Mecham v. Frazier

2008 UT 60
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
----oo0oo----
Lemanda Lillian Mecham, 	No. 20070730
Plaintiff and Appellee,
v.
F I L E D
Sean D. Frazier and David L.
Johnson, 	August 29, 2008
Defendants and Appellants.
---
Federal Certification
Attorneys: 	Cory B. Mattson, Sandy, for plaintiff
Mark L. Shurtleff, Att’y Gen., J. Clifford
Petersen, Scott D. Cheney, Brent A. Burnett, Asst.
Att’ys Gen., Salt Lake City, for defendants
---
On Certification from the United States Court of Appeals
for the Tenth Circuit, the Honorable Timothy M. Tymkovich
PARRISH, Justice:
INTRODUCTION
¶1 	This case presents two certified questions from the
Tenth Circuit Court of Appeals: 	(1) Does the Utah Governmental
Immunity Act (“UGIA”) confer to state officers immunity from suit
or immunity from liability? and (2) Does the UGIA require that a
notice of claim against state officials in their individual
capacity expressly aver “fraud” or “malice”? 	We conclude
(1) that the UGIA confers immunity from suit to state officers
and (2) that the UGIA does not require that a notice of claim
against state officials in their individual capacity expressly
aver “fraud” or “malice.”

1 Robert J. DeBry & Assocs., P.C. v. Qwest Dex, Inc., 2006
UT 41, ¶ 2, 144 P.3d 1079 (alteration in original) (internal
quotation marks omitted).
2 On July 1, 2004, the UGIA, Utah Code Ann. §§ 63-30-1 to
-38 (1997), was reenacted as the Governmental Immunity Act of
Utah, id. §§ 63-30d-101 to -904 (2004). 	Throughout this opinion,
we cite to the former enactment because it was the version in
effect at the time of the incident giving rise to Mecham’s
claims. 	See Moss v. Pete Suazo Utah Athletic Comm’n, 2007 UT 99,
¶ 1 n.1, 175 P.3d 1042; Grappendorf v. Pleasant Grove City, 2007
UT 84, ¶ 3 n.2, 173 P.3d 166.
No. 20070730 	2
BACKGROUND
¶2 	“We accept as true the facts described by the [Tenth
Circuit] in the certification order.” 1 	Accordingly, we recite
the facts as contained therein.
¶3 	On February 23, 2003, Utah Highway Patrol Trooper Sean
Frazier pulled over Lemanda Mecham for speeding and not wearing
her seat belt. 	When Frazier asked for Mecham’s license, Mecham
provided it. 	Frazier checked the license with dispatchers and
was told that it had been suspended. 	Mecham denied that there
was any problem with her license and refused Frazier’s repeated
requests that she exit her car. 	Instead, Mecham ordered Frazier
to call backup to prove his identity as a police officer.
Frazier did so, and Trooper David Johnson arrived as backup. 	But
even after Johnson arrived, Mecham still refused to exit her car.
After approximately fifty minutes of argument, the troopers
subdued Mecham with pepper spray and pulled her from her car.
¶4 	In January 2004, pursuant to the UGIA, 2 Mecham filed a
notice of claim against Frazier and Johnson, alleging violations
of state law. 	She subsequently filed a complaint in federal
district court, alleging that the troopers had used excessive
force. 	Her complaint included both federal and state claims.
¶5 	Frazier and Johnson moved to dismiss all claims. 	The
federal district court denied the motion as to the federal claim
but granted the motion as to the state law claims, ruling that
the complaint did not aver sufficient facts upon which relief
could be granted. 	The court did, however, grant Mecham leave to
amend her complaint to cure the deficiency.
¶6 	Mecham filed an amended complaint, alleging a federal
claim under 42 U.S.C. § 1983 and seven state law claims. 	The
troopers moved to dismiss the state law claims, arguing that

3 Egbert v. Nissan N. Am., Inc., 2007 UT 64, ¶ 7, 167 P.3d
1058 (internal quotation marks omitted).
4 Id. (internal quotation marks omitted).
5 Munson v. Chamberlain, 2007 UT 91, ¶ 12, 173 P.3d 848.
6 Flake v. Flake (In re Estate of Flake), 2003 UT 17, ¶ 25,
71 P.3d 589 (alteration in original) (citation and internal
quotation marks omitted).
3 	No. 20070730
Mecham had not complied with the notice requirements of the UGIA,
leaving the court without jurisdiction to entertain her state law
claims. 	The district court denied the motion, and the troopers
appealed to the Tenth Circuit Court of Appeals.
¶7 	The Tenth Circuit entered a Show Cause Order on the
issue of whether the district court’s denial of the motion to
dismiss was immediately appealable. 	Following briefing and oral
argument, the Tenth Circuit determined that the issue required
resolution by this court. 	Accordingly, the Tenth Circuit
certified to this court two questions: 	(1) “Does the [UGIA]
confer to state officers an immunity from suit or merely an
immunity from liability?” and (2) “Does the [UGIA] require that a
Notice of Claim against state officials in their individual
capacity expressly aver ‘fraud’ or ‘malice’?”
¶8 	We have jurisdiction over certified questions of state
law pursuant to Utah Code section 78A-3-102(1) (2008).
STANDARD OF REVIEW
¶9 	When answering a certified question from a federal
court, “traditional standards of review do not apply” because we
are not asked to “affirm or reverse a lower court’s decision.” 3
We do not resolve the underlying dispute; rather, “we answer the
legal questions presented.” 4
ANALYSIS
¶10 	Here, we are asked to interpret provisions of the UGIA.
“When interpreting a statute, we look first to its plain
language.” 5 	“Only if we find some ambiguity [in the statute’s
plain language] need we look further, and only then need we seek
guidance from the legislative history and relevant policy
considerations.” 6

7 Aspen Orthopaedics & Sports Med., LLC v. Aspen Valley
Hosp. Dist., 353 F.3d 832, 837 (10th Cir. 2003) (internal
quotation marks omitted).
8 See Decker v. IHC Hosp., Inc., 982 F.2d 433, 435 (10th
Cir. 1992); see also Africa v. City of Philadelphia (In re City
of Philadelphia Litig.), 49 F.3d 945, 957 (3d Cir. 1995) (stating
that “[i]t is immunity from suits, rather than mere immunity from
liability,” that makes an order denying immunity immediately
appealable).
9 See Bailey v. Kennedy, 349 F.3d 731, 738 (4th Cir. 2003)
(“We have jurisdiction over the denial of public officers’
immunity if under state law, the immunity is an immunity from
suit, but we lack such jurisdiction if it is an immunity from
liability only.” (internal quotation marks omitted)).
10 Aspen Orthopaedics, 353 F.3d at 837 (“State law governs
the scope of the immunity at issue . . . .”).
No. 20070730 	4
I. 	DOES THE UGIA CONFER TO STATE OFFICERS AN IMMUNITY FROM SUIT
OR AN IMMUNITY FROM LIABILITY?
A. 	The Importance of the Distinction Between Immunity
from Suit and Immunity from Liability
¶11 	The distinction between immunity from suit and immunity
from liability is important to the federal courts because it
defines their jurisdiction. 	Under the collateral order doctrine,
federal appellate courts “have subject matter jurisdiction to
hear appeals of orders denying motions to dismiss where the
motions are based on immunity from suit.” 7 	They do not, however,
have jurisdiction to hear appeals of orders denying claims of
immunity from liability. 8 	Thus, a federal appellate court’s
jurisdiction to hear an appeal turns on the scope of the
immunity. 9
¶12 	When the claimed immunity derives from state law, the
scope of the immunity--i.e., whether the immunity in question is
immunity from suit or immunity from liability--is governed by
state law. 10 	Accordingly, the Tenth Circuit Court of Appeals has
asked us to interpret the scope of the immunity conferred to
state officials under the UGIA so that it can determine whether
it has jurisdiction to hear the troopers’ appeal. 	This is a
question of first impression because, in Utah, there is no

11 See Tyler v. Dep’t of Human Servs., 874 P.2d 119, 119-20
(Utah 1994) (declining to apply the federal collateral order
doctrine).
12 Utah Code Ann. § 63-30-3(1) (1997).
13 See, e.g., Moss v. Pete Suazo Utah Athletic Comm’n, 2007
UT 99, ¶ 10, 175 P.3d 1042; Lovendahl v. Jordan Sch. Dist., 2002
UT 130, ¶ 15, 63 P.3d 705.
14 Utah Code Ann. § 63-30-4(3) (Supp. 2002).
15 The three exceptions are (1) when “the employee acted or
failed to act through fraud or malice,” (2) when the injury or
damage resulted from the employee driving while under the
(continued...)
5 	No. 20070730
collateral order doctrine. 11 	As a result, we have not had
occasion to focus on the distinction between immunity from suit
and immunity from liability under the UGIA.
B. 	Government Employees and Immunity Under the UGIA
¶13 	The UGIA clearly grants immunity from suit to
governmental entities. 	Section 63-30-3, the first substantive
provision in the UGIA, begins with the following statement:
“Except as may be otherwise provided in this chapter, all
governmental entities are immune from suit for any injury which
results from the exercise of a governmental function . . . .” 12
We have often referred to the immunity provided to governmental
entities by the UGIA as a “blanket immunity” that protects the
entities from suit unless a provision in the UGIA specifically
waives that immunity. 13
¶14 	The UGIA does not contain a similarly explicit grant of
immunity from suit to government employees. 	Nevertheless,
section 63-30-4(3)(a) clearly provides that an action under the
UGIA is a “plaintiff’s exclusive remedy” for bringing suit
against a government employee for an act occurring “during the
performance of the employee’s duties, within the scope of
employment, or under the color of authority.” 14 	By making suit
under the UGIA a plaintiff’s sole remedy against a government
employee, the legislature extended to government employees the
blanket immunity from suit that was explicitly granted to
government entities.
¶15 	A government employee’s immunity from suit, however, is
subject to three exceptions, 15 one of which is relevant here: 	a

15 (...continued)
influence of alcohol or drugs, or (3) when the employee
intentionally or knowingly gave false testimony in a judicial or
administrative proceeding. 	Utah Code Ann. § 63-30-4(3)(b); id.
§ 63-30-4(4). 	Because the second and third exceptions are not
relevant here, we do not discuss them.
16 See id. § 63-30-4(3)-(4) (1997 & Supp. 2002); Nielson v.
Gurley, 888 P.2d 130, 135 (Utah Ct. App. 1994) (“[I]f the
employee acted or failed to act through malice or fraud, the
employee cannot successfully invoke governmental immunity as an
affirmative defense.”).
17 Utah Code Ann. § 63-30-11(2) (Supp. 2002) (“Any person
having a claim for injury against a governmental entity, or
against its employee . . . shall file a written notice of claim
with the entity before maintaining an action . . . .” (emphasis
added)); Nielson, 888 P.2d at 135-36 (holding that a plaintiff
must comply with the notice of claim requirements in order to
maintain an action against a government employee, even if the
plaintiff claims that the employee acted with fraud or malice).
18 Utah Code Ann. § 63-30-4(4).
No. 20070730 	6
government employee can be sued individually if the employee acts
or fails to act due to fraud or malice. 16 	In order to
successfully sue a government employee individually, a plaintiff
must file a notice of claim with the proper government entity 17
that--as discussed in Part II of this opinion--contains an
allegation of fraud or malice. 	When fraud or malice is properly
alleged, the employee is not immune from suit and may be held
personally liable if “it is established that . . . the employee
acted or failed to act due to fraud or malice.” 18 	Accordingly,
whether a notice of claim properly alleges fraud or malice raises
questions regarding the employee’s immunity from suit and not the
employee’s immunity from liability.
II. 	DOES THE UGIA REQUIRE THAT A NOTICE OF CLAIM AGAINST STATE
OFFICIALS IN THEIR INDIVIDUAL CAPACITIES EXPRESSLY AVER “FRAUD”
OR “MALICE”?
¶16 	The second question certified by the Tenth Circuit asks
what degree of compliance is required to satisfy the notice of
claim requirement of the UGIA. 	The troopers argue that, in order
to assert a claim against a government employee, a claimant must
“specifically allege” fraud or malice. 	In other words, the
troopers’ argument is that a proper notice of claim must contain
the words “fraud” or “malice.” 	Mecham, on the other hand,

19 Utah Code Ann. § 63-30-11(2) (Supp. 2002).
20 Id. § 63-30-11(3)(a). 	The current version of the
Governmental Immunity Act of Utah contains a fourth requirement:
the name of the government employee if the claim is being pursued
against the employee individually. 	Id. § 63-30d-401(3)(a)(iv)
(Supp. 2007). 	Because this requirement was not part of the UGIA
at the time of Mecham’s claim, we do not include it in our
discussion.
21 Rushton v. Salt Lake County, 1999 UT 36, ¶ 20, 977 P.2d
1201 (internal quotation marks omitted).
22 Xiao Yang Li v. Univ. of Utah, 2006 UT 57, ¶ 8, 144 P.3d
1142 (“When applying the notice provision in the past, we have
called for strict compliance to the Immunity Act before
determining that the State waived its immunity.”).
7 	No. 20070730
contends that the UGIA does not require a claimant to
specifically state “fraud” or “malice” in the notice of claim.
We agree with Mecham.
¶17 	The notice of claim requirement is contained in section
63-30-11, which provides in part:
Any person having a claim for injury against
a governmental entity, or against its
employee for an act or omission occurring
during the performance of the employee’s
duties, within the scope of employment, or
under color of authority shall file a written
notice of claim with the entity before
maintaining an action, regardless of whether
or not the function giving rise to the claim
is characterized as governmental. 19
A notice of claim must contain (1) “a brief statement of the
facts,” (2) “the nature of the claim asserted,” and (3) “the
damages incurred by the claimant so far as they are known.” 20
The purpose of the notice of claim requirement is to “provide[]
the governmental entity an opportunity to correct the condition
that caused the injury, evaluate the claim, and perhaps settle
the matter without the expense of litigation.” 21
¶18 	Utah courts require strict compliance with the notice
of claim requirement of the UGIA. 22 	Strict compliance mandates
“adherence to all of the relevant provisions outlined in the

23 Id.
24 Id. ¶ 16.
25 Id. ¶¶ 3, 19.
26 Id. ¶¶ 15-16.
27 Id. ¶ 16.
28 Utah Code Ann. § 63-30-11(3)(a) (Supp. 2002).
29 Id. § 63-30-11(3)(a)(ii).
30 2005 UT 63, ¶ 21, 125 P.3d 860 (internal quotation marks
omitted).
No. 20070730 	8
[UGIA].” 23 	Nevertheless, the courts will not “require more of a
claimant than is required by the pertinent statutory language.” 24
For example, in Xiao Yang Li v. University of Utah, we held that
a notice of claim met the requirements of the UGIA, even though
the notice did not list the claimants’ names. 25 	We reasoned that
because the UGIA did not “specify whether a notice of claim must
include the names of each individual claimant,” we could not
override the legislature’s prerogative in deciding “what
information is necessary to give proper notice of a claim.” 26
This is true, we reasoned, even when the notice of claim
requirements may “hold little utility in providing actual notice
to the State regarding the claims.” 27
¶19 	The plain language of the UGIA does not require that a
notice of claim against state officials in their individual
capacity expressly aver “fraud” or “malice.” 	As noted above, the
UGIA requires that a notice of claim contain only (1) “a brief
statement of the facts,” (2) “the nature of the claim asserted,”
and (3) “the damages incurred by the claimant so far as they are
known.” 28 	The question of whether a notice of claim must
expressly use the words “fraud” or “malice” goes to the second
requirement: 	“the nature of the claim asserted.” 29 	In Houghton
v. Department of Health, we articulated what this requirement
entails: 	“[A] plaintiff need only include enough specificity in
the notice to inform as to the nature of the claim so that the
defendant can appraise its potential liability.” 30 	Under this
standard, the contents of the notice of claim must be sufficient
to reasonably alert the governmental entity of the nature of the
claim--that the claimant seeks to bring a cause of action against
a government employee personally due to the employee’s fraudulent

31 2001 UT 49, 26 P.3d 217.
32 2000 UT App 38, 997 P.2d 338.
33 Thomas, 2001 UT 49, ¶ 20 n.11 (“Under the Immunity Act,
[the plaintiff] must . . . allege fraud or malice.”); Straley,
2000 UT App 38, ¶ 15 (“[The plaintiff’s] action cannot be
maintained against [the government employee] personally absent
the allegation of fraud or malice.”).
34 Xiao Yang Li, 2006 UT 57, ¶ 16.
35 Houghton, 2005 UT 63, ¶ 21 (internal quotation marks
omitted).
9 	No. 20070730
or malicious conduct. 	This standard does not, however, require a
recitation of particular words, such as “malice” or “fraud.”
¶20 	The troopers’ argument on appeal--that a claimant must
expressly use the words “fraud” or “malice” in a notice of
claim--is based on the language in two Utah cases: 	Thomas v.
Lewis 31 and Straley v. Halliday.32 	These two cases stand for the
proposition that a claimant must allege fraud or malice in her
notice of claim in order to maintain an action against a
government employee personally. 33 	The cases do not, however,
stand for the proposition that the notice of claim must contain
an incantation of the words “fraud” or “malice.” 	An allegation
of malice does not necessarily require the use of the word
“malice,” nor does an allegation of fraud necessarily require the
use of the word “fraud.” 	Whether a notice of claim contains an
allegation of fraud or malice depends on the content of the
notice as a whole, not on the use or nonuse of particular words.
To accept the troopers’ argument that a notice of claim must
contain the words “fraud” or “malice” would “require more of a
claimant than is required” by the UGIA. 34
¶21 	In sum, neither the plain language of the UGIA nor
applicable precedent requires an incantation of the words “fraud”
or “malice” in a notice of claim. 	The UGIA requires only “enough
specificity in the notice to inform as to the nature of the claim
so that the defendant can appraise its potential liability.” 35
We therefore conclude that the UGIA does not require that a
notice of claim against state officials in their individual
capacity expressly aver “fraud” or “malice.”

No. 20070730 	10
CONCLUSION
¶22 	We answer the Tenth Circuit’s first question by
concluding that the UGIA grants to government employees an
immunity from suit. 	We answer the second question by concluding
that although the UGIA requires strict compliance with the notice
of claim requirements, this strict compliance does not require
the use of specific words, such as “fraud” or “malice.”
---
¶23 	Chief Justice Durham, Associate Chief Justice Durrant,
Justice Wilkins, and Judge Hansen concur in Justice Parrish’s
opinion.
¶24 	Justice Nehring does not participate herein; District
Court Judge Royal I. Hansen sat.