Overturf v. University of Utah Medical Center

DURHAM, Associate Chief Justice: ¶ 1 These cases come before us on appeals from two separate proceedings: (i) a district court order in Overturf v. University of Utah Medical Center, No. 960469, denying Thelma Oxendine’s motion to set aside a settlement agreement and a motion by the parties to dismiss the underlying action; and (ii) a district court order in Oxendine v. University of Utah Medical Center, No. 970097, granting summary judgment to the University of Utah Medical Center (“Medical Center”) and dismissing Oxendine’s complaint. ¶ 2 In the first matter, the trial court denied Oxendine’s attempt to set aside the settlement agreement between the University of Utah Medical Center and Frank Over-turf as the personal representative of the Estate of Gay Overturf. Frank Overturf had sued the Medical Center on a claim of medical malpractice arising out of the death of his wife, Gay Overturf. Oxendine is Gay Over-turfs natural mother. The court ruled that Oxendine was not a party to the litigation because she had failed to intervene; therefore, her motion to set aside the settlement and to deny the motion to dismiss of the parties was not properly before the court. Oxendine filed a notice of appeal with this court. Overturf and the Medical Center then moved for summary disposition with us. We deferred ruling on the motions, and the parties proceeded to brief the case. ¶ 3 In the second case, Oxendine sued the Medical Center, attempting to recover damages for Gay Overturfs death. The trial court granted the Medical Center summary judgment because Utah’s one-action rule in section 78-11-7 of the Code barred Oxen-dine’s suit. Oxendine appealed, and we consolidated the two matters. 415 ¶ 4 We now grant the motion for summary disposition in the first matter and remand the second matter for further proceedings. ¶ 5 As to the first appeal, we grant summary disposition on the grounds argued by Overturf and the Medical Center — that Oxendine lacks standing to invoke the jurisdiction of this court because she was not a party to the trial court proceeding. Persons who are not parties of record to a suit have no standing therein which will enable them to take part in ... the proceedings. If they have occasion to ask relief in relation to the matters involved, they must either contrive to obtain the status of parties in the suit or they must institute an independent suit. 59 Am.Jur.2d Parties § 8 (1987). Thus, if Oxendine wished to be involved in the wrongful death action brought by Frank Overturf, she had to intervene and be made a party. If she arrived too late to intervene, she had to seek relief in an independent action. We have no jurisdiction to entertain an appeal from someone not a party to the action below. We therefore summarily dismiss Oxen-dine’s “appeal.” ¶ 6 As to Oxendine’s appeal from the trial court’s grant of summary judgment to the Medical Center in her wrongful death action against it, we reverse and remand for further proceedings. Utah’s wrongful death statute, section 78-11-7, provides that when a person’s death is caused by another’s wrongful act or neglect, “his heirs, or his personal representatives for the benefit of his heirs, may maintain an action for damages.” Utah Code Ann. § 78-11-7 (1996). This court has acknowledged that only one action may be maintained against a wrongful death defendant. “Under the wrongful death statute, there is but a single cause of action, viz., it arises from a particular wrongful act for which there can be but one claim against the tort-feasor for damages.” Switzer v. Reynolds, 606 P.2d 244, 246 (Utah 1980). ¶ 7 This court has, however, specifically addressed a factual scenario like this one previously and suggested that the one-action rule might not preclude the relief sought here under certain conditions. In Parmley v. Pleasant Valley Coal Co., 64 Utah 125, 138-39, 228 P. 557, 562 (1924) (emphasis added), the court noted: If an heir, or any number of them, bring the action and cooperate, collude, and connive with the defendant in the action to deprive any one or more of the heirs from joining in the action and from obtaining their just proportion of the damages caused by the death of the deceased, ... then all or either wrongdoer may be sued as tort-feasors, and the damages suffered by the excluded heirs may be recovered [[Image here]] ¶ 8 The foregoing language means that an independent cause of action may lie against a tort-feasor who “cooperates, colludes, and connives” with an heir to exclude another heir from a recovery payment, even if the one-action rule would otherwise preclude the second heir’s claim. Although Ox-endine’s complaint reads as a simple wrongful death action, her reply to the University’s motion for summary judgment makes clear that her real claim arises from the “cooperation, collusion, and conniving” of the other heirs and the defendant hospital to exclude her from the settlement. The reply states quite clearly, and apparently the undisputed facts show: All parties knew of the existence and claim of Thelma Oxendine, yet excluded her and her counsel from any and all negotiations. The parties secretly held a mediation unknown to Oxendine, wherein a settlement was reached. The funds were distributed to all of the other heirs. Thelma Oxendine received no funds from the settlement. These facts support a claim under Parmley, namely, that the University of Utah cooperated, colluded, and connived with the other heirs to deprive her of her rightful share of compensation for her daughter’s wrongful death. Therefore, this court should remand Oxendine v. University of Utah Medical Center to the trial court, which should permit Oxendine to amend her complaint to state a claim under the specific requirements of Parmley. Whether Oxendine can produce any evidence to support these allegations is 416 another matter, but the claim may be brought as an exception to the one-action rule. Chief Justice HOWE and Justice STEWART concur in Associate Chief Justice DURHAM’S opinion.