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

                                 2017 UT 17


                                    IN THE

       SUPREME COURT OF THE STATE OF UTAH

 WILLIAM COMPTON, JOHN SIMCOX, and SALTAIR INVESTMENTS, LLC,
                         Appellants,
                                       v.
                   HOUSTON CASUALTY COMPANY,
                            Appellee.

                              No. 20150837
                          Filed March 23, 2017

                            On Direct Appeal


                      Third District, Salt Lake
                  The Honorable Paul G. Maughan
                          No. 130906137

                                 Attorneys:
     Thor B. Roundy, Cory B. Mattson, Bountiful, for appellants
  Rebecca L. Hill, Salt Lake City, Karl A. Bekeny, Paul L. Janowicz,
                    pro hac vice, Ohio, for appellee

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

   CHIEF JUSTICE DURRANT, opinion of the Court:

                               Introduction
    ¶ 1 This case requires us to determine the scope of the “covered
profession” clause of a “Professional Liability Errors & Omissions
Insurance” policy (Policy). Houston Casualty Company (Houston
Casualty) issued the Policy to Utah County Real Estate, LLC
(Prudential), a real estate brokerage. While working as a real estate
agent for Prudential, Robert Seegmiller approached the plaintiffs in
this action, William Compton, John Simcox, and their company,
Saltair Investments, LLC (collectively, Investors), with information
                   COMPTON v. HOUSTON CASUALTY
                          Opinion of the Court
about a potential real estate transaction in Herriman, Utah. The
Investors and seller Valley View Estates, LLC (Valley View) signed a
Real Estate Purchase Contract (REPC), drafted by Mr. Seegmiller,
which provided that the Investors were to deposit $705,000 into
escrow as a “reservation deposit.” Valley View was to develop the
tract of land into individual lots, after which the Investors would pay
the final contract price. Mr. Seegmiller did not tell the Investors that
he was to receive money from Valley View in exchange for bringing
a buyer to the transaction. Further, the REPC did not provide that
any portion of the funds to be transferred at closing would go to
Prudential.
    ¶ 2 Though the Investors deposited the $705,000 into escrow,
Valley View failed to develop the lots as promised. When the
Investors attempted to obtain their money back from escrow, they
discovered that Valley View had withdrawn the deposit and used it
for various purposes, including paying Mr. Seegmiller $165,000. No
portion of the $165,000 ever passed through Prudential. In an earlier
lawsuit that serves as a predicate to the current case, the Investors
obtained a judgment against Mr. Seegmiller for “negligence” in the
amount of $1,041,275.34. The court‟s order stated that Mr. Seegmiller
was liable for “failing to clarify his role in the transaction, and failing
to disclose a personal interest in the transaction.”
    ¶ 3 Rather than execute the judgment against Mr. Seegmiller,
the Investors settled with him, acquiring any claims he might have
against Prudential‟s insurer, Houston Casualty. The Investors then
brought the current action as a new lawsuit alleging that Houston
Casualty breached the Policy by failing to defend and indemnify Mr.
Seegmiller. The Policy covers losses that arise when an insured acts
“[s]olely in the performance of services as a Real Estate
Agent/Broker of non-owned properties, for others for a fee.” The
district court in this case granted summary judgment for Houston
Casualty on the ground that, because Mr. Seegmiller had a “personal
interest” in the transaction, he held “dual or competing roles” that
precluded the possibility that he could have “acted „solely‟ as
Plaintiffs‟ real estate agent „on behalf of‟ Prudential.”
   ¶ 4 The Investors appeal the district court‟s grant of summary
judgment, arguing that it misconstrued the scope of coverage under
the Policy and contending that the plain language of the Policy
mandates coverage for the judgment rendered against




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                         Opinion of the Court

Mr. Seegmiller in the earlier lawsuit.1 Houston Casualty counters
that the district court‟s interpretation of the Policy was proper, and it
also urges that we affirm the grant of summary judgment on several
alternative grounds. These grounds are, first, that Mr. Seegmiller
was not acting “on behalf of” Prudential in the transaction; second,
that he was not providing services “for a fee” in that transaction;
third, that his conduct falls within the Policy‟s “dishonest acts”
exclusion; and fourth, that coverage is barred on grounds of waiver
or estoppel.
    ¶ 5 We affirm the district court on the alternative ground that
Mr. Seegmiller was not providing services “for a fee” in the
transaction.2 We reach this conclusion because the circumstances
surrounding the formation of the insurance contract indicate that
Prudential‟s agents are compensated through only one mechanism: a
traditional real estate commission. The Investors‟ attempts to expand
the concept of “commission” to cover the events at issue here are
unavailing. We construe the phrase “for a fee” to mean that the real
estate agent must have been providing services with the expectation
of receiving a traditional real estate commission. The record contains
no evidence that Mr. Seegmiller had such an expectation, so we
conclude he was not providing services “for a fee.”




_____________________________________________________________
       1 The Investors also assert that Houston Casualty breached its
duty to defend Mr. Seegmiller. We conclude that this issue was
inadequately briefed in the Investors‟ opening brief and therefore
decline to reach it. See UTAH R. APP. P. 24(a)(9) (the appellant‟s brief
“shall contain the contentions and reasons of the appellant with
respect to the issues presented . . . with citations to the authorities,
statutes, and parts of the record relied on”); State v. Wager, 2016 UT
App 97, ¶ 19, 372 P.3d 91 (“An issue is inadequately briefed when
the overall analysis of the issue is so lacking as to shift the burden of
research and argument to the reviewing court.”(citation omitted)).
The Investors‟ brief makes only conclusory assertions that the duty
to defend was breached, and it provides no analysis.
       2 Because we conclude that Mr. Seegmiller‟s conduct in the
transaction was not covered by the Policy as a matter of law in that
he was not providing services “for a fee,” we do not reach any of the
other issues.

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                  COMPTON v. HOUSTON CASUALTY
                        Opinion of the Court
                             Background
    ¶ 6 Prudential is a real estate brokerage that affiliates with real
estate agents who represent buyers and sellers in real estate
transactions. To insure against potential liability for the acts of its
agents, Prudential purchased the Policy from Houston Casualty. The
Policy covers losses that arise from the wrongful acts of Prudential
agents acting in the “profession described in Item 3 of the
Declarations.” Item 3 of the Declarations defines the “Named
Insured‟s Profession” by a reference to “Endorsement #1,” which in
turn defines the “Named Insured‟s Profession” as “[s]olely in the
performance of services as a Real Estate Agent/Broker of non-owned
properties, for others for a fee.”
    ¶ 7 Prudential uses employment contracts to establish the
nature of its rights and responsibilities with respect to its sales
agents, including describing the nature of its agents‟ compensation.
Robert Seegmiller had a “Broker-Sales Associate Agreement” with
Prudential (Employment Contract) providing that “[c]ompliance
with state laws, rules and regulations require that commissions,
finder fees, bonuses or referral fees be paid to the Broker rather than
to the Salesperson directly.” Prudential also promulgated an internal
“Policy and Procedure Manual,” in effect at the time the parties
negotiated the Policy, which provides “PAYMENT OF
COMMISSIONS BY ASSOCIATES. Real Estate regulations prohibit
the payment of commissions between sales associates. All
commissions or referral fees must be handled through the broker.”
    ¶ 8 While employed as a real estate agent for Prudential,
Mr. Seegmiller introduced the Investors to two real estate
transactions, referred to as the Highland transaction and the
Herriman transaction. The Highland transaction is not directly at
issue on this appeal. In the Herriman transaction, Mr. Seegmiller
introduced the Investors to Valley View, a company that planned to
develop a large tract of property in Herriman, Utah, into individual
lots and then sell them as a group. The Investors and Valley View,
through its principal, Sterling Barnes, entered into a REPC, drafted at
least in part by Mr. Seegmiller, which provided that the Investors
would deposit $705,000 into escrow as a “reservation deposit,” after
which Valley View would develop the individual lots and record the
plat. Upon recordation of the plat, the deposit would become non-
refundable and the Investors were to pay the balance of the purchase
price. No provision in the REPC provides that any funds are to be
paid to Prudential, and Prudential‟s name does not appear on the
REPC. As provided in the REPC, the Investors deposited $705,000
into escrow. But Valley View breached the agreement by failing to

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                         Opinion of the Court

develop the lots, and the plat was thus never recorded. In response,
the Investors sought return of their escrow deposit. They then
learned that Valley View had removed the escrow funds and used
them for various purposes, including paying $165,000 to Mr.
Seegmiller for his role in bringing the Investors to the transaction.
    ¶ 9 The Investors pursued two separate lawsuits in their
attempt to recover their lost escrow deposit, the first against Mr.
Seegmiller and others, the second against Prudential‟s insurer,
Houston Casualty. In the first lawsuit—which is not directly before
us on this appeal—they sued Mr. Seegmiller and a number of other
defendants, including Prudential, Valley View, and Mr. Barnes for
their actions in connection with the Herriman transaction. The
Investors asserted claims against Mr. Seegmiller for accounting,
breach of fiduciary duty, negligence, fraud, negligent
misrepresentation, and conspiracy. The Investors asserted claims
against Mr. Barnes and Valley View for accounting, theft, fraud, and
conspiracy.
    ¶ 10 In the earlier lawsuit, against Mr. Seegmiller and
codefendants, the Investors moved for summary judgment on each
of their claims. The district court in that case denied summary
judgment on the breach of fiduciary duty claim because it concluded
that a genuine dispute of fact precluded a finding that Mr.
Seegmiller acted as the Investors‟ real estate agent. But the court
granted summary judgment on the Investors‟ negligence claim,
concluding that “[e]ven if a real estate agent is not acting in the
capacity of agent for another party, he still owes certain duties to all
parties to any transaction in which he is involved.” The court
reasoned that, “regardless of whether Mr. Seegmiller was acting as
the real estate agent for [Investors] for the purpose of purchasing the
Herriman lots, he owed certain duties to the [Investors], which he
breached by failing to clarify his role in the transaction, and failing to
disclose a personal interest in the transaction.” Because the court
concluded that Mr. Seegmiller was liable for negligence as a matter
of law, it entered judgment against him for $1,041,275.34. This
amount represented the Investors‟ $705,000 of earnest money plus
interest.
    ¶ 11 With this judgment in hand, the Investors chose to settle
with Mr. Seegmiller rather than enforce the judgment against him.
As part of that settlement, they obtained any claims Mr. Seegmiller
might have against Houston Casualty. The Investors then filed a
second lawsuit—the one currently before us on this appeal—
claiming that Houston Casualty breached the Policy by refusing to

                                    5
                  COMPTON v. HOUSTON CASUALTY
                        Opinion of the Court
defend and indemnify Mr. Seegmiller for his conduct in the
Herriman transaction.
    ¶ 12 In this case, the parties cross-moved for summary judgment
on the issue of whether the Policy covers the judgment against
Mr. Seegmiller for his conduct in the Herriman transaction. The
district court granted Houston Casualty‟s motion and denied the
Investors‟, concluding that “[b]ecause [Mr.] Seegmiller had a
personal interest, he held dual or competing roles in the
transaction,” which prevented him from acting “„solely‟ as
[Investors‟] real estate agent „on behalf of‟ Prudential.” The district
court therefore concluded that, as a matter of law, the Policy does
not cover Mr. Seegmiller‟s conduct in the Herriman transaction. The
Investors now appeal that determination. We have jurisdiction under
Utah Code section 78A-3-102(3)(j).
                        Standard of Review
   ¶ 13 “An appellate court reviews a [district] court‟s legal
conclusions and ultimate grant or denial of summary judgment for
correctness and views the facts and all reasonable inferences drawn
therefrom in the light most favorable to the nonmoving party.”3
“We may affirm a district court‟s entry of summary judgment if it is
sustainable on any legal ground or theory apparent on the record.”4
                              Analysis
    ¶ 14 We must determine whether Prudential‟s Policy covers the
judgment rendered against Mr. Seegmiller in the earlier lawsuit for
his undisclosed receipt of $165,000 in the Herriman transaction.
Under the Policy‟s coverage clause, if Mr. Seegmiller was acting
“[s]olely in the performance of services as a Real Estate
Agent/Broker of non-owned properties, for others for a fee” when
he failed to disclose his personal financial stake in that transaction,
then the loss is covered and Houston Casualty must satisfy the
Investors‟ judgment. But if Mr. Seegmiller was not providing
services “for a fee,” then the Policy does not cover his conduct and
Houston Casualty is entitled to summary judgment. We conclude
that Houston Casualty is entitled to summary judgment because Mr.

_____________________________________________________________
      3 Utah Transit Auth. v. Greyhound Lines, Inc., 2015 UT 53, ¶ 15,
355 P.3d 947 (alteration in original) (citation omitted).
      4 Commercial Real Estate Inv., L.C. v. Comcast of Utah II, Inc.,
2012 UT 49, ¶ 14, 285 P.3d 1193 (citation omitted).

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                            Opinion of the Court

Seegmiller did not provide services “for a fee” in the Herriman
transaction. We affirm the district court on this alternative ground.
   ¶ 15 We first conclude that the phrase “for a fee” has only one
reasonable interpretation given the circumstances. In light of the
language of the Policy, the nature of Prudential‟s business, and the
legal and factual landscape that confronted the parties to the
insurance contract, the only reasonable construction is that “for a
fee” means “with the expectation of receiving a traditional real estate
commission.”
    ¶ 16 After determining that the phrase “for a fee” defines
coverage to exist only where an agent is acting with the expectation
that he will receive a traditional real estate commission in exchange
for his services, we then assess whether there is a genuine factual
dispute as to whether Mr. Seegmiller had such an expectation in the
Herriman transaction. We conclude there is no evidence in the
record that would allow us to draw a reasonable inference that he
had such an expectation. To the contrary, the record before us
contains only evidence of the opposite conclusion, that Mr.
Seegmiller understood this transaction to involve “no
commissionable event.” We therefore affirm the grant of summary
judgment on the alternative ground that Mr. Seegmiller was not
providing services “for a fee” in the Herriman transaction.
 I. We Affirm the Grant of Summary Judgment on the Alternative
 Ground that Mr. Seegmiller Did Not Provide Services “For a Fee”
   A. “For a Fee” Means “With the Expectation of Receiving a Traditional
                         Real Estate Commission”
    ¶ 17 We first assess the meaning of “for a fee” in the Policy.
“Insurance policies are contracts between the insurer and the insured
and must be analyzed according to principles of contract
interpretation under Utah law.”5 Our first step is to “look to the
contract and construe its terms to give effect to the intentions of the
parties.”6 The best indication of the parties‟ intent is the language
they chose to use in the contract, so the parties‟ intent “should be
gleaned from an examination of the text of the contract itself.”7 “We

_____________________________________________________________
       5   Ohio Cas. Ins. Co. v. Unigard Ins. Co., 2012 UT 1, ¶ 16, 268 P.3d
180.
       6   Doctors’ Co. v. Drezga, 2009 UT 60, ¶ 12, 218 P.3d 598.
       7   Id. (citation omitted).

                                      7
                     COMPTON v. HOUSTON CASUALTY
                           Opinion of the Court
construe insurance contracts by considering their meaning „to a
person of ordinary intelligence and understanding, viewing the
matter fairly and reasonably, in accordance with the usual and
natural meaning of the words, and in the light of existing
circumstances, including the purpose of the policy.‟”8 “[I]f the
language within the four corners of the contract is unambiguous, the
parties‟ intentions are determined from the plain meaning of the
contractual language.”9
    ¶ 18 If, on the other hand, we determine there is an ambiguity in
the insurance policy, we resolve “any ambiguity or uncertainty in
the language of an insurance policy . . . in favor of coverage.”10 An
ambiguity exists when a provision “is capable of more than one
reasonable interpretation because of uncertain meanings of terms,
missing terms, or other facial deficiencies.”11
    ¶ 19 In conducting this analysis, the relevant parties are those
that negotiated and entered into the insurance contract: Prudential
and Houston Casualty. The coverage clause of the Policy provides
that Houston Casualty shall pay for losses that are incurred when an
insured “acting in the profession described in Item 3 of the
Declarations” commits a “Wrongful Act.” Item 3 of the Declarations
defines the “Named Insured‟s Profession” by a reference to
Endorsement #1. That Endorsement in turn defines the “Named
Insured‟s Profession” as “[s]olely in the performance of services as a
Real Estate Agent/Broker of non-owned properties, for others for a
fee.”
   ¶ 20 The Investors‟ first argument is that we need not consider
the meaning of “for a fee” at all, because in their view the coverage
clause is not limited by the description of the “Named Insured‟s
Profession” that appears in Endorsement #1. They view
Endorsement #1 as simply identifying one profession—real estate
agent/broker—to the exclusion of other professions. We disagree. To

_____________________________________________________________
      8   Id. (citation omitted).
      9   Ohio Cas. Ins. Co., 2012 UT 1, ¶ 16 (alteration in original)
(citation omitted); see also id. (“We „afford[] the policy terms their
usually accepted meanings and giv[e] effect to and harmoniz[e] to
the extent possible all policy provisions.‟” (alterations in original)
(citation omitted)).
      10   Doctors’ Co., 2009 UT 60, ¶ 12 (citation omitted).
      11   Id. (citation omitted) (emphasis added).

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                         Cite as: 2017 UT 17
                        Opinion of the Court

adopt this interpretation would be to essentially rewrite the “Named
Insured‟s Profession” to “real estate agent/broker” with no further
limitation. Such a result would conflict with Prudential and Houston
Casualty‟s deliberate choice to incorporate by reference the more
restrictive definition found in Endorsement #1. We can see no reason
for including this limiting language other than to delineate the scope
of coverage. The coverage clause, by its incorporation by reference of
the definition in Endorsement #1, thus means coverage is available
only when the insured is acting “[s]olely in the performance of
services as a Real Estate Agent/Broker of non-owned properties, for
others for a fee.”
   ¶ 21 Having concluded that “for a fee” delineates the scope of
coverage, we next consider the parties‟ competing interpretations of
the phrase “for a fee.” Houston Casualty argues that an agent is
providing services “for a fee” only when the agent is providing
services with the expectation that he or she will obtain a traditional
real estate commission, to be paid out of funds at closing, where the
funds are first paid to the agent‟s broker as required by Utah law. On
the other hand, the Investors argue that the phrase “for a fee” is not
limited to a “traditional real estate commission.” In their view, the
phrase “for a fee” is broad enough to include the payment of
$165,000 from the sellers of the Herriman property directly to Mr.
Seegmiller, even though these funds were taken from an escrow
“reservation deposit,” not a closing, and no portion of the funds
passed through Prudential. Essentially, they view “for a fee” as
meaning simply “for the payment of money.”
   ¶ 22 The question we must address is whether both of these
readings are reasonable. If so, the clause is ambiguous, and we
would construe that ambiguity in favor of coverage.12 In making the
determination as to whether an ambiguity exists—that is, whether
both of these proposed readings of “for a fee” are reasonable—we
look to the language of the contract as well as the circumstances
surrounding its formation.13 Even if both readings might appear in

_____________________________________________________________
      12  Doctors’ Co., 2009 UT 60, ¶ 12 (“[A]ny ambiguity or
uncertainty in the language of an insurance policy must be resolved
in favor of coverage,” which is justified by “the need to afford the
insured the protection he or she endeavored to secure by paying
premiums.” (citation omitted)).
      13 Watkins v. Henry Day Ford, 2013 UT 31, ¶ 26, 304 P.3d 841
(“„When determining whether a contract is ambiguous, any relevant
                                                      (Continued)
                                9
                  COMPTON v. HOUSTON CASUALTY
                        Opinion of the Court
isolation to be permissible constructions, if “all but one of the
meanings” is rendered unreasonable “by context,” 14 the provision is
unambiguous.
   ¶ 23 We conclude, in light of the existing circumstances and the
purpose for which Prudential purchased the Policy, that it is
unreasonable to read the words “for a fee” so broadly as to include
payment made directly to a real estate agent from a source other
than the brokerage. Instead, we conclude that Houston Casualty‟s
reading—that the term is limited to traditional real estate
commissions to be paid to the agent from the brokerage out of funds
transferred at the closing of a real property transaction—is the only
reasonable one in these circumstances. We reach this conclusion for
several reasons.
   ¶ 24 First, Utah law requires that any money paid to a real estate
agent first be funneled through a real estate broker.15 We find it
unlikely that the parties intended the word “fee” to stretch so
broadly as to include the payment of money in violation of law. The
more logical assumption is that in using the phrase “for a fee,” the
parties contemplated lawful conduct.16


evidence must be considered‟ and „the better-reasoned approach is
to consider the writing in light of the surrounding circumstances.‟”
(citation omitted)).
      14 Olsen v. Eagle Mountain City, 2011 UT 10, ¶ 13, 248 P.3d 465
(noting, in the statutory construction context, that simply because
language “may be susceptible of multiple meanings does not render
it ambiguous; „all but one of the meanings is ordinarily eliminated
by context.‟” (citation omitted)).
      15   The statute applicable at the time of contract formation was
Utah Code section 61-2-10 (2006), which provided that “[i]t is
unlawful for any associate broker or sales agent to accept valuable
consideration for the performance of any of the acts specified in this
chapter from any person except the principal broker with whom he
is affiliated and licensed.” This section was renumbered in 2010 but
contains substantively the same restriction. See UTAH CODE § 61-2f-
305(1) (2016) (“[A]n associate broker or sales agent may not accept
valuable consideration for the performance of an act specified in this
chapter from a person except the principal broker with whom the
associate broker or sales agent is affiliated.”).
      16 Certainly the parties to the Policy contemplated that
Prudential‟s agents might engage in some unlawful conduct; to be
                                                    (Continued)
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                         Cite as: 2017 UT 17
                         Opinion of the Court

    ¶ 25 Second, the parties agree that Prudential agents are paid one
way: by commission.17 Prudential‟s internal policy documentation
and Mr. Seegmiller‟s Employment Contract with Prudential
reinforce this conclusion. These documents indicate that the only
“fees” that Prudential‟s agents receive are commissions, that is to
say, funds that Prudential distributes to the agent out of funds paid
at the closing of a real estate transaction. The Employment Contract
indicates this where it provides that “[c]ompliance with state laws,
rules and regulations require that commissions, finder fees, bonuses
or referral fees be paid to the Broker rather than to [the] Salesperson
directly.”18 Prudential‟s internal “Policy and Procedure Manual” also


sure, the very purpose of errors and omissions liability coverage is to
insure against the “Wrongful Act[s]” of Prudential real estate agents,
which the Policy defines as “any actual or alleged error or omission
or breach of duty committed or alleged to have been committed”
while acting in the covered profession. But the Policy does not insure
against all wrongful acts; it insures against only those acts committed
while acting in the covered profession, which is defined as requiring,
among other things, that the real estate agent was providing services
“for a fee.” Thus the question here is what the parties intended by
the words “for a fee” in choosing to employ that language as a
limitation on the scope of coverage. In making this determination,
we are guided by the fact that a state statute existing at the time of
contract formation and still in force today requires commissions to
be paid first to the principal real estate broker, who then has the
exclusive ability to lawfully provide compensation to the agent. In
determining the meaning of the limitation “for a fee” in the
definition of the covered profession, the fact that the law requires all
fees first go to the principal broker, and therefore flow through the
brokerage, informs our understanding of the scope of risk the parties
intended to cover. See UTAH CODE § 61-2f-305(1) (2016); id. § 61-2-10
(2006).
        In the underlying motion for summary judgment, Houston
       17

Casualty included the following statement of undisputed fact:
      At all relevant times, Prudential paid its real estate
      agents exclusively by commission.
      RESPONSE: Undisputed.
       18The only indication that there may be some exception to the
general rule at Prudential that sales agents are compensated only by
traditional real estate commissions is the next line of the
Employment Contract, which provides “Salesperson may not enter
                                                        (Continued)
                                  11
                  COMPTON v. HOUSTON CASUALTY
                        Opinion of the Court
indicates this where it provides the following: “PAYMENT OF
COMMISSIONS BY ASSOCIATES. Real Estate regulations prohibit
the payment of commissions between sales associates. All
commissions or referral fees must be handled through the broker.”
   ¶ 26 The Investors offer no evidence that Prudential‟s agents are
paid in any way other than by traditional real estate commission.
Our review of the record confirms this exclusive payment
mechanism. We find no support for the notion that, where no
portion of the funds was to flow through the brokerage at closing,19
such a payment could ever be considered a customary real estate
commission and therefore a “fee” under the Policy. To the contrary,
the record indicates that commissions flowed in a very specific
fashion through this real estate brokerage. We cannot conclude, on
the basis of this record, that Prudential and Houston Casualty would
have intended “for a fee” to include payment from sources other
than the brokerage or to include payments not transferred at closing.


into an agreement with a client for payment of compensation of any
kind in lieu of the customary commission without the written
consent of Broker.” At most, this provision could expand the
meaning of “for a fee” to include those circumstances where the
broker provides “written consent” for a real estate agent to “enter
into an agreement with a client” for some compensation other than
an ordinary commission. But we need not consider whether this is
the case because there is no indication that any such thing happened
here. There was no agreement for payment from a “client.” It is
undisputed that the only payment here came from the seller, Valley
View, an entity that was not Mr. Seegmiller‟s real estate client, but
was represented by its own agent, Jeff Faves, in the transaction.
Additionally, there is no indication in the record that Mr. Seegmiller
obtained the written consent of Prudential to be paid directly. But in
any event, this clause actually reinforces our conclusion that the
general rule at Prudential, consistent with Utah law, is that all
commissions must flow through the broker.
   19 The Employment Contract provides that “No commission is
considered earned . . . until a transaction closes.” Thus, before
Prudential ever incurs an obligation to transfer funds to an agent
under its employment contracts, the transaction must have been
consummated in a closing. This contractual order of operations, that
commissions become due only after closing, is further indication that
the parties intended “for a fee” to encompass only traditional real
estate commissions that involve the transfer of funds at closing.

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                        Opinion of the Court

    ¶ 27 In sum, all of these circumstances convince us that the
interpretation advanced by the Investors is unreasonable. The phrase
“for a fee” cannot reasonably be read to include services performed
with no expectation of receiving money that flows from the
brokerage at closing. Rather, the only reasonable reading is that the
parties to this insurance contract intended to include within the
covered scope of risks only those transactions where the agent was
providing services with the expectation of receiving a traditional
commission, to be paid first to the brokerage and then distributed to
the agent out of funds transferred at closing.20
      B. The Record Does Not Support a Reasonable Inference that Mr.
        Seegmiller Provided Services with the Expectation of Receiving a
                      Traditional Real Estate Commission

   ¶ 28 Because we conclude that “for a fee” means “with the
expectation of receiving a traditional real estate commission,” we
must address whether there is a genuine dispute of material fact as
to whether Mr. Seegmiller had the expectation of receiving such a
commission in the Herriman transaction. The record contains no
_____________________________________________________________
      20   The Investors make one additional argument that Mr.
Seegmiller was providing services “for a fee.” They contend that,
because Mr. Seegmiller was hoping to secure a listing agreement to
resell the Herriman properties on behalf of the Investors, he was
working “for a fee” during the transaction at issue in this case. We
reject this interpretation of “for a fee.” Simply because Mr.
Seegmiller was working with the hope that he would secure a
contract that would entitle to him to commissions from the eventual
resale of the property does not mean he was working “for a fee”
from the outset. We see no indication in the record that Prudential
and Houston Casualty would have intended such an expansive
reading. To the contrary, such a construction threatens to eviscerate
the “for a fee” limitation. For example, even the clearest example of a
transaction that was performed for no fee—a pro bono transaction—
would be covered under the Investors‟ interpretation. This is so
because any time a real estate agent elected to provide services to a
client for no charge, the agent could also be said to have the hope
that such service would lead to future listing agreements. We reject
this interpretation because it would render the “for a fee” language
essentially a dead letter. We thus conclude that, unless the services
are performed with the expectation of a commission in the instant
transaction, they are not being performed “for a fee.”

                                   13
                   COMPTON v. HOUSTON CASUALTY
                         Opinion of the Court
evidence whatsoever that Mr. Seegmiller expected to be paid a
portion of the funds transferred at the closing of the Herriman
transaction, or that any such funds were to flow through Prudential
before ultimately being transferred to him, as was usual and
customary at Prudential. The only evidence in the record on this
point is to the contrary. For example, Mr. Seegmiller testified that the
Herriman transaction involved “no commissionable event,” that is,
that Mr. Seegmiller had no expectation that a traditional real estate
commission would be paid.21
    ¶ 29 The Investors do not cite to any portion of the record that
could support a reasonable inference that Mr. Seegmiller expected to
receive a traditional real estate commission for his work in the
Herriman transaction. Our review of the record has likewise
revealed no indication that Mr. Seegmiller, Mr. Barnes, the Investors,
or any other individuals involved with the Herriman transaction
ever expected that there would be a commission paid to Prudential
out of the funds that would be transferred at the closing of this
transaction. The absence of any evidence that could support an
inference that Mr. Seegmiller expected to receive a traditional real
estate commission is fatal to the Investors‟ claim that Mr.
Seegmiller‟s conduct in the Herriman transaction was done “for a
fee.” We therefore conclude that summary judgment was properly
granted because there is no genuine dispute of material fact as to
whether Mr. Seegmiller was providing services “for a fee.” He was
not.
                             Conclusion
    ¶ 30 The Policy provides coverage only when a real estate agent
is providing services “for a fee.” The record contains no indication
that Prudential‟s agents receive compensation in any form other than
a traditional real estate commission. The only reasonable reading of
“for a fee” requires that the agent must have an expectation of
receiving a traditional real estate commission. The Investors have
provided no evidence that Mr. Seegmiller had any expectation that
he would be paid a traditional real estate commission for the services


_____________________________________________________________
       21 The record also contains a transcript of a conversation
between Valley View‟s principal Mr. Barnes and counsel for the
Investors that is to the same effect. In that conversation, Mr. Barnes
repeatedly emphasized that the Herriman transaction did not
involve the payment of any commission.

                                  14
                       Cite as: 2017 UT 17
                      Opinion of the Court

he provided in the Herriman transaction. We accordingly affirm the
grant of summary judgment on the alternative ground that Mr.
Seegmiller did not provide services “for a fee.”




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