If I settle auto liability and UM claims, does a general release bar a dram shop action against another defendant? Or should I insist on language reserving the claim against the bar?

Answer: I think you are OK without the specific reservation, although I don’t see how it hurts to use it. See:Moss v. City of Oklahoma City, 1995 OK 52, 897 P.2d 280, 288: “we join those courts that hold for a general release like those present here to discharge from liability potential tortfeasors not parties to the release the language contained in the release must expressly designate by name or otherwise specifically identify such other potential tortfeasors.”

Is four-wheeler ATV liability covered on homeowners’ policy?

Answer: Most homeowners policies have a “motor vehicle exclusion” which only excludes liability for the use of a vehicle designed for use on public roads. They do generally cover off-road vehicles.

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.

I have a fire case with total loss of a large metal building and all content. Defendant (co-tenant) has filed for summary judgment claiming we cannot establish causation. All experts, including defendant's, agree that origin was in defendant's half of the building and that because of the extent of the fire, specific cause will never be known. They all also agree that two potential causes were in exact area of fire origin: (1) extension cord running (in violation of National Electric Code) through metal skin of the building and showed evidence of faulting; and (2) history of defendant's employee smoking right before fire started. Under NFPA 921, because there is more than one potential cause, fire has to be listed as "undetermined." My cause/origin and electrical engineer experts (and other investigators) have testified that we know one of the two causes but can't say either one qualifies as "probable" (51% or greater) under NFPA 921 because of the extensive fire damage.

First question: Does defendant get off the hook for lack of causation based on the fact that the fire they negligently caused rendered a "probable" finding impossible using NFPA jargon? (The "undetermined" categorization is the entire basis for summary judgment.)

Second question: Does defendant get the benefit of evidence being destroyed through its negligent actions to the point that "probable" cause of the fire cannot be established? (For instance, in medical cases, health care providers should not be given the benefit of the uncertainty created by their own negligent conduct.

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

However, you probably can apply res ipsa.

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

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

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

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

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

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

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 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.

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.

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.