2022 UT 21

IN THE

SUPREME COURT OF THE STATE OF UTAH

UMIA INSURANCE, INC.,

Appellant / Cross-Appellee,

v.

RENATO SALTZ, M.D. and SALTZ PLASTIC SURGERY, P.C.,

Appellees / Cross-Appellants.

No. 20200008

Heard: October 18, 2021

Filed June 9, 2022

On Direct Appeal

Third District, Salt Lake

The Honorable Keith A. Kelly

No. 160907287

Attorneys:

Troy L. Booher, Beth E. Kennedy, Taylor P. Webb, Salt Lake City,

Mark D. Malloy, Steven L. Miracle, Milwaukee,

for appellant / cross-appellee

Julianne P. Blanch, Alan S. Mouritsen, Salt Lake City,

for appellees / cross-appellants

ASSOCIATE CHIEF JUSTICE LEE authored the opinion of the Court in 

which CHIEF JUSTICE DURRANT, JUSTICE PEARCE, JUSTICE HAGEN*,

and JUDGE POHLMAN joined.

Due to his retirement, JUSTICE HIMONAS did not participate herein;

JUSTICE DIANA HAGEN sat. 

Having recused herself, JUSTICE PETERSEN does not participate herein; 

COURT OF APPEALS JUDGE JILL POHLMAN sat.

_____________________________________________________________

* JUSTICE DIANA HAGEN became a member of the Court on May

18, 2022, but sat as a visiting judge prior to her confirmation.
UMIA INSURANCE, INC v. SALTZ

Opinion of the Court

2

ASSOCIATE CHIEF JUSTICE LEE, opinion of the Court:

¶1 Renato Saltz is a plastic and reconstructive surgeon who was 

sued by a former patient for releasing her pre- and post-surgery

photographs to a news outlet. Saltz turned over his legal defense to 

his malpractice insurance provider, UMIA Insurance, Inc. UMIA

initially defended Saltz but eventually filed its own declaratory 

judgment suit, claiming that Saltz lacked insurance coverage for the 

former patient’s claims. Saltz countersued. He claimed he had 

coverage under the plain language of his UMIA policy and under 

principles of waiver and promissory estoppel. He also sought

compensatory and punitive damages under a claim that UMIA had 

breached its duty of good faith.

¶2 The district court found that Saltz was not covered under the 

plain language of the policy and dismissed his claim for waiver and

his request for punitive damages. But it denied UMIA’s motion for 

judgment as a matter of law and allowed Saltz’s promissory estoppel 

and breach of the duty of good faith claims to go to a jury. Over 

UMIA’s objections, the court also allowed evidence from a 

settlement negotiation to be presented to the jury. The jury found for 

Saltz on both claims.

¶3 We affirm in part, reverse in part, and remand for further 

proceedings on Saltz’s requests for punitive damages and for

attorney fees incurred on appeal. The district court properly allowed 

Saltz’s claims for promissory estoppel and breach of the duty of 

good faith to go to the jury, and the court was correct to deny 

UMIA’s motion for a new trial on the claim for breach of the duty of 

good faith. As for UMIA’s assertion that the district court 

improperly admitted evidence from the 2017 settlement talks, we 

affirm the district court on the ground that UMIA failed to carry its 

burden of persuasion on appeal. The district court erred, however, in

dismissing Saltz’s claim for waiver and request for punitive 

damages. Because Saltz successfully established that he was covered 

under his UMIA policy by promissory estoppel, we do not reach the 

question of whether Saltz has a viable waiver claim or was covered 

under the plain language of the policy.
Cite as: 2022 UT 21

Opinion of the Court

3

I

¶4 Dr. Renato Saltz has practiced plastic and reconstructive 

surgery in Utah for thirty years.1 UMIA Insurance provided Dr. Saltz

a $1,000,000 malpractice insurance policy. At various times, news 

outlets featured stories highlighting Dr. Saltz’s work and opinions

on plastic surgery. And these interactions between Saltz and the 

press are what ultimately led to the case before us.

¶5 In 2006, Saltz performed an abdominoplasty on Conilyn 

Judge. As part of that procedure, Judge gave written consent for a 

nurse to take nude pictures of her before and after the operation.

This was standard practice in the plastic surgery field.

¶6 A year after the procedure, a local Fox News affiliate 

interviewed both Saltz and Judge for a story on plastic surgery. After 

the interviews, but before the broadcast, Fox requested some before 

and after photos of Judge. And without her consent, Saltz gave Fox 

unredacted photos of Judge—without any instructions on how the

photos should be displayed in the broadcast. Fox then aired edited 

photos in the beginning of 2008, showing Judge’s body from her

neck to her upper thigh, with black bars placed over her breasts and 

groin.

¶7 A month later, Saltz received a letter from Judge’s attorney 

complaining about the release of the photos to Fox. And in early 

2009, Judge filed a civil suit against both Fox and Saltz, asserting

various tort claims and seeking millions of dollars in damages (the 

“Judge Lawsuit”).

¶8 After receiving Judge’s initial letter, Saltz contacted Mike 

Imbler, a claim consultant at UMIA who had worked with Saltz for 

over five years. Imbler retained the law firm Richards Brandt Miller 

Nelson (“RBMN”) to represent Saltz. A few months later, RBMN 

contacted Saltz and advised him to ask Hartford—his general 

liability insurance carrier—if it would cover the Judge Lawsuit. 

Hartford denied coverage. Satisfied with his coverage under his 

UMIA policy, Saltz did not challenge Hartford’s denial.

¶9 UMIA controlled how the Judge Lawsuit was handled and 

negotiated. During the first two years of the case, UMIA 

_____________________________________________________________

1 “On appeal, we review the record facts in a light most favorable 

to the jury’s verdict and recite the facts accordingly.” USA Power, 

LLC v. PacifiCorp, 2016 UT 20, ¶ 8 n.3, 372 P.3d 629 (citation and 

internal quotation marks omitted).
UMIA INSURANCE, INC v. SALTZ

Opinion of the Court

4

unsuccessfully offered Judge $50,000 to drop her claims, and Fox 

settled separately for $300,000. After the Fox settlement, Judge and 

Saltz went into mediation. UMIA controlled the mediations, 

authorizing RBMN to offer up to $150,000 to settle. But mediation 

was unsuccessful and litigation resumed. Judge was willing to 

accept an $800,000 settlement offer, but UMIA offered only $100,000.

¶10 RBMN filed a motion for summary judgment, asserting that

Judge had consented to the photo release when she signed a preoperation consent form. That motion was granted. And UMIA then 

instructed RBMN to withdraw the $100,000 settlement offer. In 

response, Judge appealed the district court’s grant of summary 

judgment.

¶11 The parties litigated that appeal for the next five years.

During that time, settlement discussions were suspended. This 

appellate process culminated in our decision in Judge v. Saltz Plastic 

Surgery, P.C., 2016 UT 7, 367 P.3d 1006, where we reversed the 

district court’s dismissal and remanded the case for further 

proceedings. The case returned to the district court in 2016. 

¶12 After the case returned to the district court, Judge offered to 

settle for $1,000,000. RBMN counseled Saltz to consider obtaining 

independent counsel. And he did so—retaining Parsons, Behle & 

Latimer (“PBL”) to represent him personally. A week later, PBL

asked UMIA to either settle the Judge Lawsuit for the full $1,000,000 

of coverage or indemnify Saltz for any damages that might be 

awarded in the suit. After receiving the request, Nick Ghiselli, 

UMIA’s general counsel, reviewed the Judge Lawsuit and raised, for 

the first time, the possibility that the Judge Lawsuit was not covered 

under Saltz’s policy. Ghiselli doubted that Judge’s claims were 

“covered by the UMIA policy,” but recognized that “[i]t might be too 

late” for UMIA to deny coverage under the principles of promissory 

estoppel and waiver.

¶13 Upon this discovery, UMIA informed Saltz that it would not 

settle the Judge Lawsuit for policy limits, that it did not think Saltz 

had coverage under his UMIA policy, and that Saltz should ask

Hartford to revisit its initial coverage denial. At the same time, 

UMIA responded to Judge’s demand by offering her $200,000 to 

settle the case. Judge refused. PBL then sent UMIA a follow-up letter 

expressing concern with its sudden about-face. Ghiselli responded 

by characterizing the letter as containing unwarranted “threats,”

especially in light of UMIA’s recent settlement offer. Two weeks 

later, UMIA sent a letter to Saltz that asserted that the Judge Lawsuit 
Cite as: 2022 UT 21

Opinion of the Court

5

was not covered under his policy but agreeing to defend Saltz under 

a reservation of rights.2

¶14 Saltz’s relationship with UMIA deteriorated in the wake of 

these events. In November 2016, UMIA filed the lawsuit that is the 

genesis of this appeal—a declaratory judgment action seeking to 

establish that the Judge Lawsuit was not covered under Saltz’s 

insurance policy with UMIA. Saltz disputed UMIA’s denial of 

coverage under the plain language of the policy. And he asserted 

several counterclaims against UMIA, contending in the alternative 

that he had coverage under the policy through principles of waiver 

and promissory estoppel. Saltz also claimed that UMIA had 

breached the covenant of good faith and fair dealing—a claim on

which Saltz sought compensatory and punitive damages. At Saltz’s 

request, Hartford also revisited its initial coverage denial. It agreed 

to defend Saltz under a reservation of rights and to contribute half of 

his defense costs incurred thus far.

¶15 Several weeks later, UMIA moved for summary judgment on 

its declaratory judgment claim, asserting that the Judge Lawsuit was 

not covered under the plain language of its policy with Saltz. The 

district court agreed, leaving only Saltz’s counterclaims for breach of 

the duty of good faith and associated damages and his claims for 

coverage under the UMIA policy under theories of waiver and

promissory estoppel.

¶16 The parties entered into settlement negotiations over both 

cases in June 2017. Hartford, UMIA, and Saltz all agreed to 

contribute toward a settlement offer in the Judge Lawsuit. Hartford

offered $200,000, and Saltz offered $35,000. UMIA offered only

$15,000—less than ten percent of its previous offer and its lowest 

since the Judge Lawsuit began. Judge rejected the offer. Hartford

then increased its contribution to $400,000, bringing the total offer up

to $450,000. UMIA informed the mediator that it would not offer 

more than $15,000 in any settlement offer, and Saltz stated that he 

would continue to pursue his claim for breach of the duty of good 

faith against UMIA. After UMIA left the negotiations, Hartford and 

_____________________________________________________________

2 A reservation of rights letter “explains the insurer’s coverage 

position. [It] inform[s] the insured in detail . . . of every reason for 

the insurer’s position concerning the possible disclaimer of 

coverage.” 1 JUDITH F. GOODMAN & SUE C. JACOBS, LAW AND 

PRACTICE OF INSURANCE COVERAGE LITIGATION § 8:2 (2021). 
UMIA INSURANCE, INC v. SALTZ

Opinion of the Court

6

Saltz settled the Judge Lawsuit for $1,000,000 in total, each 

contributing $500,000.

¶17 The suit between UMIA and Saltz continued, with both 

parties filing various pretrial motions. UMIA attempted to preclude 

Saltz from introducing evidence of its actions during the June 2017 

settlement talks, asserting that the evidence was barred by Rule 408

of the Utah Rules of Evidence. The district court denied the motion. 

It held that UMIA had opened the door to the evidence when it 

admitted evidence from various other settlement mediations with 

Judge. The district court ruled in UMIA’s favor, however, on its

motion for summary judgment, dismissing Saltz’s request for 

punitive damages under his claim for breach of the duty of good 

faith. In so doing, the district court found that UMIA’s conduct did 

“not rise to the level of willful and malicious misconduct” or 

“knowing and reckless indifference toward or disregard of” Saltz’s 

rights. Saltz’s claims for promissory estoppel, waiver, and breach of 

the duty of good faith remained.

¶18 The case went to trial in August 2019. After Saltz presented 

his case in chief, UMIA moved for a judgment as a matter of law, 

asserting that Saltz had failed to establish a basis for promissory 

estoppel, breach of the duty of good faith, or waiver. Regarding 

promissory estoppel, UMIA contended that Saltz had failed to 

demonstrate that he was prejudiced by UMIA’s eight-year delay in 

questioning coverage. With respect to breach of the duty of good 

faith, UMIA asserted that Saltz had not presented any evidence to 

support the claim. The district court allowed Saltz’s claims for 

promissory estoppel and breach of the duty of good faith to go to the 

jury, but dismissed his waiver claim, holding that waiver did not 

apply in the context of third-party insurance.3

¶19 The jury found for Saltz on both claims. It found that UMIA 

was estopped from denying coverage and had to reimburse Saltz the 

full $500,000 payment he made to Judge during the June 2017 

_____________________________________________________________

3 Third-party insurance coverage refers to an agreement where 

“the insurer contracts to defend the insured against claims made by 

third parties against the insured and to pay any resulting liability, up 

to the specified dollar limit.” Beck v. Farmers Ins. Exch., 701 P.2d 795, 

798 n.2 (Utah 1985). This is in contrast to first-party insurance 

coverage, which refers to “an insurance agreement where the insurer 

agrees to pay claims submitted to it by the insured for losses suffered 

by the insured.” Id.
Cite as: 2022 UT 21

Opinion of the Court

7

settlement talks. It also found that UMIA had breached the covenant 

of good faith and fair dealing, causing Saltz $500,000 in damages and 

causing him to incur attorney fees.

¶20 After the jury verdict, UMIA renewed its motion for 

judgment as a matter of law.4 UMIA raised the same basic objections 

to Saltz’s claims for promissory estoppel and breach of the duty of 

good faith that it raised on its first motion for judgment as a matter 

of law. The district court denied UMIA’s motion and confirmed the 

jury’s award.

¶21 UMIA filed this appeal, and Saltz cross appealed.

II

¶22 UMIA challenges the denial of its renewed motion for 

judgment as a matter of law on Saltz’s claims for promissory 

estoppel and breach of the duty of good faith. UMIA also asks us to

order a new trial on claims for breach of the duty of good faith if we 

do not overrule the district court’s decision on the motion. Finally, 

UMIA asks for a new trial on the ground that it was prejudiced by 

the district court’s improper admission of evidence of UMIA’s 

actions during the 2017 settlement talks.

¶23 On his cross appeal, Saltz challenges the district court’s 

dismissal of his waiver claim and request for punitive damages. He 

also asks us to reverse the determination that the Judge Lawsuit was 

not covered under the plain language of the UMIA insurance policy.

And Saltz seeks an award of his attorney fees incurred on appeal.

¶24 We affirm the district court’s denial of UMIA’s renewed 

motion for judgment as a matter of law on Saltz’s promissory 

estoppel claim. But we reverse the dismissal of Saltz’s claim for 

waiver. We also affirm the determination that UMIA was not 

_____________________________________________________________

4 Effective May 2016, Utah Rule of Civil Procedure 50 was 

amended to change the terms “judgment notwithstanding the 

verdict” and “directed verdict” to “judgment as a matter of law.” See

Arnold v. Grigsby, 2018 UT 14, ¶ 10 n.2, 417 P.3d 606. But this change 

in terminology did not alter the governing standard. UTAH R. CIV. P.

50 advisory committee’s notes to 2016 amendment. We generally 

follow the terminology of the amended rule in this opinion—

speaking of “judgment as a matter of law” and employing the terms

“judgment notwithstanding the verdict” and “directed verdict” only 

where these terms appear in motion titles, court order titles, and case

law.
UMIA INSURANCE, INC v. SALTZ

Opinion of the Court

8

entitled to judgment as a matter of law on Saltz’s claim for breach of 

the duty of good faith. And we likewise affirm the denial of UMIA’s 

request for a new trial on the same claim for breach of the duty of 

good faith. As for UMIA’s assertion that the district court 

improperly admitted evidence from the 2017 settlement talks, we 

affirm on the ground that UMIA failed to carry its burden of 

persuasion on appeal. But we reverse the dismissal of Saltz’s request 

for punitive damages and conclude that Saltz is entitled to an award 

of his attorney fees on appeal.

A. Promissory Estoppel

¶25 UMIA filed a renewed motion for judgment as a matter of 

law on Saltz’s promissory estoppel claim, asserting that Saltz failed

to establish that he was prejudiced by UMIA’s delay in questioning 

coverage.5 The district court denied the motion. It held that there 

was “evidence from which the jury could determine that there was 

prejudice [to Saltz].” UMIA challenges that denial on appeal.

¶26 We review a denial of a motion for judgment as a matter of 

law “for correctness.” Mounteer Enters., Inc. v. Homeowners Ass’n for 

the Colony at White Pine Canyon, 2018 UT 23, ¶ 13, 422 P.3d 809 

(citation omitted) (using the nomenclature of “judgment 

notwithstanding the verdict”). And we overturn such a decision 

“only if the appellant can demonstrate that there was no basis in the 

evidence, including reasonable inferences which could be drawn 

therefrom, to support the jury’s verdict.” USA Power, LLC v. 

PacifiCorp, 2016 UT 20, ¶ 29, 372 P.3d 629 (citation omitted) (using 

the nomenclature of “judgment notwithstanding the verdict”). As 

applied here, this standard requires UMIA to establish that Saltz 

failed to put on evidence that UMIA’s delay resulted in prejudice to 

Saltz. And we affirm on the ground that UMIA has failed to carry 

that burden.

¶27 Under the majority rule among state courts, if a breach of a 

duty has been shown, prejudice to the insured is “conclusively

_____________________________________________________________

5 Generally, “estoppel cannot be used to create [insurance] 

coverage.” 7 STEVEN PLITT ET AL., COUCH ON INSURANCE § 101:9 (3d. 

ed. 2021). Courts have recognized “several exceptions” to this rule. 

Id. But they are triggered only where “there is prejudice to the 

insured from the insurer’s actions,” as where “[t]he insurer 

unreasonably delays in informing interested parties that it may 

disclaim coverage.” Id.
Cite as: 2022 UT 21

Opinion of the Court

9

presumed” once a “[third-party] insurer, without reservation of 

rights . . . [,] assumes the exclusive control of the defense of claims

against the insured.”6 This rule is based on the notion that “the loss 

to an insured of the right to manage and control an action against 

him, as a consequence of the insurer’s defense of such action” is so 

severe that prejudice can be presumed. R.D. Hursh, Annotation, 

Liability Insurance: Insurer’s Assumption of or Continuation in Defense of 

Action Brought Against the Assured as Waiver or Estoppel as Regards 

Defense of Noncoverage or Other Defense Existing at Time of Accident, 38

A.L.R. 2d 1148 § 5[b] (1954); see also id. § 2.

¶28 Other courts reject a presumption of prejudice—holding that

the assumption of an insured’s defense is not in and of itself 

sufficient to establish prejudice. Prejudice, under this rule, is a 

question of fact to be resolved in light of evidence presented by the 

parties. World Harvest Church, Inc. v. GuideOne Mut. Ins. Co., 695 

S.E.2d 6, 11 (Ga. 2010) (explaining the difference between the 

majority and the minority rules regarding prejudice in the context of 

third-party insurance); see also 38 A.L.R. 2d 1148 § 5[c] (1954).

¶29 This court and a handful of others have taken a different 

approach. We have endorsed a presumption of prejudice, but only in 

cases where the insurer “assumes the defense of an action or 

claim . . . and conducts the action to final judgment, or the claim to 

settlement.” State Farm Mut. Auto Ins. Co. v. Kay, 487 P.2d 852, 855 

(Utah 1971) (quoting with approval Boulet v. Millers Mut. Ins. Ass’n of 

Ill., 362 F.2d 619, 622–23 (8th Cir. 1966)), overruled on other grounds 

by Farmers Ins. Exch. v. Call, 712 P.2d 231 (Utah 1985). When “the 

insurer disclaims and withdraws prior to final judgment or 

settlement, prejudice to the insured is not presumed,” and the 

insured must prove that he “was actually prejudiced” by the delay. 

Kay, 487 P.2d at 855. In other words, under our law, prejudice is not 

_____________________________________________________________

6 World Harvest Church, Inc. v. GuideOne Mut. Ins. Co., 695 S.E.2d 6, 

11 (Ga. 2010) (citations omitted) (quoting Arceneaux v. Amstar

Corp., 969 So.2d 755, 767 (La. Ct. App. 2007)) (adopting this general 

rule and recognizing a variant in which prejudice is shown “without 

resort to a presumption” and “without any further proof”) (citing 14 

LEE R. RUSS, COUCH ON INSURANCE §§ 202:67–202:69 (3rd ed.); R.D. 

Hursh, Annotation, Liability Insurance: Insurer's Assumption of or 

Continuation in Defense of Action Brought Against the Assured as Waiver 

or Estoppel as Regards Defense of Noncoverage or Other Defense Existing 

at Time of Accident, 38 A.L.R. 2d 1148 § 5[b] (1954)).
UMIA INSURANCE, INC v. SALTZ

Opinion of the Court

10

presumed from mere relinquishment of control of the defense to the

insurer, or from a disclaimer or withdrawal of coverage prior to final 

judgment or settlement. Until the insurer either settles the suit or 

litigates it to final judgment, the insured bears the burden of 

establishing prejudice.

¶30 In Kay, we recognized that an “insurer is entitled to a 

reasonable time to investigate the facts” but held that it is required to

“act seasonably in disclaiming liability . . . and . . . cannot delay its 

decision so long that the insured’s rights are prejudiced thereby.” Id.

Ultimately, we identified two ways that an insured could establish

prejudice arising from an insurer’s delay in questioning coverage. 

First, we noted that prejudice may be shown by proof that the 

insured was deprived of “an opportunity to prepare an adequate 

defense before trial.” Id. at 856. Second, we explained that prejudice 

may be established by evidence that the insured was deprived of “an 

opportunity . . . to effect a settlement.” Id.

¶31 We affirm on the ground that Saltz presented evidence that 

he was prejudiced under the standard set forth in Kay. Saltz elicited 

expert testimony showing that UMIA’s delay in questioning 

coverage deprived him of an opportunity to settle the Judge Lawsuit. 

Saltz’s expert testified that UMIA missed opportunities to settle 

during its eight-year delay in questioning coverage. The expert 

asserted that there would have been better settlement opportunities 

if UMIA had been more collaborative with Fox in 2011 when Fox 

settled. If UMIA had “been on the inside” of that settlement, it 

would have been “a collective offer,” which is “far more appealing to 

an injured party” because the whole issue gets resolved at once. In 

the expert’s opinion, UMIA missed another opportunity to settle 

when it withdrew its $100,000 offer right after Judge’s claim was

dismissed on summary judgment in 2011. The expert believed that 

UMIA did this because it “feared that Ms. Judge would accept that 

offer.”

¶32 The expert also testified that when an insurer questions 

coverage early on in the litigation, the plaintiff’s incentives are 

altered. In the expert’s opinion, questioning coverage early increases

the time to compensation for a successful plaintiff by as much as 

eight to ten years. A plaintiff may want to avoid waiting to be 

compensated while the insured and insurer dispute coverage. And 

both plaintiffs and their attorneys “ha[ve] to incur expense and 

additional attorney[] fees fighting [for] coverage” for the insured 

because their recovery and compensation, respectively, depends on 

the outcome of the insurer’s declaratory judgment suit. Plaintiffs 
Cite as: 2022 UT 21

Opinion of the Court

11

may also choose to avoid publicity about their claim as the discovery 

(and possible appellate) processes driven by a third-party insurer 

unfold—because “the more it’s advertised, the more it hurts [the 

plaintiff].” These incentives “motivate[]” plaintiffs, increasing the 

likelihood of settlements occurring “early and for less money.”

¶33 UMIA did not question coverage until after eight years of 

litigation. As the case was close to resolution, Judge knew she would 

be compensated soon if she won her case. The discovery and 

appellate processes had concluded, meaning that Judge had already

been subject to public exposure. If UMIA had sent a reservation of 

rights letter and filed for declaratory judgment action earlier, it

“would have changed [things] significantly,” because Judge would 

have had incentives to settle. Indeed, in the expert’s opinion, Judge

would have been “highly motivated” to settle.

¶34 This testimony shows that UMIA deprived Saltz of 

settlement opportunities with Judge through its delay in questioning 

coverage. This is sufficient under Kay, which holds that prejudice can 

be established by proof that an insured was deprived of “an 

opportunity . . . to effect a settlement.” Id. (emphasis added). And a 

reasonable jury could have found that UMIA deprived Saltz of an 

opportunity to settle the Judge Lawsuit.7

B. Waiver

¶35 The district court dismissed Saltz’s waiver claim based on its 

understanding of our decision in Kay. It concluded that Kay requires 

an insured to show that he was prejudiced by an insurer’s delay in 

reserving its rights to obtain coverage under an insurance policy. 

And it effectively concluded that a waiver claim is not available in 

the third-party insurance context.

_____________________________________________________________

7 UMIA rightly notes that Saltz did not present evidence of the 

settlement amount that Judge might have accepted before UMIA 

contested coverage. Certainly Saltz could have done so. And perhaps 

such evidence would have affected the jury’s assessment of the 

prejudice element of Saltz’s promissory estoppel claim. But that is 

not the question presented for our review. We are not asked to 

decide whether the jury was presented with the best or most direct 

evidence of prejudice. We are asked only to decide whether Saltz 

presented some evidence on which the jury could have based its 

determination of prejudice. We conclude that Saltz carried this 

burden under Kay, and we affirm the district court on that basis.
UMIA INSURANCE, INC v. SALTZ

Opinion of the Court

12

¶36 This decision hinged on a conclusion of law. We accordingly 

review it for correctness, affording no deference to the district court’s 

analysis. See State v. Daniels, 2002 UT 2, ¶ 18, 40 P.3d 611.

¶37 Our decision in Kay was not as sweeping as the district court 

surmised. In Kay, we agreed with the Eighth Circuit that “[p]rejudice 

. . . is an essential element in . . . estoppel.” Kay, 487 P.2d at 855. But 

we said nothing about whether waiver was a viable claim against a 

third-party insurer. And we did not require proof of prejudice as an 

element of a claim for waiver.

¶38 Our more recent case law makes clear that “[p]rejudice is 

irrelevant to a claim of waiver.” Mounteer Enters., Inc., 2018 UT 23, 

¶ 33 (citation omitted). Waiver is a deeply embedded principle of 

contract law. It requires only “a showing of words or conduct 

manifesting the ‘intentional relinquishment of a known right.’” Id.

(citing Wilson v. IHC Hosps., Inc., 2012 UT 43, ¶ 61, 289 P.3d 369). And 

we see no principled reason why this doctrine should not extend to

the third-party insurance context.

¶39 We hold that waiver is a valid claim in the third-party 

insurance context and affirm that such a claim may be established 

without proof of prejudice. But we need not consider whether the 

elements of waiver were established here, or remand for further 

proceedings on that question, since Saltz successfully established 

coverage under the doctrine of promissory estoppel.

C. Breach of the Duty of Good Faith

¶40 After the jury entered its verdict, UMIA renewed its motion 

for judgment as a matter of law on Saltz’s claim for breach of the 

duty of good faith, contending that Saltz had failed to present 

evidence to support this claim. Alternatively, it requested a new 

trial, asserting error in the jury instructions. The district court denied 

both motions.

¶41 As noted above, we review a denial of a motion for a 

judgment as a matter of law “for correctness.” Mounteer Enters., Inc., 

2018 UT 23, ¶ 13 (citation omitted). We will reverse the denial of 

such a motion “only if the appellant can demonstrate that there was 

no basis in the evidence, including reasonable inferences which 

could be drawn therefrom, to support the jury’s verdict.” USA Power, 

LLC v. PacifiCorp, 2016 UT 20, ¶ 29 (citation omitted).

¶42 We review a decision to grant or deny a new trial under an 

abuse of discretion standard. Id. ¶ 30. In so doing, “[w]e review the 

legal standards applied by the [district] court . . . for correctness.” 
Cite as: 2022 UT 21

Opinion of the Court

13

State v. Bess, 2019 UT 70, ¶ 17, 473 P.3d 157 (first and second 

alterations in original) (citation and internal quotation marks

omitted). We will reverse and remand for a new trial if the district

court made a legal error serious enough that “the likelihood of a 

different outcome is sufficiently high to undermine [our] confidence 

in the verdict.” SIRQ, Inc. v. The Layton Cos., 2016 UT 30, ¶ 32, 379 

P.3d 1237 (alteration in original) (internal quotation marks omitted)

(citing State v. Knight, 734 P.2d 913, 920 (Utah 1987)).

¶43 We affirm the district court’s denial of UMIA’s motion for 

judgment as a matter of law. Saltz presented evidence of UMIA’s 

actions from which the jury could infer that the insurer breached its 

duty of good faith. We likewise conclude that there is not a sufficient 

basis to overrule the denial of UMIA’s new trial motion. Although 

there were errors in the jury instructions, those errors do not 

“undermine [our] confidence in the verdict.” SIRQ, Inc., 2016 UT 30,

¶ 32 (alteration in original) (citation omitted).

1. Evidence of UMIA’s Breach of the Duty of Good Faith

¶44 As a third-party insurer, UMIA had a fiduciary responsibility 

to “act in good faith and be as zealous in protecting the interests of 

its insured as it would in looking after its own.” Ammerman v. 

Farmers Ins. Exch., 430 P.2d 576, 579 (Utah 1967) (citations omitted); 

see id. at 578 (holding that “[t]he covenant in [an insurance] policy 

requiring the insurer to defend the insured imposes upon it a 

fiduciary responsibility”). Third-party insurers are subject to a 

heightened duty because “the insurer controls the disposition of 

claims against its insured” and “[t]he insured is wholly dependent 

upon the insurer to see that, in dealing with claims by third parties, 

the insured’s best interests are protected.”8 Beck v. Farmers Ins. Exch., 

701 P.2d 795, 799 (Utah 1985). A failure to uphold this duty 

constitutes bad faith. See id. at 799–800.

_____________________________________________________________

8 The relationship between the insurer and its insured is 

“fundamentally different” for third-party and first-party insurers. 

Beck v. Farmers Ins. Exch., 701 P.2d 795, 799 (Utah 1985) (citing Lyon v. 

Hartford Accident & Indem. Co., 480 P.2d 739, 745 (Utah 1971)). “[T]he 

insured and the insurer are, in effect and practically speaking, 

adversaries” in the first-party context. Beck, 701 P.2d at 799 (quoting 

Lyon, 480 P.2d at 745). In the first-party context, the insurer’s duty of 

good faith is entirely based on the contract between the insurer and 

the insured. Beck, 701 P.2d at 800. First-party insurers do not have a 

fiduciary duty toward the insured. Id. at 799-800.
UMIA INSURANCE, INC v. SALTZ

Opinion of the Court

14

¶45 Our case law sets forth a number of specific duties that are 

inherent in the duty to act in good faith. Among those obligations 

are duties to: act “promptly and reasonably” in accepting or rejecting 

the insured’s claim for coverage, defend the insured, “diligently 

investigate” the claims against the insured, “fairly and reasonably” 

evaluate the claims against the insured, and “fairly and reasonably” 

settle the claims against the insured. U.S. Fidelity v. U.S. Sports 

Specialty, 2012 UT 3, ¶ 20, 270 P.3d 464; Kay, 487 P.2d at 855; Black v. 

Allstate Ins. Co., 2004 UT 66, ¶ 20, 100 P.3d 1163. Saltz presented

evidence suggesting that UMIA fell short on several of these

grounds.

¶46 The first category of evidence went to the requirement that 

insurers act “promptly and reasonably” in accepting or rejecting an

insured’s claim of coverage. U.S. Fidelity, 2012 UT 3, ¶ 20. UMIA and 

Saltz both agreed that UMIA delayed eight years in questioning 

Saltz’s coverage. And evidence of such delay is a sufficient basis for 

a jury to conclude that UMIA neglected to act “promptly and 

reasonably” in accepting or rejecting Saltz’s claim of coverage. See id.

¶47 The second category of evidence went to the duty to “fairly 

and reasonably” settle claims against the insured. Black, 2004 UT 66, 

¶ 20. Our court of appeals has said that an insurer has “a duty to 

accept an offer of settlement within the policy limits when there is a 

substantial likelihood of a judgment being rendered against the 

insured in excess of those limits.” Campbell v. State Farm Mut. Auto. 

Ins. Co., 840 P.2d 130, 138 (Utah Ct. App. 1992) (citation omitted). 

And we agree. An insurer’s duty of good faith does not require the

insurer to ignore its own interests in defense of the insured. See

Ammerman, 430 P.2d at 579 (stating that an insurer is not required “to 

accept any offer below the policy limits, regardless of circumstances, 

and however questionable the issues of liability and damage may 

be”). But an insurer cannot “gamble with or sacrifice the insured’s 

interest simply to protect itself.” Id. Attempting to balance these two 

considerations, we hold that an insurer has a duty to accept a 

settlement offer at or below policy limits if there is a substantial 

likelihood of an excess verdict.

¶48 Saltz presented sufficient evidence that UMIA breached the

duty to settle under these standards. Saltz’s UMIA policy had a 

coverage limit of $1,000,000, and Judge made several offers within 

those limits. Supra ¶¶ 4, 9, 12. Yet UMIA refused all of Judge’s 

settlement offers. At trial, Saltz presented evidence that could 

support a jury verdict that UMIA did so in bad faith. An RBMN 

attorney testified that there was “a potential” for “an excess verdict” 
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Opinion of the Court

15

and stated that he “told UMIA on multiple occasions before the June 

2017 mediation that [he was] concerned about a verdict in excess of 

policy limits.” The RBMN attorney also expressed the opinion that 

there was a “pretty good chance” the jury “would be incensed and 

inflamed” on Judge’s behalf. And this made him “concerned that it 

could result in a very large verdict [for Judge].” This is a sufficient 

basis for the jury to find that UMIA failed to “fairly and reasonably” 

settle the claims against Saltz. See Black, 2004 UT 66, ¶ 20.

¶49 Either of these grounds alone would be adequate to affirm 

the jury’s verdict. Together they are more than sufficient. We affirm 

the denial of UMIA’s motion on that basis.

2. Jury Instructions on Breach of the Duty of Good Faith

¶50 As discussed above, an insurer must fulfill specific 

obligations to satisfy its duty to act in good faith toward the insured:

a duty to act “promptly and reasonably” in accepting or rejecting the 

insured’s claim for coverage; a duty to defend; a duty to “diligently 

investigate” the claims against the insured; a duty to “fairly and 

reasonably” evaluate the claims; and a duty to “fairly and 

reasonably” settle those claims. Supra ¶ 45. The jury instructions on 

good faith were based on these duties.

¶51 UMIA claims that there was error in all six of the jury 

instructions on good faith. The instructions state:

1. The insurer will diligently investigate the facts to 

enable it to determine whether the insured’s claim is 

covered under the policy.

2. The insurer will fairly evaluate the insured’s claim.

3. The insurer will thereafter act promptly and 

reasonably in either rejecting or finding the policy 

covers the insured’s claim, which includes the duty to 

act reasonably in reserving its rights.

4. The insurer will not retaliate against the insured for 

exercising his or her rights under the law.

5. The insurer will settle the case against its insured 

when it receives a settlement offer within policy limits 

if there is a substantial likelihood of judgment in excess 

of policy limits.

6. The insurer will guard the best interests of the 

insured as zealously as it would its own, meaning that 
UMIA INSURANCE, INC v. SALTZ

Opinion of the Court

16

the insurer cannot gamble with or sacrifice the 

insured’s interest simply to protect itself.

¶52 UMIA raises various objections to these instructions. It

asserts that the first four set out duties that apply to first-party (not

third-party) insurers and contends that the fifth instruction 

improperly defines the duty to settle. UMIA also objects to the sixth 

instruction, contending that it does not articulate a separate duty but 

is simply a general restatement of the duty of good faith.

¶53 We conclude that instructions one and two were erroneous 

in stating that UMIA had a duty to “diligently investigate” and 

“fairly evaluate” the “insured’s claim.” These are duties of firstparty, not third-party insurers.9 A third-party insurer’s duties are 

related to “the disposition of claims [by third parties] against its 

insured.” Beck, 701 P.2d at 799; supra ¶ 18 n.3. The instructions 

should have said that UMIA needed to “diligently investigate” and 

“fairly evaluate” the “claims against the insured.” See supra ¶ 51. The 

instructions, as given, were accordingly in error.

¶54 We nonetheless affirm because the errors in these 

instructions were minor and technical and were unlikely to have 

affected the jury’s verdict. We reach that conclusion for two reasons.

¶55 First, in this case, investigating and evaluating “the insured’s 

claim” is effectively the same as investigation and evaluating the 

“claims against the insured.” Saltz’s claim was that the Judge 

Lawsuit was covered by his insurance. So diligently investigating 

and fairly evaluating Saltz’s claim for coverage necessarily involves 

diligently investigating and fairly evaluating Judge’s claims against 

Saltz (the “claims against the insured”).

¶56 Second, most of the evidence Saltz presented at trial centered 

on other obligations owed under the duty of good faith. As UMIA 

acknowledges in its briefing, the “central focus” of Saltz’s evidence 

was on UMIA’s alleged failure to settle, not its duty to evaluate and 

investigate. So not only was the error slight, but it is unlikely to have 

affected the jury’s decision about the main argument made by Saltz 

at trial.

_____________________________________________________________

9 See Beck, 701 P.2d at 801 (citations omitted) (holding that the 

duty of good faith requires a first-party insurer to “diligently 

investigate the facts to enable it to determine whether a claim is 

valid” and “fairly evaluate the claim” made by the insured).
Cite as: 2022 UT 21

Opinion of the Court

17

¶57 We affirm on this basis. We hold that the technical errors in 

instructions one and two were harmless, as they do not “undermine 

[our] confidence in the verdict.” SIRQ, Inc., 2016 UT 30, ¶ 32

(alteration in original) (citation and internal quotation marks

omitted).

¶58 Regarding the third jury instruction, Utah law requires both 

first- and third-party insurers to act “promptly and reasonably” in 

accepting or rejecting the insured’s claim for coverage. Supra ¶ 45.

The jury instruction follows the language of our case law. It is not in 

error.

¶59 As to the fourth jury instruction, UMIA is right that we have 

not previously held that the duty of good faith encompasses a 

principle of non-retaliation. But we see no basis for concluding that 

the instruction was in error. The duty of good faith requires the 

insurer to “be as zealous in protecting the interests of its insured as it 

would in looking after its own.” Ammerman, 430 P.2d at 579 

(citations omitted). And it seems clear that an insurer is not zealously 

protecting an insured’s interests if it retaliates against the insured.

¶60 We also uphold the fifth jury instruction. This instruction 

was correct in light of our above conclusion that an insurer has a 

duty to accept a settlement offer at or below policy limits if there is a 

substantial likelihood of an excess verdict. Supra ¶ 47.

¶61 Regarding the final jury instruction, the duty of good faith 

broadly requires that an insurer must “be as zealous in protecting 

the interests of its insured as it would in looking after its own.”

Ammerman, 430 P.2d at 579. This instruction could have been 

expanded upon—in setting forth specific obligations stemming from 

the duty of good faith. But the instruction as given was not 

inaccurate. At most, it made a redundant statement of the duty of 

good faith. And such a statement does not “undermine [our] 

confidence in the verdict.” SIRQ, Inc., 2016 UT 30, ¶ 32 (alteration in 

original) (citation and internal quotation marks omitted).

¶62 We affirm the district court’s denial of UMIA’s motion for a 

new trial. While jury instructions one and two were erroneous, the 

error was not serious enough to “undermine [our] confidence in the 

verdict.” Id. Instructions three, four, and five were proper. And 

instruction six, while redundant, was harmless.

D. Evidence of June 2017 Settlement Talks

¶63 Prior to trial, UMIA moved to exclude evidence of its actions 

during the June 2017 settlement talks. On appeal, UMIA asks for a 

new trial on the ground that this evidence—which it asserts was 
UMIA INSURANCE, INC v. SALTZ

Opinion of the Court

18

prejudicial to its case—was barred under the plain language of Utah 

Rule of Evidence 408. This rule deems settlement offers and 

negotiations inadmissible “to prove or disprove liability for or the 

validity or amount of a disputed claim.” UTAH R. EVID. 408(a). The

district court rejected this argument. Since “UMIA [was] not seeking 

to preclude evidence of its prior offers in the Judge Lawsuit and . . . 

intend[ed] to introduce evidence regarding those prior offers,” the 

district court held that rule 408 did not apply. Supra ¶ 17. In so 

doing, the district court effectively found that UMIA had “opened 

the door”10 to consideration of this category of evidence.11

¶64 We affirm on the ground that UMIA failed to carry its 

burden of persuasion on appeal. Under our appellate rules and case 

law, UMIA had the burden to “explain, with reasoned analysis 

supported by citations to legal authority and the record, why the 

[appellant] should prevail on appeal.” UTAH R. APP. PROC. 24(a)(8); 

see State v. Nielsen, 2014 UT 10, ¶ 41, 326 P.3d 645 (appellants bear the 

“burden of persuasion”). To carry this burden, UMIA was obliged to 

engage with and respond to the grounds for the decision it is 

challenging on appeal.12 And UMIA failed to carry this burden—by 

_____________________________________________________________

10 The idea of “opening the door” is “an evidentiary principle” 

that “allows the admission of otherwise inadmissible testimony to 

‘qualify, explain, or limit’ testimony or evidence previously 

admitted.” Rodriguez v. State, 753 So.2d 29, 42 (Fla. 2000) (citations 

omitted). This concept is “based on considerations of fairness and 

the truth-seeking function of a trial.” Id. (citation and internal 

quotation marks omitted).

11 The district court also stated that “[rule] 408 does not apply 

when a party is seeking to introduce evidence of offers . . . [that are] 

not [] offered to show . . . liability.” UMIA contends that the district 

court incorrectly concluded that its actions were being offered to 

show only bad faith and not liability. It argues that rule 408 excludes 

the admission of its actions on the ground that they were also 

“designed” to settle UMIA’s liability on the claim for breach of the 

duty of good faith. But even if rule 408 applies, UMIA’s actions 

could still be admissible under the “opening the door” exception. 

And UMIA failed to address that question in its briefing on appeal.

12 Matter of Discipline of La Jeunesse, 2018 UT 6, ¶¶ 27, 32, 416 P.3d 

1122 (holding that the appellant has the “burden to identify the 

grounds for the district court’s decision that it is challenging on 

appeal” and must argue why it should prevail with “reasoned 

(continued . . .)
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Opinion of the Court

19

merely asserting that the plain language of rule 408 barred the 

evidence—and neglecting to adequately address the door-opening 

exception that formed a key basis of the district court’s ruling. We 

decline to order a new trial on that ground.

E. Punitive Damages

¶65 UMIA also moved to dismiss Saltz’s request for punitive 

damages on summary judgment. The district court granted the 

motion, holding that there was “not sufficient evidence in the 

record” to meet the standard for such an award. We review a 

decision on summary judgment “for correctness, granting no 

deference to the [trial] court’s conclusions, and we view the facts and 

all reasonable inferences in the light most favorable to the 

nonmoving party.” Bodell Constr. Co. v. Robbins, 2009 UT 52, ¶ 16, 215 

P.3d 933 (citation omitted). “Summary judgment is appropriate if 

‘reasonable jurors, properly instructed, would be able to come to 

only one conclusion.’” Jones v. Mackey Price Thompson & Ostler, 2015 

UT 60, ¶ 27, 355 P.3d 1000 (quoting Clegg v. Wasatch Cnty., 2010 UT 5, 

¶ 15, 227 P.3d 1243). We reverse the district court’s dismissal of 

Saltz’s request for punitive damages under his claim for breach of 

the duty of good faith on the ground that a reasonable jury could 

conclude from the evidence that Saltz is entitled to an award of

punitive damages.

¶66 A jury may award punitive damages if it finds that “it [has 

been] established by clear and convincing evidence that the acts or 

omissions of the tortfeasor are the result of . . . conduct that 

manifests a knowing and reckless indifference toward, and a 

disregard of, the rights of others.” UTAH CODE § 78B-8-201(1)(a). The 

question then is whether “the facts and all reasonable inferences” 

drawn from them in Saltz’s favor could lead “reasonable jurors” to 

conclude that UMIA was knowingly and recklessly indifferent 

toward Saltz’s rights. See Jones, 2015 UT 60, ¶ 27 (citation omitted).

¶67 A reasonable jury could conclude that UMIA “manifest[ed] a 

knowing and reckless indifference toward, and a disregard of, 

[Saltz’s rights].” UTAH CODE § 78B-8-201(1)(a). The material facts at 

 

analysis supported by citations to legal authority and the record”); 

see also Arave v. Pineview W. Water Co., 2020 UT 67, ¶ 62, 477 P.3d

1239 (concluding that “[b]y failing to adequately analyze or argue” 

the ground on which we should rule in its favor, the appellant 

“fail[s] to meet its burden of persuasion and [] shift[s] the burden of 

research and argument to this court.” (citations omitted)).
UMIA INSURANCE, INC v. SALTZ

Opinion of the Court

20

issue on Saltz’s claim of a breach of the duty of good faith are 

undisputed. Both parties agree that Saltz clearly communicated his 

desire to settle the Judge Lawsuit and that UMIA delayed eight years 

in questioning coverage and filing a declaratory judgment action. 

They also agree that UMIA characterized Saltz’s request to settle at 

the policy limits as “threats” in internal communications. And both 

acknowledge that UMIA’s settlement offers dramatically decreased

after this request from Saltz—from $200,000 to $15,000. A reasonable 

jury could infer that UMIA’s sudden unwillingness to contribute 

meaningfully to settlement so close to trial was the product of 

reckless indifference toward Saltz’s rights as its insured. 

Accordingly, we reverse the district court’s dismissal of Saltz’s 

request for punitive damages and remand for further proceedings.

F. Attorney Fees on Appeal

¶68 Saltz asks that we award him the attorney fees he incurred in

this appeal. A party is entitled to reasonable attorney fees incurred 

on appeal if he was awarded attorney fees below, “preserve[d] the 

issue of attorney fees” on appeal, and prevails on the issue that 

served as the basis for the award. See Meadowbrook, LLC v. Flower, 959 

P.2d 115, 120 (Utah 1998); see also UTAH R. APP. PROC. 24(a)(9).

¶69 At trial, the jury awarded Saltz attorney fees under the 

express or implied terms of the insurance contract with UMIA, 

concluding that Saltz’s fees were a foreseeable consequence of 

UMIA’s breach of the implied covenant of good faith and fair 

dealing. See, e.g., Billings v. Union Bankers Ins. Co., 918 P.2d 461, 468 

(Utah 1996) (“Attorney fees may be recoverable as consequential 

damages flowing from an insurer’s breach of either the express or 

the implied terms of an insurance contract.” (citations omitted)). And 

the district court entered a judgment for Saltz that included 

$987,877.62 in attorney fees.

¶70 Because he was awarded fees below—and because we hold 

in Saltz’s favor on his claim for breach of the duty of good faith that 

was the basis for the award—Saltz is entitled to the reasonable 

attorney fees he incurred on appeal. We remand to the district court 

for further proceedings on the fee award.

III

¶71 We affirm the district court’s denial of UMIA’s renewed 

motion for judgment as a matter of law on Saltz’s promissory 

estoppel claim. A reasonable jury could have found that UMIA was 

estopped from denying coverage under Saltz’s policy because Saltz 

presented evidence that UMIA’s delay in reserving its rights 
Cite as: 2022 UT 21

Opinion of the Court

21

deprived him of opportunities to settle before the eventual 2017 

agreement with Judge. While the district court improperly dismissed 

Saltz’s corollary claim that UMIA had waived its right to disclaim 

coverage, we need not remand for further proceedings on that claim

since Saltz already established coverage via promissory estoppel.

¶72 We also affirm the district court’s denial of UMIA’s renewed 

motion for judgment as a matter of law on Saltz’s claim for breach of 

the duty of good faith. Saltz presented sufficient evidence of UMIA’s 

breach, and UMIA was not entitled to a new trial because any errors 

the district court made in the jury instructions were harmless. And 

we affirm the district court’s admission of evidence from the June 

2017 settlement talks because UMIA did not sufficiently brief the 

issue of whether UMIA opened the door to the evidence by 

admitting evidence from other settlement talks.

¶73 We reverse the district court’s dismissal of Saltz’s request for 

punitive damages. We do so on the ground that a reasonable jury 

could conclude from the evidence that UMIA was knowingly and 

recklessly indifferent toward, and disregarded, Saltz’s rights. Finally, 

we remand to the district court for further proceedings on Saltz’s 

request for punitive damages and the award of attorney fees he 

incurred on appeal.