Tschaggeny v. Milbank

1 Tschaggeny also sued for breach of the duty of good faith
and fair dealing, but this claim was dismissed on summary
judgment and is not part of this appeal.
2007 UT 37
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
----oo0oo----
Julie Tschaggeny, No. 20050744
Plaintiff and Appellant,
v.
Milbank Insurance Company and F I L E D
Does 1 through 5, inclusive,
Defendants and Appellees. April 27, 2007
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Third District, Salt Lake
The Honorable Leslie Lewis
No. 010909329
Attorneys: Steve S. Christensen, Robert J. Labrum, Travis R.
Terry, Salt Lake City, for plaintiff
John R. Lund, Robert W. Thompson, Salt Lake City,
for defendant Milbank
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PARRISH, Justice:
INTRODUCTION
¶1 Julie Tschaggeny was injured in an automobile accident
and submitted a claim to Milbank Insurance Company (“Milbank”)
under her uninsured motorist policy. Milbank denied coverage,
and Tschaggeny sued for a determination of benefits.1 A jury
awarded a verdict for Tschaggeny, but she argues that the final
judgment amount was inadequate in three separate respects.
¶2 First, Tschaggeny argues that the trial court erred
both in granting Milbank’s motion in limine to exclude from
evidence medical bills that had been written off and in denying
Tschaggeny’s motion to reconsider that issue. Second, Tschaggeny
contends that the trial court failed to follow Utah Code section

No. 20050744 2
78-27-44 in its award of prejudgment interest. Third, Tschaggeny
asserts that the trial court erroneously denied her motion to add
to the jury’s verdict the amount of the excluded medical bills
and the value of replacement services. Because we find no
reversible error under any of these theories, we affirm the trial
court.
BACKGROUND
¶3 At the time of her accident, Tschaggeny was covered
under two separate insurance policies--an uninsured motorist
policy with Milbank and a health insurance policy. Because
Tschaggeny’s medical expenses were covered under her health
insurance policy, a portion of her medical expenses were written
off pursuant to a contractual agreement between her health
insurer and the health care providers.
¶4 When Tschaggeny and Milbank were unable to agree on
Milbank’s obligation to cover certain medical expenses,
Tschaggeny sued. On February 18, 2004, Milbank filed a motion in
limine requesting that the trial court prevent Tschaggeny from
submitting evidence of the medical expenses that had been written
off. Tschaggeny failed to file any memorandum in opposition to
the motion. Over four months later, the district court held a
pretrial hearing to resolve all pending matters, including the
motion in limine. When asked at the hearing whether Tschaggeny
opposed the motion in limine, her counsel initially responded
that she did. Later, however, her counsel conceded that “the way
this has been presented by the defense makes sense and probably
does not need an opposition.” The trial judge accordingly
granted the motion in limine from the bench.
¶5 A jury trial was scheduled to begin approximately three
months later. On the morning of trial, however, just minutes
before the jury was to be seated, Tschaggeny’s counsel handed the
trial judge a motion to reconsider her ruling on the motion in
limine. In her supporting memorandum, Tschaggeny argued for the
first time that excluding the medical bill write-offs violated
the collateral source rule. The trial court ordered a one-day
continuance to review Tschaggeny’s motion. The following day,
the trial judge denied Tschaggeny’s motion for reconsideration as
untimely. Even so, the trial judge indicated that if Tschaggeny
would move for a continuance, she would consider the merits of
the motion. Tschaggeny elected not to do so, and the trial
proceeded without any evidence of the written-off medical
expenses.
¶6 At the conclusion of trial, the jury awarded Tschaggeny
both special and general damages. However, the jury did not

2 The record does not clarify this issue, but we presume
that the jury either was not informed about Milbank’s pretrial
payments or was instructed not to consider them in making its
award.
3 No. 20050744
award any damages for the replacement services that Tschaggeny
allegedly incurred for household duties that were performed by
others while she was injured.
¶7 The trial judge entered judgment on the jury’s verdict
after adding prejudgment interest on the special damages awarded
by the jury and giving Milbank credit for $12,915.46, which
Milbank had paid to Tschaggeny approximately eighteen months
after the accident.2 In calculating prejudgment interest on the
special damages, the trial court allowed interest from the date
of the accident to the date of judgment, with one exception.
With respect to the $12,915.46 that Milbank had already paid, the
trial court awarded prejudgment interest for only that eighteen-
month period, rather than for the full period of time from the
date of the accident until the date of judgment.
¶8 After the trial court entered judgment, Tschaggeny
filed a “Motion to Amend Judgment, Motion for Additur, or in the
alternative, Motion for New Trial.” In her memorandum in support
of these motions, Tschaggeny argued that the trial judge should
add to the judgment additional damages for the amount of the
excluded medical bills and the value of the replacement services.
In the alternative, Tschaggeny argued that the court should
require Milbank to stipulate to an additur for those items or
face a new trial. The trial court denied Tschaggeny’s motions in
their entirety.
ANALYSIS
¶9 On appeal, Tschaggeny argues that the trial court erred
in (1) granting Milbank’s motion in limine, (2) calculating
prejudgment interest, and (3) denying her motion for additur or,
in the alternative, for a new trial.
I. EXCLUSION OF THE MEDICAL BILL WRITE-OFFS
¶10 As is typical in the industry, Tschaggeny’s health
insurer negotiated a lower rate for health care services for its
policy holders than any member of the uninsured general public is
able to bargain for, resulting in a discounted medical bill.
Thus, it is a perverse irony of our modern health care system
that those who are least able to pay are typically billed at a
significantly higher rate than insured individuals for the same

No. 20050744 4
services. In seeking to realize the benefits that she earned by
paying premiums under her uninsured motorist policy, Tschaggeny
argues that the benefit she received from the contractual
arrangements between her health insurer and medical providers
falls under the collateral source rule. Under that rule, she
claims she is entitled to recover the amount that her health care
providers charged uninsured individuals, rather than the
discounted charges that were actually paid by her health insurer.
¶11 The trial court did not address the merits of
Tschaggeny’s argument because it concluded that the issue was not
properly presented. Tschaggeny asserts that the trial court
erred in this conclusion and asks us to review two separate
rulings: (1) the trial court’s initial decision to grant
Milbank’s motion in limine to exclude evidence of the written-off
amounts, and (2) the trial court’s denial of her motion to
reconsider that ruling.
A. The Motion in Limine
¶12 We will not review the trial court’s order granting
Milbank’s motion in limine because Tschaggeny’s counsel invited
that result. The invited error doctrine prevents a party from
taking “‘advantage of an error committed at trial when that party
led the trial court into committing the error.’” State v.
Winfield, 2006 UT 4, ¶ 15, 128 P.3d 1171 (quoting State v.
Geukgeuzian, 2004 UT 16, ¶ 9, 86 P.3d 742). “Affirmative
representations that a party has no objection to the proceedings
fall within the scope of the invited error doctrine because such
representations reassure the trial court and encourage it to
proceed without further consideration of the issues.” Id. ¶ 16.
¶13 At the hearing on the motion in limine, Tschaggeny’s
counsel essentially stipulated that it be granted. While
initially opposing the motion, counsel later conceded that he had
no objection to the motion so long as the order was confined to
only those amounts that had actually been written off:
So we would ask even though – I think
the way this has been presented by the
defense makes sense and probably does not
need an opposition in terms of there’s
binding [sic] write down. I think to avoid
future complications with the health
insurance overlayer we’d just ask the court
to restrict the motion to what it has been
brought rather than as a broad writeoff of
any health insurance amounts. And on that
basis we will submit it.

5 No. 20050744
THE COURT: All right. Thank you. I’m going
to grant the motion in limine and I am going
to restrict it to precisely the terms of the
motion.
Thus, despite his initial opposition to the motion, in the end,
counsel for Tschaggeny clearly communicated his agreement to the
relief ordered. To the extent the trial judge committed any
legal error in granting the motion, she was invited to do so by
Tschaggeny’s own counsel. Under the invited error doctrine, it
would be inappropriate to reverse the trial court for a decision
that it was invited to make by the party now attempting to renege
on that invitation.
B. The Motion to Reconsider
¶14 We next address Tschaggeny’s claim that the trial court
erred in denying her motion to reconsider its original ruling on
the motion in limine. We hold that the trial court acted within
its discretion in denying the motion as untimely. And in any
event, Tschaggeny failed to preserve the issue for appeal.
1. The Trial Court’s Denial of the Motion on Timeliness Grounds
¶15 We begin our analysis by establishing the proper
standard of review. Motions to reconsider are not recognized by
the Utah Rules of Civil Procedure. Gillett v. Price, 2006 UT 24,
¶¶ 5, 7-8, 135 P.3d 861. Because trial courts are under no
obligation to consider motions for reconsideration, any decision
to address or not to address the merits of such a motion is
highly discretionary. If Tschaggeny wanted to oppose the motion
in limine, her proper course of action was to file a memorandum
in opposition to the motion within ten days of its filing. Utah
R. Civ. P. 7(c)(1). Any memoranda filed beyond this ten-day
window would be untimely and could be considered only with leave
of court. Id. In short, the decision to consider any late-filed
opposition to the motion in limine was vested in the discretion
of the trial court.
¶16 Although a trial court “is free, in the exercise of
sound judicial discretion, to alter a previous in limine ruling,”
Luce v. United States, 469 U.S. 38, 41-42 (1984), a trial court
may also exercise its discretion to disregard motions to
reconsider prior in limine rulings when those motions do not
conform to the Utah Rules of Civil Procedure, see Univ. of Utah
v. Indus. Comm’n, 736 P.2d 630, 633 (Utah 1987) (“A trial judge
is accorded broad discretion in determining how a trial shall
proceed in his or her courtroom.”). Thus, we review the trial
court’s denial of the motion to reconsider under an abuse of

No. 20050744 6
discretion standard. Under this standard, the trial court’s
ruling may be overturned only “if there is no reasonable basis
for the decision.” Langeland v. Monarch Motors, 952 P.2d 1058,
1061 (Utah 1998).
¶17 We conclude that the trial court did not abuse its
discretion in this case because there was ample support for its
decision to deny Tschaggeny’s motion to reconsider for being
untimely. Tschaggeny waited more than seven months after the
initial motion in limine was filed and almost three months after
it was granted to seek reconsideration. More significantly,
Tschaggeny filed her motion to reconsider just minutes before
trial was scheduled to begin. We have consistently held that a
trial court does not abuse its discretion when it denies as
untimely last minute motions on the eve of trial. Gerbich v.
Numed Inc., 1999 UT 37, ¶ 17, 977 P.2d 1205 (“Therefore, we
conclude that the trial court did not abuse its discretion when
it prevented the inspector from testifying as an expert based on
the lateness of the designation and the fact that Numed’s counsel
did not have an opportunity to either prepare a cross-examination
or call rebuttal witnesses.”); Kelson v. Salt Lake County, 784
P.2d 1152, 1157 (Utah 1989) (holding that it was not an abuse of
discretion to deny a motion to suppress a stipulation of blood
alcohol content on the eve of trial because it “would prejudice
the defendants, who had relied on the stipulation and had not
prepared to put on any other evidence of intoxication”); The
Berkshires, L.L.C. v. Sykes, 2005 UT App 536, ¶ 15, 127 P.3d 1243
(holding that a trial court did not abuse its discretion in
denying leave to amend a pleading because “requiring Plaintiffs
to address an amended pleading on the eve of trial after over a
year of litigation, including discovery and motion phases, would
undoubtedly result in prejudice to them”).
2. Preservation
¶18 We also reject Tschaggeny’s challenge to the order
denying her motion to reconsider because it was not preserved.
Even though the trial judge was fully within her discretion to
deny Tschaggeny’s motion to reconsider outright, she offered
Tschaggeny the opportunity to seek a continuance so that she
could consider the issue. Tschaggeny’s choice not to seek a
continuance constituted a failure to preserve the issue for
appeal.
¶19 The present case presents a somewhat unique application
of our traditional preservation rule inasmuch as the issue under
consideration was presented to the trial judge. Nevertheless,
the policy considerations underlying the preservation rule make
it clear that Tschaggeny waived the issue of medical bill write-

7 No. 20050744
offs because she did not take the necessary steps to allow the
trial judge to consider the merits of the issue.
¶20 “‘[A]s a general rule, claims not raised before the
trial court may not be raised on appeal.’” State v. Cram, 2002
UT 37, ¶ 9, 46 P.3d 230 (quoting State v. Holgate, 2000 UT 74,
¶ 11, 10 P.3d 346). Two policy considerations underlie the
preservation rule. First, the rule exists “to give the trial
court an opportunity to ‘address the claimed error, and if
appropriate, correct it.’” Id. ¶ 10 (quoting Holgate, 2000 UT
74, ¶ 11). Second, requiring preservation of an issue prevents a
party from avoiding the issue at trial for strategic reasons only
to raise the issue on appeal if the strategy fails. Id.
¶21 After Tschaggeny filed her motion to reconsider on the
morning of trial, the court ordered a continuance until the
following day in order to consider the remaining motions and to
allow counsel another opportunity to negotiate a settlement. The
following morning, the trial judge explained that she would deny
the motion as untimely unless Tschaggeny moved for a continuance:
THE COURT: The problem, counsel, is the
timeliness of this. You’re asking me
basically to make an extraordinarily all
encompassing ruling that would change the
course and direction of the totality. And
you’re asking me to do it at the last minute.
It’s not timely. I have a concern about the
case law frankly. You have an option you can
ask for a continuance of the trial and I’ll
look at it more closely, but perusing it as I
did I just feel it’s too late for me to
meaningfully consider it on the eve of trial,
it’s not timely is the problem. And I’m not
denying it because it’s poorly taken, I’m
denying it because it’s not timely. You have
a remedy and that remedy is you can move to
continue the trial if you wish to.
The trial court presented Tschaggeny with a clear choice. She
could request a continuance, thereby giving the trial court
adequate time to consider the merits of the motion, or she could
abandon the motion and move forward with the trial as scheduled.
Tschaggeny chose the latter option.
¶22 Because Tschaggeny did not move for a continuance at
the judge’s invitation, the issue was abandoned. In other words,
by not allowing the trial judge an adequate opportunity to
consider the issue, Tschaggeny waived the right to raise the

No. 20050744 8
issue on appeal. This result is consistent with the primary
purpose of the preservation rule. Claimed errors should be
raised before trial courts in such a manner that the trial courts
have a meaningful opportunity to correct them. State v. Pinder,
2005 UT 15, ¶ 46, 114 P.3d 551 (“[T]he purpose of the
preservation rule is to ensure that the trial court is first
given an opportunity to decide if a mistake has been made before
the appellate review becomes appropriate.”). In this case, the
trial court had no meaningful opportunity to correct any
erroneous ruling on the motion in limine precisely because
Tschaggeny chose not to pursue a determination on the merits.
¶23 The secondary policy consideration of disallowing
strategic silence on an issue also militates against considering
this matter on appeal. Tschaggeny was given a clear course of
action to pursue if she wanted the trial judge to consider the
merits of her objection to the motion in limine. Although the
record does not reveal any concrete reasons why Tschaggeny chose
not to seek a continuance, there are innumerable potential
strategic and practical motivations for her decision not to do
so. The expense of prolonging the litigation, the difficulty of
rescheduling witnesses, and the necessity of preparing for trial
again at an undetermined future date may all have influenced her
decision not to seek a continuance. Were we to review the issue
at this juncture, Tschaggeny would be afforded both the benefit
of her decision not to seek a continuance and the benefit of
review on appeal. Allowing this dual benefit is clearly contrary
to the policy behind requiring issues to be litigated at trial
before they are eligible for review.
¶24 Because Tschaggeny failed to preserve for appellate
review the exclusion of the medical bill write-offs, we will not
review it on appeal absent either plain error or exceptional
circumstances. See State v. Winfield, 2006 UT 4, ¶ 14, 128 P.3d
1171. Tschaggeny admits that the application of the collateral
source rule to medical bill write-offs is a matter of first
impression in Utah. Therefore, the trial court’s decision to
grant Milbank’s motion in limine and deny Tschaggeny’s motion for
reconsideration does not rise to the level of plain error. Nor
are there any exceptional circumstances that militate against
applying the preservation requirement in this case.
¶25 In sum, the trial court did not abuse its discretion in
denying Tschaggeny’s motion to reconsider, and Tschaggeny
effectively waived the right to appeal this issue. We
accordingly affirm the trial court’s ruling.
II. PREJUDGMENT INTEREST

9 No. 20050744
¶26 Tschaggeny next argues that the trial court erred by
not strictly conforming to the language of Utah Code section
78-27-44 when awarding prejudgment interest. This section
provides:
It is the duty of the court, in entering
judgment for plaintiff in that action, to add
to the amount of special damages actually
incurred that are assessed by the verdict of
the jury, or found by the court, interest on
that amount calculated at the legal rate, as
defined in Section 15-1-1, from the date of
the occurrence of the act giving rise to the
cause of action to the date of entering the
judgment, and to include it in that judgment.
Utah Code Ann. § 78-27-44(2) (2002). Tschaggeny asserts that
this provision required the trial court to assess prejudgment
interest for the full period between the time the damages were
incurred and the entry of judgment, even on the amount that
Milbank paid to her approximately three years before trial.
¶27 The trial court disagreed with such an interpretation.
For the pretrial payment which Milbank made to Tschaggeny, the
trial court awarded interest from the time of the accident until
Milbank made the payment, but not for the period between the time
of payment and the entry of judgment. Tschaggeny now claims
error and seeks to capture this post-payment interest.
¶28 It is well-settled that this court will not interpret a
statute to embrace a result that is “‘in blatant contravention of
the express purpose of the statute,’” Savage v. Utah Youth Vill.,
2004 UT 102, ¶ 18, 104 P.3d 1242 (quoting Perrine v. Kennecott
Mining Corp., 911 P.2d 1290, 1292 (Utah 1996)), or that is so
absurd that it could not have been intended by the legislature,
Pub. Citizen v. U.S. Dep’t of Justice, 491 U.S. 440, 452-53
(1989). Because the clear purpose of section 78-27-44(2) is to
compensate wronged parties for delays in recovering damages, it
is absurd to require a defendant to pay interest on money that
has already been remitted to the plaintiff. In addition,
Tschaggeny’s proposed reading would blatantly controvert the
express purpose of the statute, which is to encourage the prompt
payment of amounts not in dispute. No rational defendant would
be willing to pay money to a plaintiff prior to trial and then
continue to pay interest on that amount until final judgment.
Indeed, the interpretation urged by Tschaggeny would incentivize
bad faith disputes over compensation owed in order to avoid such
an unjust result. Because Tschaggeny’s proposed interpretation
leads to an absurd result that controverts the express purposes

3 In her original motion, Tschaggeny also argued that the
trial court should amend the judgment by adding to it the amount
of the excluded medical bills and the damages claimed for the
replacement services. She does not press this claim on appeal,
arguing only that the court should have awarded a new trial
unless Milbank stipulated to an additur. For clarification, we
note that rule 59 allows a judge to directly amend a judgment
only if the action was tried without a jury. Utah R. Civ. P.
59(a). Tschaggeny’s initial request that the trial judge amend
the judgment therefore constituted an improper end run around the
jury’s role as fact-finder.
4 Tschaggeny also attempts to argue that the jury’s failure
to award damages for replacement services is the result of
“passion or prejudice” under rule 59(a)(5). The only support
(continued...)
No. 20050744 10
of the statute, we reject that interpretation and affirm the
trial court’s denial of post-payment prejudgment interest on the
amounts Milbank paid Tschaggeny prior to trial.
III. MOTION FOR A NEW TRIAL
¶29 Following trial, Tschaggeny filed a rule 59 motion
petitioning the trial court to require Milbank to either
stipulate to an additur for the excluded medical bills and the
value of replacement services or face a new trial.3 The trial
court denied the motion, and Tschaggeny now asks this court to
reverse.
¶30 Tschaggeny first argues that the exclusion of the
written-off medical bills constituted “[e]rror in law” under Utah
Rule of Civil Procedure 59(a)(7). In essence, this argument
amounts to a motion to reconsider the motion to reconsider the
original motion in limine. As we have already noted in section I
of this opinion, however, the trial court properly refused to
address the legal merits of Tschaggeny’s motion to reconsider the
order granting the motion in limine because it was raised in an
untimely manner. In addition, Tschaggeny failed to preserve the
issue for review by failing to ask for a continuance so that the
court could properly consider the issue. Raising the issue yet
again in a posttrial motion does not cure these defects.
Therefore, there is no legal error justifying a new trial.
¶31 Tschaggeny also argues that she is entitled to a new
trial under rule 59(a)(6) because there was insufficient evidence
to justify the jury’s failure to award damages for replacement
services.4 We affirm the trial court’s refusal to order a new

4 (...continued)
that Tschaggeny proffers for this proposition, however, is her
assertion that because damages for replacement services had been
proven by the evidence at trial, the failure to award damages
must have been the result of passion or prejudice. Because
Tschaggeny’s rule 59(a)(5) argument is premised entirely upon the
sufficiency of the evidence, it meets the same fate as her rule
59(a)(6) argument.
11 No. 20050744
trial because Tschaggeny has not properly presented the issue to
this court. When challenging the sufficiency of the evidence in
support of a jury verdict, “[t]he appealing party has the heavy
burden of marshaling the evidence in support of the verdict and
showing that the evidence, viewed in the light most favorable to
the verdict, is insufficient.” Tingey v. Christensen, 1999 UT
68, ¶ 7, 987 P.2d 588; accord Harding v. Bell, 2002 UT 108, ¶ 19,
57 P.3d 1093; Utah R. App. P. 24(a)(9). Not only has Tschaggeny
failed to marshal the evidence in favor of the jury verdict
denying recovery for replacement services, she has not even
provided a trial transcript to substantiate her claims of jury
error. Tschaggeny’s argument essentially consists of bald
assertions as to what evidence the jury did or did not hear on
the issue of replacement services. Such efforts fall far short
of the burden a party must meet to justify overturning a jury
verdict.
CONCLUSION
¶32 In sum, we reject all of Tschaggeny’s claims of error.
First, we do not review the trial court’s grant of the motion in
limine because Tschaggeny invited the court to do so.
Tschaggeny’s motion to reconsider the ruling was untimely, and in
any event, Tschaggeny failed to preserve the issue for appeal
when she rejected the trial court’s invitation to request a
continuance in order to allow adequate time to consider the
issue. Second, we reject Tschaggeny’s claim that Utah Code
section 78-27-44 required the trial court to award prejudgment
interest for the period after the pretrial payment was made.
Third, the trial court properly declined to award a new trial for
the written-off medical bills because there was no legal error at
trial. We do not consider the petition for a new trial on the
issue of replacement services because Tschaggeny has failed to
marshal the evidence. We therefore affirm the trial court.
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No. 20050744 12
¶33 Chief Justice Durham, Associate Chief Justice Wilkins,
Justice Durrant, and Justice Nehring concur in Justice Parrish’s
opinion.