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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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