Defendant is a permissive user of the vehicle involved in the collision. Insurer for vehicle has tendered limits. Will Defendant be covered under his parent's liability policy as a resident household member, if he is not a named insured?

Answer: Yes.

For automobile insurance purposes, do children(unemancipated minors) of divorced parents have dual residences? And if so, has any Oklahoma court determined a set of factors to examine in deciding the issue of residency?

Answer: Most cases dealing with the issue hold that a child of divorced or divorcing parents can be a member of both the household of the mother and the father. See: Snedegar v. Midwestern Indem. Co., 541 N.E.2d 90 (Ohio App. 1988): Dead child was member of divorced father’s household for auto insurance purposes, even though child spent only one or two nights a week there and used stepfather’s address for school and church. American Family Ins. Co. v. Thiem, 503 N.W.2d 789 (Minn. 1993): Child of divorced parents could be member of household of both where he maintained extensive contact w/both.

There is a good ALR annotation at 93 ALR3d 420 entitled “Who is amember of same household or family as named insured. It contains Sec. 66[a] “Child living with named insured’s former spouse or spouse having separate residence – Held ‘resident or member.’"

Unfortunately, I don’t think we have a published Oklahoma case on the subject.

When an Indian tribe has BCBS health insurance for its employees, does the coverage come under ERISA?

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

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

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

Tortfeasor is delivering pizza when he causes wreck with my client. His car is personally insured but they say no coverage because he was using the car for business purposes and they have an exclusion. Is such an exclusion valid and, if so, can it exclude even the minimum coverage required by law?

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

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.

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.

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)....”

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).

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.