Answer: It does not. 47 O.S. Sec. 7-116B: The limitations provided for in subsection A of this section shall not apply: . . . 2. If the plaintiff or claimant was a passenger in a motor vehicle involved in the accident, unless the plaintiff or claimant is an owner of the vehicle;"

Also, this is highly unlikely to be held constitutional as it is surely an impermissible restriction on access to the cou

Answer: I think it will depend on what your client does for the tribe.

29 USC 1003(b)(1) provides ERISA does not include a governmental plan as defined in § 1002(32) (includes federal, state or political subdivision "or agency or instrumentality of any of the foregoing." Sec. 1002(32) provides: ". . . . The term "governmental plan" includes a plan which is established and maintained by an Indian tribal government (as defined in section 7701(a)(40) of Title 26), a subdivision of an Indian tribal government (determined in accordance with section 7871(d) of Title 26), or an agency or instrumentality of either, and all of the participants of which are employees of such entity substantially all of whose services as such an employee are in the performance of essential governmental functions but not in the performance of commercial activities (whether or not an essential government function)"

If your client works in a casino, I think it is not a "governmental plan" and ERISA probably applies.

Answer: The pizza joint will be liable under respondeat superior. It’s liability coverage will apply because of its "hired and non-owned auto" coverage which might or might not also cover the delivery guy. Either way, if you represent the injured party, there’s coverage.

Answer: The early common law rule which would have helped you, the "ignus suus" rule is no longer applied: Early common law rule that a landowner is strictly liable for fire which escapes from his land was modified by statutes (6 Anne, c.31, §6, amended by 14 Geo. 3, c.78, §86) forbidding imposition of liability, so American common law did not incorporate the early rule: 3 Harper §14.15 at 326-28 (2d Ed. 1986); Prosser & Keeton §77 at 543-44 (5th Ed. - Student Ed. 1984)

However, you probably can apply res ipsa.

See: Okmulgee Supply Corp. v. Hall, 1945 OK 157, 158 P.2d 1014, 1016: "Where, as here, the house, the materials therein stored, and the stove containing fire are shown to be under the management of defendant or its employees, and the injury and damage are such as in the ordinary course of things does not happen if those who have its management or control, use proper care, it affords reasonable evidence, in the absence of explanation by defendant, that the injury and damage arose from want of care so that the occurrence of the fire, under the circumstances set forth, raises a presumption and permits an inference that those in possession were guilty of negligence. Muskogee Elec. Traction Co. v. McIntire, 37 Okl. 684, 133 P. 213, L.R.A.1916C 351."

See also: Deweese v. Patterson UTI Drilling Co., 2010 OK 10, 229 P.3d 540: "¶ 11 Plaintiffs argue first that the court erred in its requirement of proof of a single identifiable negligent act and actor which caused the injury, because the purpose of res ipsa loquitur is to allow a jury to infer negligence from an injurious occurrence without the aid of circumstances pointing to the responsible cause. Jackson v. Oklahoma Memorial Hospital, 1995 OK 112, 909 P.2d 765, 770. Additionally, they correctly point out that the Oklahoma Pleading Code does not require a plaintiff to choose between alternate fact versions in the pursuit of a claim. Qualls v. U.S. Elevator Corp., 1993 OK 135, 863 P.2d 457, 463.

[3] ¶ 12 Plaintiffs point out that the record before the trial court is replete with competent evidence that Patterson did have exclusive control over the entire rigging-up operation and the rig components, including the one which proximately caused Donald Deweese's injury when it fell onto his bulldozer. They contend there was ample evidence before the jury from which it could conclude that Patterson had exclusive control over the instrumentality that caused the accident and that the accident arose from Patterson's want of due care.

¶ 11 Plaintiffs argue first that the court erred in its requirement of proof of a single identifiable negligent act and actor which caused the injury, because the purpose of res ipsa loquitur is to allow a jury to infer negligence from an injurious occurrence without the aid of circumstances pointing to the responsible cause. Jackson v. Oklahoma Memorial Hospital, 1995 OK 112, 909 P.2d 765, 770. Additionally, they correctly point out that the Oklahoma Pleading Code does not require a plaintiff to choose between alternate fact versions in the pursuit of a claim. Qualls v. U.S. Elevator Corp., 1993 OK 135, 863 P.2d 457, 463.

[3] ¶ 12 Plaintiffs point out that the record before the trial court is replete with competent evidence that Patterson did have exclusive control over the entire rigging-up operation and the rig components, including the one which proximately caused Donald Deweese's injury when it fell onto his bulldozer. They contend there was ample evidence before the jury from which it could conclude that Patterson had exclusive control over the instrumentality that caused the accident and that the accident arose from Patterson's want of due care."

Tags: “ignis suus” fire liability escape land “res ipsa”

Answer: While not labeled a "captain of the ship" case, I think you may be thinking of Jackson v. Oklahoma Memorial Hospital, 1995 OK 112, 909 P.2d 765. It essentially says it doesn't make any difference whether the doctor or an underling did the bad deed (a cautery burn), the doctor is liable.

Answer: There are two kinds of mortgage or loss payable clauses. Most real estate policies will have a "standard" or "union" mortgage clause. Under the terms of this clause, the mortgage holder or loss payee will be a separate insured from the named insured/mortgagor. The other is a "as interest may appear" clause which will simply provide that losses will be paid to the insured/mortgagor "as their interest may appear." The biggest difference, probably not material to your case, is that the loss is payable to the mortgagee even if the insured has in some way violated the terms of the policy so that the insurance company doesn't owe the named insured. However, you are in a little better shape if your client has a union or standard mortgage clause because of your status as a separate insured. It is as if the insurance company didn't pay the claim.
However, under either type of mortgage clause, it sounds like the insurance company breached its contract to pay your client. I think you will be able to make them pay your claim. If nothing else, the insurance company should be estopped to deny the mortgage holder's claim.
I don't know of any law on whether the loss payee has a bad faith claim but I suspect under the standard or union mortgage clause he does because it is as if it were a separate policy.

Answer: Damages in a survival action under 12 O.S. Sec. 1053 go into the estate where they pass by will or intestate succession. Wrongful death damages under 12 O.S. Sec. 1054 go to the survivors, do not pass through the estate and are not subject to debts of the estate.
If you go to my website www.travislawoffice.com and click on the tab (upper right) "Practice Tips" then under "How to & Samples" click on Sample Appl-Order for settlement of wrongful death." You will find a form for an application and order for the court to find that there is no conscious pain and that, therefore, the court determines all of the recovery should go to the survivors and not into the estate.

This seems to set up a conflict among the circuits for the U.S. Supreme Court to take up the question whether the ERISA plan can refuse to pay its proportionate share of recovery costs and leave the plan participant uncompensated.

Answer: The children remain heirs of their natural parents despite the adoption. See: Stark v. Watson, 1965 OK 191, 359 P.2d 191, 197: "There are no words or expressions in our descent and distribution statutes which, in any way, limit or prohibit an issue of a decedent from inheriting from its natural parents, even though such issue may have been adopted by another. By virtue of our descent and distribution statutes, respondent is entitled to her proportionate share of decedent's estate. The law grants her this right to inherit and there being no other law limiting or prohibiting her from inheriting by reason of her adoption, her right to inherit remains."

Answer: Sue and serve the kid (I assume since he was driving he's over 15) per 12 O.S. Sec. 2004(c)(1): "c. Service shall be made as follows:
(1) upon an individual other than an infant who is less than fifteen (15) years of age or an incompetent person, by delivering a copy of the summons and of the petition personally or by leaving copies thereof at the person's dwelling house or usual place of abode with some person then residing therein who is fifteen (15) years of age or older or by delivering a copy of the summons and of the petition to an agent authorized by appointment or by law to receive service of process,"
If he's under 15, you have to serve the parent.

Then file a motion to appoint a guardian ad litem to defend him per 12 O.S. Sec. 2017(C): "The court shall appoint a guardian ad litem for an infant or incompetent person not otherwise represented in an action or shall make such other order as it deems proper for the protection of the infant or incompetent person."

Answer: You have to prove that the animal is out of its pasture through negligence of its owner or keeper. See:

• Rouk v. Halford, 1970 OK 195, 475 P.2d 814: Fact that horse was loose on highway gave rise to no interference of negligence, but P. vehicle operator had to prove D. negligent in letting the horse out. Citing Champlin Refining Co. v. Cooper, 184 Okl. 153, 86 P.2d 61 (1939): Proof D's. children left gate open not sufficient.

• Accord as to Statite (4 O.S. 1965 Supp. §98) as amended - Shuck v. Cook, 1972 OK 25, 494 P.2d 306

• Carver v. Ford, 1979 OK 26, 591 P.2d 305: No presumption of negligence from fact animal is out. If owner negligently or intentionally permits animal to run loose, owner is liable. "...if the owner proves" animal was out due to no fault of owner, owner is not liable for trespass unless covered by statute.

• Kelley v. Barrett, 1995 OK 55, 897 P.2d 289: Circumstantial evidence sufficient to get past summary judgment where neighbors testified fences in poor repair and horses out before.

Answer: I’m not sure suing the John Doe defendant protects the statute of limitations. The problem is you must have given notice to the correct defendant within the Statute of limitation but just misnamed them. Unless you have some way of showing that the John Doe corporation you ultimately identify had notice of the suit within the SOL, I don't think it does you any good.
Attached is a pretty comprehensive brief on the relation back issue. At the time it was written, the courts were paying a lot of attention to whose fault it was that the defendant was misnamed. The U.S. Supreme Court has since changed that in Krupski v. Costa Crociere S. p. A., 560 U.S. _, 130 S.Ct. 2485, 2490, 177 L.Ed.2d 48 (2010) where the Court said: "We hold that relation back under Rule 15(c)(1)(C) depends on what the party to be added knew or should have known, not on the amending party's knowledge or its timeliness in seeking to amend the pleading."

Answer: Check out these cases:

Chambers v. Walker, 1982 OK 128, 653 P.2d 931, prohibits offset or credit against the insured's own UM policy for workers' compensation benefits, despite a policy provision to that effect. Bill Hodges Truck Company v. Humphrey, 1984 OK CIV APP 55, 704 P.2d 94. prohibits the converse: an offset of UM benefits paid under the worker's own policy against a workers' compensation recovery. Torres v. Kansas City Fire and Marine Ins. Co., 1993 OK 32, 849 P.2d 407, and Dennis v. Harding Glass Co., 1996 OK CIV APP 105, 929 P.2d 301. prohibit an employer and workers' compensation carrier from offsetting against workers' compensation benefits UM coverage payable under the employer's car policy.

Answer: This may help you: N.C. Corff Partnership, Ltd. v. OXY USA, Inc., 1996 OK CIV APP 92, 929 P.2d 288, 293: "The statute of limitations applicable to nuisance claims in Oklahoma is two years. To the extent damages caused by a nuisance are temporary in nature-i.e., damages reasonably capable of abatement-they will be held not permanent and the statute will not begin to run until injury is suffered. See Elk City v. Rice, 286 P.2d 275 (Okla.1955); City of Ardmore v. Orr, 35 Okla. 305, 129 P. 867 (1913); Haenchen v. Sand Products Co., 626 P.2d 332 (Okla.Ct.App.1981). Recoverable damages are limited to the two years immediately preceding the filing of the action, however. If the nuisance is not abatable (i.e., is permanent), then the statute begins to run at such time as it becomes obvious and apparent that the land in question has been permanently damaged. See Skelly Oil Co. v. Humphrey, 195 Okla. 384, 158 P.2d 175 (1945); Shell Oil Co. v. Vanderslice, 192 Okla. 690, 138 P.2d 841 (1943)."

To the same effect see Moneypenney v. Dawson, 2006 OK 53, 141 P.3d 549.

Answer: In state court, it's not necessary to prove the bills reasonable, necessary, etc. See: 12 O.S. Sec. 3009: "Upon the trial of any civil case involving injury, disease or disability, the patient, a member of the patient's family or any other person responsible for the care of the patient, shall be a competent witness to identify doctor bills, hospital bills, ambulance service bills, drug bills and similar bills for expenses incurred in the treatment of the patient upon a showing by the witness that such bills were received from a licensed practicing physician, hospital, ambulance service, pharmacy, drug store, or supplier of therapeutic or orthopedic devices, and that such expenses were incurred in connection with the treatment of the injury, disease or disability involved in the subject of litigation at trial. Such items of evidence need not be identified by the person who submits the bill, and it shall not be necessary for an expert witness to testify that the charges were reasonable and necessary."

However, I do try to get the treating doctor to say the medical bills are reasonable, etc.

Answer: I don't do real estate practice but you might want to talk to or have your friend talk to a real estate lawyer about this before doing it. The problem is with 16 O.S. Sec. 11A: "All contracts for deed for purchase and sale of real property made for the purpose or with the intention of receiving the payment of money and made for the purpose of establishing an immediate and continuing right of possession of the described real property, whether such instruments be from the debtor to the creditor or from the debtor to some third person in trust for the creditor, shall to that extent be deemed and held mortgages, and shall be subject to the same rules of foreclosure and to the same regulations, restraints and forms as are prescribed in relation to mortgages. No foreclosure shall be initiated, nor shall the court allow such proceedings, unless the documents have been filed of record in the county clerk's office, and mortgage tax paid thereon, in the amount required for regular mortgage transactions. Provided, however, mutual help and occupancy agreements executed by an Indian housing authority created pursuant to Section 1057 of Title 63 of the Oklahoma Statutes shall not be considered to be mortgages or contracts for deed under the provisions of this section."

These "lease to own" deals look a lot like a contract for deed. There is a great deal of difficulty in figuring out how you get out from under one of those. It's a mortgage yet you don't have the usual provisions of a mortgage if you have to "foreclose" it, i.e., terminate it. I'd be concerned your friend (if he's the lessor/seller will screw up the title).

Answer: Generally, they get 3 among them, unless they can make a specific showing their interests are adverse. Anno. 32 A.L.R.3rd 747: No. of challenges allowable in civil cases where more than 2 parties are involved. Citing OK cases: M&D Motor Freight Lines v. Kelley, 1948 OK 128, 202 P.2d 215; Albina Engine & Machine Works, Inc. v. Abel, 305 F.2d 77 (10th Cir. 1962). Where interests of multiple parties identical, only one challenge allowed. Thompson v. Presbyterian Hosp. Inc., 1982 OK 87, 652 P.2d 260, 266-8: Error to grant multiple challenges absent showing of actual, as opposed to potential conflict among defendants.

Answer: I'm afraid not. See: County of Sacramento v. Lewis, 523 U.S. 833, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998): "Parents of motorcycle passenger killed in high-speed police chase of motorcyclist brought § 1983 claim against county, sheriff's department, and deputy, alleging deprivation of passenger's substantive due process right to life. The United States District Court for the Eastern District of California, Garland E. Burrell, Jr., J., granted summary judgment for defendants, and the Court of Appeals, Pregerson, J., 98 F.3d 434, reversed as to deputy. On writ of certiorari, the Supreme Court, Justice Souter, held that: (1) Fourth Amendment reasonableness standard did not apply; (2) high-speed police chases with no intent to harm suspects physically do not give rise to liability under Fourteenth Amendment; and (3) allegation that pursuit was undertaken with deliberate indifference to passenger's survival was insufficient to state substantive due process claim."

You may, however, have a shot at a tort claim act case. See: State ex rel Oklahoma Dept. Of Public Safety v. Gurich, 2010 OK 56, 238 P.3d 1: Standard for whether highway patrolman breached duty to others on road is "reckless disregard for the safety of others.

Answer: As I read 40 O.S. Sec. 600.7E, both the leasing company (which the statute calls a PEO) and the leasing company’s client or customer are employers and protected by the exclusive remedy: “E. Workers' compensation. Both client and the PEO shall be considered the employer for the purpose of coverage under the Workers' Compensation Act [FN1] and both the PEO and its client shall be entitled to protection of the exclusive remedy provision of the Workers' Compensation Act irrespective of which coemployer obtains such workers' compensation coverage.”

Answer: Yes. See: Benham v. Plotner, 795 P.2d 510 (Okla. 1990): A final conviction is conclusive of the facts necessary to establish the judgment, citing Lee v. Knight, 771 P.2d 1003 (Okla. 1989). A conviction pending on appeal is admissible, but is not conclusive. Party against whom offered may offer explanatory evidence. The conviction makes it a slam dunk on liability.

Answer: I think the vehicle is, indeed, uninsured to the extent of the $50,000 self insured retention, although there is not an Oklahoma case directly addressing this. It seems to me that, to the extent there is no coverage for the first $50,000, the adverse motorist is uninsured to that extent. Also, if the liability policy is an Oklahoma policy, I wonder if there is not statutory coverage for the first $25,000.

Answer: Look at Creamer v. Bucy, 1985 OK CIV APP 19, 700 P.2d 668, 670: Rule contractor's liab. terminates on acceptance by contractee does not apply where contractor willfully creates a condition he knew, or should have known, to be immediately and certainly dangerous to persons other than contractee, who will be exposed to danger. Contractor left cable TV coaxial cable on top of sidewalk in expansion joint; see also: Schlender v. Andy Jansen Co., 1962 OK 156, 380 P.2d 523: rule does not apply where defect in construction is latent.

Answer: In addition to Ada-Konawa Bridge Co. v. Cargo, see: Rodebush v. Okla. Nursing Homes, Ltd.,1993 OK 160, 867 P.2d 1241: Employer liable for nursing home attendant who slapped patient.

It appears to me these two cases adopt, without using the term, the "motivation to serve" test. This is as contrasted to the "technical control" test. See, for example, 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. As to technical control test, see: 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).

Answer: Here are your cases:
Automobiles - Agency - Presumption Driver is Owner's Agent

Norton v. Harmon, 1942 OK 391, 133 P.2d 206, 209-10: Recognizes presumption; accord: Stumpf v. Montgomery, 1924 OK 360, 226 Pac. 65; Hintergardt v. Operators, Inc., 940 F.2d 1386 (10th Cir. 1991): Owner may rebut presumption by preponderance of evidence; accord: Pollard v. Grimes, 1949 OK 225, 210 P.2d 778, 781.

There's a related presumption of permissive use which other states recognize, but I'm unaware of an Oklahoma case on it. See McKirchy v. Ness, 256 Iowa 744, 128 N.W.2d 910, 911 (1964): Driver is presumed to have permission to drive the car. Accord: Fout v. Dietz, 401 Mich. 403, 258 N.W.2d 53, 54 (1977); contra.: State Farm Mut. Auto Ins. Co. v. Eakins, 748 So.2d 765 (Miss. 1999); Marquez v. Enterprise Rent-A-Car, 53 CalApp.4th 319, 61 Cal.Rptr.2d 557, 558 (1997), Washington v. State Farm Mut. Auto. Ins. Co., 709 So.2d 360, 362 (La.Ct.App. 1998

Answer: Read In re Burnett, 447 B.R. 634 (Bkrtcy W.D. OK 2011). That case holds the subrogation claim was not valid against a settlement but only because the bills for which the health insurance company sought subrogation were incurred and paid "post-petition" (ie, after the bankruptcy was filed). It sure talks as if the subrogation would have been upheld if the subrogation claim preceded the bankruptcy, which I think is your situation.

Answer: I think you are OK with regard to the limitation on time to sue. See 36 O.S. Sec. 3617: “No policy delivered or issued for delivery in Oklahoma and covering a subject of insurance resident, located, or to be performed in Oklahoma, shall contain any condition, stipulation or agreement (1) requiring such policy to be construed according to the laws of any other state or country, except as necessary to meet the requirements of the motor vehicle financial responsibility laws or compulsory disability benefit laws of such other state or country, or (2) preventing the bringing of an action against any such insurer for more than six (6) months after the cause of action accrues, or (3) limiting the time within which an action may be brought to a period of less than two (2) years from the time the cause of action accrues in connection with all insurances other than property and marine and transportation insurances; in property and marine and transportation policies such time shall not be limited to less than one (1) year from the date of occurrence of the event resulting in the loss. Any such condition, stipulation or agreement shall be void, but such voidance shall not affect the validity of the other provisions of the policy.”

Answer: The majority rule of recent cases around the country is that the "innocent co-insured" can recover but the current Oklahoma law is to the contrary.

For the old rule, see: 45 C.J.S. Insurance §822: Where prop. is jointly owned or there is a joint obligation on the part of the owners to save and preserve the property, an innocent owner cannot recover on the policy, where a co-owner willfully set the property on fire. Key # Ins. 429. See to same effect, 5 Appleman §3113, p.391, n.60. Accord: California Ins. Co. v. Allen, 235 F.2d 178 (5th Cir. TX 1956), citing Bridges v. Commercial Standard, 252 S.W.2d 511.

For the Oklahoma cases, See: Kiddie V. Great Southwest Fire Ins. Co., 1979 OK 141, 601 P.2d 740: Where H was sole named insured and owned property prior to marriage and W's interest in property was that divorce court gave her an interest in the insurance proceeds, she was not a "joint owner" so as to raise the question.

Short v. Okla. Farmers Union, 1980 ok 155, 619 P.2d 588: W barred by H's arson where property jointly owned and both were co-insureds.

For a lot of other jurisdiction cases, see: Anno. 64 A.L.R.4th 714 "Theft and vandalism insurance: coinsured's misconduct as barring innocent coinsured's right to recovery on policy."

This is an issue which really needs to be taken up to the Oklahoma Supreme Court to see if we can get the old rule reversed.

Answer: Read: Holmes v. MKTRR Co., 1978 OK 6, 574 P.2d 297: Error to grant summary judgment for Defendant where evidence indicates release entered into contemplated full recovery, while fact was injuries were permanent and serious.

Campbell, James K., Torts: Avoidance of Releases of Liability for Personal Injury, 49 OBJ 882 (1978)

These authorities are a bit dated but the Bar Journal article is pretty comprehensive and when brought up to date will, I think, answer your questions.

Answer: The rule is the same with regard to claims involving injury to the named insured as it is to family members. When the insurance companies exclude coverage it is usually for injury to the named insured or member of the household. Such an exclusion is invalid to the extent there is not minimum (25/50) coverage available from some source but valid to the extent there is. See: 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. Hartline v. Hartline, 2001 OK 15, 39 P.3d 765: Invalid to extent insured is denied minimum coverage from any source.