This opinion is subject to revision before final

publication in the Pacific Reporter

2016 UT 13

IN THE

SUPREME COURT OF THE STATE OF UTAH

M.J.,

Petitioner,

v.

BRUCE R. WISAN, Court-Appointed Special Fiduciary of the United 

Effort Plan Trust,

Respondent.

No. 20140189

Filed March 23, 2016

On Appeal of Interlocutory Order

Third District, Salt Lake 

The Honorable Keith A. Kelly

No. 070916254

Attorneys:

Jeffery L. Shields, Michael D. Stanger, Salt Lake City, for petitioner

Alan W. Mortensen, Lance L. Milne, Michael A. Worel, Paul M. 

Simmons, Salt Lake City, for respondent

ASSOCIATE CHIEF JUSTICE LEE authored the opinion of the Court, in 

which CHIEF JUSTICE DURRANT, JUSTICE DURHAM, and JUSTICE 

HIMONAS joined.

JUSTICE JOHN A. PEARCE became a member of the Court on 

December 17, 2015, after oral argument in this matter, and 

accordingly did not participate.

ASSOCIATE CHIEF JUSTICE LEE, opinion of the Court:

¶1 In this case we consider an interlocutory appeal from the 

denial of a defense motion for summary judgment. The claims at 

issue were asserted by M.J., an individual who allegedly was 

required to enter into an underage marriage with Allen Steed at the 

direction of Warren Jeffs. At the time, Jeffs was acting as the head of 
M.J. v. WISAN

Opinion of the Court

2

the Fundamentalist Church of Jesus Christ of Latter-Day Saints and 

trustee of the United Effort Plan Trust (―UEP Trust‖ or the ―Trust‖).

M.J. filed suit against Jeffs and against Bruce R. Wisan in his capacity 

as Special Fiduciary of the Trust, asserting tort claims and grounds 

for both direct and vicarious liability.

¶2 The Trust moved for summary judgment on several grounds. 

The district court denied the Trust‘s motions. We agreed to review 

that decision on interlocutory appeal because the Trust‘s motions 

raised a number of important legal questions on matters of first 

impression—as to the effect of our decision in Snow, Christensen & 

Martineau v. Lindberg, 2013 UT 15, 299 P.3d 1058; the impact of M.J.‘s 

release of claims against Allen Steed; and the viability of her claims 

for vicarious liability under the doctrines of respondeat superior and 

―reverse‖ veil-piercing. We affirm in large part. We uphold the 

district court‘s decisions on all issues except its determination that 

the Trust is subject to liability on reverse veil-piercing grounds. 

I

¶3 In 1942, the leaders of a fundamentalist religious movement 

called the ―Priesthood Work‖ formed the UEP Trust.

1 Fundamentalist 

Church of Jesus Christ of Latter-Day Saints v. Lindberg, 2010 UT 51, ¶ 2, 

238 P.3d 1054. The Trust‘s stated purpose was ―charitable and 

philanthropic.‖ Id. But membership in the Trust was conditioned 

upon ―consecration‖ of real and certain other property to the Trust. 

Id. ―For this fundamentalist group—predecessor to the 

Fundamentalist Church of Jesus Christ of Latter-Day Saints (the 

 ̳FLDS Church‘ or  ̳Church‘)—consecration was an act of faith 

whereby members deeded their property to the UEP Trust to be 

managed by Church leaders.‖ Id. ―Church leaders, who were also 

trustees, then used this property to minister to the needs of the 

members.‖ Id.

¶4 ―In 1986, some Trust property residents sued the UEP trustees 

for breach of fiduciary duty.‖ Id. ¶ 3. In proceedings leading to a 

decision of this court, we held that the Trust was subject to suit on 

fiduciary duty claims by Trust beneficiaries because it was a private, 

and not a charitable, trust. See Jeffs v. Stubbs, 970 P.2d 1234, 1252 

(Utah 1998). The basis for that decision was the determination that 

 

1 In light of the summary judgment posture of this case, the facts 

here are presented in the light most favorable to M.J. See Johnson v. 

Hermes Assocs., Ltd., 2005 UT 82, ¶ 12, 128 P.3d 1151.
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Opinion of the Court

3

the UEP Trust was intended from its inception to benefit specified 

individuals—the Trust‘s founders. Id.

¶5 In response to that decision, Rulon Jeffs, the then-president of 

the FLDS Church and sole surviving founder of the 1942 Trust, 

executed an ―Amended and Restated Declaration of Trust of the 

United Effort Plan.‖ Fundamentalist Church, 2010 UT 51, ¶ 4. This 

1999 restatement established a charitable trust. Id. It also provided 

that ―in the event of termination of this Trust, whether by the Board 

of Trustees or by reason of law, the assets of the Trust Estate at that 

time shall become the property of the Corporation of the President of 

the [FLDS Church].‖ Id.

¶6 From 1998 to 2006 the Trust was operated for the express 

purpose of furthering the doctrines of the FLDS Church, including 

the practice of plural marriage involving underage girls. Throughout 

this period there was no clear delineation between the FLDS Church

and the Trust. Funds were comingled between the two entities, and 

the President of the FLDS Church had ―extraordinary powers‖ in 

administering the Trust, including the power to appoint or remove 

trustees at will.

¶7 In 2004 the Trust was subjected to suit in two separate tort 

actions, one involving allegations of child sex abuse and the other 

asserting a fraud claim. Id. ¶ 5. At some point during the course of 

this litigation the Trust terminated its counsel. Id. And when the 

Trust declined to appoint substitute counsel, and trustees failed to 

otherwise appear, the court appointed a special fiduciary to 

represent the interests of the Trust until new trustees could be 

appointed. Id. ¶ 6. Eventually, ―[t]he district court asked the special 

fiduciary to prepare a memorandum identifying issues the court 

needed to address before appointing new trustees.‖ Id. ¶ 7. And ―the 

special fiduciary expressed concern in a memorandum filed with the 

district court that the Trust needed to be reformed if new trustees 

were to be appointed.‖ Id.

¶8 In response, ―the district court entered an order that 

concluded that the Trust could be reformed so that the special 

fiduciary could administer the Trust to meet the  ̳just wants and 

needs‘ of the beneficiaries according to neutral, nonreligious 

principles.‖ Id. ¶ 8. Through further litigation—and without any 

participation by the FLDS Church or its leaders or trustees of the 

Trust, all of whom sat silent on the sidelines—the district court 

ultimately reformed the Trust under the doctrine of cy pres. Id.

¶9 In reforming the Trust the district court sought to preserve the 

Trust‘s ―charitable intent‖ of protecting the interests of Trust 
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Opinion of the Court

4

beneficiaries. Yet it also concluded that ―it could reform the Trust by 

excising the purpose of advancing the religious doctrines and goals 

of the FLDS Church to the degree that any of these were illegal,‖ 

including ―polygamy, bigamy, [and] sexual activity between adults 

and minors.‖ Id. ¶ 12 (alteration in original). Thus, the reformation of 

the Trust effectively ―strip[ped] the FLDS Church president of 

several powers under the Trust‖ and ―remove[d] any requirement 

that the president of the FLDS Church approve any Board action‖ on 

behalf of the Trust. Id. ¶ 15. 

¶10 The district court has since retained jurisdiction over the 

administration of the reformed Trust. As Special Fiduciary, Wisan 

has instituted a process allowing Trust beneficiaries to petition the 

Trust for benefits. 

¶11 Further litigation has continued, however. Years after the 

Trust modification was complete, a group of FLDS Church members 

filed a petition for extraordinary writ challenging the reformation on 

constitutional and other grounds. We rejected that petition on 

equitable laches grounds in our decision in Fundamentalist Church, 

2010 UT 51. In so doing, we noted that Church leaders and members 

had consciously determined to sit silent during the course of 

reformation proceedings in the district court, and that numerous 

claimants had relied on the finality of the court‘s reformation. Id. 

¶¶ 33–34. For those reasons we denied the Church members‘ petition 

without reaching its merits.

¶12 In 2013, we also resolved a further dispute involving the 

Trust. In Snow, Christensen & Martineau v. Lindberg, 2013 UT 15, ¶ 56, 

299 P.3d 1058, we considered district court orders disqualifying the 

Trust‘s former counsel from representing an adverse party in 

subsequent litigation and requiring former counsel to provide 

privileged material to the Trust and to its then current counsel. In 

reversing those orders, a majority of this court concluded that the 

Trust was effectively a new entity—in the position of an asset 

purchaser—for purposes of the issues presented in the case. Id. ¶ 48.

¶13 That brings us to this case. It was filed by M.J., a former 

member of the FLDS Church and beneficiary of the UEP Trust. M.J. 

alleges that in 2001, when she was fourteen years old, she was forced 

to marry Allen Steed, her first cousin. The wedding was performed

by Warren Jeffs, who at the time was acting president of both the 

FLDS Church and the Board of Trustees of the Trust.2 M.J. and Steed 

 

2 At the time of M.J‘s marriage, Rulon Jeffs, the father of Warren 

Jeffs, was the President of the FLDS Church. Yet Rulon Jeffs had 

(continued...)
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Opinion of the Court

5

resided on UEP Trust property provided by another one of the 

trustees. M.J. claims that Steed repeatedly sexually assaulted and 

raped her while she resided on this property. She requested a

divorce from Steed on multiple occasions, but Jeffs refused to allow

it. He also refused to let M.J. live on Trust property separately from 

her husband. M.J. also alleges that none of the other trustees objected 

or acted to stop the marriage.

¶14 M.J. filed this suit in 2007. She has asserted a variety of tort 

claims against both Warren Jeffs and the UEP Trust3 and advances 

claims for both vicarious and direct liability against the Trust. She 

seeks to hold Jeffs responsible, and the trust vicariously liable, for

intentional infliction of emotional distress, outrage, and negligence.

She also asserts claims against the UEP Trust for negligence, as well 

as negligent hiring, appointment, retention, and supervision.

¶15 M.J. advances two theories of vicarious liability. She first

claims that Jeffs and other trustees were acting ―in furtherance of the 

trust administration and within the scope of their authority,‖ and

thus contends that the Trust should be liable under the doctrine of 

respondeat superior. Second, she asserts that the UEP Trust was Jeffs‘s

―alter ego.‖ And on that basis she asserts a right to ―reverse veilpiercing‖—an equitable remedy that would treat Trust assets as if 

they were Jeffs‘s personal assets. 

¶16 M.J. has not asserted any claims against Steed. But her

complaint alleges that he was acting ―at the direction and under the 

control of Warren Jeffs and other UEP Trust trustees‖ as

ecclesiastical leaders. Third Amended Complaint at 8. In response, 

the Trust asserts a cross-claim for indemnity. It has also filed a third-

 

diminished capacity at the time of the marriage as a result of a 

stroke, and had delegated much of his authority to his son. Warren 

Jeffs took over as both President of the FLDS Church and President 

of the Board of Trustees of the Trust upon his father‘s death in 2002. 

3 In addition to these claims, M.J. initially asserted a claim of 

conspiracy to commit battery and sexual abuse of a child against 

both Jeffs and the Trust. The conspiracy claim was dismissed, 

however, because the court concluded that a conspiracy was not 

possible between a trustee and the trust that he administers. M.J. also 

asserted a breach of fiduciary duty claim against Warren Jeffs, but 

that claim appears to have been dropped. Neither of these claims is 

before us on this appeal. 
M.J. v. WISAN

Opinion of the Court

6

party complaint against Steed and a notice of intent to allocate fault 

to Steed and others.

¶17 Steed responded by asserting claims against M.J. for 

invasion of privacy, libel, and slander. Those claims prompted a 

settlement between M.J. and Steed. In the parties‘ settlement 

agreement, M.J. and Steed agreed to a mutual release of all claims 

―that exist or may exist‖ between them. But the agreement made no

express reference to—or preservation of—any claims against other 

persons or entities. 

¶18 The Trust filed a series of motions for summary judgment. 

All of those motions were denied. The Trust then filed a petition for 

review on interlocutory appeal, which we granted. Our review of the 

district court‘s summary judgment decisions is de novo. See Bahr v. 

Imus, 2011 UT 19, ¶ 15, 250 P.3d 56.

II

¶19 The Trust has advanced four principal grounds for 

summary judgment in its favor: (a) our decision in Snow, Christensen 

& Martineau v. Lindberg, 2013 UT 15, 299 P.3d 1058, which the Trust 

views as establishing that the reformed Trust is a new entity, and 

thus not liable for the tortious acts of its predecessor; (b) the release 

entered into between M.J. and Steed, which the Trust interprets as 

foreclosing any claims against the Trust; (c) the elements of the 

doctrine of respondeat superior, which the Trust contends are not 

satisfied; and (d) the doctrine of ―reverse‖ veil-piercing, which the 

Trust urges us to reject, at least as applied to the circumstances of 

this case. 

¶20 We affirm the denial of summary judgment in large part. 

We reject each of the Trust‘s proposed grounds for summary 

judgment except the last one. On that issue we generally endorse the 

doctrine of reverse veil-piercing, but conclude that its elements 

cannot be satisfied in this case.

A. The Effect of Our Decision in Snow, Christensen

¶21 The Trust‘s first proposed ground for summary judgment is 

our decision in Snow, Christensen & Martineau v. Lindberg, 2013 UT 15, 

299 P.3d 1058. In that case the Trust moved to disqualify the law firm 

of Snow, Christensen & Martineau (SC&M) from representing an 

association of FLDS Church members in litigation against the Trust.

Id. ¶ 15. In advancing that motion, the Trust asserted that SC&M had 

represented the Trust‘s predecessor—prior to its reformation—in 

earlier litigation. Id. And it sought to disqualify the firm under rule 

1.9 of the Utah Rules of Professional Conduct. Id.
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7

¶22 The Trust also served subpoenas on SC&M seeking 

documents related to the firm‘s prior representation of the UEP 

Trust. Id. ¶ 14. SC&M refused to comply, asserting that the 

documents were protected by the attorney-client privilege. Id.

¶23 The district court agreed with the Trust. It entered an order 

disqualifying the firm from representing the association of church 

members against the Trust. Id. ¶ 16. And it also rejected SC&M‘s 

right to claim the attorney-client privilege. Id. ¶ 14. The basis for 

both decisions was essentially the same—that the unreformed UEP 

Trust was effectively the same entity as the reformed Trust. On that 

basis the court held that SC&M was barred from representing clients 

in related litigation against a former client under rule 1.9. Id. ¶¶ 15-

16. And it also concluded that the privilege as to documents in 

SC&M‘s hands belonged to the Trust, and thus that the firm had an 

obligation to turn over privileged documents to the Trust upon 

request. Id.

¶24 This court reversed on both counts. The majority concluded 

that the secular reformation of the Trust ―so changed its purpose and 

identity that it is a different entity‖ for purposes of rule 1.9 and the 

attorney-client privilege. Id. ¶ 43. Specifically, the majority noted that 

the reformed Trust had a different beneficiary class from that of its 

predecessor—and in fact that the reformed Trust had been accused 

of being overtly hostile to the interests of the FLDS Church. Id.

¶¶ 46–47. And on that basis the majority declined to deem the 

reformed trust ―a continuation for purposes of the attorney-client 

privilege.‖ Id. ¶ 48. Instead it treated the two entities as if the 

reformed trust had merely purchased the assets of the prereformation trust. Id.

¶25 The Trust seeks to extend the majority‘s analysis in Snow, 

Christensen to cut off M.J.‘s claims against it. And the Trust has a 

point under the logic of the majority‘s analysis. If the reformed Trust 

is in the position of an asset purchaser, it would not be liable for the 

actions of its predecessor.4

 

4 See Tabor v. Metal Ware Corp., 2007 UT 71, ¶¶ 7, 11, 168 P.3d 814 

(explaining the general rule of successor nonliability modeled on the 

Restatement (Third) of Torts section 12 and refusing to adopt 

additional exceptions adopted in other jurisdictions).
M.J. v. WISAN

Opinion of the Court

8

¶26 Yet the question presented is not a pure matter of logic. It is 

a question of law—of the interpretation of our decision in Snow, 

Christensen. For reasons set forth below, we decline to extend that 

decision to its logical end. 

¶27 The majority position in Snow, Christensen was rooted in 

unstable ground. Its asset transfer analogy was persuasively 

questioned by a two-justice dissent. Id. ¶ 64 (Durrant, J., dissenting, 

joined by Nehring, J.) (asserting that the majority‘s ―asset-purchase 

metaphor does not account for the legal and practical ramifications 

arising from the fact that . . . the trust was modified, not 

terminated‖). And the majority itself was unwilling to extend its 

position to its logical conclusion; it expressly limited its decision by 

stating that it did not ―implicate[] the rights of the Reformed Trust‘s 

beneficiaries‖ or affect the ―validity‖ of the reformation. Id. ¶ 24 n.3.

¶28 That limitation is appropriate—and necessary to protect the 

settled interests of the claimants to the Trust‘s assets. The Trust‘s 

reformation has been upheld by this court. See Fundamentalist Church 

of Jesus Christ of Latter-Day Saints v. Lindberg, 2010 UT 51, ¶ 35, 238 

P.3d 1054. In the Fundamentalist Church case we held that any 

challenge to the reformation by the FLDS Church was barred under 

the doctrine of laches. Id. ¶ 26. Our laches analysis, moreover, was 

based in large part on protecting the interests of those who relied on 

the reformation at a time when the FLDS Church openly declined to 

participate in litigation leading to the reformation. Id. ¶¶ 31–35. 

Since that time numerous claimants have asserted claims against the 

reformed Trust for activity or conduct predating the reformation. 

And the Trust itself has settled such claims in parallel reliance on our 

decision. 

¶29 We see no basis—save the logic of the Snow, Christensen

majority—for now cutting off the Trust‘s liability for acts that 

predated the reformation. M.J. is in a particularly strong position in 

terms of her reliance interest in pursuing claims against the Trust. 

She first filed her claim in this case before our decision in Snow, 

Christensen. And she should be entitled to pursue her claim despite 

the breadth of the language employed in that opinion. We so hold, 

limiting the Snow, Christensen opinion to its facts and declining to 

extend it any further.5

 

5 Neither party has asked us to overrule our opinion in Snow, 

Christensen. And we stop short of so doing in the absence of any such 

request. But we do repudiate the analysis in the court‘s opinion in 

that case. And we limit Snow, Christensen to its facts—to SC&M‘s 

(continued...)
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Opinion of the Court

9

B. The Effect of the Steed Release

¶30 The second proposed basis for summary judgment for the 

Trust is the written release that M.J. entered into with Allen Steed. 

The Trust notes that that release did not expressly reserve a claim 

against the Trust. And in the Trust‘s view, the failure to reserve such 

a claim effectively forecloses it as a matter of law.

¶31 The Utah Code includes two separate provisions addressed 

to the effect of a written release of liability on claims against other 

parties. The first is the Joint Obligations Act (JOA), Utah Code 

sections 15-4-1 to -7. That statute provides that an ―obligee‘s release 

or discharge of one or more of several obligors, or of one or more of 

joint or of joint and several obligors, does not discharge co-obligors 

against whom the obligee in writing and as part of the same 

transaction as the release or discharge expressly reserves his rights.‖ 

UTAH CODE § 15-4-4. This preserves the traditional common law rule. 

As described in our cases, it provides that unnamed joint obligors 

are released ―from liability by the release of other joint obligors 

unless there is an express reservation in writing‖ of the injured 

party‘s claim. Peterson v. Coca-Cola USA, 2002 UT 42, ¶ 10, 48 P.3d 

941. 

 

representation of members of the trust, and the Trust‘s request for 

privileged document at that time and in the context of that case.

In so doing, we reserve for another day the question whether 

the Trust may be entitled to privileged material of potential 

relevance to M.J.‘s claims against it. The Trust raised this concern in 

its briefing and argument in this case. It questioned the wisdom and 

propriety of a legal regime under which the Trust stands in its 

predecessor‘s shoes for liability purposes but is deemed a different 

entity for purposes of the attorney-client privilege. We see the 

Trust‘s point. It would seem an unfair whipsaw to subject the Trust 

to liability for its predecessor‘s torts without also arming the Trust 

with material necessary to its defense. So if there is privileged 

material in possession of the Trust‘s former counsel of relevance to 

this litigation, the Trust may well be entitled to it—notwithstanding 

our decision in Snow, Christensen. 

We leave that question for future litigation, however. If and 

when the Trust seeks privileged material in the hands of its former 

counsel of relevance to this litigation, the courts may then consider 

the question whether to grant the Trust access to it.
M.J. v. WISAN

Opinion of the Court

10

¶32 Yet that general rule has been overridden to a large degree 

by the terms of the Liability Reform Act (LRA), Utah Code sections

78B-5-817 to -823. That statute provides that a ―release given by a 

person seeking recovery to one or more defendants does not 

discharge any other defendant unless the release so provides.‖ UTAH 

CODE § 78B-5-822. Our cases have read that provision as prescribing 

a rule under which a release of one party does not release another 

unless the other party is identified in the release. Peterson, 2002 UT 

42, ¶ 10. So the LRA reverses the presumption of the JOA. Under the 

JOA the default is that a release of one party extends to others (with 

an exception where the claim is expressly reserved), while under the 

LRA the default is that a release of one party does not extend to 

others (with an exception for parties mentioned or identified in the 

release).6

¶33 We have described the LRA as effecting a pro tanto repeal of 

the terms of the JOA. Id. ¶ 11. Yet the repeal is incomplete. The JOA 

still stands in effect to a limited degree. Its presumption applies in 

the limited circumstance of ―vicariously liable parties.‖ Id. Such

parties are not covered by the LRA because its terms are limited to 

―[d]efendant[s],‖ defined as those ―claimed to be liable because of 

fault to any person seeking recovery.‖ UTAH CODE § 78B-5-817(1). 

And because ―[f]ault,‖ in turn, is defined as an ―actionable breach of 

legal duty‖ or ―act‖ or ―omission proximately causing or 

contributing to injury or damages sustained by a person seeking 

recovery,‖ id. § 78B-5-817(2), we have deemed the terms of the LRA 

not to extend to liability based purely on principles of vicarious 

liability. See Nelson ex rel. Hirschfeld v. Corp. of the Presiding Bishop of 

the Church of Jesus Christ of Latter-day Saints, 935 P.2d 512, 514 n.3 

(Utah 1997); Peterson, 2002 UT 42, ¶ 11.

¶34 The Trust invokes the above in support of its motion to 

dismiss M.J.‘s claims. It notes that M.J.‘s release of claims against 

Steed failed to reserve any claims against the Trust. And because 

M.J.‘s claims against the Trust implicate its liability for actions 

involving others (Jeffs and Steed), the Trust insists that its alleged 

liability is vicarious—and thus that it is the JOA, and not the LRA, 

that applies. Because the JOA requires a claim to be expressly

reserved in order for it to be preserved, moreover, the Trust asserts 

 

6 See Child v. Newsom, 892 P.2d 9, 12 (Utah 1995) (explaining that 

under the LRA ―a release must contain language either naming the 

defendant or identifying the defendant with some degree of 

specificity in order to discharge that defendant from liability‖).
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Opinion of the Court

11

that M.J.‘s claims are foreclosed by the JOA given the lack of any 

such reservation in the release executed by M.J. and Steed.

¶35 We see the matter differently. The standard for invoking the 

JOA is more limited than that advanced by the Trust. Not every 

claim for liability that involves another tortfeasor is exempt from the 

LRA. Instead, the JOA applies only where the basis for a party‘s 

liability attaches regardless of any showing of fault. Conversely, the 

LRA applies when liability is based on fault—even if that fault is 

connected to or arises out of the conduct of another individual.

¶36 A respondeat superior claim escapes the coverage of the LRA

because it does not depend on any showing of ―fault‖ by the party 

subject to such liability. LRA fault is an ―actionable breach of legal 

duty‖ or an ―act‖ or ―omission proximately causing or contributing 

to injury or damages sustained by a person seeking recovery.‖ UTAH 

CODE § 78B-5-817(2). And respondeat superior liability involves no act, 

omission, or breach of a duty by the defendant. It involves only a 

relationship (between a principal and an agent) and an act or breach 

by a third party (of an agent within the scope of agency).7

¶37 The only fault that must be established to sustain respondeat 

superior liability is the fault of the primary tortfeasor—the agent. The 

principal‘s liability is not based on fault. This is pure pass-along 

liability—liability of a principal for the acts of an agent. 

¶38 A principal‘s pass-along liability is governed by the JOA, 

not the LRA. So a principal‘s liability is effectively waived by a 

release of claims against the agent (unless the claims against the 

principal are expressly reserved). This makes sense because the 

agent‘s acts are the only thread connecting the principal to the 

plaintiff. Once that thread is severed (by a release), there is no longer 

any basis for the principal‘s liability (unless it is expressly reserved).

¶39 That does not hold for claims based on ―fault‖ under the 

LRA. For claims involving independent acts, omissions, or breaches 

of duty, a waiver of claims against one defendant does not sever the 

thread of liability back to the other. Products liability is a good 

example. A retailer has an independent duty not to sell defective 

products. Such a retailer is accordingly liable for harm caused by the 

 

7 RESTATEMENT (THIRD) OF AGENCY § 2.04 cmt. b (AM. LAW INST.

2006) (noting that ―respondeat superior is a basis upon which the 

legal consequences of one person‘s acts may be attributed to another 

person‖).
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Opinion of the Court

12

defective products that it sells even absent any negligence or breach 

on the part of the manufacturer of such a product (or by the retailer

itself).8 And for that reason it makes sense to conclude that a release 

of a claim against the manufacturer would not result in a waiver of a 

claim against the retailer (unless the retailer is mentioned or 

identified in the release). This is the LRA rule. UTAH CODE § 78B-5-

822.

¶40 The claims at issue in Nelson and Peterson fell clearly into the

JOA basket. Nelson involved a claim of liability for a church, under 

the doctrine of respondeat superior, for the tortious conduct of a 

church leader acting within the scope of his church responsibilities. 

935 P.2d at 514. Peterson is similar. It also involved a claim of liability 

under the doctrine of respondeat superior. The court found that the 

JOA applied to a claim of liability of an employer for the tortious acts 

of an employee within the scope of his employment. 2002 UT 42,

¶ 11.

¶41 M.J.‘s claims against the Trust, by contrast, appear to fall 

into the LRA basket—at least to some extent. The basis for the 

Trust‘s liability in this case is not just pass-along liability for the acts of 

Steed (the subject of the release). Instead M.J. has asserted claims 

against the Trust based on tortious activity or fault on the part of 

Jeffs. Such claims stand independent of any fault assigned to Steed. 

And to that extent a release of claims against Steed would not sever 

the thread of liability extending to the Trust through Jeffs. So long as 

there is a separate, independent thread of liability extending to the 

Trust through Jeffs, the release of liability running through Steed 

would not affect claims running through Jeffs.

¶42 This analysis suggests a nuance that may require further 

refinement on remand. The Trust has maintained that the thread of 

liability running from Steed to Jeffs is vicarious in nature. That may

be true to the extent that M.J. attempts to hold Jeffs liable for his 

relationship with Steed rather than for independent wrongful 

conduct. To the extent the Trust would be on the hook for Jeffs‘s

 

8 See RESTATEMENT (THIRD) OF TORTS: PROD. LIAB. § 1 cmt. a (AM.

LAW INST. 1998) (―Courts early began imposing liability without fault 

on product sellers for harm caused by such defects, holding a seller 

liable for harm caused by manufacturing defects even though all 

possible care had been exercised by the seller in the preparation and 

distribution of the product.‖).
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Opinion of the Court

13

pass-along liability for the acts of Steed, the JOA would apply and 

would extend M.J.‘s release of Steed‘s liability to the Trust itself.

9

¶43 Not all of M.J.‘s claims against the Trust appear to fit this 

paradigm, however. M.J. seems to be alleging negligence or fault on 

Jeffs‘s part that is not based solely on his relationship with Steed. 

Thus, Jeffs is described in M.J.‘s complaint as ―command[ing], 

instruct[ing], and facilitat[ing]‖ Steed‘s illegal marriage and sexual 

assaults against M.J. Third Amended Complaint at 7. And M.J. 

asserts that Jeffs‘s exercise of ―supreme and inseparable‖ 

ecclesiastical authority threatened M.J. with ―loss of . . . home, 

famil[y] and support,‖ id. at 9, an allegation that seems to identify a 

basis for M.J.‘s claim for intentional infliction of emotional distress. 

These allegations seem to fit the LRA paradigm. To the extent the 

Trust‘s liability is not pass-along liability for the acts of Steed, but 

liability with an independent thread of fault running through Jeffs, 

the LRA would apply and M.J.‘s release of Steed would not result in 

a waiver of claims as to the Trust.

¶44 We leave the application of these principles for further 

litigation on remand. It will be up to the district court to decide in 

the first instance, on further motions or at trial, whether and to what 

extent M.J.‘s claims run independently through Jeffs (and are thus 

preserved under the LRA) or run vicariously through Steed (and are

thus subject to waiver under the JOA).

C. The Doctrine of Respondeat Superior

¶45 A third proposed basis for summary judgment for the Trust 

is a series of challenges to the imposition of vicarious liability under 

the doctrine of respondeat superior. On grounds described in detail 

below, the Trust contends that it should not be held vicariously 

liable for the tortious conduct of Warren Jeffs. The Trust‘s arguments 

implicate both common law and statutory principles of respondeat 

superior. 

 

9 This conclusion would not be obviated, as M.J. insists, by the 

fact that M.J. has not asserted independent claims against Steed. The 

JOA applies broadly to individuals ―severally bound for the same 

performance.‖ UTAH CODE § 15-4-1(4). And if someone is vicariously 

liable for the conduct of another, then that person is clearly 

―severally bound for the same performance.‖ Thus, it is clear that 

any vicarious claims against the trust based on its vicarious liability 

for the actions of Steed would be waived, even if Steed was not an 

agent of the trust and even if M.J. never brought these claims.
M.J. v. WISAN

Opinion of the Court

14

¶46 At common law a trust had no vicarious liability for the acts 

of a trustee. Trusts were not seen as separate entities capable of 

entering into contracts or incurring liabilities. See Ace Inv’rs, LLC v. 

Rubin, 494 F. App‘x 856, 859 (10th Cir. 2012). So persons injured by 

the trustee—by his individual or representative acts—had only a 

right of action against the trustee as an individual, and no claim 

against the trust.

¶47 This common law regime has been altered by statute in 

Utah. Under section 1010 of the Uniform Trust Code, a trust is liable 

for the trustee‘s acts performed ―in the course of administering [the] 

trust.‖ UTAH CODE § 75-7-1010(1). This standard is not defined by 

statute or in our cases. And the caselaw in other jurisdictions that 

have adopted the Uniform Trust Code is scant.10

¶48 Yet the terms of the statute, in context, are quite clear. In the 

course of is the traditional formulation of the standard for vicarious 

liability under the doctrine of respondeat superior. See Clark v. Pangan, 

2000 UT 37, ¶ 21, 998 P.2d 268 (inquiring into whether tortious 

conduct occurred ―during the course of‖ employment); Clover v. 

Snowbird Ski Resort, 808 P.2d 1037, 1042 (Utah 1991) (noting that a 

past case had rejected respondeat superior liability on the ground that 

―the employee‘s actions were a substantial departure from the course

of employment‖). We accordingly interpret the Uniform Trust Act as 

incorporating the established standard of respondeat superior liability.

See Maxfield v. Herbert, 2012 UT 44, ¶ 31, 284 P.3d 647 (noting that a 

legal term that is transplanted into a statute ―brings the old soil with 

it‖ (citation omitted)). Thus, under section 1010 of that act, a trust is 

liable for the acts of a trustee when the trustee was acting within the 

scope of his responsibility as a trustee. 

¶49 That leaves the question whether the tortious conduct of 

Jeffs can sustain the Trust‘s liability under the doctrine of respondeat 

superior. The Trust advances two grounds for avoiding such liability: 

(1) that intentional acts in furtherance of sexual misconduct are not 

within the scope of a trustee‘s employment under the standard set 

forth in Birkner v. Salt Lake County, 771 P.2d 1053, 1057 (Utah 1989); 

 

10 The limited caselaw on this point focuses mostly on whether a 

trustee may be reimbursed for his services as a fiduciary. See, e.g., 

Hastings v. PNC Bank, NA, 54 A.3d 714, 727 (Md. 2012) (noting that ―a 

trustee is generally entitled to indemnity for expenses incurred 

reasonably and properly in the course of administering a trust‖).
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Opinion of the Court

15

and (2) that equitable considerations—such as concern for Trust 

beneficiaries who in no way participated in or benefited from Jeffs‘s 

acts—preclude application of the doctrine of respondeat superior in 

this case. We reject both of these arguments for reasons explained 

below.

1

¶50 Respondeat superior is a doctrine of the common law of 

agency. The basic question presented under this doctrine is whether 

to treat the torts of an agent as the acts of the principal. The 

arguments in favor of extending such liability include fairness to 

injured parties and deterrence of tortious activity. 

¶51 First, respondeat superior ―reflects the likelihood that an 

employer will be more likely to satisfy a judgment‖ than an 

employee and is in a better position to ―insure against liability 

encompassing the consequences of all employees‘ actions.‖ 

RESTATEMENT (THIRD) OF AGENCY § 2.04 cmt. b (AM. LAW INST. 2006). 

Second, respondeat superior is also aimed at deterrence. It ―creates an 

incentive for principals to choose employees and structure work 

within the organization so as to reduce the incidence of tortious 

conduct.‖ Id. ―This incentive may reduce the incidence of tortious 

conduct more effectively than doctrines that impose liability solely 

on an individual tortfeasor.‖ Id.

¶52 Yet fairness considerations also help mark the law‘s 

limitations on such vicarious liability. When an agent‘s act occurs 

within ―an independent course of conduct‖ not connected to the 

principal, he is not acting within the scope of employment. Id. 

§ 7.07(2) (also indicating that ―[a]n employee acts within the scope of 

employment when performing work assigned by the employer or 

engaging in a course of conduct subject to the employer‘s control‖). 

And it would be unfair to subject the employer to liability for 

tortious activity occurring within such an ―independent course of 

conduct.‖ 

¶53 The difficult question for the law in this field has been to 

define the line between a ―course of conduct subject to the 

employer‘s control‖ and ―an independent course of conduct‖ not 

connected to the principal. Id. An ―independent course of conduct‖ 

is a matter so removed from the agent‘s duties that the law, in 

fairness, eliminates the principal‘s vicarious liability. Such a course 

of conduct is one that ―represents a departure from, not an escalation 

of, conduct involved in performing assigned work or other conduct 

that an employer permits or controls.‖ Id. § 7.07 cmt. b. 
M.J. v. WISAN

Opinion of the Court

16

¶54 Our cases have identified three factors of relevance to this 

inquiry: (1) whether the agent‘s conduct is ―of the general kind the 

[agent] is employed to perform‖; (2) whether the agent is acting 

―within the hours of the [agent‘s] work and the ordinary spatial 

boundaries of the employment‖; and (3) whether the agent‘s acts 

were ―motivated, at least in part, by the purpose of serving the 

[principal‘s] interest.‖ Birkner, 771 P.2d at 1057. In the Birkner case we 

held as a matter of law that a social worker‘s sexual interaction with 

a client he met through a ―crisis line‖ maintained by Salt Lake 

County was not a matter within the course of his employment with 

the county. Id. at 1058. In so doing we concluded that the worker‘s 

sexual interactions with the client were ―not the general kind of 

activity a therapist is hired to perform‖ and ―arose from his own 

personal impulses, and not from an intention to further his 

employer‘s goals.‖ Id. So although the ―misconduct took place 

during, or in connection with, therapy sessions,‖ we held that 

―reasonable minds could not disagree with the conclusion that the 

sexual contacts in th[e] case were not within the scope of [the 

therapist‘s] employment.‖ Id. And we cited, in support of that 

holding, ―rulings in other jurisdictions holding as a matter of law 

that the sexual misconduct of an employee is outside the scope of 

employment‖ for purposes of the doctrine of respondeat superior. Id.

¶55 Our Birkner decision was handed down more than twentyfive years ago. And the law in this area has evolved somewhat in the 

ensuing years. The Third Restatement, for example, notes that 

consideration of whether an agent is ―situated on the employer‘s 

premises‖ or ―continuously or exclusively engaged in performing 

assigned work‖ is incompatible with ―the working circumstances of 

many managerial and professional employees and others whose 

work is not so readily cabined by temporal or spatial limitations.‖ 

RESTATEMENT (THIRD) OF AGENCY § 7.07 cmt. b. Thus, under the 

Third Restatement, and in the caselaw of a number of states, spatial 

and time boundaries are no longer essential hallmarks of an agency 

relationship.11 Instead, the law now recognizes that agents may 

―interact on an employer‘s behalf with third parties although the 

 

11 See Md. Cas. Co. v. Huger, 728 S.W.2d 574, 579 (Mo. Ct. App. 

1987) (―Whether an act is within the  ̳scope of employment‘ or  ̳scope 

of duty‘ is not measured by the time or motive of the act . . . .‖); 

Childers v. Shasta Livestock Auction Yard, Inc., 235 Cal. Rptr. 641, 647 

(Cal. Ct. App. 1987) (holding that respondeat superior liability may 

attach even when tortious conduct occurs ―at times and locations 

remote from the ordinary workplace‖). 
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Opinion of the Court

17

employee is neither situated on the employer‘s premises nor 

continuously or exclusively engaged in performing assigned work.‖ 

Id.

¶56 A number of courts have also questioned the viability of the 

requirement that an agent‘s acts be motivated in some part by an 

intention to serve the principal‘s purposes.12 The Third Restatement 

itself maintains this element. See id. § 7.07(2) (―An employee‘s act is 

not within the scope of employment when it occurs within an 

independent course of conduct not intended by the employee to 

serve any purpose of the employer.‖). And its commentary asserts 

that ―[m]ost cases apply‖ this standard. Id. § 7.07 cmt. b. 

¶57 Yet the Third Restatement commentary also acknowledges 

―[a]lternative formulations‖ in the caselaw of other jurisdictions, 

under which courts ―avoid the use of motive or intention to 

determine whether an employee‘s tortious conduct falls within the 

scope of employment‖ and adopt a different standard for identifying 

the ―tie between the tortfeasor‘s employment and the tort.‖ Id. One 

such standard is whether ―the tort is a generally foreseeable 

consequence of the enterprise undertaken by the employer or is 

incident to it‖—in other words, whether the agent‘s ―conduct is not 

so unusual or startling that it seems unfair to include the loss 

resulting from it in the employer‘s business costs,‖ or whether the 

―tort was  ̳engendered by the employment[]‘ or an  ̳outgrowth‘ of it.‖ 

Id. Another considers ―whether the employment furnished the 

specific impetus for a tort or increased the general risk that the tort 

would occur.‖ Id. ―These tests leave to the finder of fact the challenge 

of determining whether a tortfeasor‘s employment did more than 

create a happenstance opportunity to commit the tort.‖ Id.

¶58 We are not called upon here to resolve all aspects of the 

tension between our Birkner decision and the ensuing caselaw 

developments in other jurisdictions. To resolve this case we need not 

choose, for example, between the purpose or motive test that the 

Third Restatement portrays as the majority view and the 

―alternative‖ formulations that it describes. That is because we find 

that the Trust‘s attempts to defeat its liability on summary judgment 

 

12 See Marston v. Minneapolis Clinic of Psychiatry & Neurology, Ltd., 

329 N.W.2d 306, 311 (Minn. 1982) (asserting that it is ―a rare situation 

where a wrongful act would actually further an employer‘s 

business,‖ while concluding that parsing an employee‘s motivation 

is ―unrealistic and artificial‖).
M.J. v. WISAN

Opinion of the Court

18

fail under any of the above formulations (for reasons described 

below).

¶59 We do openly endorse one particular aspect of the Third 

Restatement formulation of the doctrine of respondeat superior, 

however. Specifically, and contrary to our decision in Birkner, we 

hold that an agent need not be acting ―within the hours of the 

employee‘s work and the ordinary spatial boundaries of the 

employment‖ in order to be acting within the course of his 

employment. Birkner, 771 P.2d at 1057. Instead, as noted in the Third 

Restatement, we acknowledge that in today‘s business world much 

work is performed for an employer away from a defined work space 

and outside of a limited work shift. And we accordingly reject the 

Trust‘s attempt to escape liability on the ground that Jeffs‘s acts as a 

trustee were not performed while he was on the Trust‘s clock or at a 

work space designated for his work for the Trust. Instead we hold 

that the key question is whether Jeffs was acting ―within the scope of 

employment when performing work assigned by the employer or 

engaging in a course of conduct subject to the employer‘s control.‖ 

RESTATEMENT (THIRD) OF AGENCY § 7.07(2).

13

¶60 We also reject the Trust‘s reliance on Birkner for the 

proposition that settled caselaw establishes ―as a matter of law that 

the sexual misconduct of an employee is outside the scope of 

employment.‖ See Birkner, 771 P.2d at 1058 (citing cases). Granted, 

there are many cases that so conclude—both before Birkner and 

after.14 And some of those cases seem to turn principally on the 

ground that drove our Birkner decision—that an agent who commits 

a sexual assault is merely gratifying his own personal sexual desire 

and cannot be viewed as advancing, even in part, the purposes of his 

 

13 In so concluding we do not foreclose the circumstantial 

relevance of the time and place of the employee‘s tortious activity. 

We simply hold that proof that the agent was operating within the 

hours of the employee‘s work and the ordinary spatial boundaries of 

the employment is no longer a required element of the doctrine of 

respondeat superior.

14 See, e.g., J.H. ex rel. D.H. v. W. Valley City, 840 P.2d 115, 122–23

(Utah 1992); Jackson v. Righter, 891 P.2d 1387, 1391 (Utah 1995); 

D.D.Z. v. Molerway Freight Lines, Inc., 880 P.2d 1, 4–5 (Utah Ct. App. 

1994); Andrews v. United States, 732 F.2d 366, 370 (4th Cir. 1984); 

Cosgrove v. Lawrence, 522 A.2d 483, 484–85 (N.J. Super. Ct. App. Div. 

1987). 
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Opinion of the Court

19

principal.15 Yet some of the cases in this field (particularly more 

recent ones) go the other way;16 and a number of decisions adopt the 

―alternative‖ approach noted in the Restatement (Third) of 

Agency—in adopting a standard that turns not on motive or purpose 

but on foreseeability,17 or on whether the employee‘s acts were 

 

15 See e.g., J.H. ex rel. D.H., 840 P.2d at 123 (Utah 1992) (noting that 

―[n]o record evidence exists that would lead reasonable minds to 

conclude that [the employee] was acting in the interest of [his 

employer] when he committed acts of molestation on plaintiff‖).

16 Lyon v. Carey, 533 F.2d 649, 655 (D.C. Cir. 1976) (―It is, then, a 

question of fact for the trier of fact, rather than a question of law for 

the court, whether the assault stemmed from purely and solely 

personal sources or arose out of the conduct of the employer‘s 

business . . . .‖); Stropes ex rel. Taylor v. Heritage House Childrens Ctr. of 

Shelbyville, Inc., 547 N.E.2d 244, 249 (Ind. 1989) (―A blanket rule 

holding all sexual attacks outside the scope of employment as a 

matter of law because they satisfy the perpetrators‘ personal desires 

would draw an unprincipled distinction between such assaults and 

other types of crimes . . . .‖). See also infra, notes 17-18.

17 See Marston v. Minneapolis Clinic of Psychiatry & Neurology, Ltd., 

329 N.W.2d 306, 311 (Minn. 1983) (―[S]exual relations between a 

psychologist and a patient is a well-known hazard and thus, to a 

degree, foreseeable and a risk of employment.‖); Lisa M. v. Henry 

Mayo Newhall Mem’l Hosp., 907 P.2d 358, 364 (Cal. 1995) (concluding 

that a sexual tort is ―engendered by the employment‖ if the 

―motivating emotions were fairly attributable to work-related events 

or conditions‖); Rodgers v. Kemper Constr. Co., 50 Cal. App. 3d 608, 

619 (Cal. Ct. App. 1975) (concluding that liability attaches if ―in the 

context of the particular enterprise an employee‘s conduct is not so 

unusual or startling that it would seem unfair to include the loss 

resulting from it among other costs of the employer‘s business‖);

Riviello v. Waldron, 391 N.E.2d 1278, 1282 (N.Y. 1979) (concluding 

that ―it suffices that the tortious conduct be a natural incident of the 

employment‖); Costner v. Adams, 121 S.W.3d 164, 169 (Ark. Ct. App. 

2003) (holding that ―liability attaches when an employee commits a 

foreseeable act within the scope of his employment at the time of the 

incident‖). 
M.J. v. WISAN

Opinion of the Court

20

engendered by or an outgrowth of the employment, or the 

employment furnished the impetus for the tort.18

¶61 With this in mind, we cannot accept the Trust‘s invitation to 

rule as a matter of law that the sexual activity of an agent can never 

be a matter within the scope of employment. That proposition may 

have seemed viable at the time of our decision in Birkner. But it 

seems less so now. In at least some circumstances the contrary 

conclusion is possible.

¶62 And we conclude that this is one of those cases. Given Jeffs‘s 

unique role as leader of the FLDS Church, and in light of the 

unusual, troubling function of plural marriage involving young 

brides in the FLDS culture, we hold that a reasonable factfinder 

could conclude that Jeffs was acting within the scope of his role as a 

trustee in directing Steed to engage in sexual activity with M.J. We 

affirm the denial of the Trust‘s summary judgment motion on that 

basis.

¶63 We do so, moreover, without directly resolving the tension 

between our decision in Birkner and the alternative formulations 

noted in the Third Restatement regarding the role of purpose or 

motive in the course of employment inquiry. Instead we hold that 

Jeffs‘s activity appears to fit under any of the standards employed by 

the courts, and thus that the Trust is not entitled to summary 

judgment on this ground.

¶64 In this case it cannot be said that Jeffs‘s acts were an 

―independent course of conduct‖ not intended by Jeffs to serve ―any 

purpose‖ of the Trust. Jeffs‘s direction of the ―marriage‖ between 

M.J. and Steed would certainly appear to be misguided. And Jeffs 

may have had his personal interest in mind when he exercised

control over trust property to compel M.J. to be submissive to his 

ecclesiastical authority and remain in her illegal marriage. But in 

these unusual circumstances we cannot conclude that Jeffs had no 

 

18 Simmons v. United States, 805 F.2d 1363, 1369, 1371 (9th Cir. 

1986) (concluding that a counselor who exploited patient‘s ―trusting 

dependency relationship‖ in order to induce sexual conduct acted 

―in conjunction with his legitimate counseling activities‖); Xue Lu v. 

Powell, 621 F.3d 944, 954 (9th Cir. 2010) (considering whether a 

sexual assault was ―an outgrowth of workplace responsibilities, 

conditions or events‖ (citation omitted)). 
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Opinion of the Court

21

purpose of advancing the interests of the Trust (however misguided 

those interests may seem—as they certainly do). 

¶65 As trustee of the Trust prior to its reformation, Jeffs was 

called upon to administer the Trust in accordance with the doctrines 

and principles of the FLDS Church. Those doctrines and principles, 

according to M.J.‘s allegations and evidence in the record, included 

the arrangement of plural, underage marriages. Thus, as abhorrent 

and troubling as this may appear to be, there is a basis in the record 

for the conclusion that Jeffs‘s acts were aimed in part at advancing 

the interests of the Trust as he perceived them. And there is also 

reason to conclude that Jeffs‘s conduct was ―of the general kind‖ he 

was expected ―to perform‖ as trustee. We affirm the denial of the 

Trust‘s motion for summary judgment on that basis.

¶66 In so doing, we leave open the possibility in a future case of 

reviewing and revising the standard set forth in our decision in 

Birkner. We see no need to do so here because the Trust‘s motion fails 

even under the Birkner standard. But we also note that the 

―alternative‖ formulations set forth above would also be met in this 

case. And although we need not reach the question here, we leave 

open the possibility of embracing one of these alternative standards 

in a future case in which the question is presented.

2

¶67 The doctrine of respondeat superior is rooted in common law 

principles of agency. As noted above, it is aimed at assuring 

adequate deterrents against tortious activity by agents. And because 

principals are often more likely to have resources (or insurance) 

sufficient to pay compensation, respondeat superior liability also 

protects the interests of injured parties in being compensated.

¶68 These premises of the doctrine of respondeat superior are a 

threshold ground for rejecting the Trust‘s equitable challenge to its 

application here. Our law has long held that equity is served by 

recognition of a principal‘s vicarious liability for the acts of an agent 

falling within the scope of his employment. The common law, 

moreover, has left no room for case-by-case evaluation of the 

equities of imposing such liability in light of the nature of the 

principal‘s business or the innocence of its stakeholders. It has 

concluded instead that equity is enhanced by the extension of 

vicarious liability in the broad run of cases. So the innocence of the 

Trust‘s beneficiaries is no reason to foreclose its vicarious liability 

under the doctrine of respondeat superior. That doctrine presupposes 

an innocent principal. Yet it extends vicarious liability on the basis of 
M.J. v. WISAN

Opinion of the Court

22

a determination that the upsides of such liability outweigh any 

downsides.

¶69 The Trust‘s equitable challenge to the doctrine of respondeat 

superior is undermined further by the terms of the Uniform Trust 

Act. Under that statute an injured party has a cause of action against 

a trust for actions of a trustee ―in the course of administering a 

trust.‖ UTAH CODE § 75-7-1010(2). That provision leaves no room for 

us to second-guess the imposition of vicarious liability on a trust for 

the acts of a trustee. Where the legislature has spoken our role is 

limited. In the face of duly-enacted legislation we no longer have a 

primary policymaking role. See Graves v. N.E. Servs., Inc., 2015 UT 28, 

¶ 70, 345 P.3d 619 (noting that in light of ―a detailed statutory 

scheme . . . our role as policymaker is preempted‖). We are left only 

to interpret the terms of the statute and then to implement them. 

¶70 That conclusion forecloses the Trust‘s equitable position. 

The Uniform Trust Act draws no distinctions between different 

types of trusts. And it leaves no room for an exception to respondeat 

superior liability for trusts whose beneficiaries are innocent victims of 

a trustee‘s tortious acts. That may often be the case where a trustee 

engages in tortious activity. But if that activity falls within the scope 

of the trustee‘s responsibilities in administering the trust, the trust is 

vicariously liable by statute—whether or not a court might find such 

liability equitable.

D. Reverse Veil-Piercing

¶71 The Trust‘s final proposed basis for summary judgment is 

addressed to a different theory of vicarious liability asserted by 

M.J.—―reverse piercing‖ of the corporate veil, under which an 

artificial entity may be viewed as an individual‘s alter ego, and the 

entity is thus deemed responsible for the individual‘s personal acts. 

This court has not had occasion to endorse this theory of liability in 

its past cases. And the Trust urges us to reject it as a matter of law. 

Alternatively, it also urges us to refuse to extend this doctrine to the 

circumstances of this case.

¶72 For reasons noted below we acknowledge the viability of 

the doctrine of reverse piercing of the corporate veil under Utah law. 

Yet we also conclude that extension of this doctrine in this case 

would be improper, and thus foreclose its application on remand.

1

¶73 Corporations and certain other artificial entities are treated 

as legally distinct from their shareholders, officers, and directors. As 

a general rule they are accordingly shielded from liability; they have 

no individual responsibility for the legal obligations of the corporate 
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Opinion of the Court

23

entity. See Dockstader v. Walker, 510 P.2d 526, 528 (Utah 1973). This is 

the concept of the corporate veil.

¶74 We have long embraced an exception to this general rule, 

however. Where a shareholder, officer, or director abuses the 

corporate form, and treats the legal entity as his alter ego, our law 

allows a creditor to pierce the veil. Id. Veil-piercing allows claimants 

to go after the assets of an individual in the unusual circumstance in 

which the corporate entity is not really distinct from the individual. 

Id. This principle has also been extended to the trust context.19

¶75 Our law counsels ―great caution‖ before allowing a claimant 

to pierce the corporate veil. Shaw v. Bailey-McCune Co., 355 P.2d 321, 

322 (Utah 1960). Most often, the cases in which the veil is 

appropriately pierced involve a limited number of shareholders or 

trustees, or at least an unusual unity of interest and purpose. 

Dockstader, 510 P.2d at 528 (noting that the ―doctrine is generally 

applied to . . .  ̳one-man corporations‘‖). We have also said that the 

corporate veil may be pierced only in circumstances where refusing 

to do so ―would sanction a fraud or promote injustice.‖ Grover v. 

Garn, 464 P.2d 598, 603 (Utah 1970) (citation omitted).20 And because 

veil-piercing is an equitable remedy it is available only where it is

―in the interest of justice,‖ Shaw, 355 P.2d at 322, a standard that 

takes into account the availability of an ―adequate remedy at law‖ to 

prevent irreparable harm to the plaintiff, Buckner v. Kennard, 2004 UT 

78, ¶ 56, 99 P.3d 842, and the potential for adverse impacts on third 

parties, see Cascade Energy & Metals Corp. v. Banks, 896 F.2d 1557, 1577

(10th Cir. 1990).

¶76 Reverse piercing cuts the opposite way. It allows a claimant 

to access the assets of a corporate entity (or other entity like a trust) 

for the acts of an individual—and to do so in circumstances where 

the individual and the entity were not treated as distinct, but have 

 

19 See e.g., In re Maghazeh, 310 B.R. 5, 16 (Bankr. E.D.N.Y. 2004); In 

re Felice, 494 B.R. 160, 175 (Bankr. D. Mass. 2013).

20 We have endorsed the factors set forth in Colman v. Colman, 743 

P.2d 782, 786 (Utah Ct. App. 1987), as ―non-exclusive considerations‖

for deciding whether a corporation is an alter ego. Jones & Trevor 

Mktg., Inc. v. Lowry, 2012 UT 39, ¶ 21, 284 P.3d 630. Many of these 

factors—like the failure to observe formalities, pay out expected 

sums, or maintain adequate records—may also be useful in the trust 

context. Yet we reiterate that these are ―merely helpful tools and not 

required elements.‖ Id. ¶ 18.
M.J. v. WISAN

Opinion of the Court

24

become each other‘s alter ego. See generally Kurtis A. Kemper, 

Annotation, Acceptance and Application of Reverse Veil-Piercing—ThirdParty Claimant, 2 A.L.R.6th 195 (2016). Courts in other jurisdictions 

have long embraced this theory of reverse veil-piercing.21 In Utah we 

have not yet had occasion to do so. In past cases we have twice been 

asked to endorse the principle of reverse piercing of the corporate 

veil. But both times we demurred, resolving the case instead on 

other grounds. See Messick v. PHD Trucking Serv., Inc., 678 P.2d 791, 

793 (Utah 1984); Transamerica Cash Reserve, Inc., v. Dixie Power &

Water, Inc., 789 P.2d 24, 26-27 (Utah 1990).

¶77 In this case the viability of reverse veil-piercing is squarely 

presented. And we take this occasion to generally endorse this 

principle of liability. In years past we could properly say that reverse 

piercing was ―a little-recognized theory.‖ Messick, 678 P.2d at 793. 

But that is no longer a correct description of the law in other 

jurisdictions. This principle of liability has now gained widespread 

acceptance. See Kurtis A. Kemper, Annotation, Acceptance and 

Application of Reverse Veil-Piercing—Third Party Claimant, 2 A.L.R.6th 

195 § 4 (2016) (listing eighteen states, D.C., and a number of federal 

courts that have accepted reverse veil-piercing). Even in Utah, our 

courts appear to have employed it without great controversy or 

difficulty. See Colman v. Colman, 743 P.2d 782, 786-87 (Utah Ct. App. 

1987). 

¶78 More importantly, the doctrine of reverse piercing seems to 

us to ―follow[] logically‖ from the premises of the longstanding 

doctrine of traditional (direct) veil-piercing. Transamerica Cash 

Reserve, Inc., 789 P.2d at 26 (Utah 1990). Where an individual so 

abuses the corporate form that it becomes his alter ego, and where 

honoring its separate existence ―would sanction a fraud or promote 

injustice,‖ Grover, 464 P.2d at 603 (citation omitted), it would make 

no sense for the law to preclude a claimant from treating the two as 

if they were identical. This is true not only for corporations, but also 

 

21 See Kingston Dry Dock Co. v. Lake Champlain Transp. Co., 31 F.2d 

265, 267 (2d Cir. 1929) (Hand, J.) (acknowledging that in some

limited cases ―a subsidiary [might] . . . be liable for a transaction 

done in the name of a parent,‖ while concluding that such 

circumstances, ―if possible at all, must be extremely rare‖); W. G. 

Platts, Inc. v. Platts, 298 P.2d 1107, 1110 (1956) (disregarding the 

corporate veil when a husband hid assets in a divorce).
Cite as: 2016 UT 13

Opinion of the Court

25

for trusts.22 And in such circumstances we conclude that our law 

should allow reverse piercing of the corporate veil.

2

¶79 The legal standards for reverse piercing, however, should be 

parallel to the law of direct piercing. Thus, following the principles 

set forth above, a claimant seeking to impose reverse-piercing 

liability on a corporate entity or trust must establish not only an 

abuse of the corporate form, but also that such abuse resulted in 

fraud or injustice, and that reverse piercing is necessary to avoid an 

injustice (or in other words that the claimant lacks an adequate 

remedy at law). Thus, reverse piercing should be a tool of last resort; 

too-frequent imposition of such liability could ―bypass[] normal 

judgment-collection procedures‖ in a manner prejudicing ―nonculpable shareholders.‖ Cascade Energy, 896 F.2d at 1577. 

¶80 As a practical matter, this principle of liability has teeth only 

for individual acts falling beyond the reach of the doctrine of 

respondeat superior. For acts within the scope of employment, after all, 

the corporate entity or trust would have respondeat superior liability. 

So there would be no practical need for reverse veil-piercing for 

individual acts covered by that doctrine. And reverse piercing would 

come into play only for acts falling within an independent course of 

conduct not covered by respondeat superior.

¶81 We conclude that reverse piercing would be inappropriate 

in this case under the above standards. M.J. has identified a 

threshold basis in the record for concluding that the Trust was Jeffs‘s 

alter ego. And she has also adequately asserted the perpetration of a 

grave injustice. But the other elements of the standard for reverse 

piercing are lacking. 

¶82 First, the Trust is subject to vicarious liability under the 

doctrine of respondeat superior. For that reason M.J. has access to an 

adequate legal remedy. So it cannot be said that reverse piercing is 

necessary to avoid an injustice in this case.

¶83 Second, equitable considerations also cut against the 

imposition of reverse piercing liability in this case. As noted above, 

veil-piercing is most easily invoked in cases involving a limited 

number of shareholders or trustees, or at least an unusual unity of 

interest and purpose. See supra ¶ 75. Conversely, equitable 

 

22 See, e.g., Zahra Spiritual Trust v. United States, 910 F.2d 240, 244-

46 (5th Cir. 1990) (concluding that the veil of a trust could be pierced 

to satisfy taxpayer liabilities if the trust was used as an alter ego).
M.J. v. WISAN

Opinion of the Court

26

considerations may counsel against reverse piercing in cases 

involving adverse impacts on innocent third parties. See supra ¶¶ 75-

76. And in our view these concerns counsel against reverse piercing 

in this case.

¶84 This is not a case involving a limited number of 

shareholders or trustees. The Trust‘s beneficiaries, rather, include

innocent third parties whose interests could be adversely affected if 

the Trust‘s veil is pierced. Some of those beneficiaries may 

themselves have claims against the Trust. And because those claims 

could be jeopardized by the remedy of reverse veil-piercing, and M.J. 

has access to a legal remedy under the doctrine of respondeat superior, 

we conclude that this is not an appropriate case for reverse piercing. 

We hold that the Trust is entitled to summary judgment on that 

limited basis.