I’m have to file suit in a day or so to protect statute of limitations and have a defendant that I can’t yet identify. Does naming a John Doe defendant protect the statute of limitations?

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."

May a commercial UM policy exclude coverage for injury covered by workers' compensation?

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.

What is the statute of limitations for a public nuisance/odor issue that is a continuing harm?

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.

What is sufficient evidence to prove the amount of medical bills is reasonable or usual and customary?

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.

Does you have a lease to own agreement I can use for a friend?

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).

I’m about to try a case against two defendants and wonder how many peremptory challenges each party gets?

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.

I have a case where a felon in police chase caused wreck injuring bystander client. Could a federal civil rights claim be rightly brought against the department and/or the involved officers?

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.

Is a company that hires from a temp agency immune from suit if the temporary employee gets injured on the job?

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.”

First driver driving on suspended license when another driver runs yield sign hitting first driver. Second driver, my client, is killed. First driver is convicted of 1st degree manslaughter, a felony, because of driving under suspension. Can I succeed with civil claim against first driver?

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.

I have a case where trucking company A sold all of its assets to trucking company B, with A retaining all liabilities. Company A has $1M liability insurance with $50,000 retention/deductible. Since A doesn't have the money to pay the retention, is there a viable claim against my client's UM. In other words, as to the $50K would company A be considered uninsured/underinsured?

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.

Defendant A owned property when hazardous condition was built and approved by building inspector. Plaintiff hurt after Defendant A sold property to Defendant B. Does fact that building inspector signed off on a hazardous condition absolve the owner of liability? Is there any liability on original owner?

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.

Plaintiff is hurt by a delivery man who put heavy box on her back. Delivery company claims no respondeat superior liability claiming act outside course and scope of employment. I'm aware of the Ada-Konawa Bridge v. Cargo case, "The general rule is that a master or principal is liable for the tortious acts of his servant or agent where such acts are incidental to and one in furtherance of the business of the master or principal, and this is true, although the servant or agent acted in excess of the authority conferred upon him, or willfully or maliciously committed the wrongs," but I'm looking for something closer to point.

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).

 

 

Is there a rule that creates a presumption of agencywhen a person who owns a car permits another to drive it-either on a regular basis (like a son or a girlfriend of the owner) or on an irregular basis (say one allows a friend to borrow his car to go to the barber shop or golf course). In the case I have in mind there is no benefit derived by the owner.

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

Plaintiff injured in auto wreck has health insurance pay bills. She is later discharged in bankruptcy, listing the health insurance as a creditor. Does this extinguish their subrogation claim?

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.

Teacher employed with school district, covered under group life ins. policy, with son as beneficiary. Son was not aware of the life insurance policy. Year and a half after father’s death, son discovers policy. Insurer denies son’s claim citing 1 year, 90 day limitation on claims. Is this a valid provision?

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.”

I have a theft claim against a homeowners policy. The theft was by the estranged wife of client. I am looking for cases that state that an innocent co-insured can recover under the policy even though the policy language excludes acts by another insured.

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.

Individual quickly settled his claim pro se with tortfeasor's carrier, then discovered he really was significantly injured after all. Now wants to know if there's anything I can do for him, despite the release he signed.

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.

Named insured has friend drive his vehicle home because he has had too much to drink. Friend causes wreck. Can named insured make a liability claim on his own policy?

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.

We have a case where joint and several liability applies, but I may need to dismiss and refile later. Will I lose joint and several?

Answer: Not to worry. Senate Bill 862, which amends 23 O.S. 2010 Supp. §15, and does away with joint and several liability purports to apply only to actions that accrue after November 1, 2011. However, dismissing and refiling may get you in trouble on other of the"tort reform" statutes.

I have an injury case with damages in mid six figures. Under the new laws do I need to attach a statement of damages showing the amount I am asking for?

Answer: Your detailed statement of damages does not go in the Petition but rather in your 12 O.S. Sec. 3226 disclosures within 60 days per Sec. 3226(A)(2)(a): "a. Except in categories of proceedings specified in subparagraph b of this paragraph, or to the extent otherwise stipulated or directed by order, a party, without awaiting a discovery request, shall provide to other parties a computation of any category of damages claimed by the disclosing party, making available for inspection and copying the documents or other evidentiary material, not privileged or protected from disclosure, on which such computation is based, including materials bearing on the nature and extent of injuries suffered."

Your prayer will be for an amount in excess of federal diversity jurisdiction, you just allege that amount, per 12 O.S. Sec. 2008(A)(2): "Every pleading demanding relief for damages in money in excess of the amount required for diversity jurisdiction pursuant to Section 1332 of Title 28 of the United States Code shall, without demanding any specific amount of money, set forth only that the amount sought as damages is in excess of the amount required for diversity jurisdiction pursuant to Section 1332 of Title 28 of the United States Code, except in actions sounding in contract."

I I have attached a copy of our Petition to this blog post.

Do the 12 O.S. 3226 initial disclosures need to be filed or merely exchanged?

Answer: The language of the statute - 12 O.S. 2010 Supp. 3226(A)(2)(a) leads me to believe it is disclosed but not filed. It reads: "a. Except in categories of proceedings specified in subparagraph b of this paragraph, or to the extent otherwise stipulated or directed by order, a party, without awaiting a discovery request, shall provide to other parties a computation of any category of damages claimed by the disclosing party, making available for inspection and copying the documents or other evidentiary material, not privileged or protected from disclosure, on which such computation is based, including materials bearing on the nature and extent of injuries suffered." That’s what we do.

Client is injured in auto accident, suffers two weeks and dies. Liability tenders $100,000 limits, which is just about the amount of VA lien. Deceased leaves only three siblings and his mother, none dependent. Does VA get the whole tender?

Answer: The siblings have no claim as a matter of law. See: Clark v. Jones,1983 OK 10, 658 P.2d 1147: Siblings have no claim for loss of love, affection and companionship, under 12 O.S. 1981 §§1053 and 1055. The mother does have a claim for loss of lover and affection, etc. VA does have a claim against the whole thing under the federal medical care recovery act and will get the whole thing unless they agree to reduce.

I have a client who was beat up by an employee of a lawn service. Is the employer liable or is the employee acting outside the scope of employment.

Answer: The law in Oklahoma is surprisingly favorable to your prospective case. See, for example: 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. It appears to me Cargo and Rodebush apply the “motivation to serve” test without calling it that. As an illustration of the motivation to serve test, see Doe v. Samaritan Counseling Center, 791 P.2d 344 (Alaska 1990): Counseling center could be liable for sexual acts by counselor with a patient under the “motivation to serve” test because reasonably related to transference phenomenon in therapy. However, the Restatement 2nd of Agency, Sec. 245, might seem to explain the two Oklahoma cases just based on foreseeability that if the employee’s job is such that they should foresee the employee feeling a need to use force, there can be agency. I have sent this to you separately, via west law. Finally, there is a potential for a negligent hiring claim if the employee had a bad record for violence of which the employer should have been aware. See, for example, Mistletoe Express v. Culp, 1959 OK 250, 353 P.2d 9. Sounds like you’ve got an interesting case!

When do the new tort reform laws take effect? 

Answer: They all purport to take effect 11/1/11. Whether they actually do is a subject of an Advocate article soon to come out.

I have case with over $200,000 in medicals with liens and only $25,000 liability money available. If client files bankruptcy and gets $50,000 exemption, discharges the medical debt are the medical liens discharged along with the debt?

Answer: I'm not a bankruptcy attorney but I think the answer is found in St. John Medical Center, Inc. v. Innis, 181 Bkrcy.Rptr. 548 (N.D.Okla. 1995): Med. lien survives bankruptcy, even as to amount w/in $50,000 exemption.

Can you point me to case law to customize jury instruction when original injury caused by tortfeasor caused a second injury?

Answer: You might look at Day v. Waffle House, Inc., 1987 OK CIV APP 67, 743 P.2d 1111: Driver, taking friend to hospital from restaurant, where friend swallowed glass in food, had cause of action under rescue doctrine against restaurant for car accident injury en route. Also, Atherton v. Devine, 602 P.2d 634.

Is there a case that holds it is not necessary for an expert to rule out all possible causes of injury before being allowed to testify a defendant’s negligence is the cause of injury?

Answer: Smith v. Hines, 2011 OK 51:

15 The neurologist noted that prior to the surgery there was nothing wrong with the movement or nerves in the patient's thigh but after the surgery there was femoral nerve damage.13 He stated that it is "more probable than not" that the injury developed during the surgical procedure and except for the complication of the surgery she would not have developed a left femoral neuropathy.14 Nevertheless, he also noted that he would require additional information before the cause can be determined with certainty.15

16 In Robinson v. Oklahoma Nephrology Associates, Inc., 2007 OK 2, 11, 154 P.3d 1250, we explained that:
. . . Our case law requiring a medical malpractice plaintiff to produce evidence that injuries were caused by a particular physician's negligence has never required the production of experts who will utter a particular magic phrase, but focused instead on the particulars of each case. While the plaintiff must present evidence to remove the cause of her injuries from the realm of guesswork, she need not establish causation to a specifically high level of probability merely to withstand a demurrer to the evidence. . . Absolute certainty is not required.16

(Citations omitted.) (emphasis supplied.)

I have an auto accident case in which the defendant was DUI. No claim for punitive damages in the original petition and the SOL has run. Will I be able to allege a claim for punitive damages at this point?

Answer: You can, but whether you want to is another question. See: Smith v. Warehouse Market, Inc., 1978 OK 125, 586 P.2d 724, 726: "Since (1) in this state a claim for punitive damages cannot be a separate and independent cause of action, but is only incidental or collateral to the claim for actual damages, and (2) the fact, standing alone, that the total amount claimed for damages was increased does not raise the defense of limitations, we hold that the amendment under consideration in the case now before us "relates back to the time when the action was commenced" and is not barred by limitations."

As to whether you want to, you need to be aware that, if you ask for punitives and then settle the case, the IRS can and sometimes will, allocate a percentage of the settlement to punitive damages, which can have disastrous tax consequences to your client since punitive damage are taxable, while bodily injury damages are not. See: Rev. Ruling 85-98, I.R.B. 1985 - 29.5 CCH ¶6609: Where complaint sought specified amounts in compensatory and punitive damages, but settlement was for a lump sum, ratio in complaint would be used to determine amount of punitives in settlement subject to tax; proportionate share of fees and expenses would be allowed as a deduction.

You would also need to consider that any punitives would not be covered by insurance so you may or may not be able to collect them.

Employer provides vehicle to employee to drive for work and non-work activities. While driving for personal issue employee causes wreck. Employer admits he was supposed to insure the vehicle but forgot to mail premium, resulting in lapse of coverage for date of loss. Is there any liability on the employer for injuries from the wreck?

Answer: I don't know whether it will get you there but Hudgens, et al., v. Cook Ind., Inc., 1973 OK 145, 521 P.2d 813 imposed liability on a shipper of wheat for selecting a trucker who, along with a lot of other problems (truck in bad repair, bad driver, etc.) had no insurance coverage.

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.

Does Oklahoma require that before an insurer may deny a claim as untimely, it must first prove that it was prejudiced, as in California?

Answer: Oklahoma does require a showing of prejudice if late notice is to be a defense. See: Fox v. National Savings Ins. Co., 1967 OK 27, 424 P.2d 19: Insurance company must prove prejudice. See also: Anno. 18 A.L.R.2d 443, 480.

Client signed a vehicle purchase agreement in Oklahoma but then picked up the vehicle at dealer in another state and executed a limited warranty agreement prepared by the manufacturer in third state. The vehicle is a lemon, suit was filed and now we are in federal court. The manufacturer filed a motion to transfer the case to the federal court in the third state where the manufacturing plant is based on a provision in the limited warranty contract which provides for exclusive jurisdiction in that forum for suits concerning defects.

Answer: Don’t have a brief for you but here are some cases which will get you started: Bakhsh v. Jaccrc Enterprises, Inc., 1995 OK CIV APP 40, 895 P.2d 746): Forum selection clause valid where not unfair or unreasonable. Accord: Adams v. Bay, Ltd., 2002 OK CIV APP 117, 60 P.3d 509; Baker Leasing, Inc. v. State Ins. Fund, 1995 OK CIV APP 158. Eads v. Woodmen of the World Life Ins. Soc., 1989 OK CIV APP 19, 785 P.2d 328: Forum selection clause not enforceable where not freely negotiated and plaintiff/employee had not sign contract or lose his job. Lively v. IJAM, Inc., 2005 OK CIV APP 29, 114 P.3d 487: Forum selection clause not enforceable where contained in an invoice which accompanied deliver of product. Contract was already made before purchaser ever had an opportunity to see the FSC.

What’s my remedy when a medical provider asserts a lien on a client's case that is invalid because it is for treatment for an injury unrelated to the actual claim?

Answer: You can recover your attorney fee for an action to cancel or construe the lien if you prevail. 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.

Does a PL’s comparative fault apply to and reduce a punitive damage award?

Answer: No. Here are the authorities: Anno. 10 A.L.R.4th 946 "Application of Comparative Negligence in Action Based on Gross Negligence, Recklessness or the Like." Cites: AMOCO Pipeline Co. v. Montgomery, 487 F.Supp. 1268 (W.D.Okla. 1980): For proposition comparative negligence does not reduce punitive damage recovery due to public policy of deterrence. Mansfield v. Circle K Corporation, 1994 OK 80, 877 P.2d 1130, 1136 n. 16; Tomlinson v. Love’s Country Stores, Inc., 1993 OK 83, 854 P.2d 910, 917 n. 9; Graham v. Keuchel, 1993 OK 6, 847 P.2d 342, 362-3; Vaughn v. Baxter, 1971 OK 107, 488 P.2d 1234, 1237; Conner v. Burdine, 120 Okl. 20, 21, 250 P. 109 (1926): If defendant’s acts were"willful," "wanton" or "intentional," comparative does not apply.

Client was treated at VA hospital. He returned later with complications but was never seen and finally left and went to another ER where he was treated but with a bad end result. Is VA liable for entire injury?

Answer: The federal government is liable under the tort claim act to the extent a private citizen would be under state law of the state where the event occurs. It seems to me you may get some help from Atherton v. Devine, 1979 OK 132, 602 P.2d 634: Tort-feasor liable for injury in ambulance accident en route from accident. Accord: Gustin v. Meadows, 1974 OK CIV APP 12, 521 P.2d 429.

Health insurance policy says: "Payments of any Benefits will allow Claims Administrator to be subrogated to and succeed the rights of the Member for recovery against any person, organization or carrier in accordance with applicable laws. Any subrogation claim shall be a first priority lien on the full or partial proceeds of any settlement, judgment or other payment recovered by or on behalf of the member to the extent allowed by law. Also, to the extent permitted by law, this lien applies whether or not the covered person has been fully compensated for all of his or her losses." Will this defeat make whole rule?

Answer: I think so, assuming it is an ERISA plan. Here's the writeup I did on the subject: Oklahoma has adopted the "make whole" rule in Equity Fire and Cas. Co. v. Youngblood, 1996 OK 123, 927 P.2d 572. This common law doctrine forbids subrogation where the result would be to cause the insured to be less than fully compensated or "made whole." Note that, if this is an employer provided health plan, the federal ERISA statute probably applies, which might give you a different result. The usual rule with regard to ERISA subrogation is that the make whole rule applies unless the plan specifically negatives its application. However, language such as that the plan is entitled to "first rights of recovery" or some such may indicate an intent to negative the make whole rule. See in this regard, Great West Life & Annuity Co. v. Clingenpeel, 996 F.Supp. 1353.

My client was injured in a car wreck in OKC. The at-fault driver has a NevadaFarmers policy with that state's minimum limits of $15K which is all Farmers has offered. I’m looking for authority to support the position that since the accident happened in OK, Farmers must honor our states minimum limits of $25K?

Answer: The Farmers specimen policy I keep at my desk has a provision under the heading “Out of State Coverage” which provides: “An insured person may become subject to the financial responsibility law, compulsory insurance law or similar law of another state or in Canada. This can happen because of ownership, maintenance or use of your insured car when you travel outside of Oklahoma. We will interpret this policy to provide any broader coverage required by those laws, except to the extent that other liability insurance applies. No person may collect more than once for the same elements of loss.” I’d be shocked if the Nevada policy doesn’t have the same sort of provision. I don’t think it’s so much a matter of legal authority as what the policy says.

I filed a wrongful termination/whistleblower action against some members of an LLC. They have filed a motion to dismiss arguing they are protected by the LLC from personal liability for their acts. I’m looking for law to the contrary.

Answer: This is a sufficiently basic problem that it is hard to research because there is not much law as it hasn’t been raised much. What your adversary is doing is confusing the contract rule that one who enters into a contract on behalf of a corporation or other employer is not personally liable on the contract with the very different tort rule. The tort rule is dealt with in 27 AmJur2nd Employment Sec. 409:

In the absence of immunity,[FN1] an employee may generally be held personally liable to a third person for injuries tortiously caused by the employee, regardless of whether the employer may also be liable.[FN2] Although a master and servant may each and both be liable for a servant's tort committed in the course of employment,[FN3] an employee who tortiously causes injury to a third person may be held personally liable to that person regardless of whether he or she committed the tort while acting within the scope of employment, because the employee's liability is based on personal wrongdoing independent of the employment relationship.[FN4] This remains true unless the employee was exercising a privilege of the employer, or a privilege held by the employee for the protection of the employer's interests.[FN5] These rules are echoed in the Restatement Second, Torts.[FN6] The fact that an employee was acting under directions will, however, protect him from liability for the employer's negligence unless the employee knew or had reason to know that the acts were hazardous and liable to cause injury.[FN7]

A professional negligence claim may be made against an individual professional who did not personally contract with the aggrieved party but who is an employee of the professional services corporation that did contract with the aggrieved party, that is, the employee-–professional who actually renders the professional services can be personally liable for the negligent performance of the services.[FN8]

I recall having researched this once and was frustrated to not find many cases and (as I recall) no Oklahoma cases.

I filed suit in one county under MVA venue statute which allows suit to be filed where any of the damages arise. Judge then granted the defendant’s motion to transfer to a different county. I’m considering seeking a writ, but wonder if there’s any chance of success?

Answer: This appears to be a discretionary matter for the judge. See: Groendyke Transport, Inc. v. Cook, 1979 OK 59, 594 P.2d 369: Not error to decline to transfer from OK County, where Plf’s treating Doctors were, to county where accident occurred. Distinguished: Safeway Stores v. Martin, 1974 OK 149, 530 P.2d 131, on ground med experts in that case were examining Doctors suggested by Plf’s attys.

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.

I have a PI case were a chiropractor filed a lien for a relatively small amount, but ended up with a bill for several thousand. Client wants me to pay the lien amount rather than the bill. I’m concerned there may be an ethical problem with my doing that.

Answer: You’re between a rock and a hard spot. The Supreme Court has held the lawyer is ethically responsible when he has constructive notice but not actual notice. Your problem is the reverse: you have actual notice but not constructive notice. My best guess is that the court would ultimately rule that the lien is ineffective to secure the billed amount. I think you would win the lawsuit. But, do you want to take the chance and get in that lawsuit? Or, more pertinently, do you owe your client an ethical duty to take the risk and get in that lawsuit. I think I would contact Travis Pickens, the ethics counsel at the bar and be guided by his advice. I think if you do that, you protect yourself from an ethical problem. However, you will still probably have a lawsuit from the health care provider.

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.

A new statute, 12 O.S. section 684, lets a judge require a plaintiff in a refilled case to pay the defendant's costs from the first filing. Does this not unfairly restrict access to the courts?

Answer: Moses v. Hoebel, 1982 OK 26, 646 P.2d 601 holds a similar statute unconstitutional as violating access to justice and open courts provisions.

Am I right that an insurance policy exclusion that is against public policy is not valid and will not be enforced by the courts?

Answer: I think you are thinking of a line of cases like McElmurry v. Garbow, 2005 OK CIV APP 38, 116 P.3d 198, 200-201: “Even in the absence of a violation of a law's express provision, an exclusion may nonetheless be invalid for nonconformity to the policy of the law. The principal purpose of law-mandated liability insurance is the protection of the public from the financial hardship which may result from the use of automobiles by financially irresponsible persons. To effectuate this policy, any vehicle operating on the roads of this state must be secured against liability to innocent victims in the event harm occurs from its negligent operation. This clearly articulated public policy overrides contrary private agreements that restrict coverage where the contractual strictures do not comport with the purpose of the Act.” Others include: Ball v. Wilshire Ins. Co., 2009 OK 38, 221 P.3d 717, 722 (invalidating exclusions and citing numerous cases.

I have a friendly suit for a minor client who has had a baby. Is the minor not emancipated upon giving birth?

Answer: I don’t think so. Until the 2009 Legislature repealed it, 10 O.S. Sec. 10 provided that marriage emancipates a minor. 63 O.S. Sec. 2602A provides: “A. Notwithstanding any other provision of law, the following minors may consent to have services provided by health professionals in the following cases:1. Any minor who is married, has a dependent child or is emancipated;”

If the need is legitimate, though, you may well get the judge to free up funds. What the court doesn’t normally want to do is buy the kid a car or give them a bunch of spending money.

Does Oklahoma’s statute of limitations apply where two private individuals are involved in an accident on tribal property?

 Answer: I think so, although I don’t know of a case squarely holding that. The closest authority to that issue is probably Montana v. U.S., 450 U.S. 544. That case’s holding is best described in Strate v. A-1 Contractors, 520 U.S. 438, 447: “Montana thus described a general rule that, absent a different congressional direction, Indian tribes lack civil authority over the conduct of nonmembers on non-Indian land within a reservation, subject to two exceptions: The first exception relates to nonmembers who enter consensual relationships with the tribe or its members; the second concerns activity that directly affects the tribe's political integrity, economic security, health, or welfare. The Montana Court recognized that the Crow Tribe retained power to limit or forbid hunting or fishing by nonmembers on land still owned by or held in trust for the Tribe. Id., at 557, 101 S.Ct., at 1254. The Court held, however, that the Tribe lacked authority to regulate hunting and fishing by non-Indians on land within the Tribe's reservation owned in fee simple by non-Indians. Id., at 564-567, 101 S.Ct., at 1257-1259.”

Strate involved a car wreck on a federal highway through an Indian reservation involving two non-Indians and held the tribal courts had no jurisdiction, leaving the issue to the appropriate state or federal courts. The case concludes that: “As to nonmembers, we hold, a tribe's adjudicative jurisdiction does not exceed its legislative jurisdiction. Absent congressional direction enlarging tribal-court jurisdiction, we adhere to that understanding. Subject to controlling provisions in treaties and statutes, and the two exceptions identified in Montana, the civil authority of Indian tribes and their courts with respect to non-Indian fee lands generally “do[es] not extend to the activities of nonmembers of the tribe.” Ibid.”

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.

I have an on the job death case that appears to be the result of the negligence of a fellow employee. Since the decedent was not married and had no children, no claim for the death could be made under the worker's comp act, though the parents and siblings can make a claim under the wrongful death statute. Since there is no claimant under the Comp Act, does that lift the bar on district court claims? Can I file a lawsuit in district court based on the negligence (not intentional acts) of the employer?

Answer: No. See: Hughes Drilling Co. v. Crawford, 1985 OK 16, 697 P.2d 525 :Parents of deceased minor whose death occurred accidentally in course of his employment filed wrongful death action against employer. The District Court, Logan County, overruled the employer's objection that any claim for the minor's death was exclusively under the provisions of the Workers' Compensation Act, but certified the ruling for interlocutory review. Certiorari was granted. The Supreme Court, Hodges, J., held that the fact that the parents were limited a recovery under the Workers' Compensation Act did not abrogate their right of action for wrongful death.

Does Oklahoma state court have jurisdiction over suit between two Texans involved in a wreck in Oklahoma?

Answer: It is pretty much “black letter law” that you can sue someone in the state in which they were involved in a wreck. See: 61 CJS Motor Vehicles Sec. 983: “A nonresident motorist may be subjected to the jurisdiction of the state for wrongs done within the state in the operation of his or her motor vehicle, and by the mere fact of accepting the privilege of driving a vehicle over state highways, a nonresident thereby agrees to be sued for damages caused by operation of his or her vehicle in the state.”

Does the one year saving statute apply to governmental entities?

Answer: The “saving statute” (12 O.S. Sec. 100) does apply to a Governmental Tort Claim Act Case. Cruse v. Board of County Commissioners of Atoka County, 1995 OK 143, 910 P.2d 998: 12 O.S. §100 applies to GTCA case, overruling (w/o citation) Robbins v. City of Del City, 1994 OK CIV APP 65, 875 P.2d 1170 (Saving statute does not apply to tort claim case), Ceasar v. City of Tulsa, 1993 OK CIV APP 150, 861 P.2d 349 and Gibson v. City of Tulsa, 1994 OK CIV APP 108, 880 P.2d 429.

We have a client injured as a passenger who has been offered liability and UM limits under the driver's policy. Insurance company, Liberty Mutual, states in policy that UM policy is "nonstacked" and a single premium is charged. However, there are 3 vehicles on the policy. I ordered rate information from the insurance commissioner, but what we received did not clear this up. Do you have any guidance for how we determine if this policy is stackable?

Answer: What you may have to do is go to the Insurance Commission offices at Sheppard Mall and ask to see Liberty Mutual’s rate filing with the Board of Property and Casualty Underwriters for the period in which your loss occurred. The rate filing will spell out how the rate is calculated, ie. whether there is any sort of additional premium which would make this a multiple premium rather than a single, per policy premium which would permit them to deny stacking.

Our MVA client filed bankruptcy after treatment for injuries and the bodily injury claim is listed on his Schedule B. His medical bills were discharged and the settlement is within the exemption. Since part of the settlement is actually for medical bills, do the providers have any right to the settlement proceeds?

Answer: Isn’t your problem that the BI claim is now an asset of the bankruptcy and belongs to the trustee? Maybe your client has listed the claim as an asset and can claim an exemption from creditors but it doesn’t sound like that’s what happened. Unless the health care providers had liens filed, there bill is discharged and they are out of luck.

I have a third party case where the workers’ compensation carrier has subrogation far greater than the liability money. I have tried for months to get the comp carrier to split the liability money with us but they will not respond. Do you have a motion to disburse that will get this done by court order?

Answer: See the pleadings section of our website for a Petition to Apportion Workers’ Comp Proceeds in the form of a declaratory judgment action. You can get the District Court to apportion up to and including 100% to the injured worker, if the facts are right. See: Kendrick v. Federal Express, 1993 OK CIV APP 147, 868 P.2d 748, 2nd opinion: 66 OBJ 2363: Affirms award of entire ($10,000) to claimant.

In a straight negligence MVA, is it possible to tap into the tortfeasor owner/driver homeowners' insurance policy?

Answer: Almost certainly not. Phillips v. Estate of Greenfield, 1993 OK 110, 859 P.2d 1101 (Motor vehicle exclusion precluded coverage for a claim of negligent supervision in allowing child to get keys to motorcycle and cause wreck. Exclusion is not one of a theory of recovery but the cause of the loss (use of the vehicle)). Gives a pretty broad interpretation to the standard motor vehicle exclusion in a homeowners policy.

I have both corporate and individual defendants in a federal case. They contend they cannot be compelled to come to Oklahoma for their depositions. Is that true?

Answer: Cadent Ltd. v. 3M Unitek Corp., 232 FRD 625 (S.D. Cal. 2005) should get your research started: “The deposition of a corporation by its agents and officers should ordinarily be taken at its principal place of business. This is subject to modification, however, when justice requires. An important question in determining where to hold the examination is the matter of expense....”

Does divorce revoke a spouse designation as beneficiary under life insurance policy?

Answer: Yes, under 15 O.S. §178:Divorce revokes beneficiary designation, but statute inapplicable to a beneficiary designation in force before statute’s effective date (11/1/1987). Does not apply to federal servicemen’s policy, because preempted. Also, the beneficiary designation may be (is) reaffirmed by re-designating after the divorce.

Do you friendly suit med pay payments made out to mom as parent and guardian of injured minor?

Answer: Generally not because the med-pay goes to the parents who own the medical bill claim.

May my expert attend the other side’s fact witnesses’ depositions?

Answer: Unless someone gets an order invoking “the rule” at depositions, there probably is not a problem. See: Pryor v. Estate of Edwards, 1991 OK CIV APP 49, 815 P.2d 202: “Rule” does not apply to deposition, absent a court order, which rests w/in trial court’s discretion. (Cites federal cases pro and con.)

The federal cases cited in the state case will give you a pretty good clue to which way the federal courts will likely rule. I am unaware of a 10th Circuit or Oklahoma Federal District Court opinion on this and the federal cases in other circuits seem to go both ways.

Is party injured in car wreck entitled to liability coverage equal to the policy limit times the number of vehicles insured or only the limit on the vehicle involved in the wreck?

Answer: Just one policy limit. This is so because of the “our limit of liability” clause of the policy. This (from my USAA policy) reads something like: “For BI sustained by any one person in any one auto accident, our maximum limit of liability for all resulting damages, including but not limited to, all direct, derivative or consequential damages recoverable by any persons, is the limit of liability shown in the Declarations for “each person” for BI liability.” This is generally upheld to prevent stacking as to liability coverage but not as to UM, if a separate premium is charged.

Is there an Oklahoma Statute requiring written cancellation of an automobile insurance policy?

Answer: It’s an Insurance Department regulation: Chapter 15, Property and Casualty, Subchapter 1, General Provisions, 365:15-1-14: Notice of cancellation or non-renewal:

Unless otherwise provided, insurers shall give at least ten (10) days notice prior to the date of cancellation and twenty (20) days notice prior to the date of non-renewal of the insurance policy. If notice is given by mail, said notice shall be deemed to have been given on the day said notice is mailed. Proof of mailing of the notice of cancellation or non-renewal to the named insured at the address shown in the policy, shall be sufficient proof of notice. (Added at 19 Ok Reg 1303, eff. 7-14-2002)

It is quoted in Equity Ins. Co. v. City of Jenks, 2008 OK 27, 184 P.3d 541.

Do you have an order for court to sign allowing minor to withdraw settlement funds one they turn 18?

Answer: We posted an order in the pleadings section here on the website. An even better solution is to insert language in the original order approving settlement the date the minor will become 18 and authorize release of the funds after that. This eliminates the necessity for the order upon the minor turning 18. The language we use is:

“$xxx,xxx payable to ******, Mother and Next Friend of *****, a minor, to be deposited into a trust account for the benefit of the minor at ****** pursuant to 12 O.S. § 83. The money so deposited shall not be withdrawn, without further order of this Court before June 13, 2007, when the minor, ************, reaches age eighteen.”

Can I sue a minor driver in an car wreck directly or must I do so through a parent

Answer: You sue the minor just like you do an adult, but the difference is in serving. If the minor is over 15, you just serve him. If he is under 15, you serve the parents. See: 12 O.S. Sec. 2004C1c(1) & (2): “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,

(2) upon an infant who is less than fifteen (15) years of age, by serving the summons and petition personally and upon either of the infant's parents or guardian, or if they cannot be found, then upon the person having the care or control of the infant or with whom the infant lives; and upon an incompetent person by serving the summons and petition personally and upon the incompetent person's guardian.”

You simply move the court to appoint a guardian ad litem per 12 O.S. Sec. 2017C: “C. INFANTS OR INCOMPETENT PERSONS. Whenever an infant or incompetent person has a representative, such as a general guardian, committee, conservator, or other like fiduciary, the representative may sue or defend on behalf of the infant or incompetent person. If an infant or incompetent person does not have a duly appointed representative he may sue by his next friend or by a guardian ad litem. 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.”

So you defend by a guardian ad litem but you sue by a next friend. The guardian ad litem may, but need not be, the parent.

Does Louisiana have a savings statute

Answer: They don’t appear to have a saving statute like our 12 O.S. Sec. 100. However, they have statutes which recognize “interruption” of “prescription,” which is what they call limitations. You file a lawsuit and the running of the prescription or limitation is interrupted and begins to run again when the first lawsuit terminates without disposing of the claim. You then have the rest of the prescription period to refile. See LSA-CC Art. 3462 and Art. 3463, dealing with this as well as Velasquez v. Landcoast Insulation, Inc., 999 So.2d 318 (La. App. 2008) and Jacobs v. Louisiana Farm Bureau Ins. Companies, 815 So.2d 858 (La. App. 2001). Also, you only have a one-year tort statute of limitation in Louisiana.

I represent a woman who was pregnant at the time of the wreck and the unborn baby was killed. Can claim be made for the unborn baby under the tortfeasor’s liability and her UM, and are those claims separate from the claims of the mother for her own injuries?

Answer: You can recover under Oklahoma law for the unborn baby. See: Evans v. Olson, 1976 OK 611, 550 P.2d 924: Wrongful death action existed for death of unborn viable child; Nealus v. Baird, 1999 OK 98, 996 P.2d 438: also for non-viable child born alive; finally, 12 O.S. § 1053(F): Wrongful death action extends to fetus of any age. The question whether the claim for the death of the fetus triggers a separate liability or UM limit is, I think, unsettled under Oklahoma law. See: 15 ALR4th 548 entitled “Unborn Child as Insured or Injured Person Within Meaning of Insurance Policy.”

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.

Do I need to have an expert for an auto insurance bad faith claim? 

Answer: The Tenth Circuit thinks the jury can understand bad faith without an expert. The cases around the country are in conflict. See: Neal v. Farmers, 582 P.2d 980, 987-88 (Cal. 1978): Testimony proper. Contra: Kooyman v. Farm Bureau, 315 N.W.2d 30, 37 (Iowa 1982); Hart-Anderson v. Hauck, 748 P.2d 937 (Mont. 1988).

Thompson v. State Farm Fire & Cas. Co., 34 F.3d 932, 940-41 (10th Cir. 1994): Not error to exclude expert testimony in bad faith case where witness not timely listed. “Where as here expert testimony is offered on an issue that a jury is capable of assessing for itself, it is plainly within the trial court’s discretion to rule that testimony inadmissible because it would not even marginally ‘assist the trier of fact,’ while it must be viewed as ‘needless presentation’ (Fed.R.Evid. 403)....”

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.

I represent a two-year old kid who was hit by an SUV. Only $25,000 in coverage, which has been tendered. Erisa health plan covered medical bills and has about $12,000 in subrogation but will not reduce. Parents paid other providers out-of-pocket and, I think, are entitled to reimbursement. This leaves only about $600tokid which Judgewill not allow and has ordered us tointerplead.Canthejudge cutouttheERISA subrogation?

Answer: If the ERISA plan says they don’t have to reduce, I don’t think the Judge can make them do it. However, I would prefer, if I were you, to let the ERISA plan tell the Judge that. I’d interplead it and let the ERISA plan make the call whether to remove it to federal court and litigate it. You never know what they will do confronted with the choice.

Is a wife's injury claim and her husband's derivative cause of action combined to reach the 75k+ for removal?

Answer: You generally do not aggregate claims of husband and of a wife for consortium loss in determining amount in controversy for federal court diversity jurisdiction. See: Rodery v. Hardee’s Food Systems, Inc., 995 F.Supp. 599 (E.D. Mo. 1998) and Employers Mut. Cas. Co. v. Maggart, 261 F.Supp. 768 (W.D. Tx. 1966).

If UM carrier bifurcates out of trial, does it still get to participate in discovery, or are they just an observer to the extent necessary to protect their if the liability settles?

Answer: As I have always readTidmore v. Fullman, 1982 OK 73, 646 P.2d 1278, to mean once the UM carrier bifurcates out, they are not permitted to participate in the case. It may be that that is just the agreement State Farm made in Tidmore but I’ve never had a UM carrier participate after bifurcating.

I have a bad faith action in state court and just received notice of removal (there is diversity jurisdiction). The Defendant never answered nor filed a responsive pleading in state court. Can I file a dismissal w/o prejudice pursuant to Rule 41 and get the benefit of savings statute? Client suing insurance company for "walking" liability policy with agent accepting partial payment allowing client to pay out the balance. This arrangement was apparently accepted by company until she had a wreck. She was sued and got a judgment against her which carrier will not pay.

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.

I got an excess judgment against a defendant represented by insurance provided counsel. Can I now contact the defendant about suing his insurance company for bad faith to pay the excess judgment?

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.

I need to settle a case for less than medicals, or even Tricare lien. If I interplead rather than seek Tricare reduction, what happens if Tricare does not show up to interpleader? Can I distribute remaining funds to client after my fee?

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.

What is the pre-judgment interest rate for PI cases filed prior to the November 1, 2009 effective date of the tort reform legislation?

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.

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.

I want to add a new defendant to a suit I filed before the tort reform changes went into effect. Since the suit was filed under the old rules, is everything (Expert reports, etc.) governed by the old or new rules?

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.

Does personal automobile insurance cover you when you are driving a rental moving truck?

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.

What is the statute of limitations for a minor to bring a personal injury case? Is it still up to age of majority or did this change with tort reform?

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.

I have an Air Force client with Tricare for health insurance. We have settled his UM claim for policy limits with USAA which has asked whether there is a Tricare lien or Military lien. I told them per Provident v. Ridenour, I did not believe the Tricare lien would attach to the UM settlement but only to the proceeds of the tortfeasor's policy. Any thoughts?

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.”

Their used to be a split in authority whether the above statute caused such liens to attach to UM coverage. In 1990, Congress amended another applicable statute, 10 U.S.C. Sec. 1095, adding new sections “H” and “I” such that it now appears clear the government’s lien attaches to UM and other first-party insurance coverages.

Must all named insureds reject UM?

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.

What is rule regarding minor’s responsibility for their torts? I know what 12 O.S. 2017 says about capacity to be sued and being defended through Guardian ad litem?

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.

Can auto insurance cancel for fault-free accident?

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

I have a client who fell on a COTPA bus. I sued COTPA and the City of Oklahoma City, but got a motion to dismiss the City of Oklahoma City from the suit, which I read to have the law correct that the City probably should be dismissed from the suit. Any thoughts?

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.”

Farmers insured pays monthly with debit card then loses debit card and cancels it without thinking to transfer payment to new card, missing next payment. Ten days after payment was due, the hail storm totaled out the car. After storm client remembers the missed payment and pays on line, which Farmers accepted. Now Farmers is denying coverage for the hail damage, despite no cancellation notice at any time. Is there coverage? Bad faith?

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.

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.

Do you have a fairly recent brief on the Statute of Limitations beginning to run from notice of the tort not the date that it occurred.

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.

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

Husband and wife are insured on two different policies, one policy on a truck and the other on a car. They were charged premium on both policies for med pay and one was injured while riding in the car. Can we recover med pay on both policies?

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.

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.

In a case filed before the Nov. 1, 2009 tort reform went into effect, defendant wants to remove to federal court and has filed a Motion to Clarify Damages pursuant to 12 O.S. 2009(H) which was part of the new tort reform package. Does this section even apply to cases filed before Nov. 1, 2009?

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.

Is a subrogated UM carrier responsible for acquisition fees (attorney fees and expenses) of the plaintiff’s lawyer in recovering the money the UM carrier is subrogated to?

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.

 

 Is the triggers on the new tort law when the action arose rather than when filed?  So, if injured prior to Nov. 1, and filed thereafter, the new law shouldn't apply substantively, although some procedural matters might?

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:

H. MOTION TO CLARIFY DAMAGES. If the amount of damages sought to be recovered by the plaintiff is less than the amount required for diversity jurisdiction pursuant to Section 1332 of Title 28 of the United States Code, the defendant may file, for purposes of establishing diversity jurisdiction only, a Motion to Clarify Damages prior to the pretrial order to require the plaintiff to show by a preponderance of the evidence that the amount of damages, if awarded, will not exceed the amount required for diversity. If the court finds that any damages awarded are more likely than not to exceed the amount of damages required for diversity jurisdiction, the plaintiff shall amend his or her pleadings in conformance with paragraph 2 of subsection A of Section 2008 of this title.

As I read the statute, all it does is to permit the state court to decide you are “just kidding” about asking for an amount less than the federal jurisdictional amount and require you to amend to plead more, in which case the diverse defendant can remove you. It does not provide for capping damages. I’m unaware of any statute which does.

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.

The cap is a $400,000 cap on non-economic loss. However, by its terms, that cap provision does not become effective until after the legislature approves and funds a liability insurance provision for doctors to provide them $20 million in excess coverage over a $1 million limit they will be required to carry as a condition of their licensing. That may never happen.

I have a minimal impact car wreck with significant cervical injury. Plaintiff was on the job at the time of the collision and workers’ comp ruled the injuries caused by the wreck. In third-party case, insurance company arguing the wreck did not cause the injury. Can I use the comp decision to bar the insurance company’s defense?

Answer: You can’t bind the defendant in the district court case by the finding in the Work Comp case because the defendant in the district court case is not a party to the comp case. Attempting to bind the defendant by a decision in a case to which it was not a party would violate due process. See: State Mut. Life Assur. Co. v. Hampton, 1985 OK 19, 696 P.2d 1027: Acquittal of beneficiary of killing insured did not require payment to beneficiary, under “slayer” statute (84 O.S. 231): “Moreover, special administrator and children, who are entitled to take under § 231 if wife is barred, were not parties to the criminal case. Due process standards would preclude their being bound by the result of proceedings in which they did not participate. See, Parklane Hosiery Co., Inc. v. Shore, 439 U.S. 322, 326, n.7, 99 S.Ct. 645, 649, n.7, 58 L.Ed.2d 552 (1979); Blonder-Tongue Laboratories, Inc. v. University of Illinois Foundation, 402 U.S. 313, 329, 91 S.Ct. 1434, 1443, 28 L.Ed.2d 788 (1971); California-Western States Life Ins. Co. v. Sanford, 515 F.Supp. 524, 533 (E.D.La.1981).”

Insurer says child support lien is superior to medical provider liens, but not to attorney lien. However, 56 O.S. § 237B (F)(1) doesn't support this position. Either way, the client isn't going to get anything, but we want to make sure the doctors get paid.

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;”

I just got a Medicare “reduction” from OHCA dated 11/18/09 stating that: “Your client would be responsible for the full amount billed were your client not a Medicaid recipient. As the actual medical billings were $ 55,xxx while the OHCA lien is only for $ 14,xxx it appears that your client has received significant benefits from Medicaid.” This quote is from a new form that OHCA is using and only the underlined numbers are changed on the form. (The italics are theirs.) They then agree to reduce to $12,xxx and state that this is good for only 30 days. I thought that the new law mandated a prorate reduction for the attorney fee/expenses like Medicare? Am I wrong? Does it depend on the date of the accident or payments by Medicaid? Or are they refusing to follow the new statute?

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.

What is the difference between an 1101 Offer to Allow Judgment, and an 1101.1 Offer of Judgment? I received an Offer to Allow for a ridiculously low number, citing the five day response time of 1101. I thought of responding with a reasonable offer, but I’m not sure that I can. How do the two statutes interact, if at all? Also, while not admissible in our PI action, would a counter-offer to confess come back and bite me on the behind with the UM coverage?

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.

Is expert testimony required to reduce future economic damages to present value?

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.

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

Have a case with 100k policy limit. Policy says costs and fees come out of that limit. Can they do that?

Answer: Probably, so long as the policy is not a statutory policy so that applying the reduction for defense costs would provide less coverage than the statute requires.  The general rule is that if the coverage is not statutorily required, the parties are free to contract for whatever policy provisions they wish.  See: Frank v. Allstate, 1986 OK 42, 727 P.2d 577; Equity Mut. Ins. Co. v. Spring Valley Wholesale Nursery, Inc., 1987 OK 121, 747 P.2d 947.

I have a nursing home case where we plead two separate incidents. Insurance company takes the position that we have only one claim for coverage purposes, regardless of how many separate incidents or injuries. Carrier relies on policy language that "Related Claims Deemed Single Claim," that then recites policy language stating that basically everything that happens to the person is a related claim.

Answer: Not sure I know enough about your case to intelligently respond but be aware Oklahoma follows a “cause” analysis of whether multiple claims constitute one occurrence or multiple occurrences. There are two cases applying Oklahoma law on the issue. See: Business Interiors, Inc. v. Aetna Cas. and Sur. Co., 751 F.2d 361 (10th Cir. 1984): Oklahoma will adopt the “cause” analysis, so embezzlement by 39 checks over 7 months was a single loss; Transport Ins. Co. v. Lee Way Motor Freight, Inc., 487 F.Supp. 1325 (N.D. Tex 1980) (Multiple claims of discrimination arising from a single employment practice gave rise to only one occurrence). See also: Anno. 64 ALR4th 688 What Constitutes Single Accident or Occurrence Within Liability Policy Limiting Insurer’s Liability to a Specified Amount Per Accident or Occurrence.

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.

Does a Medicare lien attach to med-pay benefits paid in an Oklahoma wreck and Oklahoma policy and if so must the insurance company pay the med-pay benefit directly to the medical provider? An adjuster I'm dealing with is claiming yes on both questions.

Answer: Medicare’s lien does attach to med-pay. 42 U.S.C.A. §1395y(b) (2) (B) (iii). See also: 67 OBJ 1092 “Simple Steps to Subrogation in Personal Injury Cases Involving Medicare Beneficiaries” Lanell Webb Collins. The insurance company is liable if the lien does not get paid so the insurance company is likely to want to pay it direct. I have had them let me give them an indemnification where I personally agree to indemnify the insurance company if the lien does not get paid.

Do you have a Blue Cross Blue Shield policy so I can see the subrogation language?

Answer: Be careful about relying on the BC/BS subrogation language from some other policy. BC/BS has a bewildering array of plans and the subrogation provisions are not always the same. Get your client’s employee benefit booklet and examine that language.

Can I recover expert witness fees as costs?

Answer: The law seems to be pretty well developed on this. You can recover if it is the opponent’s expert whom you had to depose but cannot if it is your expert. Dulan v. Johnston, 687 P.2d 1045 (Okla. 1984): Expert witness fee not allowable as costs. 12 O.S. 1999 Supp. § 942 - Costs which judges may [meaning “must” per Atchley v. Hewes, 1998 OK CIV APP 143, 965 P.2d 1012] award include “statutory” witness fees. Atchley v. Hewes, 1998 OK CIV APP 143, 965 P.2d 1012: Reasonable fees paid an expert witness for discovery per 12 O.S. Supp. 1996 § 3226(B)(3)(c)(1) are recoverable as costs under 12 O.S. 1999 Supp. § 942. A doctor is an expert witness when she is retained specifically to testify at trial and express an opinion based both on facts gleaned from exam and consideration of matters within the doctor’s realm of expertise. A party’s treating physician is not considered an expert witness unless doctor’s opinion to be introduced at trial is based both on treatment of party whose condition is at issue and consideration of matters within doctor’s realm of expertise that are outside the patient’s treatment. 965 P.2d 1012, 1015, citing McCoy v. Black, 1997 OK CIV APP 78, 949 P.2d 689.

My client was in an accident while on his scooter. Does his med pay on one of his other vehicles follow him onto the scooter as would UM?

Answer: There probably is not coverage. Med-pay is different than UM in that med-pay is not a statutorily required coverage so the insurance company is permitted to write restrictive provisions in med-pay which would not be valid in UM policies because the UM is statutorily required and insurance companies cannot dilute that coverage. See: Frank v. Allstate, 1986 OK 42, 727 P.2d 577. which holds you do not stack med-pay like you do UM, for that reason. Most med-pay policies contain an “owned but not insured” policy provision that there is no coverage if the insured is occupying a vehicle owned by the insured or a member of the insured’s household but which is not covered under the policy. This provision is valid under med-pay, for the reason stated above

Can I make a claim for liability on a "host" of a Super Bowl party? The driver went to the party, then to a bar, having several drinks at each before crashing into my client.

Answer: I think there is no liability for the social host. See: McGee v. Alexander, 2001 OK 78, 37 P.3d 78: Social host liability rejected as to hospital throwing a business-related party at a country club. You might get outside this rule if the drinking driver is a minor.

I have a car wreck case with limited liability coverage, big damages, and a question about UM Coverage. Do I need to name the UM Carriers as Defendants?

Answer: If you have a UM coverage problem, it makes sense to join the UM carrier and litigate that while you’re litigating the underlying BI claim. If you don’t have a coverage issue, you may be better off just suing the tortfeasor and putting the UM carrier on notice, which will bind the UM carrier as to the finding of liability and damages under Keel v. M FA, 1976 OK 86, 553 P.2d 153.

I took over a case from a lawyer who filed a good case about two years ago and did not issue summons. I filed an amended petition and issued summonses and served it. The defense has filed a motion to dismiss, citing 12 O.S § 2004(I) Rule 9 of the Rules for District Courts and 12 OS § 1083. I think that with an amended petition and fresh summonses served timely that there is no basis for dismissing the petition now, particularly since I guess I could refile under 12 O.S. § 100. Any thoughts?

Answer: I suspect your heartburn here comes from Wiley Elec., Inc. v. Brantley, 1988 OK 80, 760 P.2d 182. There, the plaintiff tried to file an amended petition in an already dismissed case. The Court held you couldn’t do that because once the first case was dismissed, the court had no jurisdiction. Take a look at Medlin v. Texaco, Inc., 1996 OK CIV APP 96, 926 P.2d 804. There, the suit remained pending as to another defendant, so the court held that circumstance distinguished Wiley Electric. You also need to be aware of several cases holding the filing of an amended petition without leave of court is a nullity. See: Sedbrook v. Rouse, 1994 OK CIV APP 181, 894 P.2d 435 and Hunter v. Echols, 1991 OK 114, 820 P.2d 450. I’m concerned with how the court will treat your filing of an amended petition. If the court says that was your second filing, life could become very difficult for you.

I represent a man injured by a drunk driver in a motor vehicle accident. I got a default judgment and the drunk filed bankruptcy to discharge the judgment. It is my understanding pursuant to 11 U.S.C.A. 1328 the debt is non-dischargeable. However, I have heard some discussion that there might be some way the debtor/tortfeasor can successfully discharge the debt owed to my client.

Answer: I think it is dischargeable. It wasn’t before the bankruptcy reform act but I think that changed the rule. See: In re Galvan, ___ (D.C.Colo. 1984): Debtor’s DUI was type of conduct so likely to cause injury as to be deemed intentional and non-dischargeable. Probably overruled. In re Compos, 768 F.2d 1155 (10th Cir. 1985): Debtor could discharge damages from DUI accident. Specific intent to injure (not to commit act) required under Bankruptcy Reform Act; §523(a)(6).

Nursing home resident, now deceased, but I cannot make the death connection. Good survivorship damages, however. Never married, survived by brother only. Nephew had POA prior to death. Assuming I want to file by Friday, who is my Plaintiff - the brother? Any basis for permitting nephew to be Plaintiff?

Answer: You can file in the name of the not-yet-existent estate and then get an estate set up and then substitute the estate as plaintiff. See: Weeks v. Cessna Aircraft Co., 1994 OK CIV APP 171, 895 P.2d 731 (Approved for Publication by Supreme Court) and Broadway v. Peak Medical, 2005 OK CIV APP 63, 120 P.3d 872.

Insurer wants to provide defense under reservation of rights. Do you have any recent decision as to the right (and the wisdom) of the insured to reject a defense under reservation and demand that the carrier either extend coverage or stand aside, and be exposed to the possibility of default judgment? I would think a conflict arises if an insurer is allowed to build a policy defense against the person it is defending.

Answer: It has been a while since I researched whether the insurance company can defend under reservation over the objection of the insured. I was surprised to learn authorities around the country are almost evenly split between those holding the insurance company must either defend unconditionally or get out of the case and those saying the insurance company can continue to defend even over the objection of the insured. For some reason, I am only finding the cases I cited in support of the proposition that the insurance company can’t defend under reservation without the insured’s permission. These are: Connolly v. Standard Casualty Co., 73 N.W.2d 119 (S.D. 1955); Boise Motor Car Co. v. St. Paul Mercury Indemnity Co., 112 P.2d 1011 (Idaho 1941); Hawkeye Cas. Co. v. Stoker, 48 N.W.2d 623 (Neb. 1951); and Beatty v. Employers’ Liability Assurance Corp., 168 Atl. 919 (Vt. 1933). My position on whether to demand the company defend unconditionally is determined by how strongly I think the insurance company feels about its coverage defense. I have found if they are not too proud of the coverage defense in the first place, they will usually abandon the reservation letter and agree to extend coverage. If they are real serious about the defense, you may well end up with a very expensive defense bill if you insist on the company making the decision.

Is it proper to compound prejudgment interest on a yearly basis? Our reading of the 12 O.S. § 727.1 (E) doesn't provide us a clear answer.

Answer: Lee v. Volkswagen of America, Inc., 1987 OK 80, 743 P.2d 1067 discusses compounding post-judgment interest which is now permitted pursuant to statutory amendment. I am not aware of anything providing for compounding prejudgment interest. Also, prejudgment interest in a BI case virtually goes away with HB 1603 because it does away with post-judgment interest for the first 24 months a suit is pending.

Can I use defendant’s conviction of traffic charge from auto wreck as proof of same offense and liability in ensuing civil action.  I want to argue issue of his liability has already been determined under a higher burden of proof than in my civil action?

Answer:  The traffic conviction (as opposed to a plea of guilty, admissible as an admission) cannot be shown.  See: O’Neal v. Joy Ind. School Dist., 1991 OK 118, 820 P.2d 1334, 1336: “Absent some exception to the settled rule, evidence of a prior conviction for a minor offense may not be admitted into evidence in a subsequent civil action arising from the same facts and circumstances in the face of a timely objection.”  The rationale is that one doesn’t have the same motivation to litigate vigorously a traffic ticket as you do a civil action or a serious crime.  It would be unfair to bind someone in a multi-thousand dollar civil case from a failure to vigorously defend a $200 fine in a traffic case.

Can I still file a direct action against trucking company’s insurance company?

Answer: Only if the carrier is an intra-state carrier licensed in Oklahoma, under 47 O.S. § 230.30.  Fierro v. Lincoln Gen. Ins. Co., 2009 OK CIV APP 62, 217 P.3d 158 says you can no longer join out-of-state carrier’s insurance company due to single state registration statute.

I have a case filed long before the November 1, 2009 tort deform changes, but pretrial is after that date. Can I dismiss after pretrial unilaterally or does new law apply?

Answer: Statute doesn’t say. I suspect the court will ultimately hold this is procedural and so will be applied retroactively to your case; but that is just a wild guess.

 

 

Effective 11/1, did the 400K cap go into effect for non-professional liability tort cases, even though $20 mil. insurance bond is yet to be financed by the Legislature?

Answer: No. The statute says “this section” shall not become effective until the fund is established. The “Section” refers to the whole caps provision.

Do the legislative changes on November 1st affect service?

Answer: Section 11 of House Bill 1603 changes the provision of 12 O.S. Sec. 2004(I) so that, instead of it saying if service is not made within 180 days the case “may” be dismissed to read “shall be deemed” dismissed.

Are violations of the Oklahoma Unfair Claims Settlement Practices Act admissible in a bad faith claim independently, or through expert testimony, and available as a jury instruction? I recognize that there is no independent cause for such violations.

Answer: Because, as you accurately point out, there is no private right of action, you probably can’t introduce them independently. Historically, we have been able to have our expert use them as an industry standard and get them in that way. However, effective November 1, 2009, House Bill 1603 (The Civil Immunity for Lawbreakers Act) comes into effect. Section 19 of HB 1603 amends 12 O.S. Sec. 2703 to add the language: “Facts or data that are otherwise inadmissible shall not be disclosed to the jury by the proponent of the opinion or inference unless the court determines that their probative value in assisting the jury to evaluate the expert's opinion substantially outweighs their prejudicial effect.”

I have a case against a city and its employee in a car wreck. we sued the city and the employee individually. City admits employee was in course and scope of employment and filed motion to dismiss with prejudice the employee, citing GTCA and case law. Can we keep the employee in the case or should we dismiss?

Answer: The employee’s personal coverage will attach to the city, his employer. The policy will define 3 categories of insured: (1) named insured and member of household, (2) permissive users and (3) person’s legally responsible for the actions of insureds in the first two categories. Just dismiss the employee and proceed against the city.

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.

Is an employee of tenant business treated as an invitee of building owner?

Answer: Yes, an employee of a tenant is an invitee of the landlord. The cases actually go a long way beyond that, holding that a social guest of a tenant is an invitee. See: Sagona v. Sun Co., Inc., 2002 OK CIV APP 93, 57 P.3d 879 (wife of tenant visiting him in building housing his office, injured in an elevator, was an invitee.) See also Crane Co. v. Sears, 1934 OK 375, 35 P.2d 916: “This liability of the landlord in such cases is not limited to the tenant personally, but includes all persons who, within the contemplation of the parties, were to use the premises under the lease.”

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.”

Before wrongful death case was filed, probate court enters an order finding administrator was decedent's common law spouse. Defendant in later filed wrongful death case is now trying to prove administrator was not common law spouse. Seems to me this issue is already decided.

Answer: Your problem is that you can’t bind the trucking company by a finding in the probate to which it was not a party. It has a due process right to litigate that issue. See: State Mut. Life Assurance Co. v. Hampton, 1985 OK 19, 696 P.2d 1027, 1033 (acquittal of wife in a criminal case of killing her husband could not preclude his heirs proving she killed him because of their due process right not to be bound by the finding in a case to which they were not parties.)

I remember a case regarding the improper cancellation of an auto policy for nonpayment of premium. A short reply with the cite or circumstances of cancellation would be appreciated.

Answer: I think you are thinking of Equity Ins. Co. v. City of Jenks, 2008 OK 27, 184 P.3d 541 and Equity Ins. Co. v. St. Clair, 2008 OK 79, 196 P.3d 981. These hold that a cancellation notice issued while the premium is not yet in default that the policy will be canceled if the premium is not paid when due is not an effective cancellation notice.

Lawsuit against corporation and individuals wherein we are alleging corporate liability based the individuals' conduct under an apparent agency relationship. The individuals are in default. Is there any drawback to proceeding with taking default against the individual defendants and having a hearing to determine damages? Would corporation be stopped from contesting the damages established in the default award, if corporate liability under the apparent agency theory was subsequently established?

Answer: I would be concerned about the “one judgment” rule. That rule states that there can be only one judgment arising out of a given set of operative facts and that once you take that judgment, you cannot obtain a second judgment on the same operative set of facts. See: Retherford v. Halliburton Co., 1977 OK 178, 527 P.2d 966. What is commonly done is to have the court find the defaulting defendants in default but defer entering judgment against them until the issues are determined as to the non-defaulting judgments and then entering judgment against all defendants for the amount of the judgment found against the non-defaulting defendants.

Employee of Union Public Schools is enrolled in a health plan that is self insured through the School district. Can I make a bad faith case against district for failure to timely pay claims?

Answer: This will be tough. The third-party administrator will owe a duty of good faith and fair dealing only if the TPA is really heavily involved in the insurance program in the sense of participating financially in insuring the risk. See: Wathor v. Mutual Assurance Administrators, Inc., 2004 OK 2, 87 P.3d 559. As for the district itself, Fehring v. State Ins. Fund, 2001 OK 11, 19 P.3d 276 seems to say the Governmental Tort Claim Act precludes your bad faith claim; if the district employees acted in bad faith, they are automatically outside the scope of their authority so there could be no liability of the governmental entity for insurance bad faith.

Delaware corporation claims "internal affairs" doctrine prevents me from piercing corporate veil or alleging alter ego in a claim against a nursing home chain hiding behind its shell corps and Delaware law in order to defeat my recovery.

Answer: I think your opponent misperceives the function of the internal affairs doctrine. It does not apply to your case but rather applies only to questions about disputes or the relationship between and among the corporation and its directors and shareholders. The Supreme Court of Delaware probably best explains this disctinction in McDermott Inc. v. Lewis, 531 A.2d 206, 214-15 (1987).

When state court case is removed to federal court is the state court issued discovery still due in 30 days? Or is it stayed and the FRCP then applies? I am trying to figure out when my discovery deadline is now that my case went from Oklahoma County to the Western District.

Answer: I think Rule 26 will apply and control so that your discovery will not be due until the deadlines are established in the federal court action. Hanna v. Plumer, 380 U.S. 460 (1965) seems to stand for the proposition that where a federal rule addresses a procedural issue, the federal, rather than the state procedural rule will apply.

Does health insurance company have subro interest in med pay monies?

Answer: Depends on the terms of the health policy. If it refers only to being subrogated against claims against third parties, probably not, under Provident Life & Accid. Ins. Co. v. Ridenour, 1992 OK CIV APP 93, 838 P.2d 530 (Health insurance company not entitled to subrogation against UM, which provides for recovery against third party). Distinguished by Reeds v. Honorable Thomas S. Walker/NAICO v. Reeds, 2006 OK 43, 157 P.3d 100 which allows recovery against other insurance.

I'm looking for forms and procedures for non judicial determination of death to clear title on joint tenancy property without having to do a probate.

Answer: See 12 O.S. Sec. 912.

I've got a case where 2 adults were given an excessive amount of alcohol. My client gets in the car with the other drunk guy driving, driver flips the car and my client is injured. Am I correct that dram shop only applies when the tavern owner provides alcohol to minors or is the bar liable in this scenario?

Answer: There is at least a theoretical dram shop case. I say theoretical because of the obvious contrib. problem of your client having been drinking with and then riding with the drunk. There is also the practical problem that most bars don’t have dram shop liability coverage and it is devilishly hard to collect if you get a judgment. If the server is not a bar, you have a social dramshop claim, which will not give rise to liability. Here are some of the cases: Brigance v. Velvet Dove Restaurant, Inc., 725 P.2d 300 (Okla. 1986); Ohio Cas. Ins. Co. v. Todd, 813 P.2d 508 (Okla. 1991)(Intoxicated person may not recover for his own injuries (reversing earlier decision on rehearing)); Teel v. Warren, 2001 OK CIV APP 46, 22 P.3d 234 (Ct. of Civil Appeals will leave to Supreme Court whether to recognize social host liability, citing Battles v. Cough, 1997 OK CIV APP 62, 947 P.2d 600).

Client injured on the job - hit by a car driven for state entity. Can client elect between filing a comp claim or pursuing third-party governmental tort claim?

Answer: You cannot decline Work Comp and thereby have a GTCA claim. 51 O.S. Sec. 155(14) says the state shall not be liable for "Any loss to any person covered by any workers' compensation act or any employer's liability act;" Your client is covered by work comp whether a claim is filed or not. So, the bottom line is you cannot elect. You also cannot recover both and pay subrogation. I would think this also causes the tort-feasor to be uninsured so you can collect UM which, of course, will not be subject to work comp subrogation. So, your client may come out better than you would otherwise expect, assuming your client has UM.

1. Minor involved in MVA; 2. Minor's parent's incur medical bills; 3. Minor files lawsuit medical bills not allowed in suit by judge; 4. Minor loses lawsuit (asking for P and S only); 5. Mom wishes to file lawsuit to ask medical bills be paid. Is mom's claim precluded?

Answer: Assuming Mom was not a party to the prior suit, she should not be precluded. I would worry, however, whether the statute may have run on her claim and would have a very practical worry how you’re going to win that case when the minor could not.

I took over a case where two companies were sued in Oklahoma County. They denied jurisdiction in Oklahoma County saying they are not citizens of Oklahoma or Oklahoma County (they haven't removed). I later filed suit against two other defendants in Tulsa County, one of which is a resident of Tulsa County. I want to transfer the Oklahoma County case to Tulsa and consolidate the two actions. Do I move for transfer and consolidation in the Tulsa or the OKC case?

Answer: Be aware you have two different issues going here. One is whether the Oklahoma courts (any Oklahoma court, including federal court) has jurisdiction over the out-of-state defendant, which evidently claims an insufficient connection with Oklahoma to be subject to suit in Oklahoma. On that issue, they will be talking about World-Wide Volkswagen v. Woodson, 444 U.S. 286, Burger King Corp. v. Rudzewicz, 471 U.S. 462 and Asahi Metal Industry Co. v. Superior Court, 480 U.S. 102. The other is venue, that is, assuming the Oklahoma courts have jurisdiction, which is the proper county in Oklahoma in which to try the case. You'll have to file your transfer motion in OKC, in the county where the original suit was filed. I don’t know enough about your facts to know whether jurisdiction in Oklahoma is proper or whether venue is proper in Oklahoma County but you need to keep the distinction in mind.

If the judge denies challenge for cause do I have to use a pre-emptory on that particular juror to preserve error; or do I simply have to use all pre-emptories before accepting the jury?

Answer: Actually, you have to exhaust all your peremptory challenges and show that you have another juror on the panel you find objectionable. See: Cox v. Sarkeys, 1956 OK 294, 304 P.2d 979, 984-5

Insurance company has refused to defend policyholder saying there is no coverage for the claim. We want to enter consent judgment and then pursue garnishment against policy. Policy says insured may make no statement that will assume any obligation or admit any liability, for any “loss” for which we may be liable, without our consent. Given this, is there any way to enter into a consent judgment without losing possibility of coverage?

Answer: There is an old Tenth Circuit case, Traders & Gen. Ins. Co. v. Rudco Oil & Gas Co., 129 F.2d 621, which says if the insurance company unreasonably denies coverage, it is estopped to assert the “assume any liability” clause. There, the insured actually settled and paid the money, but that may not be the only way to do this. Some states (but not Oklahoma – yet) permit the insured to agree to a judgment and make a deal with the injured plaintiff under which the insured agrees to a judgment and gets a covenant not to execute on the judgment in return for an assignment of the insured’s claim against the insurance company. In Arizona, these have come to be called “Damron” assignments, after Damron v. Sledge, 460 P.2d 997 (AZ 1969). This is probably the direction in which we need to move Oklahoma law. We’re not there just yet, though.

Ins. Co. states it will pay for one (1) layer of removal and one (1) layer of replacement. However, roofing contractors are saying that it is impossible to do work to code by just removing one layer.... Any thoughts on this?

Answer: Gutkowski v. Oklahoma Farmers Union Mut. Ins. Co., 2008 OK CIV APP 8, 176 P.3d 1232 seems to hold the insurance company has to replace whatever needs to be replaced to properly repair the roof.

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.)

I'm looking for Oklahoma cases where the attorney fee award significantly exceeded the amount of the verdict.

Answer: S.W. Bell Telephone Company v. Parker Pest Control, Inc., 737 P.2d 1168 (Okla. 1987)(Amount involved is just one criteria; approves $3,000 fee on $1,500 confession of judgment).

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].

I represent two Oklahoma residents in Missouri auto wreck. Can I combine their damages to meet amount in controversy to file in federal court so as not to have to file in Missouri?

Answer: You cannot aggregate claims from different individuals to reach the jurisdictional amount. See: Donato v. Parillo, 278 F.Supp. 892 (D.C.N.Y. 1967), Curtis v. Peerless Ins. Co., 299 F.Supp. 429 (D. Minn. 1969). Your question implies another problem though--it appears you think you can sue the Missouri defendants in federal court in Oklahoma where you don't have jurisdiction to sue them in our state courts. Except for a very few special cases (such as interpleader) the personal jurisdiction over a defendant in federal court is no broader than the personal jurisdiction of an Oklahoma court over that same defendant. It gets worse. If you sue in Oklahoma and can’t establish personal jurisdiction over the Missouri defendants and the statute has runs in Missouri, your claim is barred and will not be saved by 12 O.S. Sec. 100, the saving statute which permits you to refile within a year. Unless you are pretty sure you can get jurisdiction in an Oklahoma court, you need to get your suit field in Missouri within their statute of limitation.

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.

In a wrongful death case against the county am I capped under GTCA at $125,000 each for mother and father, or for one total of $125,000?

Answer: You are limited to one "claim" for a total of $125,000 (or $175,000 depending on the county). See, Carlson v. City of Broken Arrow, 1992 OK 163, 844 P.2d 152.

Appointed personal rep files wrongful death case individually and as personal representative of the estate. Defendant moves for summary judgment claiming Joe Blow can’t sue individually, but only on behalf of the estate. Any thoughts?

Answer: You need to dismiss the case as to the individual. A wrongful death case can be brought by the next of kin only when no personal rep has been appointed. See: 12 O.S. Sec. 1054: “In all cases where the residence of the party whose death has been caused as set forth in the preceding section of this article is 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 preceding section, Sec. 1053 provides for an action which must be brought by the personal rep: “A. When the death of one is caused by the wrongful act or omission of another, the personal representative of the former may maintain an action therefore”

Isn't it true a health insurance subrogation claim is null and void against a GTCA case?

Answer: That's a good question. 51 O.S. Sec. 155(27) says: “The state or a political subdivision shall not be liable if a loss or claim results from... 27. Any claim or action based on the theory of indemnification or subrogation...” Does this mean the injured plaintiff can collect for the medical bills paid under a subrogated health policy or does it mean the injured employee can’t recover for those medical bills, since the statute exempts the governmental entity from the liability. The governmental entities’ lawyers will argue the latter, arguing that the statute is obviously not intended to provide a windfall for injured plaintiffs. The injured plaintiffs’ lawyers will argue that the statute doesn’t, on its face, purport to deal with whether the injured plaintiff can recover but only says the subrogated entity cannot recover subrogation. Get ready to go to the Supreme Court.