Reinsurance Law Blog : Oklahoma Insurance Lawyer & Attorney : Stauffer & Nathan Law Firm

In Mid-Continent v. Blutone, the question was whether a Dodge pick up truck was insured under a fleet policy issued by Mid-Continent to Blutone when it was involved in an accident.  The jury found it was not covered and the 10th Circuit affirmed.

Blutone claimed it requested coverage on the truck in a 47 second telephone conversation with Mid-Continent's agent.  The 10th Circuit appeared skeptical that the necessary information could have been provided in 47 seconds.  The evidence was that Blutone was able to add or delete covered vehicles by notifying Mid-Continent’s agent, and that this had been routinely done without incident until this case.

Motion in Limine

Blutone wanted to submit an insurance verification card on the truck to show that there was coverage (or at least, that Blutone thought there was coverage).  The court said no, but that if Blutone thought it was relevant, to let him know and he would revisit the ruling.  Since Blutone never made an offer of proof, the issue was not preserved for appeal.

Jury Instructions

Blutone also wanted the jury instructed that the agent could bind Mid-Continent.  But, because there was a stipulation on that issue, there was no error in not instructing the jury. 

• Email This
• Print
• Comments
• Trackbacks

Plaintiffs got a judgment against Bowman and sought to garnish his alleged insurer, Acceptance. Acceptance insured the car dealer who sold Bowman’s dad the car. The car dealer never gave Bowman a title or signed the sales agreement. Acceptance said that it did not insure the car because Bowman (not Bowman’s dad) owned the car. Both parties filed for summary judgment, which was granted to plaintiffs. The Court of Appeals reversed. Acceptance said that Bowman’s dad owned the car, but the trial court said that Acceptance could not deny liability on a ground not identified in its denial letter. (This is commonly referred to as the "denial letter rule." ) An insurer, having denied liability on a specified ground, may not thereafter deny liability on a different ground. But, since the material issue was that the car dealer didn’t own the car, not whether Bowman or his dad owned it, there was no waiver, since this issue was raised in the denial letter.

The next issue was whether the uncontroverted facts established the ownership of the vehicle. Texas courts look to the transfer of possession and control of the vehicle, pursuant to the parties' intent to effect the sale to determine ownership for insurance purposes. Here, it was uncontroverted that Bowman’s dad paid the full sale price for the car. Furthermore, it was uncontroverted that the car was delivered to Bowman’s dad who took possession of it. But, since the car dealer didn’t sign the sales contract, there was a factual issue as to whether the car was sold to Bowman.

Sauvain v. Acceptance, Missouri Court of Appeals, Western District.

• Email This
• Print
• Comments
• Trackbacks

In SHOLER v. ERC MANAGEMENT GROUP, LLC, 2011 OK 24,  the Oklahoma Supreme Court reversed summary judgment on a diving accident claim.  Sholer was rendered quadriplegic after diving into a swimming pool and hitting her head.  Although she admitted that she knew the danger of diving into water of unknown depth, a question of fact exists regarding whether the danger of diving head first into the pool was an open and obvious danger or whether the diver was presented with a deceptively innocent appearance of safety which cloaked the reality of danger making summary adjudication inappropriate.

The court states: 

We have rejected the "open and obvious defense" in a number of cases where the condition or defect was visible but unseen by the plaintiff. A danger need not be totally or partially obscured from vision or withdrawn from sight to be considered hidden. Rather, it may encompass a condition presenting a deceptively innocent appearance of safety, cloaking a reality of danger. It may also arise from circumstances diverting the plaintiff's attention from the danger. Therefore, not every "observable" condition is "open and obvious" as a matter of law. Whether harm from an open and obvious defect may be actionable depends on an objective due care standard, i.e., whether under similar circumstances a prudent person would be able to see the defect and avoid being injured. Nevertheless, it is well established in our jurisprudence that, where conflicting evidence is presented on the issue of the open and obvious nature of a defect, the question must be resolved by the trier of fact. What would normally be considered an open and obvious danger may become a latent defect because of the conditions existing at the time of injury.

Despite Sholer's admissions indicating that she understood the dangers of diving into waters with an unknown depth, she also indicated that the pool's lighting made her believe that it would be safe to do a shallow-water dive. Based on what she observed, Sholer thought the water was as deep as five or six feet. Sholer specifically stated that her perception was linked to the pool's lighting which created shadows. Her rescuer bolstered Sholer's contentions by indicating that he could not determine the depth of the water until he entered the pool. We hold that the openness and obviousness of the dangerous condition and whether Scholer appreciated the risk are questions for the trier of fact making the entrance of summary judgment inappropriate.

• Email This
• Print
• Comments
• Trackbacks