Farman-Rava v. Blu Auto Transport

2021 UT App 93

THE UTAH COURT OF APPEALS

YASSER FARMAN-RAVA,
Appellant,
v.
BLU AUTO 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 DAVID N. MORTENSEN authored this Opinion, in which
JUDGES JILL M. POHLMAN and RYAN 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
Farman-Rava v. Blu Auto Transport

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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Farman-Rava v. Blu Auto Transport

¶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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Farman-Rava v. Blu Auto Transport

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.

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