See, e.g. , Ayala v. Antelope Valley Newspapers, Inc., 59 Cal.4th 522, 173 Cal.Rptr.3d 332, 327 P.3d 165, 172 (Cal. 2014) ("[W]hat matters under the common law is not how much control a hirer exercises , but how much control the hirer retains the right to exercise .") (emphases added); Schecter v. Merchants Home Delivery, Inc. , 892 A.2d 415, 423 (D.C. 2006) ("[T]he right to control means ‘the right to control an employee in the performance of a task and in its result, and not the actual exercise of control or supervision.’ ") (citation omitted); Mallory v. Brigham Young Univ. , 332 P.3d 922, 928–929 (Utah 2014) ("If the principal has the right to control the agent's method and manner of performance, that agent is a servant whether or not the right is specifically exercised .") (emphasis added). In short, "[a]t common law the relevant factors defining the master-servant relationship focus on the master's control over the servant," whether that means the servant " ‘is controlled or is subject to the right to control by the master,’ " and so that "common-law element of control is the principal guidepost" in determining whether an entity is an employer of another.

The third element focuses on whether the principal "controls, or has the right to control, the manner in which the operations are to be carried out." Sutton v. Miles, 2014 UT App. 197, at * 2, --- P.3d ---- (Utah Ct. App. Aug. 14, 2014) (citing Mallory v. Brigham Young Univ., 332 P.3d 922, 928 (Utah 2014)). The following factors are relevant to, but not necessarily dispositive of, this element: "(1) the existence of covenants or agreements concerning the right of direction and control over the agent, (2) whether the principal has the right to hire and fire the agent, (3) the method of payment (i.e., wages versus payment for a completed job or project), (4) who furnishes the equipment, (5) the intent of the parties, and (6) the business of the employer."

¶ 13 Likewise, there were disputed facts regarding whether Miles was subject to Lowell's control. The control element focuses on whether the principal “controls, or has the right [to] control, the manner in which the operations are to be carried out,” Mallory v. Brigham Young Univ., 2014 UT 27, ¶ 21, 332 P.3d 922 (alteration in original) (emphasis added) (citation and internal quotation marks omitted); “if the control extends only to the result to be achieved, the actor is regarded as an independent contractor,” Foster v. Steed, 19 Utah 2d 435, 432 P.2d 60, 62 (1967) (emphasis added). The right-of-control test considers several factors, none of which is “completely controlling”: (1) the existence of covenants or agreements “concerning the right of direction and control over the [agent],” (2) whether the principal has “the right to hire and fire” the agent, (3) “the method of payment (i.e., wages versus payment for a completed job or project),” (4) who furnishes the equipment, (5) “the intent of the parties,” and (6) “the business of the employer.”

” Mallory v. Brigham Young Univ., 2014 UT 27, ¶ 21, 332 P.3d 922 (quoting Foster v. Steed, 19 Utah 2d 435, 432 P.2d 60, 62 (1967)) (alteration in original)

Furthermore, the State of Utah is not an employer of Plaintiff under common law theory. See e.g. Mallory v. Brigham Young Univ., 332 P.3d 922, 928-29 (Utah 2014). Moreover, the Tenth Circuit has noted the reluctance of courts in “finding that two nominally separate state or municipal governmental entities are in fact a single employer, since such a conclusion effectively negates what we assume was a state's conscious choice to create distinct organizations.”

Magana v. Dave Roth Const., 2009 UT 45, ¶ 22, 215 P.3d 143. See Mallory v. Brigham Young Univ., 2014 UT 27, ¶ 20, 332 P.3d 922. Id. (quoting Intermountain Speedways, Inc. v. Indus. Comm'n, 126 P.2d 22, 24 (Utah 1942))

Rather, for such liability to exist, the nature of the relationship between the corporation and agent must be sufficient for either direct or vicarious liability to exist. See Mallory v. Brigham Young Univ., 2012 UT App 242, ¶ 29, 285 P.3d 1230, 1238, rev'd on other grounds by, 2014 UT 27, 332 P.3d 922 (noting that "a principal can be sued for direct or vicarious liability as a result of the actions of its agent" (citing Restatement (Third) Of Agency § 7.03)); see also Allen v. Prudential Prop. & Cas. Ins. Co., 839 P.2d 798, 805-06, n. 16 (Utah 1992).

For purposes of our factual recitation, we treat rule 12(b)(1) and rule 12(b)(6) motions alike: "factual allegations are accepted as true and all reasonable inferences to be drawn from those facts are considered in a light most favorable to the plaintiff." Mallory v. Brigham Young Univ. , 2014 UT 27, ¶ 32 n.1, 332 P.3d 922 (Stone, J., dissenting). ¶3 By way of background, the Malpractice Act requires plaintiffs to obtain a certificate of compliance from DOPL before filing their case in district court.

After all, this list is preceded by the introductory verb "includes," which thus indicates that the list is non-exhaustive. See, e.g., Mallory v. Brigham Young Univ., 2014 UT 27, ¶ 16, 332 P.3d 922 (holding that a statute's use of the word "includes" before a list "clearly contemplated" the possibility that something could satisfy the overarching term even if it didn't "fit[] neatly into one of the listed categories" (quotation simplified)); Boyle v. Christensen, 2011 UT 20, ¶ 27, 251 P.3d 810 ("When 'including' precedes a list, its common usage is to indicate a partial list."); Asset Acceptance LLC v. Utah State Treasurer, 2016 UT App 25, ¶ 21 n.10, 367 P.3d 1019 (noting that "'including' or 'includes' is a somewhat unique word in the English language, particularly with regard to its legal usage, because it has long been held to unambiguously indicate a non-exhaustive list").

¶9 "When interpreting statutory language, our primary task is to give effect to the intent of the legislature," and "we determine the statute's meaning by first looking to the statute's plain language." Mallory v. Brigham Young Univ., 2014 UT 27, ¶ 13, 332 P.3d 922 (quotation simplified). In so doing, "we assume the legislature used each term advisedly and in accordance with its ordinary meaning."