This opinion is subject to revision before final

publication in the Pacific Reporter.

2015 UT 57

IN THE

SUPREME COURT OF THE STATE OF UTAH

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ROBERT ERVAN ZELLER and TERRI ZELLER,

Appellees,

v.

CHARLOTTE NIXON,

Appellant.

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No. 20130775

Filed July 21, 2015

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First District, Logan Dep’t

The Honorable Kevin K. Allen

No. 120100210

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Attorneys:

Matthew R. Feller, Mark K. Carlson, Brian L. Hansen, for appellee

R. Phil Ivie, Dallas B. Young, Provo, for appellant

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

which CHIEF JUSTICE DURRANT, JUSTICE DURHAM, JUSTICE PARRISH,

and JUSTICE HIMONAS joined.

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ASSOCIATE CHIEF JUSTICE LEE: opinion of the Court:

¶1 This is a personal injury action arising out of an automobile 

accident. The accident occurred when Charlotte Nixon crossed the 

center line on 200 East near 900 North in Logan. Her car collided 

with a vehicle driven by Robert Zeller. Robert and his wife Terri 

filed a complaint against Ms. Nixon alleging claims for negligence 

and loss of consortium.

¶2 The Zellers submitted their claims for arbitration under 

Utah Code section 31A-22-321. In so doing, they accepted certain 

statutory limits on their damages. See UTAH CODE § 31A-22-321(3) 

(barring punitive damages for a claim submitted to arbitration 

under this provision); id. § 31A-22-321(2)(a) (providing that the 

plaintiff “is limited to an arbitration award that does not exceed 
ZELLER v. NIXON

Opinion of the Court

$50,000 in addition to any available personal injury protection 

benefits and any claim for property damage”). But they also opted 

in to a system (arbitration) that is thought to be quicker and less 

expensive than full-blown litigation. See id. § 31A-22-321(5)(b) (requiring discovery under this provision to “be completed within 

150 days after the date arbitration is elected”).

¶3 To facilitate the orderly disposition of claims, section 321 

prescribes the terms for opting in to arbitration under this provision. It states that “[a] person injured as a result of a motor vehicle 

accident may elect to submit all third party bodily injury claims to 

arbitration by filing a notice of the submission of the claim to 

binding arbitration in a district court.” Id. § 31A-22-321(1). And it 

also provides that the election of arbitration stands unless a notice 

of rescission is filed “within: (i) 90 days after the election to arbitrate; and (ii) no less than 30 days before any scheduled arbitration hearing.” Id. § 31A-22-321(4)(a). 

¶4 The Zellers did not file a notice of rescission within 90 days 

of electing arbitration. Beyond the 90-day rescission period, however, they moved to amend their complaint in a manner aimed (at 

least in part) at avoiding arbitration. The motion sought to add a 

claim for negligent entrustment against Nixon & Nixon, Inc., 

based on an allegation that the vehicle driven by Ms. Nixon was 

owned by that entity and had been entrusted to her despite knowing she had a history of strokes. In addition, the motion sought to 

undo the election of arbitration for the claims against Ms. Nixon.

¶5 In support of their motion, the Zellers identified new information that they had uncovered after the close of the statutory 

rescission period. That information came to light in part in initial 

disclosures provided by Ms. Nixon under Utah Rule of Civil Procedure 26(a). Ms. Nixon’s disclosures indicated that she had had a 

history of strokes, and also that the vehicle she was driving was 

owned by Nixon & Nixon, thus providing a basis for the claim for 

negligent entrustment. Another development came about around 

the same time: Robert Zeller received a recommendation from a 

surgeon that he undergo a neurosurgical procedure involving his 

spine. That information prompted the Zellers to seek to avoid the 

damages cap for claims in arbitration under section 321. 

¶6 Ms. Nixon opposed the motion to amend. She also filed a 

motion to compel arbitration. The district court granted the for2
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Opinion of the Court

mer motion and denied the latter. In so doing, the court acknowledged that the Zellers’ motion threatened to circumvent the election and rescission terms of section 321. But it upheld the Zellers’ 

right to amend on the basis of the finding that the “motive to circumvent the rescission deadline” was not the “driving factor” for 

the amendment. And it concluded that the Zellers “were justified”

in seeking the amendment because Ms. Nixon’s initial disclosures 

had been “untimely” and she would not be “substantially prejudiced” by the amendment.

¶7 In denying the motion to compel arbitration, the court 

found no tension between Utah Code section 31A-22-321 and 

Utah Rule of Civil Procedure 15. Although the statute expressly 

limits a plaintiff’s right to rescind the election of arbitration to a 

90-day period, the court deemed that limitation not to extend to 

claims asserted in an amended complaint. So the court found the 

standards set forth in rule 15 to control. And because it found a 

basis for an amendment under rule 15, the court denied the motion to compel arbitration—freeing the Zellers of the statutory 

limitations on their claims against Ms. Nixon and also allowing 

their claims to proceed against Nixon & Nixon. 

¶8 This appeal followed. Ms. Nixon alleges two sets of errors 

in the district court’s decision granting the motion to amend and 

denying the motion to compel arbitration. First, Ms. Nixon challenges the decision to allow the Zellers to undo their election of 

arbitration as to their claims against her. Second, she also challenges the decision to allow the Zellers to add claims against Nixon & Nixon. As to both sets of claims, Ms. Nixon relies on the 

election and rescission terms of Utah Code section 31A-22-321. 

She asserts that the election of arbitration for “third party bodily 

injury claims” under subsection 321(1) extends to all related 

claims, and that the election becomes final if not rescinded within 

90 days under subsection 321(4).

¶9 We reverse in part (as to the claims against Ms. Nixon) and 

affirm in part (as to the claims against Nixon & Nixon). Unlike the 

district court, we see evident conflict between section 321 and rule 

15. The statute provides a single path for rescission of a plaintiff’s 

election of arbitration. Under subsection 321(4), “[a] person who 

has elected arbitration under this section may rescind the person’s 

election” by one means only—by filing a notice of rescission 

“within: (i) 90 days after the election to arbitrate; and (ii) no less 

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Opinion of the Court

than 30 days before any scheduled arbitration hearing.” UTAH 

CODE § 31A-22-321(4)(a). The express statement of this single path 

for rescission is an evident exclusion of any other. See 2A NORMAN 

J. SINGER & J.D. SHAMBIE SINGER, SUTHERLAND ON STATUTES AND 

STATUTORY CONSTRUCTION § 47:23 (7th ed. 2007) (“When a statute 

limits a thing to be done in a particular mode, it includes the negative of any other mode.” (internal quotation marks omitted)). If an 

election of arbitration may be rescinded only by the filing of a notice of rescission within 90 days, then such election may not be 

undone by the subsequent filing of a motion to amend the complaint.1

¶10 The significance of the timing and finality of election and 

rescission are evident on the face of section 321. A personal injury 

case that proceeds by arbitration is fast-tracked. Discovery must 

be “completed within 150 days after the date arbitration is elected 

. . . or the date the answer is filed, whichever is longer.” UTAH 

CODE § 31A-22-321(5)(b). Thereafter, the case is submitted to the 

arbitrator, id. § 31A-22-321(6), unless it is first resolved by the 

court on a dispositive motion, id. § 31A-22-321(9)(d). This fast 

track makes it necessary to limit rescission. The 90-day rescission 

period is of obvious importance to the proper functioning of the 

statutory scheme.

¶11 We interpret the statute to foreclose the use of rule 15 to 

circumvent the 90-day rescission period. If that period could be 

circumvented by a simple motion to amend the complaint against 

the same party named in the original pleading, the statutory re1 At oral argument, counsel for the Zellers sought to resist this 

conclusion by citing a distinction between the mechanism of rescission under section 321 and the process of amendment under 

rule 15—by noting that the former is automatic, while the latter 

requires leave of court upon a showing that “justice so requires.” 

See UTAH R. CIV. P. 15(a) (setting forth discretionary standard for 

amending complaint after service of responsive pleading). Perhaps that suggests that rule 15(a) is not a complete end-run 

around—or not a perfect substitute for—rescission under section 

321. But that is insufficient. Statutory rescission is the only available mechanism for undoing an election of arbitration under section 321. Rule 15 is not a viable mechanism for a second bite at the 

apple.

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Opinion of the Court

scission period would be significantly undermined. We reverse 

the district court’s decision as to the Zellers’ claims against Ms.

Nixon on that basis. The Zellers elected arbitration as to their 

“third party bodily injury claims” against Ms. Nixon under subsection 321(1), and they failed to file a notice of rescission within 

90 days.

¶12 The Zellers’ motive for filing a motion to amend is irrelevant under the statute. They appear to have acquired a good faith 

basis for second-guessing their original election of arbitration. The 

information that came to light after the rescission period ended 

would apparently justify a change of heart as to the wisdom of 

proceeding in arbitration (and subjecting themselves to the statutory cap on damages). But that is irrelevant under the statute. The 

statutory timeframes are clear and straightforward. A claimant’s 

election of arbitration stands after the rescission period runs—

whether or not the reason for the about-face is understandable.

¶13 That conclusion does not extend to the Zellers’ claims

against Nixon & Nixon, however. These are new claims against a 

new party. Such claims could have been asserted in a new complaint in a separate action. Our joinder rules allow such a claim to 

be joined or consolidated with related claims in a pending case. 

See, e.g., UTAH R. CIV. P. 18(a) (plaintiff “may” join “as many 

claims either legal or equitable or both as he may have against an 

opposing party”); UTAH R. CIV. P. 20(a) (“All persons may be 

joined in one action as defendants” if causes of action arise “out of 

the same transaction [or] occurrence” and there is “any question 

of law or fact common to all of them.”). But those rules do not typically require such joinder. Krejci v. City of Saratoga Springs, 2013 

UT 74, ¶ 15, 322 P.3d 662 (“[T]he joinder decision is generally 

permissive. Parties are generally free to litigate in a piecemeal 

fashion if they so choose[,] [absent] a motion for joinder of a necessary party. . . .” (citation omitted)). And because the Zellers’ 

claims against Nixon & Nixon could have been filed as a new 

complaint in an entirely separate case, we see no basis for deeming them to be encompassed within the election of arbitration as 

to their claims against Ms. Nixon.

¶14 Ms. Nixon claims to find such a basis in the terms of subsection 321(1). Because that provision states that “[a] person injured as a result of a motor vehicle accident may elect to submit all

third party bodily injury claims to arbitration,” UTAH CODE § 31A5
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Opinion of the Court

22-321(1) (emphasis added), Ms. Nixon asserts that all of the 

Zellers’ claims arising out of the automobile accident in question 

are encompassed within the election of arbitration as to the claims 

against her. [AB. 12] We read the statute differently. We view it as 

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

¶15 Nothing in the terms or structure of this provision suggests 

the further implication advanced by Ms. Nixon—of extending an 

election of arbitration for claims asserted against one defendant to 

sweep in related claims that could later be asserted against a second defendant. The statutory permission to seek arbitration for 

“all” bodily injury claims is not a requirement to encompass any 

related claims once arbitration is elected as to one defendant; it is 

simply an indication that the statute does not limit the types of 

bodily injury claims that may be arbitrated. And, given the 

longstanding right of a plaintiff to assert separate claims against 

multiple defendants separately, see supra ¶ 13, we construe the 

election of arbitration in section 321 to be limited to the defendant(s) named in the complaint at the time the election is made.

¶16 We affirm the district court’s decision as to the Zellers’ 

claim against Nixon & Nixon on that basis. Nixon & Nixon was 

not a named defendant at the time of the Zellers’ initial election of 

arbitration. The Zellers’ earlier election of arbitration as to their 

claim against Ms. Nixon accordingly did not encompass their subsequent claim against the corporation. For that reason there was 

no error in allowing the claims against Nixon & Nixon to proceed 

in regular litigation outside of the arbitration process set forth in 

section 321. 

¶17 Nor was there error in allowing such claims to be added as 

an amendment to the existing complaint. Perhaps in some arbitration proceedings, the court is divested of jurisdiction while arbitration is pending. But that is not the case for arbitration under 

section 321. As noted above, the district court retains jurisdiction 

during discovery and even for dispositive motions. UTAH CODE 

§ 31A-22-321(9)(c), (d). So when this amendment was sought, the 

district court still had jurisdiction, and thus a basis for allowing 

the Nixon & Nixon claim to be added to this case (albeit outside 

the arbitration election as to the claims against Ms. Nixon).

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Opinion of the Court

¶18 For these reasons we reverse the district court as to the 

Zellers’ claims against Ms. Nixon. Those claims are irretrievably 

subject to arbitration given the Zellers’ failure to rescind their election of arbitration within 90 days. And we affirm the district court 

as to the Zellers’ claims against Nixon & Nixon, albeit on a 

ground different from that identified below.

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