Vittoria v. Provo City

2024 UT App 99

THE UTAH COURT OF APPEALS

DAWN VITTORIA,
Appellant,
v.
PROVO CITY,
Appellee.

Opinion
No. 20220659-CA
Filed July 18, 2024

Fourth District Court, Spanish Fork Department
The Honorable Jared Eldridge
No. 220300023

T.C. Taylor and Peter Lattin, Attorneys for Appellant
J. Brian Jones and Gary D. Millward,
Attorneys for Appellee

JUDGE DAVID N. MORTENSEN authored this Opinion, in which
JUDGES MICHELE M. CHRISTIANSEN FORSTER and JOHN D. LUTHY
concurred.

MORTENSEN, Judge:

¶1 Dawn Vittoria slipped and fell on a sidewalk owned by
Provo City (the City). She subsequently made a claim against the
City and later filed suit in district court. The City moved to
dismiss. The district court concluded that Vittoria’s complaint
was untimely under the Governmental Immunity Act of Utah (the
GIAU) and dismissed Vittoria’s complaint with prejudice.
Vittoria appeals, and we affirm.
Vittoria v. Provo City

BACKGROUND 1

¶2 On July 11, 2019, while walking along a sidewalk owned
by the City, Vittoria tripped and suffered an injury. The fall
occurred when Vittoria caught her foot on a “height differential
of several inches between two” slabs of concrete. This defect had
existed for at least a year prior to the incident, which led Vittoria
to assert that the City “knew or should have known” about its
presence.

¶3 In March 2020, Vittoria filed a notice of claim. The City did
not process the claim until after receiving a calculation of the
damages sought, which Vittoria submitted in December 2020. In
February 2021, in a letter to Vittoria, the City denied liability but
made a settlement offer of $13,800 “as a courtesy to a Provo citizen
without any admission of fault.” The assistant city attorney
signed the letter. Vittoria did not accept the offer.

¶4 A year later, in February 2022, Vittoria filed suit in district
court. The City responded by filing a motion to dismiss the case,
see generally Utah R. Civ. P. 12(b)(6), as untimely under the
requirements of the GIAU. Following additional briefing and oral
argument, the district court granted the City’s motion and
dismissed the case with prejudice as time-barred.

ISSUE AND STANDARD OF REVIEW

¶5 Vittoria argues on appeal that the district court erred when
it dismissed her claim as untimely under the GIAU. “Because a

1. “On appeal from a motion to dismiss, we review the facts only
as they are alleged in the complaint. We accept the factual
allegations as true and draw all reasonable inferences from those
facts in a light most favorable to the plaintiff.” Haynes v.
Department of Public Safety, 2020 UT App 19, n.2, 460 P.3d 565
(cleaned up).

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trial court’s grant or denial of a motion to dismiss is a question of
law, the standard of review is correctness,” with no deference to
the court’s decision. Moulding Invs., LLC v. Box Elder County, 2024
UT App 23, ¶ 21, 545 P.3d 781 (cleaned up).

ANALYSIS

¶6 Under the GIAU, an individual with a claim against a
governmental entity must file a notice of claim “within one year
after the claim arises.” Utah Code § 63G-7-402. Sixty days after a
notice of claim is filed, an individual is free to “pursue an action
in the district court against the governmental entity.” Id. § 63G-7-
403(2)(a). However, that action must be “commence[d] . . . within
two years after the claim arises.” Id. § 63G-7-403(2)(b). 2

¶7 Though Vittoria filed a timely notice of claim with the City,
she did not file an action in the district court until February 2022,
over two and a half years after her claim arose in July 2019.
Because Vittoria’s claim was over six months past the GIAU
deadline when she filed it, her claim is untimely, and the district
court appropriately dismissed her claim under rule 12(b)(6) of the
Utah Rules of Civil Procedure.

¶8 Vittoria, however, argues that the GIAU conflicts with
Utah Code section 78B-2-303, which states, “Actions on claims
against a county, city, or incorporated town, which have been
rejected by the county executive, city commissioners, city council,
or board of trustees shall be brought within one year after the first

2. The GIAU includes a savings provision that is inapplicable
here. See Utah Code § 63G-7-403(3)(b) (allowing a claimant to
commence an action after the time limit if (1) the action was
originally commenced on time, (2) the action failed or was
dismissed for reasons other than the merits, and (3) the new action
is commenced within one year of the previous action’s failure or
dismissal).

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rejection.” Vittoria contends that the two statutes “conflict any
time a city denies a claim one year after the incident giving rise to
a lawsuit”—which is, as she argues, what happened here. Vittoria
argues that in granting the City’s motion to dismiss, the district
court failed to “harmonize” the GIAU and section 78B-2-303.
Vittoria views this issue as a matter of first impression, but it is
not.

¶9 The legislature expressly stated that the GIAU is a
“comprehensive chapter” applying to “all functions of
government” and governing “all claims against governmental
entities.” Id. § 63G-7-101(2). Our supreme court has “consistently
required strict compliance with the requirements of the [GIAU].”
Rushton v. Salt Lake County, 1999 UT 36, ¶ 19, 977 P.2d 1201. In
Craig v. Provo City, 2016 UT 40, 389 P.3d 423, like here, a tort suit
under the GIAU was brought against the City. Id. ¶ 1. When
initially filed, the suit was timely but was dismissed because the
“plaintiffs failed to submit an ‘undertaking’ or bond as required
by statute.” Id. When the plaintiffs refiled, they had surpassed the
one-year filing deadline required by the GIAU. Id. (citing Utah
Code § 63G-7-402). The plaintiffs argued that their claim was in
fact timely by invoking Utah Code section 78B-2-111, known as
the Savings Statute. Id. Our supreme court considered whether
the time-bar provision of the GIAU, the same one at issue here,
foreclosed the Savings Statute. Id. ¶ 2. The court determined that
the GIAU did in fact foreclose the Savings Statute because the
GIAU “speaks comprehensively on the procedure and requisite
timing of a claim filed against the government.” Id. ¶ 18 (emphasis
added). The court explained that the GIAU is “all-encompassing
on the matters that it regulates in comprehensive detail,” which
includes “actions for which the government has waived its
immunity” and the “manner and means by which a plaintiff may
pierce through such immunity.” Id. ¶ 22. On those matters, the
court construed the GIAU “as speaking comprehensively in the
sense of foreclosing the application of other laws regulating
claims against non-governmental parties.” Id. The court reasoned

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that, among other things, the GIAU “speaks in careful detail . . .
on the timing requirements” of both filing a notice of claim with a
governmental entity and initiating an action in court after such
claim is denied. Id. ¶ 23. The court concluded that the GIAU’s
“filing and timing standards are presented in such detail that [it]
view[s] them as occupying the field.” Id. ¶ 26.

¶10 While Vittoria is correct in her assertion that Craig did not
address the exact section of the Utah Code at issue here, the
parallels to her case are undeniable, and Craig compels our
affirmance here. As in Craig, the issue here is whether or not
another section of the Utah Code supersedes the timing standards
of the GIAU, which require—beyond filing a notice of claim
within a year—a claim to be brought in district court within two
years after the claim arises. See Utah Code § 63G-7-403(2)(b).
Vittoria argues that her claim was in fact timely, despite the
GIAU, by invoking section 78B-2-303, which allows claims against
a city to be “brought within one year after the first rejection.” Id.
§ 78B-2-303. Just as in Craig, the heart of this argument concerns
the timing of filing a claim under the GIAU, a matter that our
supreme court has unquestionably determined the GIAU “speaks
comprehensively” on. 2016 UT 40, ¶ 18.

¶11 The court in Craig explained that the GIAU is “all-
encompassing on the matters that it regulates in comprehensive
detail,” such as the requisite timing of filing a claim against the
government. Id. ¶ 22. Our supreme court decisively explained that
on these matters, the GIAU speaks “comprehensively in the sense
of foreclosing the application of other laws regulating claims
against non-governmental parties.” Id. It is true that the Savings
Statute in Craig didn’t specifically address governmental entities,
while the statute at issue here does. However, it is evident that
section 78B-2-303 still does not apply, given our supreme court’s
emphatic declaration that the GIAU “speaks in careful detail . . .
on the timing requirements” of both filing a notice of claim with a
governmental entity and initiating an action in court against that

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entity, and that because of that detail, the GIAU preempts other
statutes addressing timing requirements. Id. ¶ 23. Thus, even that
difference between Craig and the case before us is not enough to
overcome our supreme court’s conclusion that the GIAU’s “filing
and timing standards are presented in such detail that” they
“occupy[] the field.” 3 Id. ¶ 26.

¶12 What is more, without the GIAU, Vittoria would have no
claim at all against the City because it is only through the GIAU’s
waivers of governmental immunity that she is able to pursue such
a suit. See Kerr v. City of Salt Lake, 2013 UT 75, ¶¶ 12–16, 322 P.3d
669 (holding that the maintenance of public sidewalks is a
governmental function subject to the GIAU). Vittoria cannot
invoke the GIAU with one hand to pursue her claim while
disavowing the GIAU with the other hand in order to maintain
her claim’s timeliness.

¶13 When interpreting a statute, our supreme court has
instructed that our “primary goal” is to “evince the true intent and
purpose of the legislature as expressed through the plain
language” of the statute and to “render all parts thereof relevant
and meaningful.” Hall v. Utah State Dep’t of Corr., 2001 UT 34, ¶ 15,
24 P.3d 958 (cleaned up). In doing so, we are to “avoid
interpretations that will render portions of a statute superfluous
or inoperative.” Id. Here, the legislature very clearly expressed its

3. To further underscore that the GIAU preempts the field, the
legislature amended the GIAU—just a year after our supreme
court’s decision in Craig v. Provo City, 2016 UT 40, 389 P.3d 423—
by adding, as mentioned in note 2, a savings provision, see Act of
Mar. 9, 2017, ch. 300, § 4, 2017 Utah Laws 1463, 1464–65. The
legislature could have amended the Savings Statute with
language making clear that it applied despite the GIAU, but the
legislature instead amended the GIAU—highlighting that the
GIAU is indeed intended to be “comprehensive.” Utah Code
§ 63G-7-101(2).

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intent that the GIAU is a “comprehensive chapter” that applies to
“all functions of government” and governs “all claims against
governmental entities.” Utah Code § 63G-7-101(2). The
legislature’s mandate that it apply to “all claims against
governmental entities” must include Vittoria’s claim as her claim
can only be brought under the GIAU. Id. (emphasis added).
Vittoria’s assertion that the two statutes must be harmonized is
well-taken, but her proposed method for harmonizing them—i.e.,
by allowing section 78B-2-303 to trump section 63G-7-101(2) when
a county, city, or incorporated town first rejects a claim more than
two years after the claim arises—would render the GIAU’s statute
of limitations “superfluous or inoperative” in such instances,
while acting in direct violation of the GIAU’s plain language that
it be applied comprehensively. Hall, 2001 UT 34, ¶ 15.

¶14 Instead of Vittoria’s proposed approach, the two statutes
can be readily harmonized based on our supreme court’s
determination in American Tierra Corp. v. City of West Jordan, 840
P.2d 757 (Utah 1992), that section 78B-2-303 4 does not apply to
claims seeking damages in law. Id. at 761. There the court
explained that the GIAU “sets time limits within which a notice
of claim and an action itself may be filed against a governmental
entity” but acknowledged that equitable claims are a common law
exception to this requirement. Id. at 759. Under this framework,
the court determined that section 78B-2-303 does not apply to
suits that sound in law but may apply to those sought in equity.
Id. at 761. Thus, the two statutes do not conflict with one another,
and neither of them is superfluous; instead, the statutes apply in
different scenarios and thereby work in harmony. As Vittoria’s

4. The court in American Tierra Corp. v. City of West Jordan, 840 P.2d
757 (Utah 1992), was discussing Utah Code section 78-12-30
(1992), which was later renumbered in 2008 as section 78B-2-303.
Id. at 761; see Act of Jan. 31, 2008, ch. 3, § 667, 2008 Utah Laws 48,
394. The two statutes have nearly identical language.

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claim sounds in law, rather than equity, section 78B-2-303 simply
does not apply here.

¶15 Vittoria further argues that “one of the major points of the
GIAU is to give a governmental entity an opportunity to attempt
to resolve a claim before suit is filed.” Vittoria explains that delays
in her providing information regarding the damages she sought
and the City’s delay in providing information in return were
“undoubtedly exacerbated by the COVID-19 pandemic occurring
at the same time.” Vittoria argues that an “open-ended deadline
for a governmental entity without a similar set-off or benefit for
the claimant is inequitable” and further emphasizes why we
should “harmonize” the GIAU and section 78B-2-303. Vittoria
would have us view the two sections of the code as working in
tandem. She argues that section 78B-2-303 “would and should
operate as both an enlargement of rights under the GIAU, as well
as a tool by which the government may shorten their window of
exposure.” As an example, she explains that in her case her notice
of claim was timely submitted but she did not receive a denial of
the claim until ten months later. Thus, if section 78B-2-303
applied, it would enlarge her rights by providing her with an
additional year to file the claim from the date of denial, rather
than the two years from the date of the claim arising under the
GIAU. But, as Vittoria contends, if the City had denied her notice
of claim within a week, for example, section 78B-2-303 would
shorten her rights as it would require her to file a claim a year
from that denial—a date before the deadline required under the
GIAU.

¶16 We find this argument unconvincing because of the timing
in which the GIAU allows a claimant to file a claim with the
district court. Vittoria was aware that the GIAU was the
controlling law when she filed her notice of claim, as evidenced
by her notice itself. Her notice of claim stated that it was “given
pursuant to the provisions of Utah Code Title 63G, Chapter 7,
including § 63G-7-401.” And the notice continued that the claim

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was appropriate pursuant to Utah Code section 63G-7-301
because a city “waives immunity for an injury caused by a
defective, unsafe, or dangerous condition on its sidewalks,” such
as the “height differential” Vittoria tripped over. Under the
GIAU, Vittoria was free to file her claim with the district court
sixty days after she filed the notice of claim with the City in March
2020—even before receiving the City’s denial of liability or
settlement offer. See Utah Code § 63G-7-403(2)(a). Vittoria took no
such action until February 2022, at which point she was more than
six months too late. See id. § 63G-7-403(2)(b). The GIAU does not
prevent claimants from pursuing their claims, regardless of the
speed, or lack thereof at times, with which the government
responds to a notice of claim. Vittoria had leave to file her claim
well before—in fact, years before—her time expired under the
GIAU, and she did not do so.

CONCLUSION

¶17 For the foregoing reasons, section 63G-7-403(2) of the
GIAU occupies the field, and section 78B-2-303 does not apply to
Vittoria’s claim. The district court acted correctly when it
dismissed Vittoria’s claim as time-barred. Accordingly, we affirm.

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