I recently read in the Legal Profession blog a summary of a recent decision out of the Utah Supreme Court with the oddest fact pattern I have seen all year, which provides an interesting discussion of issues related to the two courses I teach: Torts and Professional Responsbility. The case is Bagley v. Bagley and you can read the full opinion here.
Here are the facts of the case: One day back in 2011, Ms. Barbara Bagley, the common law wife of Bradley Vom Baur, lost control of the car in which they were traveling. Mr. Vom Baur was thrown from the vehicle and sustained severe injuries due to which he died ten days later. Eventually, in her dual capacities as sole heir and personal representative of the estate of Bradley Vom Baur, Ms Bagley sued herself in an attempt to compel her insurance company to indemnify her. Ms. Bagley was, therefore, the plaintiff and the named defendant in the lawsuit at the same time.
Plaintiff Bagley brought her first cause of action pursuant to Utah’s wrongful death statute, alleging that Defendant Bagley (herself) negligently caused Mr. Vom Baur’s death, thereby depriving his sole heir (ie, Plaintiff Bagley herself) of Mr. Vom Baur’s love, companionship, society, comfort, care, protections, financial support, pleasure, and affection.
Plaintiff Bagley brought her second cause of action as the personal representative of Bradley Vom Baur‘s estate pursuant to Utah’s survival action statute, alleging that Defendant Bagley negligently caused Mr. Vom Baur to experience pain and suffering prior to his death, which entitles Mr. Vom Baur’s estate to damages such as funeral expenses and medical bills.
The trial court granted a motion to dismiss, but the court of appeals reversed.
On these facts and based on the Court’s interpretation of the plain language of the two statutes, the Supreme Court affirmed the court of appeals and held that the “wrongful death and survival action statutes permit a person acting in the legal capacity of an heir or personal representative to sue him or herself in an individual capacity for negligently causing a decedent’s death or injury.”
In the case before the Supreme Court Ms. Bagley as plaintiff and Ms. Bagley as defendant were represented by a different law firms, but the Utah Defense Lawyers Association filed an amicus curiae brief arguing that the case would have negative consequences on the practice of law and that it presented impermissible conflict of interest. Among other things, the Association argued that the case “distorts the attorney-client relationship by creating a concurrent conflict of interest because “defense counsel’s representation of the client as the defendant is directly adverse to defense counsel’s representation of that same person who is also the plaintiff.” It also argued that the conflict would affect an attorney’s ability to communicate with his or her client, because, among other things, the client knows that anything she reveals will be used against her. Finally, the Association also raised concerns about jury confusion and the ability of an attorney to cross-examine his own client.
The Court admitted that the arguments “are not without merit” but dismissed them holding that the situation did not create a concurrent conflict because plaintiffs and defendant were acting “in different legal roles.” (See footnote 37 of the opinion)
You can read the full opinion here.