1. The Honorable Russell W. Bench, Senior Judge, sat by special

assignment as authorized by law. See generally Utah Code Jud.

Admin. R. 11-201(6).

2014 UT App 197

_________________________________________________________

THE UTAH COURT OF APPEALS

E.J. SUTTON,

Plaintiff and Appellant,

v.

BOB MILES,

Defendant and Appellee.

Opinion

No. 20130297-CA

Filed August 14, 2014

Third District Court, Salt Lake Department

The Honorable Vernice S. Trease

No. 100914201

Karra J. Porter, Nathan R. White, John Edward

Hansen, and David S. Bridge, Attorneys

for Appellant

Julianne P. Blanch, Scott C. Powers, and Robert T.

Denny, Attorneys for Appellee

SENIOR JUDGE RUSSELL W. BENCH authored this Opinion, in

which JUDGE GREGORY K. ORME concurred. JUDGE J. FREDERIC

VOROS JR. concurred in the result, with opinion.1

BENCH, Senior Judge:

¶1 E.J. Sutton appeals the trial court’s grant of summary

judgment in favor of Bob Miles, which was based on its

determination that Miles was an agent or employee of Lowell
Sutton v. Miles

20130297-CA 2 2014 UT App 197

Construction Co. (Lowell) at the time of the accident from which

Sutton’s tort claims arise and was therefore immune from suit

pursuant to a release signed by Sutton in favor of Lowell (the

Release). We reverse and remand for further proceedings.

BACKGROUND

¶2 In 2007, Sutton was employed by R.W. Construction and

Miles was employed by Byer Excavating. Both companies were

subcontractors working on the construction of a new home in

Summit County. Although Sutton and Miles worked for different

companies, Sutton was the superintendent “in charge” at the work

site.

¶3 At the time Sutton and Miles were working on their site,

construction of another new home was taking place on an adjacent

lot. Lowell was the general contractor for the second home. On

August 1, 2007, Lowell received a load of rebar at its construction

site, and Lowell’s superintendent, Don Jones, asked Sutton if he

and Miles would assist with unloading the rebar. While moving a

load of rebar with his trackhoe, Miles accidentally dropped it on

Sutton, who was seriously injured.

¶4 Sutton initially filed suit against Byer Excavating, Lowell,

and James H. Diamond Concrete. See Sutton v. Byer Excavating, Inc.,

2012 UT App 28, 271 P.3d 169. While that litigation was still

ongoing, Sutton filed this separate suit against Miles.

¶5 In the first suit, Byer Excavating moved for summary

judgment on the ground that Miles was not acting in the course

and scope of his employment at the time of the accident. Id. ¶ 4.

The trial court granted Byer Excavating’s motion, and its decision

was upheld on appeal. Id. ¶ 1.

¶6 In August 2010, Lowell and James H. Diamond Concrete

reached a settlement with Sutton. Pursuant to the settlement,
Sutton v. Miles

20130297-CA 3 2014 UT App 197

Sutton signed the Release, discharging “Lowell Construction . . .

and all of [its] agents, employees, representatives, . . . and assigns,

from any and all claims and causes of action . . . arising out of, or

in any way connected with the incident of August 1, 2007.” The

parties then filed a stipulated motion to dismiss the claims against

Lowell and James H. Diamond Concrete.

¶7 Sutton continued to pursue his claims against Miles, and in

March 2011, Miles amended his answer to assert that the Release

barred Sutton’s claims against him. Miles then filed a motion for

summary judgment asserting that, as a matter of law, he was either

an agent, an employee, a representative, or an assign of Lowell at

the time of the incident and was therefore covered by the Release.

The trial court granted the motion for summary judgment,

determining that “while unloading the rebar for Lowell, Mr. Miles

became an agent and/or employee of Lowell.” Sutton appeals.

ISSUES AND STANDARDS OF REVIEW

¶8 Sutton asserts that genuine issues of fact exist regarding

whether Miles was an agent or an employee of Lowell at the time

of the accident and that the trial court therefore erred in

determining that Miles was “an agent and/or employee” of Lowell

as a matter of law. Summary judgment is appropriate where “there

is no genuine issue as to any material fact and . . . the moving party

is entitled to a judgment as a matter of law.” Utah R. Civ. P. 56(c).

“An appellate court reviews a trial court’s legal conclusions and

ultimate grant or denial of summary judgment for correctness and

views the facts and all reasonable inferences drawn therefrom in

the light most favorable to the nonmoving party.” Orvis v. Johnson,

2008 UT 2, ¶ 6, 177 P.3d 600 (citations and internal quotation marks

omitted).

¶9 Miles asserts that even if he was not an agent or an

employee of Lowell, he could be considered either an assign or a

representative as a matter of law and that we should therefore
Sutton v. Miles

20130297-CA 4 2014 UT App 197

affirm the trial court’s summary judgment ruling on alternative

grounds. “We may affirm a grant of summary judgment upon any

ground apparent in the record.” Park v. Stanford, 2011 UT 41, ¶ 27,

258 P.3d 566 (citation and internal quotation marks omitted).

ANALYSIS

I. Disputed Issues of Fact on Whether Miles Was Lowell’s Agent

¶10 In order for an agency relationship to arise, three elements

must exist: (1) the principal must manifest its intent that the agent

act on its behalf, (2) the agent must consent to so act, and (3) both

parties must understand that the agent is subject to the principal’s

control. WardleyCorp. v. Welsh, 962 P.2d 86, 89 (Utah Ct. App. 1998).

Sutton asserts that none of these elements can be established as a

matter of law. We agree with the trial court that the first element

was established as a matter of law, but we agree with Sutton that

disputed issues of fact relating to the second and third elements

preclude summary judgment.

¶11 “A principal’s manifestation of assent to an agency

relationship may be informal, implicit, and nonspecific.”

Restatement (Third) of Agency § 1.01 cmt. d (2006). It is undisputed

that Jones asked Sutton to enlist Miles to assist him in unloading

the rebar or, in other words, to act for the benefit of Lowell. This

was a sufficient manifestation of intent to satisfy the first element

of the agency test. The only argument Sutton raises in support of

his assertion that Lowell did not manifest its intent for Miles to act

on its behalf is a policy argument: he maintains that one cannot

manifest an intent for another to act on his behalf merely by asking

for a favor because then vicarious liability would arise any time

someone agreed to do a favor for someone else. As Sutton puts it,

Someone who asks a friend to pick up his drycleaning would be vicariously liable if the friend

struck a pedestrian in the parking lot. Someone who
Sutton v. Miles

20130297-CA 5 2014 UT App 197

asks a dinner guest to pass a cup of coffee would be

vicariously liable if the guest negligently spilled the

hot liquid on a fellow guest.

But this argument ignores the third element of agency: that both

parties must understand that the agent is subject to the principal’s

control. Wardley, 962 P.2d at 89. The existence of this element

precludes the widespread application of vicarious liability in the

manner outlined by Sutton.

¶12 With respect to the second element, disputed facts exist

regarding whether Miles manifested his intent to act on behalf of

Lowell. Miles’s testimony indicates that he did not want to help

unload the rebar but did so at the request of Sutton, whom Miles

considered to be his boss. Miles never spoke to Jones and testified

that the reason he went to the Lowell site to unload the rebar was

because his supervisor, Sutton, told him to. This evidence could

lead a factfinder to conclude that there was no “meeting of the

minds” between Lowell and Miles regarding Miles’s assent to act

as Lowell’s agent, see id., and that Miles instead believed that he

was acting under the direction of Sutton, who was his supervisor

for the project he was hired to work on.

¶13 Likewise, there were disputed facts regarding whether Miles

was subject to Lowell’s control. The control element focuses on

whether the principal “controls, or has the right [to] control, the

manner in which the operations are to be carried out,” Mallory v.

Brigham Young Univ., 2014 UT 27, ¶ 21 (alteration in original)

(emphasis added) (citation and internal quotation marks omitted);

“if the control extends only to the result to be achieved, the actor is

regarded as an independent contractor,” Foster v. Steed, 432 P.2d 60,

62 (Utah 1967) (emphasis added). The right-of-control test

considers several factors, none of which is “completely

controlling”: (1) the existence of covenants or agreements

“concerning the right of direction and control over the [agent],” (2)

whether the principal has “the right to hire and fire” the agent, (3)

“the method of payment (i.e., wages versus payment for a
Sutton v. Miles

2. This right-of-control test is most frequently used in the context

of determining whether an individual is an employee or an

independent contractor for purposes of the Workers’

Compensation Act, but the right-of-control concept is derived from

agency law. See Glover ex rel. Dyson v. Boy Scouts of Am., 923 P.2d

1383, 1385 (Utah 1996).

20130297-CA 6 2014 UT App 197

completed job or project),” (4) who furnishes the equipment, (5)

“the intent of the parties,” and (6) “the business of the employer.”2

Glover ex rel. Dyson v. Boy Scouts of Am., 923 P.2d 1383, 1385–86

(Utah 1996) (citation and internal quotation marks omitted).

¶14 The trial court’s list of undisputed facts includes that “the

unloading of the rebar by Mr. Sutton and Mr. Miles was at the

direction of Lowell” and that “Lowell was in charge of and

oversaw the work being done in relation to unloading the rebar

that Mr. Miles and Mr. Sutton were helping with.” However,

Sutton continually disputed these facts in his opposition to Miles’s

motion for summary judgment, citing deposition testimony

indicating that Miles furnished the equipment used for the

unloading, that Lowell did not provide any instructions to Sutton

or Miles regarding how the unloading was to be performed, that

Sutton determined the methods for unloading without input or

opposition from Lowell, that Lowell deferred to Sutton’s expertise,

and that the individuals working on the project considered Sutton

to be in charge.

¶15 Miles testified that he considered Sutton to be in charge of

the unloading. Three additional witnesses, including Miles’s own

expert, also testified that Sutton was in charge of the unloading.

Although Jones testified that Lowell was in charge of the unloading

operation and that Sutton and Miles “became part of [his]

operation” by helping him unload the rebar, he also testified that

he did not give any direction to Sutton or Miles as to how the

unloading should be accomplished, that he never spoke to Miles at

all, and that he was surprised by and even disagreed with some of

the unloading methods Sutton used but nevertheless deferred to
Sutton v. Miles

20130297-CA 7 2014 UT App 197

Sutton’s knowledge and skill because “he had no doubt in his mind

[that Sutton had] the abilities to . . . undertake [the] task.” Both

Miles and Sutton confirmed that they had no discussion with Jones

as to how the unloading was to be done. Furthermore, there

appears to have been no specific agreement as to whether Lowell

had the right to control Miles, and the evidence indicates that Miles

was not paid for his work and that he used his own equipment to

unload the rebar. This evidence raises genuine issues of fact as to

whether Lowell had the right to control the manner in which the

unloading of the rebar was to be accomplished. See Mallory, 2014

UT 27, ¶ 21. This factual dispute precludes summary judgment on

the question of whether Miles was an agent of Lowell.

II. Disputed Issues of Fact on Whether Miles Was Lowell’s

Employee

¶16 Sutton raises two arguments in contesting the trial court’s

determination that Miles was Lowell’s employee. First, he asserts

that the term “employee,” as used in the Release, is ambiguous and

that the ambiguity precludes summary judgment. See generally

R&R Energies v. Mother Earth Indus., Inc., 936 P.2d 1068, 1074 (Utah

1997) (“[A] motion for summary judgment may not be granted if

a legal conclusion is reached that an ambiguity exists in the contract

and there is a factual issue as to what the parties intended.”

(citation and internal quotation marks omitted)). Second, he asserts

that even if “employee” is unambiguous, disputed issues of fact

should have precluded the trial court from determining, as a matter

of law, that Miles was Lowell’s employee.

A. The Term “Employee” Is Unambiguous.

¶17 Sutton asserts that the term “employee,” as used in the

Release, is both facially and latently ambiguous. We disagree with

both contentions.
Sutton v. Miles

20130297-CA 8 2014 UT App 197

¶18 Contract language is facially ambiguous if it is “capable of

more than one reasonable interpretation because of uncertain

meanings of terms, missing terms, or other facial deficiencies.”

SME Indus., Inc. v. Thompson, Ventulett, Stainback & Assocs., Inc.,

2001 UT 54, ¶ 14, 28 P.3d 669 (citation and internal quotation marks

omitted). Sutton argues that “employee” is facially ambiguous

because there are three possible reasonable interpretations of the

term: (1) someone who is paid for his work, (2) someone who

works pursuant to a contract for hire, and (3) someone over whom

the principal has the right of control.

¶19 We disagree with Sutton’s argument that there are three

different ways to interpret the Release’s use of the term

“employee.” An employee is “[a] person who works in the service

of another person (the employer) under an express or implied

contract of hire, under which the employer has the right to control

the details of work performance.” Black’s Law Dictionary 602 (9th

ed. 2009). Thus, Sutton’s separate “definitions” are actually all

factors that “should be considered in determining whether an

employer–employee relationship exists.” See Stamper v. Johnson,

2010 UT 26, ¶ 20, 232 P.3d 514 (identifying wages, contract of hire,

and right of control as elements of an employer–employee

relationship); see also Glover ex rel. Dyson v. Boy Scouts of Am., 923

P.2d 1383, 1385–86 (Utah 1996) (identifying agreements between

the parties and method of payment as elements relevant to the

right-of-control analysis). We therefore determine that the term

“employee,” as used in the Release, is not facially ambiguous and

should be interpreted according to its general meaning.

¶20 Sutton further argues that there is latent ambiguity in the

Release’s use of the term “employee” because extrinsic evidence

suggests that the parties to the Release did not intend for it to

protect Miles. “A latent ambiguity is one which appear[s] only as

the result of extrinsic or collateral evidence showing that a word,

thought to have but one meaning, actually has two or more

meanings,” State v. Davis, 2011 UT App 74, ¶ 4, 272 P.3d 745
Sutton v. Miles

3. We do observe, however, that it does not appear that the parties

to the Release intended for Miles to be subject to the Release. Miles

asserted at oral argument that Sutton had the burden of explicitly

reserving his claims against Miles in the Release in order to avoid

having the release construed as releasing Miles. This position is

inconsistent with Utah law, which requires specificity regarding the

parties to be released and reverses the common law rule presuming

that a release of one tortfeasor releases all other tortfeasors as well.

See Utah Code Ann. § 78B-5-822 (LexisNexis 2012) (“A release

givenby a person seeking recovery to one or more defendants does

not discharge any other defendant unless the release so provides.”);

Child v. Newsom, 892 P.2d 9, 11–12 (Utah 1995) (construing section

78B-5-822 to require “some degree of specificity” in describing the

defendants to be released and determining that boilerplate

language releasing “all other persons, firms and corporations” was

(continued...)

20130297-CA 9 2014 UT App 197

(alteration in original) (citation and internal quotation marks

omitted), and appears only “in the exceptional case,” 32A C.J.S.

Evidence § 1514 (2008).

¶21 Sutton argues that Lowell’s attempt to apportion fault to

Miles, Lowell’s explicit mention of Jones but not Miles in the

Release, the fact that Sutton did not assert a vicarious liability claim

against Lowell, the fact that Miles was not discussed during the

Release’s negotiation, and Miles’s lack of involvement in the

negotiation indicate that the parties intended to exclude Miles from

the definition of employee. However, the fact that the parties may

not have anticipated that Miles would fall within the definition of

employee as used in the Release does not mean that they intended

employee to mean “any employee except for Miles.” We agree with

Miles that Sutton’s argument is simply an attempt “to use extrinsic

evidence to jump over the ambiguity portion of the analysis and

proceed directly to determining the parties’ intent with extrinsic

evidence.” Accordingly, we reject Sutton’s assertion that the term

“employee,” as used in the Release, contains a latent ambiguity.3
Sutton v. Miles

3. (...continued)

not sufficiently specific to effectuate a release (internal quotation

marks omitted)). Given that Miles was the primary tortfeasor, had

the parties intended to include him in the Release it is likely that he

would have been mentioned by name, particularly in light of the

fact that Jones was mentioned by name. Thus, if anything, the fact

that Miles was not mentioned by name favors Sutton’s position that

the parties intended to exclude him.

20130297-CA 10 2014 UT App 197

B. Whether Miles Was Lowell’s Employee Cannot Be

Determined as a Matter of Law.

¶22 Nevertheless, we agree with Sutton that disputed issues of

fact preclude summary judgment on the question of whether Miles

was Lowell’s employee. The test for determining whether an

individual is an employee is derived from agency law and focuses

on the employer’s right to control the employee. Glover, 923 P.2d at

1385–86 (“[W]hether an employer–employee relationship exists

depends upon the employer’s right to control the employee.”

(citation and internal quotation marks omitted)). The factors

relevant to this right-of-control test are the same as those relevant

to the right-of-control element in the agency context. See supra¶ 13.

As discussed, supra ¶¶ 13–15, disputed issues of fact exist with

respect to whether Lowell had the right to control the manner in

which Miles accomplished the unloading of the rebar. Thus, the

trial court erred by determining, as a matter of law, that Miles was

Lowell’s employee.

III. Alternative Argument that Miles Was a Representative or

Assign of Lowell

¶23 Miles asserts that even if we reverse the trial court’s

determination that he was an employee or agent of Lowell as a

matter of law, we should affirm the trial court’s summary

judgment ruling on alternative grounds, namely, that Miles was a
Sutton v. Miles

20130297-CA 11 2014 UT App 197

representative or assign of Lowell. We agree with Sutton that Miles

does not necessarily fall into either of these categories.

¶24 The ordinary meaning of the term “representative” is

“[o]ne who stands for or acts on behalf of another,” Black’s

Law Dictionary 1416 (9th ed. 2009), “especially through

delegated authority,” Merriam–Webster, http://www.merriamwebster.com/dictionary/representative (last visited July 23, 2014);

see also Black’s Law Dictionary 235 (explaining that one who acts in

a “representative capacity” often does so “through delegated

authority”). Generally, as Miles acknowledged in his memorandum

to the trial court, the terms “representative” and “agent” are used

synonymously. See Kenny v. George A. Fuller Co., 450 N.Y.S.2d 551,

557 (N.Y. App. Div. 1982) (indicating that the terms “agent” and

“representative” are “synonymous” (internal quotation marks

omitted)); Texas Power & Light Co. v. Adamson, 203 S.W.2d 275, 276

(Tex. Civ. App. 1947) (determining, in interpreting a Texas statute,

that “the terms ‘agency’ and ‘representative’ are interchangeable”);

Black’s Law Dictionary 1416 (referring the reader to the term “agent”

and cases falling under “Principal and Agent” headnotes in

defining “representative”); id. at 72 (defining “agent” as “a

representative”). Thus, for the same reason disputed issues of fact

exist as to whether Miles was Lowell’s agent, they also exist as to

whether he was Lowell’s representative.

¶25 The ordinary meaning of the term “assign” is “[o]ne to

whom property rights or powers are transferred by another.”

Black’s Law Dictionary 135–36. There are no facts, disputed or

otherwise, suggesting that Lowell transferred property rights to

Miles, and there is therefore no basis for determining that Miles

was an “assign” of Lowell.

¶26 Miles nevertheless urges us to adopt broader definitions of

the terms “representative” and “assign” that would permit us to

determine that he was a representative of Lowell because he

“serv[ed] Lowell in moving the rebar” and that he was an assign of
Sutton v. Miles

20130297-CA 12 2014 UT App 197

Lowell because he was “assigned” the task of unloading the rebar.

Miles asserts that broad definitions are justified because the Release

was drafted so as to intentionally include anyone connected with

Lowell. This argument is similar to Sutton’s argument that the term

“employee” contains a latent ambiguity because of the parties’

intent in drafting the Release and is likewise without merit.

Therefore, we cannot affirm the trial court’s summary judgment

ruling on the alternative grounds suggested by Miles.

CONCLUSION

¶27 We determine that disputed issues of fact exist as to whether

Miles manifested an intent to act for Lowell and whether Lowell

had the right to control the manner in which Miles unloaded the

rebar. These disputed issues of fact should have precluded the trial

court from determining, as a matter of law, that Miles was Lowell’s

agent. We also determine that the terms employee, representative,

and assign are unambiguous; that disputed issues of fact preclude

summary judgment on the issues of whether Miles was Lowell’s

employee and whether he was Lowell’s representative; and that

Miles cannot be considered an assign of Lowell. We reverse the

trial court’s summary judgment ruling and remand for further

proceedings.

VOROS, Judge (concurring):

¶28 I concur with the majority opinion that the trial court erred

in granting summary judgment. However, in my view the

summary judgment should be reversed not because disputed issues

of fact exist as to Miles’s intent or Lowell’s control, but because the

Release does not as a matter oflaw identifyMiles with the requisite

specificity.
Sutton v. Miles

20130297-CA 13 2014 UT App 197

¶29 This appeal concerns the enforceability of a release. Under

the superseded common law rule, “a release of one tort-feasor also

released all other tort-feasors.” Child v. Newsom, 892 P.2d 9, 12

(Utah 1995). While Utah statutory law once followed this rule, our

current statute reverses it: “A release given by a person seeking

recovery to one or more defendants does not discharge any other

defendant unless the release so provides.” Utah Code Ann.

§ 78B-5-822 (LexisNexis 2008).

¶30 In Child v. Newsom our supreme court construed the phrase

“unless the release so provides.” 892 P.2d at 11–12. The Child case

arose from a traffic accident in which one car hit another. A

passenger in the latter car died. Her father brought wrongful-death

actions against both drivers. He settledthe claim against one driver

and that driver’s insurance carrier. The release named that driver,

the insurance carrier, and all agents and employees of the

insurance carrier, “together with all other persons, firms and

corporations.” Id. at 9–10. The second driver moved for summary

judgment on the ground that, as a member of the class of “all other

persons, firms and corporations,” she too was released from

liability. Id. at 10.

¶31 That the second driver fell within the class of “all other

persons, firms and corporations” could hardly be disputed. Yet the

supreme courtruled that underthe release statute, that release did

not cover her. Id. at 11–12. The court explained that because the

statute prescribes that a release given to one defendant does not

discharge any others “unless the release so provides,” Utah Code

Ann. § 78B-5-822, that phrase “must be construed narrowly as

requiring some degree of specificity,” Child, 892 P.2d at 11. The

court adopted the analysis reached by numerous other states with

similar or identical statutes that have “unequivocally held” that

general release language such as “all other persons, firms and

corporations” does not encompass “persons not specifically named,

described, or specifically identified therein.” Id. at 12 (collecting

cases). Consequently, pursuant to the release statute, “a release
Sutton v. Miles

20130297-CA 14 2014 UT App 197

must contain language either naming the defendant or identifying

the defendant with some degree of specificity in order to discharge

that defendant from liability.” Id.

¶32 The release before us fails this test as to Miles. The release

names Lowell Construction, Lowell’s construction superintendant

Don Jones, and its insurance carrier—described as “Releasees”

—together with “all of their agents, employees, representatives,

parent companies, insurers, subsidiaries, affiliates, related entities,

owners, successors, and assigns.” Miles, an employee of Byer

Excavating, was the principal tortfeasor, the person actually

handling the rebar that Sutton alleges fell on him—the person, in

short, who in Sutton’s view acted negligently. Yet the Release does

not name Miles. Given this omission, I cannot agree that the

Release identifies him with “some degree of specificity.” Id.

¶33 Admittedly, the phrase “some degree of specificity” itself

lacks specificity. Presumably our supreme court incorporated

flexibility into the rule so that it could be adapted to the

circumstance presented. I believe the rule requires sufficient

specificity to demonstrate an actual intent to release the unnamed

defendant. Under this standard, the Release’s general reference to

Lowell Construction’s employees, agents, and assigns probably

does reflect an intent to release office workers at company

headquarters who had no involvement in the rebar incident. But a

generalized reference to Lowell’s agents, employees, assigns, and

so forth cannot, in my view, be reasonably read to reflect an intent

to release Miles. First of all, Sutton alleges that Miles personally

committed the tortious act. Parties intending to release the

principal tortfeasor would not likely identify him merely as an

employee, agent, or assign of Lowell—especially since no evidence

shows that Miles was on Lowell’s payroll, that he received

compensation from Lowell, that he considered himself a Lowell

employee on the day in question, or that he had a business

relationship of any description with Lowell before or after the

incident. A drafter actually intending to identify Miles with “some
Sutton v. Miles

20130297-CA 15 2014 UT App 197

degree of specificity” would not name Jones but hope that Miles

fell within a generic category populated with Lowell employees

unrelated to the incident.

¶34 I do not disagree with the majority’s discussion of agents,

employees, representatives, and assigns. But in my view, even if

under a careful reading of Utah law Miles fit within one of these

categories, I would nevertheless hold as a matter of law that the

Release did not identify him with the specificity required by section

78B-5-822 and Child.