Farman-Rava v. Blu Auto Transport

2021 UT App 93
THE UTAH COURT OF APPEALS
Y ASSER F ARMAN -R AVA,
Appellant,
v.
BLU A UTO TRANSPORT LLC,
Appellee.
Opinion
No. 20200250-CA
Filed September 2, 2021
Third District Court, Salt Lake Department
The Honorable Su Chon
No. 170904692
Daniel F. Bertch, Attorney for Appellant
JUDGE D AVID N. M ORTENSEN authored this Opinion, in which
JUDGES JILL M. POHLMAN and R YAN M. HARRIS concurred.
MORTENSEN, Judge:
¶1 	Yasser Farman-Rava was injured on the job and sued his
employer, Blu Auto Transport LLC (Employer). He was able to
sue Employer in court because Employer had not purchased
workers’ compensation insurance. Two causes of action were
tried, in a bench trial, to the district court: negligence and
intentional infliction of emotional distress (IIED). The court
concluded that Farman-Rava prevailed on his negligence claim,
but that he had failed to prove his IIED claim. Thereafter, citing
Utah Code section 34A-2-207(4), Farman-Rava moved to collect
attorney fees for time spent on the negligence claim. The district
court denied his request. Farman-Rava appeals this denial of
fees, and we reverse and remand.
¶2 	While working for Employer, Farman-Rava lost a portion
of his finger when his supervisor activated a piece of equipment

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that 	Farman-Rava 	was 	handling. 	Farman-Rava 	filed 	suit 	in
district court, alleging that Employer’s negligence was the cause
of his injury. He also included a claim for IIED based on
threatening messages he received, and which he believed were
sent by the supervisor.
¶3 	These claims were eventually tried to the bench. The court
found that Farman-Rava had prevailed on his negligence claim,
but that his IIED claim failed. In finding that Farman-Rava “was
injured 	due 	to 	the 	negligence 	of 	[Employer],” 	the 	court
evaluated the applicability of the Workers’ Compensation Act. It
noted that, typically, the Workers’ Compensation Act provides
the “exclusive remedy” for an employee seeking compensation
for an on-the-job injury (quoting Utah Code Ann. § 34A-2-105(1)
(LexisNexis 2019)) but concluded that this provision did not
apply 	because 	Employer 	had 	failed 	to 	provide 	workers’
compensation insurance, (citing Utah Code Ann. § 34A-2-207)
(LexisNexis 2019). Consequently, the district court concluded
that Farman-Rava was entitled to “seek all the remedies under
tort law,” and awarded him damages for medical bills and pain
and suffering.
¶4 	Thereafter, 	Farman-Rava 	moved 	for 	attorney 	fees
under 	Utah 	Code 	section 	34A-2-207(4). 	In 	evaluating 	the
motion, 	the 	district 	court 	observed 	that 	Farman-Rava
was “entitled to only the actual fees on the claim that he
prevailed 	on” 	and 	was 	thus 	“not 	entitled 	to 	the 	fees 	for
the 	claims that 	he 	did 	not 	prevail 	on, 	namely 	the 	[IIED]”
claim. 	The 	district 	court 	did 	acknowledge 	that, 	in 	a
supporting 	affidavit, 	Farman-Rava’s 	counsel 	explained 	that
“he excluded time for work that did not materially advance
the 	case 	and 	time 	spent 	on 	the 	losing 	claim 	for 	[IIED],”
and, 	“[f]or 	work 	that 	was 	for 	both 	Negligence 	and 	[the]
IIED 	claim, 	[he 	had] 	included 	only 	1/2 	of 	that 	time.”
Nevertheless, the court went on to rule that the “attorney’s

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fees for the negligence” claim should also “be deducted.”1 This
was so, the district court explained, because,
Other 	than 	the 	workplace 	insurance 	claim,
[Farman-Rava’s counsel] is unable to point to a
statute that permits him to obtain attorney’s fees as
to the negligence claim.
¶5 	Farman-Rava appeals the district court’s order denying
his request for fees related to his negligence claim. Because the
substance of this ruling was that Utah Code section 34A-2-207(4)
simply did not apply to Farman-Rava’s negligence claim, this is
a legal conclusion, which we review for correctness.2 See Gilbert
Dev. Corp. v. Wardley Corp., 2010 UT App 361, ¶ 16, 246 P.3d 131
(“The question of whether a party is entitled to an award of
attorney 	fees 	is 	a 	legal 	conclusion 	which 	we 	review 	for
correctness.” (cleaned up)). And we conclude that the district
court erred, given that section 34A-2-207(4), a provision within
the 	Workers’ 	Compensation 	Act, 	explicitly 	provides 	for 	an
award 	of 	attorney 	fees 	in 	this 	situation. 	See 	also 	Anderson
& Karrenberg v. Warnick, 2012 UT App 275, ¶ 9, 289 P.3d 600
(“[A]ttorney fees are recoverable only if authorized by contract
or statute.”).
1. Thus, the court effectively denied Farman-Rava any attorney
fees.
2. 	Employer 	did 	not 	file 	a 	brief 	or 	otherwise 	resist 	the
contentions made in Farman-Rava’s moving brief. While this
“does not 	amount 	to 	an 	automatic default 	and 	consequent
reversal of the lower court,” it does mean that Farman-Rava
“need only establish a prima facie showing of a plausible basis
for reversal.” AL-IN Partners, LLC v. LifeVantage Corp., 2021 UT
42, ¶ 19 (cleaned up). “This is a lower standard than the typical
burden of persuasion on appeal.” Id.

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¶6 	Pursuant to the Workers’ Compensation Act, an employee
who is injured during the course of employment typically cannot
bring a tort claim against their employer. See, e.g., Brown v.
Williams, 2017 UT App 29, ¶ 8, 392 P.3d 919. Instead, the
Workers’ Compensation Act provides the “exclusive remedy.”
See 	Utah 	Code 	Ann. 	§ 	34A-2-105(1). 	This 	means 	that 	the
employee 	must 	pursue 	compensation 	through 	the 	Workers’
Compensation 	Act’s 	administrative 	scheme, 	and 	indeed,
“district courts have no jurisdiction whatsoever over cases that
fall within the purview of the Workers’ Compensation Act.” See
Working RX, Inc. v. Workers’ Comp. Fund, 2007 UT App 376, ¶ 8,
173 P.3d 853 (cleaned up); see also Thomas A. Paulsen Co. v.
Industrial 	Comm'n, 	770 	P.2d 	125, 	127 	(Utah 	1989) 	(“If 	an
employee 	is 	injured 	in 	an 	accident 	during 	the 	course 	of
employment 	and 	the 	employer 	is 	properly 	insured, 	the
employee’s 	sole 	means 	of 	obtaining 	redress 	is 	through 	the
workers’ compensation system.”).
¶7 	However, pursuant to section 34A-2-207, this limitation
does 	not 	apply 	where 	the 	employer 	failed 	to 	“secure 	the
payment of workers’ compensation benefits.” See Utah Code
Ann. §§ 34A-2-201 (LexisNexis 2019), -207; see also Thomas A.
Paulsen Co., 770 P.2d at 127 (“However, when an employer is not
insured as required by statute, the employee has the option of
seeking damages . . . in the courts . . . .” (cleaned up)). In such a
scenario, section 34A-2-207 expressly empowers employees to
pursue a “civil action” against their employer “for damages
suffered by reason of personal injuries arising out of or in the
course of employment caused by the wrongful act, neglect, or
default of the employer or any of the employer’s officers, agents,
or employees.” See Utah Code Ann. § 34A-2-207(1)(a). Further,
subsections of the statute go on to provide that, in any such civil
action, proof of the injury constitutes “prima facie evidence of
negligence on the part of the employer” and that the employer is
prevented from raising various affirmative defenses such as

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assumption of risk or contributory negligence. See Utah Code
Ann. § 34A-2-207(1)(b), (2). Finally, subsection (4) explicitly
provides for an award of attorney fees:
In any civil action permitted under this section against
the employer, the employee shall be entitled to
necessary 	costs 	and 	a 	reasonable 	attorney 	fee
assessed against the employer.
See id. § 34A-2-207(4) (emphasis added).
¶8 	Here, the district court correctly noted that the Workers’
Compensation Act was not Farman-Rava’s “exclusive remedy”
because 	Employer 	had 	failed 	to 	secure 	or 	obtain 	workers’
compensation insurance and, therefore, section 34A-2-207 was
operative. Yet, when Farman-Rava sought attorney fees under
subsection 	(4) 	of 	that 	same 	statute 	for 	fees 	related 	to 	his
negligence claim, the district court denied this request.
¶9 	In so ruling, the court concluded that Farman-Rava could
not rely on this provision and instead had “to point to” a
different statute to be entitled to fees for his negligence claim. See
supra ¶ 4. This was error. Farman-Rava was entitled to an
attorney fee award pursuant to section 34A-2-207(4) because his
negligence claim was a “civil action permitted under” that
statute. Id. Farman-Rava’s negligence claim, in which he sought
compensation from his employer for an on-the-job injury, is
paradigmatic of the claims that would typically be preempted by
the Workers’ Compensation Act, but because his employer failed
to 	secure 	or 	obtain 	worker’s 	compensation 	insurance, 	it 	is
permitted by section 34A-2-207. See, e.g., Brown, 2017 UT App 29,
¶ 13 (affirming dismissal of an employee’s negligence claim
relating 	to 	an 	injury 	on 	the 	employer’s 	premises 	because
“workers’ compensation benefits” were her “exclusive remedy”).
Indeed, section 34A-2-207 leaves no room for ambiguity on this
point, as it explicitly speaks in terms of negligence—it provides

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that 	proof 	of 	injury 	constitutes 	prima 	facie 	evidence 	of
negligence, and then goes on to prevent the employer from
raising various affirmative defenses to negligence claims. See
Utah 	Code 	Ann. 	34A-2-207(1)(b), 	(2). 	The 	statute 	is 	clear:
Farman-Rava is entitled to an award of reasonable attorney fees
for time spent on the negligence claim.
¶10 	Reversed and remanded for proceedings consistent with
this opinion.