2019 UT App 125

THE UTAH COURT OF APPEALS

LAMAR DREW AND LARENE DREW,

Appellants,

v.

PACIFIC LIFE INSURANCE COMPANY,

Appellee.

Opinion

No. 20160314-CA

Filed July 18, 2019

Fourth District Court, Provo Department

The Honorable Darold J. McDade

No. 120402017

Steven G. Loosle, Paula W. Faerber, and Platte S.

Nielson, Attorneys for Appellants

Scott M. Petersen and David N. Kelley, Attorneys

for Appellee

JUDGE GREGORY K. ORME authored this Opinion, in which 

JUDGE MICHELE M. CHRISTIANSEN FORSTER concurred. 

JUDGE JILL M. POHLMAN dissented, with opinion.

ORME, Judge:

¶1 LaMar and LaRene Drew appeal the district court’s grant 

of summary judgment in favor of Pacific Life Insurance 

Company (Pacific) and the court’s denial of the Drews’ 

cross-motion for partial summary judgment on the issue of 

vicarious liability. The Drews contend that the district court 

erroneously determined that Pacific was not vicariously liable 

for the unlawful misrepresentations made by one of its 

appointed insurance producers, R. Scott National, Inc. (RSN). 

We reverse the summary judgment in favor of Pacific, and we 

remand for the entry of partial summary judgment in favor of 

the Drews.
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JURISDICTION

¶2 Before turning to the merits, we pause briefly to consider 

our jurisdiction. The order appealed from was interlocutory 

in nature but was certified as final in contemplation of rule 54(b) 

of the Utah Rules of Civil Procedure. The certification does 

not meet the requirements laid out in a recent line of opinions 

from the Utah Supreme Court. See EnerVest, Ltd. v. Utah State 

Eng'r, 2019 UT 2, ¶¶ 16–20, 435 P.3d 209 (amended opinion); 

Copper Hills Custom Homes, LLC v. Countrywide Bank, FSB, 2018 

UT 56, ¶¶ 15–17, 23–28, 428 P.3d 1133 (amended opinion); First 

Nat'l Bank v. Palmer, 2018 UT 43, ¶¶ 13–14, 427 P.3d 1169. 

Ordinarily in such a case, we dismiss for lack of jurisdiction. See,

e.g., Hayes v. Intermountain GeoEnvironmental Services Inc., 2018 

UT App 223, ¶ 1, 437 P.3d 650. But these cases all recognize 

that we “have the discretion to treat an improper rule 54(b) 

certification as a request for leave to take an interlocutory appeal 

under rule 5(a) of the Utah Rules of Appellate Procedure.” Id. ¶ 5

n.2. Accord EnerVest, 2019 UT 2, ¶ 20; Copper Hills, 2018 UT 56, 

¶ 29 n.15; Palmer, 2018 UT 43, ¶ 14 n.4. This discretion to treat 

an appeal taken from a non-final order as though it were 

an authorized interlocutory appeal is exercised “judiciously 

and sparingly.” Copper Hills, 2018 UT 56, ¶ 29 n.15. But it is 

exercised from time to time. See, e.g., Hawkins ex rel. Hawkins v. 

Peart, 2001 UT 94, ¶ 3 n.2, 37 P.3d 1062 (flawed rule 54(b) 

certification); Chaparro v. Torero, 2018 UT App 181, ¶¶ 28–31, 436 

P.3d 339 (non-final order due to an outstanding attorney fee 

issue). Cf. EnerVest, 2019 UT 2, ¶ 20 (suggesting that discretion to 

treat a flawed rule 54(b) certification as an authorized 

interlocutory appeal might have been exercised if appellant had 

standing on appeal).

¶3 We believe that the considerations that have prompted 

Utah’s appellate courts in prior cases to exercise their discretion 

to treat a flawed rule 54(b) certification as, instead, a granted 

petition for interlocutory appeal, or to decline to exercise 
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20160314-CA 3 2019 UT App 125

that discretion, are of only limited relevance in a subsequent 

case. Our resistance to a formulaic approach is inherent in 

the very concept of discretion. See Warren v. United States Parole 

Comm’n, 659 F.2d 183, 196 (D.C. Cir. 1981) (“[T]he essence of 

discretion is the absence of fixed rules.”). See also United States v. 

Richards, 659 F.3d 527, 551 (6th Cir. 2011) (“It is the essence 

of discretion that it may properly be exercised in different 

ways and likewise appear differently to different eyes.”)

(quotation simplified); Walen v. United States, 246 F. Supp. 3d 

449, 462 (D.D.C. 2017) (“Flexibility in the face of competing 

priorities . . . is the essence of discretion.”) (quotation simplified).

¶4 We determine that this case is appropriate for the exercise 

of our discretion to treat the flawed rule 54(b) certification as an 

interlocutory appeal pursuant to rule 5(a) of our appellate rules. 

Having done so, we now turn to a resolution of the appeal on its 

merits.

BACKGROUND1

¶5 In 2009, Pacific appointed RSN as its insurance producer 

and authorized it to “solicit and procure applications for 

[Pacific’s] life insurance and annuity products.” The agreement, 

however, prohibited RSN from soliciting insurance products that 

did not meet the “customer’s insurance needs and financial 

objectives.” At the time the parties executed the agreement, 

Pacific had appointed other companies and individuals to sell its 

 

1. When reviewing a district court’s grant of summary judgment, 

“we review the facts in a light most favorable to the losing 

party” and “recite the facts accordingly.” Bodell Constr. Co. v. 

Stewart Title Guar. Co., 945 P.2d 119, 121 (Utah Ct. App. 1997) 

(quotation simplified).
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20160314-CA 4 2019 UT App 125

insurance products,2 and RSN sold annuities and insurance 

policies on behalf of numerous companies and individuals. 

¶6 LaMar and LaRene Drew are retired senior citizens who, 

after seeing an advertisement, sought out one of RSN’s 

employees as a financial advisor. At the outset, the employee 

assisted the Drews in the acquisition and sale of multiple 

annuities. Later on, and with the assistance of another RSN 

employee, the initial employee informed the Drews that, even 

though they were approaching eighty, they could purchase a life 

insurance policy with a high death benefit and resell it on the 

secondary market for a large profit.3 Based on this information, 

the Drews purchased two $1.5 million life insurance policies, the 

first from PHL Variable Insurance Company (PHL) and the 

second from Pacific.4 To fund the premiums on the policies, the 

 

2. Pacific sells its insurance products in all fifty states, and as of 

December 2014, it had appointed 358 companies and 2,182 

individuals to sell its insurance products on its behalf. 

3. At the time of the transaction, Utah law clearly prohibited this

sales tactic. See Utah Code Ann. § 31A-36-111(5) (LexisNexis 

2010) (“A person may not issue, solicit, or market the purchase 

of a policy for the primary purpose of or with a primary 

emphasis on settling the policy.”); id. § 31A-36-102(8) (defining 

life settlement as “assigning, selling, transferring, devising, 

releasing, or bequeathing” the death benefit of a policy).

4. One might ask how Pacific could possibly justify issuing 

such a policy in addition to the $1.5 million life insurance policy 

the Drews had with PHL. The record makes clear that 

the Drews’ application to Pacific indicated that Pacific’s 

policy was intended to replace the PHL policy rather than 

supplement it. Additionally, the application queried whether the 

Drews planned to transfer the policy “as a repayment of any 

(continued...)
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20160314-CA 5 2019 UT App 125

RSN employees advised the Drews to obtain a reverse mortgage 

on their home. The Drews followed this advice.

¶7 RSN was unable to sell the policies on the secondary 

market. After the Drews paid more than $300,000 in premiums

and lost much of the equity in their home, the policies lapsed 

when the Drews could no longer afford the premiums. In total, 

they lost three-fourths of their life savings, and interest on their 

reverse mortgage is accruing at a rate of approximately $1,000 

per month. 

¶8 The Drews sued Pacific, claiming that it was vicariously 

liable for the tortious conduct of RSN’s employees, whom the 

Drews contended were acting as Pacific’s agents. Pacific and the 

Drews submitted cross-motions for summary judgment, and the 

district court granted summary judgment to Pacific. Although 

the court did not address whether an agency relationship existed 

between Pacific and RSN, it concluded that, even assuming such 

a relationship existed, RSN’s employees were not acting within 

the scope of their authority as agents of Pacific. The Drews 

appeal.

ISSUE AND STANDARD OF REVIEW

¶9 The Drews contend that the district court erroneously 

granted summary judgment in favor of Pacific and that 

judgment should have been entered in their favor. “We review a 

district court’s decision to grant summary judgment for 

 

(...continued)

premium financing debt,” to which an RSN employee answered 

“no.” Thus, on paper, Pacific had no way of knowing that the 

Drews acquired the policy solely for investment purposes, 

although their ages would appear to suggest that possibility.
Drew v. Pacific Life Insurance Company

20160314-CA 6 2019 UT App 125

correctness.” Bodell Constr. Co. v. Robbins, 2009 UT 52, ¶ 16, 215 

P.3d 933.

ANALYSIS

¶10 On appeal, the Drews argue that the district court 

misapplied agency law when it concluded that Pacific was not 

vicariously liable for the misrepresentations made by RSN’s 

employees. “Under principles of vicarious liability, a principal is 

held responsible for the tortious acts of an agent acting within 

the scope of the agent’s authority.” Wardley Better Homes 

& Gardens v. Cannon, 2002 UT 99, ¶ 19, 61 P.3d 1009. Thus, in 

order to determine whether Pacific is vicariously liable for the 

misrepresentations of RSN’s employees, we must answer two 

questions. First, we must decide whether an agency relationship 

existed between Pacific and RSN. If we conclude that an agency 

relationship did exist, we must then determine whether RSN’s 

employees acted within the scope of their authority in their 

dealings with the Drews.

I. Agency Relationship

¶11 Given its conclusion on the scope of RSN’s authority, the 

district court deemed it unnecessary to determine whether an 

agency relationship existed between Pacific and RSN. The

parties disagree about whether such a relationship existed.

¶12 The Insurance Code suggests that the existence of an 

agency relationship turns on whether an insurance salesperson 

is a “producer for the insurer” or a “producer for the insured.” 

See Utah Code Ann. § 31A-1-301(88) (LexisNexis 2010).5 If a 

 

5. We cite the provision in effect when the Drews were solicited 

and bought their policies. But this provision, with minimal 

variations in numbering and phraseology, has been in effect 

(continued...)
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producer is “compensated directly or indirectly by an insurer 

for selling, soliciting, or negotiating an insurance product of 

that insurer,” that producer is a producer for the insurer and 

is therefore its agent. See id. § 31A-1-301(88)(b)(i). In contrast, if 

a producer is “compensated directly and only by an insurance 

customer,” that producer is a producer for the insured and is

not an agent of the insurance company. See id. 

§ 31A-1-301(88)(b)(ii)(A).

¶13 It is clear from the record that the RSN employees 

received compensation directly from Pacific. Thus, under the 

plain terms of the Insurance Code, RSN’s employees were

producers for Pacific and were therefore acting as its agents.

¶14 Nevertheless, Pacific argues that RSN’s employees were 

independent insurance brokers rather than its agents. In support 

of this argument, Pacific relies on Vina v. Jefferson Insurance Co., 

761 P.2d 581 (Utah Ct. App. 1988), in which this court analyzed 

whether an insurance salesperson was an agent or a broker. See 

id. at 584–86. In Vina, we articulated some relevant 

considerations, including the discretion of the salesperson, the 

salesperson’s role as an intermediary between the insurance 

company and the prospective insured, and the salesperson’s 

ability to bind the insurance company. Id.

¶15 Importantly, Vina predates the current statutory regime, 

see supra ¶ 12 n.5, and we qualified our decision in that case by 

stating that it was made “under the controlling statutes” in effect 

 

(...continued)

continuously since April 30, 2001. See Utah Code Ann. 

§ 31A-1-301 (LexisNexis 2003) (amendment notes). See also id. 

§ 31A-1-301(83); id. § 31A-1-301(85) (2005); id. § 31A-1-301(88) 

(2010); id. § 31A-1-301(94) (2017); id. § 31A-1-301(95) (Supp. 

2018).
Drew v. Pacific Life Insurance Company

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at the time, 761 P.2d at 585. The Insurance Code has since

streamlined the agency determination in the insurance context, 

allowing courts to focus on how the insurance salesperson is 

compensated. See Utah Code Ann. § 31A-1-301(88). Thus, given 

Vina’s reliance on an outdated statute and the plain language of 

the now-controlling statute, the analysis in our previous decision 

is of limited utility at best. In any event, Vina is readily 

distinguishable from the case before us because the salesperson 

in Vina “was not specifically authorized to solicit insurance or 

otherwise act on behalf of” the insurance company. Vina, 761 

P.2d at 584. Here, Pacific specifically appointed RSN as its 

producer and authorized RSN to solicit and procure insurance 

applications on its behalf.

¶16 Pacific contends that this interpretation of the Insurance 

Code will create a “per se agency relationship . . . , thereby 

imposing strict liability on the insurer.” We disagree. While we 

recognize that the Insurance Code “does not supplant ordinary 

legal principles of agency,” see id. at 585, we do not read the 

pertinent provisions as inconsistent with general agency law. 

¶17 The Insurance Code provides as follows:

There is a rebuttable presumption that every 

insurer is bound by any act of its appointed 

licensee performed in this state that is within the 

scope of the appointed licensee’s actual (express or 

implied) or apparent authority, until the insurer has 

canceled the appointed licensee’s appointment and 

has made reasonable efforts to recover from the 

appointed licensee its policy forms and other 

indicia of agency.

Utah Code Ann. § 31A-23a-405(2) (emphasis added). The 

Insurance Code simplified but did not alter the standard of

liability applicable to agency relationships in the insurance 

context. See Zions Gate R.V. Resort, LLC v. Oliphant, 2014 UT App 
Drew v. Pacific Life Insurance Company

20160314-CA 9 2019 UT App 125

98, ¶ 6, 326 P.3d 118 (stating that a principal is liable if its agent 

acts pursuant to its actual or apparent authority). Under both the 

common law and the revised statute, principals are liable for the 

tortious acts of their agents when the agents act within the scope 

of their authority. Thus, the Insurance Code’s outline of agency 

relationships in the context of insurance producers does not, as 

Pacific suggests, impose “strict liability on the insurer for all of 

the acts of the appointed individual or entity.” 

II. Scope of Authority

¶18 Having concluded that RSN and its employees were 

agents of Pacific, we must now analyze the scope of RSN’s 

authority and whether it acted within that authority in 

misrepresenting the advisability of certain Pacific life insurance 

policies for the Drews. “Under principles of vicarious liability, a 

principal is held responsible for the tortious acts of an agent 

acting within the scope of the agent’s authority.” Wardley Better 

Homes & Gardens v. Cannon, 2002 UT 99, ¶ 19, 61 P.3d 1009. 

¶19 Pacific first argues that RSN’s employees acted outside 

the scope of their authority because the contract limited RSN 

to soliciting and procuring applications; the contract 

did not authorize RSN to bind Pacific to any contractual 

agreement. In so arguing, Pacific misapprehends the extent of 

agency liability. Agents are entitled to “do those acts which 

are incidental to, or are necessary, usual, and proper 

to accomplish or perform, the main authority expressly 

delegated to the agent.” Zions First Nat’l Bank v. Clark Clinic 

Corp., 762 P.2d 1090, 1094 (Utah 1988). Although RSN’s 

employees may have lacked the authority to create a binding 

contract on behalf of Pacific, they could, in the course of 

solicitation, “induce the purchase of a policy . . . by 

misrepresenting the nature of a product or policy term.” See Dias 

v. Nationwide Life Ins. Co., 700 F. Supp. 2d 1204, 1221 (E.D. Cal. 

2010). Thus, the proper inquiry is not limited to whether RSN 
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could legally bind Pacific but is more appropriately 

characterized as the broader question of whether RSN’s 

employees were acting within the scope of their authority when 

they misrepresented to the Drews the advisability of their 

acquiring Pacific’s life insurance policies.

¶20 Pacific also directs our attention to another provision in 

its contract with RSN that expressly prohibited RSN from 

soliciting and procuring insurance applications for products that 

did not “meet the customer’s insurance needs and financial 

objectives.”6 Thus, citing Bodell Construction Co. v. Stewart Title 

Guaranty Co., 945 P.2d 119 (Utah Ct. App. 1997), Pacific argues 

that it should not be held liable for RSN’s solicitations in this 

case because, as Pacific sees it, an agent acts outside of his or her 

authority “where the authority to perform the specific task has 

been expressly limited.” In Bodell, a principal limited its agent to 

issuing title insurance. Id. at 122. The agent, however, also took it

upon itself to provide escrow services, despite having signed a 

contract prohibiting it from engaging in “escrow business.” Id.

Thus, because we concluded that the issuance of title insurance 

did not necessarily require the agent to perform escrow 

functions, and the insurer expressly prohibited it from acting as 

its agent in “escrow business,” we held that the agent acted 

outside the scope of its authority in providing escrow services. 

Id. at 124–25.

 

6. Pacific notes that RSN’s employees knew that the Drews did 

not require another $1.5 million life insurance policy in addition 

to the $1.5 million policy they already had with PHL. Indeed, 

from the standpoint of the typical reason for acquiring life 

insurance—providing for dependents upon the unexpected 

death of the insured—the Drews’ need for life insurance in any 

amount is at least questionable. Of course, this would have been 

as obvious to Pacific, who wrote the policy, as it was to RSN, 

who solicited the policy.
Drew v. Pacific Life Insurance Company

20160314-CA 11 2019 UT App 125

¶21 Bodell is factually distinguishable from this case. In Bodell, 

the agent was performing a collateral function distinct from the 

activities it was authorized to perform, namely, the performance 

of escrow services. Id. Here, RSN’s employees were authorized 

to solicit life insurance policies, and that is precisely what they 

did—albeit in an unprofessional, if not tortious, manner. See 

Restatement (Second) of Agency § 230 (Am. Law Inst. 1958) (“An 

act, although forbidden, or done in a forbidden manner, may be 

within the scope of employment.”). Indeed, a contrary rule to 

that stated in the Restatement section just quoted would 

essentially enable principals to eliminate vicarious liability 

through adroitly crafted contractual provisions.7

¶22 The United States Supreme Court has stated that “when 

a salesperson lies to a customer to make a sale, the tortious 

conduct is within the scope of employment because it benefits 

the employer by increasing sales, even though it may violate 

the employer’s policies.” Burlington Indus., Inc. v. Ellerth, 524 U.S. 

742, 756 (1998). See also Restatement (Third) of Agency § 7.07

 

7. For example, in Carter v. Bessey, 93 P.2d 490 (Utah 1939), a 

company prohibited its deliverymen from using the delivery 

truck for personal reasons. Id. at 491. One of the company’s 

agents completed his delivery route, drove the truck to purchase

a Christmas tree for his family, and struck a pedestrian. Id. The 

Utah Supreme Court held that the company’s prohibition did 

not excuse the company from liability. Id. at 493. The court noted 

that the “doctrine of respondeat superior exists irrespective of 

contract” and that principals may still be liable even when 

agents act “contrary to the express instructions of the 

[principal].” Id. And rightly so. If we followed Pacific’s argument 

to its logical conclusion, trucking companies that expressly 

forbid drunk, drowsy, or negligent driving could avoid liability 

for the torts of their agents by contractually prohibiting driving

in such a manner.
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20160314-CA 12 2019 UT App 125

cmt. d (Am. Law Inst. 2006) (“[W]hen an employee’s job 

duties include making statements to prospective customers 

to induce them to buy from the employer, intentional 

misrepresentations made by the employee are within the 

scope of employment unless circumstances establish that the 

employee has departed from it.”). Courts that have considered 

the issue in the context of the sale of insurance products have 

routinely held insurance companies vicariously liable for the 

fraudulent misrepresentations made by their agents. See, e.g.,

Weyand v. Union Central Life Ins. Co., No. 30-2013-00633423, 2016 

WL 750433, at *7 (Cal. Ct. App. Feb. 26, 2016); Pan­American Life 

Ins. Co. v. Roethke, 30 S.W.3d 128, 132–33 (Ky. 2000); Chicago Title 

Ins. Co. v. Washington State Office of Ins. Comm’r, 309 P.3d 372, 

381–83 (Wash. 2013). See also Cook v. John Hancock Life Ins. Co.,

No. 7:12–cv–00455, 2015 WL 178108, at *9 (W.D. Va. Jan. 14, 2015) 

(denying a motion to dismiss because the misrepresentations 

about a life insurance policy “were arguably within the scope of 

[the agent’s] actual or apparent authority”).

¶23 Weyand bears a strong resemblance to the facts of this 

case. In Weyand, an insurance agent convinced a plaintiff to 

purchase $10 million worth of life insurance policies for resale on 

the secondary market, claiming that such a tactic was a “no-risk 

investment opportunity.” 2016 WL 750433, at *1. As was the case 

with the Drews, the plaintiff in Weyand was unable to resell the 

policies and they lapsed after the plaintiff could no longer afford 

to pay the steep premiums. Id. The insurance company 

contended that it could not be held liable because it expressly 

prohibited its agent from selling policies to insureds who 

intended to resell them on the secondary market. Id. at *4. The 

California Court of Appeal disagreed, reasoning that the 

“ordinary scope” of the acts entrusted to the agent “included not 

only selling policies, but also describing the policies and making 

representations to potential purchasers about the policies’ 

coverage, costs, and other characteristics.” Id. at *5. The court 

then noted that the ability to resell a policy on the secondary 
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20160314-CA 13 2019 UT App 125

market “is a characteristic of the policy an insurer reasonably 

could expect an agent to discuss with a potential purchaser.” Id.

¶24 We agree that making representations about a policy, 

including the ability to resell it, is consistent with the general 

work with which RSN was entrusted, that is, solicitation of life 

insurance policies.8 Further, RSN’s actions inarguably served

Pacific’s interest. RSN’s representations resulted in the issuance 

of a Pacific policy and in the Drews making premium payments 

directly to Pacific. Accordingly, RSN’s employees were acting 

within the scope of their authority. See M.J. v. Wisan, 2016 UT 13, 

¶ 54, 371 P.3d 21.

¶25 We believe our conclusion is fully in accord with

well-established principles of agency law. Insurance and its 

corresponding markets are extremely complicated, and 

insurance producers are often the only person or entity that 

consumers deal with when making decisions about their 

insurance needs. It makes little sense to allow insurance 

companies to grant broad solicitation authority to their agents—

who inevitably make many representations to prospective 

insureds in hopes of closing a deal—and accept the benefits 

therefrom without holding them accountable for the damages 

resulting from those very same representations. See Restatement 

(Second) of Agency § 8A cmt. a (Am. Law Inst. 1958) (“It would 

be unfair for an enterprise to have the benefit of the work of its 

agents without making it responsible to some extent for their 

excesses and failures to act carefully.”). 

 

8. The Insurance Code defines soliciting as “attempting to sell 

insurance” or “asking or urging a person to apply for . . . a 

particular kind of insurance . . . from a particular insurance 

company.” Utah Code Ann. § 31A-23a-102(13) (LexisNexis 2010).

The representations made by RSN’s employees fall within the 

ambit of this definition.
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CONCLUSION

¶26 The district court erroneously granted summary 

judgment in favor of Pacific. An agency relationship existed 

between Pacific and RSN, and RSN’s employees were acting 

within the scope of their authority when they made 

misrepresentations regarding life insurance policies to the 

Drews. We therefore reverse the decision of the district court 

and remand so that it may enter partial summary judgment in 

favor of the Drews on the issue of vicarious liability9 and then 

proceed with trial or such other proceedings as may now be 

appropriate.

POHLMAN, Judge (dissenting): 

¶27 I respectfully dissent from this decision because I 

regrettably conclude that we lack jurisdiction to consider this 

appeal.

¶28 As the majority correctly notes, the rule 54(b) certification 

entered in this case is flawed and thus does not properly invoke 

our jurisdiction. And while I agree that we have discretion to 

treat certain rule 54(b) certifications as petitions for interlocutory 

appeal, Utah R. App. P. 5(a), I do not agree that this case 

warrants this particular treatment. Converting a rule 54(b) 

 

9. In doing so, we recognize that the scope of an agent’s 

authority is ordinarily a question of fact. See Christensen v. 

Swenson, 874 P.2d 125, 127 (Utah 1994). But because RSN’s 

employees were clearly acting within the scope of their 

authority, given the record before us and the concession of both 

sides that the material facts are not in dispute, we decide the 

issue as a matter of law. See id.; Birkner v. Salt Lake County, 771 

P.2d 1053, 1057 (Utah 1989).
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20160314-CA 15 2019 UT App 125

certification into an interlocutory appeal “is an allowance that 

we should wield judiciously and sparingly,” and I think the 

better course of action would be to remand the case to the 

district court where the parties would have the opportunity to 

seek a compliant certification of the relevant orders. See Copper 

Hills Custom Homes, LLC v. Countrywide Bank, FSB, 2018 UT 56, 

¶ 29 n.15, 428 P.3d 1133.