Berneau v. Martino

2009 UT 87
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
----oo0oo----
William Berneau, 	No. 20090134
Plaintiff and Appellant,
v.
Cameron D. Martino
aka David M. Cameron; and the
Estate of Cameron D. Martino 	F I L E D
aka David M. Cameron,
Defendants and Appellees. 	December 29, 2009
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Third District, Salt Lake
The Honorable Joseph C. Fratto, Jr.
No. 080915531
Attorneys: 	Mark T. Flickinger, Brett R. Boulton, Provo,
for plaintiff
Todd Turnblom, Tajha L. Ferrara, Salt Lake City,
for defendants
---
DURHAM, Chief Justice:
INTRODUCTION
¶1 	Appellant and Plaintiff, William Berneau, brought suit
against putative Appellees and Defendants, Cameron D. Martino
(Decedent) and the Estate of Cameron D. Martino, for injuries
arising out of an automobile accident. 	Shortly after the
accident, but before Mr. Berneau filed suit, Mr. Martino died due
to causes unrelated to the accident. 	No probate of Mr. Martino’s
estate followed, and no personal representative was appointed.
Unaware of the death, Mr. Berneau timely filed his suit near the
end of the four-year statute of limitations period. 	The district
court dismissed the complaint because no personal representative
for the estate had been appointed within three years of Mr.
Martino’s death as required by Utah Code section 75-3-107.
¶2 	In this case we are asked whether a plaintiff may
directly sue a decedent under the liability insurance exception
of Utah Code section 75-3-803(4)(b). 	We hold that a plaintiff
cannot because the Utah Uniform Probate Code requires the

No. 20090134 	2
appointment of a personal representative. 	However, we also hold
that because of the exceptional circumstances presented and the
otherwise unjust result, the equitable discovery rule applies to
toll the three-year probate limitations period.
BACKGROUND
¶3 	In reviewing a dismissal pursuant to Utah Rule of Civil
Procedure 12(b)(6), “we assume that the factual allegations in
the complaint are true and we draw all reasonable inferences in
the light most favorable to the plaintiff.” 	Whipple v. Am. Fork
Irrigation Co., 910 P.2d 1218, 1219 (Utah 1996).
¶4 	On September 23, 2003, Mr. Berneau was injured in an
automobile accident caused by Mr. Martino. 	On December 3, 2003,
Mr. Martino passed away at age twenty-two due to causes unrelated
to the accident. 	Mr. Berneau did not receive actual or
constructive notice of the death. 	With no probate of Decedent’s
estate, and without Mr. Berneau’s knowledge of the death, no
personal representative was appointed within the three years
following Mr. Martino’s death.
¶5 	In April 2004, counsel for Mr. Berneau informed Mr.
Martino’s insurer, State Farm Insurance (State Farm), of his
client’s intent to bring a claim for personal injuries. 	Counsel
and State Farm engaged in ongoing written and verbal
communications; neither was aware of Mr. Martino’s death.
¶6 	Still unaware of the death, Mr. Berneau timely filed
his complaint against Mr. Martino on September 14, 2007, near the
end of the four-year statute of limitations period prescribed by
Utah Code section 78B-2-307. 	On October 4, 2007, State Farm
learned of its insured’s death; it subsequently informed Mr.
Berneau of the death by letter dated February 4, 2008.
Meanwhile, because Mr. Berneau failed to serve Mr. Martino within
120 days as required by Utah Rule of Civil Procedure 4(b)(i), the
district court dismissed the complaint without prejudice.
¶7 	Mr. Berneau refiled his complaint, this time naming
Decedent’s estate and Decedent as the defendants. 	Mr. Berneau
did not attempt to appoint a personal representative for
Decedent’s estate. 	He did, however, file a motion for
alternative service of process on State Farm’s registered agent
because service on Decedent was “impracticable and, in fact,
impossible under the circumstances.”
¶8 	State Farm filed a motion to dismiss pursuant to Utah
Rule of Civil Procedure 12(b)(6). 	It argued that the complaint
was time barred for failure to appoint a personal representative

3 	No. 20090134
within the three-year period set by Utah Code section 75-3-107.
The district court agreed and dismissed the complaint. 	Mr.
Berneau appealed. 	We have jurisdiction pursuant to Utah Code
section 78A-3-102(3)(j) (2008).
STANDARD OF REVIEW
¶9 	The dismissal of a complaint for failure to state a
claim upon which relief can be granted presents a question of
law, which we review for correctness. 	Summit Water Distrib. Co.
v. Summit County, 2005 UT 73, ¶ 12, 123 P.3d 437. 	Also, we
review the interpretation and application of a statute for
correctness, granting no deference to the district court’s legal
conclusions. 	Savage v. Utah Youth Vill., 2004 UT 102, ¶ 17, 104
P.3d 1242.
ANALYSIS
¶10 	The issue presented on this appeal is whether, despite
the failure to appoint a personal representative within the
statutory three-year period after a decedent’s death as required
by Utah Code sections 75-3-104 and -107, a plaintiff can sue a
decedent under the liability insurance exception of Utah Code
section 75-3-803(4)(b). 	We consider first whether the plain
language of the exception permits suit directly against a
decedent. 	We hold that it does not, given the statutory scheme’s
requirement of a personal representative, and out of practical
necessity. 	Nonetheless, we conclude that the legislature did not
intend to foreclose an action for the sole recovery of liability
insurance proceeds. 	We therefore address whether the equitable
discovery rule should toll the three-year limitations period for
appointment of a personal representative to permit such an
action. 	We hold that under the limited circumstances present in
this case, an equitable tolling of section 75-3-107 is
appropriate.
I. 	THE LIABILITY INSURANCE EXCEPTION OF SECTION 75-3-803(4)(B)
DOES NOT PERMIT SUIT AGAINST A DECEDENT
¶11 	Mr. Berneau argues that the plain language of the
liability exception of Utah Code section 75-3-803(4)(b) allows
him to sue a dead person. 	We disagree. 	Instead, as advocated by
counsel for Mr. Martino and his estate, a plain reading does not
permit suit against a deceased, but rather should be interpreted
in harmony with the statute in which it is found and the related
provisions of the Utah Uniform Probate Code.
¶12 	We look first to the plain language of the statutes to
determine their meaning and to discern the intent of the

No. 20090134 	4
legislature. 	Sill v. Hart, 2007 UT 45, ¶ 7, 162 P.3d 1099;
Gohler v. Wood, 919 P.2d 561, 562 (Utah 1996). 	We also examine
“the purpose of the statute . . . and its relation to other
statutes.” 	R&R Indus. Park, L.L.C. v. Utah Prop. & Cas. Ins.
Guar. Ass’n, 2008 UT 80, ¶ 23, 199 P.3d 917. 	Provisions within a
statute are interpreted “in harmony with other provisions in the
same statute and with other statutes under the same and related
chapters.” 	State v. Schofield, 2002 UT 132, ¶ 8, 63 P.3d 667
(internal quotation marks omitted). 	“We do so because ‘[a]
statute is passed as a whole and not in parts or sections and is
animated by one general purpose and intent. 	Consequently, each
part or section should be construed in connection with every
other part or section so as to produce a harmonious whole.’”
Sill, 2007 UT 45, ¶ 7 (alteration in original) (quoting State v.
Maestas, 2002 UT 123, ¶ 54, 63 P.3d 621). 	Moreover, we avoid an
interpretation that would “embrace a result . . . so absurd that
it could not have been intended by the legislature.” 	Tschaggeny
v. Milbank Ins. Co., 2007 UT 37, ¶ 28, 163 P.3d 615 (citations
omitted).
¶13 	Section 75-3-803 of the Utah Code is a nonclaim
statute. 	It imposes a general time limitation on “[a]ll claims
against a decedent’s estate which arose before the death of the
decedent.” 	Utah Code Ann. § 75-3-803(1) (1993). 	Specifically,
the statute limits the time for presentation of such claims to
one year after a decedent’s death or within a shorter time frame
if actual or published notice is given. 	Id. 	An exception to
this general limitation exists, however. 	Section 75-3-803(4)
states:
Nothing in this section affects or
prevents . . . (b) to the limits of the
insurance protection only, any proceeding to
establish liability of the decedent or the
personal representative for which he is
protected by liability insurance . . . .”
Id. § 75-3-803(4).
¶14 	Mr. Berneau argues that this liability insurance
exception permits him to bring an action directly against
Decedent. 	He focuses on the phrase, “liability of the decedent
or the personal representative.” 	Id. (emphasis added). 	He
argues that a plain reading of this disjunctive language
demonstrates the intent of the legislature to permit actions
directly against a decedent. 	But such a reading would conflict
with statutory construction, disregard the notion of personal
jurisdiction, and result in practical difficulties.

1 Exceptions to the three-year limitations period exist,
but, none are applicable to this case. 	See Utah Code Ann. § 75-
3-107(1)(a)-(c) (1993).
5 	No. 20090134
¶15 	Construing the exception in harmony with the other
provisions of the section, the purpose of section 75-3-803 is to
limit the time in which claims may be presented against a
decedent’s estate. 	See Trimble v. Engelking, 939 P.2d 1379,
1380-81 (Idaho 1997) (construing that an identical liability
insurance exception “does not state that a plaintiff can directly
sue a decedent, as opposed to his estate, to prove such
liability”).
¶16 	The language upon which Mr. Berneau relies merely
distinguishes between the separate liability of a decedent and a
personal representative, who may of course be sued for
wrongdoing. 	All claims against both must be pursued against the
representative. 	The statutory scheme of the Utah Uniform Probate
Code, specifically sections 75-3-104 and -107, clearly provides
that all claims must be brought against the personal
representative of a decedent’s estate. 	Section 75-3-104 reads,
“No proceeding to enforce a claim against the estate of a
decedent or his successors may be revived or commenced before the
appointment of a personal representative.” 	Utah Code Ann. § 75-
3-104. 	As the Editorial Board Comment to section 75-3-104 notes,
“Creditors of a decedent are interested persons who may seek the
appointment of a personal representative” under section 75-3-301.
Id. editorial bd. cmt. 	Pursuant to section 75-3-107, an
appointment proceeding may not “be commenced more than three
years after the decedent’s death.” 1 	Id. § 75-3-107(1).
Therefore, if no appointment of a personal representative is made
within three years of the decedent’s death, a claim against the
decedent’s estate is barred. 	See also id. editorial bd. cmt.
(“[T]he three-year statute of limitations applies to bar
appointment of a personal representative after the basic period
has passed.”); In re Estate of Kruzynski, 744 A.2d 1054, 1056
(Me. 2000) (interpreting an identical liability insurance
exception to mean that “[c]laims cannot be presented to an estate
until there is a personal representative” and that the exception
does not apply to “the three-year time limitation”).
¶17 	Despite this harmonious interpretation, Mr. Berneau
argues that there is no need for a personal representative in his
case because he is not attempting to recover against and disrupt
the estate of Decedent. 	Rather, he seeks only the liability
insurance proceeds. 	Mr. Berneau points out that the legislature
has set a four-year time limit for his cause of action. 	See Utah
Code Ann. § 78B-2-307 (2008). 	The legislature ensures that such
tort causes of action for personal injury “[do] not abate upon

2 Although a liability insurance contract may be considered
an asset of an estate, “[t]ort claims filed against an estate
under the liability insurance exception do not affect the
interests of the beneficiaries under the estate and thus present
no obstacle to an orderly and exact administration of the
estate.” 	In re Estate of Daigle, 634 P.2d 71, 78 (Colo. 1981)
(internal quotation marks omitted). 	Indeed, “[r]ecovery in such
instances is limited to the liability insurance proceeds.
Neither the claims of general creditors nor the interests of
heirs and devisees will be adversely affected by the liability
insurance exception.” 	Id.
3 This rule arises in automobile insurance cases because
there is no “privity of contract between the [injured party] and
the [tortfeasor’s] insurer,” nor has the insurer “committed [any]
act making it liable in tort to [the injured party].” 	Davis
County v. Jensen, 2003 UT App 444, ¶¶ 13, 15, 83 P.3d 405 (first
and second alterations in original) (internal quotation marks
omitted). 	And although a direct action statute would allow for
suit directly against a tortfeasor’s insurer, no such statute
exists in Utah. 	See id. ¶¶ 12-13; cf. R.I. Gen. Laws § 27-7-2
(2009) (stating that an injured party “may proceed directly
against the insurer” where “before suit has been brought and
probate proceedings have not been initiated the insured has
died”).
No. 20090134 	6
the death of the wrongdoer.” 	Id. § 78B-3-107(1)(a). 	Elsewhere,
the legislature mandates liability insurance for owners and
operators of motor vehicles. 	Id. § 41-12a-301 (2005 & Supp.
2008). 	These enactments, along with the liability insurance
exception, manifest the legislature’s intent to allow an injured
party to recover up to the limits of liability insurance
protection without disrupting a decedent’s estate. 	While we
agree that such an intent for recovery exists and that this
limited recovery would not disrupt the estate, 2 the appointment
of a personal representative is nonetheless a necessity.
¶18 	This necessity becomes clear when the practicalities
are considered. 	Courts do not have personal jurisdiction over
deceased persons. 	Ramirez v. Lembcke, 80 P.3d 510, 512 (Or. Ct.
App. 2003). 	Further, as Mr. Berneau encountered in the first
dismissal of his complaint for failure to serve, a lawsuit
against a decedent creates practical problems. 	Mr. Berneau
attempted to remedy this “impracticability” by alternatively
serving the registered agent of State Farm. 	But “[i]n Utah, a
plaintiff must direct his action against the actual tortfeasor,
not the insurer.” 	Campbell v. Stagg, 596 P.2d 1037, 1039 (Utah
1979). 3 	Therefore, “by necessity, a plaintiff must . . . obtain
appointment of a personal representative to give a trial court

7 	No. 20090134
personal jurisdiction over the estate whether or not the decedent
was covered by liability insurance” and to overcome the obvious
practical difficulties that emerge in suing a deceased person.
Hamilton v. Blackman, 915 P.2d 1210, 1216 (Alaska 1996); see also
Pezzi v. Brown, 697 So. 2d 883, 885 (Fla. Dist. Ct. App. 1997)
(holding that in the plaintiffs’ attempt to recover only
liability insurance proceeds, “the personal representative was
still the proper nominal party in a lawsuit to establish
liability of the decedent tort-feasor”).
¶19 	We therefore decline to read the insurance liability
exception of Utah Code section 75-3-803(4)(b) as permitting suit
directly against a deceased person. 	Although the exception
renders inapplicable the strict time limits of subsection 75-3-
803(1), it does not obviate the requirement of a personal
representative or the time period within which one must be
appointed.
¶20 	Mr. Berneau concedes that despite his compliance with
the applicable four-year statute of limitations for his tort
cause of action, which seeks only liability insurance proceeds,
he did not seek an appointment of a personal representative
within the three years following Mr. Martino’s death. 	He failed
to do so because he did not know about the unexpected death of
the young Mr. Martino. 	While this failure would ordinarily bar
Mr. Berneau’s claim, we do not think the legislature intended to
permit an injured party to seek the limited recovery of liability
insurance proceeds within the statutory four-year limit for tort
claims, yet bar that same claim for failure to appoint a personal
representative within three years of an unknown death. 	Faced
with these circumstances, we have three choices: the court could
“closely adhere to the statute which in its wording makes no
allowance for the unusual circumstance of the death not being
discovered until after the period of limitations had run”; usurp
the legislative prerogative by carving out an exception to the
statutory language; or judicially apply the equitable discovery
rule. 	Myers v. McDonald, 635 P.2d 84, 87-88 (Utah 1981) (Howe,
J., concurring). 	We turn to the most compelling option, the
equitable discovery rule.
II. 	THE EQUITABLE DISCOVERY RULE MAY APPLY TO TOLL THE
THREE-YEAR LIMITATIONS PERIOD FOR APPOINTMENT
OF A PERSONAL REPRESENTATIVE
¶21 	Although the liability insurance exception of Utah Code
section 75-3-803(4)(b) does not permit suit directly against a
decedent, the failure here to appoint a personal representative
within three years after Mr. Martino’s death does not necessarily
time bar Mr. Berneau’s suit. 	The legislature clearly intended to

No. 20090134 	8
allow an injured party to recover liability insurance proceeds.
Utah Code Ann. § 75-3-803(4)(b) (1993). 	It also assigned a
general tort cause of action a four-year statute of limitations,
expressly stated that a tort cause of action survives a
tortfeasor’s death, and mandated liability insurance for owners
and operators of motor vehicles. 	See id. § 78B-2-307 (2008); id.
§ 78B-3-107; id. § 41-12a-301 (2005 & Supp. 2008). 	Given these
legislative enactments, and to avoid an unjust and unintended
result, we hold that where the recovery sought is limited to
liability insurance proceeds, and the death of the tortfeasor was
not reasonably known by the plaintiff, the equitable discovery
rule applies to toll the three-year limitations period for
appointment of a personal representative.
¶22 	Although a statute of limitations generally begins to
run upon the completion of a cause of action, “the discovery rule
may nonetheless operate to toll a statute of limitations until
the time at which a party discovered or reasonably should have
discovered facts forming the basis for the cause of action.” 	In
re Hoopiiaina Trust, 2006 UT 53, ¶ 35, 144 P.3d 1129 (internal
quotation marks omitted). 	Indeed, “in a system where a statute
of limitations controls a potential plaintiff’s ability to file a
cause of action, the discovery rule balances the equitable
interests of the potential plaintiff and defendant where the
potential plaintiff has discovered [new] facts forming the basis
for the cause of action.” 	Beaver County v. Prop. Tax Div. of the
Utah State Tax Comm’n, 2006 UT 6, ¶ 53, 128 P.3d 1187 (Durham,
C.J., concurring in the result)(alteration in original) (internal
quotation marks omitted).
¶23 	For the equitable discovery rule to apply, one of two
situations must exist: (1) “a plaintiff does not become aware of
the cause of action because of the defendant’s concealment or
misleading conduct” or (2) “the case presents exceptional
circumstances and the application of the general rule would be
irrational or unjust, regardless of any showing that the
defendant has prevented the discovery of the cause of action.”
Russell Packard Dev., Inc. v. Carson, 2005 UT 14, ¶ 25, 108 P.3d
741 (internal quotation marks omitted). 	Yet before a statute of
limitations may be tolled under either situation, the plaintiff
must make an initial showing that he did not know nor should have
reasonably known the facts underlying the cause of action in time
to reasonably comply with the limitations period. 	See Allred v.
Allred, 2008 UT 22, ¶ 37, 182 P.3d 337; Sevy v. Sec. Title Co.,
902 P.2d 629, 634 (Utah 1995). 	This knowledge may be actual or
constructive. 	Russell Packard Dev., Inc., 2005 UT 14, ¶ 22. 	The
determination of the initial showing is a question of fact.
Ockey v. Lehmer, 2008 UT 37, ¶ 34, 189 P.3d 51. 	“The ultimate
determination of whether a case presents exceptional

9 	No. 20090134
circumstances” is a question of law and turns on a balancing
test. 	Warren v. Provo City Corp., 838 P.2d 1125, 1129 (Utah
1992); Ockey, 2008 UT 37, ¶ 34. 	This balancing test examines
“[t]he hardship the statute of limitations would impose on the
plaintiff . . . [against] any prejudice to the defendant from
difficulties of proof caused by the passage of time.” 	Myers v.
McDonald, 635 P.2d 84, 87 (Utah 1981).
¶24 	In Myers, the court adopted and addressed this
balancing test to determine whether exceptional circumstances
warranted application of the equitable discovery rule. 	Id. at
86-87. 	In that case, a minor had disappeared. 	Id. at 85. 	His
guardians contacted police to report the disappearance, and the
police listed the minor as a runaway. 	Id. 	Meanwhile, a
newspaper reported an automobile accident in November 1976 in
which a boy, with a different name and description, was killed.
Id. 	In July 1979, the guardians discovered that the accident
victim was their ward. 	Subsequently, the guardians brought an
action for the wrongful death of their ward. 	Id. 	However, the
district court dismissed their wrongful death action because the
plaintiffs filed it beyond the two-year statute of limitations
period. 	Id.
¶25 	In determining whether the exceptional circumstances of
the equitable discovery rule applied, the court reasoned that
“despite [the plaintiffs’] efforts to discover [the minor’s]
whereabouts plaintiffs had no knowledge of their ward’s death and
therefore no knowledge that a cause of action existed until after
the two-year limitations period had expired.” 	Id. at 86-87.
The court then applied the balancing test. 	Because the defendant
suffered no greater prejudice than the plaintiffs regarding
problems of proof and the plaintiffs’ only alternative was to
bring the action after the statute of limitations had expired,
the court held that exceptional circumstances existed that
warranted application of the equitable discovery rule. 	Id. at
87.
¶26 	In this case, although the death of Mr. Martino does
not form an element in Mr. Berneau’s tort cause of action, the
death does prevent Mr. Berneau from filing the cause of action
without the appointment of a personal representative. 	Moreover,
assuming the allegations in the complaint to be true, as we are
required to do in reviewing a dismissal under Utah Rule of Civil
Procedure 12(b)(6), Mr. Berneau meets the initial showing for an
application of the equitable discovery rule. 	Within three months
of the accident on September 23, 2003, Mr. Martino unexpectedly
passed away at the age of twenty-two, due to causes unrelated to
the accident. 	Also, Mr. Berneau’s counsel timely informed Mr.
Martino’s insurer, State Farm, of his client’s intent to bring a

4 Had State Farm learned of its insured’s death within the
three-year period for appointment of a personal representative
and yet concealed that fact from Mr. Berneau, a tolling may have
been appropriate under the concealment or misleading conduct
situation of the equitable discovery rule. 	Since no such
concealment has been alleged, we do not address this issue.
5 As was similarly noted by Justice Howe in his concurrence
in Myers v. McDonald, “there may well be a denial of
constitutional rights [pursuant to the open courts clause of Utah
Constitution, Article I, section 11] in foreclosing persons from
access to the court under these unusual circumstances.” 	635 P.2d
84, 88 (Utah 1981). 	The proper application of the equitable
discovery rule avoids any such potential constitutional
violation.
No. 20090134 	10
personal injury claim. 	Despite ongoing written and verbal
communications concerning the claim, State Farm itself did not
learn of its insured’s death until October 4, 2007, 4 and Mr.
Berneau did not learn of the death until February 4, 2008, well
outside the three-year period for appointment of a personal
representative. 	Mr. Berneau therefore did not know nor should he
reasonably have known of Mr. Martino’s death in time to seek the
appointment of a personal representative. 	Accordingly, Mr.
Berneau satisfies the initial showing.
¶27 	Furthermore, the case presents exceptional
circumstances and an otherwise unjust result. 	This is an unusual
situation, one which we have not seen and one that likely was not
anticipated by the legislature. 	The statutory scheme shows that
the legislature intended both to permit an injured party to bring
a general tort cause of action in four years, and to recover up
to the limits of liability insurance coverage from a deceased
tortfeasor’s insurer. 	Yet when, as here, a deceased tortfeasor
dies within one year of an accident and the tortfeasor’s death is
not reasonably known to the injured party, the injured party’s
claim is prematurely terminated before the filing of an otherwise
timely suit. 	In short, Mr. Berneau’s action was cut off before
it began. 5
¶28 	Applying the balancing test, we conclude that the
hardship the three-year limitations period imposes on Mr. Berneau
outweighs any prejudice to the potential personal representative
named as the defendant. 	If Mr. Berneau is “denied the
opportunity of proceeding with [his] action, the law would be in
the untenable position of having created a remedy for [Mr.
Berneau] and then barring [him] from exercising it before [he]
had any practical opportunity to do so.” 	Myers, 635 P.2d at 87.
In contrast, the potential personal representative will

6 We note that this equitable solution of the discovery rule
accords with the decisions of other courts that resolve similar
dilemmas involving a deceased tortfeasor. 	See, e.g., In re
Estate of Chase, 609 P.2d 85, 89 (Ariz. Ct. App. 1980) (allowing
court to reopen an estate for the filing of a suit under the
liability insurance exception so long as “there is no effect on
the in rem concept of finality in respect to the decrees of
settlement, and if no rights settled by those decrees are
affected”); Mach v. Schmer, 550 N.W.2d 385, 392 (Neb. Ct. App.
1996) (noting that where a claim is sought under the liability
insurance exception, the estate may be “reopened for the limited
purpose of service of process in the civil action to establish
liability”).
11 	No. 20090134
experience no more prejudice in defending a stale claim than Mr.
Berneau will face in prosecuting his claim.
¶29 	Accordingly, we hold that under the facts alleged,
exceptional circumstances exist to warrant application of the
equitable discovery rule to toll section 75-3-107’s three-year
limitations period for appointment of a personal representative.
We therefore reverse the order dismissing Mr. Berneau’s complaint
and remand to the district court so that Mr. Berneau may have the
opportunity to seek the appointment of a personal representative
for Mr. Martino’s estate.
¶30 	Finally, we emphasize that equitable tolling must be
carefully applied. 	As we have noted before, “liberal tolling
could potentially cause greater hardships than it would
ultimately relieve.” 	Estes v. Tibbs, 1999 UT 52, ¶ 7, 979 P.2d
823. 	This is especially true in matters involving a decedent’s
estate. 	The need for finality in estate assets trumps any
equitable tolling, even if irrational or unjust. 	Harsh
requirements are typical in estate matters and the legislature
purposely sets strict time limits for efficient and final
administration of estates. 	We have applied the equitable
discovery rule in this case because the legislature clearly
intended to allow an injured tortfeasor to recover up “to the
limits of the [liability] insurance protection only.” 	Utah Code
Ann. § 75-3-803(4)(b). 	Therefore, because Mr. Berneau’s claim is
limited to the proceeds of Decedent’s insurance policy, there is
no exposure for his estate or any beneficiaries. 6
CONCLUSION
¶31 	We hold that the liability insurance exception of Utah
Code section 78-3-803(4)(b) does not permit Mr. Berneau to
directly sue the deceased Mr. Martino. 	Instead, as dictated by
sections 75-3-104 and -107, a personal representative must be

No. 20090134 	12
appointed and that appointment must generally take place within
three years after the decedent’s death.
¶32 	However, despite Mr. Berneau’s failure to meet the
three-year deadline, we hold that given the exceptional
circumstances alleged and the otherwise unjust result, the
equitable discovery rule applies to toll the three-year
limitations period in this case. 	On remand, Mr. Berneau will
have until February 4, 2011, three years after he learned of Mr.
Martino’s death, to seek appointment of a personal
representative. 	If he fails to do so, his action will be time
barred for failure to comply with section 75-3-107. 	Also on
remand, although an initial showing regarding the plaintiff’s
knowledge is generally required, this case necessitates, in
accordance with our ruling in Part I, that a personal
representative be appointed first. 	If after the appointment of a
personal representative, it is found that Mr. Berneau knew or
reasonably should have known of Mr. Martino’s death in such time
that his tort action would not have been unreasonably and
prematurely cut off, and no alternate theory of concealment or
misleading is proven, then the equitable discovery rule will not
apply and Mr. Berneau’s complaint should be dismissed pursuant to
Utah Code section 75-3-107. 	Accordingly, we remand the case to
the district court for proceedings consistent with this opinion.
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¶33 	Associate Chief Justice Durrant, Justice Wilkins,
Justice Parrish, and Justice Nehring concur in Chief Justice
Durham’s opinion.