateral
estoppel.”). 	We are therefore unable to discern any of the
recognized justifications for the application of collateral
estoppel in this case. 	Rather, it appears that the sole effect
of collateral estoppel would be to shield third-party defendants
from confronting claims the Utah Legislature has expressly
preserved for employees under the Utah Workers’ Compensation Act.
See Utah Code Ann. § 34A-2-106. 	We therefore decline to adopt a
rule that would categorically give preclusive effect to workers’
compensation adjudications in civil actions brought by an injured
worker against nonemployer third parties.
B. 	Ms. Gudmundson Did Not Sufficiently Plead Her Alternative
Theory of Causation
¶39 	Ms. Gudmundson also argues that collateral estoppel
should not apply in her case because the Utah Labor Commission
did not consider the issue of whether her injuries were caused by
exposure to ozone byproducts. 	She argues that because this
theory was never presented to the ALJ, it presents a different
issue to the district court, one that defeats the requirement of
issue congruence necessary for the application of collateral
estoppel. 	We hold that Ms. Gudmundson did not adequately plead
her alternative theory of causation. 8
¶40 	The issue before us is to what extent a causation
theory articulated for the first time in the context of a summary
judgment motion must have appeared in prior pleadings in order to
command consideration from the district court. 	To resolve this

9 Although it is not entirely clear whether Ms. Gudmundson
argued that the ozone generator had a manufacturing defect or a
design defect, we interpret her argument that the generator was
(continued...)
15 	No. 20080537
issue, we turn to our pleading requirements. 	Our central
reference is rule 8 of the Utah Rules of Civil Procedure. 	Rule 8
mandates that a pleading for a claim of relief must include “a
short and plain statement of the claim showing that the pleader
is entitled to relief.” 	Utah R. Civ. P. 8(a). 	We have
consistently noted that Utah’s notice pleading requirements are
liberal and “all that is required is that the pleadings be
sufficient to give fair notice of the nature and basis of the
claim asserted and a general indication of the type of litigation
involved.” 	Guardian Title Co. v. Mitchell, 2002 UT 63, ¶ 15 n.4,
54 P.3d 130 (internal quotation marks omitted).
¶41 	Ms. Gudmundson’s complaint states only that “ozone
overexposure” caused her injuries. 	Not until her memorandum in
opposition to summary judgment did she argue that ozone combined
with other chemicals present in the laundry facility caused the
formation of ozone byproducts, which caused her to develop
symptoms indicative of chemical toxicity. 	Although ozone
overexposure and ozone-byproduct toxicity may not be mutually
exclusive concepts, they depend on different factual theories and
present different types of legal liability. 	For instance, one
could be strictly liable for the ozone overexposure if the ozone
generator is found to be defective. 	A claim that the presence of
ozone combined with other chemicals ordinarily present in a
laundry facility caused injury to a specific employee, however,
sounds in negligence. 	Ms. Gudmundson’s failure to give appellees
notice that she intended to pursue both theories precludes her
from arguing that chemical toxicity caused her injuries.
IV. 	THE DISTRICT COURT ERRED WHEN IT GRANTED SUMMARY JUDGMENT TO
DEL OZONE ON THE GROUNDS THAT MS. GUDMUNDSON HAD FAILED TO
PRODUCE SUFFICIENT EVIDENCE THAT DEL OZONE’S GENERATOR WAS
DEFECTIVE
¶42 	In addition to granting defendants’ summary judgment
motions on the basis of collateral estoppel, the district court
also granted summary judgment to Del Ozone, the manufacturer of
the ozone generator, on the ground that Ms. Gudmundson had
“failed to produce evidence that Del Ozone’s ozone generator was
defective.” 	Ms. Gudmundson argues that summary judgment was
improper because she presented sufficient evidence that (1) the
ozone generator was unreasonably dangerous due to a design
defect 9 and (2) even if the generator itself was not defective,

9 (...continued)
unreasonably dangerous because it did not contain an ambient air
monitor or automatic shut-off valve as a design defect claim.
10 It is unclear whether the district court concluded that
Ms. Gudmundson failed to produce evidence that the generator was
defective under a defective product theory, design defect theory,
or both. 	Because we find that Ms. Gudmundson produced evidence
sufficient to overcome summary judgment on a design defect
theory, we address that issue alone.
No. 20080537 	16
Del Ozone is liable for defects in the ozone-disinfection system
as a whole.
¶43 	We agree with Ms. Gudmundson and hold that the district
court erred when it granted summary judgment to Del Ozone. 	Ms.
Gudmundson presented sufficient evidence to create a genuine
issue of material fact as to whether (1) the ozone generator
itself was defectively designed and (2) the ozone-disinfection
system as a whole was defective under a component-parts theory.
¶44 	Summary judgment is proper if “the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party
is entitled to a judgment as a matter of law.” 	Utah R. Civ. P.
56(c). 	When reviewing a trial court’s grant of summary judgment,
“we give the court’s legal decisions no deference, reviewing for
correctness, while reviewing the facts and inferences to be drawn
therefrom in the light most favorable to the nonmoving party.”
Dairy Prod. Servs., Inc. v. City of Wellsville, 2000 UT 81, ¶ 15,
13 P.3d 581.
¶45 	“Products liability always requires proof of a
defective product, which can include ‘manufacturing flaws, design
defects, and inadequate warnings regarding use.’” 	Bishop v.
GenTec, Inc., 2002 UT 36, ¶ 25, 48 P.3d 218 (quoting Grundberg v.
Upjohn Co., 813 P.2d 89, 92 (Utah 1991)). 	The liability “is for
the defective product, and not merely for any underlying
negligence.” 	Id.
A. 	Ms. Gudmundson Presented Sufficient Evidence That the Ozone
Generator Had a Design Defect
¶46 	The district court held that Ms. Gudmundson “failed to
produce evidence that Del Ozone’s ozone generator was
defective.” 10 	Ms. Gudmundson argues that the evidence presented
to the district court was sufficient to create a disputed issue

11 Del Ozone also argues that the generator was not
defective because it (1) never “malfunctioned in any way” and
(2) “was not defective when it was installed.” 	These arguments
would refute an assertion that a particular generator was
defective. 	But Ms. Gudmundson argues that the generator was
defective as designed because it did not contain an ambient air
monitor or an automatic shut-off valve. 	In other words, even if
the generator performed exactly as intended, its design was still
unreasonably dangerous to the prudent user.
12 In 2008, the Utah Legislature revised and recodified
Title 78. 	The Legislature moved the Utah Product Liability Act
from sections 78-15-1 to -7 to sections 78B-6-701 to -707.
Because the change does not affect our analysis and because the
Utah Product Liability Act was held constitutional as amended in
Egbert v. Nissan Motor Co., 2010 UT 8, ¶¶ 9-10, 21, 228 P.3d 737,
we refer to the current numbering scheme. 	Under that scheme,
section 78B-6-703(1) provides
In any action for damages for personal
injury, death, or property damage allegedly
caused by a defect in a product, a product
may not be considered to have a defect or to
be in a defective condition, unless at the
time the product was sold by the manufacturer
or other initial seller, there was a defect
or defective condition in the product which
made the product unreasonably dangerous to
the user or consumer.
17 	No. 20080537
of material fact as to whether the generator was defectively
designed. 	Specifically, she argues that the generator lacked an
ambient air monitor or a shut-off valve that would automatically
shut down the system if pollutant levels exceeded federally
mandated EPA or OSHA limits. 	Del Ozone argues that an absence of
air monitors and shut-off valves does not qualify as a defect for
purposes of products liability, strict liability, negligent
manufacture, or breach of implied warranty. 	Rather, Del Ozone
argues that such monitors and shut-off valves are accessories,
the absence of which does not evidence a defect in the design of
the generator. 11
¶47 	Under the Utah Product Liability Act, a product is
defective if it is “unreasonably dangerous” at the time of sale
by the manufacturer. 12 	Utah Code Ann. § 78B-6-703(1) (2008).
The Act defines a product as “unreasonably dangerous” if it
was dangerous to an extent beyond which would
be contemplated by the ordinary and prudent

13 It is unclear from the record whether the shut-off valves
and ambient air monitors are physically attached to the generator
or to other parts of the ozone-production system. 	Of course,
this inquiry is necessarily a part of whether the lack of the
shut-off features constitutes a design defect with the generator
itself and is therefore a determination more suitable for the
trier of fact. 	If the features are indeed accessories with no
bearing on the nondefectiveness of the generator, the absence of
the features may still be a design defect of the entire ozone-
generator system. 	Additionally, on remand, Ms. Gudmundson must
show that the defect, if any, caused her injuries. 	See Burns v.
Cannondale Bicycle Co., 876 P.2d 415, 418 (Utah Ct. App. 1994)
(“It is not enough to merely contend that a defect existed, show
that an accident occurred, and assume the two are necessarily
related.”).
No. 20080537 	18
buyer, consumer, or user of that product in
that community considering the product’s
characteristics, propensities, risks,
dangers, and uses together with any actual
knowledge, training, or experience possessed
by that particular buyer, user, or consumer.
Id. § 78B-6-702.
¶48 	Ms. Gudmundson argued to the district court that the
generator lacked certain features that made it unreasonably
dangerous: 	an ambient air monitor and an automatic shut-off
valve. 	Del Ozone, in contrast, argued that such features are
accessories, the inclusion of which has no bearing on whether the
generator is unreasonably dangerous. 	Viewing the facts and
resulting inferences in a light most favorable to Ms. Gudmundson,
we conclude that she presented sufficient evidence to create a
question of material fact as to whether the ozone generator was
unreasonably dangerous at the time of sale and therefore
defective.
¶49 	Ms. Gudmundson presented the deposition of Mr. Downey,
the owner of OzoneSolutions, who concedes that the generator
lacked certain shut-off features and that these features are
available and sometimes installed with other generators. 13 	She
also presented the district court with a portion of the
Occupational Safety Hazardous Occupation Encyclopedia, which
specifically states, “[w]hen ozonizers are installed, they should
be provided with ozone specific detectors.” 	Additionally, Ms.
Gudmundson attached emails between the parties and prison
officials that suggest the ozone levels at the prison exceeded
acceptable levels and that the system was shut down at least once

19 	No. 20080537
due to ozone levels. 	This is not a situation where Ms.
Gudmundson has argued that merely because she was injured, the
product must have been defective; rather, Ms. Gudmundson
specifically alleges that a product is defectively designed
because it lacks certain features. 	See Kleinert v. Kimball
Elevator Co., 854 P.2d 1025, 1027 (Utah Ct. App. 1993) (holding
the mere allegation that “because she was injured, the [product]
must have been defective” was not enough to survive summary
judgment); Burns v. Cannondale Bicycle Co., 876 P.2d 415, 418
(Utah Ct. App. 1994) (“[I]t is not enough to simply show that the
product failed.”).
¶50 	We therefore reverse the district court’s determination
that Ms. Gudmundson presented insufficient evidence that the
ozone generator was defective and remand for consideration of the
claim. 	Additionally, as explained below, the district court
prematurely granted summary judgment to Del Ozone because Del
Ozone may be liable for defects in the ozone-generator system.
B. 	The District Court Erred When It Granted Summary Judgment to
Del Ozone Because a Manufacturer of a Nondefective Product May Be
Liable for the Design Defects of a System
¶51 	The district court’s order granting summary judgment to
Del Ozone focused on Ms. Gudmundson’s failure to present evidence
that the generator itself was defective. 	During the hearing on
the summary judgment motions, however, the district court noted,
“While it is true that there appears to be some evidence that
there may have been some venting issues, I found nothing that
indicated factually a problem with the generator itself.”
¶52 	Ms. Gudmundson now argues that the district court erred
and that Del Ozone is liable for design defects that may exist in
the ozone-disinfection system as a whole. 	Ms. Gudmundson points
to deposition statements made by the owner of OzoneSolutions, Mr.
Downey, that in the past he had collaborated with engineers from
Del Ozone on the design of ozone-generator systems and purchased
all the component parts necessary for the Utah Prison system from
Del Ozone. 	Del Ozone argues that it merely filled
OzoneSolutions’ purchase order, and that OzoneSolutions was the
only party responsible for selecting the size of the generator
and installing the necessary components for the system. 	The
question before us then is not whether defects actually exist in
the design of the system, but whether Del Ozone, as a component
manufacturer of a nondefective product, may be held liable for
any defects in the system.

No. 20080537 	20
¶53 	Although this court has not explicitly addressed to
what extent installation of a nondefective product in a defective
system results in tort liability, we have required that
in order to recover on strict liability
against a seller, the plaintiff must prove
(1) that a defect or defective condition of
the product made it unreasonably dangerous,
(2) that the defect was present at the time
of the product’s sale, and (3) that the
defective condition was the cause of the
plaintiff’s injuries.
Schaerrer v. Stewart’s Plaza Pharmacy, Inc., 2003 UT 43, ¶ 16, 79
P.3d 922. 	The rule set forth in Schaerrer provides the
boundaries of manufacturer liability, but it does not provide
guidance on what constitutes a “product” or when movement of the
“product” constitutes a “sale.”
¶54 	To answer this question, we find sufficient guidance in
the principle known as the “component-parts doctrine.” 	Under
this doctrine, a manufacturer of a component part who
participates in the design of the final product or system may be
held liable for injuries caused by the final product even if the
component itself was not defective. 	See, e.g., Davis v. Komatsu
Am. Indus. Corp., 42 S.W.3d 34, 38-39 (Tenn. 2001) (providing
exhaustive list of jurisdictions that have adopted the doctrine);
see also House v. Armour of Am., 886 P.2d 542, 553 (Utah Ct. App.
1994) (“[S]trict liability for a component manufacturer is
limited when that component is integrated into a larger unit,
thus, ‘if the component part manufacturer does not take part in
the design or assembly of the final system or product, he is not
liable for defects in the final product if the component part
itself is not defective.’” (emphasis added) (quoting Koonce v.
Quaker Safety Prod. & Mfg. Co., 798 F.2d 700, 715 (5th Cir.
1986))).
¶55 	The Third Restatement of Torts, Products Liability,
section 5 sets forth the elements required for nondefective
component-manufacture liability. 	It states:
One engaged in the business of selling or
otherwise distributing product components who
sells or distributes a component is subject
to liability for harm to persons or property
caused by a product into which the component
is integrated if:
. . .

14 We do not quote section (a) of the Restatement because it
only addresses situations in which the component part itself is
defective. 	Because this situation is adequately addressed in our
case law, we do not wish to create confusion by applying the
Restatement to those situations.
21 	No. 20080537
(b)(1) the seller or distributor of the
component substantially participates in the
integration of the component into the design
of the product; and
(2) the integration of the component
causes the product to be defective, as
defined in this Chapter; and
(3) the defect in the product causes the
harm. 14
¶56 	The Third Restatement embraces the policy-based
rationale that although manufacturers of nondefective component
parts at the time of sale should not bear the risk of ensuring
the integrated product’s safety, a component manufacturer who
participates in the design of the product should bear some
liability risk. 	Because we find this policy-based rationale
persuasive, we adopt this section of the Third Restatement.
¶57 	Liability under the Third Restatement for a
nondefective product requires two findings. 	First, the
participation must be substantial. 	Second, the integration of
the nondefective component must cause the integrated product to
be defective. 	Restatement (Third) of Torts: 	Prods. Liab.
§ 5(b)(1)-(2) (1998). 	We now discuss the meaning of both
elements.
¶58 	First, the manufacturer of a nondefective component
must have substantially participated in the design of the
integrated product. 	Id. § 5(b)(1). 	To substantially
participate, the manufacturer must have had some control over the
decision-making process of the final product or system. 	See
Jacobs v. E.I. du Pont de Nemours & Co., 67 F.3d 1219, 1242 (6th
Cir. 1995) (“[W]here a component part is not dangerous until
incorporated into a finished product, courts have held that the
component-part supplier cannot be held liable . . . unless the
supplier exercised some control over the final product’s
design.”); Noonan v. Texaco, Inc., 713 P.2d 160, 164 (Wyo. 1986)
(holding that summary judgment was proper when defendants
“manufactured only component parts” and “had no control over the
manner in which [the final product] was constructed,” or the

No. 20080537 	22
“decision[s] concerning the assembly of safety features”). 	The
requirement that a component manufacturer have some control over
the design of the integrated product prevents the imposition of a
duty to “foresee all the dangers that may result from the use of
a final product which contains its component part or materials.”
Bond v. E.I. du Pont de Nemours & Co., 868 P.2d 1114, 1118-19
(Colo. Ct. App. 1993) (holding a manufacturer of Teflon not
liable for injuries caused to patients given TMJ implants
partially made from Teflon). 	For instance, a component
manufacturer does not have a duty to analyze or anticipate the
design of the product or system of which its component is a part
nor does knowledge of the ultimate design by itself constitute
substantial participation. 	See Childress v. Gresen Mfg. Co., 888
F.2d 45, 48-49 (6th Cir. 1989); Zaza v. Marquess & Nell, Inc.,
675 A.2d 620, 629-30 (N.J. 1996) (The duty underlying the
component-parts doctrine does not extend to “the anticipation of
how manufactured components not in and of themselves dangerous or
defective can become potentially dangerous dependent upon the
nature of their integration into a unit designed, assembled,
installed, and sold by another.” (internal quotation marks
omitted)).
¶59 	Liability for failure to install a safety device
therefore depends on whether the component manufacturer was in a
position to control the decision making involved in the design of
the integrated product. 	Requiring that a component manufacturer
have control over the decision making involved in the design of
the integrated product ensures that “[m]ere suppliers [are not]
expected to guarantee the safety of other manufacturers’
machinery.” 	Crossfield v. Quality Control Equip. Co., 1 F.3d
701, 704 (8th Cir. 1993). 	The act of “simply design[ing] a
component to its buyer’s specifications” or “providing . . .
technical services or advice” about the component does not in and
of itself constitute substantial participation in the design of
the integrated product. 	Restatement (Third) of Torts: 	Prods.
Liab. § 5 cmt. e. 	However, if the specifications provided are
obviously unreasonably dangerous, the component manufacturer may
be deemed to have control over the integrated product and
therefore be deemed to have substantially participated. 	Zaza,
675 A.2d at 629.
¶60 	Second, under the Restatement, the integration of the
nondefective product must also cause the integrated product to be
defective. 	Restatement (Third) of Torts: 	Prods. Liab.
§ 5(b)(2). 	The Restatement therefore places another factual
limitation on when a manufacturer of a nondefective product that
substantially participates in the design of the integrated
product may be liable.

15 We note that the district court’s order granting summary
judgment to Del Ozone does not address Ms. Gudmundson’s
negligence claims. 	Our treatment of the component-parts doctrine
reaches only those claims brought under a products liability
theory.
23 	No. 20080537
¶61 	Because we adopt the component-parts doctrine today,
the district court understandably did not make factual findings
on whether the ozone generator is a nondefective component, the
integration of which caused the system to be defective, or
whether Del Ozone substantially participated in the design of the
system installed at the prison. 	The district court also did not
make findings on whether the ozone-generator system was defective
in its totality. 	We therefore remand to the district court for a
determination of whether Del Ozone is liable as a component
manufacturer for defects, if any, in the ozone-disinfection
system. 15
CONCLUSION
¶62 	We hold that the district court did not abuse its
discretion when it declined to grant Ms. Gudmundson’s rule 56(f)
motion. 	Although Ms. Gudmundson is not entitled to further
discovery, we reverse the district court’s grant of summary
judgment in favor of the defendants on the basis of collateral
estoppel. 	But Ms. Gudmundson’s alternative argument, that ozone-
byproduct exposure is a different issue than ozone overexposure
and therefore not subject to collateral estoppel, was not
sufficiently pled; the district court therefore did not err in
failing to consider it. 	Finally, we hold that the district court
erred as a matter of law in finding that Ms. Gudmundson did not
sufficiently allege that the ozone generator was defective.
First, Ms. Gudmundson provided sufficient evidence to create an
issue of material fact as to whether the generator itself had a
design defect. 	Second, because we adopt the component-parts
doctrine today, we remand with instructions that the district
court apply that doctrine to Del Ozone consistent with this
opinion.
---
¶63 	Chief Justice Durham, Associate Chief Justice Durrant,
Justice Wilkins, and Justice Parrish concur in Justice Nehring’s
opinion.
---