One of the pleasures of being the Managing Attorney at RICHARDS BRANDT MILLER NELSON (RBMN) is the opportunity I get to talk about the achievements of RBMN lawyers.  At the end of 2009, three of our medical malpractice defense attorneys successfully defended a $23 million lawsuit in front of a state court jury.  One of our most accomplished trial lawyers, George T. Naegle, joined by Anne D. Armstrong and Sean Miller, battled a claim filed by plaintiff Olsen.  Mr. Olsen claimed that UVRMC negligently failed to transmit lab results to Mr. Olsen's physician.  As a result, the physician failed to timely inform Mr. Olsen that he had bladder cancer.  Mr. Olsen further asserted that as a result of the late diagnosis and treatment, he was passed over for several job promotions in a large, multi-national company for which he worked.  Any one of these jobs would have produced an additional $23 million in income over his remaining work life he claimed.

After a five-day trial, the jury took one hour to return a defense verdict for no cause of action.  The jury found that UVRMC did in fact transmit the lab results, which were then mishandled by the requesting physician.  In post-trial interviews, jurors indicated that regardless of their initial liability finding, they were also of the opinion that Mr. Olsen would not have received the claimed promotions regardless of when his cancer was diagnosed.  It was, in short, a complete victory.

I will now venture into territory that I rarely, and somewhat reluctantly, tread.  The following recitation addresses a case in which I was involved.  I note it only because of the novel legal issues raised and the fact that we could not find another case directly on point concerning those issues.

I, and a fellow shareholder, Zachary E. Peterson, recently obtained a complete dismissal in state court of all class action, statutory and common-law claims against our client, a financial services company.

Plaintiff had purchased a water softener for his home and had financed the purchase.  The credit agreement plaintiff signed did not specifically state that a fixture filing would occur.  The financing company filed a security interest through a fixture filing in the county recorder's office where plaintiff resided.  When the plaintiff went to refinance his home, the lender wanted the finance company to subordinate the loan, which the finance company agreed to do for a modest payment against the principal (less than a thousand dollars).  Plaintiff refused to make the payment and sued the finance company claiming that the defendant's failure to disclose on the credit agreement that it would file a security interest violated Utah's Consumer Sales Practices Act, committed common-law fraud and that the number of potential plaintiffs was so great that the complaint had to contain a request for class action status.

Plaintiff's liability claim hinged on his reading of revised Section 9-604(2) of the Uniform Commercial Code, effective in Utah in 2001.  Plaintiff asserted that the language in the statute which provided that a fixture creditor might proceed under the UCC or "in accordance with the rights with respect to real property," created a security interest in the plaintiff's home (even though the fixture filing listed only the water softener as the collateral).  Such a security interest in the borrower's home must be disclosed in credit terms subect to TILA.

Defendant explored with the court earlier case law that had examined the scope of a fixture creditor's rights.  Defendant also provided to the court the comments of the drafters to revise Article 9, and persuaded the Court that the wholesale revisions to the language in 9-604(2) were intended to expand the remedies available to fixture creditors and had not increased the rights of fixture creditors beyond the collateral indentified in the fixture filing itself.  With the TILA claim rejected, the court dismissed the state statutory and common-law claims, and the class action certification.

Although I will visit with you again in February, I intend to cajole other lawyers in the firm into contributing to, what I hope, is a continuing dialog with our clients and the legal community in general.  In the future, I will draw on the services of Lynn S. Davies, a lawyer with 30 years of trial experience and 140 jury trials under his belt.  In almost all of these jury trials, Lynn either obtained a complete jury verdict in the client's favor or brought back a verdict less than the amount he had offered prior to trial.  Lynn's vast experience enables him to bring a unique perspective to the litigation process, one which I think he sould share with all of you.  You should look forward to hearing from Lynn Davies in April.  This is all for now from the land of great skiing, pleasant people and five national parks.

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