2016 UT App 23

THE UTAH COURT OF APPEALS

PRIME INSURANCE COMPANY,

Appellee,

v.

PAMELA GRAVES,

Appellant.

Memorandum Decision

No. 20140718-CA

Filed February 4, 2016

Third District Court, Salt Lake Department

The Honorable Robert P. Faust

No. 130907762

Donald J. Winder and Laura H. Tanner, Attorneys

for Appellant

Andrew D. Wright and Andrew B. McDaniel, 

Attorneys for Appellee

JUDGE KATE A. TOOMEY authored this Memorandum Decision, in 

which JUSTICE JOHN A. PEARCE and SENIOR JUDGE RUSSELL W.

BENCH concurred.

1

TOOMEY, Judge:

¶1 In this appeal we must determine whether the trial court 

abused its discretion when it denied Pamela Graves’s rule 56(f) 

motion and whether it erred when it granted Prime Insurance 

 

1. Justice John A. Pearce participated in this case as a member of 

the Utah Court of Appeals. He became a member of the Utah 

Supreme Court before this decision issued. Senior Judge Russell 

W. Bench sat by special assignment as authorized by law. See 

generally Utah R. Jud. Admin. 11-201(6). 
Prime Insurance Company v. Graves

20140718-CA 2 2016 UT App 23

Company’s summary judgment motion. We conclude that it did 

not do either and affirm the court’s order. 

¶2 ‚When reviewing a summary judgment by the district 

court, we must examine all of the facts presented and the 

inferences to be drawn therefrom in the light most favorable to 

the nonmoving party.‛ Grynberg v. Questar Pipeline Co., 2003 UT 

8, ¶ 20, 70 P.3d 1. We therefore recite the facts accordingly. 

¶3 In May 2011, Graves was injured on a speedboat trip 

offered by Prime’s insured, Rocket Tours of Key West. Between 

August 2011 and July 2012, Graves, through counsel, notified 

Rocket Tours of her injury and claims at least five times. But no 

one notified Prime of her claims until September 2013—more 

than an a year after Rocket Tours’ insurance policy had expired. 

And, although Rocket Tours obtained a subsequent insurance 

policy that was effective from February 2012 to February 2013, 

this policy did not provide retroactive coverage that would have 

applied to Graves’s claim. 

¶4 Because it had not been notified of Graves’s claim in 

accordance with the terms of Rocket Tours’ insurance policy, 

Prime initiated an action against Rocket Tours seeking 

declaratory relief from the trial court that it had no obligation to 

defend or indemnify Rocket Tours of Graves’s claim. Rocket 

Tours did not contest Prime’s declaratory action, and the court

entered default judgment against it. But the court allowed 

Graves to intervene and defend in the suit, and Graves then 

answered Prime’s complaint. Prime provided Graves with its 

initial disclosures and the discovery it had obtained up to that 

point.

¶5 About a week later Prime filed a motion for summary 

judgment claiming that under ‚the undisputed facts of this case 

and the clear terms of *Rocket Tours’ insurance policy+, Prime 

owes no obligations to Rocket Tours or Ms. Graves.‛ In support 

of its summary judgment motion, Prime attached copies of the 
Prime Insurance Company v. Graves

20140718-CA 3 2016 UT App 23

insurance agreements and an affidavit from its claims 

representative indicating it had not received notice of Graves’s 

claim before September 2013. 

¶6 Graves then filed a motion pursuant to rule 56(f) of the 

Utah Rules of Civil Procedure asking the court to continue 

Prime’s summary judgment motion to allow her more time to 

conduct discovery. See Utah R. Civ. P. 56(f) (2014).2 Two months

later, the court denied Graves’s rule 56(f) motion and granted 

Prime’s summary judgment motion. This appeal ensued. 

¶7 Under rule 56 of the Utah Rules of Civil Procedure, 

summary judgment is appropriate ‚if the pleadings, depositions, 

answers to interrogatories, and admissions on file, together with

the affidavits, if any, show that there is no genuine issue as to 

any material fact and that the moving party is entitled to a 

judgment as a matter of law.‛ Utah R. Civ. P. 56(c). An adverse 

party ‚may not rest upon the mere allegations or denials of the 

pleadings‛ but the party must respond, through affidavits, 

‚set[ting] forth specific facts showing that there is a genuine 

issue for trial.‛ Id. R. 56(e). In some circumstances, however, rule 

56(f) allows the party opposing a motion for summary judgment 

to file an affidavit stating reasons why the party is presently 

unable to submit evidentiary affidavits in opposition to the 

moving party’s motion. See id. R. 56(f). Based on a rule 56(f) 

motion, the trial court ‚may refuse the application for judgment 

or may order a continuance to permit affidavits to be obtained or 

depositions to be taken or discovery to be had.‛ Id.

 

2. Rule 56 of the Utah Rules of Civil Procedure was amended in 

2015 to adopt the style of Federal Rule of Civil Procedure 56. But 

none of the 2015 changes alter the substance of the law. Utah R. 

Civ. P. 56 advisory committee note. We therefore refer to the 

2014 edition of the Utah Rules of Civil Procedure that was in 

effect at the time Graves filed her motion. 
Prime Insurance Company v. Graves

20140718-CA 4 2016 UT App 23

¶8 ‚In reviewing a summary judgment, we accord no 

deference to the trial court and review its ruling for correctness.‛ 

Price Dev. Co. v. Orem City, 2000 UT 26, ¶ 9, 995 P.2d 1237. But as 

for the trial court’s 56(f) ruling, we review the court’s decision 

under an abuse of discretion standard to determine whether the 

court exceeded the limits of reasonability. Id. 

I. Rule 56(f) Motion

¶9 Graves’s challenge to the court’s decision to deny her rule 

56(f) motion raises two issues: whether she properly preserved 

her arguments for appeal and whether the court abused its 

discretion when it denied the motion. 

¶10 ‚Issues that are not raised at trial are usually deemed 

waived.‛ 438 Main St. v. Easy Heat, Inc., 2004 UT 72, ¶ 51, 99 P.3d 

801. Our court has explained that 

[t]he preservation requirement . . . ensures that both 

the issue on appeal and the evidence necessary to 

decide it have been presented to the trial court, 

which ‚having personally observed the quality of 

the evidence, the tenor of the proceedings, and the 

demeanor of the parties, is in a better position to 

perceive the subtleties at issue than [an appellate 

court] looking only at the cold record.‛

Wohnoutka v. Kelley, 2014 UT App 154, ¶ 3, 330 P.3d 762 (second 

alteration in original) (quoting State v. Calliham, 2002 UT 86, ¶ 23, 

55 P.3d 573). Accordingly, ‚*t+he appellant must present the legal 

basis for [a] claim to the trial court, not merely the underlying 

facts or a tangentially related claim.‛ State v. Martinez, 2015 UT 

App 193, ¶ 27, 357 P.3d 27 (second alteration in original) (citation 

and internal quotation marks omitted). 

¶11 In her rule 56(f) motion, Graves explained to the trial 

court that Prime requested summary judgment less than twenty 
Prime Insurance Company v. Graves

20140718-CA 5 2016 UT App 23

days after she answered the complaint and this brief period did 

not allow her adequate time for discovery. She pointed out that 

with further discovery she would be able to find out ‚why Prime 

was not given notice of her claims‛ especially considering the 

undisputed fact that she had ‚given her written notices to 

*Rocket Tours’+.‛ She also argued she should be entitled to 

discovery of ‚the insurance files maintained by Stephen Apetz 

Insurance, Inc.‛ to obtain information regarding ‚any 

applications Rocket completed to obtain the initial and renewal 

policies.‛ 

¶12 On appeal, Graves again argues she did not have enough 

time for proper discovery, but she now advances a different 

explanation for why she needed it. Now she argues that Stephen 

Apetz was Prime’s agent and reasoned that if he ‚had notice of 

Graves’s claim, Prime had notice of Graves’s claim‛ because 

‚‘the knowledge of an agent concerning the business which he is 

transacting for his principal is to be imputed to his principal.’‛ 

(Quoting Wardley Better Homes & Gardens v. Cannon, 2002 UT 99, 

¶ 16, 61 P.3d 1009.) 

¶13 The distinction between Graves’s appellate argument and 

her rule 56(f) request in the trial court is critical to our analysis.

In her rule 56(f) motion, Graves expressed her desire to depose 

Apetz and obtain his files to ‚determine what he knew about the 

Graves claim . . . and why it was not disclosed on Rocket’s 

renewal application.‛ But she did not assert the basis for the

request she asserts on appeal—that Apetz is Prime’s agent and 

his likely knowledge of her claim provided Prime with 

constructive notice. Indeed, her motion argued no legal theory 

demonstrating the relevance of whatever was known to Apetz,

and therefore was not ‚presented to the trial court in such a way 

that the trial court [had] an opportunity to rule on [it].‛ 

Wohnoutka, 2014 UT App 154, ¶ 4 (alterations in original) 

(citation and internal quotation marks omitted). Accordingly, 

although she preserved the argument that she did not have 

adequate time to conduct discovery, we conclude that Graves’s 
Prime Insurance Company v. Graves

20140718-CA 6 2016 UT App 23

argument that Apetz was Prime’s agent was not properly 

preserved for appeal.3

¶14 Considering the evidence and arguments presented to the 

trial court, we have determined that it did not exceed its 

discretion in denying Graves’s rule 56(f) motion. The court 

denied the motion as meritless. In doing so, it emphasized that 

Graves’s ‚question of why notice was not given to Plaintiff Prime 

is not relevant to the issue of whether notice was or was not given 

under a claims made policy.‛ Without an underlying legal 

theory in the request for continuance, the court determined that 

‚*t+here is no dispute that Plaintiff Prime did not have notice of 

the claim and the reasons why Defendant Rocket did not make a 

claim is not relevant under the terms of the insurance contract.‛ 

¶15 Rule 56(f) requires the movant to ‚explain how the 

requested continuance will aid his or her opposition to summary 

judgment.‛ Riddle v. Celebrity Cruises, Inc., 2004 UT App 487, 

¶ 17, 105 P.3d 970 (citation and internal quotation marks 

omitted). ‚It is for the trial court, in the exercise of its sound 

discretion, to determine if the reasons stated in the Rule 56(f) 

affidavit are adequate.‛ Reeves v. Geigy Pharm. Inc., 764 P.2d 636, 

639 (Utah Ct. App. 1988). 

 

3. Graves’s reply brief implies the trial court made a finding 

regarding Apetz’s agency, and this preserved her argument on 

this point. We disagree. The court found, ‚[W]hat Stephen 

Apetz, Defendant Rocket Tours’ broker, knew or did not know 

does not alter the undisputed fact Plaintiff Prime was not 

notified of the claim as required by the policy.‛ Describing 

Apetz as Rocket Tours’ broker was not the equivalent of 

resolving a disputed conclusion, and if anything, it suggests the 

court was unaware of any agency argument. Had the issue been 

presented to the trial court, it would have been required to 

conduct a more thorough analysis based on the facts of the case, 

which it did not.
Prime Insurance Company v. Graves

20140718-CA 7 2016 UT App 23

¶16 Graves did not explain how the additional discovery 

would assist her in opposing Prime’s summary judgment 

motion. See Salt Lake County v. Western Dairymen Coop., Inc., 2002 

UT 39, ¶ 24, 48 P.3d 910. Prime argued that coverage under 

Rocket Tours’ insurance policy is provided only when ‚written 

notice is given to [Prime] during the Policy Period,‛ and based 

on ‚the undisputed facts of this case and the clear terms of the 

Policy,‛ ‚Graves*’s] claim did not satisfy the claims-reporting 

requirement.‛ Nothing in Graves’s motion indicates that the 

evidence she sought to discover would support her opposition to 

Prime’s summary judgment motion. Rather, she merely sought 

more time for discovery to determine why notice was not given

and did not explain how this would be relevant to opposing 

Prime’s motion. We acknowledge the short timeframe during 

which Graves was expected to consider the evidence, but 

without explaining how the information she sought would 

purportedly defeat Prime’s summary judgment motion, we 

cannot conclude the court’s decision to deny her rule 56(f) 

motion went beyond the limits of reasonability. 

II. Summary Judgment Motion

¶17 We must now consider whether the trial court correctly 

granted Prime’s summary judgment motion. ‚Where the moving 

party would bear the burden of proof at trial, the movant must 

establish each element of his claim in order to show that he is 

entitled to judgment as a matter of law.‛ Orvis v. Johnson, 2008 

UT 2, ¶ 10, 177 P.3d 600. If the movant satisfies that burden, the 

‚burden on summary judgment then shifts to the nonmoving 

party to identify contested material facts, or legal flaws.‛ Id. In 

reviewing an order granting summary judgment, ‚[w]e consider 

only the pleadings, depositions, admissions, answers to 

interrogatories, and affidavits properly before the trial judge.‛

Pratt v. Mitchell Hollow Irrigation Co., 813 P.2d 1169, 1171 (Utah 

1991). Papers and issues not properly presented before the trial 

court will not be considered on appeal. See id.
Prime Insurance Company v. Graves

20140718-CA 8 2016 UT App 23

¶18 Graves argues that whether Apetz was Prime’s agent 

presents a factual dispute that should have precluded summary 

judgment. But Graves did not raise the agency issue before the 

trial court, and accordingly there was no factual dispute for the 

court to consider. See supra ¶¶ 13–15. We therefore do not 

address Graves’s only challenge to the facts in this case. See State 

v. Winfield, 2006 UT 4, ¶ 23, 128 P.3d 1171.

¶19 Graves also challenges the trial court’s determination that 

Prime is entitled to judgment as a matter of law. Particularly, she 

argues that because chapters 21 and 22 of the Utah Code do not 

apply to Rocket Tours’ insurance policy, Prime may not rely on 

case law interpreting those chapters. This argument is 

misplaced. Prime demonstrated it was entitled to judgment 

based not on the common law, but on the terms of the insurance 

policy. ‚An insurance policy is merely a contract between the 

insured and the insurer and is construed pursuant to the same 

rules applied to ordinary contracts.‛ Alf v. State Farm Fire & Cas.

Co., 850 P.2d 1272, 1274 (Utah 1993). ‚*I+f a policy is not 

ambiguous, . . . the policy language is construed according to its 

usual and ordinary meaning.‛ Id. 

¶20 Graves does not allege that the policy’s terms are 

ambiguous. Instead, she makes a public policy argument, 

contending it is unfair to uphold the insurance policy and 

Prime’s refusal to cover her injuries because of Rocket Tours’ 

failure to notify them. But the language in the insurance policy is 

clearly stated:

As a claims made insurance policy, this Policy 

contains very strict claim reporting requirements 

which must be followed as conditions precedent 

to coverage. . . . 

Coverage is provided only for otherwise covered 

Claims which meet all of the following 

requirements:
Prime Insurance Company v. Graves

20140718-CA 9 2016 UT App 23

(1) Which are first made against an Insured 

during the Policy Period, and 

(2) Which result from an Accident 

occurring during the Policy Period, and

(3) For which written notice is given to the 

Insurer during the Policy Period in 

accordance with the specific informational 

and timeliness requirements specified in 

the Policy. 

¶21 ‚In general, a court may not rewrite an insurance contract 

for the parties if the language is clear and unambiguous . . . .‛ 

Alf, 850 P.2d at 1275. We acknowledge the policy’s terms may

create harsh outcomes. But, as the policy states, coverage 

requires written notification within a specified period. Despite 

Graves’s notification to Rocket Tours, she concedes Prime was 

never given actual notice. Moreover, aside from her unpreserved 

agency-theory argument and assertions that the trial court 

should have denied Prime’s motion for summary judgment in 

the interests of public policy and equity, Graves does not 

actually challenge the insurance policy. Indeed, she merely 

suggests the policy should not be upheld, because she ‚could 

find no case where a court upheld a claims-made provision over 

public policy.‛4 Thus, Graves has not carried her burden to 

 

4. Graves also briefly argues that under the principles of equity, 

‚Prime should be estopped from preventing Graves from being 

fully compensated for her serious injuries simply because of 

Rocket Tours’*+ failure to correctly notify Prime.‛ Graves 

provides no analysis, however, and therefore we do not address 

this argument. See State v. Thomas, 961 P.2d 299, 304–05 (Utah 

1998) (‚It is well established that a reviewing court will not 

address arguments that are not adequately briefed.‛); see also 

Utah R. App. P. 24. 
Prime Insurance Company v. Graves

20140718-CA 10 2016 UT App 23

demonstrate that Prime is not entitled to summary judgment as 

a matter of law. 

¶22 Accordingly, we conclude the trial court did not abuse its 

discretion when it denied Graves’s rule 56(f) motion and affirm 

its order granting Prime’s summary judgment motion.