Arnold v. Grigsby

2009 UT 88
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
----oo0oo----
Gina M. Arnold and 	No. 20080255
Charlie S. Arnold,
Plaintiffs and Respondents,
v.
David Grigsby, M.D.,
Gary B. White, M.D., and 	F I L E D
Uintah Basin Medical Center,
Defendants and Petitioner. 	December 29, 2009
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Eighth District, Duchesne
The Honorable John R. Anderson
No. 20060481
Attorneys: 	Roger P. Christensen, Karra J. Porter, Sarah E.
Spencer, Salt Lake City, for plaintiffs
Larry R. White, Paul D. Van Komen, Daniel R. Harper,
Salt Lake City, for defendant
---
On Certiorari to the Utah Court of Appeals
WILKINS, Justice:
¶1 	Petitioner David Grigsby, M.D. seeks our review of the
decision of the Utah Court of Appeals reversing the district
court’s ruling that the two-year statute of limitations in the
Utah Health Care Malpractice Act (the Malpractice Act), Utah Code
Ann. § 78-14-4 (2002), was not tolled under Utah Code section 78-
12-35 while Dr. Grigsby was residing out of state. 	We agree with
the district court and reverse the court of appeals.
BACKGROUND
¶2 	On December 4, 2001, Respondent Gina M. Arnold and her
husband brought this medical malpractice action against
defendants Gary White, M.D., David Grigsby, M.D., and the Uintah
Basin Medical Center in connection with the perforation of Mrs.

1 For a more detailed factual account of Mrs. Arnold’s
treatment, see the court of appeals’ opinion. 	Arnold v. Grigsby,
2008 UT App 58, ¶¶ 2-8, 180 P.3d 188.
2 The legislature renumbered Title 78 in 2008, resulting in
the change of this section to 78B-3-404. 	For consistency with
the court of appeals decision, we cite to the old version.
However, we note that our analysis herein is applicable to the
renumbered version as well.
3 Renumbered in 2008 as sections 78B-3-205 to -206.
4 Dr. Grigsby moved from Utah in July 2000 to practice
medicine in Tennessee.
5 The court certified its order granting summary judgment as
final under Utah Rules of Civil Procedure 54(b) and stayed the
remaining claims pending the Arnolds’ appeal.
6 Renumbered in 2008 as section 78B-2-104.
No. 20080255 	2
Arnold’s colon and subsequent treatment occurring in July and
August 1999. 1
¶3 	Following discovery, briefing, and oral argument by the
parties, the district court granted a motion by Dr. Grigsby for
summary judgment, concluding that the Arnolds’ claim was barred
as a matter of law by the two-year statute of limitations imposed
on claims of medical malpractice under Utah Code section 78-14-4
(2002). 2 	The district court found that the statute of
limitations on the Arnolds’ claim began to run in November 1999
when Mrs. Arnold first became aware of her injury, more than two
years prior to the Arnolds’ filing of their complaint on December
4, 2001. 	Further, the court concluded that although, in general,
tolling statutes do apply to the Malpractice Act, the out-of-
state tolling provision of Utah Code section 78-14-4 did not
apply to Dr. Grigsby in this case because he remained amenable to
service under Utah’s long-arm statute, Utah Code sections 78-27-
24 to -25, 3 while he was out of state. 4
¶4 	The Arnolds appealed the district court’s order to the
court of appeals. 5 	With regard to tolling, and based on our
ruling in Olseth v. Larson, 2007 UT 29, 158 P.3d 532, the court
of appeals reversed, holding that the out-of-state tolling
provision of Utah Code section 78-12-35 6 did apply to the
Malpractice Act’s statute of limitations in this case, because
the out-of-state defendant, Dr. Grigsby, did not designate an in-
state agent to receive service of process in his absence. 	Arnold

3 	No. 20080255
v. Grigsby, 2008 UT App 58, ¶¶ 23-24, 180 P.3d 188. 	The court of
appeals did not reach the Arnolds’ claim that the district court
improperly resolved issues of fact as to when the statute of
limitations began to run. 	Id.
¶5 	Dr. Grigsby sought a writ of certiorari, which we
granted. 	The specific question on which we granted review was
whether the Utah Health Care Malpractice Act statute of
limitations, Utah Code section 78-14-4 (2002), is subject to
tolling under Utah Code section 78-12-35 (2002) when a defendant
is out of state. 	After oral argument, we expanded our review to
include the question of what application the tolling statute,
section 78-12-35, has on the limitation contained in section 78-
14-4, and invited the parties to submit supplemental briefs on
that question. 	Both parties submitted additional briefing, and
we have reviewed and taken into account those authorities and
arguments.
¶6 	This Court has jurisdiction pursuant to Utah Code
section 78A-3-102(3)(a) (2008), which grants the supreme court
appellate jurisdiction over a decision of the court of appeals.
STANDARD OF REVIEW
¶7 	On a writ of certiorari, this court reviews the
decision of the court of appeals, not that of the district court.
John Holmes Constr., Inc. v. R.A. McKell Excavating, Inc., 2005
UT 83, ¶ 6, 131 P.3d 199. 	The application of a statute of
limitations is a question of law. 	In re Hoopiiaina Trust, 2006
UT 53, ¶ 19, 144 P.3d 1129. 	Statutory interpretation is also a
question of law. 	Sill v. Hart, 2007 UT 45, ¶ 5, 162 P.3d 1099.
We review conclusions of law for correctness, granting the court
of appeals’ decision no deference. 	State v. Casey, 2003 UT 55,
¶ 10, 82 P.3d 1106.
ANALYSIS
¶8 	Our analysis requires consideration of both the tolling
statute in Utah Code section 78-12-35, and the provisions of the
Malpractice Act, particularly the statute of limitations in
section 78-14-4. 	We begin with the tolling statute, because if
it does not apply to the limitation in the Malpractice Act, the
district court, and subsequently the court of appeals, was
incorrect in its consideration of tolling, notwithstanding that
the result it reached may have been correct. 	If it does not
apply, we would not be required to reach the terms of the statute
of limitations itself, since no tolling would intervene to extend
the limitation period. 	The remaining question of whether or not

7 The Malpractice Act applies its statute of limitations “to
all persons regardless of minority or other legal disability
under Section 78-12-36 or any other provision of the law.” 	Utah
Code Ann. § 78-14-4(2). 	Dr. Grigsby argues that this language
indicates the legislature’s intent to remove the Malpractice Act
statute of limitations from the sweep of the tolling statute.
However, as discussed hereafter, we need not reach this argument.
No. 20080255 	4
the filing by the Arnolds was otherwise beyond the limitation
period and therefore barred is not now before us.
¶9 	If, on the other hand, the tolling statute does apply
to the Malpractice Act statute of limitations, the language of
the malpractice limitation itself becomes critical and the result
may be dictated by the legislature’s apparent effort to
specifically remove the Malpractice Act from the broad sweep of
the tolling statute. 7 	Consequently, we begin with the
applicability of the tolling statute to the health care
Malpractice Act statute of limitations.
¶10 	Initially, we note that the tolling statute appears as
part of Title 78, Chapter 12 of the Utah Code. 	The general
provisions relating to statutes of limitations for various
categories of actions also appear as part of the same title and
chapter. 	The language of the tolling statute makes specific
reference to the chapter within which it is placed, and reads:
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
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.
Utah Code Ann. § 78-12-35 (2002) (emphasis added).
¶11 	In this case, Dr. Grigsby was absent from the state of
Utah for a period of time sufficient to allow the Arnolds’ filing
to be timely if the Malpractice Act statute of limitations was
tolled during his absence. 	The district court concluded that the
cause of action against Dr. Grigsby accrued prior to his
departure from the state. 	The Arnolds challenge that conclusion
on appeal, but the issue was not reached by the court of appeals
because it reversed the district court on other grounds. 	The
question may still need to be reviewed, and addressed, based upon

5 	No. 20080255
our reversal of the court of appeals on the applicability of the
statute of limitations.
¶12 	If we accept the language of section 78-12-35’s first
sentence at face value, it certainly appears that the tolling
provisions apply only to limitation periods set forth in chapter
12. 	The phrase “as limited by this chapter” appears to limit the
application of the tolling provision to limitations contained in
chapter 12 of title 78, so long as the cause of action arose
after the defendant left the state. 	If this analysis is applied,
the statute of limitations contained in the Malpractice Act,
wholly contained in chapter 14 of title 78, falls outside of the
identified field of application for tolling. 	No tolling would
apply if the cause of action arises after the defendant leaves
the state.
¶13 	However, the second sentence of the statute, which sets
forth tolling for a cause of action that arises prior to the
defendant’s departure from the state, makes no mention of any
confinement to chapter 12. 	If the cause of action in this case
arose, as a matter of law, prior to Dr. Grigsby’s departure from
Utah, does the absence of the “as limited by this chapter” phrase
in the second sentence of section 78-12-35 mean it is not
confined to chapter 12 statutes of limitations, or merely that in
calculating a limitation imposed by chapter 12 the tolling simply
stops the clock from running during the absence?
¶14 	A more expansive application of the tolling statute if
the cause arises after the defendant departs the state, as
contrasted with a cause that arises before departure, requires
justification that is not advanced by the parties or the language
of the statute. 	No reasonable difference exists between a cause
of action that arises the day before and one that arises the day
after a potential defendant departs the state. 	To specifically
allow extended tolling of the statute of limitations for one, and
not the other, defies any reasonable explanation. 	As such, the
suggestion that only the first sentence of section 78-12-35 was
intended by the legislature to be confined to terms of limitation
set forth in chapter 12, and not the second, is not reasonable.
¶15 	A stopped(-)clock analysis, on the other hand, provides
a simple, reasonable, and non-contradictory explanation for the
language employed by the legislature in the second sentence.
Under the stopped(-)clock approach, only the unexpired term of
the statute of limitations remains within which to file the claim
after the return of the defendant to the state. 	That portion of
the total term of the limitation that passed prior to the
defendant’s departure from Utah is not allowed to pass a second

No. 20080255 	6
time in the overall calculation of the limitation term. 	The
second sentence of section 78-12-35 serves only to make plain
that the calculation of any remaining term of limitation is
somewhat different for claims arising before the interposition of
the toll, and those arising after. 	This interpretation is
consistent with the plain language and the overall purpose of the
statute.
¶16 	The entire limitation period is to commence upon the
defendant’s return to the state only if the cause arose during
his absence. 	Otherwise, only the remaining limitation time is
available after tolling has been applied.
¶17 	This is the most reasonable and logical interpretation
of the interplay of the two sentences in section 78-12-35. 	As
such, no ambiguity arises between the two, and the phrase in the
first sentence “as limited by this chapter” can only refer to
chapter 12 of title 78, based upon the plain language.
¶18 	Consequently, section 78-12-35 can play no part in the
interpretation of limitations of action contained in chapters and
titles other than title 78, chapter 12. 	If the legislature
intended otherwise, the plain language of the tolling statute
must be revised to clearly express such an intent. 	No such
intent can be reasonably inferred from the present language, or
the other provisions of chapter 12, if they are to be read in
harmony.
¶19 	As we have so often said, when interpreting a statute,
we look first to the statute’s plain language. 	Evans v. State,
963 P.2d 177, 184 (Utah 1998). 	We look beyond the plain language
only if we find ambiguity. 	Id. 	“Statutory language is ambiguous
if it can reasonably be understood to have more than one
meaning.” 	Id. 	If, as here, the challenged language cannot
reasonably be understood to have more than one meaning, it is not
ambiguous.
¶20 	The plain language of section 78-12-35 limits the
tolling it provides to only those terms of limitation of actions
set forth in title 78, chapter 12. 	It does not apply to the
statute of limitations for health care malpractice described in
title 78, chapter 14. 	Consequently, the decision of the court of
appeals is incorrect.
¶21 	Our prior case law is consistent with this analysis.
We have held that the tolling provisions of section 78-12-35
should be applied in accord with the plain language of the
section. 	The presence or absence of an authorized agent for

7 	No. 20080255
service of process does not alter that result, as we recently
held in response to the certified question of the United States
Court of Appeal for the Tenth Circuit. 	Olseth v. Larson, 2007 UT
29, ¶ 40, 158 P.3d 532.
¶22 	As part of the supplemental briefing, the parties
addressed this question. 	Dr. Grigsby sees no ambiguity, and
would apply the language of section 78-12-35 only to limitations
specified in chapter 12. 	The Arnolds present a differing point
of view, and raise concerns that the issue has not been
previously considered, either by the district court or the court
of appeals, and suggest that addressing the question now is
inappropriate. 	We understand their concern, but in the interest
of correctly interpreting the interplay of the tolling statute
and the malpractice limitation upon which both the district court
and the court of appeals based their analysis, we find it
necessary to address the correct interpretation and application
of the tolling statute itself.
¶23 	By inviting the parties to carefully consider the
question and supply us with their legal arguments on the matter
through supplemental briefs, we have taken the necessary steps to
assure all sides have an opportunity to consider this critical,
and purely legal, argument. 	We have in the past, and no doubt
will in the future, rely upon this mechanism for assuring that
the rights of the parties to present their views and legal
arguments to the court for its consideration are honored, while
allowing full examination of the legal questions presented to us
for decision.
¶24 	In point of fact, both the court of appeals and the
district court addressed, with more or less specificity, the
interplay of the two statutes, and the proper application of the
tolling statute. 	We felt it only fair, however, to alert the
parties to the potential of our decision reaching an affiliated
issue not specifically raised in our grant of certiorari, and to
specifically invite their input on the issue.
CONCLUSION
¶25 	Because we conclude that the tolling provisions of
section 78-12-35 do not apply to the Arnolds’ medical malpractice
action against Dr. Grigsby, we reverse the decision of the court
of appeals and remand for consideration of other issues raised on
appeal that may be necessary for proper resolution of the appeal.
In particular, the Arnolds’ argument against the district court’s
interpretation of when their cause of action arose against Dr.
Grigsby, if successful, could make their claim filing timely

No. 20080255 	8
under the Malpractice Act statute of limitations set forth in
section 78-14-4, notwithstanding any application of the tolling
statute. 	If they prevail in this argument before the court of
appeals, they may overcome the statute of limitations applicable
to medical malpractice claims and be able to move forward with
their action.
¶26 	Reversed and remanded to the court of appeals for
consideration of unresolved issues raised on the appeal.
¶27 	Associate Chief Justice Durrant, Justice Parrish, and
Justice Nehring concur in Justice Wilkins’ opinion.
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DURHAM, Chief Justice, concurring:
¶28 	I concur with the majority’s opinion. 	I write
separately, however, because I believe that in making an
apparently stylistic change to Utah Code section 78-12-35 (the
tolling statute), the legislature may have unintentionally
eliminated the tolling of the statute of limitations for medical
malpractice actions.
¶29 	Section 78-12-35 provides:
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
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 commencement of this action.
Utah Code Ann. § 78-12-35 (2002) (emphasis added). 	The majority
concludes that under this plain language, out-of-state tolling
does not apply to medical malpractice actions if the action
accrues when the defendant is out of the state. 	To do so, the
majority focuses on the phrase, “as limited by this chapter.” 	It
reasons that because of this phrase, the only limitation periods
that may be tolled pursuant to this section are those limitations
contained in chapter 12. 	In contrast, the statute of limitations
applicable to medical malpractice actions is contained in chapter
14. 	Because this limitation falls outside of chapter 12, out-of-
state tolling, by its plain terms, does not apply. 	Also, to
avoid an unreasonable distinction based on one day, the majority

9 	No. 20080255
extends the chapter limitation to medical malpractice actions
that accrue while a defendant is in the state.
¶30 	The majority stresses this is the plain language of the
statute. 	I agree. 	The statute cannot reasonably be read another
way. 	It is therefore not ambiguous, and this court will not
resort to other interpretive tools--in particular, legislative
history. 	See Summit Water Distrib. Co. v. Summit County, 2005 UT
73, ¶ 17, 123 P.3d 437.
¶31 	Nonetheless, I hesitate because this determinative
language may have been intended only as a stylistic change. 	We
have noted that “the tolling statute remains materially unchanged
from its original enactment.” 	Olseth v. Larsen, 2007 UT 29,
¶ 25, 158 P.3d 532. 	The original version of the tolling statute
read:
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
(emphasis added). 	Since 1872, the legislature has made “a few
minor changes to [the] text.” 	Olseth, 2007 UT 29, ¶ 25.
¶32 	In 1987, one of these “minor” changes replaced the
phrase “herein limited” with “limited by this chapter.” 	Act of
Jan. 28, 1987, ch. 19, § 4, 1987 Utah Laws 310, 311. 	Arguably,
as the Arnolds have emphasized in this case, the legislature
intended this to be a stylistic change. 	Floor debates show that
the amending bill had three purposes: (1) eliminate the tolling
of statutes of limitation for incarcerated person, (2) redefine
insanity to toll statutes of limitations during mental
incompetence, and (3) reduce the statute of limitations for 42
U.S.C. § 1983 actions to two years. 	Senate Floor Debate, S.B.
26, 47th Leg., Gen. Sess. (Jan. 16, 1987); see also House Floor
Debate, S.B. 26, 47th Leg., Gen. Sess. (Jan. 28, 1987)
(identifying the same three purposes). 	Moreover, the bill’s
sponsor used a medical malpractice action as an example to
explain to other senators the process of tolling. 	Senate Floor
Debate, S.B. 26, 47th Leg., Gen. Sess. (Jan. 16, 1987) (Statement
of Senator Lyle W. Hillard).

No. 20080255 	10
¶33 	Today the court’s reading of the tolling statute
transforms this “minor” change into a material, substantive
change. 	Generally, a plain reading of a statute discerns
legislative intent. 	S. Utah Wilderness Alliance v. Automated
Geographic Reference Ctr., 2008 UT 88, ¶ 18, 200 P.3d 643. 	Yet
here, a “minor” change--perhaps intended only to update
anachronistic language--now has the consequence of eliminating
tolling for a host of limitation periods that lie outside chapter
12, including the statute of limitations for medical malpractice
actions. 	If this consequence was unintended, then the
legislature ought to revise section 78-12-35 to make its intent
clear under the plain language of the statute.
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¶34 	Associate Chief Justice Durrant, Justice Parrish, and
Justice Nehring concur in Chief Justice Durham’s concurring
opinion.