Bonner County v. Western Insurance , 2022 UT 38 ( 2022 )

2022 UT 38IN THE
SUPREME COURT OF THE STATE OF UTAH
In re WESTERN INSURANCE COMPANY in Liquidation
BONNER COUNTY,
Appellant,
v.
WESTERN INSURANCE COMPANY,
Appellee.
No. 20210187
Heard April 13, 2022
Filed October 27, 2022
On Direct Appeal
Third District, Salt Lake
The Honorable Paul Parker
No. 110917050
Attorneys:
Brent D. Wride, Salt Lake City, for appellant
Scott M. Lilja, Nicole M. Deforge, Salt Lake City, for appellee
ASSOCIATE CHIEF JUSTICE PEARCE authored the opinion of the Court,
in which CHIEF JUSTICE DURRANT and JUSTICE HAGEN joined.
JUDGE HARRIS filed a dissenting opinion, in which
JUSTICE PETERSEN joined.
Due to their retirement, JUSTICE HIMONAS and JUSTICE LEE did not
participate herein; JUSTICE DIANA HAGEN and
COURT OF APPEALS JUDGE RYAN M. HARRIS sat. *
_____________________________________________________________
* JUSTICE DIANA HAGEN became a member of the Court on May 18,
2022, but heard this case as a visiting judge prior to her confirmation.
BONNER COUNTY v. WESTERN INSURANCE COMPANY
Opinion of the Court
ASSOCIATE CHIEF JUSTICE PEARCE, opinion of the Court:
INTRODUCTION
¶1 Bonner County, an Idaho political subdivision, contracted
with Pend Oreille Bonner Development, LLC (Pend Oreille) to
construct several municipal projects. The County required Pend
Oreille to obtain multiple surety bonds. Pend Oreille purchased these
sureties through Western Insurance Company (Western). For reasons
unspecified in the record, Pend Oreille ceased work on the projects
before their completion. After Pend Oreille’s default, Bonner County
wanted to collect on the surety bonds. But around this same time,
Western experienced financial troubles and was placed in
liquidation.
¶2 Bonner County filed a claim with Western’s liquidator
(Liquidator) to recover on the surety bonds Pend Oreille purchased
from the company. Several years later, the Liquidator issued a Notice
of Determination, which concluded that the County should be paid
only a portion of the amount it claimed to be owed. The Liquidator
also sent the County a document titled “Release and Waiver” and
asked the County to sign it. The document indicated that Bonner
County waived its statutory forty-five-day objection period. It also
stated that Bonner County’s claim was “fully compromised and
settled” and “not in dispute.” Bonner County signed.
¶3 The Liquidator later learned that another construction
company had continued work on the County’s projects. Based on this
new information, the Liquidator issued an Amended Notice of
Determination which denied all the County’s claims. Bonner County
objected to the Amended Notice of Determination, and the parties
requested a hearing in front of the district court.
¶4 Bonner County argued to the district court that the Release
and Waiver prevented the Liquidator from changing its
recommendation to the district court. The Liquidator countered that
the Release and Waiver was not a settlement agreement, but a
mechanism to permit Bonner County to waive the forty-five days
Utah law gives a claimant to challenge a liquidator’s decision. The
district court concluded that each side had proffered a reasonable
interpretation of the document and allowed them to present extrinsic
evidence of the parties’ intent. The district court concluded that the
extrinsic evidence demonstrated that the parties did not intend the
document to serve as a binding settlement agreement. The district
court then allowed the parties to present evidence concerning the
losses that Bonner County claimed to have suffered. Ultimately, the
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court concluded that Bonner County had failed to demonstrate to the
Liquidator that Pend Oreille’s failure to complete the projects had
cost it anything.
¶5 Bonner County appeals, claiming that the district court erred
when it concluded that the settlement agreement was ambiguous.
Bonner County further argues that it was error for the district court
to consider extrinsic evidence of the parties’ intent. Bonner County
also contends that even if the district court could look at extrinsic
evidence, it abused its discretion with respect to the admission or
exclusion of certain pieces of that evidence. And it claims that the
district court’s ultimate decision—that Bonner County had not
shown that it had suffered a compensable loss—was contrary to the
weight of the evidence.
¶6 We agree with the district court that the Release and Waiver
was ambiguous, and we conclude that the district court did not err in
permitting the parties to present extrinsic evidence. Bonner County’s
challenges to the district court’s evidentiary rulings fail because
Bonner County has not demonstrated that the challenged evidence
had any impact on the outcome. Bonner County has also failed to
demonstrate that the court’s findings are contrary to the clear weight
of the evidence. We accordingly affirm the district court across the
board.
BACKGROUND
¶7 Bonner County entered into several development agreements
with Pend Oreille for the construction of projects within the County.1
The County required Pend Oreille to obtain surety bonds in case
Pend Oreille failed to complete the bonded projects. Under the surety
agreement, Pend Oreille paid a premium to Western. In return,
Western promised that if Pend Oreille defaulted, Western would pay
the County the amount it would cost to finish the projects, up to the
policy limit. Pend Oreille completed some, but not all, of the projects
Western bonded.
¶8 Around the time of Pend Oreille’s default, and after several
months of communication with the Utah Insurance Department,
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1 “On appeal from a bench trial, we view the evidence in the light
most favorable to the district court’s findings.” State v. Jok, 2021 UT
35, ¶ 3 n.3, 493 P.3d 665. We recite the facts of the case as they are
represented in the district court’s order and trial transcript.
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BONNER COUNTY v. WESTERN INSURANCE COMPANY
Opinion of the Court
Western filed for liquidation. The district court 2 then issued a
liquidation order (Liquidation Order) that placed Western in
liquidation pursuant to Utah Code section 31A-27a-401. 3 The
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2 The statute indicates that liquidation proceedings should be
heard by the receivership court. See, e.g., UTAH CODE §§ 31A-27a-
603(1)(b), –608. The receivership court is a district court appointed to
preside over the liquidation proceedings. Id. § 31A-27a-102(33–34).
For ease of reference, we refer to the receivership court in this case as
the district court.
3 The Utah Insurance Department oversees all insurance
providers in the state. If an insurance company is in danger of
financial failure, the Insurance Department can place the insurer in
liquidation. A company may also voluntarily choose to place itself in
liquidation. The district court issues a liquidation order that appoints
a liquidator, who then must take possession of all the insurance
company’s property and administers it according to Utah Code.
UTAH CODE § 31A-27a-401(1).
Once the liquidator has identified the claims on the insurer’s
assets, the liquidator reviews each of them and issues a notice of
claim determination. Id. § 31A-27a-603(1)(a)(i), (2)(a). The notice of
determination informs a claimant if the liquidator recommends that
the claim be paid and in what amount. Id. § 31A-27a-603(2)(b).
A claimant who disagrees with the liquidator has forty-five days
to submit an objection to the liquidator. Id. § 31A-27a-603(3)(a). If a
claimant fails to submit an objection within this period, the
determination becomes final. Id. § 31A-27a-603(3)(c).
Utah law requires a liquidator to “from time to time as
determined by the liquidator,” present “reports of claims settled or
determined” to the receivership court. Id. § 31A-27a-608(1). However,
a liquidator may “reconsider a claim on the basis of additional
information and amend the recommendation to the receivership
court.” Id. § 31A-27a-603(10)(a). If a liquidator amends her
determination of a claim, claimants must receive the same notice and
time to object as they had when the claim was first determined. Id.
§ 31A-27a-603(10)(b).
If the liquidator does not alter her determination after the
claimant’s objection, the liquidator must ask the court to schedule a
hearing. Id. § 31A-27a-607(2)(a). The receivership court may then
hear the claimant’s complaint, but it may consider only “the evidence
(continued . . .)
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Liquidation Order appointed the Utah Insurance Commissioner as
Western’s Liquidator. The Commissioner then appointed Lennard
Stillman as the Special Deputy Liquidator for Western. 4
¶9 The County filed multiple claims totaling $5,615,359. The
County asked the Liquidator to pay that amount out of Western’s
remaining assets. Three years later, the Liquidator issued a Notice of
Determination (NOD) that recommended that the court approve
payment for $3,743,533.45 of Bonner County’s claims and deny the
remaining $1,871,825.55.
¶10 The NOD instructed Bonner County that:
The Liquidator’s claim determination must be reviewed
and approved by the Court pursuant to [Utah Code
section] 31A-27a-608. Distribution will be based on a
pro-rata percentage of assets available for distribution
to each class of claim approved by the Court and shall
be paid as directed by the Court. The Liquidator is
currently unable to estimate the timing or amount of
any distribution.
Please review this letter and your records for accuracy.
If you agree with the approved claim amount and
priority classification(s) assigned, please have the
enclosed Release and Waiver form signed and
notarized and return it to [the Liquidator] within 45
days from the date of this letter.
If you disagree with the Liquidator’s determination of
your claim either in full or in part you have the right to
object to the determination of your claim. To object to
the determination you must file a written objection . . .
within forty[-]five days from the date of this notice. . . .
If you fail to file a written objection with the Court and
with the Liquidator, within the specified time, you will
upon which the liquidator made the determination of the claim.” Id.§ 31A-27a-607(2)(f).
4 Although the briefs list Western Insurance Company as the
appellee, the Utah Insurance Commissioner, acting in his capacity as
the Liquidator of Western Insurance Company, and acting through
Special Deputy Liquidator Lennard Stillman, is the party represented
in this appeal. For clarity, we refer to the appellee as the Liquidator.
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BONNER COUNTY v. WESTERN INSURANCE COMPANY
Opinion of the Court
have waived your right to object and the Liquidator’s
determination will stand and you will have no further
right of appeal.
¶11 The Liquidator also sent Bonner County a document titled
“Release and Waiver,” which contained the following language:
[The County], a claimant in the [Western] liquidation
proceeding, in consideration of the recommendation of
the Liquidator of [Western] to the supervising court,
agrees that its [claims] in the liquidation proceedings be
allowed [in] the amount of $3,743,533.45 . . . . Claimant
does hereby . . . forever discharge the [Liquidator],
individually and in his official capacity, . . . [and] the
estate of [Western] and the State of Utah from any and
all right, cause of action, claim or demand of
whatsoever kind, nature or description at law or
inequity [sic] or created by statute which it now has or
which it or its successors and assigns shall or may
hereafter have in relation to this claim . . . .
Claimant expressly waives all rights, including but not
limited to rights to notice, and hearings either to court
or before the [Liquidator] to which it is entitled under
Utah Code 31A-27a-607 or otherwise and in any way
connected with related to or arising from the [Western]
liquidation relating to the referenced claim. Claimant
understands and agrees that this claim as stated above
is fully compromised and settled and is not in dispute.
It is expressly understood and agreed that Claimant’s
claim will be recommended for payment to the Third
District Court in the Liquidation proceeding in the
amounts stated above and that it shall receive [sic] a
pro rata distribution on said amounts as the Liquidator
is authorized or permitted to pay.
¶12 The County signed the Release and Waiver.
¶13 A few months after Bonner County signed and returned the
document, a new construction company, Valiant Idaho, LLC, began
work on the County’s projects. The County did not notify the
Liquidator that work had resumed on the bonded projects.
¶14 At some point, the Liquidator deployed two individuals to
investigate the status of the County’s projects. Their investigation
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discovered that substantial improvements had been made to the
projects after the Liquidator issued the NOD.
¶15 Based on the information he received about the projects’
progress, the Liquidator sent Bonner County an amended NOD. 5 In
the amended NOD, the Liquidator recommended that the district
court deny all the County’s claims. The Liquidator explained that the
County had failed to establish that it needed funds to complete the
bonded projects.
¶16 The County—as the statute permits—protested the amended
NOD. See UTAH CODE § 31A-27a-603(10)(b). The County explained to
the Liquidator that they had entered into a settlement agreement
when the County signed the Release and Waiver the Liquidator had
sent. Bonner County took the position that the Release and Waiver
prevented the Liquidator from changing its initial determination. The
County also alleged that the Liquidator had relied on bad
information when he calculated the amended NOD. Specifically, the
County asserted that the Liquidator improperly claimed that the
projects were completed despite the evidence the County had
provided that showed otherwise. The Liquidator remained unmoved
by the County’s complaint. Because the parties could not come to an
agreement, the district court set a hearing to evaluate the County’s
claims and the amended NOD.
¶17 The County raised two primary arguments to the district
court. The County first argued that the Release and Waiver, together
with the initial NOD, formed a settlement agreement between the
Liquidator and the County. The County argued that they had entered
into a binding contract by which the County agreed to reduce its
claims by nearly $2,000,000 and in return, the Liquidator agreed to
recommend the County’s reduced claims to the district court.
¶18 The County argued in the alternative that even if no
settlement agreement existed, the County was still entitled to collect
on the bonds to fund the projects that Pend Oreille had failed to
complete.
¶19 The Liquidator argued that the Release and Waiver simply
affirmed the statutory rights and obligations Utah law had already
placed on each party and provided a mechanism for Bonner County
to waive the forty-five-day period it had to object to the Liquidator’s
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Nearly five years separate the initial NOD from the amended
5
NOD.
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BONNER COUNTY v. WESTERN INSURANCE COMPANY
Opinion of the Court
determination. The Liquidator further argued that the County had
failed to submit any evidence to support a claim that it needed
additional funds to complete the bonded projects.
¶20 At oral argument, the district court first considered whether
the parties had intended the Release and Waiver to be a binding
settlement agreement. The court concluded that the Release and
Waiver did not have “the indicia of a contract” and was ambiguous
on its face. The court explained that “[t]he NOD and Waiver are
ambiguous with regard to the relationship of [the Liquidator] and the
County and with regard to the intent and rights and obligations of
the County and [the Liquidator]. . . . [A]ny obligation of [the
Liquidator] under the Waiver could only be found by inference.”
¶21 The court reasoned that there were several ambiguities in
the Release and Waiver, including who the parties to the agreement
were and what obligations each party assumed. The district court
also found ambiguity in the phrase “fully compromised and settled.”
The court further concluded that it was unsure what impact the
document had on the Liquidator’s statutory ability “to go back and
amend any determination based on new and subsequent
information.”
¶22 Because the contract was ambiguous, the court allowed the
parties to present extrinsic evidence “to determine the meaning of
the NOD and the Waiver and the intent of the Liquidator and the
County as to those documents.” After considering evidence of the
parties’ intent, the court concluded that the Release and Waiver was
“a standardized form allowed under the [Insurer Receivership Act]
to speed up the claim determination process by asking claimants to
agree to waive and release their statutory right to object to an NOD
and does not contain language consistent with a bargained for
settlement contract.” On this basis, the court found that Bonner
County and the Liquidator had not entered into a settlement
agreement that prevented the Liquidator from amending the claim
determination based upon new information.
¶23 The court then turned to the County’s objection to the
amended NOD.
¶24 While trying to convince the court that it was entitled to
collect on its claim, the County offered into evidence a declaration of
one of the Liquidator’s employees, Ms. Tina Zinkgraf. The court
admitted the affidavit without objection. However, later in the
hearing when the Liquidator attempted to use Ms. Zinkgraf’s
declaration, the County objected to the declaration’s use on the
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grounds that it had been created after the Liquidator had already
made his determination. The court overruled the County’s objection.
¶25 The County then sought to enter an engineering report into
evidence as proof that the bonded projects had not been completed.
The Liquidator objected to the introduction of the report on the basis
that the County had failed to lay any foundation for its admission.
The County countered that the report should be allowed because it
was one of the documents the Liquidator had considered when
issuing the amended NOD. Despite the County’s protests, the court
concluded that evidence could not be admitted just because the
Liquidator had reviewed it while making his determination. Instead,
the district court believed that the County still needed to lay
sufficient foundation for the document in compliance with the rules
of evidence.
¶26 The court ultimately concluded that Utah Code section 31A-
27a-603(10) gave the Liquidator the ability to reconsider the NOD
after he learned additional information about the projects’ status. The
district court also concluded that “the County was required to
establish the cost of completing the improvements bonded by
Western in light of work completed on those improvements
following the issuance of the NOD.” The district court reasoned that
the County had “submitted no evidence in [its] Objection to the
Amended NOD sufficient for the Court to change the Liquidator’s
determination.” “The burden of proof and procedures that may
previously have required Western to prove to the County that the
improvements were completed under the Bonds was reversed after
the Liquidation Order was issued under the [Insurer Receivership
Act].” The court decided that, under the Act, “upon issuance of the
Amended NOD by the Liquidator[,] the County, as the claimant, was
required to provide evidence sufficient to prove its claim, meaning
evidence sufficient to show the Amended NOD denying its claim
was incorrect.”
¶27 The court further determined that the “Liquidator was also
entitled to do its own investigation, to ask for additional information
from the County, and to make a determination based on the
information in the Liquidator’s possession.” Accordingly, the court
ruled against the County in its bid to read the Release and Waiver as
a settlement agreement and in its objection to the amended NOD.
This resulted in Bonner County receiving none of the bond proceeds.
¶28 The County appealed.
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BONNER COUNTY v. WESTERN INSURANCE COMPANY
Opinion of the Court
STANDARD OF REVIEW
¶29 The County raises six issues on appeal. It first contends that
the district court erred when it found that the Release and Waiver
was not a binding settlement agreement. “We review a district
court’s interpretation of a contract for correctness.” Brady v. Park,
2019 UT 16, ¶ 29, 445 P.3d 395.
¶30 The County next argues that Utah Code section 31A-27a-
607(2)(f) requires a district court to consider all the evidence that a
claimant has presented to a liquidator.6 Buried within this issue, the
County has complaints about evidence the district court did not
admit. Issues of statutory interpretation present legal questions
which we review for correctness. State v. Gallegos, 2007 UT 81, ¶ 8,
171 P.3d 426. We review a district court’s ruling on the admissibility
of evidence for an abuse of discretion. State v. Beverly, 2018 UT 60,
¶ 23, 435 P.3d 160.
¶31 In a similar vein, the County argues that the district court
should not have admitted the entirety of Ms. Zinkgraf’s declaration.
As with the County’s argument concerning evidence the court
refused to admit, we review the district court’s admission of
evidence for an abuse of discretion. Id.¶32 The County also avers that the district court erred when it
held that the Liquidator was allowed to issue an amended NOD
based on events that occurred after the Liquidation Order was
entered. This is an issue of statutory interpretation, which presents a
legal question we review for correctness. Gallegos, 2007 UT 81, ¶ 8.
¶33 Finally, the County asserts that the district court found the
bonded projects were substantially completed despite the
“uncontroverted evidence” to the contrary. A “trial court’s
underlying factual findings are reviewed under the clearly erroneous
standard.” State v. Tripp, 2010 UT 9, ¶ 23, 227 P.3d 1251.
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6 In its briefing, the County argued that Utah Code subsection
31A-27a-607(1)(f) requires a district court to consider all the evidence
that was presented to the Liquidator. We believe this was a typo and
that the intended citation is subsection 31A-27a-607(2)(f).
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ANALYSIS
I. THE DISTRICT COURT DID NOT ERR WHEN IT CONCLUDED
THAT THE PARTIES DID NOT INTEND THE RELEASE
AND WAIVER TO CONSTITUTE A SETTLEMENT AGREEMENT
¶34 The County argues that the district court erroneously found
that the Release and Waiver was ambiguous. It argues that the
“terms of the settlement agreement” are “clear and well documented,
and there was a meeting of the minds.”
¶35 When it interprets a contract, a district court should “first
look at the plain language [of the contract] to determine the parties’
meaning and intent.” Meadow Valley Contractors, Inc. v. State Dep’t of
Transp., 2011 UT 35, ¶ 64, 266 P.3d 671, abrogated on other grounds by
Mounteer Enters., Inc. v. Homeowners Ass’n for the Colony at White Pine
Canyon, 2018 UT 23, 422 P.3d 809. “If the language within the four
corners of the contract is unambiguous, the parties’ intentions are
determined from the plain meaning of the contractual language, and
the contract may be interpreted as a matter of law.” Cent. Fla. Invs.,
Inc. v. Parkwest Assocs., 2002 UT 3, ¶ 12, 40 P.3d 599. “But where a
contractual term or provision is ambiguous as to what the parties
intended, the question becomes a question of fact to be determined
by the fact-finder.” Brady v. Park, 2019 UT 16, ¶ 53, 445 P.3d 395.
¶36 “[A] contractual term or provision is ambiguous if it is
capable of more than one reasonable interpretation because of
uncertain meanings of terms, missing terms, or other facial
deficiencies.” Id. ¶ 54 (citation omitted) (internal quotation marks
omitted). When “uncertain meanings of terms, missing terms, or
other facial deficiencies prevent the court from determining which of
the proffered alternative interpretations the parties intended[,] . . .
the ambiguity must be resolved by considering extrinsic evidence of
the parties’ intent.” Id. ¶ 53 (citation omitted) (internal quotation
marks omitted). Once the court has deemed a contract ambiguous,
failure to “determin[e] the parties’ intent from parol evidence is
error.” Id. ¶ 29 n.13 (citation omitted).
¶37 Brady provides a good example of these principles. There,
the parties disagreed over the meaning of a provision in a loan
agreement. Id. ¶¶ 1, 4. The loan’s default interest rate was 10 percent
but would be bumped up to 20 percent if the borrowers missed a
payment. Id. ¶ 1. The contract provided that the interest rate would
remain at 20 percent until the loan had been “brought current.” Id.
The parties disputed what it meant for the loan to be brought
current. Under the borrowers’ interpretation, the loan was brought
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BONNER COUNTY v. WESTERN INSURANCE COMPANY
Opinion of the Court
current once the late payment had been made. Id. ¶ 5. The lenders
argued that “brought current” meant that the borrowers needed to
make the late payment as well as any accrued interest. Id.
¶38 After a bench trial, the district court concluded that the
lenders had the better interpretation and ordered the borrowers to
pay interest. Id. ¶ 17. On appeal, the court of appeals reversed the
district court’s decision. Id. ¶ 22. Although the court of appeals did
not think that the borrowers’ and the lender’s interpretations of the
clause were “equally plausible,” it agreed that the text of the clause
“foreclose[d] neither.” Brady v. Park, 2013 UT App 97, ¶ 35, 302 P.3d
1220. Because the contract was ambiguous, the court concluded that
it needed to examine extrinsic evidence of the parties’ intentions. See
id. ¶¶ 32, 34–35. We granted certiorari review.
¶39 We decided, in line with decades of caselaw, that each party
had offered a reasonable interpretation of the contract and that when
that happens, a court should look to extrinsic evidence to determine
what the parties intended the contractual language to mean. 7 Brady,
2019 UT 16, ¶¶63–65.
¶40 The majority reached this decision over a dissent that
complained that the majority needed to define what it meant to offer
a “reasonable” interpretation. Id. ¶ 127 (Lee, A.C.J., dissenting). The
dissent contended that, in its view, an interpretation is not reasonable
if an opposing party offered a better interpretation. See id. ¶¶ 127,
136, 167. Thus, according to the dissent, a contract could only be
ambiguous if the parties presented two equally plausible
interpretations to the court. See id. ¶¶ 127, 154, 166.
¶41 The majority responded to this criticism by acknowledging
that although the court has “used the term ‘reasonable’ repeatedly
for decades without defining the term further—presumably under
the assumption that it is a bedrock term whose meaning was
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7 Brady cites Ephraim Theatre Co. v. Hawk, 321 P.2d 221 (Utah 1958),
a case “explaining that a court may look to ‘extraneous sources’ only
where the contract ‘is susceptible of more than one meaning.’” Brady,
2019 UT 16, ¶ 54 n.40 (citing Ephraim, 321 P.2d at 223). Brady also cites
Winegar v. Froerer Corp., 813 P.2d 104 (Utah 1991), which states: “A
contract provision is ambiguous if it is capable of more than one
reasonable interpretation because of ‘uncertain meanings of terms,
missing terms, or other facial deficiencies.’” Brady, 2019 UT 16, ¶ 54
n.40 (citing Winegar, 813 P.2d at 108).
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obvious—[it] ha[s] provided a consistent explanation for what
constitutes a reasonable interpretation sufficient to create an
ambiguity.” Id. ¶ 55 (majority opinion). “Under our caselaw a
reasonable interpretation is an interpretation that cannot be ruled
out, after considering the natural meaning of the words in the
contract provision in context of the contract as a whole, as one the
parties could have reasonably intended.” Id. “In other words, if the
court determines that either of the competing interpretations could
reasonably have been what the parties intended when they entered
into the contract, then the contract is ambiguous.” Id.
¶42 The County’s argument contains echoes of the Brady dissent.
In essence, the County asks us to decide that the Release and Waiver
must be viewed as a settlement agreement because it believes that its
reading of the document is significantly stronger than the reading the
Liquidator offered to the district court.
¶43 Had the Brady dissent’s view of the law prevailed, the
County might be onto something. It may have had a path to victory
by claiming that its interpretation of the Release and Waiver was
superior to the construction the Liquidator offered to the district
court. But that is not our law. Brady instructs courts to analyze
whether two reasonable interpretations exist.8 Id. ¶ 54.
¶44 This means that Bonner County must first convince us not
that the district court picked the wrong interpretation, but that it
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8 Important policy considerations lie behind the decision to define
“ambiguity” as existing when two reasonable interpretations exist
versus two equally reasonable interpretations. As the majority in
Brady explained, once a court has determined that more than one
reasonable meaning exists, the court ought “not substitute [its]
judgment for that of the parties by choosing what [the court]
believe[s] to be the better of the two.” Id. ¶ 55. However, as the Brady
dissent explained, choosing to find ambiguity in a contract only
when two equally plausible readings exist streamlines contract
disputes. Id. ¶ 137 (Lee, A.C.J., dissenting). Although we can
articulate reasons to prioritize streamlined contract resolution, Utah
law has consistently favored uncovering and interpreting the
contract consistent with the parties’ intentions. See id. ¶ 55 n.45
(majority opinion) (citing Plateau Mining Co. v. Utah Div. of State
Lands & Forestry, 802 P.2d 720, 725 (Utah 1990); Meadow Valley
Contractors, 2011 UT 35, ¶ 69).
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BONNER COUNTY v. WESTERN INSURANCE COMPANY
Opinion of the Court
erred by concluding that the Release and Waiver was amenable to
two reasonable interpretations. Bonner County fails to meet this
burden.
¶45 The district court concluded that the Release and Waiver
was ambiguous because the document could be read as a settlement
agreement, like the County suggested, or as a waiver of some of the
County’s statutory rights, as the Liquidator advocated. It reasoned
that the “[Release and] Waiver does not have the indicia of a contract
as its terms are directed only to the County and, as [the Liquidator] is
not referenced as a party to the Waiver, any obligation of [the
Liquidator] under the Waiver could only be found by inference.”
Moreover, the court explained that the contract was split into two
distinct documents and serious ambiguity existed as to the
relationship between the two documents.
¶46 The district court also explained that, not only did the
amended NOD and the Release and Waiver require a reader to make
assumptions about the parties and the way the two different
documents interacted to form a contract, but the documents also did
not detail how they intended to change the rights and obligations of
the parties under the statute. Specifically, the court found that the
documents generally reaffirmed the statutory obligations and rights
of each party. The district court was troubled by the fact that the
documents were conspicuously silent regarding the Liquidator’s
statutory ability to amend a determination based on new
information. The contract’s silence on such a critical point caused the
district court to conclude that the entire agreement was ambiguous.
Because the contract was susceptible to different interpretations, the
court concluded that it needed extrinsic evidence to understand what
the parties intended to accomplish.
¶47 The County argues on appeal that the Liquidator’s
interpretation of the Release and Waiver is unreasonable. It claims
that the Liquidator cannot argue that “the word ‘settled’ does not
mean ‘settled.’” It proclaims that “the words ‘not in dispute’ mean
‘not in dispute.’” And that it would be “untenable to argue that this
language does not result in a settlement of the County’s claim.” We
take the County’s point that the documents used the language of
settlement agreements. We also see how a person could read the
documents and reasonably conclude that the parties were attempting
to create a binding settlement agreement.
¶48 But we also agree with the district court that the Release and
Waiver was susceptible to another reasonable interpretation. It reads:
14
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Claimant expressly waives all rights, including but not
limited to rights to notice, and hearings either to [the]
court or before the [Liquidator] to which it is entitled
under Utah Code 31A-27a-607 or otherwise and in any
way connected with related to or arising from the
[Western] liquidation relating to the referenced claim.
Claimant understands and agrees that this claim as
stated above is fully compromised and settled and is
not in dispute.
(Emphasis added.) 9
¶49 The Release and Waiver indicates that the County is waiving
its rights to notice and hearings under section 607. The purpose of
Utah Code section 31A-27a-607 is to detail the exact process by which
a claimant may protest a liquidator’s determination. 10 That section
also guarantees claimants a right to receive notice of a liquidator’s
determination of their claims, forty-five days to file an objection, and
a right to a hearing with both the liquidator and the court if a
consensus cannot be found. UTAH CODE § 31A-27a-607(1), (2). The
_____________________________________________________________
9 The dissent takes this passive statement and casts it in a more
positive and proactive light. When discussing this provision, the
dissent does not precisely track the Release and Waiver’s language
that “Claimant understands and agrees that this claim as stated
above is fully compromised and settled and is not in dispute.” The
dissent instead recites that “the Liquidator and the County had
agreed to ‘fully compromise[] and settle[].’” Infra ¶ 73. Similarly, the
dissent declares that the parties “agreed to ‘fully compromise[] and
settle[]’ the entire dispute.” Id. ¶ 74. To be clear, the Release and
Waiver never says that the “parties” agree to fully compromise and
settle the claim. Bonner County—and only Bonner County—affirms
that the claim is “fully compromised, settled, and not in dispute.”
That is a subtle shift in language, but in a case like this where the
margins are thin, these linguistic subtleties matter.
10 Utah Code section 31A-27a-607 instructs that claimants have
forty-five days to file an objection before the liquidator files her
determination. UTAH CODE § 31A-27a-607(1)(b)(i). However, if claims
are not filed within the forty-five-day period, “the claimant may not
further object to the determination.” Id. § 31A-27a-607(1)(b)(ii).
Section 607 then details the requirements for a hearing if a claimant
does object to the liquidator’s determination. Id. § 31A-27a-607(2).
15
BONNER COUNTY v. WESTERN INSURANCE COMPANY
Opinion of the Court
Utah Code expressly contemplates that a “liquidator may accelerate
the allowance of a claim by obtaining a waiver of an objection.” Id.
§ 31A-27a-603(3)(d). The Release and Waiver can reasonably be read
to advise the County that by signing the document, the County was
waiving its ability to protest the Liquidator’s determination of its
claims. 11
¶50 Read in this light, the Release and Waiver seems intended to
ensure that the County was aware of everything the Release and
Waiver implied. Under this reading, the sentence indicating that the
claim would be “fully compromised and settled and [] not in
dispute” is not the language of a settlement agreement, but an
explanation that Bonner County was acknowledging that it was
losing its statutory right to contest the Liquidator’s determination. In
other words, that language is not a promise but a warning that, if
Bonner County signed, it would lose its statutory right to object.12
_____________________________________________________________
11This is, after all, how the NOD explained the Release and
Waiver to Bonner County. The NOD provided that:
If you agree with the approved claim amount and
priority classification(s) assigned, please have the
enclosed Release and Waiver form signed and
notarized and return it to [the Liquidator] within 45
days from the date of this letter.
If you disagree with the Liquidator’s determination of
your claim either in full or in part you have the right to
object to the determination of your claim. To object to
the determination you must file a written objection . . .
within forty[-]five days from the date of this notice. . . .
If you fail to file a written objection with the Court and
with the Liquidator, within the specified time, you will
have waived your right to object and the Liquidator’s
determination will stand and you will have no further
right of appeal.
12 The County argues that “[e]ven if parol evidence was
admissible to explain an ambiguous term in the agreement, it could
not be used to contradict other plain terms of the agreement.” The
County explains: “The unambiguous language of the release is
controlling. Any contrary intention of the Liquidator is irrelevant.”
Though not entirely clear, it seems that the County claims the phrase
“fully compromised and settled and [] is not in dispute” was a clear
(continued . . .)
16
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¶51 In addition, the contract does not place any explicit
obligation upon the Liquidator. Rather, the Liquidator’s obligations
can be gleaned only through inference. For example, the Release and
Waiver states: “It is expressly understood and agreed that Claimant’s
claim will be recommended for payment to the Third District Court
in the Liquidation proceeding in the amounts stated.” Under the
statutory scheme referenced in the document, the Liquidator was the
only party capable of recommending the County’s claim to the court.
And he was statutorily obligated to submit his determination of the
County’s claims to the court whether the County signed the
document or not. Thus, it is reasonable to think that the parties could
have intended the Release and Waiver not as an alteration of any of
the Liquidator’s statutory obligations to the County but as an
explanation of what would happen more quickly if the County
waived its objection period. 13
term of the contract. And the County appears to argue that even if
other portions of the contract were ambiguous, the Court could not
use extrinsic evidence to contradict the “plain meaning” of the
portions of the contract which were clear in the first place.
The County’s argument fails because, as detailed above, viewed
in context, phrases like “fully compromised,” “settled,” and “not in
dispute” are susceptible to two meanings. Bonner County has failed
to convince us that the court erred in determining that the second
reading was unreasonable.
13 The dissent offers an interesting analysis of the statute and
contends that the statute distinguishes between a liquidator
“allowing” and “compromising” a claim. Infra ¶ 77. The dissent
opines that when a liquidator allows a claim, she can still perform
her duty under subsection 603(10)(a) to reconsider and amend a
claim based upon additional information. See id. But, according to the
dissent, when a liquidator compromises a claim, she agrees to waive
her statutory power to amend the claim, so that a liquidator may be
prevented from revisiting a compromised claim even if she later
learns of relevant information. See id. This may or may not be a
correct reading of the statute, but we are not asked to decide that
question. The parties certainly have not raised or briefed it. For our
purposes, we need only ask whether the documents reflect the
parties’ intent to incorporate that understanding of the statutory
scheme into the Release and Waiver so strongly that the document’s
use of the word “compromised” renders a contrary reading
(continued . . .)
17
BONNER COUNTY v. WESTERN INSURANCE COMPANY
Opinion of the Court
¶52 The County argues that the Liquidator’s interpretation of the
Release and Waiver is “untenable.” However, we conclude, just as
the district court concluded, that the document can be reasonably
read as the Liquidator attempting to accelerate the claims process
and to obtain the waiver of an objection that Utah Code subsection
603(3)(d) contemplates. Under this interpretation, the Release and
Waiver serves as a notice of the County’s statutory rights and a
mechanism for the County to waive its forty-five-day objection
period. Thus, two reasonable interpretations of the Release and
Waiver exist. And under our case law, the existence of two
reasonable interpretations necessitates the consideration of extrinsic
evidence. The district court correctly concluded that the disputed
documents contained ambiguities that could not be resolved without
turning to extrinsic evidence of the parties’ intent.
II. THE COUNTY FAILS TO DEMONSTRATE THAT ANY ERROR
THE DISTRICT COURT MADE WITH RESPECT TO THE ADMISSION
OR EXCLUSION OF EVIDENCE WAS HARMFUL
¶53 The County claims that Utah Code section 31A-27a-607(2)(f)
required the district court to consider all the evidence that the
County had presented to the Liquidator. Based on this presumption,
the County claims that the district court abused its discretion in
deciding what evidence to admit or exclude. For example, the
County argues the district court abused its discretion when it refused
to admit two engineering reports that the Liquidator had in front of
him when he issued the amended NOD. It also claims the court
should not have admitted Ms. Zinkgraf’s declaration because it
attached several photographs taken after the Liquidator issued the
unreasonable. Neither party argued anything that resembles the
dissent’s statutory interpretation as a basis for understanding what
the Release and Waiver was intended to accomplish. In light of that,
it seems unlikely that either party ever read the Release and Waiver
to incorporate the statutory construction that the dissent proffers.
But even if we were to assume that the parties intended that the
Release and Waiver track the statute’s nomenclature in the fashion
the dissent suggests, the Release and Waiver describes the County’s
claims as both allowed and compromised in different paragraphs. At
one point, the document says that the County “agrees that its [claims]
in the liquidation proceedings be allowed.” And at another it uses
the “fully compromised and settled” language the dissent cites. This
only highlights the ambiguity inherent in the Release and Waiver.
18
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amended NOD and thus were not pieces of evidence the Liquidator
had considered when making his determination.
¶54 These arguments raise some interesting questions about the
type of evidence that is acceptable in a hearing concerning a
claimant’s objection to a liquidator’s determination. But even if we
assumed the district court abused its discretion, Bonner County has
not demonstrated that it is entitled to relief.
¶55 A party asserting error not only carries the burden to show
that the error occurred but also that the error prejudiced its case.
Morra v. Grand Cnty., 2010 UT 21, ¶ 36, 230 P.3d 1022; Redevelopment
Agency v. Mitsui Inv. Inc., 522 P.2d 1370, 1374 (Utah 1974). A party
can demonstrate prejudice by showing that the error impacted the
outcome of the dispute. In other words, a party must show that
“there is a reasonable likelihood that, absent the error, the result
would have been different.” Morra, 2010 UT 21, ¶ 36.
¶56 The County hasn’t done that here. For example, Bonner
County argues that the district court abused its discretion in not
admitting two engineering reports that were before the Liquidator
when he reconsidered the claim. The district court refused to admit
the reports because the County had failed to lay any foundation for
them. The County claims—perhaps correctly—that the court should
have considered all the evidence that the Liquidator had in front of
him when he evaluated whether to issue the amended NOD. And it
is not immediately apparent what additional foundation the district
court contemplated. But even if we were to agree with the County
that the district court abused its discretion, the County does not give
us any indication as to how the district court’s refusal to admit the
engineering reports prejudiced its case. That is, Bonner County does
not demonstrate how the outcome might have changed if the district
court had considered the engineering reports.
¶57 The same can be said of the County’s argument that the
court erred when it admitted Ms. Zinkgraf’s declaration and the
attached photographs. Even if we assume that the district court
abused its discretion in admitting photographs into evidence that
were taken after the Liquidator reached his decision, the County has
not demonstrated how those errors prejudiced its position. So again,
the County has not shown that, “absent the error, the result would
have been different.” Id.¶58 Because the County failed to demonstrate any harmful error,
we affirm the district court’s evidentiary rulings.
19
BONNER COUNTY v. WESTERN INSURANCE COMPANY
Opinion of the Court
III. THE COUNTY FAILS TO SHOW THE DISTRICT COURT ERRED
WHEN IT CONCLUDED THAT THE INSURER RECEIVERSHIP ACT
ALLOWS LIQUIDATORS TO AMEND DETERMINATIONS BASED
ON CHANGED CIRCUMSTANCES
¶59 The County contends that the district court erred “in not
honoring the provisions” of the Insurer Receivership Act. The Act
provides that “the rights and liabilities of the insurer and of its
creditors, policyholders, shareholders, members, and all other
persons interested in its estate shall become fixed as of the day on
which the order of liquidation is entered.” UTAH CODE § 31A-27a-
401(2). The County asserts that the district court should have
considered the state of the bonded projects on the date of the
Liquidation Order because, under the statute, Western’s liability to
the County became fixed on the day the court issued the Liquidation
Order.
¶60 Though the County is not explicit, it seems to be referencing
the district court’s explanation of why the Liquidator was able to
properly issue an amended NOD. The court explained: “Under
Section 603(10) of the [Insurance Receivership] Act, the Liquidator’s
reconsideration of the NOD and issuance of the Amended NOD was
properly based on additional information obtained by the Liquidator
following issuance of the NOD.” Utah Code section 31A-27a-
603(10)(a) states that a “liquidator may reconsider a claim on the
basis of additional information and amend the recommendation to
the receivership court.”
¶61 The Liquidator suggests that the County’s reading of the
statute would render section 603(10), which grants liquidators the
ability to issue an amended NOD based on new information,
meaningless.
¶62 He also notes that although the existence of a liability may
have been finalized on a specific date, the extent of the liability still
can change over time. Thus, in the Liquidator’s view, reading the
statute as freezing the amount of liability on the day the liquidation
order is entered would cause some creditors to be significantly over-
or underpaid—an outcome that runs contrary to the statute’s
purpose.
¶63 The County attempts to assuage any fears we may harbor
about rendering sections of the Insurance Receivership Act irrelevant
by asserting that a liquidator can only amend a determination made
on a contingent claim. Utah Code section 31A-27a-401(2) states:
“Upon issuance of the order of liquidation, the rights and liabilities
20
Cite as: 2022 UT 38Opinion of the Court
of the insurer and of its creditors, policyholders, shareholders,
members, and all other persons interested in its estate shall become
fixed as of the day on which the order of liquidation is entered . . .
except as provided in [section 31A-27a-605],” a section dealing with
contingent claims. The County argues that the language “except as
provided in [section 31A-27a-605]” indicates that its reading of the
statute would not make other parts of the code meaningless—it
simply would confine their effect to contingent claims. However, the
County does not develop this argument or provide any analysis of
the statute to convince us that this reading correctly reflects what the
Legislature intended the section to accomplish.
¶64 Instead, the County focuses its attention on another partially
developed claim: it asserts that the district court must have erred
because the “liquidation code does not alter contractual rights.” As
with its argument about contingent claims, the County does not
provide us with any authority or analysis to back up its claim beyond
making the sweeping legal statement.
¶65 The County raises interesting questions concerning what
exactly can be considered contingent claims and the effect of the
Insurer Receivership Act on contract obligations. Yet it fails to show
us why the district court’s analysis is faulty. We cannot make
decisions when the issues are not clearly placed before us. “A party
may not simply point toward a pile of sand and expect the court to
build a castle.” Salt Lake City v. Kidd, 2019 UT 4, ¶ 35, 435 P.3d 248.
¶66 The County has not met its burden to establish that the
district court misread the statute when it concluded that the
Liquidator could recalculate his determination of the County’s
claims. Because none of the County’s arguments undermine the
validity of the district court’s conclusion that the Liquidator had the
authority to issue an amended determination, we affirm the district
court.
IV. THE DISTRICT COURT NEVER FOUND THAT THE CONSTRUCTION
PROJECTS WERE SUBSTANTIALLY COMPLETED
¶67 The County also argues that the district court erred when it
found that the bonded projects had been substantially completed.1
_____________________________________________________________
1The County also argues that the district court improperly shifted
the burden of proof to the County. The County explains that the
bonds were meant “to protect a public entity and its citizens if a
major construction project was left unfinished.” According to the
(continued . . .)
21
BONNER COUNTY v. WESTERN INSURANCE COMPANY
Opinion of the Court
The County claims that it demonstrated that the projects were not
completed and that the district court instead held that the projects
were completed against the clear weight of the evidence.
¶68 We do not see anything in the record that would indicate the
district court found that the projects had been completed. Instead,
the district court concluded that the County had failed to
demonstrate that it would need to expend any money to finish the
projects. Thus, the district court dismissed the County’s objection to
the amended NOD because the County failed to provide sufficient
evidence to demonstrate that the Liquidator got it wrong when he
concluded that the county had not suffered a loss. We affirm the
district court’s findings.
CONCLUSION
¶69 The district court did not err when it concluded that the
Release and Waiver was susceptible to two reasonable
interpretations. The district court therefore did not err when it
admitted extrinsic evidence to determine the parties’ intent. The
County challenged a few of the district court’s evidentiary rulings
but has failed to explain how, even if the district court abused its
discretion, the outcome would have been different if the district court
had ruled otherwise. The County has not met its burden of
demonstrating that the court erred when it read the statute to
provide that a liquidator can amend a determination of claims in
response to changed circumstances. And we see no indication that
County, “[t]he district court acknowledged this principle but held
that when an insurance company is placed into liquidation the
burden shifts to the beneficiary under the bond.” The County claims
this was error because nothing in the Insurance Receivership Act
“changes the general principles of surety law.”
The County provides no legal backing for its claim that the
district court improperly shifted the burden of proof to the County.
Nor does the County engage with sections of the Insurance
Receivership Act that, at first blush, seem to contradict the County’s
position. See, e.g., UTAH CODE § 31A-27a-602 (instructing claimants to
provide evidence of their claims to the liquidator and allowing
liquidators to “require the claimant to present” supplementary
evidence and information). Because the issue is not briefed in a way
that allows us to opine on the issue, we do not resolve the question.
See Kidd, 2019 UT 4, ¶ 35.
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the district court made findings that were unsupported by the
evidence. We affirm.
JUDGE HARRIS, dissenting:
¶70 The Liquidator’s interpretation of the relevant documents
isn’t a very good one. Even the majority appears to acknowledge that
the Liquidator’s interpretation isn’t as strong or persuasive as the
County’s. See supra ¶¶ 43–44. But in the majority’s view, the
Liquidator’s interpretation of the relevant documents is just good
enough to qualify as “reasonable.” On this point, I disagree, and
therefore dissent from the majority’s opinion.
¶71 A “reasonable interpretation” is one “that cannot be ruled
out, after considering the natural meaning of the words in the
contract provision in context of the contract as a whole, as one the
parties could have reasonably intended.” Brady v. Park, 2019 UT 16,
¶ 55, 445 P.3d 395. In my view, the Liquidator’s interpretation of the
relevant documents is not at all in keeping with “the natural meaning
of the words in the contract,” and therefore cannot be considered a
“reasonable” interpretation. See id.¶72 As an initial matter, the relevant universe of documents
consists of the initial NOD as well as the accompanying Release and
Waiver. These documents were created and drafted by the
Liquidator—the initial NOD was signed by the Liquidator—and
were submitted simultaneously to the County for review. I view
these documents, together, as the relevant contractual documents.
¶73 And when read together, these documents bear but one
reasonable interpretation: that the Liquidator and the County had
agreed to “fully compromise[] and settle[]” the County’s claim on the
bond. They specifically agreed—in a document drafted by the
Liquidator—that the County’s claim was “fully compromised and
settled and is not in dispute.” In my view, this language is
dispositive, and indicates agreement by both the Liquidator and the
County that they had reached a final and binding agreement to
resolve the matter.
¶74 The majority believes that this extremely clear language can
plausibly be interpreted merely as “an explanation that Bonner
County was acknowledging that it was losing its statutory right to
contest the Liquidator’s determination.” See supra ¶ 50 & n.12. I
simply disagree. There certainly exist ways for contracting parties to
23
BONNER COUNTY v. WESTERN INSURANCE COMPANY
HARRIS, J., dissenting
convey an intent to enter into a limited agreement to resolve merely
one aspect of a dispute, such as—in this case—whether the County
was willing to waive its statutory right to contest the Liquidator’s
determination within forty-five days. For instance, the parties could
have agreed to language like this: “By signing below, Bonner County
agrees to waive its right to challenge the Liquidator’s determination
within forty-five days.” But that is not the language they chose.
Instead, they agreed to “fully compromise[] and settle[]” the entire
dispute. Those words are not ambiguous. The natural meaning of
those words can only reasonably connote a broad and final
agreement of an entire claim, and not just a limited agreement as to a
statutory forty-five-day appeal right.
¶75 I also disagree with the majority’s adoption of the district
court’s rationale for concluding that the contract documents are
ambiguous. See supra ¶ 45. The district court believed that the
relevant documents did “not have the indicia of a contract as its
terms are directed only to the County” and because the Release and
Waiver was signed only by the County. Again, I simply disagree. The
basic indicia of a contract are offer, acceptance, and consideration. See
Rossi v. Univ. of Utah, 2021 UT 43, ¶ 31, 496 P.3d 105 (stating that “the
terms of” an “enforceable contract” are “defined by the meeting of
the minds of the parties—through an offer and acceptance upon
consideration”); Golden Key Realty, Inc. v. Mantas, 699 P.2d 730, 732
(Utah 1985) (stating that “[t]he elements essential to contracts” are
“offer and acceptance, competent parties, and consideration”). Here,
the Liquidator sent an offer to the County in the form of the initial
NOD and the Release and Waiver. As noted, the Liquidator signed
the initial NOD. In that offer, the Liquidator informed the County
that he was approving only part of the County’s claim on the bond,
and he instructed the County that if it agreed with the offer it should
sign the “enclosed Release and Waiver,” and that if it disagreed with
the offer it should be aware of its right to appeal. The County
accepted the offer by signing, without amendment, the enclosed
Release and Waiver, which as noted recited that, after the County
signed it, the County’s claim would be “fully compromised and
settled.” And both parties agreed to provide consideration for the
agreement. The County agreed to forgo its right to appeal—whether
within the statutory appeal period “or otherwise”—the Liquidator’s
determination that some $1.8 million of its claim would not be paid.
And the Liquidator committed to “recommend[]” the County’s claim
“for payment . . . in the amounts stated above.” In short, the relevant
documents have all the indicia of a binding contract.
24
Cite as: 2022 UT 38HARRIS, J., dissenting
¶76 The district court also believed that the contract documents
were not specific enough; in particular and, as the majority puts it,
the court “was troubled by the fact that the documents were
conspicuously silent regarding the Liquidator’s statutory ability to
amend a determination based on new information.” See supra ¶ 46. I
acknowledge that the relevant documents do not specifically
reference the Liquidator’s statutory right to amend determinations
based on new information. But again, the language “fully
compromised and settled” is, in my view, far from “silent” on that
point. When a claim is “fully compromised and settled,” parties can’t
go back and revisit the claim based on the post-agreement discovery
of new information. That’s certainly true in the usual contexts in
which disputed claims get settled; for instance, I cannot imagine a car
crash plaintiff being allowed to seek additional damages, upon a
flareup of his injury, five years after a settlement in which he agreed
to accept an amount certain, at a particular moment in time, in full
compromise of a disputed claim. When parties agree to fully settle
their claims, that ends the matter.
¶77 And this conclusion is fully consonant with the governing
statute. That statute allows liquidators to “allow, disallow, or
compromise a claim that will be recommended to the receivership
court.” See UTAH CODE § 31A-27a-603(1)(b). There is presumably an
intended distinction between “allowing” a claim and
“compromising” a claim. See Marion Energy, Inc. v. KFJ Ranch P’ship,
2011 UT 50, ¶ 14, 267 P.3d 863 (stating that, “[w]hen interpreting a
statute, we assume, absent a contrary indication, that the legislature
used each term advisedly according to its ordinary and usually
accepted meaning” (citation omitted) (internal quotation marks
omitted)). Had the County not accepted the Liquidator’s offer, the
Liquidator would have been in the position of having partially
“allowed” the County’s claim, and in that situation the Liquidator
would have been free to “reconsider” that claim “on the basis of
additional information.” See UTAH CODE § 31A-27a-603(10)(a). But
once the County signed the Release and Waiver indicating that the
matter was “fully compromised and settled,” the matter was
“compromised,” a status fully contemplated and authorized by the
governing statute. And as I read the governing statute and the
relevant contractual documents, once a claim is “compromised”—as
opposed to merely “allowed”—pursuant to a binding contract of
settlement, the liquidator may no longer “reconsider” the claim
based on new information.
25
BONNER COUNTY v. WESTERN INSURANCE COMPANY
HARRIS, J., dissenting
¶78 Finally, I also disagree with the majority’s statement that
“the contract does not place any explicit obligation upon the
Liquidator.” See supra ¶ 51. Although stated in the passive voice, the
Release and Waiver clearly indicates that the County’s “claim will be
recommended for payment to” the district court “in the amounts
stated above.” As the majority acknowledges, “the Liquidator was
the only party capable of recommending the County’s claim to the
court.” See supra ¶ 51. And I disagree with the majority’s next
statement that the Liquidator “was statutorily obligated to” make
that recommendation regardless of “whether the County signed the
document or not.” See supra ¶ 51. In the absence of the County’s
agreement to the Release and Waiver, the Liquidator remained free
to “reconsider” the County’s claim based on new information. See
UTAH CODE § 31A-27a-603(10)(a). But after the County signed the
Release and Waiver, the matter was compromised, and the
Liquidator was obligated—not by statute but by contract—to
“recommend[]” the County’s claim “for payment” to the district
court “in the amounts stated” in the initial NOD. The Liquidator
breached that contractual obligation when it did not recommend the
County’s claim to the district court in the amount specified in the
initial NOD.
¶79 In his own mind, the Liquidator may well have intended the
Release and Waiver to be nothing more than an agreement by the
County to waive its forty-five-day objection period. But in my view,
he did not choose words sufficient to convey that intention. Instead,
he authored a document (and asked the County to sign it) in which
he agreed that the County’s entire claim was “fully compromised
and settled” and in which he agreed to “recommend[]” the County’s
claim to the district court “in the amounts stated” in the initial NOD.
Those words are not ambiguous, and they created a binding contract
between the parties according to those terms. I therefore dissent from
the majority’s opinion.
26