This opinion is subject to revision before final

publication in the Pacific Reporter

2016 UT 48

IN THE

SUPREME COURT OF THE STATE OF UTAH

BARBARA BAGLEY, as the sole heir of

the deceased BRADLEY M. VOM BAUR;

and BARBARA BAGLEY, as personal

representative of the estate of

BRADLEY M. VOM BAUR,

Respondent, 

v.

BARBARA BAGLEY,

Petitioner.

No. 20150182

Filed October 27, 2016

On Certiorari to the Utah Court of Appeals 

Third District, Salt Lake

The Honorable Paul G. Maughan

No. 130903840

Attorneys:

Peter H. Christensen, Jennifer R. Carrizal, Kathryn T. Smith, 

Salt Lake City, for petitioner

Reid Tateoka, Mark C. Rose, Cameron J. Cutler, Salt Lake City, 

for respondent

David S. Bridge, Anna Nelson, Salt Lake City, for amicus 

Utah Defense Lawyers Association

CHIEF JUSTICE DURRANT authored the opinion of the court, in which 

ASSOCIATE CHIEF JUSTICE LEE, JUSTICE DURHAM, JUSTICE HIMONAS, and 

JUDGE KAY joined.

Having recused himself, JUSTICE PEARCE did not participate herein; 

SECOND DISTRICT COURT JUDGE THOMAS L. KAY sat.
BAGLEY v. BAGLEY

Opinion of the Court

2

CHIEF JUSTICE DURRANT, opinion of the Court:

Introduction

¶ 1 This case is about whether a person acting in the capacity of 

sole heir and personal representative of an estate can sue him or 

herself as an individual for damages under the wrongful death and 

survival action statutes. Barbara Bagley, in her capacity as sole heir 

and personal representative of her deceased husband‘s estate, argues 

that these statutes permit her to sue herself as an individual for 

negligently causing her husband‘s death. Through this suit, 

Ms. Bagley hopes to secure certain insurance money for herself as 

heir and to satisfy creditors of her common law husband‘s estate. 

The district court dismissed her lawsuit, concluding that the plain 

language of the statutes and certain public policies precluded a 

person from simultaneously acting as plaintiff and defendant in a 

wrongful death or survival action suit, regardless of the capacity in 

which that person was acting. The court of appeals reversed, 

concluding that the statutes unambiguously allow Ms. Bagley to 

maintain this lawsuit. We agree with the court of appeals. We also 

note that the public policies cited by the district court (policies that 

Ms. Bagley in her individual capacity invokes on appeal) deal with 

the separate issue of whether an heir or personal representative who 

is negligent in his or her individual capacity and is permitted to sue 

for damages under the wrongful death and survival action statutes 

can, nevertheless, as an heir recover money paid as damages from 

such a suit. That issue is not before us on appeal.

Background

¶ 2 Barbara Bagley is the common law wife of the decedent, 

Bradley Vom Baur. On December 27, 2011, Ms. Bagley and

Mr. Vom Baur were travelling in a 2000 Range Rover. Ms. Bagley lost 

control of the Range Rover and flipped the vehicle. Mr. Vom Baur 

was thrown from the vehicle and sustained several severe injuries. 

Paramedics transported Mr. Vom Baur to a local hospital for 

treatment. Ten days later, on January 6, 2012, Mr. Vom Baur died 

from the injuries he sustained in the accident. 

¶ 3 Ms. Bagley maintained a motor vehicle insurance policy 

with State Farm Insurance Company.1 To compel State Farm to 

indemnify her, Ms. Bagley, in her dual capacities as sole heir and 

_____________________________________________________________

1 The record does not reveal whether she made a claim against 

State Farm for damages under her insurance policy.
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Opinion of the Court

3

personal representative of the estate of Bradley Vom Baur 

(Plaintiffs), brought this suit against herself as an individual 

(Defendant) on June 7, 2013.2 Plaintiff Bagley, as Mr. Vom Baur‘s 

heir, brought her first cause of action pursuant to Utah Code section 

78B-3-106, Utah‘s wrongful death statute, alleging that Defendant 

negligently caused Mr. Vom Baur‘s death, thereby depriving his sole 

heir of Mr. Vom Baur‘s love, companionship, society, comfort, care, 

protections, financial support, pleasure, and affection. Plaintiff 

Bagley, as the personal representative of Bradley Vom Baur‘s estate, 

brought her second cause of action pursuant to Utah Code section 

78B-3-107, Utah‘s survival action statute, alleging that Defendant 

negligently caused Mr. Vom Baur to experience pain and suffering 

prior to his death, which entitles Mr. Vom Baur‘s estate to damages 

such as funeral expenses and medical bills. 

¶ 4 In response, Defendant filed a rule 12(b)(6) motion to 

dismiss for failure to state a claim. She argued that the plain 

language of the previously referenced statutes prevents a person 

from suing him or herself, thereby barring Plaintiffs‘ (Bagley as both 

heir and personal representative) claims. Defendant attempted to 

reinforce this statutory argument by citing cases from foreign 

jurisdictions that have precluded a person from bringing suit against 

him or herself based on comparative negligence principles and 

public policy. 

¶ 5 Without a hearing, the district court by minute entry ruled 

in favor of Defendant. The district court concluded that ―[t]he plain 

reading of the [wrongful death] statute indicates that the 

heir/personal representative and the  ̳person causing the death‘ 

cannot be one and the same‖ and ―a wrongdoer who is the heir 

and/or personal representative of decedent cannot bring a survival 

action against him or herself for special or general damages.‖ The 

court also concluded that the plain language of the statutes, which 

preclude a wrongdoer from suing, comported with Utah‘s public 

policy considerations. 

¶ 6 Plaintiffs appealed, and the court of appeals reversed the 

district court‘s ruling, holding that ―[t]he plain language of the 

_____________________________________________________________

2 Though Ms. Bagley in her dual capacities as personal 

representative and heir of the estate of Bradley Vom Baur is before 

us as the respondent, and Ms. Bagley in her individual capacity is 

before us as the petitioner, for ease of analysis we refer to these 

parties as Plaintiffs and Defendant respectively.
BAGLEY v. BAGLEY

Opinion of the Court

4

wrongful death and survival action statutes does not bar an heir or

personal representative from pursuing those causes of action even 

when the heir or personal representative is the defendant 

tortfeasor.‖3 The court of appeals thus concluded that ―[t]he district 

court . . . erred by dismissing those causes of action.‖4 We granted a 

writ of certiorari to review the court of appeals‘ decision. 

Standard of Review

¶ 7 The issue on appeal is whether the court of appeals correctly 

interpreted sections 78B-3-106 and 78B-3-107 of the Utah Code as 

allowing a person acting in the legal capacities of an heir and 

personal representative to sue him or herself as a defendant 

tortfeasor for damages. The appropriate interpretation of these 

statutes is a question of law that we review for correctness.5 Because 

this case arises from a rule 12(b)(6) motion to dismiss, we accept the 

facts set forth in the complaint as true.6 This court has jurisdiction 

over this matter pursuant to Utah Code section 78A-3-102(3)(a).

Analysis

¶ 8 The court of appeals correctly concluded that the wrongful 

death statute and the survival action statute allow a person to act as 

an heir or personal representative to sue him or herself as an 

individual defendant for damages. Contrary to Defendant‘s 

argument, interpreting the statutes in this manner does not lead to a 

result so overwhelmingly absurd that we must (pursuant to our 

absurdity doctrine) modify the statutory language to prevent such a 

lawsuit. Further, we decline Defendant‘s invitation to look beyond 

the plain language of the statutes to identify the legislature‘s intent 

in relation to the statutes. The statutes unambiguously apply to the 

circumstances of this case and permit Plaintiffs to sue Defendant. 

Public policies and related statutes cited by Defendant speak more 

directly to the separate issue of whether a defendant tortfeasor who 

is permitted to bring suit as an heir or personal representative of an

estate can recover insurance money paid as damages in a wrongful 

_____________________________________________________________

3 Bagley v. Bagley, 2015 UT App 33, ¶ 19, 344 P.3d 655. 

4 Id.

5 Dahl v. Dahl, 2015 UT 79, ¶ 155, --- P.3d --- (citing Baird v. Baird, 

2014 UT 08, ¶ 16, 322 P.3d 728).

6 Gregory v. Shurtleff, 2013 UT 18, ¶ 8, 299 P.3d 1098.
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Opinion of the Court

5

death or survival action suit. This is a question we do not reach on 

this appeal. As we discuss below, Defendant‘s failure to distinguish 

between these separate issues—the first, an issue of statutory 

interpretation; the second, an issue of ultimate recovery of 

damages—has caused unnecessary confusion in her arguments. We 

therefore distinguish between these issues, affirming the court of 

appeals‘ decision while remanding to permit further litigation on the 

issue of recovery.

I. Neither the Wrongful Death Statute nor the Survival Action 

Statute Precludes a Person Acting in the Capacity of an Heir or 

Personal Representative from Suing Him or Herself as an Individual 

for Negligently or Wrongfully Causing a Decedent‘s Injury or Death

¶ 9 Defendant argues that the plain language of Utah‘s 

wrongful death statute (Utah Code section 78B-3-106) and survival

action statute (Utah Code section 78B-3-107) precludes an heir or 

personal representative from bringing suit against him or herself for 

damages. Plaintiffs argue that neither statute precludes a person 

from simultaneously acting as a plaintiff heir or personal 

representative and defendant tortfeasor. Like the court of appeals, 

we agree with Plaintiffs. The literal language of the aforementioned 

statutes permits a lawsuit like the one currently before this court.

¶ 10 The ―primary objective‖ of statutory interpretation ―is to 

ascertain the intent of the legislature.‖7 Since ― ̳[t]he best evidence of 

the legislature‘s intent is the plain language of the statute itself,‘ we 

look first to the plain language of the statute.‖8 In so doing, ―[w]e 

presume that the legislature used each word advisedly.‖9 We also 

― ̳presume[] that the expression of one [term] should be interpreted 

as the exclusion of another[,]‘ . . . . [thereby] presuming all omissions 

to be purposeful.‖10 When we can ascertain the intent of the 

legislature from the statutory terms alone, ―no other interpretive 

_____________________________________________________________

7 Penunuri v. Sundance Partners, Ltd., 2013 UT 22, ¶ 15, 301 P.3d 

984 (citation omitted).

8 Id. (alteration in original) (citation omitted).

9 Ivory Homes, Ltd. v. Utah State Tax Comm’n, 2011 UT 54, ¶ 21, 266 

P.3d 751 (citation omitted).

10 Marion Energy, Inc. v. KFJ Ranch P’ship, 2011 UT 50, ¶ 14, 267 

P.3d 863 (first and second alterations in original) (citation omitted).
BAGLEY v. BAGLEY

Opinion of the Court

6

tools are needed,‖ and our task of statutory construction is typically 

at an end.11

¶ 11 This case requires us to interpret two related statutes: the

wrongful death and survival action statutes. Plaintiff as heir seeks 

damages under Utah‘s wrongful death statute for the loss of 

Mr. Vom Baur‘s love, companionship, society, comfort, care, 

protections, financial support, pleasure, and affection. That statute 

provides, in pertinent part, 

Except as provided in Title 34A, Chapter 2, Workers‘ 

Compensation Act, when the death of a person is 

caused by the wrongful act or neglect of another, his 

heirs, or his personal representatives for the benefit of his 

heirs, may maintain an action for damages against the 

person causing the death, or, if the person is employed by 

another person who is responsible for his conduct, then 

against the other person.12

Similarly, Plaintiff as personal representative sues Defendant for 

damages caused by the ―pain and suffering‖ that Mr. Vom Baur 

experienced ―prior to his death.‖ The survival action statute 

provides that

[a] cause of action arising out of personal injury to a 

person, or death caused by the wrongful act or 

negligence of another, does not abate upon the death of 

the wrongdoer or the injured person. The injured person, 

or the personal representatives or heirs of the person who 

died, has a cause of action against the wrongdoer or the 

personal representatives of the wrongdoer for special 

and general damages, subject to Subsection (1)(b).13

_____________________________________________________________

11 Id. ¶ 15 (citation omitted).

12 UTAH CODE § 78B-3-106(1) (emphases added).

13 Id. § 78B-3-107(1)(a) (emphases added). The survival action 

statute has since been amended. It now provides that ―[a] cause of 

action arising out of a personal injury to a person, or death caused by 

the wrongful act or negligence of a wrongdoer, does not abate upon 

the death of the wrongdoer or the injured person.‖ Id.(2014) 

(emphasis added). Neither Defendant nor Plaintiffs argue that this 

amendment is significant to our legal analysis.
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Opinion of the Court

7

Defendant, in response, propounds duplicate arguments with 

respect to each statute in an attempt to show that the plain language 

prevents Plaintiffs‘ lawsuit.

¶ 12 Defendant first argues that the legislature employed the 

term ―of another‖ in both statutes to exclude negligent heirs or 

negligent personal representatives from acting as plaintiffs in a 

wrongful death or survival action suit. Next, Defendant argues that 

both statutes place the person who can sue for damages in a category 

that is exclusive from the person against whom suit can be brought, 

expressing a legislative intent to require different persons to act as 

plaintiff and defendant. We address and reject each of Defendant‘s 

arguments, concluding that the plain language of the wrongful death 

and survival action statutes does not prevent a person who is acting 

in the legal capacity of heir or personal representative from suing 

him or herself (in an individual capacity) for negligently causing a 

decedent‘s injury or death.

¶ 13 As noted, Defendant first asks us to read ―of another‖ in 

both the wrongful death and survival action statutes to modify 

―heirs‖ (wrongful death statute) and ―personal representative‖ 

(survival action statute) in such a way to mean that the person 

against whom suit is brought must be someone other than the ―heir‖ 

and ―personal representative.‖ This reading would distort the 

grammatical structure and meaning of both statutes. 

¶ 14 Interpreting the wrongful death statute, the court of appeals 

persuasively observed: 

the absence of punctuation marks separating  ̳death of 

a person‘ from  ̳of another‘ signifies that the two are 

connected and that they are separate from the other 

clauses in the statute. Plainly read, [the wrongful death 

statute] uses the phrase  ̳of another‘ to mean a person 

other than the decedent. This reading evidences a 

legislative intent to exclude situations in which the 

decedent‘s own wrongful act or neglect caused his 

death.14

This interpretation is supported by the language and structure of the 

wrongful death statute and this court‘s precedent.15 In fact, to 

_____________________________________________________________

14 Bagley v. Bagley, 2015 UT App 33, ¶ 10, 344 P.3d 655.

15 See Van Wagoner v. Union Pac. R.R. Co., 186 P.2d 293, 303 (Utah 

1947) (interpreting the predecessor to the current wrongful death 

(Continued)
BAGLEY v. BAGLEY

Opinion of the Court

8

achieve Defendant‘s recommended interpretation, we would need to 

read the wrongful death statute as follows: ―when the death of a 

person is caused by the wrongful act or neglect of [someone other 

than his or her heirs or personal representatives], his heirs . . . may 

maintain an action for damages against the person causing the 

death[.]‖ This we cannot do. Accordingly, we reject Defendant‘s

attempt to interpret ―of another‖ to preclude the type of wrongful 

death suit at issue here.

¶ 15 The survival action statute would be similarly distorted 

were we to read ―of another‖ in the way Defendant recommends. In 

fact, to ensure that ―of another‖ modifies ―personal representative,‖ 

we would need to copy ―of another‖ and paste it into the second 

sentence of the statute. Again, as the court of appeals aptly observed: 

― ̳of another‘ does not appear in the same sentence as the list of 

people [personal representative included] who may bring a cause of 

action.‖16 We cannot read the statute in this manner to prevent 

Ms. Bagley acting in the distinct legal capacity of personal 

representative plaintiff from suing herself in her individual capacity 

as a defendant. As with the wrongful death statute, the term ―of 

another‖ modifies the injured decedent to exclude a survival action 

suit in situations where the decedent ―solely or proximately 

contributes negligently to his own [injury or] death.‖17 Defendant‘s 

reliance on ―of another‖ to achieve her desired reading of these 

statutes is untenable. 

¶ 16 Defendant‘s second argument focuses on the categories of 

plaintiffs and defendants that each statute establishes. Under the 

wrongful death statute, a decedent‘s ―heirs . . . may maintain an 

action for damages against the person causing the death.‖18 Similarly, 

under the survival action statute, ―[a] personal representative[] . . . of 

the person who died, has a cause of action against the wrongdoer.‖19

As an initial matter, Defendant finds the term ―against‖ in both 

statutes significant. This single term, Defendant argues, expresses 

the legislature‘s intent that ―the interests of the . . . plaintiff be 

 

statute to preclude recovery ―where the deceased either solely or 

proximately contributes negligently to his own death‖). 

16 Bagley, 2015 UT App 33, ¶ 13.

17 Van Wagoner, 186 P.2d at 303 (interpreting the predecessor to 

the current wrongful death statute).

18 UTAH CODE § 78B-3-106(1) (emphases added).

19 Id. § 78B-3-107(1)(a) (emphases added).
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Opinion of the Court

9

adverse to the interests of the . . . defendant.‖ When the defendant 

and plaintiff in a wrongful death or survival action suit are the same 

person, Defendant contends that ―there are no adverse interests and 

therefore, the two sides of litigation cannot actually be  ̳against‘ one 

another.‖ 

¶ 17 Defendant next focuses on the statutory distinction between 

―heirs‖ and ―personal representatives,‖ on the one hand, and ―the 

person causing the death‖ and ―the wrongdoer,‖ on the other. She 

claims that ―the legislature intentionally used different and distinct 

phrases to individually define the scope of individuals entitled to 

bring a wrongful death [or survival action] claim from the scope of 

individuals against whom a wrongful death [or survival action] 

claim can be asserted.‖ In other words, these categories of plaintiffs 

and defendants are mutually exclusive.

¶ 18 We find these arguments unpersuasive. First, Defendant‘s 

argument that ―against‖ evinces the legislature‘s intent that plaintiffs 

and defendants be adverse, which therefore requires separate 

persons to act as plaintiff and defendant, overlooks the fact that in 

this case Ms. Bagley acts in distinct legal capacities. These legal 

capacities ensure adverseness. Ms. Bagley as heir and personal 

representative is incentivized to diligently litigate to obtain money 

for Mr. Vom Baur‘s heir and estate. Ms. Bagley as tortfeasor 

defendant is likewise incentivized to diligently litigate because a 

failure to cooperate with her insurer in mounting a defense would 

breach the insurance agreement and absolve her insurer of any 

obligation to pay insurance money as damages in this suit. Though 

the statutes require adverseness, that requirement is met here 

because of the distinct legal capacities inhabited by Ms. Bagley. A 

different person acting as plaintiff and defendant is not necessary in 

this case.

¶ 19 We also find Defendant‘s mutual exclusivity argument 

unpersuasive. In the wrongful death statute, the terms ―heirs‖ and 

―the person causing the death‖ do not exclude each other. The 

statute defines ―heir[]‖ to include a decedent‘s spouse, children, 

natural parents, adoptive parents, or financially dependent 

stepchildren in their minority.20 The term ―the person causing the 

death,‖ though not statutorily defined, straightforwardly means a 

person who actually and proximately caused the death of the 

_____________________________________________________________

20 Id. § 78B-3-105.
BAGLEY v. BAGLEY

Opinion of the Court

10

decedent.21 The former term, ―heir,‖ can, therefore, logically include 

the latter term, ―the person causing the death,‖ such that an heir, like 

Ms. Bagley, could be the person who caused the decedent‘s death.

¶ 20 Similarly, in the survival action statute, the categories 

―personal representative[]‖ and ―the wrongdoer‖ are not mutually 

exclusive. The first category is broad enough to logically include the 

second category. A personal representative who wrongly injures the 

decedent can inhabit the roles of both plaintiff and defendant under 

the statute. Neither statute employs mutually exclusive categories.

¶ 21 Accordingly, we reject Defendant‘s interpretations of the 

wrongful death and survival action statutes as untenable. Neither 

―of another,‖ ―against,‖ nor discrete categories of plaintiffs and 

defendants evinces legislative intent to prevent a person, acting as an 

heir or personal representative, from suing him or herself as an 

individual for negligently causing a decedent‘s injury or death. 

These statutes simply do not require a plaintiff to be a different 

person than the defendant.22

_____________________________________________________________

21 The term ―the person causing the death‖ appears to have an 

antecedent in the statute, namely, ―of another.‖ See supra ¶ 14; see also 

Bagley, 2015 UT App 33, ¶ 10 (―Plainly read, [the wrongful death 

statute] uses the phrase  ̳of another‘ to mean a person other than the 

decedent. This reading evidences a legislative intent to exclude 

situations in which the decedent‘s own wrongful act or neglect 

caused his death.‖).

22 Section 106.5 of the same chapter supports our reading of 

sections 106 and 107. That chapter allows a ―presumptive personal 

representative‖ to present a policy claim to an insurer forty-five days 

after the decedent‘s death when ―no application or petition for the 

appointment of a personal representative is pending or has been 

granted in any jurisdiction.‖ UTAH CODE § 78B-3-106.5(2)(a)(iii). The 

chapter defines ―presumptive personal representative‖ to exclude 

―the spouse of the decedent . . . alleged to have contributed to the 

death of the decedent.‖ Id. § 78B-3-106.5(1)(a). In other words, the 

statute allows a presumptive personal representative, which cannot 

include a spouse who contributed to a decedent‘s death, to submit a 

claim to an insurer when no personal representative has yet been 

appointed at probate. Significantly, we cannot find any provision in 

Utah‘s probate code that precludes a spouse who contributed to the 

decedent‘s death from being appointed as a personal representative.

See id. § 75-3-203. Thus, under section 106.5 the legislature 

(Continued)
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Opinion of the Court

11

¶ 22 While we have concluded that Defendant‘s plain language 

arguments fail, that does not end our analysis. She asks us, in the 

alternative, to employ our absurdity doctrine to reform the plain 

language of the statutes to prevent the same person from 

simultaneously acting as plaintiff and defendant under the statutes.

We address this request below, distinguishing between our 

absurdity doctrine and our absurd consequences canon. We 

ultimately conclude that permitting a tortfeasor defendant to also act 

as a plaintiff heir or personal representative does not lead to an 

absurd result of sufficient magnitude to justify our rewriting the 

statutes to read as Defendant prefers. 

II. The Wrongful Death and Survival Action Statutes Do Not 

Merit Revision Under Our Absurdity Doctrine

¶ 23 As we concluded above, the plain language of both the 

wrongful death and survival action statutes permit a person acting 

as an heir or personal representative to sue him or herself as an 

individual for damages. Defendant asks us to revise both statutes to 

avoid this plain language result. In this request, she is accompanied 

by amicus curiae Utah Defense Lawyers Association. In response, 

Plaintiffs argue that (1) Defendant failed to preserve this absurdity 

argument; (2) even if she did preserve the argument, she 

misconstrues the absurdity analysis, which applies only where a 

statute is ambiguous; and (3) even if the doctrine applies, a rational 

legislative purpose prevents this court from rewriting the statute to 

preclude an heir or personal representative from bringing suit 

against the same person in his or her capacity as an individual 

tortfeasor.

¶ 24 We reject Plaintiffs‘ preservation argument. We also take 

this opportunity to clarify the difference between the absurd 

consequences canon (which Plaintiffs invoke) and the absurdity 

 

contemplated that a spouse who contributed to the decedent‘s death 

and who could seek appointment as the personal representative, 

nevertheless could not act as a presumptive personal representative 

for the limited purposes of making insurance claims prior to the 

appointment. The fact that the legislature has not similarly excluded 

spouses who contribute to the decedent‘s death from suing as an 

―heir‖ or ―personal representative‖ under sections 106 and 107—

despite the fact that those sections were amended subsequent to the 

enactment of section 106.5—suggests that we should not create such 

an exclusion ourselves.
BAGLEY v. BAGLEY

Opinion of the Court

12

doctrine (which Defendant invokes). The former interpretive tool 

applies to ambiguous statutes; the latter, to unambiguous statutes 

that lead to an absurd result. We ultimately agree with Plaintiffs: a 

possible, rational legislative purpose requires us to refrain from 

rewriting the statutes in the way Defendant recommends.

¶ 25 On appeal, Defendant devotes several pages of briefing to 

argue that ―[t]he Court of Appeals‘ interpretation of [the wrongful 

death and survival action statutes] works an absurd result and[,] 

therefore, should be reversed.‖ Plaintiff claims, in response, that 

Defendant ―waived her absurd result argument by failing to assert, 

plead, argue, or brief the issue before the district court and the court 

of appeals.‖ 

¶ 26 While Plaintiff correctly observes that Defendant did not 

specifically raise an absurd results argument below, this is ultimately 

immaterial for one simple reason: Defendant‘s absurd result 

argument does not raise a wholly new issue.23 Instead, she offers an 

argument in support of a particular issue already preserved on 

appeal. As noted above, the issue on appeal is whether the wrongful 

death and survival action statutes allow an heir or personal 

representative to stand in the shoes of a tortfeasor defendant. Where 

the best reading of these statutes is directly before us on appeal, an 

absurdity analysis is an integral extension of our interpretive task. 

Our failure to entertain Defendant‘s absurdity argument may lead us 

_____________________________________________________________

23 Gressman v. State, 2013 UT 63, ¶ 45, 323 P.3d 998 (entertaining 

an argument that the State fully articulated for the first time on 

appeal since ―[i]ssues must be preserved, not arguments for or 

against a particular ruling on an issue raised below‖); see also Jacob v. 

Bezzant, 2009 UT 37, ¶ 34, 212 P.3d 535 (declining to entertain 

plaintiff‘s argument offered for the first time on appeal that the AntiSLAPP Act violated the open courts clause of the Utah Constitution 

because the relevant issue on appeal was whether the Anti-SLAPP 

Act shielded a newspaper editor‘s speech); Patterson v. Patterson, 

2011 UT 68, ¶ 13, 266 P.3d 828 (noting that the because ―preservation 

requirement is self-imposed and is therefore one of prudence rather 

than jurisdiction[,] . . . we [retain] wide discretion when deciding 

whether to entertain or reject matters that are first raised on 

appeal‖).
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Opinion of the Court

13

to misconstrue both statutes. Accordingly, we reach this argument to 

fully address the issue on appeal.24

¶ 27 Plaintiff argues that even if Defendant preserved the 

absurdity doctrine argument, that doctrine ―should only be invoked 

in situations [w]hen statutory language plausibly presents the court 

with two alternative readings.‖ This is incorrect. ―Our caselaw 

recognizes two different interpretive tools concerning absurdity.‖25

The first—the absurd consequences canon—―merely resolve[s] an 

ambiguity by choosing  ̳the reading that avoids absurd results.‘‖26

The second—the absurdity doctrine—―reform[s] unambiguous 

statutory language‖ where the language would lead to an absurd 

result.27 In this case, Defendant asks us to apply the absurdity 

doctrine to interpret the wrongful death and survival action statutes 

contrary to their plain language to avoid an absurd result.

¶ 28 This court has developed a narrow, exacting standard for 

determining whether to apply the absurdity doctrine and read a 

statute contrary to its plain meaning. In particular, this court will not 

_____________________________________________________________

24 Patterson, 2011 UT 68, ¶ 14 (―Utah appellate courts have used 

the words  ̳issue,‘  ̳claim,‘  ̳argument,‘ and  ̳matter ̳ almost 

interchangeably when stating our preservation rule.‖); Ong Int’l 

(U.S.A.) Inc. v. 11th Ave. Corp., 850 P.2d 447, 455 n.31 (Utah 1993) 

(―Defendants contend that we should reach this and other new 

points raised for the first time on appeal because they are really new 

arguments as opposed to new issues. We decline to honor such a 

distinction. Our concern is whether an argument was addressed in 

the first instance to the trial court.‖).

25 Utley v. Mill Man Steel, Inc., 2015 UT 75, ¶ 46, 357 P.3d 992 

(Durrant, C.J., concurring).

26 Id. ¶ 47 (Durrant, C.J., concurring) (citation omitted).

27 Id. ¶ 46 (Durrant, C.J., concurring). We note that Plaintiffs lifted 

their absurd result canon test from Encon Utah, LLC v. Fluor Ames 

Kraemer, LLC, 2009 UT 7, ¶ 73, 210 P.3d 263. Significantly, Encon 

quoted a footnote from State ex rel. Z.C. in which we distinguished 

the absurdity doctrine from ―[a] related but separate canon of 

statutory interpretation.‖ 2007 UT 54, ¶ 15 n.5, 165 P.3d 1206. That 

related canon of statutory interpretation—the absurd consequences 

canon—―states that when the statutory language plausibly presents 

the court with two alternative readings, we prefer the reading that 

avoids absurd results.‖ Id.
BAGLEY v. BAGLEY

Opinion of the Court

14

apply the absurdity doctrine unless ―the operation of the plain 

language . . . [is] so overwhelmingly absurd that no rational 

legislator could have intended the statute to operate in such a 

manner.‖28 This standard is satisfied only if the legislature could not 

reasonably have intended the result.29

¶ 29 If we determine that the plain language leads to an absurd 

result, we first consult the express purpose of the statute30 or, absent 

a statement of statutory purpose, legislative history31 to ensure that 

an absurd result was not intended by the legislature before we apply 

the doctrine to reform a statute. After all, ―the guiding star of the 

absurd results doctrine is the intent of the pertinent legislative 

_____________________________________________________________

28 Utley, 2015 UT 75, ¶ 48 (Durrant, C.J., concurring); cf. State ex 

rel. Z.C., 2007 UT 54 ¶ 13, 165 P.3d 1206 (―Other than the directive 

that a result must be so absurd that the legislative body which 

authored the legislation could not have intended it, there is no 

precise legal standard to determine what legislatures would consider 

to be an absurd result.‖ (emphasis added)). 

29 See Utley, 2015 UT 75, ¶ 63 (Durrant, C.J., concurring); cf. 

Marion Energy, Inc. v. KFJ Ranch P’ship, 2011 UT 50, ¶ 30, 267 P.3d 863 

(concluding that the statutory result was not ―so absurd that the 

legislative body which authored the legislation could not have 

intended it‖ because ―we believe the Legislature could reasonably 

have intended to require parties to use means less intrusive than 

building a permanent road to transport oil and gas across private 

property‖(citation omitted)); cf. Pub. Citizens v. U.S. Dep’t of Justice, 

491 U.S. 440, 470 (1989) (Kennedy, J., concurring) (concluding that 

because ―Congress could not possibly have intended‖ a ―patently 

absurd consequence[]‖ created by ―the plain language of the 

statute,‖ the court ―need not apply the language in such a fashion‖ 

(citations omitted)).

30 See Tschaggeny v. Milbank Ins. Co., 2007 UT 37, ¶ 28, 163 P.3d 615 

(concluding that a party‘s interpretation of the prejudgment interest 

statute ―leads to an absurd result that controverts the express 

purposes of the statute‖).

31 State ex rel. Z.C., 2007 UT 54, ¶ 21 (―Although we generally do 

not consult legislative history where the meaning of the statute is 

clear, after finding that the plain meaning has been applied in an 

absurd manner, we seek to confirm that the absurd application was 

indeed unintended by the legislature.‖). 
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Opinion of the Court

15

body.‖32 If either the statutory purpose or legislative history reveal 

that the legislature did not intend the absurd result, we will employ 

the absurdity doctrine only when there is a ―non-absurd reading that 

could be achieved by modifying the enacted text in relatively simple 

ways.‖33

¶ 30 In this case, neither the wrongful death nor the survival 

action statutes merit modification under the absurdity doctrine 

because the legislature could have reasonably intended to allow a 

person acting as an heir or personal representative to sue him or 

herself as an individual tortfeasor. Under the wrongful death statute, 

allowing an heir to sue him or herself as an individual for damages 

may benefit other heirs.34 Similarly, under the survival action statute, 

permitting a personal representative to sue him or herself as an 

individual for survivor damages may benefit creditors of the estate. 

The legislature may well have reasoned that courts should allow an 

heir or personal representative to sue him or herself for the benefit of 

creditors or heirs when no other party is willing to maintain suit. 

Because the legislature could have intended to allow such a lawsuit 

under these statutes, we cannot employ our absurdity doctrine to 

rewrite the statutes in this case.35

¶ 31 Defendant argues against this conclusion by citing several 

Utah cases that stand for the proposition that a person cannot sue 

him or herself. But none of these cases rely on that proposition to 

_____________________________________________________________

32 Id. ¶ 12.

33 Cox v. Laycock, 2015 UT 20, ¶ 74, 345 P.3d 689 (Lee, J., 

concurring) (citation omitted).

34 See Switzer v. Reynolds, 606 P.2d 244, 246 (Utah 1980) (noting 

that the wrongful death statute provides a single cause of action, and 

―[w]hether the action be prosecuted by the personal representative 

or one or more of the heirs, it is for the benefit of all the heirs, and all 

heirs are bound thereby‖).

35 Though we recognize that this case involves a single heir, we 

cannot rewrite the statute ―in relatively simple ways,‖ Cox, 2015 UT 

20, ¶ 74, to preclude suits in which there is a single heir while 

permitting suits in which there is more than one heir. When we 

revise a statute that leads to an absurd result, any revision will not 

merely affect the party currently before the court, but it will also 

impact future litigants. We must remain sensitive to these 

consequences whenever we employ our absurdity doctrine.
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Opinion of the Court

16

rewrite a statute under the absurdity doctrine.36 Where the 

legislature could have rationally intended just such a suit in the 

wrongful death and survival action contexts, we cannot modify the 

statutes. Relatedly, the amicus curiae Utah Defense Lawyers 

Association offers several arguments to show the practical 

difficulties that may arise if heirs or personal representatives can sue 

themselves for tortious conduct. These practical difficulties are 

surmountable and do not rise to the height of an absurd result that 

would permit revision of the statutes.37 Absent an overwhelmingly

absurd result, we will not modify the statutes.

_____________________________________________________________

36 See, e.g., Forrer v. Reed, 560 P.2d 1113, 1115 (Utah 1977) (noting 

that even though the statute of limitations typically begins to run for 

minors when a guardian is appointed, in this case, the guardian 

would need to sue herself, ―an illogical and untenable position‖);

Fehringer v. Commercial Nat’l Bank of Ogden, 64 P. 1108, 1109 (Utah 

1901) (citing to a California case that precluded an executor, who 

was also the fraudulent grantee, from suing herself).

37 The Association submitted novel arguments about the impact 

this case could have on our adversarial system and our Rules of 

Professional Conduct. The Association argues, inter alia, that this 

lawsuit distorts the attorney-client relationship by creating a 

concurrent conflict of interest because ―defense counsel‘s 

representation of the client as the defendant is directly adverse to 

defense counsel‘s representation of that same person who is also the 

plaintiff.‖ This concurrent conflict, the Association further argues, 

strains an attorney‘s ability to communicate with his or her client, 

because ―a lawyer shall not communicate about the subject of the 

representation with a person the lawyer knows to be represented by 

another lawyer in the matter, unless the lawyer has the consent of 

the other lawyer.‖ (quoting UTAH R. PROF‘L CONDUCT 4.2(a)). 

Conversely, communications in the other direction, from client to 

attorney, are also hampered, according to the Association, because 

the client knows that anything she reveals will be used against her. 

Relatedly, the Association raises concerns about jury confusion and 

the ability of an attorney to cross-examine his own client. 

These arguments are not without merit but they must ultimately 

fail. This suit does not create a concurrent conflict. Plaintiffs and 

Defendant act in different legal roles. Any concern that Ms. Bagley 

will withhold information from defense counsel that is adverse to 

the estate‘s recovery is tempered by Ms. Bagley‘s requirement to 

cooperate with her insurer under their insurance agreement and the 

(Continued)
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Opinion of the Court

17

¶ 32 Defendant propounds one final set of arguments to urge 

dismissal of the lawsuit before this court. She specifically encourages 

us to look beyond the plain language of the statutes to identify 

legislative intent—which she locates in certain statutes, including the 

Liability Reform Act (LRA), and the public policy articulated by 

other states. These legal authorities, Defendant argues, show that the 

legislature did not intend a negligent heir or personal representative 

to recover under the wrongful death and survival action statutes. 

Below, we address and reject these arguments, noting that they rest 

on a misreading of our precedent and fail to directly address the 

issue before this court on appeal. In particular, Defendant‘s 

legislative intent and public policy arguments do not address 

whether the statutes at issue in this case permit the suit now before 

us. Instead, her arguments address whether a plaintiff heir or 

personal representative, who is also a tortfeasor defendant, may 

recover wrongful death or survival action damages. That is an issue 

that the parties and district court may address on remand.

III. Related Utah Statutes and Public Policies Cited by Defendant Do 

Not Evince a Legislative Intent to Preclude a Negligent Heir or 

Negligent Personal Representative from Suing for Damages Under 

the Wrongful Death or Survival Action Statutes

¶ 33 Citing Cox v. Laycock,

38 Defendant claims that ― ̳when a 

statute is silent regarding particular circumstances‘ the appellate 

court  ̳must determine the best rule of law to ensure that the statute 

is applied uniformly.‘‖ To adopt the best rule of law, Defendant 

argues the court must ―look outside the plain language of the statute 

to determine the intent of the legislature.‖ Accordingly, Defendant 

cites us to related Utah statutory law—including Utah‘s Slayer 

 

district court‘s inherent powers to manage discovery and ensure that 

defense counsel obtains relevant, probative evidence necessary to 

defend against Plaintiffs‘ causes of action. Similarly, concerns about 

jury confusion and cross-examination at trial are alleviated by the 

district court‘s ability to oversee the prosecution of this lawsuit in a 

manner that will mitigate these issues. Though this lawsuit raises 

novel issues regarding the attorney-client relationship and the 

prosecution of a lawsuit, these issues are manageable and do not 

create an overwhelming absurdity that requires us to rely on our 

absurdity doctrine to reform the wrongful death and survival action 

statutes.

38 2015 UT 20, ¶ 42, 345 P.3d 689.
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Opinion of the Court

18

Statute,39 the LRA,

40 and a motor vehicle insurance provision in 

Utah‘s Insurance Statute41—to show ―that it was not the intent of the 

Utah Legislature to create a wrongful death and/or survival cause of 

action for a negligent beneficiary.‖ Defendant reinforces this 

argument by pointing us to relevant public policies articulated by 

our sister jurisdictions.

¶ 34 We reject Defendant‘s legislative intent and public policy 

argument as it relies on an improper understanding of the rule of 

statutory interpretation set forth in Cox. In that case, voters filed a 

petition under Utah Code sections 20A-4-402 and 20A-4-403 to 

contest election results.42 The district court ruled against the 

election‘s validity and ordered a new election.43 The lieutenant 

governor filed a petition for extraordinary writ challenging the 

district court‘s order.44 This court affirmed the district court‘s ruling 

to set aside the election, but reversed its order to hold a new 

_____________________________________________________________

39 Utah‘s slayer statute provides that ―[a]n individual who 

commits a disqualifying homicide of the decedent forfeits all benefits 

under this chapter with respect to the decedent‘s estate, including an 

intestate share, an elective share, an omitted spouse‘s or child‘s 

share, a homestead allowance, exempt property, and a family 

allowance. If the decedent died intestate, the decedent's intestate 

estate passes as if the killer disclaimed his intestate share.‖ UTAH 

CODE § 75-2-803(2).

40 The LRA provides the following: ―A person seeking recovery 

may recover from any defendant or group of defendants whose 

fault, combined with the fault of persons immune from suit and 

nonparties to whom fault is allocated, exceeds the fault of the person 

seeking recovery prior to any reallocation of fault made under 

Subsection 78B-5-819(2).‖ UTAH CODE § 78B-5-818(2).

41 Utah places the following limitation on a recovery under motor 

vehicle insurance: ―Any insurer issuing personal injury protection 

coverage under this part may only exclude from this coverage 

benefits: . . . (iii) to any injured person, if the person‘s conduct 

contributed to his injury: (A) by intentionally causing injury to 

himself; or (B) while committing a felony.‖ UTAH CODE § 31A-22-

309(2)(a)(iii).

42 Cox, 2015 UT 20, ¶ 6. 

43 Id. ¶¶ 8–9. 

44 Id.
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Opinion of the Court

19

election.45 We noted that the statutes provided a procedure to annul 

a primary election, but did not include a procedure to fill an office 

thus annulled.46 From this, we ultimately concluded that the 

legislature left an unintentional ―gap‖ in the statutes—a gap we 

filled by consulting ―analogous provisions within the election 

code.‖47

¶ 35 This case unquestionably presents a different situation. 

Neither the wrongful death nor the survival action statutes contain 

gaps that the legislature did not intend to create. Both statutes 

broadly permit an heir or personal representative to sue a 

wrongdoer for damages.48 Though they do not specifically address 

whether a person can act simultaneously in different legal capacities 

as a plaintiff heir or personal representative and individual 

defendant, they are written in terms that sufficiently encompass and 

permit such a lawsuit. 

¶ 36 Defendant applies Cox to this case in a manner that fails to 

recognize the difference between a statutory gap and statutory 

silence. In so doing, Defendant construes Cox as a judicial license to 

modify a statute whenever it is ―silent regarding particular 

circumstances.‖49 This approach to statutory interpretation would 

grant courts robust legislative powers to ignore statutory language 

in order to reach a desired result. We decline to establish such an 

untenable rule. Accordingly, we distinguish the unique statutory 

circumstances peculiar to Cox from those now before this court. 

Absent a glaring gap, we will not supply further refinements to the 

wrongful death and survival action statutes in a manner consonant 

with ―the legislature‘s probable intent,‖ as Defendant recommends.

_____________________________________________________________

45 Id. ¶¶ 35, 39. 

46 Id. ¶ 41. 

47 Id. (―We conclude, however, that the legislature did not intend 

the vacancy resulting from an annulled primary to continue in 

perpetuity. We therefore look to analogous provisions within the 

election code to carry out the legislature‘s intent.‖); cf. Clarkston v. 

Bridge, 539 P.2d 1094, 1099–1100 (Or. 1975) (concluding that a party 

could request a jury trial to determine paternity where a statute 

authorized a paternity suit but failed to specify whether a party 

could demand a jury).

48 Supra ¶ 11.

49 Cox, 2015 UT 20, ¶ 42. 
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Opinion of the Court

20

¶ 37 For this reason, we will not rely on the Slayer Act, the LRA, 

or any other related statute to speak more specifically for the Utah 

Legislature when it chose to speak in more general terms. Nor will

we consider the public policy articulated by our sister jurisdictions. 

The wrongful death and survival action statutes unambiguously 

allow Ms. Bagley acting as an heir and personal representative to sue 

herself as an individual for damages.

¶ 38 To the extent Defendant invokes the LRA to argue that 

dismissal is proper because Plaintiffs cannot recover damages, she 

did not preserve this issue for appeal by raising it before the district 

court.50 In her opening brief, Defendant couched this issue in terms 

of statutory interpretation, arguing that the LRA, wrongful death, 

and survival action statutes conflict, and that we thus cannot read the 

latter statutes ―to confer a cause of action on [Plaintiffs] when that 

very same cause of action is barred by comparative negligence 

principles.‖ Though in form this argument is one of statutory 

construction, in substance it is an invitation to apply the LRA to bar 

Plaintiffs‘ suit. We decline that invitation. When the issue preserved 

for appeal is the appropriate interpretation of a statute, it is one thing 

to identify an inconsistency between two related statutes—one of 

which was not raised before the district court—that requires 

resolution through statutory interpretation on appeal. It is another 

thing entirely to argue that a statute that was never brought to the 

district court‘s attention and that deals with an issue not preserved 

for appeal, should apply on appeal to bar recovery.51

¶ 39 And even if we construe Defendant‘s argument as one of 

statutory interpretation, no conflict between the statutes at issue in 

this case and the LRA exists.52 The wrongful death and survival 

_____________________________________________________________

50 Patterson v. Patterson, 2011 UT 68, ¶ 12, 266 P.3d 828 (―An issue 

is preserved for appeal when it has been  ̳presented to the district 

court in such a way that the court has an opportunity to rule on 

[it].‘‖ (alteration in original) (citation omitted)).

51 Id. ¶ 18 (deciding to rely on a statute not raised before the 

district court because ―we routinely consider new authority relevant 

to issues that have properly been preserved‖).

52 Though Defendant did not raise this particular argument 

below, we may reach it for the same reason we reached Defendant‘s 

absurdity argument: the proper interpretation of the wrongful death 

and survival action statutes is before us, and harmonizing those 

statutes with related legislative enactments is integral to that 

(Continued)
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Opinion of the Court

21

action statutes create a cause of action that heirs and personal 

representatives may pursue.53 By contrast, the LRA precludes ―[a] 

person seeking recovery‖54 from recovering when his or her fault is 

not exceeded by the combined fault of defendants, nonparties, and 

parties immune from suit to whom fault is allocated.55 The former 

statutes create a cause of action; the latter statute acts as a bar to 

recovery in particular cases. In some cases, the LRA may bar an heir 

or personal representative who is also the defendant tortfeasor from 

recovering—as appears to be the case here. In other cases, the LRA 

may not bar recovery—as when multiple defendants, including the 

sole heir, are liable for the death of the decedent and the heir‘s fault 

does not exceed the combined fault of all other actors. Accordingly, 

no conflict between these statutes exists. And because the issue of 

whether the LRA will apply to bar recovery here is an issue that was 

not preserved for appeal, the district court should decide it in the 

first instance on remand.

¶ 40 We also note that as with Defendant‘s LRA argument, her

other legislative intent and public policy arguments outlined above 

fail to directly address the issue before us on appeal. We granted 

certiorari on whether the court of appeals erred in holding that 

sections 78B-3-106(1) and 78B-3-107 of the Utah Code do not 

preclude persons in their capacities as heirs or personal 

representatives from bringing suit against the same persons in their 

capacities as ―person[s] causing . . . death‖ or as ―wrongdoer[s].‖ The 

related statutes and foreign caselaw cited by Defendant speak to the 

separate issue of whether a tortfeasor defendant who is permitted to 

sue as an heir and personal representative of an estate can recover 

insurance money paid out as damages in a wrongful death or 

 

interpretive task. See supra ¶ 26; see also State v. Jeffries, 2009 UT 57, 

¶ 9, 217 P.3d 265 (noting ―our duty to read and interpret statutory 

provisions in harmony with other provisions in the same statute and 

with other related statutes‖).

53 Supra ¶ 11. 

54 UTAH CODE § 78B-5-817(4) (― ̳Person seeking recovery‘ means 

any person seeking damages or reimbursement on its own behalf, or 

on behalf of another for whom it is authorized to act as legal 

representative.‖).

55 Supra ¶ 33 n.39.
BAGLEY v. BAGLEY

Opinion of the Court

22

survival action suit.56 Defendant‘s failure to distinguish between 

these distinct issues—the first, an issue of statutory interpretation; 

the second, an issue of whether recovery is permissible in cases like 

the one before us—has caused undue confusion in her arguments. 

Though we do not reach the second issue in this appeal, the parties 

may raise the issue on remand. 

¶ 41 For the reasons articulated above, Defendant‘s legislative 

intent and public policy arguments fail. They rely on a misreading of 

our precedent and speak to a separate issue, one that we do not 

address. Accordingly, we conclude that, contrary to Defendant‘s 

averments, the court of appeals accurately identified the legislature‘s 

intent when it interpreted the plain language of the wrongful death 

and survival action statutes.

Conclusion

¶ 42 For the foregoing reasons we hold that the court of appeals 

did not err when it concluded that the wrongful death and survival 

action statutes permit a person acting in the legal capacity of an heir 

or personal representative to sue him or herself in an individual 

capacity for negligently causing a decedent‘s death or injury. The 

plain language of both statutes permits such a lawsuit. Further, the 

literal terms of the statutes do not lead to an absurd result that 

would require us to modify the statutory text. And absent a statutory 

_____________________________________________________________

56 Tanski v. Tanski, 820 P.2d 1143, 1144–45 (Colo. App. 1991) 

(recognizing that the jurisdiction‘s wrongful death statute permits an 

heir to sue himself while concluding that public policy prevents the 

heir from recovering damages); In re Chase Estate, 44 Pa. D. & C.3d 

34, 40–41 (Pa. Orphans‘ Ct. 1987) (barring an heir from participating 

in his wife‘s estate where the heir wrongfully caused his wife‘s 

death, even though the heir‘s wife‘s mother acted as administrator of 

the estate); Aetna Cas. & Sur. Co. v. Curley, 585 A.2d 640 (R.I. 1991) 

(preventing an heir from maintaining suit under the jurisdiction‘s 

wrongful death and survival action statutes because her wrongful 

conduct caused the decedent‘s death and she was the sole 

beneficiary of the decedent‘s estate); cf. Rozewski v. Rozewski, 46 

N.Y.S.2d 743, 745–47 (Sup. Ct. 1944) (permitting a husband whose 

negligence caused his wife‘s death to recover under the wrongful 

death statute because such recovery did not violate the jurisdiction‘s 

public policy).
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Opinion of the Court

23

gap, we will not venture beyond the plain language of the statutes to 

rewrite them based upon public policy.