               This opinion is subject to revision before final
                     publication in the Pacific Reporter

                                2017 UT 8


                                  IN THE

      SUPREME COURT OF THE STATE OF UTAH

                  LANCER INSURANCE COMPANY,
                           Appellant,
                                     v.
LAKE SHORE MOTOR COACH LINES, INC., JANNA CRANE, ELIZABETH
         HUTCHISON, METTE SEPPI, TIFFANY THAYNE,
                       Appellees.

                           No. 20160244
                      Filed February 15, 2017

                   On Certification from the
       United States District Court for the District of Utah
              The Honorable Judge Jill N. Parrish
                     Case No. 2:14cv00785

                               Attorneys:
            Barbara L. Maw, Park City, for appellant
       Dallas B. Young, Michael D. Esplin, Trent V. Cahill,
            Laura H. Cabanilla, Provo, for appellees

ASSOCIATE CHIEF JUSTICE LEE authored the opinion of the Court, in
which CHIEF JUSTICE DURRANT, JUSTICE DURHAM, JUSTICE HIMONAS,
                   and JUSTICE PEARCE joined.

ASSOCIATE CHIEF JUSTICE LEE, opinion of the Court:
  ¶1 This case comes to us on certification from the United
States District Court for the District of Utah. The questions
presented concern the proper interpretation of Utah Code section
31A-22-303(l), which requires motor vehicle liability insurance
policies to “cover damages or injury resulting from a covered
driver of a motor vehicle” who suddenly and unforeseeably
becomes incapacitated. We interpret this provision to impose
strict liability on an insured driver, and to limit the driver’s
liability to the coverage of the applicable insurance policy.
                 LANCER INS. v. LAKE SHORE MOTOR
                        Opinion of the Court
                                   I

  ¶2 The personal injury claims at issue in the underlying
federal case arise out of a bus accident that happened on October
10, 2009. The bus was driven by Debra Jarvis and owned by Lake
Shore Motor Coach Lines, Inc. Jarvis experienced a sudden and
unforeseeable loss of consciousness while driving back to Utah
from a high school band competition in Idaho. Her loss of
consciousness caused the bus to leave the roadway, hit a ravine,
and roll over. Several passengers were injured in the crash.

  ¶3 The injured passengers included Janna Crane, Elizabeth
Hutchison, Tiffany Thayne, and Mette Seppi. Each of these
individuals filed separate lawsuits in the Fourth Judicial District
Court in Utah seeking damages for their injuries. Crane and
Hutchison filed motions for partial summary judgment, asserting
that Lancer Insurance Co. (Lake Shore’s insurer) was strictly liable
for the passengers’ injuries under Utah Code section 31A-22-
303(1). Those motions were denied. In denying the motions, the
state district court rejected the strict liability premise attributed by
the passengers to Utah Code section 31A-22-303(1). Instead, the
court held that the statute preserved the common-law “sudden
incapacity” defense, under which Jarvis would not be liable for
her sudden loss of consciousness and the injured parties could
recover only upon a showing of fault.

  ¶4 These state cases are still pending. But they are not the
cases before us here. For reasons not apparent on the record,
Lancer Insurance filed a separate federal case after it succeeded in
defending against the motions for summary judgment in state
court. In the federal case, Lancer sought a declaratory judgment
confirming the state district court’s interpretation of Utah Code
section 31A-22-303(1)—reinforcing the conclusion that this
provision preserves the common-law “sudden incapacity”
defense and thus requires proof of fault to sustain liability in this
case.

  ¶5 The federal district court may have recognized the unusual
procedural posture of this case—a federal declaratory judgment
suit under review while parallel cases involving claims for money
damages are still pending in state court (and subject to appeal).
That posture presents a risk that a declaratory judgment in federal
court could be undermined by an eventual—and conclusive—
interpretation of state law by this court. Perhaps with that in
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                       Opinion of the Court
mind, the federal district court appropriately certified the
following two questions to us: (1) whether Utah Code
section 31A-22-303(1) imposes strict liability on an insured driver
for damages to third parties resulting from the driver’s
unforeseeable loss of consciousness while driving; and (2) if so,
whether the driver’s liability is limited by the applicable insurance
policy or by the applicable minimum statutory limit.

 ¶6 We agreed to accept these certified questions. We exercise
our jurisdiction under Utah Code section 78A-3-102(1).

                                  II

  ¶7 The injured parties seek to impose strict liability on an
insured driver who experiences an unforeseeable loss of
consciousness while driving. They base their claim on Utah Code
section 31A-22-303(1). That provision requires that “a policy of
motor vehicle liability coverage . . . shall . . . cover damages or
injury resulting from a covered driver of a motor vehicle who is
stricken by an unforeseeable paralysis, seizure, or other
unconscious condition and who is not reasonably aware that
paralysis, seizure, or other unconscious condition is about to
occur to the extent that a person of ordinary prudence would not
attempt to continue driving.” UTAH CODE § 31A-22-303(1)(a)(v). It
further provides that “[t]he driver’s liability under Subsection
(1)(a)(v) is limited to the insurance coverage.” Id. § 31A-22-
303(1)(b).

  ¶8 The parties offer competing views of these provisions. The
injured parties interpret the statute to call for liability of an
incapacitated driver without proof of negligence. They view the
requirement of coverage and the reference to the “driver’s
liability” as a repudiation of the “sudden incapacity” defense
recognized in our cases. See Porter v. Price, 355 P.2d 66, 67 (Utah
1960), overruled in part on other grounds by Randle v. Allen, 862 P.2d
1329 (Utah 1993); Hansen v. Heath, 852 P.2d 977 (Utah 1993). The
insurance company, on the other hand, views the statute much
more narrowly. It contends that the statute doesn’t impose
liability at all, but simply directs insurance companies to provide
a certain kind of coverage.

  ¶9 We embrace the injured parties’ view. We interpret section
303(1) to override the common-law “sudden incapacity” defense
and to impose strict liability (at least in circumstances in which
the driver has a liability policy with the coverage mandated by the
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                 LANCER INS. v. LAKE SHORE MOTOR
                        Opinion of the Court
statute). And we conclude that the driver’s liability is capped by
the limits set forth in the applicable insurance policy.

                                  A

  ¶10 Years ago this court embraced the so-called “sudden
incapacity” defense. See Porter, 355 P.2d at 68; Hansen, 852 P.2d at
978 n.2. That defense precludes liability for “a person driving an
automobile” who is “suddenly stricken by an illness” that “makes
it impossible” for the driver to “control the car” and that the
driver “has no reason to anticipate.” Hansen, 852 P.2d at 978 n.2.

  ¶11 Utah Code section 31A-22-303(1) was enacted against the
backdrop of these cases. This statute announces two key premises:
a requirement of insurance coverage (for “damages or injury
resulting from a covered driver of a motor vehicle who is stricken
by an unforeseeable paralysis, seizure, or other unconscious
condition,” UTAH CODE § 31A-22-303(1)(a)(v)), and a limitation of
liability (confining the “driver’s liability” to the “insurance
coverage,” id. § 31A-22-303(1)(b)).

  ¶12 We view these provisions as overriding the common-law
“sudden incapacity” defense—at least in a case in which the
coverage provided by statute is in place 1—and thus as subjecting
a covered driver (and by extension the insurer) to strict liability.
Granted, and as Lancer Insurance notes, the statute nowhere
refers to a principle of “strict liability.” The principal mandate of
the statute is a requirement of insurance coverage, not an express
articulation of a duty or standard of liability in tort. And this
would have been an easier case if the legislature had spoken more
explicitly. But that is true in most any case of any difficulty. See In
re Estate of Hannifin, 2013 UT 46, ¶¶ 24–27, 311 P.3d 1016. Thus,
the legislature’s failure to speak more clearly doesn’t tell us
much—except that we’re presented with a case requiring our
careful construction of the statutory text. Id.

 ¶13 We interpret the text to call for strict liability and to
override the common-law principle of sudden incapacity. We do


   1 We need not and do not decide here whether a driver without
the coverage required by statute would sustain liability, or
whether any such liability would be limited in any way. Those
questions are simply not presented here, and we accordingly offer
no view on their proper disposition.
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                       Opinion of the Court
so primarily on the basis of the canon of independent meaning—
or its converse, the presumption against surplusage. See Hi-
Country Prop. Rights Grp. v. Emmer, 2013 UT 33, ¶ 24, 304 P.3d 851
(rejecting a view of a statute on the ground that it would violate
“the presumption of independent meaning . . . and/or its
converse, the presumption against surplusage”). This canon
presumes that each provision of a statute has meaning
independent of all others. It expresses, in other words, a
reluctance to attribute to the legislature the intent to adopt a
nullity—to enact a provision that says nothing not already stated
elsewhere.

  ¶14 Surplusage is hardly unheard-of. Legislation may include
surplus terms aimed at underscoring an important point. With
that in mind, courts may view a few isolated words as simply
reiterating what is stated elsewhere—as a reinforcement in an
abundance of caution. See Bank of Hamilton v. Dudley’s Lessee, 27
U.S. 492, 502 (1829) (concluding that a statute’s “general clause”
repealing “all laws contrary to its provisions . . . was added, ex
abundante cautela, to guard against collision”). But this inference is
difficult (if not impossible) where the would-be surplusage
represents the entirety of a statutory mandate. Where that is the
case the presumption of independent meaning is at its strongest,
as it seems hard to attribute to the legislature the intent to adopt a
statutory mandate that has no operative effect.

  ¶15 And that is our conclusion here. The legislature enacted a
requirement that all motor vehicle liability insurance policies
“cover damages or injury resulting from a covered driver of a
motor vehicle who is stricken by an unforeseeable paralysis,
seizure, or other unconscious condition.” UTAH CODE § 31A-22-
303(1)(a)(v). Yet that mandate would be a complete nullity—a
requirement of insurance coverage for damages that could never
be awarded—if we embraced Lancer’s view of the statute. And
we decline to read this provision as a nullity.

  ¶16 The required insurance coverage overlaps precisely with
the common-law sudden incapacity defense. 2 So unless the


   2  Compare UTAH CODE § 31A-22-303(1)(a)(v) (“[A] policy of
motor vehicle liability coverage . . . shall . . . cover damages or
injury resulting from a covered driver of a motor vehicle who is
stricken by an unforeseeable paralysis, seizure, or other unconscious
condition and who is not reasonably aware that paralysis, seizure,
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                LANCER INS. v. LAKE SHORE MOTOR
                       Opinion of the Court
required coverage also implies an imposition of liability, the
legislature would have to be understood to have issued a mandate
that has no operative effect. We find no basis for that conclusion.
The express requirement of insurance coverage is best understood
as an implicit repudiation of the common-law doctrine of sudden
incapacity (and an imposition of strict liability).

  ¶17 That conclusion is reinforced by the separate statutory
reference to the “driver’s liability,” which is limited to the
available “insurance coverage.” UTAH CODE § 31A-22-303(1)(b). It
would make no sense to refer to a driver’s liability for sudden
incapacity if such liability could never attach. And again this
provision would be a nullity if we adopted Lancer’s
construction—as there would be no point in a limitation of
liability to the available “insurance coverage” if such liability is
foreclosed as a matter of law by the sudden incapacity defense.

  ¶18 For these reasons we conclude that Utah Code section 31A-
22-303(1) overrules the common-law doctrine of sudden
incapacity in a manner imposing strict liability on a driver (and by
extension, the driver’s insurer). At least in a case in which the
mandated coverage is present, see supra ¶ 12 n.1, we conclude that
an injured party has a claim for strict liability under the terms of
the statute.

                                 B

  ¶19 That leaves the second question certified by the federal
district court—whether the insured driver’s liability is limited to
the amount of insurance coverage available under the driver’s
liability policy or instead to the minimum amount of coverage
mandated by the general policy limit statute. This question has a
straightforward answer in the terms of the statute. By statute,


or other unconscious condition is about to occur to the extent that a
person of ordinary prudence would not attempt to continue driving.”)
(emphasis added) with Porter v. Price, 355 P.2d 66, 68 (Utah 1960)
(upholding a jury instruction that “[a] driver of an automobile who
is stricken by paralysis, seized by a fit or otherwise rendered
unconscious and who still continues to drive while unconscious
and causes damages or injury to another cannot be held responsible
therefor unless he was reasonably aware that he was about to lose
consciousness to the extent that a person of ordinary prudence would
not attempt to continue driving” (emphases added)).
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                       Opinion of the Court
“[t]he driver’s liability under Subsection (1)(a)(v) is limited to the
insurance coverage.” UTAH CODE § 31A-22-303(1)(b). We see no
way to read these words as incorporating the amount of
minimum coverage required by the general policy limit statute.
See UTAH CODE § 31A-22-304. The driver’s liability is expressly
“limited to the insurance coverage.”

  ¶20 We interpret the statute to mean what it says: A driver (and
by extension her insurer) is subject to liability only up to the
amount of the insurance coverage available under an applicable
policy. Thus, Utah Code section 31A-22-303(1) overrules the
common-law doctrine of sudden incapacity to only a limited
extent—to the extent of available insurance coverage.




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