Uzelac v. Fire Insurance Exchange

2018 UT App 57
THE UTAH COURT OF APPEALS
M ICHAEL U ZELAC AND HOLLY U ZELAC ,
Appellants,
v.
F IRE I NSURANCE EXCHANGE,
Appellee.
Opinion
No. 20150699-CA
Filed April 5, 2018
Third District Court, Salt Lake Department
The Honorable Denise P. Lindberg
No. 110903573
L. Rich Humpherys and J.D. Lauritzen, Attorneys
for Appellants
Andrew M. Morse, Kenneth L. Reich, and Brian A.
Mills, Attorneys for Appellee
JUDGE GREGORY K. O RME authored this Opinion, in which JUDGES
M ICHELE M. C HRISTIANSEN and K ATE A. TOOMEY concurred.1
ORME, Judge:
¶1 	Only days before Appellants Michael and Holly Uzelac
were scheduled to close on a permanent mortgage for their new,
custom-built 	vacation 	home, 	they 	learned 	that 	vandals had
broken into the home and caused extensive damage. The Uzelacs
submitted 	several 	claims 	to 	their 	insurer, 	Appellee 	Fire
1. After hearing the arguments in this case, Judge Stephen L.
Roth recused himself and did not participate in the consideration
of the case. Judge Michele M. Christiansen, having reviewed the
briefs 	and 	listened 	to 	a 	recording 	of 	the 	oral 	arguments,
substituted for Judge Roth and participated fully in this decision.

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Insurance Exchange (FIE), and FIE made payments to cover most
of 	the 	necessary 	repairs. 	Nevertheless, 	believing 	they 	were
entitled to more, the Uzelacs filed suit against FIE to obtain
additional compensation. The parties proceeded to litigate, and
ultimately the district court entered summary judgment in favor
of FIE. The Uzelacs now appeal. For the reasons discussed
below, we affirm the district court’s decision in part and reverse
it in part, and we remand the case for further proceedings.
BACKGROUND2
¶2 	In 	February 	2008, 	having 	received 	word 	that 	the
construction and interior decoration of their new vacation home
had finally been concluded, the Uzelacs set out to view the
completed 	home 	for 	the 	first 	time. 	The 	home, 	set 	in 	the
mountains 	above 	Fruitland, 	was 	large 	and 	luxurious, 	with
lavish, custom-designed furnishings. Upon arriving, they were
horrified to find that their expensive new home was in shambles.
¶3 	Vandals had forced their way into the home; torn apart
the walls and ceiling; smashed exterior windows; and ripped the
plumbing from the framework, flooding the structure with hot
water. Combined with the frigid winter temperatures, the water
continued to wreak havoc upon the home even after the vandals
departed. Hardly a square foot of the home was left undamaged.
¶4 	The Uzelacs immediately filed a homeowner’s insurance
claim with FIE, claiming extensive damage to the home and its
contents. Soon after, an FIE representative visited the scene to
inspect the home and inventory the damaged personal property.
2. “When reviewing a district court’s grant or denial of a motion
for summary judgment, we view the facts in a light most
favorable to the party opposing the motion.” Anderson Dev. Co. v.
Tobias, 2005 UT 36, ¶ 31, 116 P.3d 323 (citation and internal
quotation marks omitted).

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FIE 	arranged 	for 	a 	third 	party, 	ServiceMaster, 	to 	conduct
mitigation and remediation services, the bulk of which consisted
of drying out the home and its contents and boxing up and
storing the Uzelacs’ furniture and belongings.3 FIE never took
the position that the Uzelacs’ policy was not in effect when the
vandalism occurred or that vandalism did not fall within the
scope of the policy’s coverage.
¶5 	FIE received and processed numerous claims from the
Uzelacs in connection with the vandalism. Nearly all of the
claims 	were 	approved, 	some 	on 	the 	same 	day 	they 	were
received. Indeed, altogether, FIE disbursed over $900,000 to
cover repairs to the home and over $100,000 to cover damage to
the Uzelacs’ personal property. But FIE did reject some of the
Uzelacs’ claims.
¶6 	In particular, the Uzelacs assert they made three requests
that FIE wrongfully rejected.4 The first request involved an
3. As a factual matter, FIE maintains that it was the Uzelacs who
contracted 	with 	ServiceMaster 	to 	conduct 	mitigation 	and
remediation services. The Uzelacs contend that, on the contrary,
FIE contracted with ServiceMaster pursuant to its “preferred
vendor” program. We recognize that this issue carried some
legal significance below, but with respect to the claims now on
appeal, it is largely immaterial. Nonetheless, as stated above, we
view the facts in favor of the party against whom summary
judgment was rendered—here, the Uzelacs. See id. ¶ 31.
4. FIE raises the point, which the Uzelacs do not contest, that the
Uzelacs did not submit the first two of these three requests to
FIE in the form of a formal, written claim. The Uzelacs respond
that FIE should not be permitted to raise this as a defense
because the only reason the Uzelacs never submitted a formal
claim is that an FIE agent orally informed them that the policy
would not cover their requests. We conclude that, because FIE
has not pointed to anything in the policy clearly stating that an
(continued…)

Uzelac v. Fire Insurance Exchange
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attempt to recoup certain unanticipated financing expenses that
arose as a consequence of the vandalism. Although the Uzelacs
had found a lender willing to provide permanent mortgage
financing 	for 	their 	new 	home 	before 	construction 	was
completed, closing was contingent on the Uzelacs’ first obtaining
a certificate of occupancy for the home. As a result of the
extensive vandalism, the Uzelacs were unable to obtain the
certificate, and they therefore had no choice but to secure a
“bridge 	loan” 	during 	the 	interim 	reconstruction 	period. 	In
response to the Uzelacs’ inquiry, FIE informed them that the
additional 	expenses 	flowing 	from 	the 	bridge 	loan’s 	higher
interest rate were not recoverable under the policy.
¶7 	The second request involved the question of whether and
on what terms the Uzelacs’ policy would cover the expense of
substitute accommodations. In a declaration attached to the
Uzelacs’ opposition to FIE’s motion for summary judgment, Mr.
Uzelac averred that shortly after the vandalism occurred, he
contacted FIE to inquire whether his policy would cover the
expense of renting a substitute vacation home while theirs was
being rebuilt. According to him, an FIE representative informed
him that it would not. For its part, FIE has conceded that the
policy would have covered the expense of renting a second
home, but only if the Uzelacs had actually incurred that expense.
In turn, Mr. Uzelac stated in his declaration that the only reason
he and his wife did not rent a second home is that FIE led them
to believe the expense would not be covered.
¶8 	Finally, the third request involved the malfeasance of
ServiceMaster. In November 2009, as the repairs to the home
neared 	completion, 	ServiceMaster 	retrieved 	the 	Uzelacs’
salvaged personal property from storage and delivered the items
(…continued)
insured’s request will not be considered absent a formal, written
claim, the Uzelacs’ failure to submit a claim in such a manner is
not dispositive, and we need not consider the point further.

Uzelac v. Fire Insurance Exchange
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back to the home. To the Uzelacs’ dismay, many of the items
were returned in a ruined condition. For example, mattresses
were 	rotten 	and 	mildewed, 	and 	the 	pages 	of 	books 	and
photograph albums were stuck together in brittle clumps. The
property apparently had not been properly dried out before
being placed in storage, and as a result much of it was beyond
repair. The Uzelacs submitted a claim for this damage, but FIE
denied it, explaining that the Uzelacs would need to pursue their
claim against ServiceMaster directly.
¶9 	Early in 2011, the Uzelacs filed suit against FIE and
ServiceMaster, asserting breaches of contract and the implied
covenant of good faith and fair dealing. In support, they alleged
that FIE had “failed and refused . . . to pay [the Uzelacs] the
moneys owing to them, despite demand therefor,” and that FIE
had “engaged . . . in a course of conduct to further its own
economic 	interest . . . in 	violation 	of 	its 	obligations 	to 	[the
Uzelacs].” Yet the complaint contained few specifics, and the
Uzelacs’ initial disclosures did not clarify matters much. In their
disclosures, under the heading “Computation of Damages,” the
Uzelacs claimed they were seeking “[t]he amounts that would be
owing under the policy as set forth in the complaint” in addition
to “[g]eneral and consequential damages,” “[e]xemplary and
punitive damages,” and costs and attorney fees. The Uzelacs’
“computation” did not make direct reference to any itemized list
of expenses or specific dollar figures.
¶10 	Somewhat perplexed by the Uzelacs’ reluctance to state
their damages with specificity, FIE asked Mr. Uzelac at his
deposition just what it was that he wanted FIE to cover that had
not already been paid:
Q. 	Okay. Before we get into this I want to make
sure I understand a couple of things. First, this list
of damaged items [of personal property that you
provided to us, which I have marked Exhibit 6], is
this the extent of your damages in this case? I
understand that there’s on page 4 of Exhibit 1 also

Uzelac v. Fire Insurance Exchange
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a list of some items . . . . So the list that you made in
Exhibit 6 and the final page of Exhibit 1, is that the
sum total of everything . . . that you think [FIE]
ought to cover?
A. 	No.
Q. 	Okay. What else are we talking about?
. . . .
A. 	. . . [T]he bridge loan that we had to get.
The two deposition exhibits to which FIE’s counsel directed Mr.
Uzelac’s attention each contained a list of expenses that the
Uzelacs had submitted to FIE for reimbursement. The first,
Exhibit 6, identified certain items of personal property that had
been damaged during the vandalism, and the second, Exhibit 1,
itemized 	reconstruction 	services, 	including 	snow-removal
services, the costs for which exceeded $50,000. Notably, during
his deposition Mr. Uzelac did not indicate that he and his wife
intended to pursue a claim relating to the costs of substitute
vacation accommodations.
¶11 	Shortly 	after 	the 	Uzelacs 	settled 	their 	claims 	against
ServiceMaster, resulting in its dismissal from this action, FIE
moved for summary judgment. In its supporting memorandum,
FIE explained that Mr. Uzelac had “identified in his deposition
only two issues as the basis for his litigation against FIE. First,
[the Uzelacs] believed that FIE did not compensate [them] for
certain personal property items that were damaged during the
vandalism 	of 	their 	cabin.” 	FIE 	explained 	that 	the 	items 	in
question were the items listed in Exhibit 6 and other items that
were 	allegedly 	mishandled 	by 	ServiceMaster. 	“Next, 	[the
Uzelacs] believed FIE should have to pay for the interest on a
‘bridge loan’ [they] obtained.” FIE then devoted the bulk of its
motion to arguing that it was entitled to judgment as a matter of

Uzelac v. Fire Insurance Exchange
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law on these two issues, without mentioning the reconstruction
expenses identified in Exhibit 1.
¶12 	In their opposition, the Uzelacs began by defending the
validity of the claims Mr. Uzelac raised in his deposition and
then 	identified 	a 	number 	of 	additional 	factual 	issues 	they
believed 	should 	preclude 	summary 	judgment. 	Chief 	among
these 	was 	their 	claim 	that 	FIE 	made 	misrepresentations
regarding the scope of their policy coverage, thereby leading
them 	to 	believe, 	incorrectly, 	that 	the 	expense 	of 	renting 	a
substitute vacation home would not be covered. In connection
with that claim, the Uzelacs asserted—for the first time during
the proceedings before the district court—that they would be
seeking the reasonable value of the expenses they would have
incurred in renting a comparable vacation home if they had been
properly informed about the policy’s coverage for this expense.
In addition, the Uzelacs maintained that summary judgment was
inappropriate because a factual issue remained as to whether FIE
should be held vicariously liable for the property damage caused
by ServiceMaster—to the extent, presumably, that these losses
remained 	unpaid 	after 	the 	Uzelacs’ 	settlement 	with
ServiceMaster.
¶13 	After hearing oral arguments on FIE’s motion, the district
court orally entered its ruling, granting the motion in part and
denying it in part. With respect to the Uzelacs’ claim for the
damaged items of personal property, the court concluded that
judgment should be rendered in FIE’s favor because there was
no 	genuine 	dispute 	that 	the 	Uzelacs 	had 	been 	adequately
reimbursed for those expenses, albeit in a somewhat smaller
amount than they had hoped for. The court further concluded
that FIE was entitled to judgment as a matter of law on the
Uzelacs’ claims for the additional bridge loan expenses and the
substitute accommodations expenses, as the former expense
category was not recoverable under the terms of their policy and
the latter was recoverable only if the expenses had actually been
incurred. The court did, however, determine that a genuine issue
of fact remained as to whether a principal–agent relationship

Uzelac v. Fire Insurance Exchange
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existed between FIE and ServiceMaster, such that FIE might be
vicariously liable for certain losses attributable to ServiceMaster
that 	remained 	unpaid 	after 	the 	Uzelacs’ 	settlement 	with
ServiceMaster. The court directed counsel for FIE to prepare a
proposed order based on its oral ruling, which counsel filed on
March 7, 2014.
¶14 	The Uzelacs filed an objection to FIE’s proposed summary
judgment order on March 17, 2014,5 arguing that it improperly
purported to dispose of all the Uzelacs’ direct claims against FIE
when in fact one remained: their claim to recoup the expenses
identified in Exhibit 1. The Uzelacs maintained that, by omitting
any reference to the Exhibit 1 expenses in its initial motion, FIE
had effectively excluded them from the scope of the summary
judgment proceedings.6 The court, however, was not persuaded.
5. As FIE correctly observes, the Uzelacs filed their objection
three days after the deadline for doing so had passed. See Utah
R. Civ. P. 7(j)(4) (“A party may object to the form of the proposed
order by filing an objection within 7 days after the order is
served.”). 	Nevertheless, 	because 	the 	district 	court 	expressly
agreed to consider the objection on its merits before entering its
final order, the issues presented in the objection were properly
preserved for appeal. American Fork City v. Robinson, 2012 UT
App 357, ¶ 3, 293 P.3d 1105 (“To preserve an issue for appeal,
the issue must be presented to the trial court in such a way that
the trial court has an opportunity to rule on that issue.”) (citation
and internal quotation marks omitted).
6. In their briefing on appeal, the Uzelacs identified the expenses
in Exhibit 1 that they contend should have been excluded from
the 	scope 	of 	the 	district 	court’s 	summary 	judgment 	order:
“fabricate 	base 	and 	case—$1,267.25; 	molding 	material—
$1,962.10; final cleaning after construction—$3,385.00; labor for
paint and stain/remolding—$27,157.50; general labor—$2,822.00;
specific labor re demolition/remolding—$14,557.50; and Sizzer
(continued…)

Uzelac v. Fire Insurance Exchange
20150699-CA 	9 	2018 UT App 57
In a note to the parties delivered on the same day that it entered
its final 	order, the court stated that it had “reviewed and
considered [the Uzelacs’] objections to the proposed [o]rder” and
“conclude[d] that FIE’s [o]rder accurately reflect[ed its] ruling.”
Accordingly, the court adopted FIE’s proposed order without
change.
¶15 	Thereafter, the Uzelacs and FIE settled the claims on
which the court had specifically denied summary judgment, but
the Uzelacs reserved their right to appeal the court’s summary
judgment decision. This appeal followed.
ISSUES AND STANDARDS OF REVIEW
¶16 	The Uzelacs ascribe four errors to the district court’s
summary 	judgment 	decision. 	First, 	they 	maintain 	that 	the
district court erred by concluding that the additional expenses
(…continued)
[sic] lift rental—$232.88.” Strangely, though, while Exhibit 1
contains an expense for “snow removal,” and while neither FIE’s
motion nor the court’s order makes any specific reference to a
snow-removal 	expense, 	the 	Uzelacs 	do 	not 	argue 	that 	this
expense should be excluded from the summary judgment along
with the other Exhibit 1 expenses. Perhaps this is because the
Uzelacs concluded—erroneously, as we explain below, see infra
note 12—that by making a passing reference to “snow-plowing”
in their opposition memorandum, they inadvertently placed the
snow-removal 	expense 	within 	the 	scope 	of 	the 	summary
judgment proceedings. Rather, they address the expense in a
separate, rather anomalous section of their opening brief, which
is only a single paragraph in length. Because we ultimately
conclude that the Uzelacs’ claim to recover the snow-removal
expense survived summary judgment for the same reasons that
their other Exhibit 1 expense claims did, we address these claims
together in part III.

Uzelac v. Fire Insurance Exchange
20150699-CA 	10 	2018 UT App 57
they incurred as a consequence of the bridge loan were not
recoverable under their policy. Second, they maintain that the
court should have determined that there remained a triable issue
of fact as to whether FIE should be liable to them for the fair
rental value of their home during the period it was being
reconstructed, as a reasonable measure of the value of the
substitute vacation accommodations to which they were entitled
under the policy. Third, they argue that the court should not
have dismissed their claims relating to the expenses identified in
Exhibit 1. And finally, the Uzelacs maintain that the court erred
by dismissing their claim for breach of the implied covenant of
good faith and fair dealing.
¶17 	“Summary judgment is appropriate when there are no
genuine issues of material fact and the moving party is entitled
to judgment as a matter of law.” Jones v. Farmers Ins. Exch., 2012
UT 52, ¶ 6, 286 P.3d 301. “We review a district court’s grant of
summary judgment for correctness and afford no deference to
the court’s legal conclusions.” Salt Lake City Corp. v. Big Ditch
Irrigation 	Co., 	2011 	UT 	33, 	¶ 	18, 	258 	P.3d 	539. 	Finally, 	as
previously 	noted, 	“when 	reviewing 	a 	grant 	of 	summary
judgment, we view the facts and all reasonable inferences drawn
therefrom in the light most favorable to the nonmoving party.”
Ault v. Holden, 2002 UT 33, ¶ 15, 44 P.3d 781 (citation and
internal quotation marks omitted).
ANALYSIS
¶18 	With the applicable standard of review in mind, we
address each of the Uzelacs’ assignments of error in turn.
I. The Bridge Loan Expenses
¶19 	The 	Uzelacs 	contend 	that 	the 	district 	court 	erred 	in
concluding that the additional expenses they incurred as a result
of obtaining the bridge loan were not recoverable under the

Uzelac v. Fire Insurance Exchange
20150699-CA 	11 	2018 UT App 57
terms of their policy. On this issue, we conclude that the Uzelacs
have failed to carry their burden of persuasion.
¶20 	The party aggrieved by the district court’s decision bears
the burden of persuasion on appeal. See Utah R. App. P. 24(a)(8)
(requiring appellants to provide reasoned legal argument, with
“citations to legal authority and the record”). See also 2010-1
RADC/CADC Venture, LLC v. Dos Lagos, LLC, 2017 UT 29, ¶ 32,
408 P.3d 313 (explaining that a party’s contentions on appeal will
not be addressed where the party fails to support them with
“reasoned argument and legal authority”) (citation and internal
quotation marks omitted). And “[a]n appellate court is not a
depository 	in 	which 	[a 	party] 	may 	dump 	the 	burden 	of
argument and research.” Allen v. Friel, 2008 UT 56, ¶ 9, 194 P.3d
903 	(second 	alteration 	in 	original) 	(citation 	and 	internal
quotation marks omitted). Accordingly, “where a party attempts
to meet its burden of persuasion with general arguments rather
than an analysis of the key contractual language,” Dos Lagos,
2017 UT 29, ¶ 32, the burden will go unmet and affirmance
ordinarily follows, see id. ¶ 33.
¶21 	The Uzelacs maintain that the bridge loan expenses fall
under 	the 	umbrella 	of 	their 	policy’s 	“Additional 	Living
Expense” (ALE) coverage. The relevant provision of the policy
states that “[i]f a covered property loss makes the resident
premises unfit to live in, we cover the necessary increase in
living expense incurred by you so that your household can
maintain 	its 	normal 	standard 	of 	living.” 	Significantly, 	this
language 	is 	nearly 	identical 	to 	the 	language 	of 	other 	ALE
provisions that courts in this and several other states have had
occasion to interpret. See, e.g., Error v. Western Home Ins. Co., 762
P.2d 1077, 1082 (Utah 1988).
¶22 	“Insurance policies are generally interpreted according to
rules of contract interpretation.” Utah Farm Bureau Ins. Co. v.
Crook, 1999 UT 47, ¶ 5, 980 P.2d 685. “Courts interpret words in
insurance policies according to their usually accepted meanings[.]”
Id. (emphasis added). “[C]ourts must enforce an unambiguous

Uzelac v. Fire Insurance Exchange
20150699-CA 	12 	2018 UT App 57
contract and may not rewrite an insurance contract . . . if the
language is clear.” Id. ¶ 6 (omission in original) (citation and
internal quotation marks omitted).
¶23 	In support of their claim that the bridge loan expenses are
embraced 	by 	the 	“usually 	accepted 	meaning[]” 	of 	an 	ALE
provision like the one in their policy, Crook, 1999 UT 47, ¶ 5, the
Uzelacs offer only “general arguments rather than an analysis of
the key contractual language,” Dos Lagos, 2017 UT 29, ¶ 32. They
maintain that the additional interest on the temporary loan
should be considered a “necessary increase in living expense”
because, “without the private money bridge loan, [they] would
have potentially lost their mountain home to foreclosure.” But
the Uzelacs do not direct our attention to any language in the
policy providing that the loss of their home in foreclosure
proceedings would be a covered loss. Furthermore, while an
abundance of case law construes the scope of ALE coverage, the
Uzelacs do not point to a single decision from any jurisdiction
holding or even suggesting that home-financing charges qualify
as an additional living expense.
¶24 	We recognize that the Uzelacs have dedicated several
pages of their opening brief to arguing this issue. But as our
Supreme Court has recently stated, when it comes to meeting the
burden 	of 	persuasion 	on 	appeal, 	“it 	is 	not 	the 	size 	of 	an
argument that matters.” Id. ¶ 30. Here, while the Uzelacs have
cited cases and offered arguments, their cases are inapposite,
and their arguments are unfocused.
¶25 	The Uzelacs’ treatment of our Supreme Court’s decision
in Error v. Western Home Insurance Co., 762 P.2d 1077 (Utah 1988),
is illustrative in this regard. In that case, the Court held that an
ALE award was proper to allow an insured to maintain her
normal standard of living while her house was being rebuilt
following a fire. Id. at 1082. The case did not involve any request
to 	recover 	expenses 	related 	to 	the 	financing 	of 	the 	home.
Nevertheless, the Uzelacs maintain that the case is relevant here
because it stands for the proposition that “the primary objective

Uzelac v. Fire Insurance Exchange
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of property insurance” is “to put the insured back in the position
he or she occupied prior to the loss.” Therefore, their argument
goes, FIE “owes the Uzelacs the duty of putting them back in the
same place they were prior to” the vandalism, which included
having access to a more favorable mortgage interest rate. But the
principle they extract from Error is stated with such generality
that it might well have been culled from any case involving the
interpretation of an insurance policy. It sheds no light on the
unique nature of ALE coverage.
¶26 	For these reasons, we conclude that the Uzelacs have
failed 	to 	carry 	their 	burden 	of 	persuasion 	on 	appeal.
Accordingly, we hold that their bridge loan interest claim was
properly dismissed on summary judgment.
II. The Rental Value of a Comparable Vacation Home
¶27 	The 	Uzelacs 	contend 	that 	the 	district 	court 	erred 	in
dismissing their claim for the reasonable value of renting a
comparable vacation home during the time theirs was being
rebuilt. We conclude that the claim was properly dismissed on
summary 	judgment 	because 	the 	Uzelacs 	did 	not 	produce
evidence sufficient to raise a triable issue of fact.
¶28 	In 	response 	to 	FIE’s summary 	judgment 	motion, 	the
Uzelacs maintained that a genuine factual dispute remained as
to 	whether 	FIE 	breached 	the 	contract 	by 	affirmatively
misrepresenting the scope of the policy’s ALE coverage. They
supported 	their 	argument 	by 	filing 	a 	declaration 	from 	Mr.
Uzelac, 	in 	which 	he 	stated 	that 	an 	unidentified 	FIE
representative orally informed him that the costs of renting
substitute accommodations while the home was being rebuilt
were 	not 	reimbursable 	under 	the 	policy. 	On 	appeal, 	FIE
concedes that, in fact, such costs would have been covered under
the 	policy’s 	ALE 	provision. 	Nevertheless, 	the 	district 	court
concluded that the claim should be dismissed, regardless of the
truth 	of 	Mr. 	Uzelac’s 	statement, 	as 	no 	expenses 	could 	be

Uzelac v. Fire Insurance Exchange
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reimbursed under the ALE provision unless they were actually
incurred.7
¶29 	By 	not 	addressing 	Mr. 	Uzelac’s 	allegation 	of
misrepresentation 	head 	on, 	the 	district 	court 	improperly
discounted the possibility that such a misrepresentation could
indeed 	have 	constituted 	breach 	of 	contract 	under 	these
circumstances. Clearly, it would be unacceptable for insurers to
avoid paying ALE claims simply by misrepresenting the scope of
coverage 	in 	response 	to 	inquiries 	from 	their 	insureds.
Nevertheless, we affirm the court’s decision because the Uzelacs
failed 	to 	support 	their 	argument 	with 	specific 	facts
demonstrating the existence of a triable factual issue.8
¶30 	“When a moving party makes and supports a motion for
summary judgment, the non-moving party ‘may not rest upon
the 	mere 	allegations 	or 	denials 	of 	the 	pleadings, 	but 	the
response . . . must set forth specific facts showing that there is a
genuine 	issue 	for 	trial.’” 	Advanced 	Forming 	Techs., 	LLC 	v.
7. 	In 	the 	alternative, 	the 	Uzelacs 	argue—in 	two 	short
paragraphs—that 	the 	policy 	permits 	recovery 	of 	substitute-
accommodation expenses irrespective of whether such expenses
have 	been 	incurred 	because 	the 	policy 	defines 	“Property
Damage,” 	with 	our 	emphasis, 	as 	“physical 	injury 	to 	or
destruction of tangible property . . . and resulting loss of use.” The
term “property damage,” however, does not appear in the
policy’s ALE provision. We therefore fail to see how it is of any
relevance here.
8. When reviewing a summary judgment decision, we are free to
affirm on legal grounds other than those adopted by the district
court. See, e.g., RJW Media, Inc. v. CIT Group/Consumer Fin., Inc.,
2008 UT App 476, ¶ 36, 202 P.3d 291.

Uzelac v. Fire Insurance Exchange
20150699-CA 	15 	2018 UT App 57
Permacast, LLC, 2015 UT App 7, ¶ 9, 342 P.3d 808 (omission in
original) (quoting Utah R. Civ. P. 56(e) (2015)9). Indeed,
[a] major purpose of 	summary judgment 	is to
avoid unnecessary trial by allowing the parties to
pierce the pleadings to determine whether there is
a genuine issue to present to the fact finder. In
accordance with this purpose, specific facts are
required to show whether there is a genuine issue
for 	trial. 	The 	allegations 	of 	a 	pleading 	or 	factual
conclusions on an affidavit are insufficient to raise a
genuine issue of fact.
Stevens-Henager College v. Eagle Gate College, 2011 UT App 37,
¶ 25, 248 P.3d 1025 (alteration and emphasis in original) (citation
and internal quotation marks omitted).
¶31 	We conclude that Mr. Uzelac’s declaration did not state
facts 	with 	the 	requisite 	specificity 	to 	preclude 	summary
judgment against the Uzelacs. The relevant language from the
declaration is as follows:
The 	[FIE] 	adjuster 	told 	us 	that 	there 	was 	no
coverage for a rental of a second home or any loss
of use for a second home. Had I known that there
was 	coverage, 	we 	would 	have 	found 	[a]
comparable second home to rent somewhere else. I
didn’t do so because of what the adjuster told us.
9. Rule 56 of the Utah Rules of Civil Procedure was amended in
2015, after our decision in Permacast had already been issued.
However, the advisory committee note makes clear that the
amendment was intended to bring the rule in line with its
federal counterpart, “without changing the substantive Utah
law.” Utah R. Civ. P. 56 advisory committee note.

Uzelac v. Fire Insurance Exchange
20150699-CA 	16 	2018 UT App 57
The lack of specificity is conspicuous. There is no mention of the
adjuster’s name, when the conversation took place, whether it
was over the phone or in person, and whether he or she referred
to a specific policy provision. None of these basic details are
provided, and without them, Mr. Uzelac’s allegation was a
“factual conclusion[,] . . . insufficient to raise a genuine issue of
fact.” See id. The declaration was therefore insufficient to defeat
FIE’s motion for summary judgment.
¶32 	Accordingly, we conclude the Uzelacs have failed to set
forth specific facts demonstrating the existence of a genuine
factual dispute for trial relating to their claim for the fair rental
value of alternate vacation accommodations. We therefore hold
that the district court properly dismissed this claim on summary
judgment.
III. The Exhibit 1 Expenses
¶33 	The Uzelacs maintain that the district court should not
have 	dismissed 	their 	claims 	relating 	to 	the 	unreimbursed
reconstruction expenses identified in Exhibit 1, including the
snow-removal expense, as those expenses were never raised in
FIE’s motion for summary judgment. On this point, we agree.
¶34 	FIE invites us to hold that the Uzelacs “waived” their
claims relating to the Exhibit 1 expenses because the Uzelacs did
not mention it in their opposition to the motion for summary
judgment. Indeed, it does seem rather odd that the Uzelacs
omitted 	this 	relatively 	straightforward 	issue 	from 	their
opposition when they raised so many other, more complicated
arguments. But regardless of the wisdom of these decisions on
the Uzelacs’ part, the fact remains that it is the moving party
who determines the scope of summary judgment proceedings.10
10. FIE also complains that, “[b]ecause of the vague nature of the
Uzelacs’ pleadings and disclosures, [it] could not be certain what
(continued…)

Uzelac v. Fire Insurance Exchange
20150699-CA 	17 	2018 UT App 57
¶35 	The Utah Supreme Court articulated the dispositive rule
in Timm v. Dewsnup, 851 P.2d 1178 (Utah 1993):
The moving party determines the scope of a
motion for summary judgment. That party decides
what issues to present to the court for adjudication.
He or she may move for summary judgment on all
or 	less 	than 	all 	of 	the 	issues 	raised 	by 	the
complaint . . . . When the moving party has decided
what 	the 	scope 	of 	the 	motion 	for 	summary
judgment shall be, rule 56 contemplates that a
written motion shall be served on the opposite
party setting forth with clarity the relief sought by
the motion so that the opposite party may prepare
to defend against it if he or she chooses to do so.
Summary judgment procedure is generally
considered 	a 	drastic 	remedy, 	requiring 	strict
compliance with the rule authorizing it . . . . If the
[requirements of the rules] are not fulfilled, both in
(…continued)
claims the Uzelacs were pursuing[.]” Yet it is clear from the
record that FIE was made aware that the Uzelacs would seek to
recover the expenses identified in Exhibit 1 as damages in their
lawsuit. To begin with, the Uzelacs included the list of expenses
among the documents they provided in their initial disclosures.
And lest FIE complain that its failure to take notice of the list
was attributable to the vague and conclusory nature of the
Uzelacs’ allegations and damages computation, we observe that,
at 	least 	as 	of 	the 	date 	of 	Mr. 	Uzelac’s 	deposition, 	these
deficiencies were obviously not so severe as to prevent FIE from
learning of the expenses. On the contrary, during Mr. Uzelac’s
deposition FIE specifically inquired about the expenses listed in
Exhibit 1, and Mr. Uzelac gave no indication that he intended to
abandon the claim.

Uzelac v. Fire Insurance Exchange
20150699-CA 	18 	2018 UT App 57
letter and spirit, the summary judgment procedure
may become a vehicle of injustice rather than a
salutary medium of reaching a swift but just result
on a pure matter of law, as intended by the framers
of the rules.
Id. 	at 	1181 	(alteration 	in 	original) 	(citations 	and 	internal
quotation marks omitted). In Timm, our Supreme Court held that
a party’s counterclaim had survived summary judgment, despite
the 	district 	court’s 	subsequent 	ruling 	that 	the 	claim 	was
implicitly dismissed by its summary judgment order. Id. at 1182.
The Court reasoned that, because the party originally moving for
summary judgment had “made no express reference to the
counterclaim or the issues raised by it in [its] motion,” the
summary judgment order did not dispose of the counterclaim
issues. 	Id. 	Thus, 	“in 	accordance 	with 	the 	policy 	that 	the
procedure for summary judgment should be strictly observed,”
the Court concluded that the claim “remain[ed] unaffected in the
trial court.” Id.
¶36 	Likewise, 	here, 	the 	scope 	of 	the 	summary 	judgment
proceedings 	was 	determined 	by 	FIE’s 	original 	motion.11 By
11. FIE urges us to hold that its motion for summary judgment
effectively placed the Exhibit 1 expenses within the scope of
summary judgment proceedings because the motion itself—as
opposed 	to 	the 	supporting 	memorandum—contained 	the
general statement that “there is no dispute as to any material fact
relating 	to 	the 	claims 	in 	Plaintiff’s 	Complaint.” 	But 	the
generalized language in the single-paragraph motion cannot be
read apart from the specific, detailed articulation of the motion’s
scope contained in the introductory section of the motion’s
supporting memorandum. There, FIE made clear that its motion
was limited to addressing two issues, namely certain personal
property losses and the additional bridge loan expenses. To
conclude 	that 	the 	statement 	contained 	in 	the 	motion 	was
(continued…)

Uzelac v. Fire Insurance Exchange
20150699-CA 	19 	2018 UT App 57
failing to expressly include the Uzelacs’ claim to recover the
Exhibit 	1 	expenses 	in 	its 	summary 	judgment 	motion, 	FIE
effectively 	excluded 	the 	issue 	from 	the 	district 	court’s
consideration.12 Furthermore, 	the 	express 	conclusions 	in 	the
district court’s summary judgment order are not inconsistent
with the claim’s survival. The court granted FIE’s motion only as
to the Uzelacs’ claims for personal property losses, the additional
bridge 	loan 	expenses, 	and 	the 	substitute 	accommodations
expenses that they did not actually incur. The issue of whether
FIE should be held liable for reimbursing the Uzelacs for the
reconstruction 	services 	identified 	in 	Exhibit 	1 	is 	wholly
independent of those claims.13
(…continued)
sufficient to place all the Uzelacs’ claims in issue would be to
thwart 	the 	Supreme 	Court’s 	“strict 	compliance” 	instruction,
thereby running the risk of transforming the summary judgment
procedure into “a vehicle of injustice rather than a salutary
medium of reaching a swift but just result.” Timm v. Dewsnup,
851 P.2d 1178, 1181 (Utah 1993) (citation and internal quotation
marks omitted).
12. 	We 	observe 	that 	in 	their 	opposition 	memorandum, 	the
Uzelacs made a passing and rather cryptic reference to FIE’s
refusal to consider “other additional expenses, including extra
utilities and snow-plowing.” Arguably, the reference alluded to
the list of expenses appearing in Exhibit 1. But even so, it did not
suffice to bring the expenses within the scope of the summary
judgment 	proceedings, 	because 	it 	appeared 	in 	the 	Uzelacs’
opposition and it is the “moving party” that “decides what issues
to present to the court for adjudication.” Id.
13. Alternatively, FIE invites us to hold that, regardless of the
substantive merits of the Uzelacs’ objection to FIE’s proposed
order, the district court properly denied the objection because it
(continued…)

Uzelac v. Fire Insurance Exchange
20150699-CA 	20 	2018 UT App 57
¶37 	Finally, 	we 	turn 	to 	the 	snow-removal 	expense. 	We
recognize that if one were to imagine all the different types of
expenses that might arise in the ordinary course of repairing a
vandalized home, 	snow-removal services would not readily
come to mind. Still, it does not necessarily follow that the
Uzelacs’ claim for such expenses was illegitimate in this case. It
is possible, for instance, that during the winter months the task
of removing debris and beginning the extensive repairs could
not be accomplished without first clearing a path to the home
through the snow. We therefore leave it to the district court to
determine the legitimacy of this expense, as a factual matter, on
remand.
¶38 	For the reasons stated above, we conclude that the issue
of whether FIE is obligated to reimburse the Uzelacs for the
expenses 	listed 	in 	Exhibit 	1, 	including 	the 	expense 	of
snow-removal, 	was 	not 	effectively 	placed 	before 	the 	court
during summary judgment proceedings. It therefore “remains
(…continued)
was served ten days after the proposed order was served and
was therefore untimely. See Utah R. Civ. P. 7(j)(4) (“A party may
object to the form of the proposed order by filing an objection
within 7 days after the order is served.”). In a similar vein, FIE
also asks us to hold that, because “the objection was related to
the 	substance 	of 	the 	[o]rder” 	rather 	than 	its 	form, 	it 	was
effectively a motion to reconsider, which is not recognized by the
Utah Rules of Civil Procedure. See Gillett v. Price, 2006 UT 24, ¶ 7,
135 P.3d 861 (“[P]ostjudgment motions to reconsider and other
similarly titled motions . . . are not recognized by our rules.”).
But these arguments miss the point. The issue of the Exhibit 1
expenses 	was 	never 	placed 	before 	the 	court 	on 	summary
judgment and therefore “remain[s] unaffected in the trial court.”
Timm, 851 P.2d at 1182. Thus, the issue would remain pending
before the district court even if the Uzelacs had not filed any
objection at all to the proposed order.

Uzelac v. Fire Insurance Exchange
20150699-CA 	21 	2018 UT App 57
unaffected in the trial court” and can be properly resolved on
remand. See Timm, 851 P.2d at 1182.
IV. The Implied Covenant of Good Faith and Fair Dealing
¶39 	The Uzelacs’ final contention is that the district court
erred in dismissing their claim that FIE breached the implied
covenant of good faith and fair dealing. “As a general rule, every
contract is subject to an implied covenant of good faith and fair
dealing, under which both parties to a contract promise not to
intentionally or purposely do anything which will destroy or
injure the other party’s right to receive the fruits of a contract.”
Malibu Inv. Co. v. Sparks, 2000 UT 30, ¶ 19, 996 P.2d 1043 (citation
and internal quotation marks omitted). However, “we will not
interpret the implied covenant of good faith and fair dealing to
make 	a 	better 	contract 	for 	the 	parties than 	they 	made 	for
themselves. Nor will we construe the covenant to establish new,
independent rights or duties not agreed upon by the parties.” Id.
(citation and internal quotation marks omitted).
¶40 	The Uzelacs maintain that there remained triable issues of
fact as to whether FIE breached the covenant by rejecting their
claims for the additional bridge loan expenses, the rental value
of substitute accommodations, and the expenses associated with
ServiceMaster’s negligent handling and storage of their personal
property. As to the first claim, we have already concluded that
the Uzelacs failed to show that the bridge loan expenses were
recoverable 	under 	the 	policy’s 	ALE 	provision. 	Thus, 	FIE’s
decision to reject this claim has been fully vindicated. As to the
second claim, we concluded above that the Uzelacs failed to
properly establish any disputes of material fact bearing on their
claimed 	entitlement 	to 	recover 	substitute 	accommodation
expenses without having actually incurred them. Accordingly,
because it is undisputed that the Uzelacs never incurred any
expense for FIE to reimburse, the plain terms of the policy
permitted it to deny this claim as well. Finally, as to the third
claim, the Uzelacs have not argued that FIE had a duty under the
policy 	to 	compensate 	them 	for 	ServiceMaster’s 	misfeasance.

Uzelac v. Fire Insurance Exchange
20150699-CA 	22 	2018 UT App 57
Because we will not “construe the covenant to establish new,
independent rights or duties not agreed upon by the parties,” id.
(citation and internal quotation marks omitted), we conclude
that the district court properly dismissed this claim on summary
judgment, too.14
CONCLUSION
¶41 	For the reasons stated above, we affirm the district court’s
decision in part, and we reverse it in part. We remand for the
limited purpose of addressing the Exhibit 1 expenses, including
the snow-removal expense, which we have concluded were not
effectively 	placed 	before 	the 	court 	during 	the 	summary
judgment proceedings.
14. The Uzelacs attached an expert report to their opposition to
FIE’s summary judgment motion in support of their claims for
breach of the implied covenant of good faith and fair dealing.
We have not considered it in our analysis here because the
district court excluded it as untimely. See Sunridge Dev. Corp. v.
RB&G 	Eng’g, 	Inc., 	2013 	UT 	App 	146, 	¶ 17, 	305 	P.3d 	171
(“Inadmissible evidence cannot be considered in ruling on a
motion for summary judgment.”) (brackets, citation, and internal
quotation marks omitted).