Li v. University of Utah

2006 UT 57
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
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Xiao Yang Li, Yi Wei, and Ke Qing No. 20050683
Peng, individuals; and Zahn Shiwei,
an heir of Zhang Keming, deceased;
Dai Youzhi, an heir of Tang Shouyin,
deceased; Chen Zhaoying, an heir of
Liao Liusheng, deceased; Fan Hua,
an heir of Deng Guoyang, deceased;
Liu Xiaoxia, an heir of Ouyang Zao,
deceased; Zhou Mi, an heir of He
Yunkun, deceased; and Gong Guiyuan,
an heir of Huang He, deceased;
all personal representatives,
Plaintiffs and Appellees,
v.
University of Utah, a division of the
State of Utah, the State of Utah,
Yi Chen, and John and Jane Does 1 F I L E D
thru 10,
Defendants and Appellants. September 29, 2006
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Third District, Salt Lake
The Honorable Robert K. Hilder
No. 050903626
Attorneys: Robert B. Sykes, Ryan B. Evershed, Salt Lake
City, for plaintiffs
Mark L. Shurtleff, Att’y Gen., Debra J. Moore,
Sandra L. Steinvoort, Asst. Att’ys Gen.,
Salt Lake City, for defendants
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WILKINS, Associate Chief Justice:
¶1 While participating in a conference sponsored by the
University of Utah (the “University”), a group of Chinese
scholars were involved in a highway rollover. Seven of the ten
scholars died in the accident. We have been asked on
interlocutory appeal to determine whether the notice of claim

1 In 2004, the Utah Legislature amended the Immunity Act by
repealing chapter 30 of title 63 of the Utah Code and reinstating
the amended Act as chapter 30d. See 2004 Utah Laws, ch. 267.
Although the repealed Act technically governs this claim, see id.
§ 48, the amendments do not affect the analysis or disposition of
this case. In the interest of simplicity, therefore, we will
cite to the current code sections for the remainder of this
opinion.
No. 200500683 2
filed under the names of the seven deceased, rather than under
the names of their heirs, satisfied the notice provision of the
Utah Governmental Immunity Act (the “Immunity Act”). The
district court ruled that the notice provision was satisfied, and
we affirm the district court’s decision.
BACKGROUND
¶2 In April 2003, the University organized and hosted a
course of study for ten scholars from the Hunan Provincial
Department of Education of the People’s Republic of China.
Because part of the course involved visiting Pennsylvania, the
University commissioned a fifteen-passenger van for the scholars.
While driving the scholars through a late-season snowstorm in
Pennsylvania, the van driver, allegedly negligent, slid off of
the road. The van rolled, killing seven of the ten scholars and
injuring the remaining three.
¶3 Pursuant to Utah Code section 63-30-11,1 Attorney David
L. Kwass of Philadelphia filed a notice of claim (the “Notice”)
for wrongful death and personal injuries with the Office of the
Utah Attorney General. For the personal injuries claim, the
Notice listed Kwass’s clients as the three surviving passengers.
The seven heirs filed the wrongful death claim, but the Notice
failed to list their names. Instead, Kwass named the seven
deceased. The Notice also included both a brief statement of the
facts and a description of the nature of the claim asserted.
¶4 After the complaint was filed and the Notice had been
served, the district court heard oral arguments on the State’s
motion for partial dismissal and on a motion to strike the
affidavit of Kwass. The court denied the partial motion to
dismiss and granted the motion to strike the affidavit as
unnecessary. The State sought interlocutory appeal, claiming
immunity under the Immunity Act, and we granted review.

2 Utah Code Ann. § 63-30d-401(1)(c) (2004).
3 Id. § 63-30d-401(3)(a)-(b)(i).
3 No. 20050683
¶5 The Immunity Act states in pertinent part that “[t]he
burden to prove the exercise of reasonable diligence is upon the
claimant.”2 The Immunity Act further provides:
(3)(a) The notice of claim shall set forth:
(i) a brief statement of the facts;
(ii) the nature of the claim
asserted;
(iii) the damages incurred by the
claimant so far as they are known;
and
(iv) if the claim is being pursued
against a governmental employee
individually as provided in
Subsection 63-30d-202(3)(c), the name
of the employee.
(b) The notice of claim shall be:
(i) signed by the person making the
claim or that person’s agent,
attorney, parent, or legal guardian
. . . .3
The statute does not explicitly require the claimant’s name.
¶6 The Utah wrongful death statute states in pertinent
part:
[W]hen the death of a person not a minor is
caused by the wrongful act or neglect of
another, his heirs, or his personal
representative for the benefit of his heirs,
may maintain an action for damages against
the person causing the death, or, if such
person is employed by another person who is
responsible for his conduct, then also
against such other person. If such adult
person has a guardian at the time of his
death, only one action can be maintained for
the injury to or death of such person, and
such action may be brought by either the
personal representatives of such adult
deceased person, for the benefit of his

4 Id. § 78-11-7 (2002) (emphasis added).
5 Case v. Case, 2004 UT App 423, ¶ 5, 103 P.3d 171.
6 See Gurule v. Salt Lake County, 2003 UT 25, ¶ 5, 69 P.3d
1287; Rushton v. Salt Lake County, 1999 UT 36, ¶ 19, 977 P.2d
1201.
7 See Gurule, 2003 UT 25, ¶ 5; Gallegos v. Midvale City, 492
P.2d 1335, 1336-37 (Utah 1972) (“Inasmuch as the maintenance of
such a cause of action derives from such statutory authority, a
prerequisite thereto is meeting the conditions prescribed in the
statute.”).
8 Utah Code Ann. § 63-30d-402 (2004).
No. 200500683 4
heirs, or by such guardian for the benefit of
the heirs.4
ANALYSIS
¶7 Whether a trial court has subject matter jurisdiction
presents a question of law, which this Court reviews “under a
correction of error standard, giving no particular deference to
the trial court’s determination.”5 Waiver of governmental
immunity has been conditioned upon compliance with the Immunity
Act. Thus, the main issue before us is whether the Notice filed
by Kwass satisfied the notice requirements of the Immunity Act.
More specifically, we must determine whether Kwass’s listing of
the decedents instead of their heirs, his actual clients, still
satisfied the notice provision.
¶8 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.6 Strict
compliance constitutes adherence to all of the relevant
provisions outlined in the Immunity Act,7 and the record in this
case indicates that the Notice filed by Kwass strictly complied
with all of the express requirements. Accordingly, we conclude
that the government’s immunity has been waived.
¶9 First, under the Immunity Act, a party must file his
claim within one year of the accident.8 Kwass filed the Notice
on April 1, 2004, and the accident occurred on April 7, 2003.
Hence, the filing on April 1, 2004, clearly satisfied the one-
year requirement.

9 Id. § 63-30d-401(3)(a)(i).
10 Id. § 63-30d-401(3)(a)(ii).
11 Id. § 63-30d-401(3)(a)(iii).
5 No. 20050683
¶10 Second, the Immunity Act calls for a brief statement of
the facts.9 The Notice contained a section entitled, “A Brief
Statement of the Facts,” which explained the following:
A van in which the above identified
individuals were traveling as passengers was
involved in an accident on Route 15 in
Quentin Township, Pennsylvania near Route 54
on April 7, 2003. The van rolled over off of
the highway, and sustained significant
damage. Seven of the occupants of the van
were killed in the accident. A copy of the
Police Accident Reporting Form is attached as
Exhibit A.
This paragraph constitutes a brief recitation of those facts most
relevant to the accident.
¶11 Third, the Immunity Act requests a description of the
nature of the claim asserted.10 Under the section of the Notice
called “The Nature of the Claim Asserted,” Kwass wrote,
“Plaintiffs contend that the University of Utah negligently hired
and supervised the operator of the van[] and is vicariously
liable for the actions of the van driver in crashing the van.”
This statement adequately declares the nature of the claim
asserted as one of negligence and vicarious liability.
¶12 Fourth, parties must list damages incurred by the
claimants so far as they are known.11 The Immunity Act does not
call for an all-inclusive summary of the damages or for
speculation. Assuming, for instance, that the extent of damages
was completely unknown at the time of filing, it could be
possible to satisfy this section’s requirement by providing no
information. As a result, under the plain language of this
section, the listing of only known damages is necessary to
satisfy the requirement. Moreover, including potentially helpful
or even misleading information does not make the absence of
useful information any less compliant. Kwass explained in the
Notice under “Damages Incurred By the Claimant So Far As They Are
Known,” that “[s]even of the plaintiffs are dead. The others are
currently being treated by various physicians.” Therefore,
Kwass’s Notice went beyond the minimal requirements of the
Immunity Act by at least indicating that the damages would be

12 Id. § 63-30d-401(3)(b)(i).
13 Id. § 63-30d-401(3)(b)(ii)(E).
14 See Nunez v. Albo, 2002 UT App 247, ¶¶ 21-27, 53 P.3d 2
(explaining that we require strict compliance so that the
“purpose of the Immunity Act’s notice of claim [may be]
fulfilled.”).
15 Utah Code Ann. § 63-30d-4(3)(b)(i).
No. 200500683 6
those incurred as a result of the injuries and deaths caused by
the accident.
¶13 Fifth, the Immunity Act requires that notice be signed
by the person making the claim or by that person’s agent,
attorney, parent, or legal guardian.12 The heirs represent in
their brief that Kwass was acting as their attorney at the time
he filed the notice of claim. Kwass supplied an affidavit making
the same assertion. As such, the record adequately reflects that
the Notice was signed by the attorney of the persons making the
claim. Ultimately, if the State has concerns regarding the
adequacy of Kwass’s representation, the State may call it into
question on remand, but the issue is not before us on
interlocutory appeal.
¶14 Finally, notice in this case must have been directed
and delivered by hand or by mail to the Office of the Utah
Attorney General.13 The record indicates that the Notice was
sent directly to the Office of the Utah Attorney General by
certified mail on April 1, 2004.
¶15 Kwass’s notice strictly complied with the statutory
requirements set forth as conditions to the waiver of
governmental immunity and consequently fulfilled the purpose of
the Immunity Act.14 We have previously addressed questions
regarding failure to include a brief statement of the facts,
failure to file timely notice, failure to set forth the nature of
the claim asserted, and delivery of notice to the wrong party.
In each of those instances, we have dismissed claims when they
fail to follow the unambiguous language of the Immunity Act.
The Immunity Act does not specify whether a notice of claim must
include the names of each individual claimant. Rather, it merely
provides that the notice must be “signed by the person making the
claim or that person’s agent, attorney, parent, or legal
guardian.”15 As representative of the heirs, the persons
entitled to a wrongful death claim, Kwass’s signature on the
Notice technically fulfills the requirement that the notice be
signed by the attorney making the claim.

16 2002 UT 17, 42 P.3d 379.
17 Id. ¶¶ 9,10.
18 Id. ¶ 10.
19 926 P.2d 886 (Utah 1996).
7 No. 20050683
¶16 We realize that the Notice may hold little utility in
providing actual notice to the State regarding the claims of the
decedents’ heirs. Perhaps the Notice’s lack of information as to
the number of claimants and to the extent of the damages was an
impairment to the State’s ability to correct the condition,
evaluate the claim, or settle the claim. Even if this is true,
it is the Legislature that has the prerogative to determine what
information is necessary to give proper notice of a claim
sufficient to waive governmental immunity. We construe the
language of the Immunity Act narrowly, but we do not require more
of a claimant than is required by the pertinent statutory
language.
¶17 Before concluding, we briefly address the prior case
law relied on by both parties. The State relies on Pigs Gun
Club, Inc. v. Sanpete County16 to argue that we should not permit
the heirs to recover under this Notice. In Pigs Gun Club, we
dismissed the claims of late-filing claimants who sought to join
the timely-filed notice of their neighboring landowners.17 The
late filers argued that the County had sufficient notice of their
claims due to their proximity to the timely-filed landowners and
to the fact that they were harmed by the same alleged negligence.
Applying strict compliance, we concluded that although the
parties’ claims were similar, the parties themselves were not the
same–-there was no legal relationship between the neighboring
landowners.18 And unlike the present case, the late filers
failed to comply with the statutory requirements.
¶18 In Moreno v. Board of Education,19 on the other hand,
we permitted a biological mother who had failed to file a timely
notice in a wrongful death action to be substituted as the real
party in interest under the timely-filed notice of the deceased
child’s legal guardians. Essentially, the guardians brought the
action for the biological mother, the beneficiary of the child.
The case before us now is more analogous to Moreno: essentially,
the legal “agent” filed the notice of claim.
CONCLUSION

No. 200500683 8
¶19 We require strict compliance to statutory provisions
setting forth the content of notices of claim. The Notice before
us satisfies the statutory requirements under the Utah
Governmental Immunity Act because it meets the technical
requirements of the statute. Affirmed.
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¶20 Chief Justice Durham, Justice Durrant, Justice Parrish,
and Justice Nehring concur in Associate Chief Justice Wilkins’
opinion.