I have a UM case where the UM policies charge a separate premium for each policy but company says that they have a non-stackable clause. Is that valid in Oklahoma?

Answer: Here is the "Readers Digest" version from a CLE piece I wrote: The named insured or household member ("Class 1 insureds") may stack the coverage of vehicles in the household, whether those vehicles are insured under separate policies (Keel v. MFA, 1976 OK 86, 553 P.2d 153) or multiple vehicles are insured under a single policy (Richardson v. Allstate, 1980 OK 157, 619 P.2d 594, Lake v. Wright, 1982 OK 98, 657 P.2d 643). This is true where the company charges a separate premium for each vehicle insured.

Scott v. Cimarron Insurance Co., Inc., 1989 OK 26, 774 P.2d 456, holds that the insurance company may deny stacking under such policies. So far as how to tell if they are charging a per policy or per vehicle premium, the only sure fire way is to go to the State Insurance Commission and look at the rate filings to determine how the premiums are charged. What got Allstate in trouble was that they charged a "per policy" premium but then added a "multiple vehicle surcharge" if the policy insured more than one vehicle. This device caused (as John notes) about a doubling of the premium so the courts made them provide two coverages.

May an injured passenger in a single car wreck stack UM coverage under policy on mother of tortfeasor driver, who lives in the mother’s home. The passenger is not a relative or household member of the mother.

Answer: No. Persons insured only by reason of occupying an insured vehicle (called Class 2 insureds) may not stack UM coverage. This is true whether the owner's vehicles are insured under separate policies (Babcock v. Adkins, 1984 OK 84, 695 P.2d 1340) or the vehicle being occupied is one of several vehicles insured under a single policy (Rogers v. Goad, 1987 OK 59, 739 P.2d 519, Stanton v. American Mutual 1987 OK 118, 747 P.2d 945).
Under these cases, your client as a passenger in one insured car will not be an insured under the coverage of the non-involved car.

Does Medicare subrogation right attach to UM proceeds?

Answer: Yes. See: 42 U.S.C. Sec. 1396y(b)(2)(b)(III): "(iii) Action by United StatesIn order to recover payment made under this subchapter for an item or service, the United States may bring an action against any or all entities that are or were required or responsible (directly, as an insurer or self-insurer,. . . (iv) Subrogation rights
The United States shall be subrogated (to the extent of payment made under this subchapter for such an item or service) to any right under this subsection of an individual or any other entity to payment with respect to such item or service under a primary plan."

A grown son lives with his mother and is in a wreck with inadequate liability available from the adverse driver. Can he make a claim under his mother’s UM, even though his car is not on that policy?

Answer: It will depend on the language of the Mom's UM policy. See: Conner v. American Commerce Insurance, 2009 OK CIV APP 61, 216 P.3d 850: holds that a policy provision excluding from uninsured motorist (UM) coverage a named insured who is injured while occupying a vehicle he owns but which is not covered by UM coverage is a valid exclusion. See also: Morris v. America First Ins. Co., 2010 OK 35, 240 P.3d 661, confirming ruling in Conner but finding an exception where the insured in question (the son) has UM coverage under another policy.

Man dies in car wreck and is survived by common-law wife and three adult children from a previous marriage. He has UM which paid full UM benefits to common-law spouse. Was she entitled to full proceeds or are grown children also entitled to some of the UM?

Answer: Look at Forbes v. Shelter Mut. Ins. Co., 1995 OK CIV APP 113, 904 P.2d 159: In a wrongful death situation, UM benefits are to be distributed to those legally entitled to recover as defined by the wrongful death statute in accordance with each claimant's loss, despite conflicting UM policy provisions to the contrary. There, the policy provided under the "General Conditions" that benefits would be paid to the spouse. The Court of Civil Appeals held that, in spite of that provision, the UM went to all persons having a claim under 12 O.S. Sections 1053 and 1054. That would include your adult children.

Client hurt as a passenger in a car she did not own. Does she have to first use UM on vehicle she was riding in as a passenger before looking to her own UM?

Answer: No. The case on that is Mustain v. United States Fidelity and Guaranty Co., et al., 1996 OK 98, 925 P.2d 533: UM insurance is primary as between the insured and UM insurer; UM insurer’s responsibility to insured cannot be conditioned on amount of other UM coverage.

I have a guy who was given a work truck that he is allowed to keep at his home and use 24/7. He was hurt in a wreck, but was not at work or in his work truck. Does he have a claim to the UM that is on the work truck?

Answer: No. The employee is insured under the employer’s policy only when occupying the employer’s insured vehicle. It usually comes up in the context of not being able to stack other vehicle’s coverage but the rule is found in:Stanton v. American Mutual, 1987 OK 118, 747 P.2d 945;Babcock v. Adkins, 1984 OK 84, 695 P.2d 1340 andRogers v. Goad, 1987 OK 59, 739 P.2d 519.

Insured with one vehicle, insured for UM buys another vehicle and adds it to the same policy, telling agent he wants the same coverage, including UM, for the second vehicle. Agent says since you have UM, it follows you and so agent doesn't add or charge a separate premium for the new vehicle. Insured loans second vehicle to a friend (not a resident relative), who is then hit by anuninsured driver. Company denies UM claim saying there’s no UM for the Friend because there’s no UM coverage on the second car. Is this a valid denial?

Answer: This is a tough one. Your best bet might be to sue to reform the policy. If I read your facts correctly, it wouldn’t have cost anything to put the new vehicle on the UM because the policy had a “per policy” rather than a “per vehicle” premium structure. This being so, arguably it was a mistake for the agent not to put UM on the newly acquired car. There is a good argument that constructive fraud will justify reformation where to fail to do so would cause the insurance company to benefit from a mistake on the part of its agent. See: Gentry v. American Motorist Ins. Co., 1994 OK 4, 867 P.2d 468: Constructive fraud will justify reforming an insurance policy to cover a loss not otherwise covered, where the agent led the insured to believe the loss in question would be covered, even though the agent had no intent to defraud the insured.

Is a carrier that sells comprehensive policy of insurance coverage only (not liability) required to get a UM waiver?

Answer: No. Only when the carrier writes a liability policy. See: Moser v. Liberty Mut. Ins. Co., 1986 OK 78, 731 P.2d 406 and GEICO Gen. Ins. Co. v. NPIC, 2005 OK 40, 115 P.3d 856.

Insured pays 2 months of 6 month premium for UM coverage and stops paying. Later gets in wreck. Insurance company denies coverage saying it sent notice of cancellation at time. Company produces copy of a post card sent to insured and lien holder with certificate of mailing (not certified). Insured had moved an never received copy of notice. Has insurance company "proved" cancellation with notice by post card to last known address, without proof insured received notice?

Answer: The company has almost certainly sustained its burden. See:

Gilmore v. Grand Prix of Tulsa, 1963 OK 138, 383 P.2d 231: Mailing of notice of cancellation sufficient where mailed to wrong address even though it came back and company had notice of correct address.

Richardson v. Brown, 443 F.2d 926 (10th Cir. 1971): Summary judgment for insurer proper where insurer had post office receipt for cancellation notice and insured tried to rebut with affidavit of non-receipt.

Midwestern Insurance Co. v. Cathey, 1953 OK 169, 262 P.2d 434: Cancellation sufficient where notice mailed and came back to insurance company, mailing is all that is required (not receipt) stating contrary language in Great American Ins. Co. v. Deatherage, 1935 OK 1156, 52 P.2d 827 is dictum and “misleading

I represent a lady who separated from her husband and moved from California to Oklahoma. She has now lived in Oklahoma for several years but she and her husband continue to purchase insurance together through agent in California. Agent aware client lives in Oklahoma as the declarations page has her Oklahoma address listed but continues to write her a California Insurance Policy. She had a wreck in Oklahoma but the defendant is underinsured, but Farmers is claiming California UM law will apply. Not sure how California law differs but I assume it must be more favorable to Farmers. Is this a Bad Faith case for writing a policy in California where agent knows insured lives in Oklahoma?

Answer: I have a bad feeling about a bad faith case from this. I think you may have to get the policy reformed to make Oklahoma, rather than California, law apply. I doubt the Supreme Court would hold there was not at least an arguable basis for Farmers claim to apply California law. The big difference in Oklahoma and California law will be that under California law, the tort-feasor’s liability limit is deducted from the policy limit, which will severely limit and maybe eliminate your recovery. Your reformation claim will in large part be based on Gentry v. American Motorist Ins. Co., 1994 OK 4, 867 P.2d 468 (Constructive fraud will justify reforming an insurance policy to cover a loss not otherwise covered, where the agent led the insured to believe the loss in question would be covered, even though the agent had no intent to defraud the insured). You also have an argument based on estoppel under Security Ins. Co. of New Haven v. Greer, 1968 OK 3, 437 P.2d 243 (Ins. Co. estopped by agent’s knowledge of hay stored on insured property to assert policy defense based on that fact). Incidentally, the California statute of limitations on a UM claim is only one year.

If both medpay and UM are available under the policy, you can claim them both.

Answer: Yes. See: Aetna v. State Board of Prop. & Cas. Rates, 1981 OK 153, 637 P.2d 1251: Med pay offset against UM invalid. No subrogation for medical bills paid under UM

I have a case where my client was injured in auto accident on the job. Tortfeasor has limited coverage. My client has UM which says coverage may not apply due to exclusions in the policy relating to claims for bodily injury covered by WC.

Answer: You may have a bad faith case. The work comp exclusion from UM is invalid, as a matter of law. See: Bill Hodges Truck Company v. Humphrey, 1984 OK CIV APP 55, 704 P.2d 94: no UM offset against workers' compensation recovery. And Thrasher v. Act-Fast Labor Pool, Inc., 1991 OK 12, 806 P.2d 640: No subrogation of Workers' Compensation against UM; suit against UM carrier does not require filing election in Workers' Compensation Court. The insurance company should have known that.

I have a client from Florida who was in an accident in Oklahoma. Oklahoma driver didn’t have insurance and we made claim on UM. UM wants credit for med pay paid per Bohannan as credits are allowed in Florida. My argument is that Bohannan upheld Pate v. MFA Mut. Ins. Co which made set offs or credits against public policy in Oklahoma so it falls outside the Bohannan case.

Answer: You are not wrong. Bohanan v. Allstate, 1991 OK 64, 820 P.2d 787, reconciles Pate v. MFA, 1982 OK CIV APP 36, 649 P.2d 809 (Oklahoma law applies to invalidate med-pay subrogation, a result contrary to the law of Arkansas, where the policy was issued) , with Rhody v. State Farm Mut. Ins. Co., 771 F.2d 1416 (10th Cir. 1985), (Texas law applies to prevent stacking where policy was issued in Texas but loss occurred in Oklahoma) on the ground that 36 O.S. Sec. 6092 purports on its face to apply to any med-pay existing in the state (wherever issued) while the Oklahoma UM statute purports to apply only to policies issued in Oklahoma. Aetna Casualty & Surety Co., et al. v. The State Board for Property and Casualty Rates, 1981 OK 153, 637 P.2d 1251, treats subrogation and set-off the same and forbids set-off of med-pay against UM because of Sec. 6092. Your opponent is just wrong about their interpretation of Bohanan.

Do MRI and ambulance service liens attach to UM proceeds?

Answer: Under present law, MRI services outside a hospital are not covered. Ambulance service is, under 42 O.S. Sec. 49. As of November 1, 2008, however, an amendment "B" to 42 O.S. Sec. 43 will become effective extending a lien against liability (but not UM) coverage to MRI, CT, and PET imaging outside a hospital.

Does Kansas UM stack?

Answer: No. Kansas has an anti-stacking statute. KSA Sec. 40-284(d): “(d) Coverage under the policy shall be limited to the extent that the total limits available cannot exceed the highest limits of any single applicable policy, regardless of the number of policies involved, persons covered, claims made, vehicles or premiums shown on the policy or premiums paid or vehicles involved in an accident.”

Is UM carrier entitled to offset based upon payments made under medical payments coverage?

Answer: whether the insurance company is entitled to credit against the UM for the med-pay depends on whether the injured insured is a named insured/household member or a person insured only as a person occupying an insured vehicle. If the injured insured is a named insured or household member, the insurance company is not entitled to credit. If, on the other hand the injured insured is insured only as a permissive occupant, the insurance company can take the credit, assuming the policy calls for it. The basis for this rule is 36 O.S. Sec. 6092, which permits subrogation of med-pay where the injured insured is a permissive occupant but not where the injured insured is a named insured or household member. See, Aetna Cas. and Sur. Co. v. State Board of Prop. & Cas. Rates, 1981 OK 153, 637 P.2d 1251.

We have a case where the interstate trucking company causing wreck had no insurance. Can we recover from the shipper who used the illegal trucking company?

Answer: See: Hudgens, et al., v. Cook Ind., Inc., 1973 OK 145, 521 P.2d 813: Where risk of harm foreseeable, one in commercial enterprise which involves integral part of the business, selection of motor carriers, owes duty to exercise reasonable care to select a competent carrier. Citing Nat. Trailer Convey, Inc. v. Saul, 375 P.2d 922, 923 and overruling Marion Machine Foundry & Supply v. Duncan, 101 P.2d 813. One of the problems with the trucker was that it was uninsured, although that doesn’t seem to be the principal thrust of the case.

Plaster v. State Farm, 1989 OK 167, holds that a rejection of UM coverage by less than all named insureds is not a complete rejection. Client is a member of the household of two named insureds with two policies. If both named insureds did not reject the UM, can the UM of both policies be stacked?

Answer: No. In response to Plaster, the next legislature (in1990) amended subsection G of Section 3636 to change “The named insured may reject” to “A named insured may reject.”

If husband is driving and wife is injured through his fault, can wife (a named insured on their policy) recover full amount of LIABILITY policy and full amount of UIM policy as well?

Answer: She should be able to recover both. See: Heavner v. Farmers, 1983 OK 51, 663 P.2d 730 and State Farm v. Wendt, 1985 OK 75, 708 P.2d 581. If there is a household exclusion (eliminating coverage if the injured person is the named insured or member of the household) the insurance company may argue that the exclusion is invalid only to the extent there is no coverage available to the wife so that she can recover up to $25,000 from one or the other of liability or UM, but not both. See as an example of this argument Justice Opala’s concurring opinion in Nation v. State Farm Ins. Co., 1994 OK 54, 880 P.2d 877. However, the other justices did not go along and I think the insurance company has its work cut out for it selling this theory to the present court.

Client in pure uninsured motorist position after motorcycle crash has two UM policies (different companies) one on the motorcycle and the other on her car. Evaluation is below both 25K UM limits. It is my position that both UM policies must evaluate and pay from first dollar since client paid separate premiums to separate carriers. Carrier on car says its UM is excess beyond motorcycle UM (relying on "payments by 'other policies'" provision. thoughts?

Answer: The insurance companies are wrong and getting dangerously close to a bad faith case. Both are primary and cannot insist that the insured wait for them to sort out who is primary and who is excess. See: Mustain v. United States Fidelity and Guaranty Co., et al., 1996 OK 98, 925 P.2d 533 (UM insurance is primary as between the insured and UM insurer; UM insurer’s responsibility to insured cannot be conditioned on amount of other coverage.)

Mom and Dad are separated or divorced. Dad's policy includes Daughter A's car. Daughter A lives in college dorm. Daughter B lives with mom. Daughter B is riding with Daughter A, accident in which there is a claim Daughter A is partly at fault. Daughter A is a disclosed driver of the vehicle. Is there any reasonable question or argument that the UM coverage applies as to Daughter B's injuries?

Answer: There’s lots to chew on here. Daughter B’s injuries will be covered under Dad’s policy because she was insured as an occupant of that vehicle. She will also be entitled to the liability coverage of that policy because Daughter A is covered under the liability of that policy. If Dad has other cars insured, you may be able to make Daughter B an insured under his policies for UM as well as under Mom’s. She will be insured under Mom’s policies because she is clearly a household member. It is possible for children to be residents of both Mom and Dad’s households at the same time. If they are separated but not yet divorced, that will certainly be the case. Even if they are divorced, if Daughter B spends substantial time at Dad’s house, she can also be a resident of his household. There’s a whole complex of things you look at: how much time she spends at Dad’s, does she have a room there, keep clothing or other personal property there, list Dad’s address with schools, etc. For some guidance on this see: Anno. 66 A.L.R.5th 264; Widiss 2d §4.13; Schermer §27.03[1]; No-Fault & UM Ins. §24.10[2][d].

Client was injured in a collision with construction debris dropped on road by unknown vehicle. Can I collect UM money?

Answer: There is not an Oklahoma case on this, but you should be able to recover UM. A lot of states deny recovery in the “object in the road” cases. See, in this regard, Widiss, Uninsured and Underinsured Motorist Insurance, Sec. 9.6 (3) “Accidents Involving Objects Lying on the Roadway.” (I have this in my law library, if you do not otherwise have handy access to it.) However, these cases are mostly from states which uphold the validity of an “actual physical contact” requirement in the policy. Oklahoma does not, under Biggs v. State Farm, 1977 OK 135, 569 P.2d 430.