Answer: You can dismiss without prejudice without leave of court only before defendant files and answer or other responsive pleading, either in state or federal court. However, I don’t see how it benefits you to dismiss and refile. Your case will still be removable.

Be aware you may have a problem making this bad faith case. The rule is that the bad faith case must arise from the handling of the claim and not from the issuance of the policy. See: Peters v. American Income Life Ins. Co., 2003 OK CIV APP 62, 77 P.3d 1090.

Answer: I don’t know the law on your question. I always write the defendant a letter c/o their defense lawyer, the letters suggesting the best way to pay my judgment is for them to sue the insurance company for failure to settle for limits. I’ve never had one be brave enough or foolish enough to not pass it along to the insured/client. I suspect if that happened, it would help the ultimate bad faith case.

Answer: Don’t do this. Work with Tricare. Tri-Care won’t show up (it’s actually the JAG office of the service effected, followed by the U.S. Attorneys office) at the interpleader. They will, however, pursue you to the grave.

Answer: I don’t have a clear answer on this one. The statute reads like it is intended to apply to all verdicts rendered after the effective date. However, the issue certainly partakes of a lot of the characteristics of a substantive change, which would not traditionally apply to a suit already pending at the time of the effective date of the statute. I really don’t have a clear enough crystal ball to tell you what the 9 folks whose opinion counts will do with that.

Answer: Nobody really knows how most provisions of the new statute will be interpreted with regard to whether they apply to later amended cases but I think the answer will depend on whether the particular issue is procedural or substantive. If the issue is procedural, the new statute should apply. If it is substantive, the old statute likely will.

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.

Answer: Your liability insurance will cover you when you are driving a non-owned vehicle with permission (or sometimes even when you have a reasonable belief the use is with permission). This provides you liability coverage under your own policy.

Your policy may or may not also provide physical damage coverage on the rental vehicle. You just have to check the policy. Mine with USAA does cover the rental car. This means I don't have to pay the outrageous daily rate to the car rental policy. (Multiply the daily rate times 365 and you will see how outrageous it is.)

Actually, most of us need never pay the "collision damage waiver" the rental companies offer. Almost all credit card companies have a provision in their contracts that, if you rent a car with their card, they will pay any damage to the rental car not covered by insurance. The only one I have had difficulty was Discover, which had a provision in its contract that you had to first pay the damage and then Discover would reimburse you.

Be aware some low end insurance companies exclude from liability coverage where the rental vehicle exceeds a certain load capacity. I have the issue now with Allstate. However, that provision is almost certainly invalid to the extent of the compulsory insurance law limits. See for example: held invalid: Equity Mut. Ins. Co. v. Spring Valley Wholesale Nursery, Inc., 1987 OK 121, 747 P.2d 947, 951 (radius exclusion in a truck policy); Young v. Mid-Continent Cas. Co., 1987 OK 88, 743 P.2d 1084; (young driver exclusion); Nation v. State Farm Ins. Co., 1994 OK 54, 880 P.2d 877 (household resident exclusion). Gordon v. Gordon, 2002 OK 5, 41 P.3d 391 (household exclusion valid to extent claimant has minimum required coverage. Baldridge v. Kirkpatrick, 2003 OK CIV APP 9, 63 P.3d 568: Lack of notice not a defense to compulsory insurance law coverage; O’Neil v. Long, 2002 OK 63, 54 P.3d 109, 116: Use beyond scope of permission not a defense.

Answer: It is still one year after attaining majority, per 12 O.S. Sec. 96: "If a person entitled to bring an action other than for the recovery of real property, except for a penalty or forfeiture, be, at the time the cause of action accrued, under any legal disability, every such person shall be entitled to bring such action within one (1) year after such disability shall be removed, . . . [language creating shortened statute in med-mal cases, since declared unconstitutional].

Be aware the above does not apply to governmental tort claims act cases or parents claims for minor’s medical expense. See, Johns v. Wynnewood School Bd. of Ed.,1982 OK 101: 656 P.2d 248: Plf’s minority does not bar time limits of 51 O.S. §156 and Brown v. Jimerson, 1993 OK CIV App 158, 862 P.2d 91: Fact minor’s claim was not barred due to minority did not save parents’ medical bill claim.

Answer: The basis for the government’s right to recover is the Federal Medical Care Recovery Act, 42 U.S.C. Sec. 2651(a): “In any case in which the United States is authorized or required by law to furnish or pay for hospital, medical, surgical, or dental care and treatment (including prostheses and medical appliances) to a person who is injured or suffers a disease, after the effective date of this Act, under circumstances creating a tort liability upon some third person (other than or in addition to the United States and except employers of seamen treated under the provisions of section 249 of this title) to pay damages therefore, the United States shall have a right to recover (independent of the rights of the injured or diseased person) from said third person, or that person's insurer, the reasonable value of the care and treatment so furnished, to be furnished, paid for, or to be paid for and shall, as to this right be subrogated to any right or claim that the injured or diseased person, his guardian, personal representative, estate, dependents, or survivors has against such third person to the extent of the reasonable value of the care and treatment so furnished, to be furnished, paid for, or to be paid for.”

The rationale of the Ridenour case, which you cite, would indicate the FMCRA claim does not attach to a UM recovery. Provident Life & Accid. Ins. Co. v. Ridenour, 1992 OK CIV APP 93, 838 P.2d 530 (health insurance subrogation does not attach to claim against UM where subrogation refers to claims against “third party”) is diluted a great deal by Reeds v. Walker, 2006 OK 43, 157 P.3d 100 (ERISA health insurance claim does attach to UM where subrogation language refers to claims against “third party.” Court limits Ridenour to specific policy language).

Indeed, the federal courts which, for the most part have decided whether the FMCRA applies to UM have similarly split. See, for example:
Kentucky no-fault law abolishes tort liability for first $10,000 of medical recovery; therefore, Government had no right under Federal Medical Care Recovery Act to recover from alleged tort-feasor less than $10,000 Government expended in providing medical care for serviceman, notwithstanding that serviceman may have been able to pursue cause of action under state law for noneconomic injuries in excess of $10,000. U.S. v. Trammel, C.A.6 (Ky.) 1990, 899 F.2d 1483, rehearing denied. Automobiles 251.11; United States 126

United States was not entitled, under federal Medical Care Recovery Act, to proceeds of automobile accident victim's uninsured motorist benefits, for reasonable value of medical services provided to victims, where neither victim nor his insurer was liable in tort; uninsured motorist driving other vehicle was tort-feasor. Government Employees Ins. Co. v. Andujar, D.Kan.1991, 773 F.Supp. 282. United States 126

Government was not entitled to recover medical payments and life insurance benefits under automobile insurance policy pursuant to the Federal Medical Care Recovery Act; medical payments provision created unqualified contractual obligation to pay reasonable expenses incurred for necessary medical and funeral services which was in no way conditioned upon considerations of fault or tort liability, and life insurance benefit was vested in estate of decedent. Allen v. U.S., W.D.Wis.1987, 668 F.Supp. 1242. United States 126

No-fault insurance provision of M.C.L.A. § 500.3101 et seq. did not bar United States from recovering medical expenses incurred in treatment of member of armed services injured in collision in Michigan with Michigan-registered automobile, where Government's right to indemnification was based on this chapter, which provides that when United States is compelled to furnish medical services to person injured under circumstances creating tort liability on part of third person, it acquires subrogation rights against that person for the “reasonable value” of the services furnished. U.S. v. Spencley, W.D.Mich.1984, 589 F.Supp. 103.

Since Michigan No-Fault Insurance Act, M.C.L.A. § 500.3101 et seq., had abolished tort liability for government's claim against driver for medical expenses of injured seaman, insurer which issued policy to wife of seaman was not the insurer of a tort-feasor, and government could not recover under this chapter. U.S. v. Jackson, W.D.Mich.1984, 577 F.Supp. 901. United States 126

Inasmuch as United States' right to recover under this section, against those legally responsible for injuries to persons who receive medical care at government expense is predicated upon tort liability, recovery right under this chapter did not exist with respect to such injured persons, who were covered by provisions of the Michigan no-fault law, M.C.L.A. § 500.3101 et seq., which abolishes traditional tort liability principles. U.S. v. Allstate Ins. Co., W.D.Mich.1983, 573 F.Supp. 142. United States 126

Under state No-Fault Act, M.C.L.A. §§ 500.3101 et seq., seaman, who was severely injured when struck by an automobile, would have no claim against driver and, in particular, no cause of action based in tort, for recovery of medical expenses, and thus government had no claim under this chapter for medical, surgical and hospital services furnished the seaman. U.S. v. Jackson, W.D.Mich.1983, 572 F.Supp. 181, reconsideration denied 577 F.Supp. 901. United States 126

Under this chapter, Government could recover value of treatment which it furnished to serviceman only under circumstances in which third person would be liable in tort, and where Pennsylvania No-Fault Act had abolished all tort liability for types of injuries for which serviceman was treated, such services were not furnished under circumstances creating tort liability in any person and thus Government could not recover cost of such benefits from serviceman's carrier. Hohman v. U. S., E.D.Pa.1979, 470 F.Supp. 769, affirmed 628 F.2d 832. United States 126

This section establishes right of government to recover against a third party tort-feasor, and such right depends upon actual definition of “insured” in policy in question; hence, government could not recover under this section against serviceman's automobile insurer for medical care and treatment furnished serviceman as a result of an automobile accident, since insurer was not liable to serviceman or to government in tort, nor was government an “insured” under terms of policy. U. S. v. Government Emp. Ins. Co., E.D.N.C.1971, 330 F.Supp. 1097, affirmed 461 F.2d 58. United States 126

This is probably a federal law, rather than state law, issue so I would cite the federal cases above.

Answer: that used to be (under Plaster v. State Farm), but is no longer, the case. Plaster came down in 1989, but the very next legislature (1990) changed the requirement from “the named insured” to “any named insured” when referring to who needed to reject or select coverage.

Answer: A fourteen year-old would be responsible for his negligence. A child under 7 is incapable of negligence as a matter of law. Between 7 and 14, they are presumed incapable but may be shown to be responsible for their damages by proving their knowledge and capacity to know the nature and consequences of their actions. See Conner v. Houtman, 1960 OK 52, 350 P.2d 311 and Martin v. Hartford Underwriters Ins. Co., 1996 OK 55, 918 P.2d 49.

The parents are not liable for the torts of the minor except under limited circumstances. See: 76 O.S. Sec. 1.1: “Neither parent or child is answerable, as such, for the act of the other, except as otherwise specifically provided by law.”

If a motor vehicle is involved, you may be able to impose liability on the parents through 47 O.S. Sec. 6-107(B): “B. Any negligence or willful misconduct of a person under the age of eighteen (18) years when driving a motor vehicle upon a highway with the knowledge and consent of the person who signed the application for the restricted license shall be imputed to the person who has signed the application. Such person shall be jointly and severally liable with the minor for any damages caused by such negligence or willful misconduct, except as otherwise provided in subsection C of this section.”

The minor will be an insured under either the parents’ homeowners policy or motor vehicle policy as a relative residing in the household.

Also, under 23 O.S. Sec. 10 A, “[t]he state or any county, city, town, municipal corporation or school district, or any person, corporation or organization, shall be entitled to recover damages in a court of competent jurisdiction from a parent or parents of any child under the age of eighteen (18) years when the child is living with the parent or parents at the time of the act, and commits any criminal or delinquent act resulting in bodily injury to any person or damage to or larceny of any property, real, personal or mixed, belonging to the state or a county, city, town, municipal corporation, school district, person, corporation or organization. The amount of damages awarded pursuant to this subsection shall not exceed Two Thousand Five Hundred Dollars ($2,500.00).”

While there will be no coverage for the child under that statute because of the intentional nature of the act, the parents are usually covered up to the $2,500 under the parents’ homeowners coverage.

Answer: Not supposed to under 36 O.S. §941 (insurance company can’t cancel, refuse to renew or increase premium for fault-free accident).

Answer: Not without knowing the basis of the MTD. You may be interested, though, in what is sometimes called the “jerk or jolt” doctrine. See: Watson v. Pittsburgh Rys. Co., 132 A.2d 718 (Pa. Super. 1957): “We believe that the instant case falls within the exception to the general rule in that there is an extraordinary jerk, plus proof of the effect of the jerk on other passengers, plus evidence of speed, raising a question for the jury whether due care was used under the circumstances.”

Answer: If the policy term is not up, then a cancellation by the insurance company is necessary or there is coverage. The problem comes when the policy term expires and the insured doesn’t pay the premium to renew. Under these circumstances, the policy expires and there is no duty on the part of the insurance company to send a notice. There is an exception to this if you can show the insurance company in the past has accepted late payment for renewal and kept the policy in force without interruption. Under those circumstances, the insurance company may be estopped to treat the late payment as a forfeiture of the policy. If you have that circumstance, let me know and I’ll see if I can find the case law on it.

Answer: No brief and hard to say without knowing your facts. The discovery rule applies to some cases but not to others. See:

Sloan v. Canadian Valley Animal Clinic, 1085 OK CIV APP, 39, 719 P.2d 474: Discovery rule applied where P. contracted brucellosis, while working as a volunteer at D. vet clinic., S.L. ran from time she knew she had disease, not from time she became ill.

Weaver v. Casey, 1991 OK 79, 816 P.2d 1126: SOL does not begin to run until owner of stolen property knows or should know its whereabouts.

Digital Design Group, Inc. v. Information Builders, Inc., 2001 OK 21, 24 P.3d 834: Discovery rule applies to libel action. SOL begins to run only when Plaintiff knew or should have known of libel.

Lovelace v. Keohane, 1992 OK 24, 831 P.2d 624, 11 ALR5th 1061: Plaintiff’s multiple personality disorder was not legal disability tolling SOL; discovery rule did not toll SOL;

The Samuel Roberts Noble Foundation, Inc. v. Vick, 1992 OK ,140. 840 P.2d 619: SOL begins to run on a construction contract from date of completion of the project, even as to a sub-contractor, whose contract was finished earlier. Rejects discovery rule as applied to a construction contract.

Weathers v. Fulgenzi, 1994 OK 119, 884 P.2d 538: Discovery rule applies to adult sex abuse case against psychologist, but statute begins to run when patient realizes wrong and injury.

Riesigner’s Jewelers, Inc. v. Roberson, 1978 OK CIV APP 33, 582 P.2d 409 : “S. of L. as to personal property, though stolen, when held in good faith for value, openly and notoriously” is 2 years, under 12 O.S.A. §95, third, quoting syll. in Burroughs Adding Machine Co. v. Bivins-Corhn Co., 1941 OK 382, 119 P.2d 58; Overrules Burroughs.

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.

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

Answer: There will likely be an anti-stacking provision. That is a valid exclusion to medpay. See: Frank v. Allstate, 1986 OK 42, 727 P.2d 577.

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.

Answer: The statute doesn’t specify, which leaves you to the cases, which are not always consistent. If the change is substantive, it should not be applied retrospectively. If it is procedural, it does.

Answer: Yes. See: Phillips v. State Farm Mut. Auto. Ins. Co., 73 F.3d 1535 (10th Cir.): UM carrier required to pay part of insured’s attorney fees and expenses for recovering subrogation.

There is also a state court case applicable by analogy. Carter v. Wooley, 1974 OK 45, 521 P.2d 793 held (before the work comp statute required the employer to pay fees out of subrogation) that the work comp carrier had to pay its proportionate share of recovery costs to recover subrogation.

Answer: That is, of course, the general rule that substantive amendments don’t apply to causes of action which have already arisen while procedural amendments do. However, there are a lot of problems with that general rule in this bill.

 Some of the provisions (most of them, actually) don’t purport to say whether they apply to all cases, cases filed after or causes of action arising after the November 1, 2009 effective date. I think a safe rule of thumb will be that those that do not specify otherwise will apply the general rule so that substantive issues will not apply to causes of action accruing before. However, as to those where the statute purports to apply them retroactively, I think the court will likely give the statute that interpretation unless you can persuade the court doing so is unconstitutional.

As you probably know, the “biggy” capping non-economic damages does not by its terms purport to apply until some later date at which time the legislature funds an excess $20 million malpractice policy for all physicians in the state.

I have a client sued by Discover card on an account that was, by the terms of her divorce decree, the responsibility of her husband. My initial research leads me to believe that the divorce decree doesn't relieve her of her liability to Discover, and that her recourse is to seek indemnity from him. Am I right that she's still liable to Discover?

Answer: Don’t know about the effect of the divorce, but I got in one of these once and found, to my amazement, that the credit card company (not Discover) couldn’t prove the contract or the balance. Somehow these credit card companies have become so electronic that they find it very difficult to find things like paper contracts, etc. It’s not a bad tactic to just deny and put them on their proof of everything.

Filed a case against a foreign corporation but alleged damages at $75,000.00 to avoid removal. Defendant filed a “Motion to Establish Amount in Controversy” and seeks an order by the trial court “capping” damages at $75,000.00. Does the plea of damages at $75,000.00 establish a cap on damages?

Answer: The statute doesn’t provide for an order capping damages. It sounds like he’s trying to use the provisions of Sec. 13 of HB 1603 which, effective November 1, 2009, amends 12 O.S. 2009 to provide for a Motion to Clarify Damages:

What is the effective date of the recent tort deform legislation, and what are the operative caps?

Answer: The effective date of the entire act (unless otherwise provided in the specific section) is November 1, 2009. Some sections by their terms apply only to claims arising after that date. However, most sections do not provide that so we will have to have the courts decide on a section by section basis to what cases they apply.

Answer: The statute seems clear that the doctors and lawyers get paid: “F. The child support lien shall be inferior to any lien or claim for: 1. Services and expenses documented and related to the claim, such as attorney fees or health care expenses;”

Answer: It sounds like they are going to take the position the new statute does not apply to existing lawsuits. Be aware the Oklahoma Health Care Agency has sued in the Supreme Court the Governor, Speaker of the House and President Pro Tem of the Senate for an injunction, arguing the new statute is unconstitutional under the Oklahoma Constitution and in violation of federal law. I filed yesterday an application for leave to file an amicus brief in the Supreme Court. That litigation does not, however, address whether the statute applies to a pending lawsuit.

Answer: The two statutes don’t really interact at all. Section 1101 applies only to shift costs (not attorney fees, unless attorney fees are recoverable as costs in your particular type of action. Also Section 1101 does not allow for a counter-offer with the opportunity to get attorney fees from the other side in the event you get more than the counter-offer, as is provided in Section 1101.1.

I don’t think you are likely to get in trouble over a counter-offer with the UM carrier, but I suppose it is possible. If they were to take you up on your counteroffer, you’re probably stuck with that and can’t then recover against your UM carrier.

Answer: Yes, but the defendant who wants it reduced must present the evidence. See: Miller v. Union Pacific RR Co., 900 F.2d 223, 225-26 (10th Cir. 1990): Defendant asking reduction to present worth must provide evidence as to inflation or discount rate. See also: MKT v. Edwards, 361 P.2d 459, 467 (Okla. 1961): Where future damages are awarded, the present worth of the amount awarded will be considered; Bready v. Tipton, 407 P.2d 194 (Okla. 1965): Present worth rule does not apply to intangible damages, such as P & S, nor to loss of future earnings of child where no reliable evidence of earning capacity. See 3 PIADD, §3.04[8], p.206 et seq.