C.R. England, Plaintiff-Appellant,
Swift Transportation Company; Swift Transportation Company of Arizona; and Swift Transportation Services, Defendants-Appellees.
Certification from the United States District Court for the
District of Utah The Honorable Dee V. Benson Case No.
A. Hagen, Robert O. Rice, Michael K. Erickson, Salt Lake
City, for appellant
Stephen E. Hale, Bryan S. Johansen, Rachel L. Wertheimer,
Salt Lake City, for appellees
Justice Durrant authored the opinion of the Court, in which
Associate Chief Justice Lee, Justice Himonas, Justice Pearce
and Justice Petersen joined.
DURRANT CHIEF JUSTICE.
In this case we are asked to interpret, and ultimately
overturn, a rule we established in St. Benedict's
Development Co. v. St. Benedict's
Hospital. In St. Benedict's we held
that to prevail on a claim for intentional interference with
contract, the plaintiff must show that the defendant
interfered through "improper means." C.R. England,
Inc. (England) argues that St. Benedict's was
wrongly decided and should, therefore, be overruled.
In so arguing, England asserts that the factors for
overruling precedent we established in Eldridge v.
Johndrow-(1) the persuasiveness of the authority
and (2) how firmly the precedent has become established in
law-weigh in England's favor. We disagree. Because the
"improper means" element has become firmly embedded
in Utah law since St. Benedict's was decided,
and because it remains a good rule, we decline to overturn
Additionally, we are asked to clarify what constitutes
improper means for the purposes of a claim for intentional
interference with contract. In Leigh, we explained
that the element of "improper means is satisfied where
the means used to interfere with a party's economic
relations are contrary to law, such as violations of
statutes, regulations, or recognized common-law rules,"
or if "they violate an established standard of a trade
or profession." And in St. Benedict's we
applied this definition of improper means to claims involving
existing contracts. We reaffirm this definition and clarify that
to constitute an "established standard of a trade or
profession," the standard or rule must be an objective
one accepted throughout the relevant industry.
England is a trucking company. As part of its business, it
trains and hires individuals to work as truck drivers. To
protect its investment in training individuals to work as
truck drivers, England enters into employment contracts
wherein the truck drivers agree to work exclusively for
England for a nine-month period. England alleges that it has
previously provided notice of these agreements to other
trucking companies, and that it also provides notice on an
ongoing basis when competing companies seek to hire England
drivers who are still within the nine-month period.
Swift Transportation Company (Swift) is also a trucking
company. England alleges that Swift regularly and knowingly
induces England's truck drivers to breach their
employment contracts with England by offering higher wages
and better benefits.
In response to this activity, England filed suit against
Swift, alleging that Swift intentionally interfered with
England's contracts with its employees. Swift filed a
motion for summary judgment against England on the ground
that England failed to provide proof of "improper
means"-an allegedly essential element of the tort-to
support its claim. In its opposition, England argued that
"improper means" is not an element of the tort of
intentional interference with contract in Utah. Instead, it
maintained that it must prove only that (1) Swift had
knowledge of England's employment agreements with its
truck drivers, (2) Swift recruited the drivers, (3) the
drivers went to work with Swift, and (4) England suffered
damages as a result, unless the "action causing the
breach was done with just cause of
Noting conflicting holdings in the federal district court of
Utah regarding the elements of the tort of intentional
interference with contract, the federal court requested
supplemental briefing from the parties. Upon reviewing the
briefing, the court concluded that there appears to be no
"clear, controlling Utah law" regarding whether
"improper means" is required as part of the tort.
Additionally, the court concluded that if improper means is
required, there is no clear law regarding what would
constitute improper means.
This case comes to us by certified question from the federal
district court. "A certified question from the federal
district court does not present us with a decision to affirm
or reverse a lower court's decision; as such, traditional
standards of review do not apply." Instead, we
merely answer the question presented without resolving the
underlying dispute. We have jurisdiction pursuant to Utah
Code section 78A-3-102(1) and article VIII, section 3 of the
This case requires us to answer two questions. First, does
the tort of intentional interference with contract require
proof of "improper means"? And second, if it is
required, what constitutes "improper means" in the
context of tortious interference with contract?
England argues that the elements of the tort of intentional
interference with contract come from our opinion in
Bunnell v. Bills. In Bunnell, we
adopted the rule that "one who persuades another or
conspires with another to breach a contract is guilty of an
actionable tort, unless such persuasion or other action
causing the breach was done with just cause of
excuse." England argues that this should still be
the law in Utah, and, to the extent subsequent cases have
stated a different rule, we should overrule them under the
factors for overturning precedent we articulated in
Eldridge v. Johndrow.
Swift, on the other hand, argues that our decisions in
Leigh Furniture & Carpet Co. v.
Isom and St. Benedict's Development
Co. v. St. Benedict's Hospital govern.
According to Swift, Leigh established a three-part
test for the tort of intentional interference with economic
relations, which includes interference with both existing and
prospective contracts. We agree with Swift.
Although the court in Leigh did not clearly state
whether its three-part test applied to the tort of
intentional interference with contract, the court in St.
Benedict's later interpreted Leigh as
having done so. And following St.
Benedict's, Utah courts have regularly stated that
the element of "improper means" is part of the
prima facie case for intentional interference with
contracts. Because the rule established in St.
Benedict's has become firmly established in Utah
caselaw, and the reasoning behind it remains persuasive, we
decline to overturn it.
Decline to Overturn St. Benedict's and We Hold
that "Improper Means" is an Element of the Tort of
Intentional Interference with Contract
We first consider whether "improper means" is an
element of the tort of intentional interference with
contract. England argues that we should disavow any language
from our decision in St. Benedict's Development Co.
v. St. Benedict's Hospital that includes the element
of "improper means" as part of the tort of
intentional interference with contract. The court in St.
Benedict's based its decision on language in
Leigh Furniture & Carpet Co. v.
Isom. But, according to England, the language
in Leigh applied only to the related, but distinct,
tort of intentional interference with prospective economic
relations. For this reason, England argues that St.
Benedict's interpretation of Leigh-as
including the "improper means" element in the torts
of intentional interference with contracts and prospective
Swift disagrees with England's reading of our caselaw.
According to Swift, our decision in Leigh
established elements for the tort of interference with
economic relations, which "protects both existing
contractual relationships and those not yet reduced to formal
contract or not expected to be."
Although Leigh is best read as having applied only
to the tort of intentional interference with prospective
contracts, St. Benedict's clearly extended the
Leigh test so that it applied to claims involving
existing contracts as well as prospective ones. Because this
resulted in a sound rule that has become firmly embedded in
Utah law, we decline to overturn it.
Before Leigh, the tort of intentional
interference with contract required some showing of
improper or unprivileged conduct by defendant
Due to the debate surrounding the development of the tort of
intentional interference with economic relations, we first
consider the origins of the legal theory in Utah.
Specifically, it should be noted that Utah's caselaw has
always held that a defendant could not be found liable for
intentionally interfering with an existing contract absent
proof that the interference was unexcused or unjustified.
And, based on a review of the caselaw from other
jurisdictions, it appears that an unexcused or unjustified
interference is widely viewed as the functional equivalent of
interference by an "improper means" or an
In Utah, the tort of intentional interference with contract
has always required some proof that the alleged interference
was done with some level of impropriety. In Bunnell v.
Bills, the case on which England's entire argument
relies, the court held that "one who persuades another
or conspires with another to breach a contract is guilty of
an actionable tort, unless such persuasion or other
action causing the breach was done with just cause of
excuse." It also explained that "even though
a defendant's action brings about a breach of contract,
he is not liable where the breach was caused by the doing of
an act which he had a legal right to do." The court
then explained that "[w]here persons have merely pursued
their own ends without any desire or intention of causing
another to breach his contract, they should not be held
liable for the other's breach." So under Bunnell, a person
could be held liable for the tort of intentional interference
with contract only if the person interfered in a way in which
the person was not legally entitled to have interfered.
Bunnell's inclusion of an "unexcused
conduct" component was consistent with the approach
followed in other jurisdictions at that time and since.
The court in Bunnell purported to ground its
decision in "generally recognized [law] in a majority of
Bunnell was decided in 1962-twenty-three years after
the first Restatement was published and seventeen years
before the second Restatement was published, the first and
second Restatements act as helpful bookends in our survey of
the "generally recognized [law] in a majority of
jurisdictions" at the time. Accordingly, we look to the Restatements
of Torts, and cases in other jurisdictions that have
interpreted the Restatements' language, as persuasive
These sources suggest that the unexcused or unjustified
conduct element discussed in Bunnell is synonymous
with the "improper" interference element adopted in
Leigh and St. Benedict's. For example,
even though the first Restatement describes the tort as an
interference done by "one . . . without a privilege to
do so" and the
second Restatement describes it as an interference done by
"[o]ne who intentionally and improperly interferes,
" the factors provided by
the first and second Restatements for determining whether an
interference was actionable-i.e. lacked privilege or
was improper- are substantially similar. So between the first and second
Restatements there is no substantive difference between an
unexcused interference and an improper one.
The same is true in other jurisdictions. For example, in RAN Corp. v.
Hudesman, the Supreme Court of Alaska noted a
discrepancy in the terminology used in previous
cases. Alaska's prima facie
intentional interference with contract case required the
plaintiff to prove that "the defendant's conduct was
not privileged or justified." On the other hand, it noted that the
second Restatement "speaks not in terms of
'privilege,' but requires that the actor's
conduct not be 'improper, '" while "[o]ther
authorities use the catch word
'malice.'" Ultimately, the court concluded that
"[r]egardless of the phrase that is used, the critical
question is what conduct is not 'privileged' or
'improper' or 'malicious.'" In other words, the Hudesman
court concluded that even though different authorities use
different terms, each authority is attempting to identify
certain conduct that is improper in the context of the tort
of intentional interference with contract.
As these additional authorities suggest, there is little
substantive difference between requiring the plaintiff to
prove that an intentional interference with a contract was
without justification and requiring the plaintiff to prove
that it was improper. So even though the court in
Bunnell used the "without justification"
terminology in describing the elements of the tort, it is
clear that even under that decision some intentional
interferences with a contract do not rise to the level of
tortious conduct. So before a plaintiff prevails on an
intentional interference with contract claim, the trial court
must decide whether the interference was unexcused or
It is unclear if Bunnell decided the question of
whether a showing of improper conduct is part of the
prima facie case or whether the lack of improper
conduct is an affirmative defense
Although it is clear that Bunnell included an
unexcused or improper conduct component in the tort of
intentional interference with contract, this does not answer
the key question in this case. This is so because it is
unclear whether Bunnell placed the burden for
showing that an alleged interference occurred without an
excuse on the plaintiff, as part of the prima facie case, or
on the defendant, as an affirmative defense. In other words,
although Bunnell suggests that a defendant is not
liable for intentionally interfering with a contract unless
the defendant's conduct was unexcused or improper, this
does not necessarily mean that "improper means" is
an element of a plaintiff's prima facie case. Instead,
Bunnell could be interpreted as adopting what is
called the prima facie approach. Under this approach,
"the plaintiff need only prove . . . that the defendant
intentionally interfered with his [contractual] relations and
caused him injury." Once this is proven, "the burden .
. . then shifts to the defendant to demonstrate as an
affirmative defense that under the circumstances his conduct,
otherwise culpable, was justified and therefore
Even though Bunnell does not clearly state who has
the burden of showing that an interference was improper (or
proper in the case of the defendant), dicta in Leigh
suggests that Bunnell placed the burden on the
defendant. While the court in
Leigh considered which elements to include in the
related tort of intentional interference with prospective
economic relations, it mentioned that Bunnell had
"assumed" the prima facie approach in the context
of the tort of intentional interference with contract. But
the Leigh court does not explain why it believed
that Bunnell followed the prima facie approach, and
the court in Leigh may have erred on this
After stating that Bunnell assumed the prima facie
approach for the tort of intentional interference with
contract, the court in Leigh declined to apply the
prima facie approach for the tort of interference with
prospective economic relations because it "requires too
little of the plaintiff." And after considering and rejecting a
second approach to the tort,  the Leigh court decided to
adopt a third approach that had been established in Oregon.
Under this third approach, the plaintiff "must prove (1)
that the defendant intentionally interfered with the
plaintiff's existing or potential economic relations, (2)
for an improper purpose or by improper means, (3) causing
injury to the plaintiff." Significantly, the court announced this
test as part of what it considered to be Utah's first
instance of formally recognizing the "common-law cause
of action for intentional interference with prospective
economic relations." For this reason, it appears the
Leigh court's standard was meant to apply only
to the tort of intentional interference with prospective
economic relations, and not to the already-existing tort of
intentional interference with contract.
St. Benedict's interpreted Leigh as holding
that a showing of improper means is part of the
plaintiff's prima facie case for claims
involving existing contracts as well as prospective
Although it appears that the court in Leigh was not
attempting to alter the elements for the tort of intentional
interference with contract, this court later interpreted
Leigh as if it had. In St. Benedict's Development
Co. v. St. Benedict's Hospital, we noted that
Leigh was the first case to "recognize the
tort of intentional interference with economic
relations." And we
explained that the "tort protects both existing
contractual relationships and prospective relationships of
economic advantage not yet reduced to a formal
contract." We then
announced that the three-part test first articulated in
Leigh, including the improper means element, applied
to situations involving existing contracts.So following St. Benedict's,
a showing of improper means became part of the
plaintiff's prima facie case for claims involving
existing contracts as well as prospective ones. This rule has
never been questioned by a Utah state court.
Under the factors established in Eldridge, we
decline to overrule St. Benedict's
Because St. Benedict's clearly extended
Leigh's three-part test to claims involving
existing contracts, England asks us to overrule it. England
argues that the court in St. Benedict's misread
Leigh, and therefore the rule set out in St.
Benedict's should be disavowed. Although we agree
that the court in St. Benedict's misread
Leigh, we do not believe-under the test for
overturning precedent we established in
Eldridge-that this error warrants overturning the
law St. Benedict's established.
In Eldridge,  we established two factors to consider
before overturning an earlier case: "(1) the
persuasiveness of the authority and reasoning on which the
precedent was originally based, and (2) how firmly the
precedent has become established in the law since it was
handed down." Neither of these factors weighs in favor
of overturning the rule established in St.
First, the rule St. Benedict's established rests
on a firm legal footing. Although St. Benedict's
application of Leigh's three-part test to
alleged interferences with existing contracts appears to have
been the result of a misreading of the Leigh
opinion, England fails to present a compelling reason for
getting rid of it.
As our discussion of Bunnell illustrates, even
before Leigh and St. Benedict's, Utah
law most likely required a plaintiff to show that a defendant
had interfered in an improper or inexcusable way to prevail
on a claim for intentional interference with contract. So
even if the St. Benedict's court erred by
attributing the inclusion of the "improper means"
element to Leigh, it was nevertheless correct in
requiring the plaintiff to prove that the defendant had
interfered with the contract through something akin to
What is more, by requiring a plaintiff to prove some form of
improper, wrongful, unexcused, or unjustified conduct as part
of its prima facie case, St. Benedict's merely
adopted the approach followed in the vast majority of
jurisdictions that recognize the tort of intentional
interference with contract. So even if the court in St.
Benedict's based its rule on an incorrect reading of
Leigh, it nevertheless articulated a sound
rule with which the majority of
other jurisdictions agree.
The second Eldridge factor also weighs in favor of
reaffirming St. Benedict's. In determining how
firmly precedent has become established in the law, we
typically consider "the age of the precedent, how well
it has worked in practice, its consistency with other legal
principles, and the extent to which people's reliance on
the precedent would create injustice or hardship if it were
overturned." These factors
support reaffirming St. Benedict's.
First, we decided St. Benedict's approximately
twenty-eight years ago, and since that time, Utah appellate
courts have consistently noted that "improper
means" is an element of a ...