Lee v. Ranger Ins.

2006 UT 66
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
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George M. Lee and Gerald Lee, 	No. 	20050725
Plaintiffs and Petitioners,
v.
Robert P. Thorpe, The Ranger
Insurance Company, and Miles Walter 	F I L E D
Langley,
Defendants and Respondents. 	October 31, 2006
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Eighth District, Vernal Dep’t
The Honorable A. Lynn Payne
No. 000800126
Attorneys: 	Gregory J. Sanders, Salt Lake City, for plaintiffs
Robert Thorpe, Grand Junction, CO, pro se
Julianne Blanch, David Mull, Salt Lake City, for
Ranger Insurance
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On Certiorari to the Utah Court of Appeals
NEHRING, Justice:
¶1 	After greeting Gerald Lee with a handshake, Miles
Langley fastened handcuffs to his wrists. 	Gerald Lee (“Gerald”)
was a fugitive from Colorado. 	Miles Langley (“Langley”),
described in the district court record as “a large man,” was a
bail recovery agent, a calling known to most as a bounty hunter.
Langley was licensed to practice his trade in Colorado, where
Gerald was wanted, but not in Utah, where Gerald was apprehended.
Gerald and his brother, George Lee (“George”), sued Langley and
the entities associated with the bail bond that Gerald had
obtained to gain his freedom in Colorado.
¶2 	We granted certiorari to determine whether the public
policy of Utah permits a bail recovery agent who is licensed in
another state, but not in Utah, to apprehend a fugitive in Utah
when the fugitive has consented to the apprehension. 	We conclude

1 We note that there is considerable disagreement over
several facts in this case, most notably the precise relationship
between Langley and A-1 Bail Bonds and exactly what transpired in
Gerald’s home. 	As some of the Plaintiffs’ claims were dismissed
via summary judgment, we present their version of the facts.
No. 20050725 	2
that it does when the other state’s agent licensing requirements
are substantially similar to Utah’s.
FACTUAL AND PROCEDURAL HISTORY1
¶3 	In 1998, Gerald was arrested twice in Colorado. 	To
gain his release from custody pending the disposition of the
charges he faced, Gerald bought two bail bonds from A-1 Bail
Bonds (“A-1”), a Colorado bonding agency owned by Robert Thorpe.
As a condition to obtaining the bonds, Gerald entered into two
identical bail bond applications and contracts with Ranger
Insurance Company (“Ranger”), a bail bond surety.
¶4 	Gerald agreed to the terms under the bail contracts,
which stated:
1. 	Ranger shall have control and
jurisdiction over me during the term for
which my bail bond(s) is executed and shall
have the right to apprehend and surrender me
to the proper officials at any time for
violation of my bail bond(s) obligations to
the Court and Ranger as provided by law.
2. 	It is understood and agreed that any one
of the following actions by me shall
constitute a breach of my obligations to
Ranger and that Ranger and/or its Agent shall
have the right to forthwith apprehend and
surrender me in exoneration of my bail
bond(s):
a. 	If I depart the jurisdiction of the
court without written consent of
the court and Ranger or its Agent.
. . . .
3. 	If I depart the jurisdiction of the
Court wherein my bail bond(s) is posted by
Ranger for any reason, and I am captured by
Ranger and/or its Agent . . . in a State
other than the one in which my bail bond(s)
is posted, I hereby agree to voluntarily
return to the State of original jurisdiction,

3 	No. 20050725
and I hereby waive extradition proceedings
and further consent to the application of
such reasonable force as may be necessary to
effect such return.
¶5 	Gerald soon put these contract terms to the test. 	He
fled Colorado, failed to appear for court hearings, and chose
Utah as his sanctuary. 	A-1 hired Langley to apprehend Gerald.
Langley inquired about Gerald’s whereabouts with the Uinta County
Sheriff, who directed him to the home of Gerald’s brother George
in Naples, Utah.
¶6 	Langley drove to Naples. 	Upon arriving at George’s
home, Langley gained entry by telling George that he represented
someone interested in hiring Gerald as a mechanic. 	When Gerald
appeared, Langley shook his hand and attempted to handcuff him.
Gerald resisted. 	Both George and Gerald sustained injuries in
the ensuing, brief melee. 	Langley then removed Gerald from the
home to his car, and George called the police. 	Police officers
promptly arrived at the scene and issued citations to each of the
men but allowed Langley to take Gerald with him pursuant to the
bail contracts. 	Langley returned Gerald to Colorado.
¶7 	The Plaintiffs, Gerald and George, sued Langley,
Mr. Thorpe, and Ranger for assault and battery, reckless
endangerment, and false imprisonment. 	The case went to trial.
The trial court directed a verdict for the Defendants on the
Plaintiffs’ false imprisonment claim. 	The jury returned a
verdict in favor of Langley on the Plaintiffs’ claims for assault
and reckless endangerment.
¶8 	The Plaintiffs appealed to the court of appeals, which
rejected all of their claims, despite finding that Langley’s
apprehension of Gerald violated Utah law governing bail
enforcement agents.
¶9 	We granted certiorari to determine the sole issue of
whether a bail agreement violates public policy when it purports
to permit a bail enforcement agent not licensed in Utah to
apprehend a fugitive.
ANALYSIS
¶10 	From the outset of this lawsuit, the parties have
wrangled over whether Langley’s apprehension of Gerald in Utah,
where Langley was not licensed, was legal. 	The court of appeals
analyzed Langley’s actions under Utah’s Bail Bond Recovery Act,
Utah Code Ann. §§ 53-11-101 to -124 (2002), and concluded that

No. 20050725 	4
Langley’s conduct, if prosecuted, would constitute a class A
misdemeanor. 	Lee v. Langley, 2005 UT App 339, ¶¶ 12-15, 121 P.3d
33. 	The court maintained, however, that Langley’s susceptibility
to prosecution under the Act did not translate into civil
liability. 	Id. ¶ 15.
¶11 	The Defendants have insisted throughout that the common
law, not the Bail Bond Recovery Act, governs Langley’s conduct.
They cite the United States Supreme Court case of Taylor v.
Taintor, 83 U.S. 366 (1872), as the repository of the applicable
common law principle that “[w]hen bail is given, the [fugitive]
is regarded as delivered to the custody of his sureties. 	Their
dominion is a continuance of the original imprisonment. 	Whenever
they choose to do so, they may seize him . . . . 	They may pursue
him into another State.” 	Id. at 371. 	The Plaintiffs, on the
other hand, claim that the Bail Bond Recovery Act has superseded
the common law, rendering Taylor irrelevant.
¶12 	Despite the passion that this question has generated,
its answer is not central to our analysis. 	Obviously, if Taylor
controls, the apprehension was legal and Utah’s public policy
would not have been offended. 	The common law approach, however,
reaches its conclusion that extra-territorial apprehensions are
lawful by deriving inferences from the functional attributes of
bail. 	The notion that dominion of the bail surety over a
fugitive is a continuance of the original imprisonment is not
literally true, but is rather a concept that flows logically from
the roles played by the participants in the bail process--a
defendant, the imprisoning authority, and the surety that stood
accountable for a defendant’s performance of his obligations.
Within the common law justification for extra-territorial
apprehension of fugitives, however, there is no reference to
contract law, a circumstance that features prominently here.
¶13 	In this case, Gerald expressly consented to his
apprehension outside Colorado. 	The presence of contractual
assent to the very events that gave rise to this lawsuit shifts
the focus of this case away from an interpretation of the bail
process to a discussion of whether public policy constrains
Gerald from bargaining away benefits he might otherwise enjoy
under the Bail Bond Recovery Act. 	We conclude that Gerald’s bail
contract shielded the defendants from civil liability allegedly
incurred through its enforcement of the bail contract, even if
Gerald’s apprehension exposed Langley to criminal liability in
Utah.

5 	No. 20050725
I. 	THE RELATIONSHIP BETWEEN THE PLAINTIFFS AND THE DEFENDANTS
WAS ONE OF CONTRACT LAW, AND THEIR INTERACTIONS WERE CONSISTENT
WITH THAT CONTRACT
¶14 	Two separate and distinct legal relationships emerge
from the facts: 	the first between George and the Defendants
based solely on the terms of their contracts and the actions
stemming from those contracts, and the second between Langley and
the state of Utah based on his conduct and the criminal
liability, if any, that arose from it in violation of the Bail
Bond Recovery Act.
¶15 	Under his contractual relationship with the Defendants,
Gerald authorized his apprehension by A-1 or its agent and waived
any tort claims that might have arisen through reasonable
enforcement of the bail contracts. 	We agree with the court of
appeals’ observation that “when a conflict arises between parties
to a contract regarding the subject matter of that contract, the
contractual relationship controls, and parties are not permitted
to assert actions in tort in an attempt to circumvent the bargain
they agreed on.” 	Lee, 2005 UT App 339, ¶ 15 (citations omitted).
Nothing befell Gerald to which he had not consented. 	In other
words, Gerald endorsed the manner in which he was apprehended.
The fact that Langley may have violated Utah law when the
apprehension occurred is largely irrelevant to this case, just as
it would be if Langley had violated traffic laws during the
course of the apprehension.
¶16 	Of course, this analysis prevails only if the
underlying contract does not offend Utah’s public policy. 	In
this regard, no one has suggested that bail contracts are per se
unlawful. 	As a matter of public policy, we have assigned to bail
recovery agents an important role in making good the
constitutional promise of bail. 	Utah Const. art. I, §§ 8-9.
Accordingly, we honor the terms of bail contracts, including
terms that waive tort claims, so long as their terms or execution
do not violate Utah’s public policy. 	In this light, we now turn
to an examination of Utah’s public policy relating to bail.
II. 	ENFORCEMENT OF BAIL CONTRACTS BY THOSE QUALIFIED TO DO SO
SERVES PUBLIC POLICY
¶17 	This case requires us to pursue two public policy
inquiries. 	The first invites us to explore the public policy
underlying the bail system generally. 	The second inquiry,
closely connected to the first, requires us to examine the public
policy considerations relating to the Bail Bond Recovery Act.

No. 20050725 	6
A. 	Public Policy Issues of the Bail System
¶18 	Important and largely non-controversial societal
benefits underpin the constitutional guarantee of bail. 	See
generally Jonathan Drimmer, When Man Hunts Man: The Rights and
Duties of Bounty Hunters in the American Criminal Justice System,
33 Hous. L. Rev. 731 (1996). 	Not only does bail advance the
societal interest in not depriving accused parties of their
liberty while they still enjoy the presumption of innocence, but
it also contributes to the practical need to spare our citizens
the expense of confining all defendants while they await trial.
¶19 	The reliance on bail recovery agents, such as Langley
in this case, to enforce bail bond contracts is also sound public
policy. 	The use of bail recovery agents reduces the cost that
would otherwise be borne by law enforcement agencies in chasing
down defendants who have jumped bail. 	Bail recovery agents also
enjoy an enviable success rate, returning 99.2% of suspects. 	Id.
at 762. 	In fact, “[t]he ultimate beneficiaries of bounty
hunters’ comprehensive powers are the states themselves, who are
freed from the financial burdens of confining suspects until
trial, or searching for fugitives, while remaining assured that
those defendants appear for trial.” 	Id. at 764.
¶20 	Consequently, many limitations on the scope and
efficacy of the bail system are likely to be at odds with public
policy. 	Exposing bail recovery agents and their respective
agencies to personal liability for enforcing bail contracts is
just such a limitation. 	Utah has a strong interest in seeing
that fugitives from its criminal justice system are apprehended,
an interest that is at risk of being compromised if our state
erects unnecessary barriers to the enforcement of bail contracts.
¶21 	The converse is also true. 	There is little to
recommend the prospect of making Utah a safe haven for
out-of-state fugitives by making it increasingly difficult for
bail recovery agents from other states to track defendants into
Utah. 	See Boudreaux v. State, 1999 UT App 310, ¶ 27, 989 P.2d
1103.
B. 	Public Policy and the Utah Bail Bond Recovery Act
¶22 	The Bail Bond Recovery Act gives legislative expression
to the public policy that bail recovery agents meet certain
standards and that they acquire a license to demonstrate that
they have acquired the training and experience necessary to
perform their activities in this state. 	By deciding that
Gerald’s bail contracts were enforceable, even though Langley did

7 	No. 20050725
not have a license to practice his trade in Utah, we reaffirm the
general principle that an enforceable contract can coexist with a
statute that may conflict with its terms so long as the contract
does not offend the public policy to which the statute gives
voice.
¶23 	While we hold that the absence of a license is not,
standing alone, so offensive to public policy that it renders
Gerald’s bail contracts unenforceable, we express no opinion as
to whether the contracts would have been enforceable if Langley
had not established that he possessed the training and experience
necessary to acquire licensure under the Act.
¶24 	We have previously recognized that “[t]he term ‘public
policy’ is inherently not subject to precise definition.” 	Berube
v. Fashion Centre, Ltd., 771 P.2d 1033, 1042 (Utah 1989) (quoting
Petermann v. Int’l Bhd. of Teamsters, 174 Cal. App. 2d 184, 188,
344 P.2d 25 (1959)); see also Peterson v. Browning, 832 P.2d
1280, 1282 (Utah 1992). 	Although public policy eludes attempts
at precise definition, it may be understood as a matter of such
fundamental concern to society that the right of individuals to
order their affairs by contract may yield to society’s interest
in preserving or advancing the matter. 	Constitutions and
statutes are often the source of public policy. 	Id. 	Sometimes,
statutes contain purposeful legislative expressions of public
policy. 	See, e.g., Utah Code Ann. § 53A-12-201 (2002) (“It is
the public policy of this state that public education shall be
free.”). 	It is important to note, however, that “[t]his does not
mean that all statements made in a statute are expressions of
public policy.” 	Browning, 832 P.2d at 1282. 	Just as not every
statutory enactment rises to the level of public policy, conduct
that falls short of strict compliance with a statute may not
always constitute the type of public policy transgression
sufficient to warrant intervention in private contractual
relationships.
¶25 	The legislature has a clear public policy interest in
seeing to it that the procedures associated with the granting of
bail are fair and do not pose an undue threat to public safety.
While this objective is common to all governmental activities, it
is particularly true in the realm of criminal justice in general,
and bail recovery in particular, because of the public safety
concerns that attend the apprehension of fugitives. 	Bail
recovery activities undertaken by agents who do not possess the
training and experience deemed necessary to preserve public
safety may so offend public policy as to make unenforceable the
bail contracts that would otherwise permit apprehensions within
our borders.

No. 20050725 	8
¶26 	Here, it is undisputed that Langley was licensed as a
bail recovery agent in Colorado. 	Colorado and Utah share public
policy goals regarding bail recovery, and the licensing
requirements for bail recovery agents in Colorado are nearly
identical to those in Utah. 	As the court of appeals noted, “It
is uncontested that Langley would have had the statutory
authority to arrest [Gerald] but for his lack of a license.”
Lee, 2005 UT App 339, ¶ 15. 	Thus, the policies that the Bail
Bond Recovery Act seeks to promote were protected to the same
extent that they would have been had Langley been licensed in
Utah.
CONCLUSION
¶27 	The fact that Langley may have violated Utah law in the
apprehension of Gerald is irrelevant when evaluating the separate
relationship that arose from the bail contracts. 	The enforcement
of the bail contracts by a bail recovery agent, unlicensed but
qualified for licensure in Utah, did not violate the public
policy of Utah. 	Accordingly, we affirm the court of appeals.
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¶28 	Chief Justice Durham, Associate Chief Justice Wilkins,
Justice Durrant, and Justice Parrish concur in Justice Nehring’s
opinion.