News & Insight-a Blog

Release For One Defendant But Not All

Travis Law Office — Thu, 11 Apr 2013 05:00:00 GMT

I need to preserve a defendant in a case where I am settling with two of the defendants.Do you have some release language to do that?
Answer:You just need to sign a release naming the defendants you mean to settle with and dismiss with prejudice as to those defendants only. This will keep your claim open as to other, unnamed defendants or tort-feasors. Moss v. City of Oklahoma City,1966 OK 2, 410 P.2d 52, holds that unnamed tort-feasors are not released, even if the release says something like "and all other persons." You also need to be careful you don't release someone principally liable, meaning to keep open your claim as to someone secondarily liable, such as releasing an agent and then trying to pursue the principal (Barsh v. Mullins, 1959 OK 2, 338 P.2d 845;Mid-Continent Pipeline Co. v. Crauthers, 1954 OK 61, 267 P.2d 568) or release the primary tort-feasor and try to pursue someone statutorily jointly and severally liable (Burke v. Webb Boats, Inc., and Arrowhead, 2001 OK 83, 37 P.3d 811).

Probate Needed in Death of Minor?

Travis Law Office — Thu, 04 Apr 2013 05:00:00 GMT

I represent the parents of child killed in a car wreck. The liability carrier has tendered limits. Do I have to file a probate and have a parent appointed "Personal Representative" for the minor's estate?

Answer:You should not have to. The wrongful death action which you are settling is provided in 12 O.S. Sec. 1053. 12 O.S. Sec. 1054 provides: "In all cases where the residence of the party whose death has been caused as set forth in the preceding section of this articleis at the time of his death in any other state or territory, or when, being a resident of this state, no personal representative is or has been appointed, the action provided in the said section may be brought by the widow, or where there is no widow, by the next of kin of such deceased. The parents of the child will be the next-of-kin and can bring the action.

Which SOL applies?

Travis Law Office — Thu, 28 Mar 2013 05:00:00 GMT

Client terminated in March 2011 for alleged violation of Oklahoma Drug Testing Act. In March 2011, the Act allowed for civil actions for violations of the Act filed with 2 years of termination. 40 OS 563. This would give client until March 2013 to file suit. In November 2011, the Act changed to only 1 year SOL. This would give client until March 2012 to file suit.

So which SOL applies??? Since the cause of action arose BEFORE the Nov 2011 change, should client get to use the previous substantive law??

Answer: The statute of limitations in force when the right accrued applies so he has until March, 2013. See: Resolution Trust Corp. v. Wright, 868 F.Supp 301, 303-305: "A "vested" right may be created by either common law or by statute. See Oklahoma Water Resources Board v. Central Oklahoma Master Conservancy District,464 P.2d 748, 755 (Okla.1968). "Once created, it becomes absolute, and is protected from legislative invasion by Art. 5, Secs. 52and54 of our Constitution."Id.The Oklahoma Supreme Court has stated, "As a general rule,*305the accrual of a cause of action means the right to institute and maintain a suit, and whenever one person may sue another a cause of action has accrued ..."Cowart v. Piper Aircraft Corp.,665 P.2d 315, 318 (Okla.1983).See also Hammons v. Muskogee Medical Center Authority,697 P.2d 539 (Okla.1985). The time of accrual is determined by when the plaintiff could first maintain suit. Cowart,665 P.2d at 318.The failure to exercise an accrued right before its repeal or amendment by statute in no way affects or lessens the right. Hammons, 697 P.2d at 542.A legislature may only extinguish the accrued right prospectively.Ricks,695 P.2d at 504."

Minor's Cause of Action Against Liquor Store

Travis Law Office — Thu, 21 Mar 2013 05:00:00 GMT

Have you handled a case where there was a tort-based allegation that a liquor store (not beer/convenience) sold to a minor resulting in injuries to the minor buyer? Do you know of any authority for extending dram shop liability to a liquor store? I have a liquor store licensee claiming that there is no vicarious liability for acts of licensee's employee. I haven't found any case law on it. If I'm going to make new law, would at least like to know that's what I'm dealing with. All the authority I've found is either for convenience store beer sales or on-premises restaurants/clubs/bars. It makes no sense to me that our public policy would hold beer and restaurant sales to a higher standard than liquor stores, but the statutes do draw a difference and the defendant is relying on that to say there is no dram shop liability here.

Answer: I would cite to them Ada-Konawa Bridge Co. v. Cargo, 1932 OK 790, 21 P.2d 1: Toll-taker on toll bridge in scope of agency where he shot driver trying to cross toll bridge without paying. Rodebush v. Okla. Nursing Homes, Ltd.,1993 OK 160, 867 P.2d 1241: Employer liable for nursing home attendant who slapped patient.
While the Oklahoma cases above don't use the term, it seems to me they indicate Oklahoma follows the "motivation to serve" test, which says so long as the employee perceived what he was doing was in the interest of the employer, he is within the course and scope. See:Doe v. Samaritan Counseling Center, 791 P.2d 344 (Alaska 1990): Therapist having sex with patient was in scope of employment with counseling center. The "motivation to serve" test is satisfied if act was incidental to legitimate work activities. Contra:Andrews v. U.S., 732 F.2d 366 (4th Cir. 1984). Contrasts MTS test with the "technical control" test, qv.
Andrews v. U.S., 732 F.2d 366, 370 (4th Cir. 1984): Adopts "technical control" test, which requires that the employee's act be committed with implied authority, acquiescence, or subsequent ratification of the employer. Accord:Hoover v. University of Chicago Hospitals, 366 N.E.2d 925 (Ill.Ct.App. 1977);Cosgrove v. Lawrence, 214 Super.Ct. 670, 520 A.2d 844 (1986), aff'd 522 A.2d 483 (1987).
There is commercial dram shop liability:Busby v. Quail Creek Golf and County Club, 1994 OK 63, 885 P.2d 1326: Vendor liable for injury to intoxicated minor illegally sold booze. However, I'm unaware of any extension of social host liability to injury to the drunk minor. The Oklahoma courts have rejected social host liability in other contexts.Troxell v. Bingham, 1989 OK CIV APP 27, 774 P.2d 1073: No social host D-S liab. where drunk guest became violent toward another guest.McGee v. Alexander, 2001 OK 800, 37 P.3d 78: Social host liability rejected as to hospital throwing a business-related party at a country club.

Denial Under Long Term Care Insurance

Travis Law Office — Fri, 15 Mar 2013 05:00:00 GMT

Claimant was heavy drinker but never any signs or treatment for addiction or alcoholism. Required long term care because of liver cirrhosis. Benefits are being denied based on an exclusion not to pay for confinements "that result from drug or alcohol addiction." Have you heard of similar issues?

Answer: I would argue that the policy language is ambiguous. While the liver damage may have resulted from use of drugs or alcohol, the “confinement” did not result from the "addiction." I suspect a court would find that ambiguous since it could be interpreted either way. See, Western World Ins. Co. v. Markel American Ins. Co., 677 F.3d 1266 (10thCir. 2012): "Even viewed in its best light,the applicability of the escape clause to an entity, like Brewer, insured under Paragraph 1 is far from clear. And in these circumstances, Oklahoma contract law tells us the tie must go to the insured. "[I]f an insurer desires to limit its liability under a policy, it must employ language that clearly and distinctly reveals its stated purpose."Spears v. Shelter Mut. Ins. Co.,73 P.3d 865, 868 (Okla.2003). If (as here) the relevant limiting policy provisions are "unclear or obscure," then the objectively reasonable expectations of a person "in the position of the insured" control.Id.Put differently, when a policy's escape hatch is less a clearly marked exit than it is a hidden trap door, the reasonable expectations of an insured who has read and become familiar with the policy language supplies the rule of decision.SeeMax True Plastering Co. v. U.S. Fid. & Guar. Co.,912 P.2d 861, 864-65 (Okla.1996)."

You might also want to look at Andres v. Oklahoma Farm Bureau Mut. Ins. Co., 2009 OK CIV APP 97, 227 P.3d 1102, 1109: "where an ambiguity is found in the policy language, or where the exclusions are obscure or technical or are hidden in complex policy language, a court must resolve the ambiguity in a manner that conforms the policy to the parties "reasonable expectations."Max True Plastering Co. v. U.S. Fid. and Guar. Co.,1996 OK 28, 912 P.2d 861.In other words, a policy or provision thereof will be construed, not by what the drafter necessarily intended, but by what a reasonable person in the position of the insured would have understood the term or policy to mean.American Econ. Ins. Co. v. Bogdahn,2004 OK 9, ¶ 9, 89 P.3d 1051, 1054.This is called the doctrine of reasonable expectations."

Named Insured exclusion to UM

Travis Law Office — Thu, 14 Mar 2013 05:00:00 GMT

Owner and listed insured is a passenger in his own vehicle with at fault girlfriend driving his car,there is apparently an exclusion from the insurance co. stating that he can not make a liability claim under his policy and he has to make a UM claim, since it is now an uninsured situation.

Answer: Look atState Farm v. Wendt, 1985 OK 75, 708 P.2d 581: Policy excluding from definition of "uninsured motor vehicle" a vehicle defined in the policy as an insured motor vehicle was void where liability coverage was excluded by a "named insured" exclusion. I believe it involves your exact fact situation. The Supreme Court says: "The United States District Court for the Western District of Oklahoma certified to this Court the following question:

"Are provisions of insurance policies excluding the named insured, residents of the insured's household and the insured motor vehicle from uninsured motorist coverage in conflict with36 O.S.1984 Supp. § 3636and therefore void where the named insured is injured by the negligent acts of an uninsured permissive user/driver of the insured vehicle?"

Certified question answered in the affirmative. Once a person is insured under an uninsured motorist policy, subsequent exclusions inserted by the insurer in the policy which dilute and impermissibly limit uninsured motorist coverage are void as violative of the public policy espoused by36 O.S.1981 § 3636."

Oklahoma's Savings Statute in Federal Court

Travis Law Office — Wed, 13 Mar 2013 05:00:00 GMT

Does Oklahoma's savings statute apply to diversity cases in federal court?

Answer: Yes. See:Grider v. USX Corp., 1993 OK 13, 847 P.2d 779, 783: Applies where first suit is in federal court, citing Edmison v. Crutsinger, 1933 OK 422, 25 P.2d 1103 and Smith v. Ogle, 1945 OK 314, 164 P.2d 992.

Survival of Loss of Consortium Claim

Travis Law Office — Tue, 12 Mar 2013 05:00:00 GMT

Do loss of consortium claims survive the death of the person making the claim for lost consortium so that their estate can make the claim?

Answer: I don't know of an Oklahoma case on the survival of a loss of consortium cause of action. I would, however, argue by analogy Clements v. ITT Hartford, 1999 OK CIV APP 6, 973 P.2d 902.That case holds that a claim for emotional distress arising from a bad faith claim survives under our survival statute, 12 O.S. 1051 as an action for "injury to the person . . . or personal estate." It seems to me a loss of consortium case would be closely analogous.
If you look to the law of other jurisdictions which have ruled on the issue, the results are mixed. 1 CJS Abatement and Revival Sec. 152 says: "While there is authority that under a survival statute consortium should be viewed as type of "personal property" interest and a claim for loss of consortium can be maintained after the plaintiff's death, there is also authority that the right to consortium or, in particular, performance of services, although denominated a property right, is a purely personal right arising from marriage and a cause of action for loss of consortium does not survive since no compensation can be given to the injured party." However, this is consistent with Clements, which says the emotional distress claim will not survive at common law but does under the Oklahoma Statute.

EMSA Filed Lien in Workers' Compensation Claim

Travis Law Office — Mon, 11 Mar 2013 05:00:00 GMT

I have a Worker's Comp/3rdparty liability case arising out of an MVA. The 3rdparty auto insurance wants to settle with the standard 1/3 to WC subroation, 1/3 to the attorney, 1/3 to client agreement. EMSA filed a lien early on but WC has paid them about half of their bill. They won't release their lien. Is there any authority stating that EMSA has to release their lien and take the WC payment as payment in full?

Answer: Your client doesn't owe the bill.Baptist Medical Center of Oklahoma, Inc. v. Aguirre, 1996 OK 133, 930 P.2d 213, 217-18:"The worker's statutory right to be relieved from the costs of medical treatment for a compensable injury is accommodated not so much by jurisdictional boundaries that separate the cognizance of the district court from that of the compensation tribunal as it is by the distinct concepts of legal obligation owed by the employer, the insurer and the worker. The interplay of these divergent liabilities is governed by the WC Act.Section 14of the Act makes the employer responsible for the injury-related medical treatment of a covered employee.The employer's liability extends to those claims for necessary medical services which have been presented and allowed by the WC court. Until the trial tribunal has ruled otherwise, the primary obligation of the employer is fully co-extensive with that of the injured worker. Before the WC court has either imposed upon orabsolvedthe employer from liability, the worker is to be regarded as immune from individual accountability that would be imposable in the district court for self-procured health care expense arising from treatment of a compensable injury."
See also Thomas v. Okla. Orthopedic & Arthritis Foundation, Inc., 1995 OK 47, 903 P.2d 279, 286: "If a worker is injured by reason of a job-related accident, reimbursement for reasonable and necessary medical treatment may be awarded to the worker.The right to recover charges for medical care provided for personal injuries arising out of and in the course of covered employment lies solely within the Workers' Compensation Court."
The ambulance lien does not attach to the bill covered by Workers' Comp. The ambulance lien statute, 85 O.S. Sec. 49, provides: "The lien shall not be applied or considered valid against any claim for amounts due pursuant to the provisions of Title 85 of the Oklahoma Statutes."
If the ambulance service won't release the lien, sue them for a construction of the lien and that it does not apply to your third-party case. You should get an attorney fee in that suit. See: Luetkemeyer v. Magnusson, 2007 OK CIV APP 45, 162 P.3d 970: Physician liable for patient's attorney fee in removing lien as improper.

UM subrogation

Travis Law Office — Thu, 07 Mar 2013 06:00:00 GMT

I've got a motor vehicle accident case where we obtained the tortfeasor's policy limits and the underinsured motorist ins. co.'s policy limits. Both policies were minimal. Client had health insurance, and a subrogated company is wanting reimbursement. I know they can seek reimbursement as to the tortfeasor's policy, but, can the health insurance subrogate against the UM?

Answer: Yes. SeeProvident Life & Accid. Ins. Co. v. Ridenour, 1992 OK CIV APP 93, 838 P.2d 530 andReeds v. the Honorable Thomas S. Walker,2006 OK 43, 157 P.3d 100. I believeProvidentis actually subsumed by and modified byWalker.
The bottom line is that, assuming the subrogation language of the health policy is worded to permit it, the health insurance can be subrogated against a UM recovery. Even if the subrogation provision is worded broadly enough, though you may have a chance to avoid it by applying the "make whole" rule (as to which see:Equity Fire and Cas. Co. v. Youngblood, 1996 OK 123, 927 P.2d 572), if it is not an ERISA plan which negatives the make whole rule. If it is an ERISA plan, then ERISA preemption controls over the state law.

Paid v. Incurred medical bills

Travis Law Office — Thu, 28 Feb 2013 06:00:00 GMT

In a case filed after Nov 1, 2011 we are claiming that Plaintiff is entitled to include INCURRED medical bills. Defendant claims we only get PAID bills. The Judge has set the matter for hearing. He invited us to submit briefs about "constitutionality or otherwise" of 12 OS 3009.1. I am looking for some authority which might help us convince the Court to allow INCURRED bills to be considered by the jury rather than just paid.

Answer: I don't know that you will do any good attacking constitutionality of the "paid v. incurred" statute. However, if your claim arose before November 1, 2011, you have a good chance that the statute can't be applied to your case without violating the constitution. The issue will be whether the change is substantive (in which case it probably can't be) or procedural (in which case it can). It seems to me it is a pretty substantive change.

Even if it is constitutional, it may not hurt you. This is so because an error in the statute makes it apply only if the defendant is able to produce a written statement by each health care provider that the health care provider agrees to accept the reduced amount in full payment. That may be hard for them to do.

Liability Question

Travis Law Office — Thu, 21 Feb 2013 06:00:00 GMT

Defendant is a permissive user of the vehicle involved in the collision. Insurer for vehicle has tendered limits. Will Defendant be covered under his parent's liability policy as a resident household member, if he is not a named insured?

Answer: Yes.

Jurors insured by Defendant

Travis Law Office — Thu, 14 Feb 2013 06:00:00 GMT

In a bad faith case, should the Court remove jurors for cause that are members, insured by and thus part owners of the mutual insurance company that is the defendant?

Answer: The court should remove the juror for cause. Take a look at Rogers v. Dickerson, 1937 OK 97, 71 P.2d 729, 731: The ninth proposition complains of the court permitting attorney for plaintiff to inquire in the voir dire if the jurors were interested in insurance companies that wrote liability insurance. The rule of law: "In a suit for personal injuries, after the jury has been sworn and placed in the jury box, no references should be made to whether or not the defendant carried insurance, and if such references are made, it is reversible error, although the trial court instructs the jury not to consider the same," quoted by plaintiff is entirely correct, but this rule of law does not prohibit a party to an action from inquiring on voir dire into the interests that a juror may have in the particular case. In the case at bar this court is of the opinion that such a question was proper for the protection of his client and yet did not give the jury notice that the defendant was protected with insurance, for the reason that had the jurors been interested in an insurance company that carried liability insurance for the defendant at that time they would have had a monetary interest in the case and would not have been qualified as jurors. See 35 C. J. 314, § 326, and notes;Putnam v. Pacific Monthly Co., 68 Or. 36, 130 P. 986, 136 P. 835, 45 L.R.A.(N.S.) 338, L.R.A. 1915F, 782, Ann.Cas. 1915C, 256; andLouis Pizitz Dry Goods Co. v. Cusimano, 206 Ala. 689, 91 So. 779;Harris v. Elliott (Okl.Sup.) 61 P.(2d) 1089;andGreen Const. Co. v. Lampe, 174 Okl. 351, 50 P.(2d) 286.

There's a good annotation on the subject at 9 A.L.R.5th102 "Prospective juror's connection with insurance company as a ground for challenge for cause."

Rear-End Collision with Stolen Police Vehicle

Travis Law Office — Thu, 07 Feb 2013 06:00:00 GMT

I have been contacted by a family whose 18 year old daughter was injured when her vehicle was struck from behind at a high rate of speed on October 21, 2012. The catch is – the defendant was driving a stolen police car. Apparently, the police officer left his vehicle running while it was parked, allowing it to be stolen. The accident occurred during the high speed chase. Of course, the City Attorney sent a letter to the family denying the claim based on the fact vehicle was stolen. However, being unfamiliar with applicable state law, would liability lie for the officer’s conduct?

Answer: You may be able to make this one. See: Cruz v. Middlekauff Lincoln-Mercury, Inc., 909 P.2d 1252 (Utah 1996). Here’s the conclusion by the court: "A vehicle owner ordinarily is not liable to third parties injured by the negligent driving of a thief, even if the owner leaves the key in the vehicle's ignition. However, this is allegedly not a typical key-in-ignition case. Special circumstances are alleged that, if true, may have put Middlekauff on notice that its cars were targeted by thieves; yet it continued its key-in-ignition policy and other loose practices. Once the car was stolen, it may have been foreseeable that it would be operated in a manner hazardous to the public. Middlekauff's burden of securing the keys to its parked vehicles was slight, especially when compared to the severe damages which might-and here did-result from the theft of one of them.”

DWOP and Cap Question

Travis Law Office — Mon, 24 Dec 2012 06:00:00 GMT

If I dismiss a pre-damage cap case and refile is the cap triggered?

Answer: On its face, the statute applies to any case filed on or after the effective date, November 1, 2011. However, that causes a significant constitutional program since a statutory amendment generally cannot be applied to a cause of action in existence when it becomes effective. In any event, the statute is almost certainly unconstitutional. That having beensaid, if the question is, should you dismiss and refile, the answer clearly is "no." That will just inject an issue into your case which might diminish settlement value.

Duty of Landlord to Guest of Tenant

Travis Law Office — Mon, 17 Dec 2012 06:00:00 GMT

Tenant who rents house from his Landlord has a friend over who is injured due to dangerous condition on premises. Is the friend an invitee or licensee?

Answer: Friend is an invitee. See: Sagona v. Sun Co., Inc., 2002 OK CIV APP 93, 57 P.3d 879: Wife of tenant visiting husband at office was the invitee of the landlord. (Citing earlier cases.) See also: Crane Co. v. Sears, 1934 OK 375, 35 P.2d 916 (anyone foreseeably on premises as result of tenant's occupancy is an invitee). See also: McKee v. Bowlin, 1938 OK 507, 87 P.2d 1079.

No recovery if no auto insurance?

Travis Law Office — Mon, 10 Dec 2012 06:00:00 GMT

We have an MVA where our clients were significantly injured but had recently let their auto insurance lapse due to nonpayment. Isn't there new legislation that says they can't recover since they did not have auto insurance at the time of the MVA?

Answer: What you are describing is 47 O.S. Sec. 7-116, commonly referred to as the "no pay, no play" statute. It does purport to limit recovery for anyone not in compliance with the compulsory insurance law to special damages (medical bills, property damage, lost earnings, etc.). There are some exceptions for where the tort-feasor is DUI and some probably inapplicable exceptions for where the insurance company screwed up the effort to terminate the coverage.

That said, the statute is highly likely to be held unconstitutional as in violation of the access to justice or open courts clause of the Oklahoma Constitution, Article 2, § 6:

"The courts of justice of the State shall be open to every person, and speedy and certain remedy afforded for every wrong and for every injury to person, property, or reputation; and right and justice shall be administered without sale, denial, delay, or prejudice."

It would also appear to be likely to violate the excessive fines provision of Article 2, § 9:
"Excessive bail shall not be required, nor excessive fines imposed, nor cruel or unusual punishments inflicted."

The argument would be that the statute taking away all damages except economic losses allows a "fine" up to the $350,000 limit contemplated by 23 O.S. § 61.2.

I would sure hate to see you abandon a case or take specials only in the face of all that.

Re-Arguing the MSJ on a Motion to Settle Journal Entry Inbox x

Travis Law Office — Mon, 03 Dec 2012 06:00:00 GMT

I have a case where trial court granted overruled Defendant’s motion for summary judgment and ruled for me on a matter of law nobody argued. Defendant refused to sign the order and then responded to my motion to settle with a lengthy brief arguing the court had no authority to decide the legal issue without a “counter” motion having been filed. Did the court go wrong?

Answer: There is some authority that the court can grant summary judgment to the non-moving party. See: Kannady v. City of Kiowa, 590 F.3d 1161, 1171 (10th Cir. 2010): Weight of authority is court can grant SJ to non-moving party so long as adequate notice of issue is given to moving party, citing cases. See also: Dickeson v. Quarberg, 844 F.2d 1435, 1444 (10th Cir. 1988). As for the lengthy response, My guess is that the court will consider Defendant's submittal as a Motion for New Trial or Motion to Reconsider. You recall, of course, Judge Alley's famous piece suggesting courts really don't (and shouldn't) like such motions. 62 O.B.J. No. 2, 1/12/91: Alley, Judge Wayne E., Notice to Oklahoma Lawyers: (Cites other authorities that MtoReconsider are not looked upon w/favor.

I don't know whether it's in this piece but he once wrote something like "A motion to reconsider should be titled ‘Motion for the Court to declare it was stupid.’"

Rex Travis Receives John E. Shipp Award for Ethics

Travis Law Office — Sat, 17 Nov 2012 06:00:00 GMT

Rex Travis, who recently received his OBA 50-Year pin, has practiced law with distinction in Oklahoma City for many years, and is probably best known for his continuous contributions to the body of insurance law in Oklahoma.

With the Oklahoma County Bar Association, he is a current member of the Briefcase Committee and a monthly “Quote of the Month” contributor. He is active in the Luther Bohannon Inn of Court and has served as its president. He has chaired the Bench and Bar Committee, Prepaid Legal Services Committee, and the Continuing Legal Education Committee. He has been a recipient of the OCBA’s Bobby G. Knapp Award. He served as OCBA general counsel from 1979 to 1982. He was president in 2004-2005 and was twice elected vice president, serving from 1978-1979 and again in 2002-2003.

Known as “Mr. Insurance,” he has taught classes at OCU and the OU. He also teaches every day at the courthouse, on the street and in legal publications. In fact, the list of his legal publications and articles is 10 pages long and covers scholarly writings and lectures given all over Oklahoma from 1979 to the present day.

He is always willing to serve his profession, and he makes time to do so. He exhibits sincere concern that justice is administered fairly and the law is clear. He is known for his commitment to ethics and exemplifies the type of lawyer that all members should aspire to be.

Mr. Travis is an attorney in private practice with the Travis Law Office. He is a 1962 graduate of the OU College of Law.

Originally posted at amokbar.org.

Auto Insurance for Minors of Divorced Parents

Sharon Coleman — Mon, 05 Nov 2012 06:00:00 GMT

For automobile insurance purposes, do children(unemancipated minors) of divorced parents have dual residences? And if so, has any Oklahoma court determined a set of factors to examine in deciding the issue of residency?

Answer: Most cases dealing with the issue hold that a child of divorced or divorcing parents can be a member of both the household of the mother and the father. See: Snedegar v. Midwestern Indem. Co., 541 N.E.2d 90 (Ohio App. 1988): Dead child was member of divorced father’s household for auto insurance purposes, even though child spent only one or two nights a week there and used stepfather’s address for school and church. American Family Ins. Co. v. Thiem, 503 N.W.2d 789 (Minn. 1993): Child of divorced parents could be member of household of both where he maintained extensive contact w/both.

There is a good ALR annotation at 93 ALR3d 420 entitled “Who is amember of same household or family as named insured. It contains Sec. 66[a] “Child living with named insured’s former spouse or spouse having separate residence – Held ‘resident or member.’"

Unfortunately, I don’t think we have a published Oklahoma case on the subject.

47 OS 7-116 No Pay No Play and Inoperable Vehicle Question

Sharon Coleman — Mon, 29 Oct 2012 05:00:00 GMT

I have a client who was borrowing a friend's vehicle and was in a motor vehicle accident that was not her fault. The friend's vehicle had compulsory liability insurance. My client owned a vehicle that had become inoperable and was parked indefinitely. Client had no insurance on their own vehicle because they saw no reason to spend money to insure an inoperable vehicle. Under these circumstances would 47 OS 7-116 affect my client's right to a full recovery?

Answer: I sure wouldn't think so. The statute purports to limit the damages recoverable only "if the plaintiff or claimant is not in compliance with the Compulsory Insurance Law," Your client has complied with the compulsory insurance law because the vehicle she was driving was covered and that coverage attaches to her. It appears to me you also have a good argument that she wasn't required to have her vehicle covered because it is disabled and not being used on public roads but I don't think you will ever get to that issue.

I assume you are also aware the statute is highly likely to be unconstitutional as an invalid restriction on access to the courts.

Res Ipsa

Sharon Coleman — Mon, 22 Oct 2012 05:00:00 GMT

I have a case where the defendant simply went across the center line and hit my client head on and the defendant is refusing to admit liability. I need cases for motion for summary judgment.

Answer: The case you are looking for is Garner v. Myers, 1957 OK 224, 318 P.2d 410, 413: "'The undisputed fact that the defendant's car was on the wrong side of the road established a prima facie case of negligence on the part of the defendant. The defendant then had the burden of producing evidence which would overcome the inference of negligence arising from the fact that the defendant's car was on the wrong side of the highway.'" (quoting Kempfer v. Bois, 38 N.W.2d 483,484 (Wisconsin 1949).

OBA launches website about judges on ballot via Journal Record

Sharon Coleman — Sat, 20 Oct 2012 05:00:00 GMT

OBA launches website about judges on ballot

By M. Scott Carter

OKLAHOMA CITY - In a move that could provide a counter to a new ranking system developed by the State Chamber of Oklahoma, the Oklahoma Bar Association has launched a website to give voters information about state judges who are on the Nov. 6 judicial retention ballot.

The bar association launched the site shortly after the chamber announced at a Capitol press conference that it had partnered with the Judicial Evaluation Institute of Washington, D.C., to evaluate and score members of the appellate judiciary on the expansion of civil liability.

Shortly after the announcement, OBA officials said they created the website, CourtFacts.org, to provide voters more information about the state's appellate judges. Cathy Christensen, OBA president, said voters are being bombarded with election and campaign information.

"Some interest groups may use the retention ballot to promote their own agendas," Christensen said.

"Launching this website is our opportunity to educate voters that fair and impartial judges are critical to the success of a strong legal system."

Earlier this month, State Chamber CEO and President Fred Morgan said the chamber's evaluations were needed by voters.

"We think that the public needs more information," Morgan said. "Our members have asked us to be more engaged in that evaluation and in those retention areas - they want more information. It's vitally important for all Oklahomans to have information about how these cases, which often impact everyone in our state, are decided."

Morgan said the chamber's analysis centered on the spread of civil liability.

"The spread of civil litigation affects everyone in our community, it's not just a business issue," he said. "Even the Girl Scouts and other nonprofit organization are affected by the spread of civil liability."

Christensen countered that the bar association's website was designed to provide nonbiased information.

"I trust our voters to make up their own minds," she said. "Oklahomans understand that their independence depends on judicial independence."

She said state appellate judges and justices must be free to decide cases base on state laws and the Constitution.

"This is why selection of Oklahoma justices and judges is designed to be nonpartisan; they must be able to rule independently without fear of retaliation for making a decision," Christensen said. "Our legal system is only as strong as the quality of judges who uphold it, and this website makes it clear that judges shouldn't be told how to vote, and neither should voters."

Politics, she said, should not be injected into the judicial system.

"We believe that politics doesn't have a place at all in the third branch of government," she said. "We're trying to educate the public."

Christensen said it was a coincidence that the bar association's website was launched just days after the chamber announced its plan.

"We actually began long before we were aware of any other evaluations," she said. "We began long before the chamber was doing their so-called evaluations."
Christensen said the nation's judicial system faces a growing threat from those who try to inject politics into the court system.

"There is a big threat to fair and impartial courts," she said. "But that's not how we do it here in Oklahoma. A justice should be able to render a decision in a case without fear or retaliation. Fair and impartial justice is critical to a strong and functioning democracy. Here at home, justice isn't for sale. It won't be influence or intimidated."

Life Insurance / Breach of Duty of Good Faith Question

Sharon Coleman — Mon, 15 Oct 2012 05:00:00 GMT

Insured pays life policy premiums for several years then gets so ill she is in hospital for several months and dies. Insurance company denies coverage due to policy lapsing due to non-payment (because insured couldn't make premium payment while in hospital).

Answer: Often, life insurance policies are written with a premium waiver provision which waives payment of premiums when the insured is totally disabled. You need to be sure and check and see if there was such coverage on this policy.

Federal Employee Health Benefit Act Subrogation

Sharon Coleman — Mon, 08 Oct 2012 05:00:00 GMT

Be aware that the U.S. Office of Personnel Management, which runs the Federal Employee health insurance program under the Federal Employee Health Benefit Act is trying to pull a fast one. That agency has posted on its website a letter . http://www.opm.gov/carrier/carrier_letters/2012/2012-18.pdf to the effect that federal law preempts state law with regard to subrogation of health benefits paid to or for a federal employee. The letter cites Empire Healthchoice Assur., Inc. v. McVeigh, 547 U.S. 677, 126 S.Ct. 2121, 165 L.Ed.2d 131 (2006) as saying "it is plausible to construe subrogation and reimbursement contract terms as a condition or limitation on benefits received by a Federal employee, allowing these FEHB Program contract requirements to preempt state law . . . ."

The letter then cites several District and Court of Appeal opinions to support it. However, The 2006 Supreme Court case to which the letter refers holds exactly the opposite. After suggesting it might be plausible to put the interpretation that state subrogation law is preempted, the Court holds that subrogation of FEHBA is not preempted: " 126 S.Ct. 2121, 2136.

This often come up when the issue is whether the Oklahoma "make whole" rule applies. The particular case which called this to my attention was one in which there was a small liability policy ($25,000) and some $17,000 in unpaid medical bills when the FEHBA plan sought to recover all of the liability money for its subrogation claim, leaving the federal employee owing the remaining bills. It's almost as if the agency is saying "We don't care what the Supreme Court rules, we're going to use our own interpretation. Don't let them do that to your client.

Fees Recoverable Following Rule 68 Offer

Sharon Coleman — Mon, 01 Oct 2012 05:00:00 GMT

Am I correct that the "costs" recoverable in federal court if judgment is less than a Rule 68 offer do not include attorney fees?

Answer: That's correct, unless the cause of action carries an attorney fee taxable as costs. Marek v. Chesny, 473 U.S. 1, 105 S.Ct. 3012, 87 L.Ed.2d 1 (1985): Attorney fee follows judgment for less than verdict where substantive law permits attorney fee. That issue will be decided in federal court under federal law. Scottsdale Ins. Co v. Tolliver, 636 F.3d 1273 (10th Cir. 2011): 12 O.S. 1101.1 was substantive so court would apply 1101.1 instead of FRCP 68 under Erie.

Be aware of a difference in a federal court Rule 68 offer and a state court offer to confess. In federal court, if the verdict is for the defendant, it is not a verdict for less than the offer and no award is authorized under Rule 68. See: Delta Airlines, Inc. v. August, 450 U.S. 346, 352, 101 S.Ct. 1146, 1150, 67 L.Ed.2d 287 (1981).

Interesting Bad Faith UM Issue

Sharon Coleman — Wed, 26 Sep 2012 05:00:00 GMT

Client is EMT in back of ambulance when hit by tortfeasor. After settling with the tortfeasor he finds out EMSA has UM that covers employees. UM now denies coverage saying that its subrogation was destroyed by the settlement and release. Client did not know of the employer’s coverage at time of settlement and release with tortfeasor. EMSA notified its carrier of the accident and of injury to an employee but the insurance did not notify the employee of the policy benefit. They have filed an MSJ and response due shortly.

Answer: Check out Phillips v. New Hampshire Ins. Co., 263 F.3d 1215 (10th Cir. 2001). Facts are very much like yours: employee didn't know about employer's UM coverage. Tenth Circuit held the employee didn't give up the employer's UM by releasing tortfeasor because he didn't know there was UM.

Medpay and Title 12 Sec 3009.1

Sharon Coleman — Mon, 17 Sep 2012 05:00:00 GMT

MVA client has medpay which paid her medical bills. Liability adjuster contact the providers and verifies that all bills were paid by medpay. Adjuster now maintains he does not have to consider the bills per 12 O.S. section 3009.1.

Answer: I sure don't think so. If Med-pay paid the bills, it paid the face amount of the bills. For that reason, even if the statute applies and is constitutional, the "actual amounts paid" will be the amount billed and which Med-pay paid. Then there may or may not be subrogation for those bills, depending on whether the client is a named insured or household member or a permissive occupant. I think they are just not thinking this through. Incidentally, is your case one arising from a wreck before or after 11/1/12. If the wreck was before that date, the statute clearly does not apply.

No Workers' Comp Claim Filed/Medical Providers Accept Write-Offs?

Sharon Coleman — Mon, 10 Sep 2012 05:00:00 GMT

I have a client who had a car accident while on the job who won’t let me file a workers’ compensation claim. Still the comp carrier has so far paid a portion of some of the med bills. Where there is no official comp claim, does the medical provider have to accept what the WC carrier pays as full payment? I'm concerned they'll return the WC money and demand full payment from my client.

Answer: I don't think they can come after your client. Baptist Medical Center of Oklahoma, Inc. v. Aguirre, 1996 OK 133, 930 P.2d 213 holds that the District Court does not have jurisdiction over a medical bill arising from an on-the-job injury. I don't think it makes any difference whether a claim has been filed in comp court.

Judgment and Sentence as Evidence in Trial

Sharon Coleman — Fri, 07 Sep 2012 05:00:00 GMT

I have an MVA trial coming up where the defendant was convicted of felony DUI arising from the accident. I have a certified copies of the judgment and sentencing order from the criminal court wherein the defendant pled guilty and was found guilty. The defendant will not be at the trial as he hasn't been present for anything in this lawsuit. How do I get the judgment and sentence order into evidence?

Answer: It is admissible under the hearsay exceptions you have cited (12 O.S. 2803(8) and (22)). If final, it is also conclusive of the fact of DUI under Benham v. Plotner, 1990 OK 64, 795 P.2d 510: A final conviction is conclusive of the facts necessary to establish the judgment, citing Lee v. Knight, 1989 OK 50, 771 P.2d 1003: A conviction pending on appeal is admissible, but is not conclusive. Party against whom offered may offer explanatory evidence.