Drew v. Pacific Life Insurance Company

2019 UT App 125
THE UTAH COURT OF APPEALS
LAM AR DREW AND LA R ENE DREW,
Appellants,
v.
PACIFIC LIFE I NSURANCE C OMPANY ,
Appellee.
Opinion
No. 20160314-CA
Filed July 18, 2019
Fourth District Court, Provo Department
The Honorable Darold J. McDade
No. 120402017
Steven G. Loosle, Paula W. Faerber, and Platte S.
Nielson, Attorneys for Appellants
Scott M. Petersen and David N. Kelley, Attorneys
for Appellee
JUDGE GREGORY K. O RME authored this Opinion, in which
JUDGE M ICHELE M. C HRISTIANSEN F ORSTER concurred.
JUDGE JILL M. POHLMAN dissented, with opinion.
ORME, Judge:
¶1 	LaMar and LaRene Drew appeal the district court’s grant
of 	summary 	judgment 	in 	favor 	of 	Pacific 	Life 	Insurance
Company 	(Pacific) 	and 	the 	court’s 	denial 	of 	the 	Drews’
cross-motion for partial summary judgment on the issue of
vicarious liability. The Drews contend that the district court
erroneously determined that Pacific was not vicariously liable
for 	the 	unlawful 	misrepresentations 	made 	by 	one 	of 	its
appointed insurance producers, R. Scott National, Inc. (RSN).
We reverse the summary judgment in favor of Pacific, and we
remand for the entry of partial summary judgment in favor of
the Drews.

Drew v. Pacific Life Insurance Company
20160314-CA 	2 	2019 UT App 125
JURISDICTION
¶2 	Before turning to the merits, we pause briefly to consider
our jurisdiction. The order appealed from was interlocutory
in nature but was certified as final in contemplation of rule 54(b)
of the Utah Rules of Civil Procedure. The certification does
not meet the requirements laid out in a recent line of opinions
from the Utah Supreme Court. See EnerVest, Ltd. v. Utah State
Eng'r, 2019 UT 2, ¶¶ 16–20, 435 P.3d 209 (amended opinion);
Copper Hills Custom Homes, LLC v. Countrywide Bank, FSB, 2018
UT 56, ¶¶ 15–17, 23–28, 428 P.3d 1133 (amended opinion); First
Nat'l Bank v. Palmer, 2018 UT 43, ¶¶ 13–14, 427 P.3d 1169.
Ordinarily in such a case, we dismiss for lack of jurisdiction. See,
e.g., Hayes v. Intermountain GeoEnvironmental Services Inc., 2018
UT App 223, ¶ 1, 437 P.3d 650. But these cases all recognize
that we “have the discretion to treat an improper rule 54(b)
certification as a request for leave to take an interlocutory appeal
under rule 5(a) of the Utah Rules of Appellate Procedure.” Id. ¶ 5
n.2. Accord EnerVest, 2019 UT 2, ¶ 20; Copper Hills, 2018 UT 56,
¶ 29 n.15; Palmer, 2018 UT 43, ¶ 14 n.4. This discretion to treat
an appeal taken from a non-final order as though it were
an 	authorized 	interlocutory 	appeal 	is 	exercised 	“judiciously
and sparingly.” Copper Hills, 2018 UT 56, ¶ 29 n.15. But it is
exercised from time to time. See, e.g., Hawkins ex rel. Hawkins v.
Peart, 2001 UT 94, ¶ 3 n.2, 37 P.3d 1062 (flawed rule 54(b)
certification); Chaparro v. Torero, 2018 UT App 181, ¶¶ 28–31, 436
P.3d 339 (non-final order due to an outstanding attorney fee
issue). Cf. EnerVest, 2019 UT 2, ¶ 20 (suggesting that discretion to
treat 	a 	flawed 	rule 	54(b) 	certification 	as 	an 	authorized
interlocutory appeal might have been exercised if appellant had
standing on appeal).
¶3 	We believe that the considerations that have prompted
Utah’s appellate courts in prior cases to exercise their discretion
to treat a flawed rule 54(b) certification as, instead, a granted
petition 	for 	interlocutory 	appeal, 	or 	to 	decline 	to 	exercise

Drew v. Pacific Life Insurance Company
20160314-CA 	3 	2019 UT App 125
that discretion, are of only limited relevance in a subsequent
case. Our resistance to a formulaic approach is inherent in
the very concept of discretion. See Warren v. United States Parole
Comm’n, 659 F.2d 183, 196 (D.C. Cir. 1981) (“[T]he essence of
discretion is the absence of fixed rules.”). See also United States v.
Richards, 659 F.3d 527, 551 (6th Cir. 2011) (“It is the essence
of discretion that it may properly be exercised in different
ways 	and 	likewise 	appear 	differently 	to 	different 	eyes.”)
(quotation simplified); Walen v. United States, 246 F. Supp. 3d
449, 462 (D.D.C. 2017) (“Flexibility in the face of competing
priorities . . . is the essence of discretion.”) (quotation simplified).
¶4 	We determine that this case is appropriate for the exercise
of our discretion to treat the flawed rule 54(b) certification as an
interlocutory appeal pursuant to rule 5(a) of our appellate rules.
Having done so, we now turn to a resolution of the appeal on its
merits.
BACKGROUND1
¶5 	In 2009, Pacific appointed RSN as its insurance producer
and 	authorized 	it 	to 	“solicit 	and 	procure 	applications 	for
[Pacific’s] life insurance and annuity products.” The agreement,
however, prohibited RSN from soliciting insurance products that
did not meet the “customer’s insurance needs and financial
objectives.” At the time the parties executed the agreement,
Pacific had appointed other companies and individuals to sell its
1. When reviewing a district court’s grant of summary judgment,
“we review the facts in a light most favorable to the losing
party” and “recite the facts accordingly.” Bodell Constr. Co. v.
Stewart Title Guar. Co., 945 P.2d 119, 121 (Utah Ct. App. 1997)
(quotation simplified).

Drew v. Pacific Life Insurance Company
20160314-CA 	4 	2019 UT App 125
insurance products,2 and RSN sold annuities and insurance
policies on behalf of numerous companies and individuals.
¶6 	LaMar and LaRene Drew are retired senior citizens who,
after 	seeing 	an 	advertisement, 	sought 	out 	one 	of 	RSN’s
employees as a financial advisor. At the outset, the employee
assisted 	the 	Drews 	in 	the 	acquisition 	and 	sale 	of 	multiple
annuities. Later on, and with the assistance of another RSN
employee, the initial employee informed the Drews that, even
though they were approaching eighty, they could purchase a life
insurance policy with a high death benefit and resell it on the
secondary market for a large profit.3 Based on this information,
the Drews purchased two $1.5 million life insurance policies, the
first from PHL Variable Insurance Company (PHL) and the
second from Pacific.4 To fund the premiums on the policies, the
2. Pacific sells its insurance products in all fifty states, and as of
December 2014, it had appointed 358 companies and 2,182
individuals to sell its insurance products on its behalf.
3. At the time of the transaction, Utah law clearly prohibited this
sales tactic. See Utah Code Ann. § 31A-36-111(5) (LexisNexis
2010) (“A person may not issue, solicit, or market the purchase
of a policy for the primary purpose of or with a primary
emphasis on settling the policy.”); id. § 31A-36-102(8) (defining
life 	settlement 	as 	“assigning, 	selling, 	transferring, 	devising,
releasing, or bequeathing” the death benefit of a policy).
4. One might ask how Pacific could possibly justify issuing
such a policy in addition to the $1.5 million life insurance policy
the 	Drews 	had 	with 	PHL. 	The 	record 	makes 	clear 	that
the 	Drews’ 	application 	to 	Pacific 	indicated 	that 	Pacific’s
policy was intended to replace the PHL policy rather than
supplement it. Additionally, the application queried whether the
Drews planned to transfer the policy “as a repayment of any
(continued…)

Drew v. Pacific Life Insurance Company
20160314-CA 	5 	2019 UT App 125
RSN employees advised the Drews to obtain a reverse mortgage
on their home. The Drews followed this advice.
¶7 	RSN was unable to sell the policies on the secondary
market. After the Drews paid more than $300,000 in premiums
and lost much of the equity in their home, the policies lapsed
when the Drews could no longer afford the premiums. In total,
they lost three-fourths of their life savings, and interest on their
reverse mortgage is accruing at a rate of approximately $1,000
per month.
¶8 	The Drews sued Pacific, claiming that it was vicariously
liable for the tortious conduct of RSN’s employees, whom the
Drews contended were acting as Pacific’s agents. Pacific and the
Drews submitted cross-motions for summary judgment, and the
district court granted summary judgment to Pacific. Although
the court did not address whether an agency relationship existed
between Pacific and RSN, it concluded that, even assuming such
a relationship existed, RSN’s employees were not acting within
the scope of their authority as agents of Pacific. The Drews
appeal.
ISSUE AND STANDARD OF REVIEW
¶9 	The Drews contend that the district court erroneously
granted 	summary 	judgment 	in 	favor 	of 	Pacific 	and 	that
judgment should have been entered in their favor. “We review a
district 	court’s 	decision 	to 	grant 	summary 	judgment 	for
(…continued)
premium financing debt,” to which an RSN employee answered
“no.” Thus, on paper, Pacific had no way of knowing that the
Drews 	acquired 	the 	policy 	solely 	for 	investment 	purposes,
although their ages would appear to suggest that possibility.

Drew v. Pacific Life Insurance Company
20160314-CA 	6 	2019 UT App 125
correctness.” Bodell Constr. Co. v. Robbins, 2009 UT 52, ¶ 16, 215
P.3d 933.
ANALYSIS
¶10 	On 	appeal, 	the 	Drews 	argue 	that 	the 	district 	court
misapplied agency law when it concluded that Pacific was not
vicariously liable for the misrepresentations made by RSN’s
employees. “Under principles of vicarious liability, a principal is
held responsible for the tortious acts of an agent acting within
the 	scope 	of 	the 	agent’s 	authority.” 	Wardley 	Better 	Homes
& Gardens v. Cannon, 2002 UT 99, ¶ 19, 61 P.3d 1009. Thus, in
order to determine whether Pacific is vicariously liable for the
misrepresentations of RSN’s employees, we must answer two
questions. First, we must decide whether an agency relationship
existed between Pacific and RSN. If we conclude that an agency
relationship did exist, we must then determine whether RSN’s
employees acted within the scope of their authority in their
dealings with the Drews.
I. Agency Relationship
¶11 	Given its conclusion on the scope of RSN’s authority, the
district court deemed it unnecessary to determine whether an
agency 	relationship 	existed 	between 	Pacific 	and 	RSN. 	The
parties disagree about whether such a relationship existed.
¶12 	The Insurance Code suggests that the existence of an
agency relationship turns on whether an insurance salesperson
is a “producer for the insurer” or a “producer for the insured.”
See Utah Code Ann. § 31A-1-301(88) (LexisNexis 2010).5 If a
5. We cite the provision in effect when the Drews were solicited
and bought their policies. But this provision, with minimal
variations in numbering and phraseology, has been in effect
(continued…)

Drew v. Pacific Life Insurance Company
20160314-CA 	7 	2019 UT App 125
producer is “compensated directly or indirectly by an insurer
for selling, soliciting, or negotiating an insurance product of
that insurer,” that producer is a producer for the insurer and
is therefore its agent. See id. § 31A-1-301(88)(b)(i). In contrast, if
a producer is “compensated directly and only by an insurance
customer,” that producer is a producer for the insured and is
not 	an 	agent 	of 	the 	insurance 	company. 	See 	id.
§ 31A-1-301(88)(b)(ii)(A).
¶13 	It 	is 	clear 	from 	the 	record 	that 	the 	RSN 	employees
received compensation directly from Pacific. Thus, under the
plain 	terms 	of 	the 	Insurance 	Code, 	RSN’s 	employees 	were
producers for Pacific and were therefore acting as its agents.
¶14 	Nevertheless, Pacific argues that RSN’s employees were
independent insurance brokers rather than its agents. In support
of this argument, Pacific relies on Vina v. Jefferson Insurance Co.,
761 P.2d 581 (Utah Ct. App. 1988), in which this court analyzed
whether an insurance salesperson was an agent or a broker. See
id. 	at 	584–86. 	In 	Vina, 	we 	articulated 	some 	relevant
considerations, including the discretion of the salesperson, the
salesperson’s role as an intermediary between the insurance
company and the prospective insured, and the salesperson’s
ability to bind the insurance company. Id.
¶15 	Importantly, Vina predates the current statutory regime,
see supra ¶ 12 n.5, and we qualified our decision in that case by
stating that it was made “under the controlling statutes” in effect
(…continued)
continuously 	since 	April 	30, 	2001. 	See 	Utah 	Code 	Ann.
§ 31A-1-301 (LexisNexis 2003) (amendment notes). See also id.
§ 31A-1-301(83); id. § 31A-1-301(85) (2005); id. § 31A-1-301(88)
(2010); id. § 31A-1-301(94) (2017); id. § 31A-1-301(95) (Supp.
2018).

Drew v. Pacific Life Insurance Company
20160314-CA 	8 	2019 UT App 125
at the time, 761 P.2d at 585. The Insurance Code has since
streamlined the agency determination in the insurance context,
allowing courts to focus on how the insurance salesperson is
compensated. See Utah Code Ann. § 31A-1-301(88). Thus, given
Vina’s reliance on an outdated statute and the plain language of
the now-controlling statute, the analysis in our previous decision
is 	of 	limited 	utility 	at 	best. 	In 	any 	event, 	Vina 	is 	readily
distinguishable from the case before us because the salesperson
in Vina “was not specifically authorized to solicit insurance or
otherwise act on behalf of” the insurance company. Vina, 761
P.2d at 584. Here, Pacific specifically appointed RSN as its
producer and authorized RSN to solicit and procure insurance
applications on its behalf.
¶16 	Pacific contends that this interpretation of the Insurance
Code will create a “per se agency relationship . . . , thereby
imposing strict liability on the insurer.” We disagree. While we
recognize that the Insurance Code “does not supplant ordinary
legal principles of agency,” see id. at 585, we do not read the
pertinent provisions as inconsistent with general agency law.
¶17 	The Insurance Code provides as follows:
There 	is 	a 	rebuttable 	presumption 	that 	every
insurer 	is 	bound 	by 	any 	act 	of 	its 	appointed
licensee performed in this state that is within the
scope 	of 	the 	appointed 	licensee’s 	actual 	(express 	or
implied) or apparent authority, until the insurer has
canceled the appointed licensee’s appointment and
has made reasonable efforts to recover from the
appointed 	licensee 	its 	policy 	forms 	and 	other
indicia of agency.
Utah 	Code 	Ann. 	§ 	31A-23a-405(2) 	(emphasis 	added). 	The
Insurance Code simplified but did not alter the standard of
liability 	applicable 	to 	agency 	relationships 	in 	the 	insurance
context. See Zions Gate R.V. Resort, LLC v. Oliphant, 2014 UT App

Drew v. Pacific Life Insurance Company
20160314-CA 	9 	2019 UT App 125
98, ¶ 6, 326 P.3d 118 (stating that a principal is liable if its agent
acts pursuant to its actual or apparent authority). Under both the
common law and the revised statute, principals are liable for the
tortious acts of their agents when the agents act within the scope
of their authority. Thus, the Insurance Code’s outline of agency
relationships in the context of insurance producers does not, as
Pacific suggests, impose “strict liability on the insurer for all of
the acts of the appointed individual or entity.”
II. Scope of Authority
¶18 	Having 	concluded 	that 	RSN 	and 	its employees were
agents of Pacific, we must now analyze the scope of RSN’s
authority 	and 	whether 	it 	acted 	within 	that 	authority 	in
misrepresenting the advisability of certain Pacific life insurance
policies for the Drews. “Under principles of vicarious liability, a
principal is held responsible for the tortious acts of an agent
acting within the scope of the agent’s authority.” Wardley Better
Homes & Gardens v. Cannon, 2002 UT 99, ¶ 19, 61 P.3d 1009.
¶19 	Pacific first argues that RSN’s employees acted outside
the scope of their authority because the contract limited RSN
to 	soliciting 	and 	procuring 	applications; 	the 	contract
did 	not 	authorize 	RSN 	to 	bind 	Pacific 	to 	any 	contractual
agreement. In so arguing, Pacific misapprehends the extent of
agency liability. Agents are entitled to “do those acts which
are 	incidental 	to, 	or 	are 	necessary, 	usual, 	and 	proper
to 	accomplish 	or 	perform, 	the 	main 	authority 	expressly
delegated to the agent.” Zions First Nat’l Bank v. Clark Clinic
Corp., 	762 	P.2d 	1090, 	1094 	(Utah 	1988). 	Although 	RSN’s
employees may have lacked the authority to create a binding
contract 	on 	behalf 	of 	Pacific, 	they 	could, 	in 	the 	course 	of
solicitation, 	“induce 	the 	purchase 	of 	a 	policy 	. 	. 	. 	by
misrepresenting the nature of a product or policy term.” See Dias
v. Nationwide Life Ins. Co., 700 F. Supp. 2d 1204, 1221 (E.D. Cal.
2010). Thus, the proper inquiry is not limited to whether RSN

Drew v. Pacific Life Insurance Company
20160314-CA 	10 	2019 UT App 125
could 	legally 	bind 	Pacific 	but 	is 	more 	appropriately
characterized 	as 	the 	broader 	question 	of 	whether 	RSN’s
employees were acting within the scope of their authority when
they 	misrepresented 	to 	the 	Drews 	the 	advisability 	of 	their
acquiring Pacific’s life insurance policies.
¶20 	Pacific also directs our attention to another provision in
its 	contract 	with 	RSN 	that 	expressly 	prohibited 	RSN 	from
soliciting and procuring insurance applications for products that
did not “meet the customer’s insurance needs and financial
objectives.”6 Thus, citing Bodell Construction Co. v. Stewart Title
Guaranty Co., 945 P.2d 119 (Utah Ct. App. 1997), Pacific argues
that it should not be held liable for RSN’s solicitations in this
case because, as Pacific sees it, an agent acts outside of his or her
authority “where the authority to perform the specific task has
been expressly limited.” In Bodell, a principal limited its agent to
issuing title insurance. Id. at 122. The agent, however, also took it
upon itself to provide escrow services, despite having signed a
contract prohibiting it from engaging in “escrow business.” Id.
Thus, because we concluded that the issuance of title insurance
did 	not 	necessarily 	require 	the 	agent 	to 	perform 	escrow
functions, and the insurer expressly prohibited it from acting as
its agent in “escrow business,” we held that the agent acted
outside the scope of its authority in providing escrow services.
Id. at 124–25.
6. Pacific notes that RSN’s employees knew that the Drews did
not require another $1.5 million life insurance policy in addition
to the $1.5 million policy they already had with PHL. Indeed,
from the standpoint of the typical reason for acquiring life
insurance—providing 	for 	dependents 	upon 	the 	unexpected
death of the insured—the Drews’ need for life insurance in any
amount is at least questionable. Of course, this would have been
as obvious to Pacific, who wrote the policy, as it was to RSN,
who solicited the policy.

Drew v. Pacific Life Insurance Company
20160314-CA 	11 	2019 UT App 125
¶21 	Bodell is factually distinguishable from this case. In Bodell,
the agent was performing a collateral function distinct from the
activities it was authorized to perform, namely, the performance
of escrow services. Id. Here, RSN’s employees were authorized
to solicit life insurance policies, and that is precisely what they
did—albeit in an unprofessional, if not tortious, manner. See
Restatement (Second) of Agency § 230 (Am. Law Inst. 1958) (“An
act, although forbidden, or done in a forbidden manner, may be
within the scope of employment.”). Indeed, a contrary rule to
that 	stated 	in 	the 	Restatement 	section 	just 	quoted 	would
essentially 	enable 	principals 	to 	eliminate 	vicarious 	liability
through adroitly crafted contractual provisions.7
¶22 	The United States Supreme Court has stated that “when
a salesperson lies to a customer to make a sale, the tortious
conduct is within the scope of employment because it benefits
the employer by increasing sales, even though it may violate
the employer’s policies.” Burlington Indus., Inc. v. Ellerth, 524 U.S.
742, 756 (1998). See also Restatement (Third) of Agency § 7.07
7. For example, in Carter v. Bessey, 93 P.2d 490 (Utah 1939), a
company prohibited its deliverymen from using the delivery
truck for personal reasons. Id. at 491. One of the company’s
agents completed his delivery route, drove the truck to purchase
a Christmas tree for his family, and struck a pedestrian. Id. The
Utah Supreme Court held that the company’s prohibition did
not excuse the company from liability. Id. at 493. The court noted
that the “doctrine of respondeat superior exists irrespective of
contract” and that principals may still be liable even when
agents 	act 	“contrary 	to 	the 	express 	instructions 	of 	the
[principal].” Id. And rightly so. If we followed Pacific’s argument
to 	its 	logical 	conclusion, 	trucking 	companies 	that 	expressly
forbid drunk, drowsy, or negligent driving could avoid liability
for the torts of their agents by contractually prohibiting driving
in such a manner.

Drew v. Pacific Life Insurance Company
20160314-CA 	12 	2019 UT App 125
cmt. 	d 	(Am. 	Law 	Inst. 	2006) 	(“[W]hen 	an 	employee’s 	job
duties 	include 	making 	statements 	to 	prospective 	customers
to 	induce 	them 	to 	buy 	from 	the 	employer, 	intentional
misrepresentations 	made 	by 	the 	employee 	are 	within 	the
scope of employment unless circumstances establish that the
employee has departed from it.”). Courts that have considered
the issue in the context of the sale of insurance products have
routinely held insurance companies vicariously liable for the
fraudulent misrepresentations made by their agents. See, e.g.,
Weyand v. Union Central Life Ins. Co., No. 30-2013-00633423, 2016
WL 750433, at *7 (Cal. Ct. App. Feb. 26, 2016); Pan American Life
Ins. Co. v. Roethke, 30 S.W.3d 128, 132–33 (Ky. 2000); Chicago Title
Ins. Co. v. Washington State Office of Ins. Comm’r, 309 P.3d 372,
381–83 (Wash. 2013). See also Cook v. John Hancock Life Ins. Co.,
No. 7:12–cv–00455, 2015 WL 178108, at *9 (W.D. Va. Jan. 14, 2015)
(denying a motion to dismiss because the misrepresentations
about a life insurance policy “were arguably within the scope of
[the agent’s] actual or apparent authority”).
¶23 	Weyand bears a strong resemblance to the facts of this
case. In Weyand, an insurance agent convinced a plaintiff to
purchase $10 million worth of life insurance policies for resale on
the secondary market, claiming that such a tactic was a “no-risk
investment opportunity.” 2016 WL 750433, at *1. As was the case
with the Drews, the plaintiff in Weyand was unable to resell the
policies and they lapsed after the plaintiff could no longer afford
to 	pay 	the 	steep 	premiums. 	Id. 	The 	insurance 	company
contended that it could not be held liable because it expressly
prohibited 	its 	agent 	from 	selling 	policies 	to 	insureds 	who
intended to resell them on the secondary market. Id. at *4. The
California 	Court 	of 	Appeal 	disagreed, 	reasoning 	that 	the
“ordinary scope” of the acts entrusted to the agent “included not
only selling policies, but also describing the policies and making
representations 	to 	potential 	purchasers 	about 	the 	policies’
coverage, costs, and other characteristics.” Id. at *5. The court
then noted that the ability to resell a policy on the secondary

Drew v. Pacific Life Insurance Company
20160314-CA 	13 	2019 UT App 125
market “is a characteristic of the policy an insurer reasonably
could expect an agent to discuss with a potential purchaser.” Id.
¶24 	We agree that making representations about a policy,
including the ability to resell it, is consistent with the general
work with which RSN was entrusted, that is, solicitation of life
insurance policies.8 Further, RSN’s actions inarguably served
Pacific’s interest. RSN’s representations resulted in the issuance
of a Pacific policy and in the Drews making premium payments
directly to Pacific. Accordingly, RSN’s employees were acting
within the scope of their authority. See M.J. v. Wisan, 2016 UT 13,
¶ 54, 371 P.3d 21.
¶25 	We 	believe 	our 	conclusion 	is 	fully 	in 	accord 	with
well-established principles of agency law. Insurance and its
corresponding 	markets 	are 	extremely 	complicated, 	and
insurance producers are often the only person or entity that
consumers 	deal 	with 	when 	making 	decisions 	about 	their
insurance 	needs. 	It 	makes 	little 	sense 	to 	allow 	insurance
companies to grant broad solicitation authority to their agents—
who 	inevitably 	make 	many 	representations 	to 	prospective
insureds in hopes of closing a deal—and accept the benefits
therefrom without holding them accountable for the damages
resulting from those very same representations. See Restatement
(Second) of Agency § 8A cmt. a (Am. Law Inst. 1958) (“It would
be unfair for an enterprise to have the benefit of the work of its
agents without making it responsible to some extent for their
excesses and failures to act carefully.”).
8. The Insurance Code defines soliciting as “attempting to sell
insurance” or “asking or urging a person to apply for . . . a
particular kind of insurance . . . from a particular insurance
company.” Utah Code Ann. § 31A-23a-102(13) (LexisNexis 2010).
The representations made by RSN’s employees fall within the
ambit of this definition.

Drew v. Pacific Life Insurance Company
20160314-CA 	14 	2019 UT App 125
CONCLUSION
¶26 	The 	district 	court 	erroneously 	granted 	summary
judgment in favor of Pacific. An agency relationship existed
between Pacific and RSN, and RSN’s employees were acting
within 	the 	scope 	of 	their 	authority 	when 	they 	made
misrepresentations 	regarding 	life 	insurance 	policies 	to 	the
Drews. We therefore reverse the decision of the district court
and remand so that it may enter partial summary judgment in
favor of the Drews on the issue of vicarious liability9 and then
proceed with trial or such other proceedings as may now be
appropriate.
POHLMAN, Judge (dissenting):
¶27 	I 	respectfully 	dissent 	from 	this 	decision 	because 	I
regrettably conclude that we lack jurisdiction to consider this
appeal.
¶28 	As the majority correctly notes, the rule 54(b) certification
entered in this case is flawed and thus does not properly invoke
our jurisdiction. And while I agree that we have discretion to
treat certain rule 54(b) certifications as petitions for interlocutory
appeal, Utah R. App. P. 5(a), I do not agree that this case
warrants 	this 	particular 	treatment. 	Converting 	a 	rule 	54(b)
9. 	In 	doing 	so, 	we 	recognize 	that 	the 	scope 	of 	an 	agent’s
authority is ordinarily a question of fact. See Christensen v.
Swenson, 874 P.2d 125, 127 (Utah 1994). But because RSN’s
employees 	were 	clearly 	acting 	within 	the 	scope 	of 	their
authority, given the record before us and the concession of both
sides that the material facts are not in dispute, we decide the
issue as a matter of law. See id.; Birkner v. Salt Lake County, 771
P.2d 1053, 1057 (Utah 1989).

Drew v. Pacific Life Insurance Company
20160314-CA 	15 	2019 UT App 125
certification into an interlocutory appeal “is an allowance that
we should wield judiciously and sparingly,” and I think the
better course of action would be to remand the case to the
district court where the parties would have the opportunity to
seek a compliant certification of the relevant orders. See Copper
Hills Custom Homes, LLC v. Countrywide Bank, FSB, 2018 UT 56,
¶ 29 n.15, 428 P.3d 1133.