Rodriguez v. Crosby

2024 UT App 7

THE UTAH COURT OF APPEALS

VERONICA RODRIGUEZ,
Appellant,
v.
KRISTA LEEANN CROSBY,
Appellee.

Opinion
No. 20210789-CA
Filed January 11, 2024

Third District Court, Salt Lake Department
The Honorable Mark S. Kouris
No. 200905265

Peter R. Mifflin and Victor Jackson,
Attorneys for Appellant
Mark L. Anderson and Alan K. Beal,
Attorneys for Appellee

JUDGE JOHN D. LUTHY authored this Opinion, in which JUDGES
MICHELE M. CHRISTIANSEN FORSTER and AMY J. OLIVER concurred.

LUTHY, Judge:

¶1 A plaintiff suing for general damages—often referred to as
pain and suffering or noneconomic damages—arising from an
automobile accident usually must have sustained an injury that
meets a particular threshold. See Utah Code § 31A-22-309(1)(a); see
also Pinney v. Carrera, 2020 UT 43, ¶¶ 35‒36, 469 P.3d 970
(describing categories of damages). Following a 2017 car accident
in which Veronica Rodriguez’s daughter (Child) sustained a
broken wrist, Rodriguez filed a lawsuit seeking general damages
on behalf of Child against Krista Leeann Crosby, the individual
who caused the accident. Crosby moved for summary judgment,
asserting that Child’s injury did not meet the statutory threshold
for bringing such a suit.
Rodriguez v. Crosby

¶2 Rodriguez responded, arguing that there was at least a
material dispute of fact as to whether Child’s injury satisfied the
threshold requirement—both under the version of the statute in
effect at the time of the accident and under an amended version
of the statute in effect at the time of the anticipated trial. The
district court agreed with Crosby, granted summary judgment in
her favor, and dismissed Rodriguez’s claim with prejudice,
holding that the earlier version of the statute applied and that
Child’s injury did not meet the threshold requirement under that
version of the statute. We see no error or abuse of discretion in the
court’s ruling, and we therefore affirm.

BACKGROUND

¶3 In September 2017, Rodriguez and Child were passengers
in a van driving eastbound toward an intersection when Crosby,
heading westbound, turned left in front of their moving vehicle in
the intersection and caused a collision. As a result of the collision,
Child suffered fractures in her right wrist. 1 Child’s injuries did not
require surgery, but a cast was placed on her arm for
approximately six weeks, after which “[n]o additional treatment
was recommended” and she apparently understood “that healing
was complete.”

¶4 Nearly three years later, in August 2020, Rodriguez, on
behalf of Child, filed suit against Crosby alleging general
damages due to Crosby’s negligence. As to threshold injuries,
Rodriguez’s complaint alleged that Child sustained “injury to her
right wrist,” “medical expenses exceeding $3,000,” and “a lifelong
injury” due to Crosby’s negligence.

1. There is no dispute among the parties that Crosby caused the
accident and that Child’s arm was fractured as a result of the
accident.

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¶5 Crosby retained a medical expert, Dr. Newton, to provide
testimony regarding Child’s injury. He examined Child and
prepared a report containing his medical findings. In his report,
Dr. Newton concluded that Child’s wrist fractures, which he
categorized as “torus fractures with buckling but no significant
angulation,” were “apparently well healed with some residual
pain symptoms.” Dr. Newton noted Child’s ongoing subjective
complaints of pain and addressed whether they were supported
by objective findings:

There are some ongoing vague wrist complaints.
Healing is complete and adequate. I cannot really
define a structural diagnosis for the ongoing
symptoms. Subjective symptoms do exceed what
we would typically expect; however, I feel that there
is a likelihood that these symptoms will eventually
resolve but may require some treatment.

Dr. Newton acknowledged that Child’s “[w]rist strength is less
than ideal and is somewhat pain limited” and that “[h]er motion
is also somewhat limited as compared to the contralateral side.”
But he opined that the reason for this was that Child had “not
gained confidence” with regard to the wrist and that “there is
some anxiety component that is hindering her progress.” So
although Dr. Newton was of the opinion that “there should not be
any long-term consequences” of the fractures, he did recognize
that “there is progress to be made.” To that end, he recommended
six to eight “visits of physical therapy to reassure [Child] and give
her confidence in . . . her wrist capacity” and an “exercise
program,” which he said “should be employed until she feels that
the wrist is normal.”

¶6 In 2021, two and a half months before the scheduled trial,
Crosby filed a summary judgment motion asserting that she was
“not liable for general damages as a matter of law as [Child] failed
to meet the statutory threshold requirement” in effect in 2017, at

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the time of the accident. The 2017 list of qualifying threshold
injuries included those resulting in “death,” “dismemberment,”
“permanent disability or permanent impairment based upon
objective findings,” “permanent disfigurement,” and “medical
expenses to a person in excess of $3,000.” Utah Code § 31A-22-
309(1)(a) (2017). Pointing to Dr. Newton’s report and the fact that
Rodriguez’s initial disclosures showed a total of only $929.50 in
incurred medical expenses, Crosby asserted that Rodriguez had
failed to provide evidence to support that Child “suffered a
permanent partial disability or incurred medical expenses in an
amount exceeding $3000.00.”

¶7 Rodriguez opposed Crosby’s motion, arguing that because
the determination of whether a plaintiff satisfies the threshold
injury requirement is made as of the time of trial, the court should
apply a then newly amended version of the threshold injury
statute—the 2021 version—which had added “a bone fracture” to
the list of qualifying threshold injuries. Id. § 31A-22-309(1)(a)
(2021). Rodriguez also argued, in the alternative, that even under
the 2017 version of the statute (1) “[t]here is a question of fact as
to whether a broken arm constitutes dismemberment” and thus
qualifies as a threshold injury; (2) a jury could find that Child’s
ongoing symptoms years after the accident showed a permanent
impairment; and (3) considering Dr. Newton’s physical therapy
recommendations, it was “not impossible” that Child would
“incur at least $3,000 of medical expenses prior to trial.”

¶8 After a hearing on the matter, the district court granted
Crosby’s motion for summary judgment, determining that the
2017 version of the statute applied and that Rodriguez had not
produced evidence to support a finding of any of the threshold
injuries listed in that version. Specifically, the court noted that
Child’s medical expenses had not reached the $3,000 threshold,
and it reasoned that a permanent impairment could not be shown
by Child’s complaints of ongoing pain where she had “quit seeing
any provider” and had not “even attempted to try to get it fixed.”

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The court then entered a written order dismissing Rodriguez’s
claim with prejudice. Rodriguez now appeals that order.

ISSUES AND STANDARDS OF REVIEW

¶9 On appeal, Rodriguez contends that the district court erred
in granting Crosby’s motion for summary judgment, including by
applying the wrong version of the threshold injury statute. “We
review the district court’s decision to grant summary judgment
for correctness, granting no deference to the district court.” Noor
v. State, 2019 UT 3, ¶ 18, 435 P.3d 221 (cleaned up). Likewise,
“determining which version of a statute applies is a matter of
statutory interpretation, which presents a question of law which
we review for correctness.” State v. Walker, 2013 UT App 198, ¶ 12,
308 P.3d 573 (cleaned up).

¶10 Beyond her claims regarding the propriety of summary
judgment, Rodriguez asserts error in the district court’s decision
to dismiss her claim with prejudice. “A district court’s decision to
dismiss with prejudice is reviewed for an abuse of discretion.”
State v. Watson Pharms. Inc., 2019 UT App 31, ¶ 12, 440 P.3d 727.

ANALYSIS

I. Retroactivity of the Statutory Amendment

¶11 Rodriguez first contends that the district court erred by
applying outdated law to the undisputed facts of the case.
Specifically, she contends that the court should have applied the
current version of Utah Code section 31A-22-309 (the version that
became effective in 2021 and would have been in effect at the time
of trial) as opposed to the version in effect at the time of the
accident—the key difference between the versions being that the
current version includes “a bone fracture” among the enumerated

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threshold injuries for which a cause of action may be maintained.
Compare Utah Code § 31A-22-309(1)(a) (2017), with id. (2023).

¶12 “The courts of this state operate under a statutory bar
against the retroactive application of newly codified laws.” State
v. Clark, 2011 UT 23, ¶ 11, 251 P.3d 829; see also Utah Code § 68-3-
3. The only exception to this bar occurs when the newly codified
law “is expressly declared to be retroactive.”2 Utah Code § 68-3-3.
The legislature did not make the statutory change at issue here
explicitly retroactive; thus, the district court was required to apply
the version of the statute “as it exist[ed] at the time of the event
regulated by the law in question.” Clark, 2011 UT 23, ¶ 13.

¶13 Therefore, to determine whether the district court applied
the correct statute, we must consider what event is regulated by
the statute. In this regard, the Utah Supreme Court has explained
as follows:

On matters of substance the parties’ primary rights
and duties are dictated by the law in effect at the
time of their underlying primary conduct (e.g., the
conduct giving rise to a criminal charge or civil
claim). When it comes to the parties’ procedural
rights and responsibilities, however, the relevant
underlying conduct is different: the relevant

2. Rodriguez contends that the Utah Supreme Court “has
recognized a judge-created exception” to the statutory bar in cases
where a legislative amendment was meant to clarify an earlier
law. But the supreme court has said that although it “has
occasionally referred to ‘amendments clarifying statutes’ as an
‘exception’ to the retroactivity ban, [it has] never applied them as
such.” Gressman v. State, 2013 UT 63, ¶ 16, 323 P.3d 998 (quoting
Keegan v. State, 896 P.2d 618, 620 (Utah 1995)). And the court has
specifically repudiated this purported exception. See id.; Waddoups
v. Noorda, 2013 UT 64, ¶ 9, 321 P.3d 1108.

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occurrence for such purposes is the underlying
procedural act (e.g., filing a motion or seeking an
appeal). The law governing this procedural
occurrence is thus the law in effect at the time of the
procedural act, not the law in place at the time of the
occurrence giving rise to the parties’ substantive
claims.

Id. ¶ 14.

¶14 The statute at issue here sets forth the specific types of
injuries for which an individual may “maintain a cause of action
for general damages arising out of personal injuries alleged to
have been caused by an automobile accident.” Utah Code § 31A-
22-309(1)(a). By adding another type of injury to this list, the
legislature’s 2021 amendment expanded the circumstances in
which a personal injury claim is available to an accident victim.
Or, seen from the other side, the statute expanded the situations
in which an at-fault defendant may be liable for general damages.
Thus, the statute is clearly a substantive law. See Waddoups v.
Noorda, 2013 UT 64, ¶ 8, 321 P.3d 1108 (“Laws that enlarge,
eliminate, or destroy vested or contractual rights are substantive
and are barred from retroactive application absent express
legislative intent.” (cleaned up)); Brown & Root Indus. Service v.
Industrial Comm’n, 947 P.2d 671, 675 (Utah 1997) (“Substantive law
is defined as the positive law which creates, defines and regulates
the rights and duties of the parties and which may give rise to a
cause of action.” (cleaned up)).

¶15 Rodriguez correctly points out that whether the threshold
injury requirement has been met is a determination that is not
made until the time of trial. See Jepson v. State, Dep’t of Corr., 846
P.2d 485, 488 (Utah Ct. App. 1993) (concluding that the plaintiff
could meet the threshold injury of one resulting in medical
expenses in excess of $3,000 “so long as his expenses exceeded the
statutory minimum at time of trial” (emphasis added)). However,

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the determination of whether one of the applicable threshold
injuries has been shown is not the same as a determination of what
the applicable threshold injuries are. While plaintiffs have until
trial to show that they sustained a threshold injury, the
substantive question of what qualifies as a threshold injury is
determined as of the time of the accident, when the cause of action
accrued, see id. (holding that a personal injury cause of action
arising from an automobile accident accrues “on the date of the
accident”). Accordingly, the district court was correct to apply the
2017 version of the statute in its summary judgment
determination.

II. Dismemberment

¶16 Rodriguez argues, in the alternative, that her claim is viable
even under the 2017 version of Utah Code section 31A-22-309
because, even though the statute did not then expressly include a
bone fracture as a threshold injury, a bone fracture was included
within the term “dismemberment.” She contends that a bone
fracture is a form of dismemberment that was always implicitly
included in the statutory list of threshold injuries, and that the
2021 amendment simply clarified its inclusion. We are not
convinced.

¶17 “In interpreting a statute, our goal is to ascertain the
Legislature’s intent. We do so by first evaluating the best evidence
of legislative intent, namely, the plain language of the statute
itself.” Wasatch County v. Okelberry, 2008 UT 10, ¶ 13, 179 P.3d 768
(cleaned up). The plain meaning of the term “dismemberment,”
as applied to a human body, is the action of dividing the body into
pieces or cutting off portions of the body, most commonly in
reference to the removal of limbs from the body. See Dismember,
Merriam-Webster, https://www.merriam-webster.com/dictionary/
dismemberment [https://perma.cc/VFV8-DLVK] (defining “dis-
member” as “to cut off or disjoin the limbs, members, or parts of”
or “to break up or tear into pieces”); see also Dismemberment,

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Cambridge English Dictionary, https://dictionary.cambridge.org/
us/dictionary/english/dismemberment [https://perma.cc/VE6H-
Q4FX] (defining “dismemberment” as “the action of cutting,
tearing, or pulling the arms and legs off a body”); Dismemberment,
Collins English Dictionary, https://www.collinsdictionary.com/
dictionary/english/dismemberment [https://perma.cc/S4ZL-M8KW]
(“Dismemberment is the cutting or pulling into pieces of a
body.”); Dismember, Dictionary.com, https://www.dictionary.com/
browse/dismember [https://perma.cc/79W9-VVKQ] (defining
“dismember” as “to deprive of limbs; divide limb from limb” or
“to divide into parts; cut to pieces; mutilate”). 3 See generally
GeoMetWatch Corp. v. Utah State Univ. Rsch. Found., 2018 UT 50,
¶ 21, 428 P.3d 1064 (“Dictionaries provide a useful starting point
when assessing the ordinary meaning [of statutory terms].”).

¶18 In the case of a bone fracture, including a limb fracture, the
body remains in one piece and the limb remains connected to the
body. This is more obviously the case for the type of fracture
apparently at issue here—a torus (or buckle) fracture—where the
bone itself does not break into multiple pieces but suffers

3. Rodriguez points out that “fracture” is listed as a synonym for
“dismember” in the Merriam-Webster dictionary’s entry for that
term. See Dismember, Merriam-Webster, https://www.merriam-
webster.com/dictionary/dismemberment [https://perma.cc/VFV8-
DLVK]. However, the synonyms listed in that entry vary widely
as to the seriousness of the separation they indicate and include a
term as mild as “disrupt.” Id. Additionally, “dismemberment” is
a term that can be applied to things other than the human body,
such as organizations or relationships. While in some contexts we
might agree that “fracture” could be an accurate synonym of
“dismember,” we are not persuaded that dismemberment as
applied to the human body is synonymous with the fracturing (or
disrupting) of a bone. In short, Merriam-Webster’s listed
synonyms simply cannot all be taken as reflective of the plain and
ordinary meaning of a particular statutory term.

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compression and bulging on part of the bone. See, e.g., Buckle
(Torus) Fractures of the Wrist, Tex. Children’s Hosp.,
https://www.texaschildrens.org/health/buckle-torus-fractures-
wrist [https://perma.cc/A29R-MKCN] (“Buckle fractures are NOT
what most people think of when they think of a fracture or broken
bone. The fracture does not go through the entire bone.”);
Buckle Fracture (Impacted Fracture), Cleveland Clinic, https://my.
clevelandclinic.org/health/diseases/22235-buckle-fracture [https://
perma.cc/752T-LKRP] (“Buckle fractures are . . . an incomplete
fracture, which means the break doesn’t go all the way through
the bone. . . . [Sudden pressure] pushes on [a] child’s bone hard
enough to bulge it out of place. The pressure ‘buckles’ the bone
without snapping it.”).

¶19 Moreover, we think it axiomatic that people do not
commonly understand a broken bone to be a type of
dismemberment. See generally Okelberry, 2008 UT 10, ¶ 13 (“We
give the words of a statute their plain, natural, ordinary, and
commonly understood meaning, in the absence of any statutory
or well-established technical meaning, unless it is plain from the
statute that a different meaning is intended.” (cleaned up)). To
illustrate, when a child breaks an arm at recess, the school
administrator informs the parent by referring to a broken bone or
fracture, not by telling the parent that the child has suffered a
dismemberment on the playground—and certainly the reaction of
the parent would be quite different depending on which of these
communications was received.

¶20 Furthermore, “[w]e generally presume that any
amendment to a statute indicates a legislative intent to change
existing legal rights and therefore is not a reliable indication of
intent as to the earlier, unamended statute.” Miller v. Weaver, 2003
UT 12, ¶ 24, 66 P.3d 592. Thus, if the legislature intended, as
Rodriguez contends, for a bone fracture to be encompassed within
the 2017 term “dismemberment” and the 2021 amendment to be
merely a clarification of that intent, it would have needed to do

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more than simply add “a bone fracture” to the list of threshold
injuries. By adding “a bone fracture” as a separate threshold
injury—on equal footing with “dismemberment” and located
several subsections away from “dismemberment,” see Utah Code
§ 31A-22-309(1)(a)(ii), (v)—the legislature indicated no such
intent. We accordingly remain unconvinced by Rodriguez’s
argument that a broken bone was implicitly included within
“dismemberment” in the 2017 version of the statute.

III. Permanent Impairment

¶21 Rodriguez also asserts that she provided evidence from
which a jury could have found that Child suffered the threshold
injury of “permanent impairment based upon objective findings.”
Utah Code § 31A-22-309(1)(a)(iii) (2017). Specifically, she points to
Dr. Newton’s opinions that Child’s “[w]rist strength is less than
ideal and is somewhat pain limited” and that “[h]er motion is also
somewhat limited.” She contends that Dr. Newton’s confirmation
that Child “is still symptomatic after reasonable and necessary
medical treatment” is sufficient “to reach the jury regarding the
issue of permanent impairment.” We disagree.

¶22 A permanent impairment is a “loss of function” that “is
founded upon conditions which render it reasonably certain that
it will continue throughout the life of the person suffering from
it.” Pinney v. Carrera, 2019 UT App 12, ¶¶ 24–25, 438 P.3d 902
(cleaned up), aff’d, 2020 UT 43, 469 P.3d 970. But whether the pain
and limited motion Child was experiencing rendered it
reasonably certain that the injury would continue throughout
Child’s life is not the sort of determination that is within a
layperson’s knowledge. See generally id. ¶ 27 (“Typically—except
in obvious cases—where an alleged injury involves medical
factors beyond the ken of an ordinary lay person, expert
testimony is required.”). Therefore, a jury in this case would need
to rely on expert testimony for a determination of permanent
impairment. See Smith v. Volkswagen SouthTowne, Inc., 2022 UT 29,

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¶ 54, 513 P.3d 729 (“[W]here jurors cannot, without unjustifiable
speculation, resolve a dispute based on the facts of the case and
their own experiences, expert testimony is required.”).

¶23 The only expert evidence provided on the issue of
permanence was Dr. Newton’s report, in which he repeatedly
expressed his opinion that any current limitations were not
permanent and that Child could expect a full recovery. Even the
portions of the report relied on by Rodriguez, when placed in
context, indicate that any lingering symptoms need not be
permanent. While Dr. Newton acknowledged that Child’s
“[w]rist strength is less than ideal” and “somewhat pain limited,”
as well as that Child’s “motion is somewhat limited,” he indicated
that these symptoms were due to “anxiety” and a lack of
“confidence” regarding the wrist and that progress could be made
through six to eight “visits of physical therapy” and an “exercise
program,” which “should be employed until she feels that the
wrist is normal.” And when questioned as to whether there were
objective findings supporting Child’s subjective complaints, Dr.
Newton responded as follows:

There are some ongoing wrist complaints. Healing
is complete and adequate. I cannot really define a
structural diagnosis for the ongoing symptoms.
Subjective symptoms do exceed what we would
typically expect; however, I feel that there is a
likelihood that these symptoms will eventually
resolve but may require some treatment.

¶24 After expressing those opinions, Dr. Newton said that
Child “is not at risk for premature osteoarthritis of the wrist,” that
Child “is not typically at risk for avascular necrosis or
ligamentous injury of the wrist or [triangular fibrocartilage
complex] injury,” that “[h]er exam is fairly benign from a
structural standpoint,” that “it is not expected that there will be
functional deterioration or the development of premature

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pathology in the wrist joint,” and, in sum, that “there should not
be any long-term consequences” from the fracture. Moreover,
when specifically asked, “Does [Child] have, or do you anticipate
[Child] having, a permanent impairment (disability) as a result of
this injury?” Dr. Newton answered as follows:

By the AMA and Utah Guidelines, a healed
nondisplaced fracture does not qualify for
permanent impairment. I do feel, however, that
there is progress to be made. I would be
disappointed if this would represent maximum
medical improvement. I expect that she will
eventually feel unrestricted in her distal right upper
extremity function.

¶25 In sum, despite Dr. Newton’s acknowledgement that there
were ongoing symptoms and room for improvement, he
repeatedly and consistently asserted that Child’s symptoms were
not indicative of permanent impairment. And no other expert
opinion was provided from which a jury could have determined
otherwise. Thus, it was not erroneous for the court to determine,
as a matter of law, that the threshold injury of permanent
impairment was not shown in this case.

IV. Dismissal with Prejudice

¶26 Finally, Rodriguez contests the dismissal of her claim with
prejudice. 4 She asserts that it was “error to forever bar a claim
where the evidence provides some indication that the plaintiff is
capable of satisfying the monetary threshold amount at some

4. Crosby contends that Rodriguez failed to preserve this issue for
review. However, “if the merits of a claim can easily be resolved
in favor of the party asserting that the claim was not preserved,
we readily may opt to do so without addressing preservation.”
State v. Kitches, 2021 UT App 24, ¶ 28, 484 P.3d 415 (cleaned up),
cert. denied, 496 P.3d 718 (Utah 2021). Such is the case here.

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point in the future.” Specifically, Rodriguez argued below that
“[a]s Dr. Newton has recommended a course of [six to eight
sessions of] physical therapy, it is not impossible for [Rodriguez]
to reasonably and necessarily incur at least $3,000 in medical
expenses prior to trial.” And she contends on appeal that “[i]t is
indeed disturbing that a district court . . . would fully and finally
adjudicate a minor’s claim on threshold [injury]” when a “medical
expert [has] opined that the future medical care for that minor
child would be reasonable, necessary and related to the subject
accident” and “the minor is not even legally capable of steering
the course of her medical treatment or the litigation.”

¶27 However, the disclosed medical expenses amounted to less
than $1,000, and Rodriguez presented no evidence suggesting that
the $3,000 threshold might be reached if Child attended the
remaining treatment that had been recommended—six to eight
additional physical therapy sessions. Nor was it clear that Child
would be participating in any such sessions in the few weeks
remaining before the scheduled trial. And Rodriguez made no
request to delay trial until after the recommended therapy was
pursued or more could be learned about its associated costs.
While it is true that Child was not the one steering the course of
her medical treatment or the course of litigation, it was
Rodriguez’s responsibility to make treatment choices on behalf of
her minor child in any event, see Jensen ex rel. Jensen v. Cunningham,
2011 UT 17, ¶ 73, 250 P.3d 465 (stating that parents have a
fundamental right to make decisions regarding their children’s
medical care), and it was Rodriguez’s choice to file suit on her
minor child’s behalf where the statute of limitations did not begin
to run until Child became an adult, see Utah Code § 78B-2-108(2),
(3) (stating that “[d]uring the time that an individual is
underage,” the statute of limitations, including for a claim for
general damages, “may not run”). She therefore bears the burdens
that go with that responsibility and choice.

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¶28 “A district court’s decision to dismiss with prejudice is
reviewed for an abuse of discretion,” State v. Watson Pharms. Inc.,
2019 UT App 31, ¶ 12, 440 P.3d 727, and given the foregoing, we
conclude that the district court did not abuse its discretion here.

CONCLUSION

¶29 The district court correctly applied the version of Utah
Code section 31A-22-309 that was in effect at the time of the
accident. Because, as a matter of law, a broken bone does not
qualify as “dismemberment” and the required expert evidence of
a permanent injury was not established in this case, Child’s injury
did not qualify as any of the threshold injuries listed in the statute.
And under the circumstances of this case, the district court did not
abuse its discretion by dismissing Rodriguez’s claim with
prejudice. We therefore affirm the district court’s ruling.

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