This opinion is subject to revision before final

publication in the Pacific Reporter

2015 UT 53

IN THE

SUPREME COURT OF THE STATE OF UTAH

UTAH TRANSIT AUTHORITY, a Utah public transit district,

Appellee,

v.

GREYHOUND LINES, INC., a Delaware corporation,

Appellant.

No. 20131076

Filed July 10, 2015

Third District, Salt Lake

The Honorable Randall N. Skanchy

No. 090915370

Attorneys:

Scott M. Petersen, David N. Kelley, Salt Lake City, for appellee

Karra J. Porter, Sarah E. Spencer, Salt Lake City, for appellant

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

ASSOCIATE CHIEF JUSTICE LEE, JUSTICE DURHAM, JUSTICE 

PARRISH, and JUSTICE HIMONAS joined.

CHIEF JUSTICE DURRANT, opinion of the Court:

Introduction

¶1 We have long strictly construed contractual provisions that 

call for one party to indemnify another, requiring that such 

provisions clearly and unequivocally manifest the intent to do so. In 

this case, we are asked to consider whether we should also strictly 

construe a contractual provision requiring one party to procure 

insurance for the benefit of another.

¶2 We conclude that while an agreement to indemnify is 

similar in some respects to an agreement to procure insurance, the 

policy we have identified as supporting strict construction of the 

former does not apply with equal force to the latter; and we decline, 
UTA v. GREYHOUND

Opinion of the Court

2

for reasons that we will describe, to require that an agreement to 

procure insurance be strictly construed.

¶3 This case involves a lease (Lease Agreement) between

Greyhound Lines, Inc. (Greyhound), the lessee, and Utah Transit 

Authority (UTA), the lessor, for a section of UTA‟s intermodal 

transportation facility (Intermodal Hub). The dispute focuses on 

whether the insurance procurement provision of the Lease 

Agreement (section 10), which required Greyhound to purchase 

commercial general liability insurance covering UTA, required that 

this insurance cover UTA‟s negligent acts. Greyhound argues that 

under our caselaw a rule of strict construction applies to an 

agreement to provide insurance for another‟s benefit. But UTA 

argues that our caselaw does not require that we strictly construe 

such insurance procurement provisions. UTA also claims that under 

traditional contractual interpretation principles, section 10 required 

Greyhound to purchase insurance to cover UTA‟s negligent acts. 

Greyhound failed to purchase the required insurance, and thus UTA 

asserts that Greyhound breached the contract.

¶4 The dispute between UTA and Greyhound arises in the 

context of a slip-and-fall personal injury claim that resulted from 

UTA‟s negligence. A Greyhound passenger, Alma Bradley, was on 

an interstate Greyhound bus trip when she stopped for a layover at 

the Intermodal Hub. During her layover, she walked outside the 

building and fell from a concrete pedestrian ramp. She sustained 

serious injuries. UTA admitted negligence in not installing a 

handrail on the pedestrian ramp. The injured passenger 

subsequently submitted a claim to UTA to recover for her injuries. 

UTA ultimately settled the claim for $50,000 and an agreement to 

satisfy any resulting Medicare liens. UTA requested that Greyhound 

reimburse it for the cost of the claim under section 10 of the Lease 

Agreement. Greyhound again refused and this litigation resulted. 

¶5 The district court issued a memorandum decision and a

subsequent order on the parties‟ cross motions for summary 

judgment. In this order, the district court held (1) that the insurance 

procurement provision of the Lease Agreement is not subject to strict 

construction under Utah law; (2) that UTA was required under the 

Lease Agreement to secure insurance that covered UTA‟s negligent 

acts; (3) that Ms. Bradley‟s personal injury claim triggered 

Greyhound‟s duty to provide insurance under the Lease Agreement; 

and (4) that Greyhound breached the contract by not securing 

insurance. The court entered judgment against Greyhound, 

awarding UTA damages for the breach. These damages included 
Cite as: 2015 UT 53

Opinion of the Court

3

recovery for all of Ms. Bradley‟s settlement and UTA‟s attorney fees 

and costs.

¶6 Greyhound has appealed the district court‟s decision on 

summary judgment and now asks us to review three issues: 

(1) whether under Utah law, an agreement to procure insurance for 

the benefit of another must be strictly construed; (2) whether the 

district court erred when it concluded that Ms. Bradley‟s claim 

triggered Greyhound‟s duty to procure insurance; and (3) whether

the district court abused its discretion in awarding UTA‟s attorney 

fees. We affirm the district court‟s decision on all issues. We clarify 

that under Utah law, an agreement to procure insurance for the 

benefit of another is not subject to strict construction. Also, we 

conclude that under the traditional rules of contractual 

interpretation, Greyhound‟s duty to provide insurance to UTA was 

triggered, and this duty included the duty to provide insurance that 

covered UTA‟s negligent acts. As a result, we uphold the district 

court‟s finding that Greyhound breached the Lease Agreement. 

Finally, we uphold the district court‟s attorney fee award because it 

is reasonable and based on sufficient evidence in the record.

Background

¶7 Greyhound and UTA entered into a Lease Agreement on 

August 2, 2005.1 Greyhound leased a portion of UTA‟s Intermodal 

Hub, located in downtown Salt Lake City, as a passenger bus 

terminal for its interstate bus service. This case involves the 

interpretation of the Lease Agreement‟s indemnity and insurance 

procurement provisions as they relate to a slip-and-fall accident that 

occurred on the leased premises. UTA has admitted that the slipand-fall accident resulted from its own negligence. 

¶8 On March 18, 2008, Ms. Alma Bradley was on a Greyhound 

bus trip between California and Idaho when she stopped for a 

layover at the Intermodal Hub. During her layover, Ms. Bradley 

walked outside the building, in the common area covered by the 

Lease Agreement, and fell from a concrete pedestrian ramp. She 

sustained serious injuries. UTA has admitted that it was negligent in 

not installing a handrail on the pedestrian ramp. Ms. Bradley 

subsequently submitted a claim to UTA to recover for her injuries. 

1 We note that, while Greyhound was an original party to the 

lease, UTA took an assignment of the rights and obligations of the 

Lease Agreement from the prior facility owner, Salt Lake City, on 

March 12, 2007.
UTA v. GREYHOUND

Opinion of the Court

4

UTA requested that Greyhound “defend, indemnify and hold UTA 

harmless” from Ms. Bradley‟s claim. Greyhound refused. UTA 

ultimately settled the claim for $50,000 and an agreement to satisfy 

any of Ms. Bradley‟s resulting Medicare liens. After the settlement, 

UTA requested that Greyhound reimburse it for the cost of 

Ms. Bradley‟s claim. UTA sought reimbursement under section 10 of 

the Lease Agreement, the insurance procurement provision. 

Greyhound again refused and UTA filed a complaint in September 

2009, claiming breach of contract, breach of the duty of good faith 

and fair dealing, and breach of fiduciary duty. 

¶9 The parties‟ dispute focuses on the proper interpretation of 

the Lease Agreement‟s indemnity and insurance procurement 

provisions. Greyhound argues that the insurance procurement 

provision did not require it to purchase insurance to cover UTA for 

liability arising from its own negligent acts (or provide such 

coverage through self-insurance); and therefore, it did not breach the 

contract by failing to purchase insurance from a third party or failing 

to self-insure. Greyhound argues that it did not have a duty to 

provide insurance for UTA‟s negligence, because the insurance 

procurement provision did not clearly and unequivocally state that 

the insurance Greyhound was to provide necessarily covered UTA‟s 

negligent acts. Greyhound argues that our caselaw, which requires 

strict construction of indemnity provisions, should apply with equal 

force to insurance procurement provisions. Further, Greyhound 

claims that even if we decline to apply strict construction and instead 

apply traditional rules of contractual interpretation, it still did not 

have a duty under the Lease Agreement to provide insurance for 

UTA‟s negligence. Greyhound asserts that reading the insurance 

procurement provision to require that the insurance cover UTA‟s 

negligent acts renders the indemnity provision, in which UTA 

indemnifies Greyhound for UTA‟s negligent acts, superfluous. 

Greyhound also argues that Ms. Bradley‟s injury did not “arise from 

[Greyhound‟s] use, occupancy, maintenance, and operations under 

[the] Lease,” so the insurance provision was not triggered and thus 

Greyhound had no duty to insure UTA for the incident. 

¶10 UTA argues that the “clear and unequivocal” interpretive 

standard applies only to indemnity provisions, not to insurance 

procurement provisions, and that Greyhound breached the contract 

by not purchasing third-party liability insurance covering UTA‟s 

negligence, or self-insuring for the same. UTA also argues that the 

insurance procurement and indemnity provisions can be clearly 

harmonized even if the insurance provision is read to require 

coverage for its negligent acts. 
Cite as: 2015 UT 53

Opinion of the Court

5

¶11 The insurance provision in section 10(h) of the Lease 

Agreement provides,

[Greyhound], subject to the self-insurance provisions 

above, at its own costs and expense, shall secure and 

maintain during the term of this Lease, including all 

renewal terms, the following insurance coverage:

(1) Third Party Liability

Commercial general liability insurance with 

[UTA] named as an additional insured, in the 

minimum amount of $1,000,000 per 

occurrence with a $5,000,000 general 

aggregate. The policy shall protect [UTA], 

[Greyhound], and any subcontractor to 

[Greyhound] from liabilities and claims for 

damages for personal injury, bodily injury, 

including accidental death, and from claims 

for property damage that may arise from 

[Greyhound‟s] use, occupancy, maintenance, 

and operations under this Lease, whether 

performed by [Greyhound] itself, any 

subcontractor, or anyone directly or 

indirectly employed by either of them. 

(Emphasis added).

Greyhound failed to obtain commercial general liability insurance 

and denied UTA‟s request that Greyhound self-insure for the claim.2

2 We note that under section 10(a) of the Lease Agreement, 

[f]or any and all types of insurance required in this 

Lease, [Greyhound] may satisfy its requirement 

through a lawfully established self-insurance program. 

Any such self-insurance program shall be subject to 

[UTA‟s] right to verify the adequacy of [Greyhound‟s] 

financial resources available to fund such a program on 

an as needed basis. [Greyhound] shall provide [UTA] 

evidence of self-insurance in a form approved by 

[UTA], on an annual basis within 30 days prior to the 

anniversary date of the Commencement Date.

It is unclear whether Greyhound followed the prescribed steps to 

self-insure under the section 10(a) of the contract. But it is clear that 

when UTA requested that Greyhound cover it for the settlement 

amount, Greyhound declined.
UTA v. GREYHOUND

Opinion of the Court

6

¶12 The Lease Agreement also contained an indemnity 

provision, set forth in section 11, providing that Greyhound would 

indemnify UTA for claims arising from Greyhound‟s negligence in 

certain cases and that UTA would indemnify Greyhound for acts of 

UTA‟s negligence. The pertinent language describing UTA‟s 

indemnification of Greyhound is as follows:

[UTA] shall indemnify, save harmless and defend 

[Greyhound], its agents and employees from and against 

all claims, mechanic liens, damages, actions, costs, 

charges and other liabilities for property damage or

injury or death to persons, including attorney‟s fees, 

arising out of or by reason of [UTA’s] negligent or willful 

acts or omissions relating to any of its undertakings 

hereunder. (Emphasis added).

Greyhound also points to language in sections 4, 6, and 12 of the 

Lease Agreement to establish that UTA had a duty to provide a 

facility that complied with applicable ordinances and regulations,3

had no adverse physical or structural conditions,4 and was properly 

maintained.5 The Lease Agreement also contains language 

concerning attorney fees. Section 32 states, “[i]n the event either 

Party enforces the terms of this Lease by suit or otherwise, the Party 

found to be at fault by a court of competent jurisdiction shall pay the 

cost and expense incurred thereby, including reasonable attorney‟s 

fees.”

3 Section 4 of the Lease Agreement provides in relevant part, 

“[UTA] represents to [Greyhound] that the Leased Premises and 

Common Area will comply with all applicable zoning requirements, 

ordinances, regulations, and all applicable laws, affecting the Leased 

Premises and Common Area and/or required in [Greyhound‟s] use 

of the Leased Premises and Common Area including the Americans 

with Disabilities Act (or other laws affecting handicapped access).”

4 Section 6(e) states, “[UTA] hereby represents to [Greyhound], to 

the best of [UTA‟s] knowledge, that as of the Commencement Date . . 

. there is no adverse fact relating to the physical, mechanical or 

structural condition of the Leased Premises or any portion thereof 

which has not been specifically disclosed to [Greyhound].”

5 Section 12(b) states that, among other maintenance 

responsibilities, “[UTA] shall maintain and keep in good repair . . . 

the physical integrity of . . . sidewalks and walkways.” 
Cite as: 2015 UT 53

Opinion of the Court

7

¶13 The parties filed cross-motions for summary judgment. And 

after a hearing, the district court held (1) that the clear and 

unequivocal standard does not apply to insurance procurement 

provisions under Utah law; (2) that the insurance procurement 

provision in section 10(h) of the Lease Agreement required 

Greyhound to obtain commercial general liability insurance to 

protect UTA from claims arising from Greyhound‟s “use, occupancy, 

maintenance and operations under the Lease” and included 

“liabilities and claims caused by UTA‟s own negligence;” (3) that 

Ms. Bradley‟s claim did “arise from” Greyhound‟s use of the facility 

under the Lease Agreement; (4) that Greyhound failed to obtain 

commercial general liability insurance covering UTA for 

Ms. Bradley‟s claim; and (5) that this failure was a breach of the 

Lease Agreement. The district court then granted UTA‟s motion for 

summary judgment, denying Greyhound‟s motion. 

¶14 Subsequently, the district court awarded UTA damages that 

included the $50,000 UTA had paid to Ms. Bradley and ordered 

Greyhound to satisfy Ms. Bradley‟s future Medicare liens, if any. The 

district court also awarded UTA attorney fees and costs pursuant to 

section 32 of the Lease Agreement in the amount of $48,811.55 in fees 

and $610 in costs. Greyhound appeals. We have jurisdiction under 

Utah Code section 78A-3-102(3).

Standard of Review

¶15 Greyhound presents three issues on appeal. First, 

Greyhound argues that the district court should have held that the 

insurance procurement provision was subject to strict construction 

under Utah law. Second, Greyhound argues the district court erred 

in holding that Ms. Bradley‟s claim “arose from [Greyhound‟s] use 

occupancy, maintenance and operations” under the Lease 

Agreement. “An appellate court reviews a [district] court‟s legal 

conclusions and ultimate grant or denial of summary judgment for 

correctness and views the facts and all reasonable inferences drawn 

therefrom in the light most favorable to the nonmoving party.”6

¶16 Finally, Greyhound argues the district court abused its 

discretion in awarding UTA attorney fees. “Calculation of reasonable 

attorney fees is in the sound discretion of the [district] court, and will 

not be overturned in the absence of a showing of a clear abuse of 

6 Bingham v. Roosevelt City Corp., 2010 UT 37, ¶ 10, 235 P.3d 730 

(internal quotation marks omitted).
UTA v. GREYHOUND

Opinion of the Court

8

discretion.”

7 Also, although “an award of attorney fees must be 

supported by evidence in the record,” the district court “enjoy[s]

broad discretion in evaluating evidence to determine what 

constitutes a reasonable fee.”8

Analysis

¶17 Below, we discuss each issue presented by Greyhound in 

turn. First, we address Greyhound‟s argument for strict construction 

of insurance procurement provisions. We conclude that strict 

construction does not apply to an agreement to provide insurance 

for another‟s benefit. We have never held that such an agreement 

must be strictly construed, and overarching policy considerations 

weigh in favor of not adopting such a rule. Second, we interpret the 

Lease Agreement and uphold the district court‟s conclusion that Ms. 

Bradley‟s claim arose out of Greyhound‟s use of the premises and 

that the indemnification and insurance procurement provisions can 

be harmonized. Finally, we uphold the attorney fee award because 

the district court found the attorney fees reasonable and necessary, 

and it based this finding on sufficient evidence in the record.

I. An Agreement to Procure Insurance Is Distinguishable From an 

Agreement to Indemnify and Is Not Subject to a

Strict Construction Rule

¶18 We affirm the district court‟s holding that a contractual 

obligation to procure insurance for the benefit of another is not 

subject to strict construction. Contrary to Greyhound‟s assertion, we 

have never required strict construction of such provisions, and 

important policy considerations support not adopting such a rule. 

Below, we first review our caselaw, concluding that we have not 

adopted a rule of strict construction in this context. We then discuss 

why we decline to adopt such a rule.

A. We Have Not Adopted a Rule of Strict Construction in the 

Insurance Procurement Context

¶19 Although the parties highlight tension in Utah caselaw 

regarding the application of the rule of strict construction to 

insurance procurement provisions, we now clarify that we have not 

adopted such a rule. Greyhound points to language in Freund v. Utah 

7 2 Ton Plumbing, L.L.C. v. Thorgaard, 2015 UT 29, ¶ 53, 345 P.3d 

675 (internal quotation marks omitted).

8 Id. (internal quotation marks omitted).
Cite as: 2015 UT 53

Opinion of the Court

9

Power & Light Co.,

9 along with federal caselaw, to support the 

application of strict construction to agreements to provide insurance 

for the benefit of another. But UTA points to the rule announced by 

the Utah Court of Appeals in Pickhover v. Smith’s Management Corp.10

and applied in subsequent appeals court cases to argue that strict 

construction does not apply to insurance procurement provisions. 

The Pickhover court held that “an agreement to provide insurance for 

another‟s benefit, while analogous in some respects to an agreement 

to indemnify another for the consequences of its own negligence, is 

not subject to the strict construction rule.”11 In Freund, we did not 

directly confront and analyze the issue now before us, and we 

decline to apply a rule of strict construction based on this case. 

Instead, we conclude that insurance procurement provisions are 

distinguishable from indemnity provisions and are not subject to 

strict construction.

¶20 As a starting point, both parties recognize, “[i]n a long line 

of cases spanning more than fifty years, we have repeatedly held 

that an indemnity agreement which purports to make a party 

respond for the negligence of another should be strictly construed.”12

The rule of strict construction requires that if a party intends to 

“assume ultimate financial responsibility for negligence of another,” 

then that intention must be “clearly and unequivocally expressed.”13

The main policy rationale for this rule is that transferring liability for 

one‟s negligence “would tend to encourage carelessness and would 

not be salutary either for the person seeking to protect himself or for 

those whose safety may be hazarded by his conduct.”14

¶21 We have not adopted a rule of strict construction of 

insurance procurement provisions. As discussed below, we did not 

announce a rule of strict construction in Freund and the court of 

appeals, the only Utah court to fully analyze the issue, held that 

strict construction does not apply to an agreement to provide 

9 793 P.2d 362, 372−73 (Utah 1990).

10 771 P.2d 664 (Utah Ct. App. 1989).

11 Id. at 667.

12 Freund, 793 P.2d at 370.

13 Id. (internal quotation marks omitted).

14 Union Pac. R.R. Co. v. El Paso Natural Gas Co., 408 P.2d 910, 913 

(Utah 1965).
UTA v. GREYHOUND

Opinion of the Court

10

insurance for another‟s benefit.15 In Freund, the Tenth Circuit Court 

of Appeals certified several questions to this court, including

whether it is a correct interpretation of Utah law that 

an agreement to purchase insurance to cover a third 

party‟s own negligence is governed by the same rule of 

construction as an indemnification agreement to 

indemnify a third party for its own negligence 

according to the Tenth Circuit‟s decision in Kennecott 

Copper Corp. v. General Motors Corp.

16

¶22 Kennecott Copper involved a purchase order for the lease of 

dump trucks between General Motors (the lessor) and Kennecott 

Copper (the lessee).17 The purchase order stated that “Kennecott will 

provide liability and property insurance related to possession and 

operation of the units.”18 Kennecott purchased insurance, and 

subsequently one of the trucks sustained extensive damage due to 

General Motors‟ negligence.19 Kennecott and the insurance company 

paid for the damages and then instituted a claim against General 

Motors.20 General Motors argued that it was a beneficiary of the 

policy and thus immune from the claim.21 The court held that under 

Utah law agreements to purchase insurance for another‟s benefit 

were strictly construed.22 The court then concluded that the purchase 

order language did not clearly and unequivocally require the lessee 

to purchase design insurance. Therefore, the court reasoned, 

Kennecott did not owe General Motors insurance for this accident.23

¶23 In Freund, we briefly discussed the rule announced by the 

Tenth Circuit in Kennecott Copper and the holding in that case. We 

15 Pickhover, 771 P.2d at 667.

16 Freund, 793 P.2d at 364.

17 Kennecott Copper Corp. v. Gen. Motors Corp., 730 F.2d 1380, 1381 

(10th Cir. 1984).

18 Id. (internal quotation marks omitted).

19 Id.

20 Id.

21 Id. at 1382.

22 Id. at 1382−83.

23 Id. at 1383.
Cite as: 2015 UT 53

Opinion of the Court

11

then stated that “[w]e have no quarrel with that result.”24 But we did 

not apply a rule of strict construction to the insurance procurement 

provision in Freund. Instead, we concluded that because the 

indemnification provision in the contract at issue clearly and 

unequivocally covered the other party‟s negligence, the insurance 

procurement provision in that contract should be interpreted under 

traditional rules of contractual interpretation.25 We also stated that 

“[a] heightened rule of construction is not warranted” and cited 

Pickhover favorably. And as explained below, Pickhover clearly states 

that a rule of strict construction does not apply to agreements to 

procure insurance for the benefit of another under Utah law.26

¶24 Our decision in Freund does not announce a rule of strict 

construction of agreements to provide insurance for another‟s 

benefit. Greyhound argues that our statement that we have “no 

quarrel” with the result in Kennecott Copper endorsed the rule stated 

therein, requiring strict construction of insurance procurement 

provisions under Utah law. We decline to read Freund in this manner 

for several reasons. First, we did not directly state support for a rule 

of strict construction of insurance procurement provisions in Freund, 

but merely stated that “[w]e have no quarrel with that result” when 

discussing the outcome of Kennecott Copper. While this language 

supports the result of Kennecott Copper, it does not adopt the rule of 

strict construction stated therein. 

¶25 Second, in Freund, we did not apply a rule of strict 

construction to the insurance procurement provision. Instead, we 

concluded that because the indemnification provision clearly 

covered the indemnitee‟s negligence, the insurance procurement 

clause would be “construed as any other contractual language.”27

24 Freund, 793 P.2d at 372 (holding that “a further provision in that 

agreement to fund that indemnification by purchasing insurance 

should be construed as any other contract language” when the 

indemnification provision expressed a clear and unequivocal intent 

to cover the other party‟s negligence).

25 Id.

26 Id. at 373; see Pickhover, 771 P.2d at 667, 670 (stating that “[t]he 

Utah cases referred to by the Tenth Circuit in Kennecott Copper do not 

support its conclusion that contracts to provide insurance are subject 

to the strict construction rule” and later announcing that “the rule [of 

strict construction] applies only to indemnity provisions”).

27 Freund, 793 P.2d at 372.
UTA v. GREYHOUND

Opinion of the Court

12

After applying the rule above, we stated, “[a] heightened rule of 

construction is not warranted” and cited favorably to Pickhover, 

which clearly states that a rule of strict construction does not apply 

to insurance procurement provisions.28

¶26 Finally, in Freund we narrowed the rule of strict construction 

for indemnification agreements by recognizing the “growing trend 

to relax some of the strictness of the rule of construction when 

indemnity arises in a commercial context.”29 We found it appropriate 

to “evaluat[e] the indemnification agreement according to the 

objectives of the parties and the surrounding facts and 

circumstances”—such as whether the parties are sophisticated 

commercial entities contracting at arm‟s length.30 Thus, a close 

reading of Freund shows that we did not state a broad rule of strict 

construction for insurance procurement provisions that required 

coverage of another‟s negligence.

¶27 The only Utah court to fully analyze the issue now before us 

is the court of appeals in Pickhover. There, the court directly 

addressed the issue and was “convinced that an agreement to 

provide insurance for another‟s benefit, while analogous in some 

respects to an agreement to indemnify another for the consequences 

of its own negligence, is not subject to the strict construction rule.”31

In that case, the court was construing a contract with an insurance 

procurement provision, but no indemnification provision. The 

parties had executed a purchase agreement where the purchaser, 

Young Electric Sign Company (YESCO), agreed to provide insurance 

to the purchasee, Marveon.32 The purchase agreement stated,

[YESCO] agrees . . . to provide, at its expense, 

insurance coverage adequate to fully protect [Marveon] 

against property damage . . . or personal injury or 

death claims arising out of the ownership, 

maintenance, use, service, transportations [sic], or 

28 Id. at 373.

29 Id. at 370.

30 Id.

31 771 P.2d at 667.

32 Id. at 665−66.
Cite as: 2015 UT 53

Opinion of the Court

13

installation of [signs] in a minimum amount of One 

Million Dollars ($1,000,000.00).33

YESCO failed to provide the insurance.34 Subsequently, 

Mr. Pickhover was killed when a sign installed by Marveon fell on 

him.35 Mr. Pickhover‟s estate filed a wrongful death suit against 

YESCO, Marveon, and additional defendants.36 It was eventually 

established that Marveon had negligently installed the sign.37 The 

district court ruled that Marveon was entitled to indemnification by 

YESCO for up to $1 million, the amount specified in the insurance 

provision.38

¶28 The issue presented to the court of appeals was whether the 

insurance procurement provision of the contract “require[d] YESCO 

to provide an insurance policy covering the financial consequences 

of Marveon‟s own negligence.”39 YESCO argued, as Greyhound does 

here, that under Utah law an agreement to procure insurance is 

analogous to an indemnification provision and “therefore, the same 

standard of strict interpretation is applicable.”40 YESCO went on to 

argue that the insurance procurement provision failed to meet the 

strict standard and thus it should not be liable to Marveon when 

Marveon‟s negligence caused the injury.41

¶29 The court then fully analyzed whether strict construction 

applies to agreements to procure insurance for the benefit of another 

under Utah law. The court examined federal caselaw, including the 

strict construction rule announced in Kennecott Copper, and 

concluded that “Kennecott Copper misconstrues Utah law.”42 The 

court then announced that indemnification and insurance 

33 Id. at 665−67 (alterations in original) (internal quotation marks 

omitted).

34 Id. at 666.

35 Id.

36 Id.

37 Id. at 666 n.1.

38 Id. at 666.

39 Id.

40 Id.

41 Id.

42 Id. at 667.
UTA v. GREYHOUND

Opinion of the Court

14

procurement provisions are distinguishable. It held that strict 

construction was not warranted in the insurance procurement 

context.43 The court found support for this rule from the modern 

trend of limiting application of strict construction in favor of 

freedom of contract, in shifting policy considerations, and in 

supportive caselaw from other jurisdictions.44 UTA also cites to two 

additional cases from the court of appeals that apply the rule 

announced in Pickhover.

45

B. Agreements to Procure Insurance for Another’s Benefit Are Not 

Subject to Strict Construction Under Utah Law

¶30 Having concluded that Freund does not require a broad rule 

of strict construction, we decline to extend strict construction to 

insurance procurement provisions because key differences between 

indemnity and insurance procurement provisions make strict 

construction less appropriate in the insurance procurement context.

¶31 Strict construction is a limitation on the parties‟ freedom to 

contract. Instead of applying traditional rules of construction aimed 

at determining what the parties intended by the contractual 

language, the court imposes a requirement that certain language 

must be used to clearly and unequivocally show the parties‟ intent. 

A rule of strict construction could, therefore, hinder a party‟s ability 

to freely contract and allocate risk. In general, courts are loath to 

interfere with parties‟ ability to contract freely.46 We have recognized 

that “[i]t is not [the court‟s] prerogative to step in and renegotiate the 

43 Id. at 670.

44 Id. at 667−70.

45 See Christiansen v. Holiday Rent-A-Car, 845 P.2d 1316, 1322 (Utah 

Ct. App. 1992) (“Applying the principles of Pickhover and Richmond

to the instant facts, we conclude that [the lessee] is liable to the 

[sublessor] for any amount that [the lessee‟s insurance company] 

would have been obligated to pay on behalf of [the lessee] under the 

terms of the policy which should have been procured by [the 

lessee].”); Fashion Place Inv., Ltd. v. Salt Lake Cnty., 776 P.2d 941, 944 

(Utah Ct. App. 1989) (holding that “[s]ince [the plaintiff] agreed to 

provide insurance for the benefit of its tenant, Salt Lake County, we 

hold that the strict construction rule does not apply, but instead, we 

follow the modern trend and conclude that the lease clearly imposes 

the responsibility for providing fire insurance on the landlord”).

46 See Commercial Real Estate Inv., L.C. v. Comcast of Utah II, Inc., 

2012 UT 49, ¶ 38, 285 P.3d 1193.
Cite as: 2015 UT 53

Opinion of the Court

15

contract of the parties.”

47 “Instead, unless enforcement of [the 

contract] would be unconscionable, we should recognize and honor 

the right of persons to contract freely and to make real and genuine 

mistakes when dealings are at arms‟ length.”48 Further, “[a] contract 

functions in part to apportion risk of future events between the 

contracting parties. . . . [and] parties are free to allocate the risk of 

future events between them however they wish.”49

¶32 In essence, the bargained-for-exchange in an insurance 

procurement provision puts the economic burden of obtaining 

insurance on the procuring party in order to shift the risk to a thirdparty insurer.50 As the court of appeals stated, “[a]n agreement to 

provide insurance merely allocates an economic burden on one party 

to make a payment to protect another after the parties have 

ultimately decided to shift the risk of loss . . . upon an insurer.”51

Because a commercial general liability policy, such as the one 

referenced in the Lease Agreement, typically includes coverage for 

the named parties‟ negligence,52 applying strict construction could 

undermine the bargained-for-exchange of the parties. 

47 Id. (internal quotation marks omitted).

48 Id. (internal quotation marks omitted).

49 Deep Creek Ranch, LLC v. Utah State Armory Bd., 2008 UT 3, ¶ 19, 

178 P.3d 886.

50 See Pickhover, 771 P.2d at 668.

51 Id. (second alteration in original) (internal quotation marks 

omitted).

52 Black‟s Law Dictionary defines a “commercial general-liability

policy” broadly as “[a] comprehensive policy that covers most 

commercial risks, liabilities, and causes of loss. This type of policy 

covers both business losses and situations in which a business is 

liable to a third party for personal injury or property damage.” 

BLACK‟S LAW DICTIONARY 877 (9th ed. 2009). Others have noted that 

commercial general liability insurance is a “type[] of negligence 

liability insurance,” which generally covers the insured‟s negligence. 

Vickie Bajtelsmit & Paul D. Thistle, The Reasonable Person Negligence 

Standard and Liability Insurance, 75 J. RISK & INS. 815, 816 (2008); see

also James E. Joseph, Indemnification and Insurance: The Risk Shifting 

Tools (Part II), 80 PA. B. ASS‟N.Q. 1, 11 (2009) (“The purpose of 

commercial general liability insurance is to protect a business against 

unforeseen third-party liability. Generally, this covers personal 

injury and property damage caused by the negligence of the insured 

(Continued)
UTA v. GREYHOUND

Opinion of the Court

16

¶33 The differences between an insurance procurement 

provision and indemnity provision make strict construction less 

appropriate in the insurance provision context. Indemnification 

typically imposes a broad “duty to make good any loss, damage, or 

liability incurred by another.”53 This expansive duty, which usually 

contains no limits or bounds, exposes the indemnitor to potentially 

enormous liability from the actions of the indemnitee. In contrast, an 

insurance procurement provision is normally limited in substantive 

ways. A party obligated to procure commercial general liability 

insurance assumes much less risk than it would if it was 

indemnifying the other party for its negligence. The party that 

agreed to procure insurance need only pay the premium and the 

insurer then assumes the risk of loss, within the limits of the policy. 

¶34 Even in the self-insurance context insurance procurement is 

distinguishable from indemnity. We recognize that a contract could 

include a broad self-insurance provision that would be 

indistinguishable from an indemnity provision, but that is not the 

contract before us. Here, the contract allows the procuring party to 

self-insure but the self-insurance is limited in the same way 

insurance policies are typically limited—with a maximum benefit 

and limited coverage.54 Because an agreement to indemnify is 

broader, potentially exposing the indemnitor to unlimited liability, a 

rule of strict construction is more appropriate in that setting. But in 

the narrower context of an insurance procurement provision, where 

the procuring party‟s only obligation is to purchase insurance, the 

need for strict construction is less. This is especially true when 

 

business.”); Christina Ross et al., Limiting Liability in the Greenhouse: 

Insurance Risk-Management Strategies in the Context of Global Climate 

Change, 26A STAN. ENVTL. L.J. 251, 283 (2007) (“The standard 

Commercial General Liability insurance line (CGL) covers a range of 

risks that businesses impose on third parties, including negligent 

conduct and other conduct that poses risks to others‟ health, life, 

business operations, or property.”).

53 BLACK‟S LAW DICTIONARY 837 (9th ed. 2009) (defining 

“indemnity”).

54 Section 10 provides that the policy will include “the minimum 

amount of $1,000,000 per occurrence with a $5,000,000 general 

aggregate” and provides coverage for “damages for personal injury, 

bodily injury, including accidental death, and from claims for 

property damage that may arise from Tenant‟s use, occupancy, 

maintenance and operations under this Lease.”
Cite as: 2015 UT 53

Opinion of the Court

17

viewed in the context of the countervailing policy of limiting judicial 

interference with the parties‟ ability to contract freely.

¶35 Because of these distinctions, the policy rationale for strictly 

construing agreements to indemnify has less applicability to 

agreements to procure insurance. The main policy support for strict 

construction of indemnity agreements is that relieving the 

indemnitee of liability for negligence “would tend to encourage 

carelessness and would not be salutary either for the person seeking 

to protect himself or those whose safety may be hazarded by his 

conduct.”55 This policy does not apply with the same force to 

insurance procurement provisions.

56 Insurance contracts typically 

have a deductible, a maximum limit, and a limit on the types of 

claims covered. Because an insurance policy covering liability is 

narrower than an indemnity provision, the policy argument we 

advanced in Union Pacific Railroad with respect to indemnity 

provisions is significantly weaker when applied to insurance 

procurement provisions.

¶36 Finally, in declining to extend strict construction to 

insurance procurement provisions, we note the trend under Utah 

law to limit the scope of the strict construction rule even in the 

indemnity context. Over the past seventy-five years, we have 

moderated our construction of indemnity provisions. In 1936, we 

stated that “[i]t is very doubtful that defendant could relieve itself by 

contract from its own negligence. Ordinarily such contracts are 

contrary to public policy.”57 Two decades later, we applied a rule of 

strict construction to indemnity provisions, rather than deeming 

them to be void as against public policy.58 Finally, in 1990, in Freund, 

we favorably noted the “growing trend to relax some of the 

55 Union Pacific R.R., 408 P.2d at 913.

56 See James M. Fischer, The Presence of Insurance and the Legal 

Allocation of Risk, 2 CONN. INS. L.J. 1, 6 (1996) (“It is generally 

conceded today that such loss spreading by insurance is socially 

beneficial and does not undermine any remaining deterrence or 

penal aspects of liability law.”). See generally Gary T. Schwartz, The 

Ethics and the Economics of Tort Liability Insurance, 75 CORNELL L. REV.

313, 313−14 (1990) (analyzing “the relationship between liability 

insurance and tort law‟s fairness and deterrence objectives”).

57 Jankele v. Texas Co., 54 P.2d 425, 427 (Utah 1936).

58 Walker Bank & Trust Co. v. First Sec. Corp., 341 P.2d 944, 947 

(Utah 1959).
UTA v. GREYHOUND

Opinion of the Court

18

strictness of the rule of construction when the indemnity arises in a 

commercial context.”59 We found it appropriate when strictly 

construing an indemnity provision to consider the “objectives of the 

parties and the surrounding facts and circumstances”—such as 

whether the contract was made at arm‟s length between 

sophisticated commercial entities.60 We went on to hold that, while 

the indemnity provision did not “specifically mention the effect of 

any negligence,” “the broad sweep of the language employed by the 

parties clearly cover[ed] those instances in which the licensor may be 

negligent.”61 Our trend to limit the harshness of strict construction of 

indemnity provisions supports our decision today not to extend 

strict construction to insurance procurement provisions.

¶37 Because we conclude that strict construction does not apply 

to the insurance procurement provision in this case, we uphold the 

district court‟s determination that Greyhound breached section 10 of 

the Lease Agreement. While the insurance provision does not 

mention negligence, it clearly states that “[Greyhound], subject to the 

self-insurance provisions above, at its own cost and expense, shall 

secure and maintain . . . the following minimum coverage: . . . 

Commercial general liability insurance with [UTA] named as an 

additional insured.” The plain language of this provision requires 

Greyhound either to self-insure or to obtain the specified commercial 

general liability insurance from a third party. Further, commercial 

general liability insurance is usually understood to cover the 

insured‟s negligence.62 In refusing to either procure insurance or 

reimburse UTA for the money UTA paid in the settlement of 

Ms. Bradley‟s claim, Greyhound breached the Lease Agreement.

II. The Indemnification Provision and the Insurance Procurement 

Provision Can Be Harmonized and Ms. Bradley‟s Claim Arose Out of 

Greyhound‟s Use of the Premises

¶38 Greyhound argues that even if we apply traditional rules of 

contractual interpretation, rather than strict construction, it did not 

breach the insurance procurement provision. First, Greyhound 

argues that if the contract is read to require it to provide insurance 

for UTA‟s negligence, other sections of the Lease Agreement become 

59 793 P.2d at 370.

60 Id. (analyzing Niagara Frontier Transp. Auth. v. Tri-Delta Constr.

Corp., 487 N.Y.S.2d 428, 430 (1985)).

61 Id. at 371. 

62 See supra, note 52.
Cite as: 2015 UT 53

Opinion of the Court

19

meaningless. These sections include the provisions that require UTA 

to indemnify Greyhound for UTA‟s negligence, follow applicable 

ordinances, provide a physically sound facility, and maintain the 

common area. Second, Greyhound argues that because Ms. Bradley‟s 

claim did not “arise from [Greyhound‟s] use, occupancy, 

maintenance and operations,” it was not required to procure 

insurance, as the insurance procurement provision was not

triggered.

¶39 When interpreting a contract “[t]he underlying purpose . . .

is to ascertain the intentions of the parties to the contract.”63 To do 

so, “we look to the plain meaning of the contractual language, and 

we consider each contract provision . . . in relation to all the others, 

with a view toward giving effect to all and ignoring none.”64 Below,

we first discuss how the indemnification and insurance procurement 

provisions can be harmonized, even if the procurement provision is 

read to require insurance that covers UTA‟s negligence. Next, we 

discuss why Ms. Bradley‟s claim arose from Greyhound‟s use of the 

leased property and so was covered by the insurance procurement 

provision.

A. The Indemnification Provision and the Insurance Procurement 

Provision Can Be Harmonized

¶40 Greyhound argues that the district court‟s interpretation, 

requiring it to procure liability insurance for UTA‟s negligence, “is 

wrong because it . . . renders meaningless the indemnification 

provision in Paragraph 11 requiring UTA to indemnify Greyhound 

for claims arising from UTA‟s negligen[ce]” and “ultimately relieves 

UTA of its express obligations in Paragraphs 4, 6, and 12 to provide a 

safe, compliant, and sound physical premises.” In other words, 

Greyhound argues that if the insurance provision is read to require it 

to provide insurance to cover UTA‟s negligence, it would not make 

sense to also have UTA indemnify Greyhound for the same 

negligent acts. We see the matter differently.

¶41 The insurance procurement provision in section 10, if read 

to include negligence, requires Greyhound to procure liability 

insurance with a minimum coverage limit of $1 million per 

occurrence, with a $5 million general aggregate. The policy must 

protect UTA against “claims for damages for personal injury, bodily 

63 Osguthorpe v. Wolf Mountain Resorts, L.C., 2013 UT 12, ¶ 10, 332 

P.3d 620 (internal quotation marks omitted).

64 Id. (alteration in original) (internal quotation marks omitted).
UTA v. GREYHOUND

Opinion of the Court

20

injury, including accidental death, and from claims for property 

damage that may arise from [Greyhound‟s] use, occupancy, 

maintenance and operations under this Lease,” including claims that 

result from UTA‟s negligence. Next, in section 11 UTA indemnifies 

Greyhound against “all claims . . . for property damage or injury or 

death to persons . . . arising out of or by reason of [UTA‟s] negligent 

or willful acts or omissions relating to any of its undertakings 

hereunder.” On first reading, this language does appear to cover 

precisely the same claims—those claims for property damage, 

personal injury, or wrongful death that result from UTA‟s 

negligence. Greyhound points to this overlap and asks why the 

indemnity provision is necessary if UTA‟s negligence will be covered 

by the insurance provision. 

¶42 But if we consider the ways in which an indemnification 

provision and the insurance procurement provision differ, and the 

relationship between the parties, the independent utility of both 

provisions becomes apparent. In the section above, we discussed the 

distinctions between an insurance procurement provision and an 

indemnity provision. Typically, the insurance coverage obtained 

through an insurance procurement agreement is narrower than a 

general indemnification. For instance, insurance may carry a 

deductible or have a maximum limit. In this case, the maximum 

coverage provided, if Greyhound procured the least expensive 

insurance option, would have been $1 million per occurrence and $5 

million in aggregate. Therefore, if a personal injury or wrongful 

death claim exceeded the limits of the insurance policy, then the 

parties would have to cover the remaining costs. 

¶43 The indemnity provision, by contrast, does not have limits 

or deductibles and so is much broader. Any amount not covered by 

insurance would fall under the indemnity provision. By way of 

illustration, if a single wrongful death claim for $3 million arose out 

of UTA‟s negligence, the first $1 million would be covered by the 

insurance policy and the next $2 million would be covered by the 

indemnity provision. Thus, UTA would be required to indemnify 

Greyhound for the $ 2 million in excess of the insurance policy. The 

indemnity provision, in essence, is a mechanism to allocate the risk 

that remains beyond the insurance limits.

¶44 Even if Greyhound chose to self-insure under the Lease 

Agreement, the insurance procurement provision and the indemnity 

provision can be harmonized. If Greyhound chose to self-insure, 

then section 10(a) of the Lease Agreement required it to do so under 

a “lawfully established self-insurance program”; and UTA retained 

the “right to verify the adequacy of [Greyhound‟s] financial 
Cite as: 2015 UT 53

Opinion of the Court

21

resources available to fund such a program on an as needed basis.” 

Section 10(a) also required Greyhound to provide UTA with 

“evidence of self-insurance in a form approved by [UTA], on an 

annual basis.” This section allowed UTA to take steps to ensure that 

Greyhound was financially able to cover claims of up to $1 million

per occurrence or $5 million general aggregate, the agreed upon 

minimum insurance coverage amounts. This is distinct from the 

indemnity provision, which provides no opportunity for UTA to 

verify Greyhound‟s financial ability to indemnify. Therefore, the 

insurance procurement provision, in the self-insurance context, gave 

UTA more and different rights than the indemnity provision. The 

insurance procurement provision, with its language allowing UTA to 

verify Greyhound‟s financial health, would have provided UTA 

greater confidence that the most likely claims, those for less than the 

prescribed insurance limits, would be covered either by Greyhound 

as a self-insurer or through a third-party insurance company. 

¶45 The relationship between the parties also supports this 

reading of the contract. Since the parties are in a long-term business 

relationship (the Lease Agreement runs through 2045), it is 

reasonable to assume that in negotiating the contract the parties 

would try to reduce direct conflict between them. If Greyhound and 

UTA are both covered by the same commercial general liability 

policy, then they would not be adverse parties, at least as related to 

the third-party who is pursing the claim. Also, if the parties were not 

on the same insurance policy, it is likely they would each obtain 

independent insurance policies. These policies may cover similar 

acts and cause redundant insurance coverage. This would be 

inefficient and could increase litigation between the parties. 

¶46 Greyhound also points to the provisions in the Lease 

Agreement requiring UTA to provide a facility that meets local 

regulations and ordinances (in section 4), to deliver a structurally 

sound facility (in section 6), and to adequately maintain the facility 

(in section 12). Greyhound argues that if UTA is insured for its own 

negligence, then it is essentially relieved from the non-negligent 

performance of these duties. This is not the case. If Greyhound 

provided insurance and UTA breached a duty detailed in the Lease 

Agreement, Greyhound could sue UTA for breach and recover any 

damages that resulted. These damages could include any amount 

not covered by insurance, such as insurance deductibles, increases in 

insurance premiums, and attorney fees. 

¶47 We also note that Greyhound has another option under the 

Lease Agreement to deal with UTA‟s negligent maintenance of the 

facility. Section 30 of the agreement states that if either party fails to 
UTA v. GREYHOUND

Opinion of the Court

22

perform its duties under the lease then the other party “may at its 

option, after sixty (60) days prior written notice . . . , make 

performance for the other” and submit a bill for the work performed.

B. Ms. Bradley’s Claim Arose Out of Greyhound’s Use of the Premises

¶48 Having concluded that the provisions of the contract can be 

harmonized even if read to require Greyhound to insure UTA 

against its own negligence, we now address whether Ms. Bradley‟s 

claim triggered Greyhound‟s duty to provide insurance. Greyhound 

argues that the plain language of the contract‟s insurance 

procurement provision does not require coverage of Ms. Bradley‟s 

claim, because her claim did not “arise from [Greyhound‟s] use, 

occupancy, maintenance and operations under this Lease.” Instead, 

it argues, “UTA‟s negligence was an independent and intervening 

cause that is wholly independent from Greyhound‟s activities under 

the Lease Agreement.” Greyhound admits that it was the but-for 

cause of Ms. Bradley‟s presence at the Intermodal Hub, but asserts 

that UTA‟s negligence is the proximate cause of her injury. In doing 

so, Greyhound urges us to read tort causation principles into the 

contract. But we conclude that under the plain language of the Lease 

Agreement, Ms. Bradley‟s claim arose from Greyhound‟s use of the 

premises. 

¶49 Under the plain language of the contract, Ms. Bradley‟s 

claim “arose out of” Greyhound‟s use of the facility. Greyhound uses 

the facility as a passenger bus terminal.65 At the time of her injury, 

Ms. Bradley was on a layover during an interstate bus trip. And she 

was walking directly outside the facility, in the common area 

described in the Lease Agreement, when she fell. Therefore, her 

presence and use of the Intermodal Hub flow directly from 

Greyhound‟s use of the facility as a passenger bus terminal. 

¶50 Greyhound disagrees, relying heavily on Union Pacific 

Railroad v. El Paso Natural Gas Co.

66 In Union Pacific, we interpreted a 

broad indemnity agreement in which El Paso indemnified Union 

Pacific for “any and all liability . . . of whatsoever nature” that in any 

way “ar[ose] because of the existence of [El Paso‟s] pipeline.”67 The 

65 Section 5 of the Lease Agreement states that “[Greyhound] and 

its affiliates or [Greyhound] carriers shall use the Leased Premises 

exclusively for the occupancy and operation of an inter-city bus 

terminal and the handling of passengers,” among other related uses.

66 408 P.2d 910 (Utah 1965).

67 Id. at 912.
Cite as: 2015 UT 53

Opinion of the Court

23

indemnification agreement was the result of the negotiation of an 

easement by El Paso, over Union Pacific land, to allow El Paso‟s gas 

pipeline to run adjacent to Union Pacific‟s tracks.68 We held that the 

personal injury of an El Paso employee, who was struck by a 

negligently-driven Union Pacific train while on his way to perform 

maintenance on the pipeline, was not within the scope of the 

provision.69 We concluded instead that “damages guaranteed 

against [in the indemnity provision] should have at least some causal 

connection with the construction, existence, maintenance or 

operation of the pipeline other than an incident which happened 

merely coincidental to its existence.”70

¶51 Union Pacific is clearly distinguishable from the case before 

us. Ms. Bradley‟s injury is much more closely related to Greyhound‟s 

use of the Intermodal Hub as a passenger bus terminal than the car 

accident was to El Paso‟s use of the easement for a gas pipeline. The 

personal injury in Union Pacific was caused by a train colliding with 

a car carrying an El Paso employee a mile and a half away from the 

pipeline.71 We found that a car accident a mile and a half from the 

pipeline did not have a causal connection to the construction, 

existence, maintenance, or operation of the pipeline.72

¶52 By contrast, in Ms. Bradley‟s case the causal connection 

between the object of the insurance procurement provision and the 

incident is much more closely linked. Here, the object of the 

insurance procurement provision is the use of the facility by 

Greyhound, including its use of the facility to handle passengers of 

its bus service. Ms. Bradley was a passenger of Greyhound‟s and she 

was injured while walking in the common area covered by the Lease 

Agreement. This creates a much stronger causal connection than 

found in Union Pacific. We therefore conclude that Union Pacific does 

not alter our reading of the plain language of the contract at issue 

here.

¶53 Also, our reading of the plain language is informed by our 

broad interpretation of similar “arising out of” language in the 

insurance context. In National Farmers Union Property & Casualty Co.

68 Id.

69 Id. at 914.

70 Id.

71 Id. at 912.

72 Id. at 914.
UTA v. GREYHOUND

Opinion of the Court

24

v. Western Casualty & Surety Co., we discussed this broad 

interpretation: 

As used in a liability insurance policy, the words 

“arising out of” are very broad, general and 

comprehensive. They are commonly understood to 

mean originating from, growing out of, or flowing 

from, and require only that there be some causal 

relationship between the injury and the risk for which 

coverage is provided.73

Here, there is certainly some causal relationship between 

Ms. Bradley‟s injury and Greyhound‟s use of the Intermodal Hub as 

a passenger bus terminal. Greyhound has argued that caselaw 

interpreting insurance contracts should not be applied in this 

context. We disagree. Both parties were sophisticated and were 

directly contemplating insurance coverage when they crafted the 

“arise from” language in section 10(h)(1). Further, if Greyhound had 

chosen to self-insure, the language in section 10(h)(1) would 

effectively have been the insurance contract. It is therefore 

appropriate to look to our caselaw construing insurance policies 

when interpreting this contract provision. 

¶54 Under the plain language of the contract, Ms. Bradley‟s 

injury arose from Greyhound‟s use of the leased premises—she was 

Greyhound‟s passenger, on a layover during her Greyhound bus 

trip, and was injured directly outside Greyhound‟s bus terminal. 

Because we conclude that Ms. Bradley‟s injury arose out of 

Greyhound‟s use of the premises, we hold that the Lease 

Agreement‟s insurance procurement provision was triggered and 

Greyhound was thus required to provide insurance covering UTA‟s 

negligence.

III. We Affirm the District Court‟s Attorney Fee Award

¶55 The final issue presented is whether the district court 

abused its discretion in awarding UTA its attorney fees. After 

holding that the insurance procurement provision was not subject to 

strict construction and the Lease Agreement required Greyhound to 

purchase commercial general liability insurance that would cover 

UTA‟s negligence, the district court held Greyhound to be in breach 

of the Lease Agreement. Subsequently, the district court awarded 

UTA damages, including attorney fees as the prevailing party 

73 577 P.2d 961, 963 (Utah 1978) (quoting Lawver v. Boling, 238 

N.W.2d 514, 518 (Wis. 1976)).
Cite as: 2015 UT 53

Opinion of the Court

25

pursuant to section 32 of the Lease Agreement. The court awarded 

UTA $48,811.55 in fees and $610 in costs. In its appeal, Greyhound 

argues that the district court abused its discretion in awarding UTA 

its attorney fees. Specifically, it argues the district court abused its 

discretion because the court awarded UTA attorney fees for claims 

for which UTA was not the prevailing party. Greyhound also argues 

the court did not have an adequate evidentiary basis to conclude that 

the attorney fees were reasonable. Under these theories, Greyhound 

challenges $10,503.50 of the $48,811.55 fee award. We conclude that 

the district court did not abuse its discretion in awarding attorney 

fees to UTA as the prevailing party and find the district court‟s 

decision had an adequate evidentiary basis.

¶56 “In Utah, attorney fees are awardable only if authorized by 

statute or contract.”74 Here, the parties included a provision in their 

contract, section 32, that stated, “[i]n the event either Party enforces 

the terms of this Lease by suit or otherwise, the Party found to be at 

fault by a court of competent jurisdiction shall pay the cost and 

expense incurred thereby, including reasonable attorney‟s fees.” 

Below we discuss both why the district court did not abuse its 

discretion by determining UTA was the prevailing party, and why 

there is sufficient evidence in the record to support the district 

court‟s attorney fee award.

A. The District Court Did Not Abuse Its Discretion by Holding 

That UTA Was the Prevailing Party

¶57 Greyhound argues that, although UTA ultimately prevailed 

on its breach of contract claim, it did not prevail on all of its motions 

and causes of action. Greyhound contends that UTA should not have 

received $10,503.50 of its attorney fee award, because these fees were 

based on an unsuccessful motion and claim.

¶58 We have recognized both the “need for a flexible and 

reasoned approach to deciding in particular cases who actually is the 

„prevailing party‟”75 and that determining the prevailing party 

“depends, to a large measure, on the context of each case.”76 Also, 

we have stated that the district court must base its decision on a 

number of factors, including “the language of the contract or statute 

that forms the basis for the attorney fees award, the number of 

74 R.T. Nielson Co. v. Cook, 2002 UT 11, ¶ 17, 40 P.3d 1119 (internal 

quotation marks omitted).

75 Id. ¶ 24.

76 Id. ¶ 25.
UTA v. GREYHOUND

Opinion of the Court

26

claims brought by the parties, the importance of each of the claims 

relative to the entire litigation, and the amounts awarded on each 

claim.”77 This type of evaluation allows the district court to apply a 

case-by-case approach to determining the prevailing party and gives 

the district court the “flexibility to handle circumstances where both, 

or neither, parties may be considered to have prevailed.”78 We have 

also stressed that because the identity of the prevailing party 

“depends, to a large measure, on the context of each case,” “the 

[district] court is in a better position than we are as an appellate 

court to decide” this question.79 Thus, we employ an abuse of 

discretion standard when reviewing a district court‟s prevailing 

party determination.80

¶59 We conclude that the district court did not abuse its 

discretion in determining that UTA was the prevailing party and 

awarding it the entirety of its attorney fees. The district court based 

its decision on factors we have recognized as appropriate when 

determining the prevailing party—including the contract language, 

the importance of the claim won by UTA, and the amount of the 

judgment awarded in its favor. The language of the contract appears 

to contemplate one prevailing party when it states that “the Party 

found to be at fault” shall pay attorney fees. It does not appear from 

the language of the contract that the parties contemplated a detailed 

analysis of each motion or claim, but instead a broad decision of 

which party was “at fault.” Further, under a prevailing party 

analysis the district court correctly notes that UTA prevailed on the 

underlying claim and received a judgment in the amount of its claim. 

While the district court recognized that “UTA did not prevail on 

every Motion it filed,” the court deemed UTA the prevailing party, 

as it had ultimately won the breach of contract claim and obtained a 

judgment in the full amount sought. Therefore, we uphold the 

district court‟s determination that UTA was the prevailing party and 

its decision to award UTA all of its attorney fees.

77 Neff v. Neff, 2011 UT 6, ¶ 70, 247 P.3d 380.

78 Id. (internal quotation marks omitted).

79 R.T. Nielson, 2002 UT 11, ¶ 25.

80 See Neff, 2011 UT 6, ¶ 70.
Cite as: 2015 UT 53

Opinion of the Court

27

B. The District Court Did Not Abuse Its Discretion in Basing Its 

Attorney Fee Award on the Affidavits and Invoice 

Submitted by UTA

¶60 Greyhound also claims that the district court abused its 

discretion when it concluded that UTA had presented sufficient 

evidence of the reasonableness and necessity of its attorney fees. 

Greyhound claims that the district court abused its discretion by 

relying on information that did not include “any evidence to show 

who those people are [who are named on the invoice], what their 

qualifications are, or why their hourly rates are appropriate.” 

Greyhound also faulted the district court for relying on billing 

information that “did not include any foundational evidence 

regarding the reasonable hourly rates of the eight time keepers.” 

Greyhound further claims that many of the tasks that UTA billed for 

were unnecessary—including UTA‟s rule 56(f) motion and its 

motion for judgment on the pleadings.

¶61 We have long recognized that the district court has “broad 

discretion in determining what constitutes a reasonable fee, and we 

will consider this determination [under] an abuse-of-discretion 

standard.”81 We have also recognized a well-established method for 

calculating attorney fees. The district court is to consider the

following:

1. What legal work was actually performed?

2. How much of the work performed was reasonably 

necessary to adequately prosecute the matter?

3. Is the attorney‟s billing rate consistent with the rates 

customarily charged in the locality for similar 

services?

4. Are there circumstances which require 

consideration of additional factors, including those 

listed in the Code of Professional Responsibility?82

The district court addressed these factors in its memorandum 

decision responding to UTA‟s Motion for Award of Damages and 

Entry of Final Judgment. In its decision, the district court stated that 

(1) “the work was actually performed,” (2) “the work was reasonably 

81 R.T. Nielson, 2002 UT 11, ¶ 20 (quoting Dixie State Bank v. 

Bracken, 764 P.2d 985, 991 (Utah 1988)).

82 Burdick v. Horner Townsend & Kent, Inc., 2015 UT 8, ¶ 59, 

345 P.3d 531 (quoting Dixie State Bank v. Bracken, 764 P.2d 985, 990 

(Utah 1988)).
UTA v. GREYHOUND

Opinion of the Court

28

necessary to prosecute the matter,” and (3) “the billing rates are 

consistent with rates customarily charged in the community for 

similar services.” The district court did not address any factors listed 

in the Utah Code of Professional Responsibility.

¶62 Greyhound claims that the district court abused its 

discretion in coming to these conclusions because it relied on 

incomplete information. But Greyhound fails to acknowledge the 

declaration of UTA attorney Scott M. Petersen, which speaks to the 

reasonableness of the attorney fees. In this declaration, Mr. Petersen 

states that he has been a litigator for seventeen years and that his 

hourly rate is reasonable based on his experience, the complexity of 

the case, and the prevailing hourly rate in Salt Lake City. Mr. 

Petersen also addresses the qualifications and hourly rates of several 

attorneys working under him at Fabian & Clendenin. Greyhound is 

correct in arguing that there is little evidence as to the qualifications 

for four of the persons on Fabian & Clendenin‟s invoice. But these 

individuals combined billed only 4.85 hours out of the total of 194.45 

hours billed on the case. While ideally more information would have 

been provided regarding these billing individuals, this deficiency 

does not make the district court‟s decision to award attorney fees an 

abuse of discretion.

¶63 Greyhound also challenges the district court‟s decision that 

“the work was reasonably necessary to prosecute the matter” and 

points to specific actions that it contends were unnecessary on the 

part of UTA. The district court found the work was necessary based 

on a detailed invoice from Fabian & Clendenin. This invoice 

provided a description of all the work done on the case and the 

hours required to perform the described task down to the tenth of an 

hour. It was not an abuse of discretion for the district court to find 

that the work was necessary.

¶64 As a final matter, we address UTA‟s request for an award of 

attorney fees and costs on appeal. We have recognized in the context 

of statutory attorney fee awards that “when a party is entitled to 

attorney fees below and prevails on appeal, that party is also entitled 

to fees reasonably incurred on appeal.”83 We see no reason to deviate 

from this practice here given that the contract used expansive 

language in its attorney fee award provision, stating “[i]n the event 

either Party enforces the terms of the Lease by suit or otherwise, the 

Party found to be at fault by a court of competent jurisdiction shall 

83 Dillon v. S. Mgmt. Corp. Ret. Trust, 2014 UT 14, ¶ 61, 326 P.3d 656 

(internal quotation marks omitted).
Cite as: 2015 UT 53

Opinion of the Court

29

pay the cost and expense incurred thereby, including reasonable 

attorney‟s fees.” We remand to the district court to determine the 

proper attorney fee award for the appeal.

Conclusion

¶65 We fully affirm the district court‟s decision on summary 

judgment. First, we have never strictly construed insurance 

procurement provisions, and we decline to do so here. Thus, we 

affirm the district court‟s holding that traditional principles of 

contractual interpretation should be used in assessing an agreement 

to procure insurance. Second, we affirm the district court‟s holding 

that under these traditional rules of contractual interpretation, the 

insurance procurement provision of the Lease Agreement required 

Greyhound to provide insurance to UTA for liability arising from 

UTA‟s own negligent acts; that Greyhound‟s duty to procure 

insurance for UTA was triggered in this case; that the various 

provisions of the Lease Agreement can be harmonized; and 

therefore, that Greyhound breached the Lease Agreement by failing 

to procure insurance to cover UTA‟s negligence. Finally, we uphold 

the district court‟s attorney fee award under section 32 of the Lease 

Agreement because the court did not abuse its discretion by finding 

UTA the prevailing party and finding the fee reasonable and 

necessary based on the evidence before it. We conclude that UTA is 

entitled to attorney fees and costs associated with its appeal and 

remand to the district court to determine the amount of the award.