Olseth v. Larson

2007 UT 29
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
----oo0oo----
Bertina Rae Olseth, No. 20051180
an individual,
Plaintiff and Appellant,
v.
F I L E D
Matthew D. Larson,
Defendant and Appellee. March 27, 2007
---
Federal Certification
Attorneys: D. Bruce Oliver, Salt Lake City, for plaintiff
J. Wesley Robinson, Salt Lake City, for defendant
---
On Certification from the United States Court of Appeals
for the Tenth Circuit, The Honorable Henry Baldock
DURRANT, Justice:
INTRODUCTION
¶1 This case is before us on certification of a question
of state law from the United States Court of Appeals for the
Tenth Circuit. The question to be addressed is this: “Is the
statute of limitations tolled under Utah Code Ann. § 78-12-35
when a person against whom a claim has accrued has left the state
of Utah and has no agent within the state of Utah upon whom
service of process can be made instead, but the person is
amenable to service pursuant to Utah’s long-arm statute, Utah
Code Ann. § 78-27-24?”
¶2 We hold that Utah Code section 78-12-35 (“Utah’s
tolling statute”) does toll the applicable statute of limitations
when a person against whom a claim has accrued has left the state
of Utah and has no agent within the state upon whom service of
process can be made, even where the person was at all times
amenable to service pursuant to Utah’s long-arm statute. The
plain language of the tolling statute, our well-settled

No. 20051180 2
precedent, and appropriate deference to the Legislature lead to
this result.
BACKGROUND
¶3 On May 15, 1998, Bertina Rae Olseth, having been left
handcuffed and unattended in Officer Matthew D. Larson’s police
vehicle with the engine running, attempted to steal that vehicle.
Larson shot Olseth while attempting to recover his vehicle. On
May 15, 2000, Olseth filed her first action in this matter in
federal district court against Salt Lake City Corporation (“the
City”), Salt Lake City Police Department, and various police
officers in their official capacities, including Larson.
Olseth’s complaint alleged civil rights violations resulting from
her arrest and the injuries she sustained when she was shot by
Larson. The only cause of action pled in Olseth’s complaint
relevant to this case was for an alleged 42 U.S.C. § 1983
violation based on her allegation of unlawful use of deadly
force.
¶4 The federal district court dismissed Olseth’s first
complaint on May 15, 2002, for failure to prosecute. On
October 11, 2002, Olseth filed her second complaint, adding new
causes of action against essentially the same parties but naming
Larson for the first time in his individual capacity. The City
moved for dismissal of all causes of action and parties. On
June 6, 2003, the court partially granted the City’s motion,
allowing only the “loss of limb or member” cause of action to
remain against the City and Larson.
¶5 On May 2, 2003, Olseth filed an Amended Motion for
Alternate Means of Service and a Second Motion for Enlargement of
Time. Because Larson was then an out-of-state defendant and
Olseth was unable to locate him, her motion requested alternative
service of process by publication or mail and an enlargement of
time to effect service. The district court granted this motion
on June 6, 2003.
¶6 Upon the stipulation of the parties, Olseth amended her
second complaint on September 17, 2003. Olseth’s amended
complaint named Larson in his individual capacity as the sole
defendant and asserted a cause of action against him under 42
U.S.C. § 1983 for alleged violations of her constitutional
rights.
¶7 Larson moved for summary judgment, arguing that the
court lacked personal jurisdiction over him because he was not
sued as an individual until Olseth filed her second complaint on
October 11, 2002, more than four years after the incident

1 Spackman v. Bd. of Educ., 2000 UT 87, ¶ 1 n.2, 16 P.3d
533.
2 95 U.S. 714 (1878).
3 No. 20051180
complained of occurred. Larson argued that, because Olseth sued
him for the first time in his individual capacity beyond the
applicable four-year statute of limitations period, her complaint
must be dismissed.
¶8 The district court granted Larson’s motion for summary
judgment but allowed Olseth ten days to research the statute of
limitations issue further and petition the court for
reconsideration.
¶9 Olseth timely filed a Motion to Alter or Amend Judgment
but failed to address the controlling authority of the case. The
district court denied Olseth’s motion, and she appealed the
district court’s ruling to the United States Court of Appeals for
the Tenth Circuit.
¶10 On December 16, 2005, the Tenth Circuit ruled in
Larson’s favor on one issue and certified the current issue to
us. We have jurisdiction pursuant to Utah Code section 78-2-
2(1).
STANDARD OF REVIEW
¶11 On certification from the federal court, we “answer the
legal questions presented” without “resolv[ing] the underlying
dispute.”1
ANALYSIS
¶12 The only question before us is whether Utah Code
section 78-12-35 tolls the applicable statute of limitations when
a person against whom a claim has accrued has left the state of
Utah and has no agent within the state upon whom service of
process can be made, but the person was at all times amenable to
service pursuant to Utah’s long-arm statute.
¶13 Utah’s tolling statute was designed to address a
problem that existed in the jurisdictional era of Pennoyer v.
Neff,2 that is to say, an era where personal jurisdiction was
difficult to obtain over out-of-state defendants. But in the era

3 326 U.S. 310 (1945).
4 The original tolling statute, which predated statehood,
read as follows:
If where the cause of action shall accrue
against a person, he is out of the Territory,
the action may be commenced within the term
herein limited, after his return to the
Territory; and if after the cause of the
action shall have accrued, he depart the
Territory, the time of his absence shall not
be part of the time limited for the
commencement of the action.
Act of Feb. 16, 1872, ch. XIII, § 23, 1872 Utah Laws 18, 23.
No. 20051180 4
ushered in by International Shoe,3 obtaining such jurisdiction is
no longer so difficult. Basically, the tolling statute was
designed to address a problem that no longer exists and the
statute is, in that sense, an anachronism. Despite the fact that
the tolling statute is anachronistic, however, it is clear, and
it provides that a statute is tolled during that period where a
defendant is absent from the state.
¶14 In this opinion, we will first discuss the creation and
history of Utah’s tolling statute, framing the proper context in
which to analyze the certified question. Second, we will discuss
the plain-language application of the tolling statute. Third, we
will discuss our prior case law interpreting the tolling statute.
Finally, we will discuss the appropriate deference to the
Legislature in deciding the question presented to us.
¶15 Ultimately, we hold that Utah Code section 78-12-35
does toll the applicable statute of limitations when a person
against whom a claim has accrued has left the state of Utah and
has no agent within the state upon whom service of process can be
made, even where the person was at all times amenable to service
pursuant to Utah’s long-arm statute.
I. THE HISTORY OF UTAH’S TOLLING STATUTE
¶16 Utah Code section 78-12-35 does not differ materially
from its original version enacted in 1872.4 The current tolling
statute reads as follows:
Where a cause of action accrues against a
person when he is out of the state, the
action may be commenced within the term as
limited by this chapter after his return to

5 Utah Code Ann. § 78-12-35 (2005).
6 See Pennoyer v. Neff, 95 U.S. 714 (1878) (holding that in
personam jurisdiction could be obtained over a defendant only if
the defendant is personally within the state’s territory or
voluntarily appears).
7 See Int’l Shoe Co. v. Washington, 326 U.S. 310, 316
(1945).
8 Id. (internal quotation marks omitted).
9 See Utah Code Ann. § 78-27-24.
5 No. 20051180
the state. If after a cause of action
accrues he departs from the state, the time
of his absence is not part of the time
limited for the commencement of the action.5
¶17 In his briefs, Larson aptly describes the circumstances
surrounding the creation and operation of Utah’s tolling statute.
When Utah’s tolling statute was created, the ability to obtain
personal jurisdiction over an out-of-state resident (or
nonresident) was severely limited by the Due Process Clause of
the Fourteenth Amendment to the United States Constitution.6
Given this restraint, the tolling statute served the important
purpose of preventing the statute of limitations from expiring on
valid claims when the defendant was out of state and obtaining
personal jurisdiction was not possible.
¶18 In the early 1900s, the jurisdictional reach of the
states’ courts began to expand, and by 1945, the United States
Supreme Court, in International Shoe, adopted a more flexible
standard for asserting personal jurisdiction over out-of-state
defendants.7 This new standard required only that a defendant
have “minimum contacts” with the forum state such that the
exercise of personal jurisdiction did not offend “traditional
notions of fair play and substantial justice.”8 As a result of
International Shoe, states began enacting long-arm statutes,
which were comprehensive jurisdictional statutes based upon a
defendant’s conduct in or contact with the forum state. These
long-arm statutes expanded the jurisdictional reach of state
courts, allowing such courts to exert personal jurisdiction to
the outer limits of the Due Process Clause.
¶19 Utah’s long-arm statute was enacted in 1969.9 It
allows Utah’s courts to exert personal jurisdiction over any
person, whether or not a resident of Utah, if that person

10 See id. § 78-27-24(1)-(7).
11 Id. § 78-27-22.
12 Id. § 78-27-25. Rule 4 allows substituted service of
process in certain circumstances. See Utah R. Civ. P. 4(d)-(e).
No. 20051180 6
committed any of the acts enumerated in the statute.10 The long-
arm provisions apply “so as to assert jurisdiction over
nonresident defendants to the fullest extent permitted by the Due
Process Clause of the Fourteenth Amendment to the United States
Constitution.”11 The provisions allow service of process
pursuant to rule 4 of the Utah Rules of Civil Procedure on any
party outside the state.12
¶20 Larson argues that Utah’s tolling statute must be
interpreted in light of this history and purpose and in relation
to other statutes. He argues that when the purpose of the
tolling statute conflicts with its literal meaning, the purpose
must be given effect. He explains that the purpose of the
tolling statute is to prevent valid claims from expiring because
personal jurisdiction over a defendant cannot be obtained due to
the defendant’s absence from the state. He argues that, in light
of this purpose, the language in the tolling statute referring to
a defendant who is “out of the state” should describe a defendant
who is beyond the personal jurisdiction and process of Utah
courts and not merely a defendant who is physically “absent” from
the state. Larson contends that this interpretation harmonizes
the tolling statute with the purposes of Utah’s long-arm statute,
the substitute service of process provisions of rule 4, and the
applicable statute of limitations, which are all designed to
allow parties to expeditiously adjudicate their claims.
Ultimately, Larson maintains that the purpose of such a tolling
statute is served where the long-arm statute or rule 4 brings a
defendant within the personal jurisdiction of the court. Under
these circumstances, the tolling statute should no longer apply
because the need to delay the running of the statute of
limitations ceases to exist.
¶21 The position advocated by Larson, although favored by
many states, would effectively write the tolling statute out of
the Utah Code. We are disinclined to ignore the statute in light
of its clear, plain-language meaning. Moreover, our own
precedent has adhered to the statute’s plain-language meaning.
It is the Legislature’s prerogative to set statutes of
limitation. It is also the Legislature’s prerogative to set the
terms by which a statute will be tolled. Whether or not this
tolling is necessary, given the changes in our long-arm

13 Utah Code Ann. § 78-12-35 (2005) (stating that “the time
of [the defendant’s] absence is not part of the time limited for
the commencement of the action” (emphasis added)).
14 State v. Carreno, 2006 UT 59, ¶ 11, 144 P.3d 1152.
15 Bd. of Educ. v. Sandy City Corp., 2004 UT 37, ¶ 9, 94
P.3d 234 (internal quotation marks omitted).
16 See 1A Norman Singer, Statutes and Statutory Construction
§§ 22.29-.30 (6th ed. 2002) (discussing the presumption that an
amendment was intended to change the prior statute; also
discussing other tools of construction applicable to amendments).
17 Snyder v. Clune, 390 P.2d 915, 916 (Utah 1964).
7 No. 20051180
jurisdiction, the statute is clear, and it is solely up to the
Legislature to change it. Thus we conclude that the plain
language of the tolling statute, our well-settled precedent, and
appropriate deference to the Legislature make the answer to the
certified question relatively straightforward.
II. THE PLAIN LANGUAGE OF UTAH’S TOLLING STATUTE
¶22 The plain language of the tolling statute provides that
the applicable statute of limitations is tolled where a defendant
has left the state or, in other words, is “absent.”13
¶23 “Our objective in interpreting a statute is to
effectuate legislative intent, and that intent is most readily
ascertainable by looking to the plain language of the statute.”14
In addition, “[w]e read the plain language of the statute as a
whole, and interpret its provisions in harmony with other
statutes in the same chapter and related chapters.”15 The
evolution of a statute through amendment by the Legislature may
also shed light on a statute’s intended meaning.16
¶24 We have already stated that the purpose of Utah’s
tolling statute is “to prevent a defendant from depriving a
plaintiff of the opportunity of suing him by absenting himself
from the state during the period of limitation.”17 This
legislative intent is ascertainable from the plain language of
the tolling statute. The tolling statute’s language expressly
prevents a defendant from depriving a plaintiff of a valid claim
merely by leaving the state. Indeed, the statute could hardly be
written in a more straightforward manner. The statute states,
“If after a cause of action accrues [the defendant] departs from
the state, the time of his absence is not part of the time

18 Utah Code Ann. § 78-12-35 (emphasis added).
19 See Gass v. Hunting, 561 P.2d 1071 (Utah 1977); Buell v.
Duchesne Mercantile Co., 231 P. 123 (Utah 1924); Keith-O’Brien
Co. v. Snyder, 169 P. 954 (Utah 1917).
20 169 P. 954 (Utah 1917).
21 Id. at 956.
22 Id. at 955-56.
No. 20051180 8
limited for the commencement of the action.”18 The “time limited
for the commencement of the action” refers to the applicable
statute of limitations in a given case.
¶25 Additionally, despite a few minor changes to its text,
the tolling statute remains materially unchanged from its
original enactment. Through this action (or inaction) the
Legislature has implicitly endorsed the original plain-language
purpose of the statute. Further, the Legislature has not
materially changed the tolling statute after our holdings in
several cases, implying that it does not disapprove of our plain-
language interpretation of the statute.
III. CASE LAW INTERPRETING UTAH’S TOLLING STATUTE
¶26 Our cases have consistently adhered to the plain
language of the tolling statute. We have held in a number of
cases that Utah’s tolling statute should be interpreted
literally, so that where a defendant is “absent” from the state,
the statute of limitations will toll as to that defendant for
that period.19 In other cases, where by statute an agent is
appointed within the state to receive service of process on
behalf of a defendant, we have held that a defendant is not
“absent” from the state and therefore the statute of limitations
will not be tolled. Yet, even those cases are in harmony with
the tolling statute’s plain-language application.
¶27 In Keith-O’Brien Co. v. Snyder,20 we held that the
defendant’s seven-year absence from the state tolled the
applicable statute of limitations.21 We determined that the
tolling statute applied even though the defendant’s wife
continued to reside in Utah during the defendant’s absence.22 We
concluded that the statute of limitations “runs only during the
time the [defendant] is openly in the state and immediately on
his leaving it the statute . . . ceases to run until his

23 Id. at 956.
24 Id. at 955; see also Buell, 231 P. at 124 (following
Keith-O’Brien’s interpretation of the tolling statute).
25 561 P.2d 1071 (Utah 1977).
26 Id. at 1072.
27 Id.
28 390 P.2d 915 (Utah 1964).
29 938 P.2d 285 (Utah 1997).
30 Snyder, 390 P.2d at 916; Lund, 938 P.2d at 289.
31 See Utah Code Ann. § 41-12a-505 (2005). The version of
the Act applicable in Snyder appointed the Secretary of State as
the agent to receive service of process for nonresident
motorists. Snyder, 390 P.2d at 916; Utah Code Ann. § 41-12-8
(1953).
9 No. 20051180
return.”23 We gave effect to the literal meaning of the tolling
statute–-“if after the cause of action accrues he depart from the
state, the time of his absence is not part of the time limited
for the commencement of the action.”24
¶28 In Gass v. Hunting,25 we followed Keith-O’Brien’s
literal interpretation of the tolling statute.26 Our Gass
decision is concise and straightforward, holding that the
defendant’s absence from the state tolls the eight-year statute
of limitations and concluding that the tolling statute is
“clear.”27
¶29 In Snyder v. Clune28 and Lund v. Hall,29 we held that a
nonresident motorist’s absence from the state did not toll the
statute of limitations where by statute an agent is appointed
within the state to receive service of process on behalf of
nonresident motorists.30 These cases concerned the Nonresident
Motor Vehicle Act (the “Act”), which authorizes substitute
service of process on a nonresident motorist by serving the
Division of Corporations and Commercial Code.31 Rule 4(e)(1) of
the Utah Rules of Civil Procedure allows that personal service
may be made upon a defendant by delivering a copy to an “agent
authorized by appointment or by law to receive service of

32 Utah R. Civ. P. 4(e)(1) (emphasis added).
33 Lund, 938 P.2d at 290 (emphasis added).
34 See Lipe v. Javelin Tire Co., 536 P.2d 291, 294 (Idaho
1975); Bray v. Bayles, 618 P.2d 807, 810 (Kan. 1980) (superseded
by statute).
No. 20051180 10
process.”32 These two cases are entirely consistent with Keith-
O’Brien and Gass. The Act statutorily appoints an agent to
receive service of process within Utah for nonresident motorists.
In a legal sense, therefore, the defendants in these cases are
not “absent” from the state because their agent is present and
service can be effected within the state. Thus, Utah’s tolling
statute will not toll the statute of limitations in nonresident
motor vehicle cases that fall within the Act. But in cases not
involving a statutorily appointed agent, or not involving an
agent within Utah, an out-of-state defendant is deemed “absent”
from the state and the tolling statute tolls the applicable
statute of limitations.
¶30 Larson contends that Snyder initially departed from the
plain language of the tolling statute and that Lund overruled our
decision in Keith-O’Brien. He focuses on the following language
that we used in Lund:
We . . . hold that under section 78-12-35 the
statute of limitations will not be tolled
when a defendant is out of the state, as long
as he is still amenable to service of process
in the state of Utah.33
¶31 Larson argues that Lund’s holding is broad and is not
explicitly limited to cases that fall within the Nonresident
Motor Vehicle Act. Thus, Larson urges us to apply this precise
language in the case before us. He maintains that he has always
been “amenable to service of process” pursuant to Utah’s long-arm
statute and therefore the tolling statute should not apply in
this case. Larson also notes that in Lund we cited with approval
two cases that held the statute of limitations was not tolled
where a defendant was amenable to service of process by virtue of
the state’s long-arm statute.34
¶32 Further, Larson points out that in Lund, in the
paragraph following our “broad” holding, we stated that “[our]
position is consistent with the majority of states which hold
that the statute of limitations will not be tolled against a
defendant who leaves the state after the cause of action arose

35 Lund, 938 P.2d at 290.
36 Id. at 291.
37 Id. at 289.
38 Id.
39 Snyder v. Clune, 390 P.2d 915, 916 (Utah 1964).
40 231 P. 123 (Utah 1924).
41 Lund, 938 P.2d at 290.
42 Id. at 292 (Howe, J., concurring).
11 No. 20051180
but who is still amenable to process within the state.”35 Once
again, Larson argues that this statement is broad and suggests
that in Lund we aligned ourselves with the majority position.
Indeed, in Lund we proceeded to elaborate on the majority view,
recognizing that it likely best served the purposes of both the
tolling statute and the statute of limitations.36
¶33 We reject Larson’s characterization of our holding in
Lund. First, in Lund, we did not expressly overrule Keith-
O’Brien or Gass. Before we rendered our holding, we stated that
“[o]ur decision in Snyder is applicable here.”37 We continued,
“Even if [the defendant] had departed from the state, he was
still subject to service of process pursuant to the nonresident
motor vehicle act. Thus, under our [prior] decision in Snyder,
section 78-12-35 would not operate to toll the statute of
limitations.”38 This language limits Lund to the plain-language
application we established in Snyder for cases involving the
Nonresident Motor Vehicle Act. In Snyder, we held that a
nonresident motorist was not considered “absent” from the state
under the tolling statute because the Act appoints an agent
within the state to receive service of process and therefore the
applicable statute of limitations will not be tolled.39
¶34 Second, we noted in Lund that in Keith-O’Brien, Buell
v. Duchesne Mercantile Co.,40 and Gass, we held that the tolling
statute tolls the applicable statute of limitations where a
defendant leaves the state, thus setting apart our Lund decision
as an alternative to this general outcome.41
¶35 Third, Justice Howe’s concurring opinion in Lund
expressly limited Lund to its facts.42 He maintained that a
purpose-driven discussion of the tolling statute in a broader

43 Id.
44 Id.
45 See Dew v. Appleberry, 591 P.2d 509, 512 (Cal. 1979);
Vaughn v. Deitz, 430 S.W.2d 487, 489 (Tex. 1968).
46 Dew, 591 P.2d at 512; Vaughn, 430 S.W.2d at 489.
47 Lund v. Hall, 938 P.2d 285, 293 (Utah 1997) (Howe, J.,
(continued...)
No. 20051180 12
sense should be pursued only when that question is actually posed
to the court.43 He stated that the discussion in Lund should be
limited to those cases that involved the Nonresident Motor
Vehicle Act.44 We are inclined to agree with Justice Howe’s
approach.
¶36 Ultimately, our well-settled precedent controls in this
case. All of our previous decisions apply the plain language of
the tolling statute. In Keith-O’Brien and Gass, we held that the
tolling statute tolls the applicable statute of limitations where
a defendant leaves the state and is thus “absent.” In Snyder and
Lund, we held that the tolling statute does not toll the
applicable statute of limitations where a defendant leaves the
state because the Nonresident Motor Vehicle Act expressly
provides an agent to receive substitute service of process and
therefore, in a legal sense, a defendant is not “absent” from the
state. These latter two decisions are limited to cases that fall
within the Nonresident Motor Vehicle Act. Therefore, because
Olseth’s claim does not invoke the Act, we apply a
straightforward application of the tolling statute to her claim.
As a result, in this case the tolling statute does toll the four-
year statute of limitations even where Larson was amenable to
service of process pursuant to Utah’s long-arm statute.
IV. APPROPRIATE DEFERENCE TO THE LEGISLATURE
¶37 We note that other courts have adhered to the plain
language of their respective tolling statutes, despite a likely
conflict with the states’ long-arm statutes. The California
Supreme Court and the Texas Supreme Court are two examples.45
Both courts refused to hold that the tolling statutes of those
states were inoperative even when a departed defendant was still
amenable to service of process within the state.46 These courts
“recognized that it was the legislature’s prerogative to
establish statutes of limitations and to provide for instances in
which their running should be tolled.”47

47 (...continued)
concurring).
48 Id.
49 Id.
50 Id.
51 Id. at 292 (quoting Dew, 591 P.2d at 512).
52 For example, the Illinois Legislature amended its tolling
statute so that it would not apply to any person who was amenable
to service of process in that state. Lund, 938 P.2d at 292.
13 No. 20051180
¶38 We agree that applying the tolling statute’s plain
language shows the appropriate deference to the Legislature in
this case. As Justice Howe noted in his concurring opinion in
Lund, “Our tolling statute . . . does not differ materially from
its original enactment in Laws of Utah (1872).”48 He stated that
“with the expansion of means by which jurisdiction can be
obtained over a defendant who has left the state, there may not
be the same need for our tolling statute as previously
existed.”49 But Justice Howe noted his agreement with other
courts that observed, “[W]hile there may be valid arguments that
tolling statutes are unnecessary when a defendant is amenable to
service of process, those arguments must be addressed to the
legislature, not to the courts.”50 Additionally, Justice Howe
quoted the California Supreme Court: “‘If the Legislature intends
that the tolling provision not extend the limitations period
whenever the defendant is amenable to jurisdiction, it can easily
so state.’”51
¶39 The Utah Legislature is aware of the tolling statute at
issue. Although the Legislature has made minor changes to the
text of the original version of the statute, it left its
substance unaltered. We presume the Legislature is aware of our
case law, which has consistently held that only when the
Nonresident Motor Vehicle Act applies will the tolling statute
not toll the applicable statute of limitations. If the
Legislature wants to change the tolling statute’s general
application, it is always free to do so.52 But at this point,
the Legislature has accepted our plain-language interpretation of
the tolling statute for almost ninety years.
CONCLUSION

No. 20051180 14
¶40 We hold that section 78-12-35 does toll the applicable
statute of limitations when a person against whom a claim has
accrued has left the state of Utah and has no agent within the
state upon whom service of process can be made, even where that
person was at all times amenable to service pursuant to Utah’s
long-arm statute.
---
¶41 Chief Justice Durham, Associate Chief Justice Wilkins,
Justice Parrish, and Justice Nehring concur in Justice Durrant’s
opinion.