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

The Supreme Court of Oklahoma, in essence said “not so fast” to the lower court in determining the timeliness of a medical malpractice claim. In Hawk Wing v. Lorton, plaintiff filed a medical malpractice claim against her orthopedic surgeon and clinic for failure to diagnose and treat fractures in her left foot which resulted in a lifetime disability.

After a car crash on February 10, 2006, plaintiff complained of pain to her left leg and left foot. Dr. Lorton (Defendant) performed surgery on her left leg on February 11 and February 13, 2006. During plaintiff’s follow up appointment with defendant on March 2, 2006, she continued to complain of swelling and pain in her left foot; however, defendant advised her that x-rays were unnecessary and that her condition would improve. Although plaintiff continued to complain of pain, defendant did not order x-rays, until April 3, 2006. Those x-rays showed several fractures in Plaintiff's foot. Defendant refused to refer Plaintiff to an orthopedic foot specialist and advised Plaintiff that the permanent condition of her foot could not be determined for another six to twelve months. Defendant also assured plaintiff that her foot was healing properly and he advised her to continue to walk on her left foot.

On October 19, 2006, Plaintiff sought a second medical opinion in which she was advised of the severity of her injuries and that she would never walk again. Plaintiff brought a medical malpractice action on August 8, 2008 and defendants moved for summary judgment on the basis that the claims were barred by the “discovery rule” of the two-year statute of limitations which required plaintiff to file a cause of action within two years from the date that she knew or should have known of her injury through the exercise of reasonable diligence.

The trial court granted summary judgment as a matter of law and the court of appeals affirmed. The Supreme Court, however, identified 2 key factors in applying the “discovery rule” to this malpractice case: (1) the injury complained of; and (2) when did Plaintiff acquire sufficient information by which she knew or should have known of the misdiagnosis and negligent treatment of her broken foot was the cause of the injury for which she seeks damages. The Court reasoned that the question of when a plaintiff possesses sufficient knowledge to trigger the running of a statute of limitations is one of fact and one of which reasonable minds could differ. Thus, this cause was remanded to trial court for submission to the trier of fact.
 

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In Novell, Inc. v. Vigilant Insurance Company, the 10th Circuit affirmed defendant-appellee’s motion for summary judgment. Plaintiff-Appellant (Novell) was sued by another company (SCO) in Utah state court for slander of title. Novell requested Defendant-Appellee’s (Vigilant) defense in the slander action pursuant to a general liability insurance contract which required Vigilant to pay for any personal injury that Novell was obligated to pay. The Policy defined personal injury to include electronic, oral, written or other publication of material that libels or slanders a person or organization. Vigilant refused to defend because SCO’s asserted allegations would not constitute personal injury. Novell sought declaratory relief in state court. After both parties filed Motions for Summary Judgment, the Court granted summary judgment in favor of Vigilant.  Novell appealed.   The Court’s standard was whether the allegations, if proved, could result in liability under the policy. Novell asserted that SCO’s alleged facts in the slander of title cause of action implicitly asserted a claim for defamation  and was thus subject to coverage under the insurance contract.  Specifically, Novell argued the alleged statements concerning proper copyright ownership could give rise to a potential cause of action for defamation because it called into question  SCO’s honesty and significantly harmed SCO’s business reputation. The 10th Circuit wasn’t persuaded and held that since SCO did not allege that Novell’s statements impeached SCO’s honesty, integrity , virtue, etc., then Novell’s contention that the allegations implicitly calls SCO dishonest is just” too great a stretch.” Although SCO’s complaint focused on a copyright ownership dispute and the complaint alleges injury to SCO’s business reputation, the absence of allegations of defamatory comments persuaded the court to affirm the  trial court’s decision. 
 

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Lee v. Max does not involve insurance, but it does involve issues that arise in many insurance (and other) cases -- discovery disputes.  Here, the plaintiff failed to turn over documents in discovery, then failed to turn them over after an order compelling the turnover was granted; and then failed to timely turn them over after they were ordered to do so by the court again.  The last time, they turned some more stuff over and certified under penalty of perjury that all the documents were turned over -- and then turned over some more.  While the Tenth Circuit prefers that the district court say why it is dismissing a case for discovery sanctions, if the Tenth Circuit can figure it out, it can decide it.  Here, it was easy to tell what happened, and the fact that the plaintiff failed to comply with two court orders on discovery was sufficient to support dismissal.

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After a large judgment was entered on behalf of their client, the law firm split up, resulting in a fee dispute between the lawyers.  When one of the lawyers sought a defense from his professional liability insurer, it filed a declaratory judgment action, claiming that there was no coverage for fee disputes.  The trial court agreed, and the Court of Civil Appeals affirmed.

The Court of Civil Appeals cites from the trial court's ruling as follows:

Oklahoma Attorneys Mutual Insurance Co. v. Capron, 2011 OK CIV APP 46

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