This opinion is subjec1t to revision before final

publication in the Pacific Reporter

2015 UT 81

IN THE

SUPREME COURT OF THE STATE OF UTAH

JENNA R. HELF,

Appellant,

v.

CHEVRON U.S.A. INC,

Appellee.

No. 20130700

Filed September 4, 2015

Third District, Salt Lake

The Honorable Anthony B. Quinn

No. 030901338

Attorneys:

Troy L. Booher, Clemens A. Landau, Noella A. Sudbury,

Salt Lake City,

Edward P. Moriarity, Bradley L. Booke, Shandar S. Badaruddin,

Missoula MT, for appellant

John A. Anderson, Jill M. Pohlman, Jason W. Crowell,

Timothy M. Considine, Salt Lake City, for appellee

JUSTICE DURHAM authored the opinion of the Court in which

CHIEF JUSTICE DURRANT, JUSTICE PARRISH, and JUDGE TOOMEY joined.

JUSTICE LEE filed a dissenting opinion.

Having recused himself, JUSTICE HIMONAS does not participate 

herein; COURT OF APPEALS JUDGE KATE A. TOOMEY sat.

JUSTICE DURHAM, opinion of the Court:

INTRODUCTION

¶1 Jenna Helf worked at an oil refinery operated by Chevron 

U.S.A. Inc. Her supervisor instructed her to add sulfuric acid to an 

open-air pit containing waste products from the refinery and she 

was injured by a poisonous gas produced by the resulting chemical 

reaction. Ms. Helf obtained workers‘ compensation benefits for her 

injuries. She then sued Chevron, alleging it was liable for an 
HELF v. CHEVRON

Opinion of the Court

2

intentional tort because her supervisors knew that she would be 

injured when her immediate supervisor instructed her to add 

sulfuric acid to the pit.

¶2 Chevron moved for summary judgment, arguing that 

(1) Ms. Helf had not produced evidence that Chevron‘s managers 

knew or expected that Helf would be injured when her supervisor 

told her to add sulfuric acid to the pit and (2) Ms. Helf could not 

prevail as a matter of law because her election to obtain workers‘ 

compensation benefits for her injury barred her from seeking a tort 

remedy. The district court concluded that the election of remedies 

doctrine did not bar her suit. But the court agreed with Chevron that 

Ms. Helf failed to produce evidence that would support a conclusion 

that one of Chevron‘s mangers has the requisite knowledge or intent 

to support an intentional tort claim. The district court therefore 

granted summary judgment.

¶3 Ms. Helf now appeals, arguing that summary judgment 

was not appropriate. Chevron also purports to cross-appeal from the 

district court‘s ruling that the election of remedies doctrine does not 

bar Ms. Helf‘s tort claim.

¶4 We hold that the district court erred by granting summary 

judgment. Ms. Helf produced evidence that when a worker added 

sulfuric acid to the pit earlier that same day, a chemical reaction 

produced a poisonous gas that triggered emergency alarms located 

150 feet from the pit and made workers in other areas of the refinery 

sick. There is a dispute of material fact precluding summary 

judgment because a reasonable jury could conclude that at least one 

of Chevron‘s managers knew that Ms. Helf would be injured when 

her supervisor instructed her to initiate this same process.

¶5 We also hold that the district court correctly ruled that the 

election of remedies doctrine does not bar her lawsuit. We agree 

with other courts that have held that workers are not required to 

choose between accepting workers‘ compensation benefits and an 

intentional tort claim.

¶6 We therefore reverse the district court‘s summary 

judgment ruling and remand for further proceedings consistent with 

this opinion.

BACKGROUND

¶7 Chevron operates an oil refinery near Salt Lake City. The 

refinery contains a concrete-lined, open-air pit that is used to process 

various liquid and solid waste products from the refinery. One of the 

liquid waste products collected in the pit is mildly acidic steam 
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Opinion of the Court

3

condensate from the refining process, which continuously flows into 

the pit. Before the pit is emptied, workers ensure that the pH level of 

the contents of the pit falls within an acceptable range. If the pH 

level of the pit is too high, workers add sulfuric acid to the pit by 

opening a valve. To mix the sulfuric acid with the contents of the pit, 

workers open another valve that forces compressed air below the 

surface and roils the pit. This process lowers the pH level of the 

contents of the pit and is called ―neutralizing the pit‖ by refinery 

workers. Once the pH level is acceptable, the contents of the pit are 

then pumped into anther storage facility for further processing. 

¶8 In December 1998, managers debated how to dispose of 

high-pH sludge that had accumulated in one of the tanks used by the 

refinery. They ultimately decided to transfer the caustic sludge to the 

open-air pit and lower the pH level by adding sulfuric acid. Some 

managers, however, expressed doubts as to whether this plan was 

appropriate. 

¶9 In January 1999, Chevron managers put their plan into 

effect. Neither the pit operator, who had five years of experience, nor 

the day-shift supervisor, who had worked at the refinery for a much 

longer period of time, had ever observed the pit being used to 

process that type of caustic sludge. When the pit operator and the 

day-shift supervisor found out about the plan to process the sludge 

in the pit, both of them thought that it was not a ―good idea.‖ 

Despite their misgivings, someone directed workers to dump the 

sludge into the pit.

¶10 The day-shift supervisor instructed the pit operator to 

neutralize the contents of the pit. The operator partially opened the 

compressed-air valve in order to create a ―small air roll‖ in the pit, 

limiting the speed with which the chemicals in the pit would mix 

together. The pit operator then opened the valve that released 

sulfuric acid into the pit. Because of the operator‘s years of 

experience, he immediately moved away from the pit and stood 

upwind in order to avoid breathing fumes caused by the 

neutralization process. He had also learned from experience to hold 

his breath when approaching the pit to turn off the sulfuric acid 

valve in order to avoid breathing toxic fumes.

¶11 The sulfuric acid interacted with sulfides contained in the 

sludge to create a cloud of hydrogen sulfide gas. Hydrogen sulfide is 

heavier than air and highly toxic. It causes illness, damage to internal 

organs, convulsions, coma, or death, depending on the level of 

exposure. The hydrogen sulfide gas traveled downwind and 

triggered an emergency alarm when it reached sensors designed to 

detect the gas located about 150 feet from the pit. Due to the alarm, 
HELF v. CHEVRON

Opinion of the Court

4

the day-shift supervisor directed the pit operator to stop the flow of 

sulfuric acid into the pit.

¶12 The hydrogen sulfide gas drifted downwind towards 

other sections of the refinery. Workers throughout the refinery 

complained of the ―rotten-egg‖ smell associated with the gas. 

Several workers also became ill, complaining of headaches, 

dizziness, and nausea—symptoms associated with lower-level 

exposure to hydrogen sulfide. At least one employee who worked in 

the administration building, which was located over 1,000 feet from 

the open-air pit, got sick. Chevron managers evacuated the 

administration building and sent the employees home for the day.

¶13 Chevron managers knew that the hydrogen sulfide release 

was caused by adding sulfuric acid to the contents of the open-air 

pit. The managers concluded that the neutralization process should 

cease until they had completed an evaluation of the situation. By the 

end of the day shift, the evaluation had not been completed. But 

because the pit could not be emptied and liquid condensate from the 

refining process continued to flow into the pit throughout the day, it 

was almost overflowing when the night-shift began.

¶14 The day-shift supervisor met with the night-shift 

supervisor prior to the shift change. He informed the night-shift 

supervisor of the events that had transpired because of the 

neutralization process in the open-air pit, including the fact that 

alarms had sounded and that workers in the refinery became ill. The 

day-shift supervisor expressed concern about adding additional 

sulfuric acid to the pit during the night shift. He testified that the 

hydrogen sulfide release was a dangerous event and that the nightshift supervisor ―should have had a clear expectation not to 

continue‖ the neutralization process.

¶15 During the shift change, the day-shift pit operator also told 

the night-shift pit operator, Ms. Helf, about the events that had 

transpired that day. He told Ms. Helf to call the night-shift 

supervisor before she did any work on the pit to make sure that it 

was authorized. Ms. Helf followed this advice and called the nightshift supervisor to inquire whether she should neutralize the 

contents of the pit. He told her to neutralize the pit. Ms. Helf asked 

again whether the night-shift manager was sure that she should add 

sulfuric acid to the pit and he confirmed that she should do so.

¶16 Pursuant to this instruction, Ms. Helf opened both the 

compressed air valve and the valve that released sulfuric acid in the 

pit. As had happened earlier during the day shift, the sulfuric acid 

reacted violently with the sludge that had been dumped in the pit, 
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5

releasing hydrogen sulfide gas. But unlike the experienced day-shift 

operator who stood upwind from the pit, Ms. Helf, who was a new 

three-month trainee, did not take such a precaution. Instead, 

Ms. Helf walked along the perimeter of the pit from the south side to 

the east side. While she was walking along the eastern edge of the 

pit, she was ―hit‖ by a cloud of toxic vapors from the pit that 

enveloped her. Ms. Helf‘s throat and chest seized and she fell to her 

knees. She then crawled to the north side of the pit and vomited. She 

believes that she lost consciousness at some point, but her memories

of her exposure to the concentrated cloud of hydrogen sulfide gas 

are hazy and indistinct. As Ms. Helf was recovering, she received a 

radio call from the central control office instructing her to turn off 

the compressed air roiling the pit because hydrogen sulfide gas was 

making workers in other areas of the refinery sick, and she complied.

¶17 Ms. Helf suffered permanent injuries caused by her 

exposure to concentrated hydrogen sulfide gas. She has a seizure 

disorder and problems with memory and coordination. Ms. Helf can 

no longer drive and activities such as cooking and taking a bath can 

be dangerous because of the potential for a seizure.

¶18 Ms. Helf applied for and received workers‘ compensation 

benefits for her injuries. Ms. Helf then filed a lawsuit against 

Chevron in January 2003. Chevron moved to dismiss the lawsuit, 

arguing that the exclusive remedy provision of the Workers‘ 

Compensation Act barred the suit. See UTAH CODE § 34A-2-105(1). 

The district court dismissed the lawsuit and Ms. Helf appealed.

¶19 This court reversed the district court. We held that the 

exclusive remedy provision does not bar a civil lawsuit where the 

employer knew or expected that a worker would be injured. Helf v. 

Chevron U.S.A., Inc., 2009 UT 11, ¶ 43, 203 P.3d 962. We further 

concluded that because Ms. Helf‘s complaint alleged that Chevron‘s 

managers knew that prior efforts to neutralize the contents of the pit 

had resulted in poisonous gases that set off safety alarms and caused 

workers far away from the pit to become ill, a reasonable jury could 

conclude that the managers knew or expected that Ms. Helf would 

be injured when she reinitiated the same process. Id. ¶¶ 44–46.

¶20 After the case was remanded and the parties had 

conducted discovery, Chevron moved for summary judgment, 

arguing that (1) Ms. Helf had not produced evidence that Chevron‘s 

managers knew or expected that Helf would be injured and that 

(2) the lawsuit was barred by the doctrine of election of remedies 

because Ms. Helf had chosen to accept workers‘ compensation 

benefits for her injuries. The district court rejected Chevron‘s election 

of remedies argument, but it granted summary judgment in favor of 
HELF v. CHEVRON

Opinion of the Court

6

Chevron because it found that Ms. Helf had failed to produce 

evidence that would create a dispute of material fact as to whether a 

Chevron manager knew or expected that Ms. Helf would be injured 

when she neutralized the pit.

¶21 Ms. Helf appealed from the summary judgment against 

her. Chevron also filed a notice of appeal in which it purported to 

cross-appeal from the portion of the judgment that rejected its 

election of remedies argument. In the briefing on the appeal and 

cross-appeal the parties have raised two main issues: (1) whether 

there was a dispute of material fact that would preclude summary 

judgment and (2) whether the election of remedies doctrine bars 

Ms. Helf‘s lawsuit

ANALYSIS

I. SUMMARY JUDGMENT

¶22 Workers may not sue their employers for injuries caused 

by on-the-job accidents. The exclusive remedy for work-related 

accidents is the workers‘ compensation scheme, which was created 

by the legislature to distribute benefits to injured workers. UTAH 

CODE § 34A-2-105(1). A worker, however, may sue an employer for 

injuries caused by an intentional tort. Helf v. Chevron U.S.A., Inc., 

2009 UT 11, ¶ 18, 203 P.3d 962.

¶23 In order to prevail in a civil lawsuit, therefore, a worker 

must prove that an agent of the employer intentionally caused the 

worker‘s injury. In other words, the worker must show that the 

employer‘s agent had ―a specific mental state in which the [agent]

knew or expected that injury would be the consequence of his 

action.‖ Id. ¶ 43. This mental state can be proven either (1) with 

evidence that the agent ―desired the consequences of his actions‖ or 

(2) with evidence that the agent acted with the knowledge that ―the 

consequences were virtually certain to result‖ Id.

¶24 Ms. Helf does not allege that anyone at Chevron 

maliciously desired to injure her. Instead, she alleges that her 

supervisors knew that an injury was virtually certain to occur when 

they either directed or allowed her to neutralize the contents of the 

open-air pit. Chevron asserted in its motion for summary judgment 

that Ms. Helf had not produced evidence creating a dispute of fact as 

to whether a Chevron manager acted with this knowledge. 

¶25 In order to decide whether the district court erred when it 

agreed with Chevron and granted summary judgment in its favor, 

we must answer three questions. First, we must decide precisely 

who at Chevron must have the required mental state in order for 
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Opinion of the Court

7

Ms. Helf to prevail. Second, we must evaluate whether the district 

court erred when it excluded evidence in ruling on the summary 

judgment motion. And third, we must determine whether the 

district court correctly decided that Ms. Helf failed to produce 

admissible evidence that could support the conclusion that one of 

her supervisors had the mental state required for an intentional tort 

claim. 

A. At Least One Individual with the Authority to Direct Ms. Helf’s 

Actions Must Have the Requisite Mental State in Order for

Ms. Helf to Prevail

¶26 Ms. Helf urged the district court to aggregate the 

knowledge of various Chevron employees to determine whether the 

requisite knowledge to support an intentional tort claim could be 

imputed to Chevron. The court rejected this collective knowledge 

theory and concluded that the expectation that an injury was 

virtually certain to occur had to be found in the mind of at least one 

individual. The district court further concluded that only the 

knowledge of the night-shift supervisor was relevant in this case 

because he was the Chevron manager who instructed Ms. Helf to 

perform the neutralization process. These two conclusions are legal 

determinations that we review de novo. See Daniels v. Gamma W. 

Brachytherapy, LLC, 2009 UT 66, ¶ 46, 221 P.3d 256 (interpretation of 

the common law reviewed for correctness).

¶27 We agree with the district court‘s first conclusion that 

Ms. Helf must produce evidence that at least one individual with the 

authority to direct her actions had the required knowledge or 

expectation that she would be injured. Although we have never 

addressed this question, other courts have held that the collective 

knowledge of multiple employees cannot ―establish the state of 

mind requisite to the commission of an intentional tort of a 

corporation.‖ Adams v. Nat’l Bank of Detroit, 508 N.W.2d 464, 469, 480 

(Mich. 1993). Put simply, ―intent to commit tortious acts cannot be 

imputed to a corporation on the basis of disconnected facts 

possessed by various employees or agents of that corporation, where 

there is no evidence that any employee possessed the requisite state 

of mind.‖ Id. at 480; accord Woodmont, Inc. v. Daniels, 274 F.2d 132, 137 

(10th Cir. 1959) (―[W]hile in some cases, a corporation may be held 

constructively responsible for the composite knowledge of all of its 

agents . . . we are unwilling to apply the rule to fix liability where, as 

here, intent is an essential ingredient of tort liability as for deceit.‖); 

see also Chaney v. Dreyfus Serv. Corp., 595 F.3d 219, 241 (5th Cir. 2010)

(―[A]s a general rule, where an essentially subjective state of mind is 

an element of a cause of action we have declined to allow this 
HELF v. CHEVRON

Opinion of the Court

8

element to be met by a corporation‘s collective knowledge, instead 

requiring that the state of mind actually exist in at least one 

individual . . . .‖ (internal quotation marks omitted)); First Equity 

Corp. of Fla. v. Standard & Poor’s Corp., 690 F. Supp. 256, 259–60 

(S.D.N.Y. 1988) (the collective knowledge of various employees may 

not be used to satisfy the scienter requirement of a fraud claim 

against a corporation).

¶28 Although it may be possible that the collective knowledge 

of the agents of a corporation may be relevant in other legal contexts, 

see RESTATEMENT (THIRD) OF AGENCY § 5.03 cmt. c (2006), we agree 

that for the purposes of proving that a corporation is liable for an 

intentional tort, a plaintiff must prove that at least one agent of the 

corporation had all of the requisite knowledge to support the claim. 

Inventing a corporate consciousness with the capacity to possess the 

state of mind necessary for an intentional tort is inconsistent with the 

principles of tort law. See Adams, 508 N.W.2d at 480. Therefore, the 

district court correctly concluded that at least one Chevron agent 

must have all of the knowledge necessary to support liability under 

an intentional tort theory.

¶29 The district court erred, however, in concluding that only 

the state of mind of Ms. Helf‘s direct supervisor could be relevant. If 

a more senior Chevron manger with the authority to direct 

Ms. Helf‘s actions knew or expected that workers would be injured 

during the neutralization process and either instructed the nightsupervisor to order a worker to neutralize the pit or knew that the 

routine neutralization process would occur absent the manager‘s 

order to halt the process, then the knowledge of the more senior 

manager would be sufficient to support an intentional tort claim. 

Employers are not shielded from liability if a manager with the 

knowledge that an injury is virtually certain to occur simply orders 

another manager without this knowledge to instruct a worker to 

perform the dangerous task. Furthermore, if a manager knows or 

expects that a routine task will result in injury because of changed 

conditions, an employer does not avoid liability if that manager

passively permits the worker‘s direct supervisor to instruct the 

worker to perform the task. Otherwise, employers would be 

encouraged to compartmentalize knowledge about dangerous 

conditions in order to insulate themselves from liability in situations 

where a more senior supervisor knows that an injury is virtually 

certain to occur but the direct supervisor does not have this 

knowledge.

¶30 Ms. Helf argued below and before this court that the 

knowledge of two of Chevron‘s senior managers was also relevant to 
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Opinion of the Court

9

the question of Chevron‘s liability. Ms. Helf produced evidence that 

both the area supervisor of the portion of the refinery where she 

worked and the emergency response team coordinator knew that 

reinitiating the neutralization process would be dangerous. The 

district court erred by not considering whether Ms. Helf produced 

sufficient evidence that either of these individuals (1) knew that an 

injury was virtually certain to occur if a worker neutralized the pit, 

(2) had the authority to halt the neutralization process or direct the 

pit operator‘s actions, and (3) either ordered the routine 

neutralization process to continue or knew that a worker would 

neutralize the pit during the night shift and failed to stop it or 

require additional safety precautions.

B. The Trial Court Erred When It Excluded Deposition Testimony

¶31 Before determining whether Ms. Helf should survive 

summary judgment because she produced evidence creating a 

dispute of material fact as to the elements of her claim against 

Chevron, we must first decide what evidence should have been 

considered by the district court. Specifically, we must determine 

whether the district court properly excluded portions of the 

deposition testimony of a union safety representative who 

investigated the accident. 

¶32 During discovery, a union safety representative for the 

refinery gave deposition testimony about his investigation of the 

accident. The safety representative testified that he interviewed the 

day-shift supervisor and that the day-shift supervisor said that he 

told the night-shift supervisor about the hydrogen sulfide release, 

including the fact that some of the workers at the refinery got sick:

[The day-shift supervisor] told [the night-shift 

supervisor] what they had tried, what had happened, 

the alarms that went off, people that got sick . . . . He 

just made him aware of what happened that day, that 

they got so many complaints of the odor, people 

getting sick and the alarms, that they shut it down.

This testimony is significant because it appears to be the only direct 

evidence that the day-shift supervisor informed the night-shift 

supervisor that the neutralization process made workers ill.

¶33 Chevron made no objection to this testimony during the 

deposition. But it later filed a written motion to strike this testimony, 

arguing that it was hearsay and that the declarant lacked personal 

knowledge. At the summary judgment hearing, the district court 

rejected Chevron‘s hearsay and lack of personal knowledge 
HELF v. CHEVRON

Opinion of the Court

10

arguments for excluding the testimony.1 But the court sua sponte 

excluded the testimony on the grounds that it lacked foundation and 

was nonresponsive to the question asked. Based upon its conclusion 

that Ms. Helf had not produced admissible evidence that the nightshift supervisor knew that workers had been sickened by the 

neutralization process during the day shift, the district court granted 

the motion for summary judgment.

¶34 Ms. Helf argues on appeal that the district court erred by 

excluding this testimony because Chevron waived any foundation or 

nonresponsiveness objection by failing to raise it during the 

deposition. Two provisions of the Utah Rules of Civil Procedure 

govern the waiver of objections to deposition testimony not raised 

during a deposition. We review the district court‘s interpretation of 

these rules de novo. See Pete v. Youngblood, 2006 UT App 303, ¶ 7, 141 

P.3d 629.

¶35 First, rule 32(c)(3)(A) provides that ―[o]bjections to . . . the 

competency, relevancy, or materiality of testimony are not waived 

by failure to make them before or during the taking of the 

deposition, unless the ground of the objection is one which might 

have been obviated or removed if presented at that time.‖ This rule 

applies to the foundation objection since it is an objection to the 

competency of the safety representative‘s testimony. A foundation 

objection is one of the types of objections to competency that is 

waived if not raised at the deposition because this objection can be 

―obviated or removed‖ by laying a foundation for the deponent‘s 

testimony. See Jordan v. Medley, 711 F.2d 211, 218 (D.C. Cir. 1983)

(interpreting the nearly identical federal rule and holding that 

―[w]hat the exception obviously envisions is a situation in which a 

timely objection (e.g., on the ground of failure to lay an adequate 

foundation) could have enabled the problem to be remedied‖ 

(citation omitted)); Strelecki v. Firemans Ins. Co. of Newark, 276 N.W.2d 

794, 799 (Wis. 1979) (interpreting the nearly identical Wisconsin rule 

and holding that ―objections which might be  ̳obviated or removed‘ 

. . . . include objections based on lack of foundation testimony‖).

¶36 Second, rule 32(c)(3)(B) states that ―[e]rrors and 

irregularities occurring at the oral examination . . . in the form of the 

questions or answers . . . and errors of any kind which might be 

obviated, removed, or cured if promptly presented are waived 

1 Chevron has not challenged the district court‘s ruling rejecting 

its hearsay and lack of personal knowledge objections to the 

deposition testimony. Therefore this ruling is not before us in this 

appeal.
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unless seasonable objection thereto is made at the taking of the 

deposition.‖ (Emphasis added). This provision applies to the district 

court‘s sua sponte objection that the deposition testimony was 

nonresponsive to the question asked.

¶37 Thus the plain language of rules 32(c)(3)(A) and (B) 

dictates that the foundation and nonresponsiveness objections raised 

by the district court were waived because the objections could have 

been cured during the deposition. The district court apparently 

recognized the waiver problem, but justified its sua sponte exclusion 

of the testimony because a Chevron attorney asked the question that 

elicited the allegedly objectionable testimony: ―Now, if it was not 

[Chevron‘s attorney] that was asking the questions and it would be –

– if it were the other side and it was his obligation to object, those 

objections may well have been waived by the failure to make them at 

the deposition.‖ The court, therefore, ruled that the foundation and 

nonresponsiveness objections were not waived because the party 

asking a deposition question has no obligation to raise an objection 

to a deponent‘s answer in order to avoid waiver of the objection.

¶38 The district court‘s ruling that the waiver rule did not 

apply was in error. Nothing in rule 32(c)(3)(A) or (B) indicates that 

the party posing a deposition question has no obligation to object to 

the deponent‘s answer in order to avoid waiver. Both rules speak in 

general terms and require waiver of certain types of objections if 

neither party asserts them during the deposition. 

¶39 Caselaw examining the nearly identical federal rule 

indicates that the waiver rule applies regardless of which party is 

questioning the deponent when an objectionable answer is given. In 

Kirschner v. Broadhead, an attorney for the plaintiff deposed a 

defendant, who gave objectionable answers that were unresponsive 

to the questions asked. See 671 F.2d 1034, 1038 (7th Cir. 1982). Even 

though the plaintiff‘s attorney did not object to this testimony at the 

deposition, the plaintiff successfully moved for the exclusion of the 

deposition testimony at a subsequent trial where the deponent was 

unavailable to testify. Id. The Seventh Circuit held that the exclusion 

of the deposition testimony was erroneous because any objection 

was waived when the attorney questioning the deponent neglected 

to object to the deponent‘s answers during the deposition on the 

ground that the answers were nonresponsive. Id. The court reasoned 

that if the plaintiff‘s attorney, who was questioning the deponent, 

had objected to the form of the deponent‘s responses, the deponent 

could have ―conformed his answers to the questions.‖ Id. ―The 

limited nature of such answers, in turn, would have alerted 

[defendants‘] counsel to develop omitted portions of the story on 
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12

cross-examination. Because [plaintiff‘s counsel] did not object, [the 

defendants] very properly considered [the deponent‘s] in depth 

narrative sufficient for their purposes and thus dispensed with 

questions of their own.‖ Id. 

¶40 The same logic applies to this case. Had Chevron objected 

to the safety representative‘s answer on the grounds raised by the 

district court (lack of foundation and nonresponsive to the question 

asked), Ms. Helf would have been alerted to the potential need to 

cure the objection by laying a foundation and asking appropriate 

questions to elicit the same testimony when it was her attorney‘s 

turn to cross-examine the witness. As noted above, both of these 

objections are the type of objections that can be cured if they had 

been presented at the deposition. Supra ¶¶ 35–36. But because 

Chevron did not object, Ms. Helf could justifiably rely on the rule 

that the safety representative‘s deposition testimony could not be 

excluded based upon a later objection that could have been 

remedied had it been raised during the deposition.2 If rules 

32(c)(3)(A) and (B) were not applied where the party asking the 

deposition questions fails to object to the answers, ―counsel would 

be encouraged to wait . . . before making any objections, with the 

hope that the testimony, although relevant, would be excluded 

altogether.‖ Kirschner, 671 F.2d at 1038 (internal quotation marks 

omitted). This is precisely the unjust result the waiver rule is 

designed to prevent.

¶41 In its appellate briefing, Chevron does not argue that the 

trial court‘s interpretation of rule 32(c)(3)(A) and (B) was correct. 

Instead, it argues that we should not review the district court‘s sua 

sponte ruling excluding the deposition testimony because Ms. Helf 

did not object to the ruling after the court announced it during the 

summary judgment hearing. The preservation rule, however, does 

not counsel against appellate review of the district court‘s order.

¶42 ―An issue is preserved for appeal when it has been 

presented to the district court in such a way that the court has an 

2 If the waiver rule did not apply where the attorney asking the 

deposition questions had cause to object to the deponent‘s answers 

but neglects to do so, the attorney for the opposing party would 

have to replicate the all of the deponent‘s answers on crossexamination or risk the exclusion of the deponent‘s testimony at a 

later date on an objection that was curable, but not raised during the 

deposition. Failing to apply rule 32(c)(3)(A) and (B) in this scenario 

would therefore lead to uncertainty, longer depositions, and 

increased litigation costs.
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13

opportunity to rule on [it].‖ Patterson v. Patterson, 2011 UT 68, ¶ 12,

266 P.3d 828 (alteration in original) (internal quotation marks 

omitted). The fundamental purpose of the preservation rule is to 

ensure that the district court had a chance to rule on an issue before 

an appellate court will address it. This rule promotes both judicial 

economy and fairness to the parties. Id. ¶¶ 15–16. Where a district 

court itself raises and then resolves an issue sua sponte, it obviously 

had an opportunity to rule on the issue. This satisfies the basic 

purpose of the preservation rule.3

¶43 Rule 103(a) of the Utah Rules of Evidence confirm that an 

objection to the district court‘s ruling excluding evidence was not 

required to preserve the issue for appeal. Rule 103(a) describes the 

requirements for preserving a claim of error to an evidentiary ruling, 

listing separate requirements for a ruling admitting evidence and a 

ruling excluding evidence. A claim of error regarding a ruling 

admitting evidence is preserved if a party (1) ―timely objects or 

moves to strike‖ and (2) ―states the specific ground, unless it was 

apparent from the context.‖ UTAH R. EVID. 103(a)(1). In order to 

preserve a claim of error regarding a ruling excluding evidence, 

however, a party need only ―inform[] the court of [the substance of 

the excluded evidence] by an offer of proof, unless the substance was 

apparent from the context.‖ UTAH R. EVID. 103(a)(2). No objection is 

needed to review a claimed error in excluding evidence. This 

comports with the underlying principles of the preservation rule 

because in order to exclude evidence, a district court must either 

sustain an objection raised by a party or raise an objection to the 

admission of the evidence sua sponte. In either situation the court 

must consider and rule on the issue.

¶44 Thus, because Ms. Helf seeks review of a ruling excluding 

evidence, and the substance of this evidence is apparent on the 

record, this issue is preserved for review. In reviewing this 

evidentiary ruling, we conclude that the district court erred by 

excluding a portion of the deposition testimony of the union safety 

representative because the objections raised by the court had been 

waived. We therefore consider this deposition testimony, including 

the assertion that the night-shift supervisor knew that the 

3 Indeed, we have noted that where one party raises an issue and 

induces the trial court to rule on it, the opposing party need not raise 

an objection in order to preserve the issue for appeal. Gressman v. 

State, 2013 UT 63, ¶ 45, 323 P.3d 998. There is no principled reason 

why there should be a different result where the court raises the 

issue of its own accord.
HELF v. CHEVRON

Opinion of the Court

14

neutralization process made workers ill, in considering whether 

summary judgment was appropriate.

C. There Is a Dispute of Material Fact as to Whether the Night-Shift 

Supervisor Knew or Expected that Ms. Helf Would Be Injured

¶45 Having resolved both the legal issue of who at Chevron 

must have the requisite state of mind to support an intentional tort 

claim and the evidentiary question of what proof of this state of 

mind was properly before the district court, we now turn to the 

question of whether summary judgment was proper here.

¶46 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). In 

determining whether there is a genuine issue of material fact, courts 

must ―view the facts and all reasonable inferences in the light most 

favorable to the nonmoving party.‖ Bodell Const. Co. v. Robbins, 2009 

UT 52, ¶ 16, 215 P.3d 933. ―We review [a] district court‘s summary 

judgment ruling for correctness, granting no deference to its legal 

conclusions, and consider whether it correctly concluded that no 

genuine issue of material fact existed.‖ Johnson v. Hermes Assocs., Ltd., 

2005 UT 82, ¶ 12, 128 P.3d 1151.

¶47 The district court granted summary judgment in favor of 

Chevron based upon its determination that Ms. Helf failed to 

produce evidence that would create a dispute of material fact as to 

whether the night-shift supervisor knew that an injury was virtually 

certain to occur when he ordered her to neutralize the pit. Thus the 

key issue in the summary judgment proceeding was the night-shift 

supervisor‘s knowledge regarding the consequences of his order.4

Absent an admission from the night-shift supervisor that he knew an 

injury would result—a concession he did not make in his deposition 

and, indeed, a concession we expect to be rare in these types of 

cases—this knowledge can only be inferred from the surrounding 

circumstances.5 The question here, therefore, is this: viewing the 

4 As noted above, Ms. Helf also argued that Chevron‘s liability 

could also be based on the knowledge of two other managers. Supra

¶ 30. Because the proceedings in the district court and the briefing 

before this court focused on the evidence related to the night-shift 

supervisor‘s knowledge, we first examine the evidence of his 

knowledge.

5 See State v. Lamm, 606 P.2d 229, 235 (Utah 1980) (Maughan, J., 

dissenting) (―This Court has repeatedly recognized the basic concept 

that criminal intent is rarely susceptible to direct proof and usually 

must be inferred from the facts and circumstances of the incident.‖); 
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Opinion of the Court

15

evidence of the facts known by the night-shift supervisor in the light 

most favorable to Ms. Helf, could a reasonable jury infer that the 

supervisor also knew that an injury was virtually certain to result 

from his command to neutralize the pit?6

¶48 Taken in the light most favorable to Ms. Helf, the evidence 

and all reasonable inferences drawn from it would support a jury 

conclusion that the night-shift supervisor knew that adding sulfuric 

acid to the pit would release dangerous quantities of hydrogen 

sulfide gas. He was told that during the day shift the neutralization 

process had triggered sensors designed to detect dangerous levels of 

hydrogen sulfide gas that were located 150 feet from the pit and that 

emergency alarms had sounded. He was also told that hydrogen 

sulfide gas from the neutralization process caused workers in other 

areas of the refinery to become ill. The day-shift supervisor 

expressed his concern about adding sulfuric acid to the pit to the 

night-shift supervisor. The day-shift supervisor further testified that 

the hydrogen sulfide release was a dangerous event and that the 

night-shift supervisor ―should have had a clear expectation not to 

continue‖ the neutralization process.

¶49 Given this evidence of the night-shift supervisor‘s 

knowledge, a reasonable jury could infer that he also knew or 

expected that an injury would occur when he told Ms. Helf to 

neutralize the pit. The night-shift supervisor knew that the same 

 

Selvage v. J.J. Johnson & Assocs., 910 P.2d 1252, 1262 n.9 (Utah Ct. App. 

1996) (citing a case observing that ―intent can rarely be established 

directly, and therefore circumstantial evidence must be examined as 

to the circumstances surrounding the transactions in question‖); 

Alexander v. Bozeman Motors, Inc., 234 P.3d 880, 887 (Mont. 2010) 

(examining a worker‘s intentional tort claim against an employer 

and noting that ―[b]ecause it is seldom subject to direct proof, intent 

must be inferred‖ from surrounding circumstances (internal 

quotation marks omitted)).

6 In order for the injury to be intentional, the night-shift 

supervisor did not have to anticipate the extent or exact nature of 

Ms. Helf‘s actual injury. ―As long as some sort of injury was 

intended or expected, the actual injury suffered is not accidental 

even if the actual injury differs in nature or degree from what might 

have been reasonably anticipated.‖ N.M. ex rel. Caleb v. Daniel E., 

2008 UT 1, ¶ 12, 175 P.3d 566. So long as the supervisor knew that 

some ―nontrivial injury‖ was virtually certain to occur when he 

directed Ms. Helf to neutralize the pit, the resulting injury is 

intentional. See id.
HELF v. CHEVRON

Opinion of the Court

16

neutralization process had caused emergency alarms to sound and 

made workers in other areas of the refinery to become sick during 

the day shift. A jury could conclude that since hydrogen sulfide gas 

triggered sensors located 150 feet from the pit and made distant 

workers ill, the night-shift supervisor knew that Ms. Helf, who was 

working right next to the pit, would be injured. 

¶50 We indicated as much the last time this case appeared 

before us. We held in Helf that allegations in the complaint that the 

day-shift neutralization process had triggered safety alarms and 

caused workers in other areas of the refinery to become ill were 

sufficient to survive a motion to dismiss. 2009 UT 11, ¶¶ 44–46. 

These allegations ―could convince a reasonable jury that [Ms. Helf‘s]

injuries were the expected result of re-initiating the neutralization 

process.‖ Id. ¶ 46. Because Ms. Helf produced evidence to 

substantiate these key allegations, we hold that Ms. Helf‘s lawsuit 

survives Chevron‘s motion for summary judgment.

¶51 Other courts have held that similar facts raised a jury 

question as to whether a worker‘s supervisor knew that an order 

would cause an injury, rejecting motions for summary judgment 

brought by the employer. Gulden v. Crown Zellerbach Corp., 890 F.2d 

195, 197 (9th Cir. 1989) (reversing summary judgment on a worker‘s 

intentional tort claim where there was evidence that a supervisor 

ordered the worker‘s contact with a toxic substance); O’Brien v. 

Ottawa Silica Co., 656 F. Supp. 610, 611 (E.D. Mich. 1987) (refusing to 

grant summary judgment where the employer‘s doctors discovered 

evidence of respiratory disease but the employer did not inform the 

worker of this evidence or take precautions to avoid further 

inhalation of asbestos); Suarez v. Dickmont Plastics Corp., 639 A.2d 

507, 512–13 (Conn. 1994) (reversing summary judgment where the 

worker was ordered to clean a machine without shutting it down); 

Kachadoorian v. Great Lakes Steel Corp., 424 N.W.2d 34, 36–37 (Mich. 

Ct. App. 1988) (reversing summary disposition where a supervisor 

ordered a worker to drive a machine under a vessel that frequently 

spilled molten steel); Kielwein v. Gulf Nuclear, Inc., 783 S.W.2d 746, 

747–48 (Tex. App. 1990) (reversing summary judgment where a 

supervisor instructed a worker to decontaminate an area where 

highly radioactive isotopes had been spilled without safety 

equipment). In reversing summary judgment in a similar case 

involving an intentional tort claim brought by worker, the Ninth 

Circuit noted that ―[s]ummary judgment is particularly 

inappropriate where the inferences which the parties seek to have 

drawn deal with questions of motive, intent and subjective feelings 

and reactions.‖ Gulden, 890 F.2d at 197 (internal quotation marks 
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Opinion of the Court

17

omitted). Given that the key dispute here is over the subjective 

knowledge of the night-shift supervisor, we are similarly reluctant to 

say that in our wisdom we have divined the only reasonable 

inference that a jury may draw from the available evidence. That 

question, at least under the facts of this case, is for the jury.

¶52 The district court, though, granted summary judgment in 

favor of Chevron mainly based upon the fact that the day-shift pit 

operator had not been injured when he neutralized the pit: 

I think it‘s significant that there‘s no indication that 

[the day-shift pit operator] was sick or injured, which I 

think that fact alone . . . has greater significance than 

either of the parties have pointed to, because if the 

standard is that a specific employee was going to be 

injured during a specific task, the fact that the very 

person that performed the task on the shift before did 

not get injured, it raises a question about whether that 

standard could be met under the circumstances of this 

case.

But the absence of an injury to the worker that neutralized the pit 

prior to Ms. Helf does not mandate summary judgment in favor of 

Chevron for two reasons. 

¶53 First, there is no evidence that the night-shift supervisor 

knew that the day-shift pit operator was not among the Chevron 

employees who became ill when the pit was neutralized during the 

day shift. The day-shift supervisor did not testify that he had 

conveyed this information to the night-shift supervisor. Nor is there 

any other direct evidence that the night-shift supervisor had this 

knowledge. The day-shift supervisor did testify, however, that he 

conveyed ―all significant and important information‖ to the nightshift supervisor. From this testimony, a jury could potentially infer 

that the night-shift supervisor had been informed about the absence 

of any injury to the day-shift pit operator. But in a summary 

judgment proceeding, courts must make all inferences in favor of the 

nonmoving party—in this case, Ms. Helf. Bodell Const., 2009 UT 52, 

¶ 16. Chevron, as the moving party, is not entitled to inferences in its 

favor when seeking summary judgment.

¶54 As we noted above, only the knowledge of the night-shift 

supervisor when he directed Ms. Helf to neutralize the pit is relevant 

to the question of whether he knew that Ms. Helf would be injured. 

Supra ¶ 26–28, 47. Because we may not assume that the night-shift 

supervisor knew that the day-shift pit operator was not injured by 
HELF v. CHEVRON

Opinion of the Court

18

the neutralization process, this fact has no bearing on the question of 

whether summary judgment was appropriate in this case.

¶55 Second, even if the absence of an injury to the day-shift pit 

operator were relevant, this fact does not defeat summary judgment. 

If the night-shift supervisor knew that the day-shift pit operator had 

not been injured, a jury could infer that differences between the 

experienced day-shift pit operator and the recently hired Ms. Helf 

would still lead to the conclusion that the night-shift supervisor 

expected Ms. Helf would be injured when she neutralized the pit. 

¶56 The day-shift pit operator had over five years of 

experience working at the refinery. Because of his years of 

experience, he knew to immediately move away from the pit and 

stand upwind while neutralizing the caustic sludge contained in the 

pit. He had also learned from experience to hold his breath when 

approaching the pit to turn off the sulfuric acid valve in order to 

avoid breathing toxic fumes. Ms. Helf, on the other hand, had only 

worked at the refinery for three months. A jury could conclude, 

therefore, that the night-shift operator knew that Ms. Helf lacked the 

experience required to know to take such precautions when he 

ordered her to neutralize the pit.

¶57 In summary, the evidence supports the conclusion that 

Chevron‘s decision to dump the caustic sludge into the open-air pit 

left the night-shift supervisor with an array of bad options. If the 

supervisor did nothing, liquid condensate from the refining process 

that continuously flows into the pit would have caused the pit to 

overflow. This could lead to environmental cleanup costs and 

potential regulatory action against Chevron. The supervisor also 

presumably could also have shut down the portion of the refinery 

that produced the liquid condensate to prevent the pit from 

overflowing. But the resulting loss of production would hurt 

Chevron‘s bottom line. The supervisor instead chose a third option: 

to conduct business as usual and instruct Ms. Helf to neutralize the 

pit so that it could be pumped out and the refining process could 

continue unabated. A jury could conclude that the supervisor chose 

this course of action in order to serve the economic interests of 

Chevron or to avoid a negative employment action against himself. 

A jury could further conclude that the night-supervisor made this 

decision with the knowledge that Ms. Helf would be injured in the 

process. See Helf, 2009 UT 11, ¶¶ 34–37 (employer motivated by 

profits may be liable if the employer expected an injury to result 

from a course of action).

¶58 We therefore conclude that summary judgment was 

inappropriate. There is a dispute of material fact as to whether the 
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Opinion of the Court

19

night-shift supervisor knew that Ms. Helf would be injured. 

Consequently, we need not consider whether Ms. Helf produced 

adequate evidence that one of the other Chevron managers had the 

requisite knowledge to sustain an intentional tort claim.

II. ELECTION OF REMEDIES

¶59 Chevron argues in the alternative that even if Ms. Helf 

produced sufficient evidence to survive summary judgment, it was 

nevertheless entitled to judgment as a matter of law because 

Ms. Helf was bound by her election to receive the remedy of 

workers‘ compensation benefits for her injury. Chevron asserts in its 

briefing on the cross-appeal that the district court erred when it 

rejected this election of remedies argument and that we should 

affirm the summary judgment in its favor on this alternative ground. 

See Jensen ex rel. Jensen v. Cunningham, 2011 UT 17, ¶ 36, 250 P.3d 465 

(―We may affirm a grant of summary judgment upon any grounds 

apparent in the record.‖).

¶60 We first consider whether Chevron properly used a crossappeal as a vehicle to brief this argument. We then determine

whether we made a binding resolution of this issue in this court‘s 

prior opinion in this case. Because we decide that the election of 

remedies issue is properly before us, we then decide whether this 

doctrine bars Ms. Helf‘s lawsuit.

A. Chevron’s Cross-Appeal

¶61 Litigants must cross-appeal ―if they wish to attack a 

judgment of a lower court for the purpose of enlarging their own 

rights or lessening the rights of their opponent.‖ State v. South, 924 

P.2d 354, 355 (Utah 1996). ―Conversely, if appellees . . . merely desire 

the affirmance of the lower court‘s judgment, they need not, and 

should not, cross-appeal . . . .‖ Id. at 356. Improper cross-appeals 

unnecessarily lengthen the briefing process, ―multiply the number of 

briefs filed[,] and lead to confusion of the issues presented.‖ Id.

¶62 Although Chevron filed a notice of cross-appeal from the 

summary judgment, it does not seek to enlarge its rights under the 

judgment or lessen the rights of Ms. Helf. Instead, Chevron seeks an 

affirmance of the summary judgment in its favor on an alternative 

ground that was rejected by the district court—that the election of 

remedies doctrine bars the suit. Appellees, however, may not use a 

cross-appeal as a vehicle for arguing for the affirmance a district 

court‘s judgment. Appellees must instead raise an alternative 

ground for affirmance in the briefing of the initial appeal. 
HELF v. CHEVRON

Opinion of the Court

20

¶63 We therefore dismiss Chevron‘s cross-appeal. But we shall 

consider Chevron‘s election of remedies argument found in the 

briefing on the cross-appeal. 

B. The Law of the Case Doctrine Does Not Prohibit this Court from 

Considering Chevron’s Election of Remedies Argument

¶64 ―Under the law of the case doctrine, issues resolved by this 

court on appeal bind the trial court on remand, and generally bind 

this court should the case return on appeal after remand.‖ Gildea v. 

Guardian Title Co. of Utah, 2001 UT 75, ¶ 9, 31 P.3d 543. When applied 

to this court after a case returns to us for a second time, this doctrine 

―is not an inexorable command that rigidly binds [this] court to its 

former decisions.‖ Id. But we will not deviate from our prior 

decisions in a case unless we have good cause to do so. See id.

¶65 Of course in order for the law of the case doctrine to apply 

at all, this court must have actually decided the issue in a prior 

opinion. Ms. Helf contends that we resolved the election of remedies 

issue in our previous opinion in this case, and that we should remain 

true to our prior decision. In our prior opinion, this court never so 

much as mentioned the election of remedies doctrine, much less 

decided the issue. In a short dissent, however, Justice Wilkins wrote 

that he would have affirmed the dismissal of the Ms. Helf‘s case 

because her election to pursue workers compensation benefits 

prohibited further suit against her employer. Helf v. Chevron U.S.A., 

Inc., 2009 UT 11, ¶ 54, 203 P.3d 962 (Wilkins, J., concurring in part 

and dissenting in part). Ms. Helf reasons, therefore, that this court 

implicitly rejected the position advocated by the dissent and that this 

implicit holding should bind the court in this appeal.

¶66 We disagree. Our silence on the election of remedies issue 

in our prior opinion was just that—silence. The court merely 

declined to address an issue that was not raised or briefed by parties 

in that appeal. The fact that one of the justices of this court wrote a 

separate opinion does not mean that the majority opinion contains 

an implicit holding that is diametrically opposed to the separate 

opinion. It simply means that the majority of the court made no 

holding on the issue. See Peak Alarm Co. v. Werner, 2013 UT 8, ¶ 11, 

297 P.3d 592 (rejecting an argument that an opinion of this court 

contained an implicit holding where the opinion did not address or 

analyze the issue).

¶67 We conclude that the law of the case doctrine does not 

apply because we did not resolve the election of remedies issue in 

our prior opinion. We therefore address whether Ms. Helf made a 
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Opinion of the Court

21

binding election of remedies that bars her tort lawsuit when she 

applied for and received workers‘ compensation benefits. 

C. The Election of Remedies Doctrine Does Not Bar Ms. Helf’s Lawsuit

1. The Election of Remedies Doctrine

¶68 In its most basic terms, the election of remedies doctrine 

―prevent[s] double redress for a single wrong.‖ Angelos v. First 

Interstate Bank of Utah, 671 P.2d 772, 778 (Utah 1983) (internal 

quotation marks omitted). If a defendant wrongfully retains 

possession of a plaintiff‘s cow, for example, the plaintiff may not 

recover both the cow and the reasonable value of the cow. The 

plaintiff must elect one of these two remedies. 

¶69 The election of remedies doctrine also refers to a plaintiff‘s 

choice between legally or factually inconsistent theories of recovery 

for a single wrong. 25 AM. JUR. 2D Election of Remedies § 1 (2014). One 

common example of the application of this rule occurs when a 

plaintiff is not paid for services rendered to a defendant. The 

plaintiff may either recover damages for breach of contract or, if no 

valid contract governs the services provided, the plaintiff may 

recover the reasonable value of the services under a quantum meruit 

claim. See RESTATEMENT (THIRD) OF RESTITUTION AND UNJUST 

ENRICHMENT § 31 cmt. e (2011). Because a breach of contract remedy 

requires a valid, enforceable contract, while a quantum meruit 

remedy presupposes that no contract governs the services provided, 

a plaintiff may recover only one of these two inconsistent remedies. 

Reilly v. Natwest Markets Grp. Inc., 181 F.3d 253, 263–64 (2d Cir. 1999).

¶70 Thus, at its core, the election of remedies stands for the 

rather straight-forward principle that a plaintiff may not obtain 

either (1) a double recovery or (2) legally or factually inconsistent 

recoveries for the same wrong. The more difficult question is when a 

plaintiff should be deemed to have made an irrevocable election 

between available remedies or theories of recovery. 

¶71 Where a plaintiff must choose between alternative

remedies for a single theory of liability, an election is not final until a 

judgment is fully satisfied. Farmers & Merchs. Bank v. Universal C.I.T. 

Credit Corp., 289 P.2d 1045, 1049 (Utah 1955). Courts treat this type of 

election as a choice between consistent remedies because the 

remedies do not rest upon irreconcilable factual or legal theories. See 

id. Thus if a plaintiff obtains a judgment authorizing a writ of 

replevin for the return of a cow wrongfully obtained by a defendant, 

the election is not final until the cow is returned. If the plaintiff later 

discovers that the cow had died while in the defendant‘s possession, 

the plaintiff may still pursue a claim for payment of the reasonable 
HELF v. CHEVRON

Opinion of the Court

22

value of the cow. See Largilliere Co., Bankers, v. Kunz, 244 P. 404, 404–

05, 406 (Idaho 1925) (permitting a plaintiff to simultaneously pursue 

both a claim for damages for the conversion of a flock of sheep and a 

writ of replevin for the return of the sheep ―until a satisfaction of its 

demand is obtained‖ because these two remedies are consistent).

¶72 If a plaintiff must choose between inconsistent theories of 

liability, on the other hand, older cases held that a plaintiff makes a 

binding election between these theories of liability upon filing a 

complaint based upon one of these conflicting theories. Cook v. 

Covey-Ballard Motor Co., 253 P. 196, 199–200 (Utah 1927); Howard v. 

J.P. Paulson Co., 127 P. 284, 286 (Utah 1912). Commentators and 

courts alike have long criticized this antiquated version of the 

election of remedies doctrine, however, noting that this rule is 

unduly harsh to plaintiffs ―and frequently results in injustice.‖ 

Charles P. Hine, Election of Remedies, A Criticism, 26 HARV. L. REV. 

707, 707 (1913); see also id. at 719 (―The modern rule of election of 

remedies is a weed which has recently sprung up in the garden of 

the common law, its roots stretching along the surface of obiter 

dicta but not reaching the subsoil of principle. The judicial gardeners 

through whose carelessness it has crept in should be able to 

eliminate it, or at least to prevent its further growth.‖); Bernstein v. 

United States, 256 F.2d 697, 705 (10th Cir. 1958) (―[The election of 

remedies doctrine] has been consistently criticized as harsh and not a 

favorite of equity.‖); Waffer Int’l Corp. v. Khorsandi, 82 Cal. Rptr. 2d 

241, 251 (Ct. App. 1999) (―Courts and commentators have long 

recognized the harshness of the election of remedies doctrine and 

have for some time looked upon it with disfavor.‖ (internal 

quotation marks omitted)).

¶73 The harshness of this branch of the election of remedies 

doctrine in the nineteenth century and early twentieth century rested 

upon the strict pleading requirements of the time. During this 

period, several jurisdictions still followed the common law rule 

prohibiting pleadings in the alternative, although the trend was 

toward permitting alternative pleadings. Gregory Hankin, 

Alternative and Hypothetical Pleadings, 33 YALE L.J. 365, 365–67, 369

(1924); see also Note, Election of Remedies: A Delusion?, 38 COLUM. L.

REV. 292, 314 (1938). Other jurisdictions did not permit plaintiffs to 

amend their complaint to plead an alternative theory of recovery. 

Note, Election of Remedies: A Delusion?, 38 COLUM. L. REV. 292, 312–14 

(1938). These pleading rules, combined with a strict application of 

the election of remedies doctrine, required plaintiffs to choose at 

their peril between inconsistent theories of recovery when initiating 

a lawsuit. 
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Opinion of the Court

23

¶74 The advent of liberal pleading rules, however, has 

eliminated this harsh interpretation of the election of remedies 

doctrine. See Bernstein, 256 F.2d at 706 (―Whatever may be said for 

the common law doctrine of election of remedies before the advent 

of the Federal Rules of Civil Procedure, we are certain that there is 

no room for its application under applicable rules of procedure

. . . .‖). Utah‘s modern pleading rules permit litigants to plead 

inconsistent theories of recovery in the alternative. UTAH R. CIV. P. 

8(e) (―A party may state a claim or defense alternately or 

hypothetically . . . .‖); see also Ripple v. Wold, 549 N.W.2d 673, 675

(S.D. 1996) (― ̳The election doctrine does not apply to preclude the 

plaintiff from pursuing inconsistent theories or even inconsistent 

factual assertions. Modern procedure permits alternative and 

inconsistent claims and also alternative and inconsistent defenses.‘‖ 

(quoting DAN B. DOBBS, LAW OF REMEDIES § 9.4 (2d Ed. 1993)). 

Plaintiffs may even amend an initial pleading to add inconsistent 

theories of recovery if given permission to do so by the district court, 

which ―shall be freely given when justice so requires.‖ UTAH R. CIV.

P. 15(a); see also Smith v. Grand Canyon Expeditions Co., 2003 UT 57, 

¶ 32, 84 P.3d 1154 (―In Utah, rule 15 is interpreted liberally to allow 

parties the opportunity to fully adjudicate their claims on the 

merits.‖).

¶75 In the 1957 case, Parrish v. Tahtaras, we recognized that 

these liberal pleading rules obviated the former rule that a plaintiff‘s 

election among inconsistent remedies in a complaint is irrevocable. 

318 P.2d 642, 645 (Utah 1957). In that case, an architect sued the 

defendants under a breach of contract theory to recover for services 

rendered. Id. at 644. At a bench trial, however, the court awarded 

damages under a quantum meruit theory after granting a motion to 

amend the complaint to conform to the proof. Id. We held that ―[t]he 

alternate remedies [of breach of contract or in quantum meruit], 

although formerly limited by a strict election doctrine, may be 

pleaded in alternative form and may even be inserted by 

amendment late in the proceedings.‖ Id. at 645. Therefore, ―[i]t was 

not error for the trial judge to allow amendment late in the 

proceedings to show this alternative plea, the defendants not being 

in any way prejudiced by the ruling.‖ Id.

¶76 In a later case, we confirmed that modern pleading rules 

dictate that a court may not require a plaintiff to elect between 

inconsistent claims prior to trial:

Rule 8(e) of our Rules of Civil Procedure permits either 

party to plead in the alternative, either in one count or 

defense, or in separate counts or defenses. To require a 
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Opinion of the Court

24

party to make an election between the alternative 

counts or defenses, particularly at the pretrial stage of 

the proceedings, would be to emasculate the rule and 

render it meaningless.

Rosander v. Larsen, 376 P.2d 146, 146 (Utah 1962) (footnote omitted). 

This is in line with the modern view that a plaintiff may present 

inconsistent theories of liability at trial. Rule v. Brine, Inc., 85 F.3d 

1002, 1011 (2d Cir. 1996); 28A C.J.S. Election of Remedies § 6 (2008) 

(―[M]any cases hold that a party is not required to elect between 

remedies before the trial or during the course of the trial or before 

the conclusion of trial, or at the pleading stage; he or she may plead 

and litigate inconsistent remedies and submit different theories of 

recovery to the jury, and is not required to elect a remedy prior to 

the submission of the case to the jury or prior to the jury‘s verdict.‖ 

(footnotes omitted)). Once the fact-finder and the judge have 

resolved all factual and legal disputes related to the inconsistent 

theories of liability, the plaintiff is then entitled to the one remedy (if 

any) that is supported by the final determination of the law and the 

facts. Genetti v. Caterpillar, Inc., 621 N.W.2d 529, 546 (Neb. 2001) 

(―[A]lthough initially a buyer may present both theories and need 

not elect between them, the finding of either final acceptance or 

revocation of acceptance of nonconforming goods ultimately 

determines the available remedy.‖ (internal quotation marks 

omitted)).

¶77 Thus unless another doctrine, such as estoppel,7 dictates 

that a plaintiff‘s election among inconsistent remedies is final at an 

earlier stage of the litigation, an election is not binding ―until one 

remedy is pursued to a determinative conclusion.‖ Christensen v. 

Eggen, 577 N.W.2d 221, 224 (Minn. 1998) (emphasis omitted).

7 ―If a party has more than one remedy . . . his manifestation of a 

choice of one of them by bringing suit or otherwise is not a bar to 

another remedy unless the remedies are inconsistent and the other 

party materially changes his position in reliance on the 

manifestation.‖ RESTATEMENT (SECOND) OF CONTRACTS § 378 (1981). 

One example of a situation where a plaintiff may be estopped from 

changing an election of remedies is where one party contracts to sell 

land to another party and the seller later repudiates the contract and 

the buyer sues for damages. If the seller relies upon the buyer‘s suit 

for damages to make valuable improvements to the land, the buyer 

may be estopped from amending the complaint to request specific 

performance of the purchase contract. Id. § 378 cmt. a, illus. 1.
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25

2. Application of the Election of Remedies Doctrine Where a Worker 

Brings Both a Workers‘ Compensation Claim and an Intentional Tort 

Claim

¶78 In applying these general principles to this case, we must 

examine the remedies available to an injured worker. A worker 

injured on the job may potentially recover either worker‘s 

compensation benefits or intentional tort damages. These two 

remedies are inconsistent. Workers‘ compensation benefits are paid 

to workers injured by an ―accident arising out of and in the course of 

the employee‘s employment.‖ UTAH CODE § 34A-2-401(1). These 

benefits are the exclusive remedy for work-related accidents. Id.

§ 34A-2-105(1). In order to recover tort damages for an injury, on the 

other hand, a worker must prove that an injury was caused by an 

intentional tort rather than an accident. Helf, 2009 UT 11, ¶ 18. The 

question before this court, therefore, is when does an injured worker 

make a binding election between these two inconsistent remedies?

Because this is a legal question, we review the district court‘s ruling 

on it de novo. See Daniels v. Gamma W. Brachytherapy, LLC, 2009 UT 

66, ¶ 46, 221 P.3d 256.

¶79 If these two remedies could be pursued in a single forum, 

the answer would be simple. The worker could plead in the 

alternative that the injury was caused by either an accident or an 

intentional tort, and after the fact-finder made a final determination 

regarding the nature of the injury, the worker would elect the 

remedy available under the facts found by the jury or administrative 

body. The problem, of course, is that a worker may not pursue these 

two remedies in a single forum. The labor commission has exclusive 

jurisdiction to award workers‘ compensation benefits for accidents, 

while the district court has exclusive jurisdiction to award damages 

for an intentional tort. See UTAH CODE § 34A-2-112; id. § 78A-5-102(1).

¶80 Because these remedies must be adjudicated in separate 

forums, a strict application of the election of remedies doctrine 

presents injured workers with a cruel dilemma. If a worker choses to 

apply for and receives workers‘ compensation benefits, the worker 

may be deemed to have made a binding election of this remedy 

because the worker pursued it to a ―determinative conclusion.‖ 

Christensen, 577 N.W.2d at 224 (emphasis omitted). By accepting 

workers‘ compensation benefits for urgent financial needs, such as 

medical expenses or living expenses if the worker becomes disabled, 

a worker who may have been injured by an intentional tort would be 

barred from asserting a tort claim. If the worker instead elects to 

forego workers compensation benefits and gambles on an intentional 

tort claim, the worker would have to survive without any benefits, 
HELF v. CHEVRON

Opinion of the Court

26

and the burden of sustaining potentially protracted litigation, until 

the completion of the trial and inevitable appeal or appeals. This 

hardship would in most cases be extreme because any worker 

contemplating a lawsuit would likely be severely injured in order to 

justify the expense and stress of a lawsuit against a well-funded 

employer.

¶81 Moreover, if the lawsuit lasts longer than the statute of 

limitations for a workers‘ compensation claim, then the worker (or 

the worker‘s family if the worker was killed) will be denied any

recovery for the injury if the lawsuit is unsuccessful. See UTAH CODE

§ 34A-2-417(1) (a worker typically has one year to seek compensation 

for a medical expense caused by the work-related injury); id. § 34A2-417(2) (six-year statute of limitations for partial or total disability 

benefits); id. § 34A-2-417(3) (one-year statute of limitations for a 

claim for death benefits). Because of the one-year statute of 

limitations for the recovery of most medical expenses and death 

benefits under workers‘ compensation, at minimum, a worker or 

heir who chooses to pursue a tort remedy will almost certainly lose 

the ability to claim these benefits if the lawsuit is unsuccessful. 

Ms. Helf‘s lawsuit, for example, has lasted twelve years so far and 

she has not been able to bring her case to trial yet, much less the 

likely posttrial appeal. The duration of this litigation has already 

greatly surpassed the current statute of limitations for any type of 

workers‘ compensation benefit. Thus, under a strict application of 

the election of remedies doctrine, workers would risk losing both 

remedies if they make a bad guess as to which remedy was 

appropriate.

¶82 This interpretation of the election of remedies doctrine, 

similar to the much-criticized application of the doctrine in the early 

twentieth century, effectively requires an injured worker to choose at 

peril between inconsistent remedies at an unreasonably early stage 

in the litigation. Forcing this choice is especially harsh because of the 

difficulty of predicting the outcome of an intentional tort suit. 

Because the line between an accident and an intentional tort is based 

upon the subjective knowledge and intent of the worker‘s 

supervisors, which most often must be inferred from the 

surrounding circumstances, see supra ¶ 47 & n.5, the worker is in a 

poor position to evaluate the odds of success before a jury resolves 

this factual dispute. 

¶83 There is a fairly even split of authority among state 

supreme courts as to whether the election of remedies doctrine 

requires workers to make this choice between workers compensation 
Cite as: 2015 UT 81

Opinion of the Court

27

benefits and a tort lawsuit.8 By our count, eight state supreme courts

have held that a final adjudication of a right to receive workers‘ 

compensation benefits constitutes a binding election that bars an 

intentional tort lawsuit.9 But nearly as many state supreme courts 

(we found seven) have held that a worker may pursue both remedies

and that the receipt of workers‘ compensation benefits does not act 

as a bar to the pursuit of a tort remedy.

10

¶84 Many of the courts that have rejected a strict application of 

the election of remedies doctrine have reasoned that it would require 

the worker to make a ―gambler‘s choice‖:

Workmen‘s compensation is above all a security

system; a strict election doctrine transforms it into a 

grandiose sort of double-or-nothing gamble. Such 

gambles are appealing to those who still think of the 

judicial process as a glorious game in which formal 

moves and choices are made at peril, and in which the 

ultimate result is spectacular victory for one side and 

utter defeat for the other. The stricken workman is in 

no mood for this kind of play, and should not be 

maneuvered into the necessity for gambling with his 

8 Some states have statutes that resolve this issue. An Arizona 

statute, for example, provides that if a worker accepts workers‘ 

compensation benefits, the right to initiate a lawsuit against the 

employer is waived. ARIZ. REV. STAT. § 23-1024. Oregon and West 

Virginia statutes, on the other hand, explicitly permit workers to 

accept benefits without waiving the right to sue the employer. OR.

REV. STAT. § 656.156(2); W. VA. CODE § 23-4-2(c).

9 Gourley v. Crossett Pub. Sch., 968 S.W.2d 56, 58 (Ark. 1998); Jones 

v. Martin Electronics, Inc., 932 So. 2d 1100, 1106–07 (Fla. 2006); Collier 

v. Wagner Castings Co., 408 N.E.2d 198, 204 (Ill. 1980); Advanced 

Countertop Design, Inc. v. Second Judicial Dist. Court ex rel. Cnty. of 

Washoe, 984 P.2d 756, 759 (Nev. 1999); Salazar v. Torres, 158 P.3d 449, 

456–57 (N.M. 2007); Werner v. State, 424 N.E.2d 541, 543–44 (N.Y. 

1981); Schlenk v. Aerial Contractors, Inc., 268 N.W.2d 466, 472 (N.D. 

1978); Kohler v. McCrory Stores, 615 A.2d 27, 32 (Pa. 1992).

10 Elliott v. Brown, 569 P.2d 1323, 1327 (Alaska 1977); Suarez v. 

Dickmont Plastics Corp., 639 A.2d 507, 514–16 (Conn. 1994); Dominguez 

ex rel. Hamp v. Evergreen Res., Inc., 121 P.3d 938, 942–43 (Idaho 2005); 

Gagnard v. Baldridge, 612 So. 2d 732, 735–36 (La. 1993); Millison v. E.I. 

du Pont de Nemours & Co., 501 A.2d 505, 518–19 (N.J. 1985); Woodson 

v. Rowland, 407 S.E.2d 222, 233–34 (N.C. 1991); Jones v. VIP Dev. Co., 

472 N.E.2d 1046, 1054 (Ohio 1984).
HELF v. CHEVRON

Opinion of the Court

28

rights, under the guise of enforcing a supposed penalty 

against the employer.

Suarez v. Dickmont Plastics Corp., 639 A.2d 507, 515 (Conn. 1994)

(internal quotation marks omitted); accord Millison v. E.I. du Pont de 

Nemours & Co., 501 A.2d 505, 518–19 (N.J. 1985). Because most 

injured workers and their families are in no position to gamble on a 

tort remedy or wait out a lengthy and expensive litigation, the strict 

application of the election of remedies doctrine would effectively 

insulate employers from tort liability for intentionally caused injuries 

or death. Suarez, 639 A.2d at 515; Jones v. VIP Dev. Co., 472 N.E.2d 

1046, 1054 (Ohio 1984). Thus employers would not be discouraged 

from engaging in intentional misconduct and would ―escape any 

meaningful responsibility for its abuses.‖ Jones, 472 N.E.2d at 1054; 

accord Woodson v. Rowland, 407 S.E.2d 222, 233–34 (1991).

11

¶85 We agree with the courts that have rejected a strict 

application of the election of remedies doctrine to injured workers. 

As one leading commentator has noted:

[N]othing could be more foreign to the spirit and 

purpose of compensation legislation than the tricky 

and technical doctrine of election. With its origins in 

Roman law, and with its entire philosophy smacking of 

medieval legalism, it confronts the needy and often 

uneducated claimant not with the certainty of 

protection which compensation law exists to provide, 

but with a gambler‘s all-or-nothing choice.

10 ARTHUR LARSON & LEX K. LARSON, LARSON‘S WORKERS‘

COMPENSATION LAW § 115.05 (2014). The election of remedies 

doctrine is a rule of ―procedure or judicial administration.‖ 25 AM.

JUR. 2D Election of Remedies § 2 (2014). It is equitable in nature and is 

invoked ―to the end that justice may be served.‖ 28A C.J.S. Election of 

Remedies § 1 (2008). As an equitable judicial principle, the election of 

remedies doctrine should be applied to produce fair outcomes for 

litigants. It certainly applies to prevent the worker from obtaining a 

11 The Idaho Supreme Court reasoned instead that the election of 

remedies doctrine does not apply to injured workers who accept 

workers‘ compensation benefits because the ―injury can be 

 ̳accidental‘ from the perspective of an employee while at the same 

time being intentional on the part of the employer.‖ Dominguez, 121 

P.3d at 942. We do not find this rationale persuasive because it is not 

the perspective of the worker or the employer that counts for the 

purposes of the election of remedies doctrine; it is the determination 

made by the fact-finder as to the nature of the injury.
Cite as: 2015 UT 81

Opinion of the Court

29

double recovery or recovering two inconsistent remedies. But it 

should not be applied to force the worker to make a binding election 

before knowing how a jury will resolve an intentional tort claim.

¶86 The district court, therefore, correctly ruled that the 

election of remedies doctrine does not bar Ms. Helf‘s lawsuit against 

Chevron. To avoid a double recovery, however, if Ms. Helf 

eventually prevails, she may not retain the inconsistent remedies of 

workers‘ compensation benefits and an award for tort damages. In 

order to prevent an inconsistent recovery, a worker ―who recovers 

civilly against his employer‖ may no longer receive workers‘ 

compensation benefits and must ―reimburse the workers‘

compensation carrier to the extent the carrier paid workers‘

compensation benefits, or by permitting the carrier to become 

subrogated to the claimant‘s civil claim to the extent of benefits 

paid.‖ Woodson 407 S.E.2d at 233; see also Bryan v. Utah Int’l, 533 P.2d 

892, 894 (Utah 1975) (a worker who recovers damages in an 

intentional tort suit against a fellow employee must reimburse the 

party that paid workers‘ compensation benefits for the same 

injury).12

CONCLUSION

¶87 We reverse the summary judgment in favor of Chevron 

and remand for further proceedings consistent with this opinion.

12 Ms. Helf argues that the worker‘s compensation benefits she 

has collected may be used as an offset to reduce any amount she may 

recover from Chevron in her lawsuit to prevent a double recovery. 

This solution, however, would permit workers to recover two 

inconsistent remedies for the same injury—a partial recovery in the 

form of workers‘ compensation benefits and a partial recovery for 

tort damages. The election of remedies doctrine prohibits the 

retention of inconsistent remedies.
HELF v. CHEVRON

ASSOCIATE CHIEF JUSTICE LEE, dissenting

30

ASSOCIATE CHIEF JUSTICE LEE, dissenting:

¶88 The Utah Workers Compensation Act provides that ―[t]he 

right to recover compensation‖ in an administrative proceeding 

under the statute ―is the exclusive remedy against the employer‖ for 

―any accident or injury or death, in any way contracted, sustained, 

aggravated, or incurred by the employee in the course of or because 

of or arising out of the employee‘s employment.‖ UTAH CODE § 34A2-105(1) (emphasis added). A statutory claim is ―in place of any and 

all other civil liability whatsoever, at common law or otherwise.‖ Id. 

(emphasis added).

¶89 This exclusive remedy provision is the heart of the 

Workers Compensation Act. It preserves the essential bargain of 

workers compensation established almost a century ago in Utah. See 

Shattuck-Owen v. Snowbird Corp., 2000 UT 94, ¶ 19, 16 P.3d 555 

(referring to the ―quid pro quo‖ of the statute). Under this bargain, 

workers give up their right to sue their employers in tort for 

workplace injuries. In return, workers are granted the right to 

statutory remedies that are afforded without regard to proof of fault. 

See id. (explaining that the statute gives employees a right to 

―recover for job-related injuries without showing fault‖ while 

assuring that ―employers are protected from tort suits‖ (internal 

quotation marks omitted)).

¶90 Decades ago this court established an exception to this 

exclusive remedy provision. In Bryan v. Utah International, 533 P.2d 

892, 894 (Utah 1975), we found the Act to be subject to an exception 

for claims based on ―an intentional act.‖ (emphasis added). In 

reaching that conclusion we noted that ―personal injury, by 

accident‖ is defined by statute to ―include injury caused by the 

willful act‖ of a fellow worker. Id.; see also UTAH CODE § 34A-2-

102(1)(j)(i) (― ̳Personal injury by accident arising out of and in the 

course of employment‘ includes an injury caused by the willful act of 

a third person directed against an employee because of the 

employee‘s employment.‖). But we found a distinction between a 

willful act and an intentional one, asserting that the latter implies 

―that the act was not only done knowingly, but with the knowledge 

that it was wrongful to do it.‖ Bryan, 533 P.2d at 894. And we upheld 

a right to sue in tort for intentional acts, noting the ―policy of our law 

. . . to allow one injured through the intentional act of another[] to 

seek redress from the one intending harm‖ and emphasizing the 

―salutary effect of deterring intentional injury.‖ Id. 

¶91 We extended Bryan further in the decision we rendered at 

an earlier stage of this case, Helf v. Chevron U.S.A., Inc., 2009 UT 11, 
Cite as: 2015 UT 81

ASSOCIATE CHIEF JUSTICE LEE, dissenting

31

203 P.3d 962 (Helf I). In Helf I we held that proof of intent may be 

established in either of two ways—by proof ―that the actor desired 

the consequences of his actions‖ or by demonstrating ―that the actor 

believed the consequences were virtually certain to result.‖ Id. at ¶ 

43. In so holding, we relied on the term ―accident‖ as it appears in 

the Act‘s exclusive remedy provision. We viewed the ― ̳primary 

objective‘ of workers‘ compensation‖ as the elimination of 

― ̳industrial negligence, in all its forms, from the concept of the law 

of tort,‘‖ and concluded that while ― ̳[a]ccidents are an inevitable 

part of industrial production,‖ ―intentional torts by employers are 

not.‖ Id. at ¶ 28 (quoting Bryan, 533 P.2d at 893, and Beauchamp v. 

Dow Chemical Co., 398 N.W.2d 882, 889 (Mich. 1986)). And, under a 

conception of accident encompassing ―unintended and unforeseen 

injurious occurrence[s],‖ id. ¶ 27 (quoting BLACK‘S LAW DICTIONARY

15 (8th ed. 2004)), we deemed the Workers Compensation Act‘s 

exclusive remedy provision not to encompass acts that are 

intentional in the sense of either intending or expecting the injurious 

consequence, id. ¶ 43.

¶92 I would accept our holdings in Bryan and Helf I under the 

doctrine of stare decisis. Such decisions may be in tension with the 

clear terms of the Workers Compensation Act‘s exclusive remedy 

provision.1 But our holdings in these cases were square and 

1 This provision is not limited to liability for accidents. It 

encompasses all claims for ―any accident or injury or death, in any 

way contracted, sustained, aggravated, or incurred by the employee 

in the course of or because of or arising out of the employee‘s 

employment.‖ UTAH CODE § 34A-2-105(1) (emphasis added). And 

the workers compensation remedy is ―in place of any and all other 

civil liability whatsoever, at common law or otherwise.‖ Id.; see also 

Bryan v. Utah International, 533 P.2d 892, 895 (Utah 1975) (Crockett, 

J., dissenting) (noting that judicial recognition of liability for an 

intentional tort is ―plainly prohibited‖ by the terms of the exclusive 

remedy provision). 

The Bryan majority‘s decision, moreover, overlooked a provision 

in an earlier iteration of the Act that was subsequently repealed—a 

provision that stated that ―where an injury in employment resulted 

from willful misconduct or willful disregard of the employee‘s safety, 

the employee could have the option of either claiming compensation 

under the act or maintaining an action at law for damages.‖ Id. 

(emphasis added). Because that provision was subsequently 

repealed, and replaced with a provision clarifying that the exclusive 

remedy provision extended to claims alleging willful misconduct, 

―[i]t seems so obvious as to not admit of doubt that it was the intent 
HELF v. CHEVRON

ASSOCIATE CHIEF JUSTICE LEE, dissenting

32

straightforward. And they undoubtedly have sustained substantial 

reliance interests on the part of employees and employers. Unless 

and until our decisions become unworkable, or are overruled by the 

legislature, they are worthy of respect.

¶93 Respect for these decisions does not require that we extend 

them further, however. I respectfully dissent because I view the 

majority‘s decision as extending Bryan and Helf I in a manner that is 

incompatible with the clear terms of the Workers Compensation Act 

and that distorts the law of election of remedies. I further dissent 

from the court‘s determination that the district court erred when it 

excluded deposition testimony offered by Helf, as the court‘s 

analysis on this point is inconsistent with the terms of rule 32(c) of 

the Utah Rules of Civil Procedure.

¶94 I would affirm on the ground that Jenna Helf voluntarily 

opted for the remedies available to her in workers compensation, in 

a manner foreclosing her right to sue in intentional tort under Bryan

and Helf I. Alternatively, I would affirm on the ground that the 

deposition testimony proffered by Helf was properly excluded by 

the district court.

I

¶95 The doctrine of election of remedies is longstanding and 

well-settled. One branch of the doctrine is a bar on double recovery. 

But there is more to the doctrine than that. As the majority 

acknowledges, the doctrine of election of remedies also precludes a 

plaintiff from advancing ―legally or factually inconsistent recoveries 

for the same wrong.‖ Supra ¶ 70. Under this branch of the doctrine, a 

plaintiff‘s election of a remedy is final once a ―judgment is fully 

satisfied.‖ Supra ¶ 71 (citing Farmers & Merchs. Bank v. Universal 

 

and purpose‖ of the legislature to make workers compensation the 

exclusive remedy for all claims for compensation for workplace 

injuries. Id.; see also id. at 895–96 (―I cannot perceive how the statute 

could make it more clear that when workmen‘s compensation 

coverage is provided, that is the only remedy an injured employee 

has against his employer or a fellow employee. Whatever moral 

aspects of such a situation may be, that is the state of our law. . . . If 

there is to be any variance from or change in the law as declared by 

th[e] statute, it should be made by the legislature.‖).

Justice Crockett seems to have had the better of the argument in 

Bryan. But there has been a lot of water under the bridge since Bryan. 

So although I would have been inclined to rule otherwise on a 

matter of first-impression, I would leave Bryan and Helf I in place for 

purposes of our decision in this case.
Cite as: 2015 UT 81

ASSOCIATE CHIEF JUSTICE LEE, dissenting

33

C.I.T. Credit Corp., 289 P.2d 1045, 1049 (Utah 1955)). Satisfaction of 

the judgment, moreover, precludes more than just double recovery; 

it bars the plaintiff from asserting a new claim that is legally or 

factually incompatible with the already-satisfied claim. See 

RESTATEMENT (SECOND) OF TORTS § 896 cmt. a (1979) (―[W]hen the 

claim has been extinguished, as by judgment, or by satisfaction . . . a 

person is necessarily precluded from pursuing the other remedy.‖); 

RESTATEMENT (FIRST) OF RESTITUTION § 144 cmt. a (1937) (―[W]here 

conduct extinguishes the basic claim, as where there has been a 

recapture of goods or a satisfaction of the claim, . . . a person is 

necessarily precluded from pursuing the other remedy.‖).

¶96 This principle is both simple and well-settled. It holds the 

plaintiff to its initial election once a judgment is final and satisfied by 

the defendant. And it precludes subsequent litigation on an 

inconsistent theory of liability—not just because double recovery is 

prohibited, but because it is unfair to subject the defendant to a 

subsequent round of litigation on a new, inconsistent theory of 

liability. See, e.g., F.T.C. v. Leshin, 719 F.3d 1227, 1232 (11th Cir. 2013) 

(The doctrine of election of remedies . . . . limits a party with the 

choice of two remedies that are inconsistent with each other from 

obtaining both remedies or from obtaining first the one remedy and 

then, at a later date, an alternative one.‖ (internal quotation marks 

omitted)); Connectu LLC v. Zuckerberg, 522 F.3d 82, 89 (1st Cir. 2008) 

(―The election of remedies doctrine is grounded on equitable 

principles.‖); see also AM. JUR. 2D Election of Remedies § 3. That 

principle should apply here. Ms. Helf filed a workers compensation 

claim and was awarded compensation on the basis of an allegation 

that her injuries resulted from a workplace accident. Under the 

doctrine of election of remedies, Helf should now be barred from 

advancing the inconsistent theory that her injuries were the result of 

an intentional tort. By allowing Helf to treat her injury as caused both 

by an accident and an intentional tort, we flatly contradict Helf I, 

which found injuries due to the latter cause could not also be 

attributed to the former. See Helf I, at ¶¶ 28, 43.

¶97 A stricter variation on this rule has long since been 

abandoned. Under the liberal pleading standards of the rules of civil 

procedure, we no longer foreclose plaintiffs from merely asserting

inconsistent theories of liability in alternative claims in a single 

proceeding. See UTAH R. CIV. P. 8(e) (allowing pleading in the 

alternative); Parrish v. Tahtaras, 318 P.2d 642, 645 (Utah 1957) 

(recognizing that modern pleading rules obviate the election of 

remedies bar on alternative pleading). But our rules of procedure say 

nothing of relevance to the assertion of a new theory of liability in a 
HELF v. CHEVRON

ASSOCIATE CHIEF JUSTICE LEE, dissenting

34

separate suit filed after the entry and satisfaction of a final judgment 

on an incompatible one. And we have never departed from our 

longstanding commitment to the preclusion of such new claims.

¶98 Until today. The majority declines to give preclusive effect 

to the final judgment on Helf‘s workers compensation claim under a 

longstanding principle of the doctrine of election of remedies. It does 

so, moreover, in apparent recognition of the fact that Helf‘s claim is 

barred under the law as it now stands—a law it deems ― ̳tricky and 

technical,‘‖ and subject to adaptation by the court to ―produce fair 

outcomes for litigants.‖ Supra ¶ 85 (quoting 10 ARTHUR LARSON &

LEX K. LARSON, LARSON‘S WORKERS‘ COMPENSATION LAW § 115.05

(2014)). Thus, seeing a ―cruel dilemma‖ for workers faced with a 

choice between a workers compensation claim and an intentional 

tort claim, the court declines to give ―strict application‖ to the 

doctrine of election of remedies. Supra ¶ 80. It also recognizes an 

inequity in its decision, however—in the potential for ―double 

recovery.‖ Supra ¶ 85. So although the court does not foreclose Helf‘s 

claim, it establishes a right of her employer to seek reimbursement to 

the extent of any payment of workers compensation benefits if Helf 

prevails in her tort claim. Supra ¶ 86.

¶99 I respectfully dissent from this decision. The law of 

election of remedies may be a ―rule of  ̳procedure or judicial 

administration.‘‖ Supra ¶ 85. But it is—and has long been—the law 

of this state. A litigant like Chevron should be entitled to rely on it. 

The doctrine of election of remedies assures ―fair outcomes‖ for all 

litigants, not just plaintiffs. And a core element of this law, from the 

standpoint of a defendant, is a right of repose—a right to rely on the 

finality and preclusive effect of a judgment that has been satisfied by 

the defendant. Dep’t of Envtl. Mgmt. v. State, 799 A.2d 274, 277 (R.I. 

2002) (―The doctrine of election of remedies is one that is grounded

in equity and is designed to mitigate unfairness to both

parties . . . .‖(emphasis added)); Barbe v. Villeneuve, 505 So. 2d 1331, 

1332 (Fla. 1987) (―The election of remedies doctrine is an application 

of the doctrine of estoppel . . . .‖). See also AM. JUR. 2D Election of 

Remedies § 3 (2014) (―The doctrine of election of remedies, being 

equitable in nature, is designed to mitigate possible unfairness to 

both parties‖ (emphasis added) (footnote omitted)). The court 

arbitrarily overrides this important policy in preserving ―fairness‖ 

for plaintiffs like Ms. Helf.

¶100 In so doing, the majority not only distorts the doctrine of 

election of remedies; it also overrides the clear terms of the exclusive 

remedy provision of the Workers Compensation Act. That provision, 

as noted, provides that an administrative action ―is the exclusive 
Cite as: 2015 UT 81

ASSOCIATE CHIEF JUSTICE LEE, dissenting

35

remedy against the employer‖ for ―any accident or injury or death‖ 

sustained ―in the course of or because of or arising out of the 

employee‘s employment,‖ and is ―in place of any and all other civil 

liability whatsoever, at common law or otherwise.‖ UTAH CODE 

§ 34A-2-105(1). Our prior decisions have made inroads on the 

seemingly categorical terms of this provision. I accept those 

decisions, as noted above, as a matter of stare decisis. But I cannot 

accept the court‘s decision to extend the intentional tort exception in 

a manner doing further violence to the clear terms of the Workers 

Compensation Act.

¶101 Perhaps an intentional tort can be deemed to fall outside 

the Act—because, for example, only accidents, and not intentionally 

tortious acts, ― ̳are an inevitable part of industrial production.‘‖ Helf 

v. Chevron U.S.A., Inc., 2009 UT 11, ¶ 28, 203 P.3d 962 (quoting 

Beauchamp v. Dow Chemical Co., 398 N.W.2d 882, 889 (Mich. 1986)). 

But the reality is that the line between these two events will often be 

a fuzzy one. That is particularly true in a case like this one, where the 

defendant‘s alleged intent is not in a motive to cause harm but in 

engaging in conduct ―expected‖ to produce such a result. In a case 

like this, it should hardly be surprising for a plaintiff to opt to file an 

administrative claim under the Workers Compensation Act—to take 

advantage of the ―simple, adequate, and speedy‖ remedy available 

by statute. Park Utah Consol. Mines Co. v. Indus. Comm’n, 36 P.2d 979, 

981 (1934). In advancing that claim, moreover, the employee has 

necessarily established that she suffered an injury arising out of her 

employment. And she has secured the full advantage of the 

remedies available under the Act when her employer satisfied the 

judgment entered against it.

¶102 I see nothing unfair about holding the employee to the 

benefit of the bargain she sought in securing the recovery available 

to her under the Workers Compensation Act. That conclusion 

follows not only as a matter of the law of election of remedies, but 

also, quite clearly, from the exclusive remedy provision of the Act. 

Once the employee has sued and recovered on a claim for an injury 

arising out of her employment, the legislature has clearly directed 

that such is the exclusive remedy, replacing any common law claim. 

We are bound by that directive—even if we see unfairness in the 

―dilemma‖ it presents to employees. Supra ¶ 80. The answer to that 

concern is not to override the terms of the statute; it is to defer to the 

legislature‘s policy judgment, while leaving any concerns with it to 

the process for statutory amendment.

¶103 The dilemma described by the majority, moreover, is 

overstated. In most cases (this one included), the employee will have 
HELF v. CHEVRON

ASSOCIATE CHIEF JUSTICE LEE, dissenting

36

access to most of the relevant evidence at the time she decides 

whether to allege an accident or an intentional tort. The outcome of 

the plaintiff‘s preferred claim may not be certain, but the relevant 

facts likely will be well known. Thus, a plaintiff who chooses to 

initiate a tort claim cannot be sure that her suit will succeed, but she 

will likely have the evidence she needs to decide whether to pursue 

that route instead of a workers compensation claim. And for that 

reason the principal effect of the majority‘s decision is not to assure 

fairness to litigants but to preserve the plaintiff‘s right to have it both 

ways—to secure all of the upsides of the ―simple, adequate, and 

speedy‖ remedy available under the Workers Compensation Act, 

Park Utah Consol. Mines Co, 36 P.2d at 981, while still preserving the 

possibility of a bigger payout in a subsequent tort suit.

¶104 Our concern for fairness ought to spark more than a onesided interest in expanding an employee‘s grounds for recovery. It 

should also lead us to consider the legitimate interests of employers 

in relying on the finality of a workers compensation judgment that is 

both final and satisfied by the employer. We can protect those 

interests without closing the door to an intentional tort suit. 

¶105 An employee who believes she is the victim of a 

workplace act that could alternatively be conceived as either 

accidental or intentional can make an informed election of her 

preferred remedy—of a streamlined workers compensation claim 

(which would hold the promise of defined benefits without regard to 

fault) or a more drawn out tort claim (with greater upside in terms of 

damages but the uncertainties inherent in a requirement of proving 

fault). Such a choice may not always be easy2; but I see nothing 

2 The standard for invoking the doctrine of election of remedies 

has nothing to do with the ease of the plaintiff‘s election. Our law 

requires only a ―knowledgeable selection‖ of one remedy over 

another that is ―free of fraud or imposition.‖ Royal Res., Inc. v. 

Gibralter Fin. Corp., 603 P.2d 793, 796 (Utah 1979). That standard is 

easily met here. To the extent a plaintiff like Ms. Helf faces a 

―dilemma,‖ supra ¶ 80, it is only because the choice between a 

streamlined claim for a limited benefit and a more difficult claim 

with greater upsides is an inherently difficult one. That has never 

been a basis for overriding the doctrine of election of remedies, 

however, and it should not be such here. See United States v. Oregon 

Lumber Co., 260 U.S. 290, 301 (1922) (explaining that merely 

―underestimat[ing] the strength of [your] cause‖ is not enough to 

avoid the effect of the doctrine of election of remedies; stating that ―if 

that were sufficient to warrant the bringing of a second and 
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ASSOCIATE CHIEF JUSTICE LEE, dissenting

37

unfair about holding a plaintiff to the election she made voluntarily. 

Our law of election of remedies has long held the plaintiff to that 

choice. It is unfair to the employer to abandon that law in a manner 

that gives the plaintiff all of the upsides of a workers compensation 

claim without granting the employer the benefit of the guarantee of 

the exclusive remedy provision of the Workers Compensation Act. 

¶106 A worker who sues and recovers on a workers 

compensation claim has the benefit of the exclusive remedy assured 

to her under the Workers Compensation Act. That is the course that 

Ms. Helf chose in this case, and she should be held to that choice. 

¶107 The opposite course—of suing on an intentional tort 

instead of filing a workers compensation claim—may be 

economically taxing to a plaintiff. See supra ¶ 80 (raising concerns 

about a plaintiff‘s ability to ―survive without any benefits‖ during 

―potentially protracted litigation‖). But that is the whole point of the 

workers compensation scheme. The statute provides a streamlined 

mechanism for an award of benefits without regard to proof of fault 

in order to minimize the hardship to employees who are injured on 

the job. There is a quid pro quo for that streamlined process, however. 

In exchange for streamlined benefits the statute cuts off the 

employee‘s right to sue in tort. 

¶108 I dissent from a decision that preserves the benefit of the

workers compensation bargain for employees while depriving 

employers of their side of the deal. Policy concerns over the fairness 

of the exclusive remedy provision should be directed to the 

legislature. We overstep our authority in bending the law of election 

of remedies in a manner overriding the clear terms of the Workers 

Compensation Act.3

 

inconsistent action the result would be to confine the defense of 

election of remedies to cases where the first suit had been won by 

[the] plaintiff and to deny it in all cases where plaintiff had lost,‖ and 

that election is ―determined by the bringing and maintenance of the 

suit, not by the final disposition of the case by the court‖).

3 The majority‘s decision to recognize an employer‘s right to seek 

reimbursement for workers compensation benefits paid by an 

employer or insurer, supra ¶ 86, is perhaps laudable as a matter of 

policy or fairness. But it only highlights the fact that the court is 

overwriting the clear terms of the Workers Compensation Act. The 

statute, of course, has no provision for such a claim for 

reimbursement. So the majority‘s decision can only be understood as 

a judicial rewrite—a decision to fill in a hole that the court finds in 

the terms of the statute (a hole created by our decisions in Bryan v. 
HELF v. CHEVRON

ASSOCIATE CHIEF JUSTICE LEE, dissenting

38

¶109 The cases cited by the majority, supra ¶ 83 n.10, are 

unpersuasive for two reasons. First, the holdings of two of those 

cases were mandated by state statutes establishing an intentional tort 

exception to the applicable exclusive remedy provision.4 Second, the 

remaining cases speak only to the common law question presented—

of the fairness of giving effect to the doctrine of election of remedies 

in a manner cutting off claims of employees,5 or of the policy concern 

 

Utah Internationall, 533 P.2d 892 (Utah 1975) and Helf v. Chevron 

U.S.A., Inc., 2009 UT 11, 203 P.3d 962).

4 See Gagnard v. Baldridge, 612 So. 2d 732, 735 (La. 1993) (―In 1976, 

the legislature amended Section 1032 of the Worker‘s Compensation 

Act to make the exclusive nature of the compensation remedy 

inapplicable to intentional acts.‖); Dominguez ex rel. Hamp v. 

Evergreen Res., Inc., 121 P.3d 938, 943 (Idaho 2005) (―In this case, [the 

petitioner] has alleged a willful or unprovoked physical aggression 

by his employer, and therefore his claim falls into a statutory 

exception to the exclusive remedy rule.‖).

5 See Suarez v. Dickmont Plastics Corp., 639 A.2d 507, 515 & n.9 

(Conn. 1994) (―Although the doctrine of election, to the extent that it 

is designed to prevent double redress for the same injury, has a 

sound basis, it can also serve to destroy all rights under 

compensation acts without justification. . . . To the extent that the 

election requirement may interfere with an injured employee 

receiving compensation for his or her injuries, it should be 

avoided‖); Millison v. E.I. du Pont de Nemours & Co., 501 A.2d 505, 

518–19 (N.J. 1985) (―Precluding plaintiffs from a common-law cause 

of action for intentional wrongs because they have already chosen to 

seek the relief available under workers‘ compensation would be an 

unduly harsh and technical application of the election-of-remedies 

doctrine. . . . Plaintiffs who lose that gamble [of selecting a tort suit 

over workers compensation] will be left totally uncompensated 

. . . .‖); Woodson v. Rowland, 407 S.E.2d 222, 233 (N.C. 1991) (―The 

result thus obtained [allowing simultaneous workers compensation 

claims and tort suits] would be a more equitable one than forcing an 

employee who believes in good faith that he was injured by the 

intentional misconduct of his employer to forgo his compensation 

claim in order to maintain his common law claim.‖) (internal 

quotation marks omitted); Jones v. VIP Development Co., 472 N.E.2d 

1046, 1054 (Ohio 1984) (―To consider the receipt of benefits a 

forfeiture of an employee‘s right to pursue the employer in the 

courts would not only be harsh and unjust, it would also frustrate 

the laudable purposes of the Act . . . .‖).
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ASSOCIATE CHIEF JUSTICE LEE, dissenting

39

regarding perverse incentives for employers.6 That analysis falls 

short, as noted above, because it ignores the interest of fairness to 

employers. But it also fails to account for the clear terms of the 

exclusive remedy provision of the Workers Compensation Act. It is 

one thing to say that a workplace injury sustained as a result of an 

intentional tort is somehow not an ―injury . . . in the course of or 

because of or arising out of the employee‘s employment.‖ UTAH 

CODE § 34A-2-105(1). It is quite another, however, to say that such an 

injury once characterized as such in a suit brought to fruition (and 

satisfaction) by an employee can later lose that character in a 

subsequent suit filed by the same employee.7

¶110 None of the cases cited by the majority offer a basis for 

reconciling the decision to abandon the doctrine of election of 

remedies with the clear terms of the Workers Compensation Act.8 I 

6 Elliott v. Brown, 569 P.2d 1323, 1327 (Alaska 1977) (―We do not 

believe it would be wise public policy to allow an intentional 

tortfeasor to shift his liability for his acts to such a fund. Assaults by 

fellow workers differ not in degree but in kind from the type of harm 

the [workers compensation] statute was enacted to deal with.―).

7 The unfairness of allowing the employee to have it both ways is 

underscored by a straightforward application of the doctrine of issue 

preclusion. Under settled law, the final resolution of an issue in a 

first round of litigation is binding on the same parties in a 

subsequent case. See, e.g., Oman v. Davis Sch. Dist., 2008 UT 70, ¶ 31, 

194 P.3d 956; see also RESTATEMENT (SECOND) OF JUDGMENTS § 27 

(1982). This principle, moreover, is rooted in core concerns as to 

fairness. See, e.g., Jack Faucett Assocs., Inc. v. Am. Tel. & Tel. Co., 744 

F.2d 118, 125 (D.C. Cir. 1984) (―This notion of fairness reflects the 

equitable nature of issue preclusion.‖). It makes little sense to require 

the same parties to relitigate an issue that was conclusively resolved 

in earlier proceedings.

8 For the most part, the cited cases are rooted in the courts‘ 

insistent confidence in their understanding of the true purpose of 

workers compensation—that the ―spirit and purpose‖ of workers 

compensation is compatible with a subsequent suit alleging an 

intentional tort. See Jones v. VIP Dev. Co., 472 N.E.2d 1046, 1054 (Ohio 

1984). Our role in statutory interpretation, however, is not to give 

effect to a law‘s amorphous purpose; it is to follow its text. See Hughes

Gen. Contractor, Inc. v. Utah Labor Comm’n, 2014 UT 3, ¶ 29, 322 P.3d 

712 (―[T]he interpretive function for us is not to divine and 

implement the statutory purpose, broadly defined. It is to construe 

its language.‖); Strohm v. ClearOne Commc’ns, Inc., 2013 UT 21, ¶ 32, 

308 P.3d 424 (―The text of the statutory . . . scheme is the governing 
HELF v. CHEVRON

ASSOCIATE CHIEF JUSTICE LEE, dissenting

40

would give effect to the statute. And I would leave any policy 

concerns regarding the effects on plaintiffs to the process for 

legislative amendment.

II

¶111 Under our rules of civil procedure, ―[o]bjections to the 

competency of a witness or to the competency, relevancy, or 

materiality of testimony are not waived by failure to make them 

before or during the taking of the deposition, unless the ground of 

the objection is one which might have been obviated or removed if 

presented at that time.‖ UTAH R. CIV. P. 32(c)(3)(A). The majority 

views this rule as overriding the ground identified by the district 

court for refusing to consider the deposition testimony advanced by 

Ms. Helf on summary judgment. In the deposition in question, a 

union representative was asked by counsel for Chevron whether the 

dayshift supervisor had any ―role‖ in ―instructing Ms. Helf to 

neutralize the pit on the nightshift.‖ The deponent didn‘t answer 

that question. Instead he volunteered, based on an ―interview‖ that 

the union representative had with the dayshift supervisor, that the 

dayshift supervisor had given a ―turnover to the nightshift 

[supervisor],‖ in which he told him ―what they had tried, what had 

happened, the alarms went off, people ... got sick,‖ or in other words 

―just ma[king] him aware . . . that they got so many complaints of the 

odor, people getting sick and the alarms, that they shut it down.‖ 

 

public policy in this area. . . . By applying the statute as written, we 

remain faithful to the public policy embraced by the legislature.‖); 

Hooban v. Unicity Int’l, 2012 UT 40, ¶ 17, 285 P.3d 766 (―Our 

evaluation of the statute‘s purpose must start with its text . . . .); 

Myers v. Myers, 2011 UT 65, ¶ 28, 266 P.3d 806 (―Our role in 

interpreting this statute is to read and interpret its text‖). Because the 

text of the exclusive remedy provision is clear, moreover, we cannot 

override it with our sense of the legislature‘s true purpose. See Olsen 

v. Eagle Mountain City, 2011 UT 10, ¶ 23 & n.6, 248 P.3d 465 

(―[S]peculation as to a contrary legislative purpose cannot quash our 

construction of the plain language.‖); Schroeder Invs., L.C. v. Edwards, 

2013 UT 25, ¶ 25, 301 P.3d 994 (―[O]verrid[ing] clear statutory text on 

policy grounds misperceives the judicial function.‖ (internal 

quotation marks omitted)); Hooban v. Unicity Int’l, Inc., 2012 UT 40, ¶ 

17, 286 P.3d 766 (―Where the statute‘s language marks its reach in 

clear and unambiguous terms, it is our role to enforce a legislative 

purpose that matches those terms, not to supplant it with a narrower 

or broader one . . . .‖).
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ASSOCIATE CHIEF JUSTICE LEE, dissenting

41

¶112 Chevron‘s counsel made no objection to this testimony 

during the deposition. But in the course of the summary judgment 

proceedings, Chevron did file a motion to strike it, asserting that it 

was hearsay and that the union representative lacked personal 

knowledge. The district court rejected those grounds, but 

nonetheless excluded the testimony on the grounds that it lacked 

foundation and was nonresponsive to the question asked. And the 

court granted Chevron‘s motion for summary judgment on the 

ground that Helf had failed to produce admissible evidence that the 

night supervisor knew that workers had been sickened by the 

neutralization process during the day shift.

¶113 I would affirm that decision. In so doing I would reject the 

argument advanced by Ms. Helf—and endorsed today by the 

majority—deeming the court‘s grounds for excluding the deposition 

testimony subject to waiver under rule 32(c) of the Utah Rules of 

Civil Procedure.

¶114 This rule applies only to objections (as to competency, 

relevance, or materiality) that could have been ―obviated or removed 

if presented at that time.‖ Id. In context, and in line with 

longstanding practice and settled caselaw, such objections are those 

that could be ―obviated or removed‖ by the reformulation of the 

question by the attorney asking it. See, e.g., 21 CHARLES ALAN WRIGHT &

KENNETH W. GRAHAM, JR., FEDEDERAL PRACTICE & PROCEDURE § 

5037.6 (2d ed. 2005); Rosary-Take One Prod. Co. v. New Line Distrib., 

Inc., no. 89 Civ. 1905(CSH), 1996 WL 79328, at *2 (S.D.N.Y. Feb. 23, 

1996). That is the only way an objection along these lines could be 

―obviated or removed,‖ as there is no judge presiding at the 

deposition standing ready to rule on an objection that goes to 

admissibility. Thus, the exception in rule 32(c) has long been 

understood to apply only to objections that can be remedied by a 

reformulation of the question that was posed; for other objections 

(remediable only by a ruling by the court, for example), the general 

rule of non-waiver applies. See 8A CHARLES ALLEN WRIGHT, ARTHUR 

R. MILLER & RICHARD L. MARCUS, 8A FEDERAL PRACTICE & PROCEDURE

§ 2151 (3d ed. 2010).

¶115 This principle is reinforced by at least one of the 

authorities cited by the majority, Jordan v. Medley, 711 F.2d 211 (D.C. 

Cir. 1983). The Jordan case involved a claim for civil assault, and an 

attempt by the plaintiff to introduce evidence of a prior charge 

against the defendant for a crime of assault with a dangerous 

weapon. This matter had come up during a deposition of the 

defendant, in which the defendant was asked about prior charges 

against him, and he responded (without any objection), ―assault with 
HELF v. CHEVRON

ASSOCIATE CHIEF JUSTICE LEE, dissenting

42

a dangerous weapon.‖ Id. at 217. At trial, plaintiff sought to foreclose 

any objection to the admissibility of this evidence under rule 32(c) of 

the Federal Rules of Civil Procedure, asserting that defendant had 

waived his right to object at trial because ―if objection to the inquiry 

concerning criminal charges had been made at the time of the 

deposition, the inquiry could have been limited to criminal 

convictions.‖ Id. at 218. Yet the D.C. Circuit rejected that argument. It 

explained that an objection under these circumstances ―would have 

 ̳obviated or removed‘ the objection only by simultaneously 

eliminating the testimony in question, which is evidently not what 

the Rule has in mind.‖ Id. If that were the law, the court explained, 

―all failures to object would produce a waiver, and the Rule‘s 

exception would be converted into an invariable rule.‖ Id. Because 

rule 32(c) ―obviously envisions‖ a circumstance where ―a timely 

objection (e.g., on the ground of failure to lay an adequate 

foundation) could have enabled the problem to be remedied so that 

the same testimony could be received in accordance with law,‖ the 

court rejected the argument for waiver.9 Id. (citation omitted).

¶116 The same conclusion is appropriate here. The problems 

with the union representative‘s testimony are not issues that could 

have been obviated by a reformulation of the question posed by 

counsel. Instead the issue went to the admissibility of the deponent‘s 

testimony—of his hearsay assertions regarding the statements that 

the day supervisor made to the night supervisor (according to an 

―interview‖ the union representative had with the day supervisor). 

No reformulation of the question could obviate the problems with 

that testimony. An objection could only have ―eliminat[ed] the 

testimony in question, which is evidently not what [rule 32(c)] has in 

mind.‖ Id. There is no way a ―timely objection . . . could have 

enabled the problem to be remedied so that the same testimony could 

be received in accordance with law.‖ Id. So this is not the kind of

objection that Chevron was required to raise during the deposition. 

For that reason the general rule (no objection required) was properly 

invoked by the district court.

¶117 An ―objection‖ is, by its very nature, an assertion raised by 

an opponent. See Wright & Miller, 21 CHARLES ALAN WRIGHT &

KENNETH W. GRAHAM, JR., FEDEDERAL PRACTICE & PROCEDURE § 

9 See also McKelvy v. Darnell, 587 So. 2d 980, 984 (Ala. 1991) (―The 

rule requires that, if a timely objection would enable the questioner 

to remedy the problem so that the same testimony could be received in 

accordance with law, the objection must be made at the time the 

deposition is taken.‖). 
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ASSOCIATE CHIEF JUSTICE LEE, dissenting

43

5037.6 (2d ed. 2005) (―[O]ne must object to a nonresponsive answer 

at the deposition because the proponent could simply ask an 

appropriate question to make the evidence admissible‖). It seems 

more than a little strange to speak of a party‘s duty to object to the 

form of its own question. I would read rule 32(c) in light of this 

understanding. I would limit it to an opposing party‘s objection to a 

question posed to a deponent. See id.; see also McKelvy v. Darnell, 587 

So. 2d 980, 984 (Ala. 1991) (―The rule requires that, if a timely 

objection would enable the questioner to remedy the problem so that 

the same testimony could be received in accordance with the law, the 

objection must be made at the time the deposition is taken‖) 

(emphasis added); Rosary-Take One Prod., 1996 WL 79328, at *2) (―The 

policy underlying the rule is to give the inquiring attorney an 

opportunity to cure the defect . . . .‖ (emphasis added)).

¶118 The majority‘s contrary conclusion may find some support 

in a few outlying cases. See supra ¶ 39 (citing Kirschner v. Broadhead, 

671 F.2d 1034 (7th Cir. 1982)). But it is difficult to reconcile with the 

terms of the rule. An opposition to the admissibility of a deponent‘s 

testimony by the party conducting the deposition is not an objection

that could be obviated by the reformulation of a question; it is a 

motion to strike the answer.

¶119 Today‘s decision will result in no small degree of upheaval 

in deposition practice in Utah. If a party conducting a deposition has 

an obligation to preserve a motion to strike testimony it deems 

inadmissible, depositions are sure to be bogged down in collateral 

objections (raised on the record but with no judge to rule on them).

That practice runs directly contrary to the obvious intent of rule 32. 

See 21 WRIGHT, supra, § 2156 (noting that the rule is aimed at assuring 

that depositions ―not be unduly lengthened or obstructed by 

interposing objections‖). 

¶120 The court‘s new requirement, moreover, will surely catch 

many parties unawares. It will hardly come naturally for an attorney 

conducting a deposition to lay the groundwork for rehabilitating 

testimony that is problematic but inadmissible on its face. But that is 

what the court today requires in reading rule 32(c) to require 

preservation of a motion to strike inadmissible evidence. 

¶121 I respectfully dissent. I would read rule 32(c) to be limited 

to objections by an opponent that could be obviated by the 

reformulation of the deposing party‘s question. And because the 

matter here was not such a matter, I would reject the waiver 

argument raised by Ms. Helf. Absent any argument for waiver, 

moreover, I would affirm the district court‘s decision to strike the 

deposition in question.
HELF v. CHEVRON

ASSOCIATE CHIEF JUSTICE LEE, dissenting

44

¶122 That decision would also lead me to affirm the district 

court‘s decision granting Chevron‘s motion for summary judgment. 

Without this deposition testimony, there was not a sufficient basis in 

the record for a reasonable factfinder to conclude that the Chevron 

night supervisor knew that an injury to Helf was virtually certain to 

occur. For reasons identified by the district court, I would affirm the 

decision granting summary judgment to Chevron even absent an 

election of remedies defense.