by Randall Bunnell
Reviewed by John F. Fay
Recently Randy Bunnell published a book. But after you read it, you won’t call it a book; you will call it the Utah auto law bible. Jurists statewide will nickname it The Judge’s Bench Book. To say the text is comprehensive is modest. The topics range from the commonplace to the rare and sometimes once-in-a-career factual situations. The book is a must for auto plaintiff and defense attorneys, as well as auto claims adjusters.
Randy addresses commonplace questions like the collateral source rule and mitigation of damages; loss of use and the discovery of the insurer’s file; equitable subrogation, the common fund rule, the made-whole and the sudden-peril doctrines; the different statutes of limitations, claim notices for governmental immunity cases, the arbitration of auto liability claims between family members, and arbitrating UM and UIM claims; who is covered by PIP; stacking of PIP, UM, and UIM coverages, the absence of threshold requirements in UM claims; rental car liability coverage; pedestrians, bicyclists, motorcyclists, emergency vehicles, unattended vehicles and common carriers; the duty to take evasive action notwithstanding one’s right-of-way, open and controlled intersections, left turn cases, and many other commonplace topics.
Some of the less typical issues he addresses are vicarious liability for punitive damages, first party and third party insurance bad faith, proving a pre-existing medical condition through welfare payments; the use of prior crashes in same location to prove the present collision; step down coverages, judicial notice of headlights of a passing vehicle obscuring a driver’s vision; the failure to sound one’s horn, the intentional acts exclusion, who is an independent contractor or employee and why; the problems attendant to misrepresentations in an insurance application; the requirements to validly cancel an insurance policy, newly acquired vehicle coverage; icy roads as causation; no contact accidents, railroad crossings, the duty to remove obstructions constituting traffic hazards, lead vehicle rear-end collisions; the comparative negligence of passengers, negligent entrustment, road rage liability as well as other issues.
Throughout the text Randy addresses the once-in-a-legal career questions such as conflicts of law, auto owner liability for leaving the key in the ignition where the thief causes a crash; bodily injury liability release avoidance, auto agent liability for failure to procure insurance, failure of a governmental entity to maintain roadway manhole covers and semaphores; negligent road design, liability of joint venture passengers, exceptions to coming and going rule, dramshop liability, passenger liability for wrongful acts, and police officer liability while directing traffic, etc.
In the workers’ compensation arena of exclusive remedy, he addresses issues including the loaned servant, fellow servant, and special employee rules; the going and coming rule, the special errand and the special hazard exceptions; the personal comfort rule, and issues surrounding being on the work premises, before and after work.
There is a comprehensive discussion of government immunity, wrongful death, survival actions, and various liens asserted in an auto injury case: PEHP, ERISA, medicare, medicaid, hospital, attorney, workers compensation, crime victims’ reparation, and child support.
These specific points I found enlightening:
1. How the differences between the right to control the operation of the vehicle and the right to control the destination can be determinative of agency.
2. Liability coverage can be available where there is implied permission from the owner to the driver. One can show implied permission by evidence of acquiescence and the course of past dealings between the driver and the vehicle owner. Implied permission can even extend to a secondary permittee driver unknown to the owner.
3. Liability coverage is available up to the statutory, minimum coverage with intentional acts, notwithstanding a policy’s intentional acts exclusion. In determining, intentional, one looks to see if the result was intended or expected, not whether the act was intended or deliberate. It is not the foreseeability, but whether any injury was expected.
4. Why PIP’s $20 per day loss of services coverage is not limited to $20 per day.
5. What do the terms regular use, arising out of and in the course of mean?
What constitutes a theft for property damage coverage?
Why the unavoidable accident instruction is always improper?
What constitutes a proper lookout, or an immediate hazard?
6. When does an agent’s duty to procure insurance coverage create a contract to procure coverage? …the expression of a desire to obtain insurance followed by an oral affirmation of that desire is not enough to create a contract to procure insurance.…Rather, the contract can arise, when the agent has definite directions from the insured to consummate a final contract; when the scope, subject matter, duration, and other elements can be found by implication; and when the insured gives the agent authority to ascertain some of the essential facts.
7. That there is no government duty to install roadway lighting. But once installed, there is a duty to properly maintain it and to insure that the lighting itself does not create a hazard.
8. Whether a misrepresentation in an insurance application is material does not depend upon what the insured or the insurer may think about the importance of the misrepresentation but rather: What those engaged in the insurance business, acting reasonably and naturally in accordance with the usual practice among insurance companies under such circumstances, would have done had they known the truth; that is, whether reasonably careful and intelligent men would have regarded the facts stated as substantially increasing the chances of the happening of the event incurred against so as to cause a rejection of the application.
Interestingly, a contract of insurance is voidable, not void ab initio, at the election of the insurer where there has been material misrepresentation. Thus, the insurer’s subsequent acts can waive its right to void the contract.
9. When responding to an emergency call, the operator of an authorized emergency vehicle has the following privileges: (a) to park or stand his vehicle irrespective of the provisions of the traffic code, (b) to proceed past a red or stop sign “but only after slowing down as may be necessary for safe operation,” (c) to exceed the maximum speed limit and, (d) to disregard regulations governing direction of vehicle movement or turning in specific directions. The driver’s right to use greater speed appears related to the seriousness of the patient’s condition.
10. No claims are available against the government or its agents for negligence caused to a member of the public unless one can show that: (a) there was a breach of duty owed to the member as an individual [not merely a breach owed to the general public]; or, (b) a special relationship between the government and the individual.
Randy’s treatise is supported by in depth analysis of hundreds of statutory and case law authorities. No doubt, some of this stuff you already know but it is secreted away in the cobwebs of your mind. Now you will know how to quickly dig out these treasured points, including the supporting authority. Randy’s book brings it all together in an organized and logical way. Settling and litigating auto accident cases is tough even in the best of circumstances. Do yourself a favor, get a head start on the governing law on virtually every auto insurance, vehicle, and roadway situation possible. Get yourself a copy of this treatise. I promise, you will be able to leave work earlier on Saturdays.