Kubiak v. Pinson

2020 UT App 40

THE UTAH COURT OF APPEALS

JANET M. KUBIAK,
Appellant,
v.
MELINDA H. PINSON,
Appellee.

Opinion
No. 20190155-CA
Filed March 19, 2020

Fourth District Court, Provo Department
The Honorable James R. Taylor
No. 140401269

Leonard E. McGee and Peter R. Mifflin, Attorneys
for Appellant
Kathryn T. Smith, Attorney for Appellee

JUDGE DAVID N. MORTENSEN authored this Opinion, in which
JUDGES KATE APPLEBY and RYAN M. HARRIS concurred.

MORTENSEN, Judge:

¶1 Janet M. Kubiak sued Melinda H. Pinson for injuries
Kubiak claimed she suffered as a result of an automobile
accident. As allowed by Utah law, Kubiak elected to pursue her
claims via arbitration. Unsatisfied with the result of the
arbitration proceeding, Kubiak sought a de novo jury trial in the
district court. The jury found Pinson negligent in causing the
accident and some of Kubiak’s claimed injuries, but it also found
that the medical expenses resulting from the accident were less
than $3,000. Based on this finding, the district court entered a
judgment of no cause of action. Kubiak appeals, claiming that
the district court erroneously denied her motion for summary
judgment filed prior to trial and further erred in precluding
evidence of Pinson’s insured status at trial. We affirm.
Kubiak v. Pinson

BACKGROUND

¶2 Kubiak lived in Michigan but was visiting Utah on July 2,
2012 when Pinson’s vehicle rear-ended Kubiak’s rental vehicle.
The rear-end collision left scratches on the bumper of Kubiak’s
vehicle. No one received medical treatment at the scene of the
accident. The next day, Kubiak returned to Michigan and
initiated medical treatment. According to Kubiak, she incurred
approximately $30,000 in medical expenses to treat injuries
related to the accident. All of those medical expenses were paid
by her automobile insurer under her personal injury protection
(PIP) benefits coverage.

¶3 In September 2014, Kubiak filed suit against Pinson,
seeking recovery for her personal injuries and opting to pursue
arbitration under Utah Code section 31A-22-321. 1 See Utah Code
Ann. § 31A-22-321 (LexisNexis 2017). 2 Unhappy with the
arbitration results, Kubiak requested a trial de novo in the
district court. Kubiak moved for summary judgment, claiming

1. Under section 31A-22-321, a plaintiff may elect to pursue a
personal injury claim through arbitration—colloquially referred
to as a “321 Arbitration”—in exchange for capping any potential
recovery at $50,000 or the defendant’s liability insurance limits,
whichever is less, in addition to any amounts available under
PIP or property coverages. See Utah Code Ann.
§ 31A-22-321(2)(a), (d) (LexisNexis 2017). Either party to the
arbitration, if dissatisfied with the result, may seek a trial de
novo in the district court, but if a plaintiff so elects and does not
receive at least $5,000 and improve upon the arbitration award
by at least 30%, the plaintiff becomes liable for enhanced costs.
See id. § 31A-22-321(11), (13).

2. The statutory provisions in effect at the relevant time do not
differ in any material way from the current provisions. We
therefore cite the current provisions for convenience.

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Kubiak v. Pinson

that Pinson admitted liability by pleading an alternative
affirmative defense for a set-off against any recovery by the
amount of the PIP benefits paid to Kubiak. Pinson did not
contest the facts asserted by Kubiak, but opposed the motion by
arguing, that as a matter of law, there was no admission and
Kubiak had failed to establish that Pinson was liable. The district
court denied Kubiak’s motion, observing that Kubiak’s
“argument is faulty. . . . [Pinson] has not admitted fault. The
mere assertion of a set-off . . . does not foreclose a determination
of fault.”

¶4 Before trial, Kubiak submitted a motion in limine seeking
to admit certain insurance evidence. Pinson opposed the motion,
arguing the admission of such evidence was contrary to rule 411
of the Utah Rules of Evidence. The district court denied the
motion. At trial, Kubiak again sought to introduce the insurance
evidence to rebut Pinson’s expert testimony alleging that Kubiak
was motivated by secondary gain. 3 The court again declined to
admit the insurance evidence.

3. Secondary gain is known as the “financial, emotional, or other
type of benefit” or incentive which serves to encourage the
prolongation or exacerbation of an injury. Dahlin v. Holmquist,
766 P.2d 239, 240 (Mont. 1988); Orndorff v. Commonwealth, 613
S.E.2d 876, 883 n.6 (Va. Ct. App. 2005) (“[Expert] defined
‘secondary gain’ as a benefit accruing to the patient as a result of
the diagnosis other than the benefit to be gained by treatment of
the disorder.”), aff'd in part, rev'd in part, 628 S.E.2d 344 (Va.
2006); see also Mikesell v. Berryhill, No. 15-1026 GJF, 2017 WL
3608239, at *9 n.12 (D.N.M. Feb. 23, 2017) (“Types of secondary
gain include using illness for personal advantage, exaggerating
symptoms, consciously using symptoms for gain, and
unconsciously presenting symptoms with no physiological
basis.” (cleaned up)); Lawrence v. MountainStar Healthcare,
2014 UT App 40, ¶ 46, 320 P.3d 1037 (“Under the secondary gain
(continued…)

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¶5 At the conclusion of trial, the jury found Pinson was
negligent and caused at least some of Kubiak’s injuries, but also
found that the medical expenses caused by the accident were
less than $3,000. Based upon the requirements of Utah Code
section 31A-22-309, 4 the district court entered a judgment of no
cause of action and dismissed Kubiak’s claims. Kubiak appeals.

ISSUES AND STANDARDS OF REVIEW

¶6 Kubiak raises two issues on appeal. First, she contends
the district court erred in denying her motion for summary
judgment. 5 The “denial of summary judgment presents a

(…continued)
theory some patients . . . may not be very motivated to get well
because of how it might adversely impact . . . compensation and
related civil litigation.” (cleaned up)).

4. “A person who has or is required to have direct benefit
coverage under a policy which includes personal injury
protection may not maintain a cause of action for general
damages arising out of personal injuries alleged to have been
caused by an automobile accident, except where the person has
sustained one or more of the following: . . . medical expenses to a
person in excess of $3,000.” Utah Code § 31A-22-309 (LexisNexis
2017).

5. “Following a trial, . . . appellate courts may review the denial
of a pretrial summary judgment motion only if the motion was
decided on purely legal grounds.” Hone v. Advanced Shoring
& Underpinning, Inc., 2012 UT App 327, ¶ 6, 291 P.3d 832
(cleaned up). In this case, the issues presented in Kubiak’s
summary judgment motion—whether Pinson’s claimed offset
constituted an admission of liability and whether the undisputed
facts entitled Kubiak to summary judgment—were legal issues
(continued…)

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Kubiak v. Pinson

question of law and is reviewed for correctness.” Liley v. Cedar
Springs Ranch Inc., 2017 UT App 166, ¶ 11, 405 P.3d 817. Upon
review, “all facts and the reasonable inferences to be made
therefrom” are construed in a light favorable to the nonmoving
party. Colosimo v. Gateway Cmty. Church, 2018 UT 26, ¶ 24, 424
P.3d 866 (cleaned up).

¶7 Second, Kubiak contends the district court erred in
excluding “evidence of insurance.” “We review a [district]
court’s exclusion of evidence for an abuse of discretion.” Daniels
v. Gamma West Brachytherapy, LLC, 2009 UT 66, ¶ 36, 221 P.3d 256
(cleaned up).

ANALYSIS

I. Summary Judgment

¶8 In response to Kubiak’s motion for summary judgment,
the district court ruled that an affirmative defense raised by
Pinson for a set-off against any recovery by the amount of the
PIP benefits paid to Kubiak by her insurer did not constitute an
admission of liability by Pinson and accordingly denied
Kubiak’s motion. 6 Kubiak challenges this conclusion by

(…continued)
to be decided by the court, not the jury. Accordingly, we review
the district court’s denial of Kubiak’s pretrial summary
judgment motion. See Normandeau v. Hanson Equip., Inc., 2009 UT
44, ¶¶ 9, 11, 215 P.3d 152.

6. In the seminal case of Allstate Insurance Co. v. Ivie, 606 P.2d
1197 (Utah 1980), our supreme court explored the legal effects of
a defendant’s compliance with Utah’s motor vehicle insurance
requirements. The court recognized that the legislature intended
to incentivize the purchase of automotive insurance by
(continued…)

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reasserting two positions on appeal. Kubiak contends that the
court erred in denying her motion, arguing that an alternative
affirmative defense of set-off constitutes an admission of
liability. Kubiak alternatively contends that the district court
erred by not granting summary judgment in her favor based on

(…continued)
bestowing certain tort protections for at-fault drivers who carry
insurance.
[T]here are two consequences to the owner of a motor
vehicle who fails to have the security required . . . : first,
he has no immunity from tort liability; second, he is
[p]ersonally liable for the benefits provided [by PIP
coverage]. The only logical inference is that if a party
has the security required . . . the no-fault insurance act
confers two privileges: first, he is granted partial tort
immunity; second, he is not personally liable for the
benefits provided [by PIP coverage].
Id. at 1200.

The Ivie court then explained how recovery against an
insured should be addressed at trial.
In such a situation, the injured party should plead only
for those damages for which he has not received
reparation under his first party insurance benefits. In
order to present a completely factual picture to the jury,
the injured party may wish to present evidence of all his
medical bills or other economic losses. The court may by
appropriate instruction, explain to the jury that these
economic losses have not been included in the prayer for
damages, because the injured party has previously
received reparation under his own no-fault insurance
coverage.
Id.

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certain statements of fact, present in her motion, that were
undisputed in Pinson’s responsive pleading. 7

¶9 “Summary judgment is appropriate only when there is no
genuine issue as to any material fact and the moving party is
entitled to a judgment as a matter of law.” Hone v. Advanced
Shoring & Underpinning, Inc., 2012 UT App 327, ¶ 6, 291 P.3d 832
(cleaned up); see Utah R. Civ. P. 56(a).

A. Assertion of Alternative Affirmative Defense

¶10 In her answer, Pinson first asserted that she was not liable
and second and alternatively she asserted that if she were found
liable generally, she could not be held responsible—as a matter
of statutory law couched in terms of a set-off—for any amounts
which had been paid by Kubiak’s PIP coverage. Kubiak asserts
that it “makes no sense to allow . . . the inconsistent positions”
given the “existing obligation” of Pinson’s insurer to reimburse
Kubiak’s insurer.

¶11 Utah law unequivocally allows a party to assert defenses
“in the alternative,” and a “pleading is not made insufficient by
the insufficiency of an alternative statement.” Utah R. Civ. P.
8(e). Further, a “party may state . . . legal and equitable defenses
regardless of consistency.” Id.; see also Helf v. Chevron U.S.A. Inc.,
2015 UT 81, ¶ 74, 361 P.3d 63 (explaining that Utah’s modern
pleading rules permit inconsistent defenses). Accordingly, the

7. Kubiak asserts that the district court erred by not treating the
undisputed facts as admitted in its consideration of the motion.
Our review of the record does not support such a conclusion. To
the contrary, the court’s ruling on the motion recites some of
Kubiak’s facts. As discussed infra ¶¶ 14–18, even taking the
undisputed facts as true, Kubiak failed to meet her summary
judgment burden of establishing each element of her claim.

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assertion of an affirmative defense in the alternative will not
serve as an admission of liability. See Utah R. Civ. P. 8(e).

¶12 Pinson’s claim to a set-off for the amount of the PIP
payments was made as an affirmative defense in the alternative.
As such, it was not an admission of liability. Affirmative
defenses serve to satisfy “the pleading rules . . . that . . . the
parties are entitled to . . . notice of the issues raised and an
opportunity to meet them.” Jones, Waldo, Holbrook & McDonough
v. Dawson, 923 P.2d 1366, 1374 (Utah 1996) (cleaned up); see also
Utah R. Civ. P. 8 advisory committee’s note (observing that the
general approach of the rule is to require “each party to disclose
its affirmative case early in the process so that the adversary
might evaluate its merits and focus the need for discovery”).
Pinson’s answer appropriately alerted Kubiak that in the event
Pinson were found liable for the accident, Pinson would take the
position that the damages for which she may be responsible
would not include those already covered by Kubiak’s PIP
benefits.

¶13 Because Pinson’s alternative affirmative defense was not
an admission of liability, the court correctly concluded that
Kubiak was not entitled to judgment as a matter of law.

B. Undisputed Facts in the Summary Judgment Motion

¶14 Kubiak asserted the following relevant facts to support
the claim of negligence against Pinson:

2. On July 2, 2012, . . . Pinson rear-ended the
plaintiff . . . .

....

4. [Kubiak] first noticed she was injured from the
accident, while still in Utah with feelings of stiffness and
soreness.

20190155-CA 8 2020 UT App 40
Kubiak v. Pinson

....

9. Plaintiff’s some of the plaintiff’s [sic] medical
expenses were paid under her Michigan [PIP] benefits.

10. [Kubiak] received at least $30,000 in Michigan [PIP]
benefits in connection with injuries sustained in this
Utah accident.

....

12. . . . Pinson has claimed an offset in her answer for
PIP benefits paid to [Kubiak].

Pinson did not dispute these facts in her response to the
summary judgment motion. Kubiak asserts that the undisputed
facts entitled her to summary judgment.

¶15 A movant who bears the burden of proof at trial must
establish each element of her claim to show that she is entitled to
judgment as a matter of law. Orvis v. Johnson, 2008 UT 2, ¶ 10,
177 P.3d 600. To succeed on her claim for negligence, Kubiak
needed to prove that (1) Pinson owed her a duty of care, (2)
Pinson breached that duty, and (3) the breach proximately
caused (4) Kubiak to suffer legally compensable damages. See
Wood v. United Parcel Service Inc., 2019 UT App 168, ¶ 8, 453 P.3d
949.

¶16 At most, the undisputed facts establish that Pinson’s
vehicle struck the rear of Kubiak’s vehicle, Kubiak experienced
some injury as a result of the accident, at least $30,000 was paid
to Kubiak in PIP benefits, and Pinson claimed a set-off for the
PIP benefits in the event that she were to be found liable. These
facts, however, do not entirely establish the requisite elements of
a negligence claim. The facts do not identify who breached a
duty or how it was breached. The facts do not even generally
assert how the accident occurred. The rear-end collision could

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have been caused by any number of factors, including negligent
conduct by either party.8 Viewed in a light most favorable to
Pinson, the facts merely established that the accident occurred—
a factual position that is insufficient to establish the negligence
elements of breach and cause.

¶17 Additionally, the facts recited by Kubiak in her summary
judgment motion—even if deemed undisputed—do not
establish what damages are sought from Pinson as a result of the
accident. Kubiak’s facts establish that her PIP benefits coverage
paid some, if not all, of her medical expenses but do not indicate
what expenses remain, if any. See Allstate Ins. Co. v. Ivie, 606 P.2d
1197, 1199 (Utah 1980). 9 The fact that Kubiak’s insurer paid her

8. While common sense may suggest that many rear-end
accidents are the fault of a trailing driver, that is not universally
the case. In all but the most clear-cut cases, questions of
negligence, including those involving rear-end accidents, are for
a jury to determine. Harris v. Utah Transit Auth., 671 P.2d 217, 220
(Utah 1983) (holding question of negligence in rear-end accident
“should have gone to the jury” for proximate cause
determination); Maltby v. Cox Constr. Co., 598 P.2d 336, 340 (Utah
1979) (holding requested instruction that rear-end collisions are
invariably the result of the negligence of the trailing driver was
properly refused).

9. It is worth emphasizing the guidance provided by our
supreme court in Ivie, namely, that an injured party should not
seek to recover its PIP benefits from an insured tortfeasor. 606
P.2d at 1203 (holding that a tortfeasor’s “personal liability does
not include PIP payments”). Rather, the insurer providing the
PIP benefits is entitled to a reimbursement from a tortfeasor’s
insurer as determined “by mandatory, binding arbitration
between the insurers.” Utah Code Ann. § 31A-22-309(6)(a)(ii)
(LexisNexis 2017); see also State v. Miller, 2007 UT App 332, ¶ 14,
170 P.3d 1141 (“[A] no-fault insurer’s only forum for recoupment
(continued…)

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PIP benefits to cover some of her medical expenses does not
establish the damages for which Pinson may be responsible as a
potential tortfeasor. See id. at 1203 (holding personal liability
distinct from PIP payments). Because Kubiak’s recitation of facts
did not assert damages beyond those covered by the PIP
payments—an overage for which Pinson would potentially be
personally liable—she cannot establish the damage element of
the negligence claim on her motion for summary judgment. 10

¶18 In sum, even if we presume that the facts asserted in
Kubiak’s summary judgment motion are undisputed, those facts
are not sufficient to entitle Kubiak to judgment as a matter of law

(…continued)
of PIP benefits is arbitration with the other insurance
provider.”). Accordingly, a defendant need not assert a set-off
for PIP benefit coverage because he cannot be personally liable
for repayment of the benefits under the statutory scheme. Ivie,
606 P.2d at 1201; Miller, 2007 UT App 332, ¶ 13 (“Tortfeasors
who maintain no-fault insurance on their vehicles are not
personally liable for PIP benefits and are immune from suit for
PIP-type claims.” (cleaned up)).

10. Kubiak’s argument alludes to an idea that the fact of
payment of PIP benefits by an injured party’s insurer should
satisfy the statutory prerequisite of establishing medical
expenses in excess of $3,000. See Utah Code Ann.
§ 31A-22-309(1)(a)(v). Our supreme court expressly rejected that
notion. See C.T. ex rel. Taylor v. Johnson, 1999 UT 35, ¶ 7 n.3, 977
P.2d 479 (“We reject [plaintiff-appellee’s] argument that the [PIP]
. . . made by his own insurer establishes the threshold amount
for his medical expenses. The mere fact that his PIP insurer paid
for medical expenses which the jury found were not related to
the accident should not be binding on [the defendant] for
purposes of establishing the medical expenses threshold and
exposing [the defendant] to liability for general damages.”).

20190155-CA 11 2020 UT App 40
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on all of the elements of her cause of action. Therefore, the
district court correctly denied Kubiak’s motion for summary
judgment.

II. Insurance Evidence

¶19 Kubiak sought to introduce “evidence of insurance to
rebut claims of secondary gain” asserted by Pinson’s expert. 11
“Evidence that a person was or was not insured against liability
is not admissible to prove whether the person acted negligently
or otherwise wrongfully. But the court may admit this evidence
for another purpose . . . .” Utah R. Evid. 411.

¶20 Kubiak alleged that Pinson caused the accident and
Kubiak’s resulting injuries. Pinson contested Kubiak’s assertion
and suggested that a reason for Kubiak’s claim could be
secondary gain. Kubiak sought to rebut the idea that she
initiated the lawsuit in pursuit of monetary gain by introducing
evidence that she and Pinson each were insured. In particular,
Kubiak claims she wanted to inform the jury that she had
“waived her right to collect any proceeds from . . . Pinson

11. Kubiak also suggests that the insurance evidence was
necessary to show a witness’s bias, arguing that because
Pinson’s insurer paid for the expert witness and funded some of
the studies relied upon by the expert, the expert was biased.
Because Kubiak does not adequately brief this issue, we decline
to address it. See Hahn v. Hahn, 2018 UT App 135, ¶ 20, 427 P.3d
1195 (declining to address inadequately briefed issues under rule
24(a)(8) of the Utah Rules of Appellate Procedure). We do,
however, note our skepticism that payment by an insurer of
reasonable expert fees on behalf of an insured could satisfy the
substantial connection required to show bias. See Daniels v.
Gamma West Brachytherapy, LLC, 2009 UT 66, ¶ 37, 221 P.3d 256
(adopting an approach that looks to whether the witness has a
direct interest in the outcome of the case).

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personally”—inferring that Pinson’s insurer would be
responsible for any damage award. Kubiak also wanted to show
that the statutory damage cap and her “obligation to fully
reimburse her own car insurer” would make it “impossible for
[her] to receive any proceeds”—negating any financial incentive
to litigate. In addition to being inaccurate, Kubiak’s
representations conflict with rule 411 of the Utah Rules of
Evidence. While a defendant’s insured status may be admissible
in certain cases, this is not such a case.

¶21 Kubiak did not waive her right to collect proceeds beyond
the PIP benefits she had already received. Had she done so, she
would have no basis for the suit against Pinson. Kubiak’s
position mischaracterizes the nature of the law. A claim for
general damages is viable only on the premise of a tortfeasor’s
personal liability. The fact that a tortfeasor may later be
indemnified by her insurer under a contractual agreement does
not transfer liability for the accident to the insurer. See Davis
County v. Jensen, 2003 UT App 444, ¶ 18, 83 P.3d 405 (holding
that plaintiff has no right of action against defendant’s insurer
directly). In the underlying lawsuit, the defendant’s insured
status is irrelevant. Kubiak’s argument also ignores that her
action sought general damages, a type of damage distinct from
PIP coverage. See Allstate Ins. Co. v. Ivie, 606 P.2d 1197, 1200
(Utah 1980) (“[An insured tortfeasor] does, however, remain
liable for customary tort claims, viz., general damages and
economic losses not compensated by the benefits paid under
[PIP coverage] . . . .”). 12 Additionally, as admitted by Kubiak in a
pleading before the district court, another financial incentive
Kubiak had was to “have the opportunity to present her claim to
her [underinsured motorist] carrier.” Therefore, Kubiak had both

12. Indeed, the only Michigan law Kubiak cites expressly
provides that her insurer’s right to reimbursement for benefits
paid does not apply to noneconomic (general) damages. Mich.
Comp. Laws § 500.3116(4) (2019).

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a personal claim against Pinson (for which Pinson would have
been indemnified) and a financial incentive to litigate.

¶22 In short, Kubiak wanted to signal to the jury that her
reason for bringing the suit was because Pinson was negligent
and that, as an insured party, Pinson’s insurer would be the sole
payor of any damage award. This is an insufficient basis to
circumvent rule 411. Kubiak’s evidence was impermissibly
designed to encourage the jury to be more favorable to Kubiak in
its findings and provide a greater damage award. See Reeves v.
Gentile, 813 P.2d 111, 120 (Utah 1991) (observing that rule 411
was adopted to assuage the “concern that knowledge of liability
insurance will increase the frequency of favorable plaintiff
verdicts and elevate damage awards”), overruled on other grounds
by Red Flame, Inc. v. Martinez, 2000 UT 22, 996 P.2d 540. Because
Kubiak sought to use the insurance evidence for irrelevant and
expressly prohibited purposes, the district court did not abuse its
discretion by excluding it. We therefore affirm the court’s
decision to exclude the insurance evidence.

CONCLUSION

¶23 We affirm the district court’s denial of Kubiak’s motion
for summary judgment and its decision to exclude the insurance
evidence.

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