This opinion is subject to revision before final publication in the Pacific Reporter.

201 5 UT 57

IN T HE 

## S UPREME 

## C OURT OF THE 

## S TATE OF 

## U TAH

——————— R OBERT E RVAN Z ELLER and T ERRI Z ELLER , Appellees

,

v.
C HARLOTTE N IXON , Appellant

.

———————

No. 20130775 Filed July 21 , 2015

——————— First District , Logan Dep’t The Honorable Glen R. Dawson No. 120100210

——————— Attorneys: Matthew R. Feller, Mark K. Carlson, Brian L. Hansen, for appellee
R. Phil Ivie, Dallas B. Young, Provo, for appellant

——————— A SSOCIATE C HIEF J USTICE L EE authored the opinion of the Court, in which C HIEF J USTICE D URRANT , J USTICE D URHAM , J USTICE P ARRISH , and J USTICE H IMONAS joined.

——————— A SSOCIATE C HIEF J USTICE L EE : opinion of the Court:
¶1 This is a personal injury action arising out of an automobile accident. The accident occurred when Charlotte Nixo n crossed the center line on 200 East near 900 North in Logan. Her car collided with a vehicle driven by Robert Zeller

. Robert and his wife Terri filed a complaint against Ms. Nixon alleging claims for neg ligence and loss of consortium.

¶2 The Zellers submitt ed their claims for arbitration under Utah Code section 31A

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- 321. In so doing, they accepted certain statutory limits on their damages. See U TAH C ODE § 31A

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- 321(3) (barring punitive damages for a claim submitted to arbitration under this provision); id . § 31A

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- 321(2)(a) (providing that the plaintiff “is limited to an arbitration award that does not exceedZ ELLER v

. N IXON Opinion of the Court
$50,000 in addition to any available personal injury protection benefits and any claim for property damage”). But they also opted in to a system ( ar bitration) that is thought to be quicker and less expensive than full

- blown litigation. See id. § 31A

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- 321(5)(b) (r equiring discovery under this provision to “be completed within 150 days after the date arbitration is elected”).

¶3 To facilitate the orderly disposition of claims, section 321 prescribes the terms for opting in to arbitration under this prov ision. It states that “[a] person injured as a result of a motor vehicle accident may elect to submit all third party bodily injury claims to arbitration b y filing a notice of the submission of the claim to binding arbitration in a district court .” Id. § 31A

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- 321(1). And it also provides that the election of arbitration stands unless a notice of rescission is filed “within : (i) 90 days after the election to arb itrate; and (ii) no less than 30 days before any scheduled arbitr ation hearing.” Id. § 31A

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- 321(4)(a).

¶4 The Zellers did not file a notice of rescission within 90 days of electing arbitration. Beyond the 90

- day rescis sion period, ho wever, they moved to amend their complaint in a manner aimed (at least in part) at avoiding arbitration. The motion sought to add a claim for negligent entrustment against Nixon & Nixon, Inc., based on an allegation that the vehicle driven b y Ms. Nixon was owned by that entity and had been entrusted to her despite kno wing she had a history of strokes. In addition, the motion sought to undo the election of arbitration for the claims against Ms. Nixon.

¶5 In support of their motion, the Zellers id entified new i nformation that they had uncovered after the close of the statutory rescission period. That information came to light in part in initial disclosures provided by Ms. Nixon under Utah R ule of Civ il Pr ocedure 26 ( a )

. Ms. Nixon’s disclosures indic ated that she had had a history of strokes, and also that the vehicle she was driving was owned by Nixon & Nixon, thus providing a basis for the claim for negligent entrustment. Another development came about around the same time: Robert Zeller received a recommendation from a surgeon that he undergo a neurosurgical procedure involving his spine. That information prompted the Zellers to seek to avoid the damages cap for claims in arbitration under section 321.

¶6 Ms. Nixon opposed the motion to amend. She als o filed a motion to compel arbitration. The district court granted the fo r2Cite as: 2015 UT 57 Opinion of the Court

mer motion and denied the latter . In so doing, the court acknow ledged that the Zellers’ motion threatened to circumvent the ele ction and rescission terms of section 321. But it uphel d the Zellers’ right to amend on the basis of the finding that the “motive to ci rcumvent the rescission deadline” was not the “driving factor” for the amendment. And it concluded that the Zellers “were justified” in seeking the amendment because Ms. Nixon’s initial disclosures had been “untimely” and she would not be “substantially prej udiced” by the amendment.

¶7 In denying the motion to compel arbitration, the court found no tension between Utah Code section 31A

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- 321 and Utah R ule of Civ il P rocedure 15. A lthough the statute expressly limits a plaintiff’s right to rescind the election of arbitration to a 90

- day period, the court deemed that limitation not to extend to claims asserted in an amended complaint. So the court found the standards set forth in rule 15 to control. And because it found a basis for an amendment under rule 15, the court denied the m otion to compel arbitration

— freeing the Zellers of the statutory li m itations on their claims against Ms. Nixon and also allowing their claims to proce ed against Nixon & Nixon.

¶8 This appeal followed. Ms. Nixon alleges two sets of errors in the district court’s decision granting the motion to amend and denying the motion to compel arbitration. First, Ms. Nixon cha llenges the decision to allow the Zellers to undo their election of arbitration as to their claims against her

. Second, she also cha llenges the decision to allow the Zellers to add claims against Ni xon & Nixon. As to both sets of claims, Ms. Nixon relies on the ele c tion and rescission terms of Ut ah Code section 31A

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- 321. She asserts that the election of arbitration for “third party bodily injury claims” under sub section 321(1) extends to all related claims, and that the election becomes final if not rescinded within 90 days under sub section 321( 4).

¶9 We reverse in part (as to the claims against Ms. Nix on) and affirm in part (as to the claims against Nixon & Nixon). Unlike the district court, we see evident conflict between section 321 and rule 15. The statute provides a single path for rescission of a plaintiff’s election of arbitration. Under sub section 321(4), “[a] per son who has elected arbitration under this section may rescind the person’s election” by one means only

— by filing a notice of rescissio n “within: (i) 90 days after the election to arbitrate; and (ii) no less

3Z ELLER v

. N IXON Opinion of the Court
than 30 days before any scheduled arbitration hearing.” U TAH C ODE § 31A

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- 321(4) (a)

. The express statement of this single path for rescission is an evident exclusion of any other. Se e 2A N ORMAN J. S INGER & J.D. S HAMBIE S INGER , S UTHERLAND ON S TATUTES AND S TATUTORY C ONSTRUCTION § 47:23 ( 7th ed. 2007) ( “When a statute limits a thing to be done in a particular mode, it includes the neg ative of any other mode.” (internal quotation marks om itted) ). If an election of arbitration may be rescinded only by the filing of a n otice of rescission within 90 days, then such election may not be undone by the subsequent filing of a motion to amend the co mplaint. 1

¶10 The significance of the timing and fina lity of election and
rescission are evident on the face of section 321. A personal injury case that proceeds by arbitration is fast

- tracked. Discovery must be “completed within 150 days after the date arbitration is elected . . . or the date the answer is filed, whichever is longer.” U TAH C O DE § 31A

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- 321(5)(b). Thereafter, the case is submitted to the arbitrator, id . § 31A

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- 321(6), unless it is first resolved by the court on a dispositive motion, id . § 31A

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- 321(9)(d). This fast track makes it necessary to limit rescission. The 90

- day re scission period is of obvious importance to the proper functioning of the statutory scheme.

¶11 We interpret the statute to foreclose the use of rule 1 5 to circumvent the 90

- day rescission period. If that period could be circumvented by a simple motion to amen d the complaint against the same party named in the original pleading, the statutory r e1 At oral argument, counsel for the Zellers sought to resist this conclusion by citing a distinction between the mechanism of r escission under section 321 and the process of amendment under rule 15

— by noting that the former is automatic, while the latter

re quires leave of court upon a showing that “justice so requires.” See U TAH R. C IV

. P. 15( a) (setting forth discretionary standard for amending complaint after service of responsive pleading). Pe rhaps that suggests that rule 15(a) is not a complete end

- run

a round

— or not a perfect substitute for

— rescission under section 321. But that is insufficient. Statutory rescission is the only avail able mechanism for undoing an election of arbitration under se ction 321. Rule 15 is not a viable mechanism for a second bite at the apple.

4Cite as: 2015 UT 57 Opinion of the Court

scission period would be significantly undermined . We reverse the district court’s decision as to the Zellers’ claims against Ms. Nixon on that basis. The Zellers electe d arbitration as to their “third party bodily injury claims” against Ms. Nixon under su bsection 321(1), and they failed to file a notice of rescission within 90 days.

¶12 The Zellers’ motive for filing a motion to amend is irrel evant under the statute. They ap pear to have acquired a good faith basis for second

- guessing their original election of arbitration. The information that came to light after the rescission period ended would apparently justify a change of heart as to the wisdom of proceeding in arbitrati on (and subjecting themselves to the stat utory cap on damages). But that is irrelevant under the statute. The statutory timeframes are clear and straightforward. A claimant’s election of arbitration stands after the rescission period runs

— whether or not th e reason for the about

- face is understandable.

¶13 That conclusion does not extend to the Zellers’ claim s against Nixon & Nixon, however. Th e s e are new claim s against a new party. Such claims could have been asserted in a new co mplaint in a separate action. Our joinder rules allow such a claim to be joined or consolidated with related claims in a pen d ing case. See, e.g.
, U TAH R. C IV

. P

. 18(a) (plaintiff “may” join “as many cl aims either l egal or equitable or both as he may have ag ainst an opposing pa r ty”) ; U TAH R. C IV

. P. 20 ( a) ( “All persons may be joined in one action as defendants” if causes of action arise “out of the same transaction [or] occurrence” and there is “any question of law or fact common to all of them

. ”)

. But those rules do not ty pically require such joinder. Krejci v. City of Saratoga Springs , 2013 UT 74, ¶ 15, 322 P.3d 662 (“[T]he joinder decision is generally permissive. Parties are generally free to litigate in a piecemeal fashion if they so choose[,] [absent] a motion for joinder of a ne cessary party.

. . .” (citation omitted)). And because the Zellers’ claim s against Nixon & Nixon could have been filed as a new complaint in an entirely separate case, we see no basis for dee ming them to be encompassed within the election of arbitration as to their claims against Ms. Nixon.

¶14 Ms. Nixon claims to find such a basis in the terms of su bsection 321(1). Because that provision states that “[a] person i njured as a result of a motor vehicle accident may elect to submit all th ird party bodily injury claims to arbitration,” U TAH C ODE § 31A

5Z ELLER v

. N IXON Opinion of the Court

22

- 321(1) (emphasis added), Ms. Nixon asserts that all of the Zellers’ claims arising out of the automobile accident in question are encompassed within the election of arbitration as to the cl aims against her . [AB

. 12] We read the statute differently. We view it as permissive

— as broadening the plaintiff’s right to press in arbitr ation all claims amounting to “third party bodily injury claims.”

¶15 N othing in the terms or structure of this provision suggests the further implication advanced by Ms. Nixon

— of extending an election of arbitration for claims asserted against one defendant to sweep in related claims that could later be asserted against a s econd defendant

. The statutory permission to seek a rbitration for “all” bodily injury claims is not a requirement to encompass any related claims once arbitration is elected as to one defendant; it is simply an indication that the statute does not limit the types of bodily injury claims that may be arbitra ted. And, given the longstanding right of a plaintiff to assert separate claims against multiple defendants separately, see supra ¶ 13, we construe the election of arbitration in section 321 to be limited to the defen dant(s) named in the complaint at the t ime the election is made.

¶16 We affirm the district court’s decision as to the Zellers’ claim against Nixon & Nixon on that basis. Nixon & Nixon was not a named defendant at the time of the Zellers’ initial election of arbitration. The Zellers’ earlier electi on of arbitration as to their claim against Ms. Nixon accordingly did not encompass their su bsequent claim against the corporation. For that reason there was no error in allowing the claims against Nixon & Nixon to proceed in regular litigation outside of the arbitration process set forth in section 321.

¶17 Nor was there error in allowing such claims to be added as an amendment to the existing complaint. Perhaps i n some arbitr ation proceedings, the court is d ivested of jurisdiction while arb itration is pending. But that is not the case for arbitration under section 321. As noted above, the district court retains jurisdiction during discovery and even for dispositive motions. U TAH C ODE § 31A

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- 321(9)(c), (d). So when this amendment was sought, the district court still had jurisdiction, and thus a basis for allowing the Nixon & Nixon claim to be added to this case (albeit outside the arbitration election as to the claims against Ms. Nixon).

6Cite as: 2015 UT 57 Opinion of the Court

¶18 For these reasons we reverse the district court as to the Zellers’ claims against Ms. Nixon. Those claims are irretrievably subject to arbitration given the Zellers’ failure to rescind their ele ction of arbitration within 90 days. And we affirm the district court as to the Zel lers’ claims against Nixon & Nixon, albeit on a ground different from that identified below.

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