In Berendes v. Geico Casualty Co., the 10th Circuit (Utah) (unpublished) affirmed summary judgment in favor of the defendant insurance company on a bad faith claim.Plaintiff said the insurance company was in bad faith because there was no offer of policy limits within 30 days. Plaintiff sued the tortfeasor, got an excess judgment, and went after the insurance company.But the insurer HAD offered policy limits, which were rejected by plaintiff’s counsel as conditional, since the insurer asked for a waiver of subrogation from Plaintiffs insurer and requested information on the hospital lien. Rather, it was the plaintiff’s rejection of the settlement checks which caused undue delay; and those actions did not amount to bad faith by the insurer.
The assignability of tort claims was raised; and the court also found there was no duty of good faith to a third party claimant.
Appellant and respondent, both insurers, agreed to a joint defense but respondent refused to participate. Equitable contribution is due when one insurer pays part of another insurer's share on the same loss. It may be due between primary and excess coverage insurers. Remedy for unjust enrichment is subrogation. On appellant's equitable subrogation claim, respondent prevailed by summary judgment. But appellant's evidence of respondent's bad faith, and settlement on terms favorable to both appellant and respondent, raised genuine issues as to material facts. Amount of damages and percentage of fault are issues of fact. Genuine issues also remained as to respondent's duty to defend. Missouri Court of Appeals. Missouri Public Entity Risk Management Fund vs. American Casualty Company of Reading, Pennsylvania ;
In Allen v. Continental Western, the issue was whether the insurance company had a duty to defend a claim alleging a wrongful repossession by the insured. The insured had repossessed Whipple's van twice, apparently to get her to pay back a loan. In Missouri, an insurer's duty to defend is broader than that of the duty to indemnify."The duty to defend arises whenever there is a potential or possible liability to pay based on the facts at the outset of the case and is not dependent on the probable liability to pay based on the facts ascertained through trial." In determining an insurer's duty to defend a suit against its insured, the court compares the language of the insurance policy with the allegations asserted in the plaintiff's petition. But those facts which are known or ascertainable also control an insurer's duty to defend.
First, the court found the tort of conversion was not an “occurrence” (or accident) as required by the policy, because it was an intentional rather than an accidental act. Next, the court dismissed the idea that one could plead within coverage by claiming an intentional act was also negligent. The pleading reveals not a hint of negligent conduct.
Finally, the policy did not apply to "'[b]odily injury' or 'property damage' expected or intended from the standpoint of the insured." Since the insureds consciously acted to repossess Whipple’s van with both the intention, and expectation that Whipple would not be able to use it, there could be no coverage.
In Smith Flooring v. Pennsylvania Lumbermens, the insured had a policy with Pennsylvania Lumbermens (PennL) for 5 years. An endorsement excluding coverage for a building was omitted from the policies issued for the last two years. Of course, in the last year, the building collapsed; Smith Flooring made a claim and the insurer denied it. When Smith Flooring sued, PennL asked that the policy be reformed to exclude the collapsed building, that the insurance policy did not accurately set forth the agreement of the parties. When the jury found for Smith Flooring on all claims, the court decided that the reformation claim finding was advisory only. The trial court then substituted its judgment for the jury's and found for PennL. The Eighth Circuit affirmed.
While the trial court erred in finding that there were no issues common to the parties' legal and equitable claims, there was no need to reverse or retry the case. Smith Flooring had a Seventh Amendment right to a trial by jury on the common issue of what the terms of the intended contract were. The district court also erred in treating the jury's verdict as merely advisory under Federal Rule of Civil Procedure 39 insofar as this issue is concerned. But there was insufficient evidence to find in Smith Flooring's favor as all the evidence showed the "clear intent of the parties originally was to exclude the Pine Warehouse from coverage. The inadvertent omission of an exclusion endorsement created only the appearance of coverage; it did not provide proof of a request for coverage or of payment therefor. The provisions of the written policy sans endorsement did not reflect the agreement of the parties that there was no coverage for the Pine Warehouse in January 2009."
As reported by the Washington Insurance Law Letter, the Supreme Court of Washington refused to permit an insurer to recoup defense costs where the insurer had defended its insured under a Allowing reimbursement is not consistent with Washington cases regarding the duty to defend, which have squarely placed the risk of the defense decision on the insurer’s shoulders. In other words, since insurers have the right to control the defense, the risk of choosing badly is put on the insurance company. . . i.e., with great power comes great responsibility.
In Merseal v. Farm Bureau, the Merseals filed for bankruptcy and valued the property in their home at $600. Six months later, the house was destroyed in a fire, and the Merseals made a personal property claim for $150,000 dollars.
Farm Bureau denied the claim because the Merseals intentionally misrepresented the extent and amount of their personal property. Farm Bureau based its belief on the discrepancy between the value of the personal property stated in the Merseals’ bankruptcy filing and the insurance claim. The Merseals sued alleging breach of contract and vexatious refusal to pay. A jury found in favor of the Merseals, and the trial court entered judgment according to the jury's verdict. The Merseals were awarded $134,362 on the policy, $13,586 for vexatious refusal to pay, and $67,000 in attorney's fees. The appellate court affirmed.
Misrepresentations must be intentional to avoid the policy. The method of valuation for bankruptcy is different from the method for valuation for insurance claims. Further, it was claimed the mistakes were made in the bankruptcy filing, and not in the insurance claim. The vexatious refusal claim was also upheld. Farm Bureau placed the limits on the personal property after the bankruptcy claim without input from the Merseals; had the property valued after the fire by an independent company which valued the property at $131,929 actual cash value and $146,135 replacement cost; and failed to further investigate after getting a letter from the Merseals acknowledging errors on their bankruptcy statement, and explaining those errors.
In Kersten v. State Farm, 2013 Ark. 124, Kersten was sued by State Farm for negligence as a result of a car accident involving a State Farm insured. Kersten filed a counterclaim against State Farm alleging that State Farm was unjustly enrich ed as a result of having engaged in the deceptive and unlawful business practice of causing collection-style letters to be mailed in an attempt to collect unadjudicated, potential subrogation claims as debts. The counterclaim was filed on her own behalf and on behalf of others similarly situated. The class certification was dismissed, but the Arkansas Supreme Court reversed.
“We conclude that these allegations, at this early stage of the pleading phase, sufficiently plead a course of State Farm’s conduct that is typical of both Kersten and the class. And we conclude that the circuit court therefore abused its discretion in adopting the flawed reasoning State Farm asserted in its motion as to the typicality requirement being subject to determination according to the injuries sustained by the alleged wrongful conduct.”
The Arkansas Supreme court reversed the trial court and remanded the matter; but did not grant class certification as requested by Kersten.
When Joyce Bentley brought her granddaughter and friend to her house for the night, she forgot to turn her car off in the garage. All got sick from the fumes, and Bentley and the granddaughter died. The estate and her insurer, American National Property & Casualty, (ANPAC) were sued. The trial court granted summary judgment to ANPAC on its claim that the pollution exclusion applied to preclude coverage. The appellate court reversed, finding that the pollution exclusion was ambiguous, and that the reasonable expectations of an insured would be that such claims would be covered.
The exclusionary language relied upon by ANPAC in denying coverage states: Coverage E – Personal Liability and Coverage F – Medical Payments to Others do not apply to bodily injury or property damage: * * * n. arising out of the actual, alleged or threatened discharge, dispersal, seepage, migration, release, or escape of pollutants . . . Elsewhere, the policy defines "pollutants" as "any solid, liquid, gaseous, or thermal irritant or contaminant, including but not limited to smoke, vapors, soot, fumes, acids, alkalis, toxic chemical, and waste. Waste includes materials to be recycled, reconditioned, or reclaimed." "Combining these various provisions, the Policy excludes coverage for any bodily injury resulting from the 'discharge, dispersal, seepage, migration, release or escape' of 'any solid, liquid, gaseous or thermal irritant or contaminant, including smoke, vapor, soot, fumes, acids, alkalis, [toxic] chemicals and waste." Apana v. TIG Ins. Co., 574 F.3d 679, 681 (9th Cir. 2009).
This is standard language used by the insurance industry and is frequently referred to as the "total pollution exclusion." Id. at 680.
The court discusses the history of the pollution exclusion clause: "Since the adoption of the absolute pollution exclusion, however, insurers have repeatedly sought to exclude coverage under this exclusion for injuries that have occurred outside the realm of what would be considered traditional environmental pollution." The court rejected the claim that the dictionary definition should apply: "Rather, a court properly refusing to make 'a fortress out of the dictionary' must attempt to put itself in the position of a layperson and understand how he or she might reasonably interpret the exclusionary language." "Without some limiting principle, the pollution exclusion clause would extend far beyond its intended scope, and lead to some absurd results."
In short, an interpretation that ignores the familiar connotations of the word "pollutant" and that would lead to absurd results is not the interpretation that an ordinary person of average understanding would adopt.
The court cited cases holding that carbon monoxide would not be excluded under a pollution exclusion clause and reasoned that carbon dioxide should be similarly treated. The exclusion was ambiguous and the reasonable expectations of the policy holders required that the claim be covered. Summary judgment to the insurance company was reversed, and summary judgment for the policy holder was entered.
A household exclusion was not ambiguous despite placement, indemnification provision, incorporation of statute by reference, lack of dollar amount in reference to statute's minimum requirements, or effect on family members. Statute requires insurance policy to provide minimum protections and household exclusion is void only as to that requirement; above that amount exclusion is effective. Exclusion is void only to the extent of the minimum.
In ABC Seamless Siding & Windows, Inc. vs. Brian K. Ward, et al, Martin wanted to start a window and sidings business. He asked Brian Ward about insurance generally, and workers compensation insurance specifically. Martin claims that Ward told him if he only had two employees which were officers, he did not need workers comp insurance. This followed the information Martin received from his former employer, who also told him to be sure to get certificates of liability insurance from his subcontractors to verify that the subcontractors carried workers compensation insurance in the event of a work-related injury. Of course, Martin did not get workers comp insurance, and an employee of a subcontractor was hurt on the job. Martin had not gotten a certificate of coverage from the subcontractor, and coverage had lapsed at the time of the injury. Summary judgment to the insurance agent was affirmed.
The elements of claim for professional's negligent misrepresentation include: in the course of professional's business with specific persons in a specific transaction, professional gave information that was false for lack of due care, on which those persons reasonably relied to their detriment. Reliance depends on whether the information was a material factor in decision on the matter advised. Because plaintiff did its own investigation before making a decision on whether to buy workers' compensation insurance, plaintiff could not show reliance on insurance seller's advice.
Because ABC cannot, as a matter of law, demonstrate any reasonable reliance upon the statement attributed to Ward, and because reasonable reliance is a necessary showing for each of the claims ABC raised below, the trial court committed no error in granting summary judgment in favor of Ward. The trial court’s judgment is affirmed
In Stewart Title v. Dude (nominated for a great case name of the day salute) Mr. Dude failed to disclose a $1.9M mortgage when trying to get another $500k mortgage on the property. The first mortgage had not been properly recorded, and did not show up in a title search. Later, the house was sold and the $1.9M that should have been paid to the bank was paid to Mr. Dude. When the bank threatened the new owner with foreclosure, Stewart Title stepped up and paid off the bank. Stewart Title then went after Mr. Dude to get its money back.
The jury found for Stewart Title and awarded actual and punitive damages. On appeal, Dude argued that the verdict should be overturned because any reliance on Dude's misrepresentation was not "justifiable":
The precise work performed by the adjectival epithet “justifiable” when it comes to the reliance element in fraud is more than a little elusive. Everyone agrees it operates to allocate the risk of loss to an actually deceived plaintiff in some circumstances. But that may be where the agreement ends. See W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 108, at 750 (5th ed. 1984). Some understand the law as requiring the plaintiff to ferret out the facts from even the vaguest intimations or else bear the risk of loss. Id. Others read it as imposing no duty to investigate at all and allocating the risk of loss only to the most foolish of plaintiffs. Id. Happily, to decide this case we don’t have to decide this debate. Mr. Dude presents two discrete theories of justifiable reliance and we can limit our discussion in this appeal to their terms without touching broader and more difficult questions.
First Mr. Dude said there was no justifiable reliance because Stewart Title knew I was lying. Second, Mr. Dude argued that Stewart Title had constructive notice of the lien.
This is a fraud dispute on appeal after a trial where the jury was properly instructed and Mr. Dude is left to argue only the insufficiency of the evidence to support its verdict. To prevail in these circumstances, Mr. Dude faces the daunting job of having to show that “the evidence points but one way [his way] and is susceptible to no reasonable inferences supporting the party opposing the motion; we must construe the evidence and inferences most favorably to the non-moving party.”
He failed to do so. There could be no constructive notice where the lien was not properly filed. Whether the bank’s failure to properly file its lien and whether Stewart Title had an obligation to pay the lien was not raised below.
A suit alleging legal malpractice in the handling of a patent case did not "arise under any Act of Congress relating to patents," 28 U.S.C. § 1338(a), so that the federal courts had exclusive jurisdiction over it, the Supreme Court held today. Indeed, Chief Justice Roberts's opinion for the unanimous Court indicated that "state legal malpractice claims based on underlying patent matters will rarely, if ever, arise under federal patent law for purposes of § 1338(a)." Although the malpractice claim did require resolution of a patent-law question, that resolution was not—as precedent requires—"substantial" enough to require a federal forum. To be "substantial" for these purposes, a federal issue must be important to the federal system as a whole. In the case at bar, the patent-law question was "merely hypothetical": would the result in a particular infringement case have been different in the absence of attorney error? Nor was there any danger that allowing state courts to resolve these claims would undermine the uniform development of patent law. Gunn v. Minton, S. Ct. No. 11-1118 (Feb. 20, 2013).
In Jones v. Union Mutual, 2013 OK CIV APP 12, Jones had a "home property" policy with Union. When his house was broken into, the claim was denied because there was no theft coverage under the policy. Jones sued in small claims court and won, but the Court of Civil Appeals reversed. The policy covered burglary damage -- i.e., damage to the house caused by burglars, but did not cover the property actually stolen. Jones did not read his policy and claimed not to have received it. Jones' only recollection as to these policy distinctions was that, "He (agent) present me the prices and the coverage. I picked the one at the lowest cost. That's because we all poor and trying to get the best for the mostest (sic) with the leastest (sic) so I picked that policy."
The policy language for the covered peril provides:
9. Burglary Damage - This means damage to covered property caused by burglars. However, we do not pay for loss on the insured premises if the residence is vacant for more than 30 days in a row just before the loss. A residence being built is not vacant.
This language is only susceptible to one reasonable construction. Coverage is limited to actual damage done to just the "Coverage A - Residence" or the "Coverage B - Related Private Structures" sections as Union argues. We therefore reject Jones' argument that the first sentence covers damage in the form of theft loss to "Coverage C - Personal Property."
We hold this provision is unambiguous as a matter of law. Had Jones read the policy, we hold he could not reasonably expect the policy to provide coverage for personal property theft loss. The trial court's judgment is therefore reversed.
In Anchondo v. Dunn, (10th Cir, NM, unpublished), the lawyer (Dunn), who represented the defendant ACA in a class action under the Fair Debt Collection Practices Act, was ordered to pay the plaintiffs' damages and fees as a sanction for failing to disclose the existence of a professional liability policy which could have covered the claim. The insurer denied the claim as untimely.
More specifically, the district court found that Mr. Dunn and Mr. Backal (Mr. Backal was ACA’s president, his bankruptcy precluded any finding against him) knew ACA had a professional liability policy sufficient to cover the amounts owed to plaintiff; that the pair acted in bad faith in failing to disclose (indeed, denying) the existence of this coverage despite appropriate requests during the discovery process; that the pair acted in bad faith in failing to file a timely claim on the policy; and that Mr. Dunn’s special relationship with ACA and his participation in the scheme made it appropriate to hold him jointly liable with Mr. Backal.
The district court cited a number of facts supporting its decision including its disbelief of Mr. Dunn’s and Mr. Backal’s explanations for their conduct. The court relied on the fact that ACA had professional liability coverage for suits arising from its wrongful acts; that Mr. Dunn and Mr. Backal knew this; and that during discovery Mr. Dunn failed to turn over documents reflecting insurance applicable to the suit; and that the pair allowed the period for filing a timely claim to lapse. All these facts, quite apart from and in addition to the court’s disbelief of Mr. Dunn’s and Mr. Backal’s testimony, contributed to its inference of bad faith.
The sanctions were affirmed and the matter remanded to determine attorneys fees on appeal.
In West Bend Mutual Ins v. Arbor Homes, (the plumber forgot to connect the home's drainage system to the city's sewer. Arbor worked on fixing the problem with the homeowner. A settlement agreement was reached, and Arbor thought that Westbend was told about it and did not object. Westbend insured the plumber and Arbor was an additional insured.
The voluntary payments provision states:
No insured will, except at that insured's own cost, voluntarily make a payment, assume any obligation, or incur any expense, other than for first aid, without our consent.
The purpose of this provision means that West Bend must have the opportunity to protect itself and its insured by investigating any incident that may lead to a claim under the policy, and by participating in any resulting litigation or settlement discussions. Any insured that settles a claim without West Bend's knowledge or consent does so at the insured's own expense under the express language of this provision.
Yet neither Arbor nor plumber obtained West Bend's consent before settling. Instead, Arbor relied on Plumber to place West Bend on notice and then construed the insurer's subsequent silence as a lack of objection to the settlement. Arbor now can produce no evidence that West Bend consented to Plumber's settlement with Arbor or Arbor's settlement with the homeowner. West Bend has produced uncontroverted evidence that it knew nothing of the damage to the home until after Plumber and Arbor agreed on their respective liabilities to each other and to the Homeowner. And West Bend knew nothing of the terms of the settlement agreement until after Arbor's lawsuit against Plumber was underway. There is no evidence that West Bend “consented” to any settlement as required by the voluntary payments provision. Although Arbor behaved admirably in expeditiously resolving the matter for the homeowners, it failed to protect its own interests when it relied on Plumber to notify West Bend about the incident, and failed to obtain West Bend's consent for any settlement. Having no opportunity to participate in the investigation or settlement, West Bend is entitled to enforcement of the plain language of the contract: Arbor's settlements with Plumber and with the Homeowner without the consent of West Bend is at Arbor's own expense.
Six months later, Heubel told Universal about the lawsuit. Universal sent out a reservation of rights letter because of the late notice. Later, Universal withdrew the reservation of rights letter, and agreed to defend Heubel, but wanted Heubel to cooperate by pursing an indemnification claim against Raymond. Heubel responded by claiming that “Universal's requirement that Heubel pursue and enforce indemnity [against Raymond] creates a potential or actual conflict of interest between Universal and Heubel,” which would entitle Heubel to select its own counsel and control the defense of the underlying suit. Heubel also added claims for breach of the insurance contract.Universal then claimed that Heubel's lack of cooperation absolved Universal of any duty to provide coverage. On cross motions for summary judgment, the district court held that Heubel had breached the cooperation clause of the Universal policy; that the breach was not excused by a conflict of interest or reservation of rights; and that the lack of cooperation substantially prejudiced Universal, absolving it of the duty to defend or provide coverage for the underlying suit. Heubel appealed and the Eighth Circuit affirmed.
In BSI Constructors, Inc. v. Hartford Fire Ins. Co. BSI contracted to build a commercial building. The roof was completed, and was damaged during the remaining construction. As a result, a new roof had to be put on the building at a cost of $174,000. BSI made a claim against Hartford on its Builder's Risk Policy. Hartford declined to cover the cost of the new roof, citing the faulty workmanship exclusion, which states
2. We will not pay for "loss" caused by or resulting from any of the following:
. . . .
g. Defective, deficient or flawed workmanship or materials, or for expenses to redesign or revise flawed or defective plans or architectural designs.
But we will pay for "loss" to other Covered Property that results from such defective workmanship, materials or design provided such loss or damage is not otherwise excluded in this policy.
Summary judgment to Hartford was affirmed on appeal. BSI argued that the faulty workmanship exclusion excluded coverage only for defects in the quality of the project as constructed, rather than excluding coverage for accidental damage to the project during construction. But the Eighth Circuit concluded that the faulty workmanship exclusion encompasses both a flawed product and a flawed process and thus applied to exclude coverage in this case. There is a discussion of other case law on the issue.
In Tran v. Nationwide Mutual Ins. Co, (unpublished) Ms. Tran was injured in an accident with an uninsured motorist. She filed a claim with Nationwide. After Nationwide made several requests for medical bills, Ms. Tran's attorney submitted them with a demand for payment of policy limits. The bills totaled approximately $11,000. There followed several rounds of offers between Nationwide and Tran's attorney. At some point, the lawyer demanded payment of the undisputed amount of the damages, but Nationwide declined. Eventually, Tran sued Nationwide for breach of contract and bad faith. The parties filed summary judgment motion on the issues of bad faith and breach of contract. The trial court granted Nationwide's motion and denied Tran's motion and Tran appealed. The 10th Circuit affirmed.
Tran claimed that Nationwide was in bad faith for not tendering the undisputed amount of the claim until after suit was filed, and was in breach of contract for not paying her the non-economic (pain and suffering) damages to which she was entitled. Tran relied on the Quine case which was previously summarized here. There was no bad faith because there was a legitimate dispute as to the value of Ms. Tran's claim. There was no breach of contract because there was no evidence of Ms. Tran's non-economic damages presented to the trial court.
In City of Choctaw v. Oklahoma Municipal Assurance Group, 2013 OK 6, the issue was whether a claim for inverse condemnation was covered by Oklahoma Municipal Assurance Group. The policy excluded coverage for claims of eminent domain (e.g., where the government files suit to take private property for public purposes); and for inverse condemnation (where the landowner files suit because he believes the government has taken his property for public purposes). Despite this, the trial court ruled in the City's favor. The Oklahoma Supreme Court reversed. The insurance company had given the city notice that the policy did not cover the claim for inverse condemnation, The majority on the court found no basis for estoppel, as the trial court found. The dissent noted that some facts would permit a finding of estoppel; and it remained a fact question. Despite this, the Supreme Court reversed the summary judgment in favor of the insured with directions to enter judgment for the insurer.
In Bituminous Casualty v. Pollard, (unpublished), Pollard was injured while working on an oil well. Pollard was using a rig truck which had been put into place to be used as a derrick. Pollard was on the oil pump when he claimed the winch on the truck malfunctioned, causing injury. The insurance company sued Pollard, claiming he was not entitled to coverage. The trial court agreed and the Tenth Circuit affirmed.
The insurance company claimed that Pollard was not occupying the vehicle, and that the vehicle was not being used for its transportation nature, thus precluding coverage. The trial court found for the insurer on both issues, but the Tenth Circuit affirmed only on the grounds that the truck was not being used for transportation, thus, there was no coverage.
We conclude that the transportation-use requirement adopted by the Oklahoma Supreme Court in Sanders applies to a UM claim alleging an injury that arose out of the use of a motor vehicle, including when the injury also arose out of the ownership and/or maintenance of the vehicle, as Mr. Pollard alleged. And the requirement applies regardless of whether the insured is legally entitled to recover damages from the owner or the operator of the uninsured motor vehicle under § 3636(B). To be entitled to coverage under the UM Endorsement, Mr. Pollard was therefore required to show (1) that a use of the workover rig was connected to his injury and (2) that use was related to the transportation nature of the workover rig. See Sanders, 803 P.2d at 692.
* * * * *
The steps taken by Mr. Pollard and his crew to transform the workover rig from a motor vehicle into a fixed derrick severed any causal connection between the transportation nature of the workover rig and Mr. Pollard’s injury. Accordingly, his injury was not within the coverage mandated by § 3636, and he was not covered under the UM Endorsement.
In addition, summary judgment was proper as to Pollard's bad faith claim against Bituminous.
In Manner v. Schiermeier, Manner was severely injured when the motorcycle he was driving was hit by a car driven by Schiermeier. Manner had $1.5 Million in damages. Manner sued Schiermeier for negligence, and Schiermeier’s insurer paid its $100,000 liability limit. Manner then sued his insurance companies for underinsured motorist coverage. The trial court granted the insurers summary judgment on the grounds that the "owned vehicle exclusion" precluded coverage. The Missouri Supreme Court reversed.
Manner had agreed to buy the motorcycle from his uncle, but Manner was still paying for it, and the uncle still had the title when the accident occurred. Simply because Manner had an insurable interest in the motorcycle did not make him the owner of the motorcycle. Because the insurers did not define "owner" to include anyone with an insurable interest in the vehicle, the insurers had not met their burden of proof on this issue.
The policies defined an "underinsured motorist" as one who's liability limits are "less than the limits of liability of this Underinsured Motorists coverage." The insurers argued that since the liability limits of Schiermeier were the same as the UM limits, the tortfeasor, Schiermeier was not an underinsured motorist. The Supreme Court rejected this argument as well, citing Seeck v. Geico Gen. Ins. Co., 212 S.W.3d 129 (Mo. banc 2007).
If the UM policies permits coverage from multiple policies to be stacked, then the coverage provided by the policies is their stacked amount, not the amount each would provide if considered separately, and it is the stacked amount that must be compared against the insurance coverage of the tortfeasor. When insurance policies permit stacking, the coverage contracted for is the total of the policy limits when stacked. In this case, the policies allowed stacking because of the excess clause in the UIM coverage.
Finally, the insurers argued they should get a credit for the $100,000 paid by the tortfeasor. The Court rejected this claim, stating:
The policy promises to pay the listed limits of liability, not simply the listed limits of liability reduced by the amount paid by the tortfeasor. Insurers’ construction of the policy would permit the policy to promise to pay the full limits of liability and yet these limits never would be paid as the amount of liability promised always would be reduced by the recovery from the other driver.
The court also rejected the insurers' claim that the amount Manner received from a settlement of with the helmet manufacturer should also be deducted.
Federal preemption cannot block a class action alleging that Pacific Life Insurance Company charges excessive fees, the 9th Circuit ruled Wednesday.
A group of investors that purchased variable universal life insurance policies from Pacific Life filed a class action in California claiming that the company's "cost of insurance" fee is out of step with industry standards.
In Benson v. Leaders Life Ins. Co., 2012 OK 111, the insured did not admit to any alcohol problems in his life insurance application, although he did admit to having a blood clot in his leg. Almost a year later, the insured was killed when he was attempting to help a stranded motorist. Hospital records apparently showed the deceased had a blood alcohol content of 0.24%
After reviewing the records the insurance company concluded that Mr. Benson had falsified his answers on his application and rescinded the policy due to Mr. Benson's alcoholism. Leaders Life would rescind the policy even if the mistake was innocent, and the state of mind of the applicant was never considered. It was agreed that alcohol played no part in Mr. Benson's death.
The Oklahoma Supreme Court held in Massachusetts Mutual Life Ins. Co. v. Allen, 1965 OK 203, 416 P.2d 935, there must be a finding of an intent to deceive the insurer before a policy may be avoided by reason of the insured's false statement or omission in the application. "Massachusetts Mutual, Whitlatch, Brunson, Claborn and Scottsdale are controlling precedent from this Court requiring a finding of insured's intent to deceive an insurer before a misrepresentation, an omission or incorrect statement in an application can avoid the policy under §3609."
Since the jury heard the evidence and it was a jury question, the court refused to reweigh the evidence and affirmed the award of $350,000 in actual damages and $10,000 in punitive damages:
"In plain language, we are not allowed to substitute our judgment for that of the jury merely because we would have decided or viewed disputed material fact questions differently than the jury. Where competent evidence was presented at trial to support reasonable findings as to those material fact questions relating to the claim in suit and no reversible error is otherwise shown, an appellate court must affirm a judgment based on a jury verdict, not second-guess such judgment or the jury verdict upon which it is based. These general principles guide our review here.
In the present matter, at trial, Leaders Life made clear that they believed there were material misrepresentations made by Mr. Benson. They argued that insured had attempted to deceive them. However, the trier of fact, the jury did not find that such a misrepresentation had been made. They decided in favor of the beneficiary, Shannon Benson and awarded her $350,000.00 dollars in actual damages and $10,000.00 in punitive damages. In the present matter, Mr. Benson did not die from an alcohol related illness; he died by being hit by a car attempting to assist a stranded motorist. If he had ignored the stranded motorist, Mr. Willige, Mr. Benson would have not been struck and may still be alive and working today. This Court cannot substitute its judgment for that of the jury under the case law presented in this lawsuit. Brunson v. Mid-Western Life Ins. Co., 1976 OK 32, ¶21, 547 P.2d 970; Whitlatch v. John Hancock Mutual Life Insurance Co., 1968 OK 6, ¶11, 441 P.2d 956; Scottsdale Insurance Company v. Tolliver, 2005 OK 93, ¶11, 127 P.3d 611."
In Porter v. Farmers Insurance Co., (unpublished decision) the insured, Porter was in a one car accident in 2007. Porter anonymously called in the accident in 2008, and then identified himself and told Farmers about the accident in 2009. Porter initially claimed he did not recall the circumstances of the accident, but thought it was a one car accident. Later, he claimed another car was involved which caused the accident. Before the accident, Porter added the car to his policy. Porter said he wanted to add it as an additional car, but the agent replaced the truck Porter had insured with the car. Porter had previously signed a UM waiver on his truck, but did not sign one on the car.
Farmers decided that UM coverage was imputed as a matter of law and tendered payment. Porter's lawyer told Farmers to withhold payment while it was determined whether there were any liens on the payment. Eventually, in October, 2011, payment was made. Porter sued for breach of contract and bad faith. Summary judgment to Farmers was affirmed by the Tenth Circuit. The trial court held that to the extent UM coverage was imputed by law, Farmers’ payment of the statutory limit entitled it to summary judgment on the breach of contract claim. Denying Mr. Porter’s bad faith claim, the court held that Farmers’ investigation was adequate and its delayed payment was reasonable.
In Hall v. Allstate, the Missouri Court of Appeals reversed summary judgment in favor of the insured on a claim for stacked UM. Brian Hall was seriously injured in an automobile accident. After exhausting the tortfeasor’s policy limits, Mr. Hall and his wife filed a claim seeking underinsured motorist coverage provided in an Allstate insurance policy. The parties submitted the matter to the trial court on cross-motions for summary judgment. All agree that Mr. Hall should recover underinsured motorist benefits. The parties disagree on whether that coverage should stack. The parties also dispute whether Mrs. Hall is entitled to recover separate underinsured motorist benefits for her loss-of-consortium claim. The trial court permitted stacking, and thus entered summary judgment in favor of the Halls and against Allstate. Allstate appeals that decision. The trial court, however, ruled that Mrs. Hall was not entitled to recover separate underinsured motorist benefits for her loss-of-consortium claim, and therefore entered summary judgment against her. The Halls appeal that decision.
Because the policy unambiguously prohibits stacking of underinsured coverage, the appellate court reversed the trial court’s summary judgment permitting such stacking. The policy expressly barred “stacking” of underinsured liabilities and the limits-of-liability provision applied that limitation to each insured vehicle. Underinsured coverage had an “other insurance” clause that allowed stacking but only in excess of coverage “under another policy.” No ambiguity in that language.
The trial court’s entry of summary judgment denying separate underinsured motorist benefits for Mrs. Hall’s loss-of-consortium claim was affirmed.
In Leslie Hill vs. Government Employee Insurance Company, Leslie was injured in a car accident when she was struck by Malone who was drunk. Malone's insurer paid its limits on the claim, and then Leslie went after the owner of the car, Malone's father. But the limits had been paid, so there was no money to pay any claim by Leslie against the owner. Leslie therefore claimed the owner was "uninsured" and made a claim on her own insurance company for uninsured motorist benefit. Apparently, Leslie did not purchase under-insured motorist benefits.
The trial court granted the insurance company's motion for summary judgment and the court of appeals affirmed. The issue was appropriate for summary judgment, as it was a contract question, and the facts were undisputed. The issue of whether an insured is entitled to uninsured motorist (UM) benefits is based on the insurance policy, not tort law. Furthermore, the owner was not uninsured since he had an insurance policy with the minimum statutory limits. The fact that those limits were not available to pay claims did not make him "uninsured".
In addition, the tort of negligent entrustment was covered by the policy.
In Bayer CropScience LP v. Schafer, 2011 Ark. 518, Bayer was sued for letting its genetically modified rice get out in the wild, thereby damaging the Arkansas rice crop and hurting rice farmers. The jury awarded nearly $6 million in actual damages to rice farmers and also awarded $21 million of punitive damages against each of two Bayer entities for a total of $42 million in punitive damages. The trial court had ruled that the cap on punitive damages found at § 16-55-208 was unconstitutional, and the Arkansas Supreme Court affirmed.
Article 5, section 32 of the Arkansas Constitution, as amended by amendment 26, provides as follows:
The General Assembly shall have power to enact laws prescribing the amount of compensation to be paid by employers for injuries to or death of employees, and to whom said payment shall be made. It shall have power to provide the means, methods, and forum for adjudicating claims arising under said laws, and for securing payment of same. Provided, that otherwise no law shall be enacted limiting the amount to be recovered for injuries resulting in death or for injuries to persons or property; and in case of death from such injuries the right of action shall survive, and the General Assembly shall prescribe for whose benefit such action shall be prosecuted.
The court concluded that the punitive damage cap was unconstitutional because it limits the amount of recovery outside the employment relationship.
In Davis v. Progressive Northern, 2012 OK CIV APP 98, Davis was a passenger in a car involved in a one car accident. Progressive paid Davis liability limits but did not pay him UM (uninsured motorist) coverage because the named insured had rejected UM coverage and had not paid any premiums for it. Davis sued Progressive, claiming that the rejection was ineffective because the UM rejection form had not been approved by the insurance department. Eventually, the trial court dismissed the claim. The trial court found the selection/rejection form was in complete accord with 36 O.S. §3636(H) and failure to submit the form to the Department of Insurance for approval did not render the form invalid, citing 36 O.S. §3620.
The court of civil appeals affirmed the dismissal. The form used by Progressive was virtually identical to the required statutory language and was therefore effective to waive UM.
In Slawson v. Board of County Commissioners,2012 OK 87, the plaintiffs were required to present notice of their claim to the governing body within one year of the accident. The one year time limit expired on a Sunday. The plaintiffs tried to file it the Friday before, but arrived 10 minutes late. Eventually, the notice was accepted on the following Monday. The Board of County Commissioners got summary judgment, saying that the notice was filed too late. The Supreme Court reversed. Since the Board was not open on Sunday, the filing on Monday was timely. The Court cited 12 O.S. § 2006.
In Blakely v. USAA Casualty Insurance Co., the insureds had a fire in their basement. USAA paid for part of the loss, but the Blakely’s were dissatisfied and sought arbitration. The arbitration awarded the Blakelys much more than USAA paid, but less than the Blakelys wanted. The Blakelys sued for bad faith. Summary judgment was granted to USAA, and the Tenth Circuit reversed.
Under Utah law, the implied obligation of good faith and fair dealing requires “at the very least, that the insurer will diligently investigate the facts to enable it to determine whether a claim is valid, will fairly evaluate the claim, and will thereafter act promptly and reasonably in rejecting or settling the claim.” In this case, although the facts were undisputed, it was still improper to grant summary judgment because under Utah law, “[w]hether there has been a breach of good faith and fair dealing is a factual issue, generally inappropriate for decision as a matter of law.” Furthermore, “the fairly debatable defense should not be resolved through summary judgment if reasonable minds could differ as to whether the defendant’s conduct measures up to the standard required for insurance claim investigations.” The court found that the undisputed facts demonstrate that “reasonable minds could differ” as to USAA’s compliance with Utah’s standard for good faith and fair dealing, such that summary judgment was improper. The court also found that the parties entire course of conduct was relevant.
The facts relied upon for denial of summary judgment included: 1) USAA refused to replace a number of charred floor joists, and only replaced a small section of burned subflooring after repeated complaints from Plaintiffs. Even if USAA“performed all the repairs identified in [the structural engineer’s] report,” it is irrelevant, since the report specified that it only addressed structural concerns. In fact, the report suggested additional repairs were necessary to address the joist manufacturer’s warranty and “odor, or finishing difficulties;” 2) USAA’s structural adjuster refused at times to communicate with Plaintiffs; 3) USAA’s adjuster claimed not to be able to smell smoke, even though the appraisers could smell smoke three years later; 4) USAA’s personal property adjuster did not travel to Utah, but instead delegated her duties to the wife of the contractor, who was not an adjuster.
USAA then claimed that Plaintiffs never submitted a sworn statement in proof of loss as required by the policy. USAA did not invoke this provision when it denied Plaintiffs’ additional claims, and USAA never told Plaintiffs they needed to provide a proof of loss. In fact, USAA apparently made its initial payouts without receiving a proof of loss. USAA cannot, at this late date, invoke a contractual provision it failed to rely on in its initial settlement of Plaintiffs’ claim. Additionally, the signed proof of loss was only necessary to trigger USAA’s duty to pay money. It was not relevant to whether USAA acted reasonably in investigating and evaluating the claim.
We previously wrote about Andres v. Oklahoma Farm Bureau, which held that litigation conduct is not bad faith. Andres has now been approved for publication by the Oklahoma Supreme Court. This means that the case is precedential and binding on all Oklahoma courts.
In Colony Insurance Co. v. Burke, a child placed in foster care by the state died, apparently of neglect while in Jones' care. Oklahoma purchases liability insurance for foster parents who are licensed and/or certified by the DHS. Two companies which provided that insurance are United National Insurance Company (“United”), which defended Jones (Foster parent) in the wrongful death action, and Appellee Colony Insurance Company (“Colony”). Colony’s and United’s policies each had a $300,000 policy limit. Colony claimed that its policy did not cover the claim, yet before trial the insurers offered $300,000 total to settle the claim. The Estate of the child rejected the offer, but countered for the limits of both policies. This offer was rejected by the insurers and at trial, the jury awarded $20 million.
After the judgment, Colony filed a declaratory judgment action, claiming it had no duty to defend or indemnify Jones as a result of the Estate's wrongful death action. Of course, Jones and Estate counterclaimed for bad faith, breach of contract, etc., and Estate brought in United and asserted similar claims against it. Before United's motion to dismiss was granted, however, Estate, Jones and United settled their claims. United paid the Estate $2.75 million and the Estate dismissed its third-party claims against United. Separately, Jones agreed to pursue her pending counterclaims for breach of contract and bad faith against Colony, and to dismiss her state-court appeal of the underlying wrongful-death judgment, in exchange for which the Estate promised to limit its execution on the underlying judgment against Jones to 75% of any amounts Jones ultimately recovered from Colony.
Meanwhile, Colony filed a motion to dismiss claiming the Estate had no standing to assert contractual or bad faith claims against Colony. The district court granted Colony’s motion as to all of the Estate’s claims except for its claim for garnishment. Colony and Jones then settled for $4 million. It was agreed that $300,000 of the $4 million was Colony's policy limits and that Jones would pay Estate 75% of the $4 million per the prior agreement between Jones and Estate. Colony then sought summary judgment against Estate on the garnishment claim, claiming the payment to Jones (and Jones payment to Estate) in amounts in excess of the policy limits extinguished the garnishment claim. The district court agreed and the Tenth Circuit affirmed.
While boating over a Memorial Day weekend, Paul Morton’s boat motor was damaged, he claims from a submerged object. His insurer, Progressive Northern Insurance Company, concluded the damage was caused by wear and tear and mechanical failure, and refused to pay for the repair. Morton sued Progressive for breach of duty to deal fairly and to act in good faith. A jury found in favor of Progressive. Mr. Morton appeals, challenging several of the district court’s evidentiary rulings and its grant of Progressive’s motion for attorneys’ fees.
The Court of Appeals affirmed. It found that Morton failed to identify his mechanics as experts as required by the rules. Thus, the trial court properly excluded their opinions as to how the motor was damaged. Further, such opinions were not proper lay testimony. The court found that disparaging remarks about the Progressive adjuster were properly admitted as at least marginally relevant to rebut Mr. Morton’s character and credibility evidence as well as to rebut his characterization of his interactions with the adjuster and other Progressive employees. Objections as to Progressive’s witnesses testimony were not specific, or were not made on the record. There being no plain error, the trial court’s ruling was affirmed. Finally, attorneys fees were properly awarded to Progressive as “the ‘core element’ of the damages sought . . . [was] composed of the insured loss.”
In State v. Continental Ins. Co., 55 Cal. 4th 186, 281 P.3d 1000 (2012), the California Supreme Court declared that the insurance companies have to pay “all sums” up to their policy limits and stack all years of applicable coverage. William Hickman has a great discussion of the case here
Andres v. Oklahoma Farm Bureau is the second case arising out of the denial of a homeowners claim. In the first case, Andres v. Oklahoma Farm Bureau Mut. Ins. Co., 2009 OK CIV APP 97, 227 P .3d 1102, (Andres 1) the court held that, although OFB had a reasonable basis for denying coverage and therefore was not liable for bad faith, Plaintiffs claim was in fact covered under OFB's policy. Thus, Plaintiff was entitled to judgment on her breach of contract claim as a matter of law. The case was remanded with directions to the trial court to enter judgment in Plaintiffs favor on the latter claim, and to "set the matter for trial on the issues of damages, attorney fees, and costs."
After remand, OFB made an offer of judgment and then sought a scheduling order and additional discovery. When OFB objected to Plaintiff’s motion for summary judgment, Plaintiff filed this action, claiming that OFB’s actions since the remand amounted to bad faith. OFB was granted summary judgment and Andres appealed.
The essence of Plaintiffs bad faith claim is her contention that OFB failed to initiate and pursue an independent investigation to evaluate her claim once the appeal in Andres I was concluded. Oklahoma law is clear that an insurance company has a duty to its insured to conduct an investigation of a claim that is "reasonably appropriate under the circumstances," and to "promptly settle the claim for the value or within the range of values assigned to the claim as a result of its investigation." Newport v USAA, 2000 OK 59, 11 P.3d 190, 196-97. What is "reasonably appropriate under the circumstances," in terms of an investigation, of necessity will differ depending on the facts of a particular case. In this regard, it has been noted that "[o]nce a court ... proceeding is commenced seeking insurance benefits, normal claim handling is superseded by the litigation proceeding." "To date, the courts have uniformly rejected the argument that an insurer can be guilty of bad faith for simply defending itself in a coverage litigation and taking advantage, even zealously so, of every right afforded under applicable state and federal discovery rules."
Thus, the court found that Plaintiff could not pursue a bad faith claim based on failure to investigate while the matter was in litigation. Neither party suggests that the value of Plaintiffs claim, or the amount of her damages, was undisputed. Thus, summary judgment was proper.
Please note this is an unpublished decision and is not precedential.
In Fischer v. First American Title Ins. Co., Fischer was sued by a neighbor when he moved a fence on the property. The neighbor claimed 3 feet of Fischer's lot by adverse possession. Despite demands from Fischer, First American refused to defend the lawsuit by the neighbor. A jury found for Fischer on his breach of contract and vexatious refusal claims, but the trial court granted judgment notwithstanding the verdict and the appellate court affirmed.
The Title Policy covers claims for “[a]ny defect in or lien or encumbrance on the [insured’s] title.” In the neighbor’s lawsuit, Rivera (neighbor) claimed she had ownership rights to the Disputed Parcel on Fischer’s property, which would be a defect or encumbrance on his title. The issue was whether the Rivera lawsuit claims fall within an exception to coverage under the Title Policy. The Title Policy’s parties in possession exception to coverage states:
This policy does not insure against loss or damage, and [First American] will not pay costs, attorney’s fees or expenses that arise by reason of . . . [r]ights or claims of parties in possession not shown by the Public Record.
Fischer argued that the parties in possession exception is ambiguous because it failed to define”parties in possession,” and the issue was thus properly submitted to the jury. However, “[t]he failure of a policy to define a term does not, in and of itself, render it ambiguous.”
Rivera’s claim of ownership to the Disputed Parcel was both based on a claim of possession to the Disputed Parcel and alleged legal theories (adverse possession and boundary by acquiescence) that would not appear in the public record; Rivera’s claims were not potentially or possibly covered by the Title Policy; Rivera’s claims were, as a matter of law, excepted from the Title Policy’s coverage through the parties in possession exception. As a matter of law, First American’s duty to defend was not triggered, and the trial court did not err in granting First American’s JNOV.
In Zaloudek Grain Company v. CompSource, 2012 OK 75, Zaloudek had a workers compensation policy with CompSource for 10 years. Each year, CompSource asked to audit the payroll information to determine the amount of premium for the next year. When CompSource did not receive the audit information, it cancelled the policy, and refunded the premium. Four months later, Zaloudek sent in an application and a check for insurance. A few days after that, two workers were seriously injured in Zaloudek's grain auger. When CompSource said there was no coverage, Zaloudek sued, claiming that CompSource lacked legal justification for terminating its policy and requested orders to establish there was no lapse in coverage and requiring CompSource to provide coverage for its two injured employees. Zaloudek further requested a finding that CompSource was in breach of contract. On cross motions for summary judgment, the trial court found for Zaloudek. The trial court found that 36 O.S. § 3639 (Oklahoma statute regarding cancellation of insurance policies) applied to Compsource. On appeal, the Supreme Court reversed.
Section 3639 (C) specifies what conditions must occur before a "licensed insurer" may cancel certain coverage. Cancelation for failure to provide audit information is not one of the listed conditions. The Oklahoma Supreme Court found that CompSource is neither an "insurer" for purposes of section 3639 (C) nor is it licensed by the Insurance Commissioner. Therefore, section 3639 (C) does not apply to CompSource.
The trial court found CompSource to be an insurer for purposes of section 3639 (C) based upon CompSource's inclusion in the definition of "insurance carrier" found in 85 O.S. § 3. But those definitions only apply within the Workers Compensation Act. CompSource is also not an insurer as defined by the insurance code. CompSource is a state department created for the purpose of insuring employers against liability for compensation pursuant to the Workers' Compensation Code. The rational conclusion obtained from the legislature's silence in the general definition of "insurer" along with its specific treatment of CompSource in other parts of the Insurance Code is that the legislature intended for the provisions of the Insurance Code to only apply to CompSource when it specifically refers to CompSource.
In Pain v. Sims, the plaintiff was rear ended by Sims who was intoxicated. Sims had been drinking at a bar before the accident. Before trial, Pain settled with the bar for $90,000. At trial, the jury found Sims liable to Pain and awarded Pain $85,000. Sims wanted to get credit for the bar's settlement to reduce any amount he might have to pay. Sims relied on 12 O.S. 832(H) which states:
H. When a release, covenant not to sue, or a similar agreement is given in good faith to one of two or more persons liable in tort for the same injury or the same wrongful death:
1. It does not discharge any other tort-feasor from liability for the injury or wrongful death unless the other tort-feasor is specifically named; but it reduces the claim against others to the extent of any amount stipulated by the release or the covenant, or in the amount of the consideration paid for it, whichever is greater . . . .
In order to get this set off, however, the non-settling defendant must press the jury for a determination of the settling defendant’s percentage of liability. "A judgment debtor's § 832(H) claim to settlement proceeds' credit is conditioned upon the settling party's liability in tort for the same injury."
In Mendenhall v. Property and Casualty Insurance Company, the widow of a man killed when a truck overturned while he was working at another man’s farm appeals the trial court’s grant of summary judgment in favor of an insurance company. The Missouri Supreme Court reversed and remanded, finding policy language ambiguous. Ambiguous language in an insurance policy is construed against the insurer and in favor of the insured. This case turns on whether the man was “furnished to” the farm owner for employment. It is not necessary for a business to have an agency or employment relationship with a person to “furnish” him for other employment. Here, a business owned wholly by the farm owner referred the man to the farm owner, who hired the man solely on the basis of that referral. Under these facts, the man was “furnished to” his employer and, therefore, was a “temporary worker” subject to coverage under the policy.
The dissent disagrees with the majority’s finding that a third party can furnish a temporary worker to an employer merely by recommending or referring the worker and, therefore, would affirm the trial court’s grant of summary judgment. "To furnish" is not synonymous with recommending or referring the worker. By holding a person furnishes an employee to an employer by recommending or referring him, all part-time and seasonal employees who are recommended or referred to their employers will be treated as temporary workers not covered by their employers’ workers’ compensation insurance, which defeats the purpose of the workers’ compensation laws.
In Watts v. Lester E. Cox Medical Centers, a woman whose son was born with catastrophic brain injuries filed a medical malpractice suit against the medical center and her doctors for providing negligent health care services. The jury awarded $1.45 million in non-economic damages. It also awarded $3.371 million in future medical damages reduced to a present value of more than $1.747 million. The trial court allowed the providers to pay half the future damages in a lump sum immediately and the other half over 50 years. In a 4-3 decision written by Chief Justice Richard B. Teitelman, the Supreme Court of Missouri found the non-economic damage cap on common law claims violates the right to a jury trial guaranteed by the Missouri constitution since it caps the jury’s award of non-economic damages wholly independently of the facts of the case. As such, it necessarily infringes on the right to trial by jury. Statutory damage caps were not permissible when the constitution was adopted in 1820 and, therefore, remain impermissible. The right to trial by jury cannot “remain inviolate” when an injured party is deprived of the jury’s constitutionally assigned role of determining damages according to the particular facts of the case. To the extent Adams by and Through Adams v. Children’s Mercy Hospital, 832 S.W.2d 898, 907 (Mo. banc 1992), holds that the section 538.210 cap on non-economic damages does not violate the right to trial by jury, it is overruled. Because the trial court here reduced the non-economic damages in reliance on Adams, that aspect of the judgment is reversed.
The court also remanded the determination of the payout for future damages.
In McDougall v. Lamm, plaintiff saw her pet killed by another dog. While the court found plaintiff was entitled to more than a new puppy, it held that she was not entitled to additional damages for emotional distress as a result of seeing the attack on her pet. Although humans may share an emotional and enduring bond with pets, permitting that bond to support a recovery for emotional distress would require the Court to vastly expand the classes of human relationships that would qualify for Portee damages or to elevate relationships with animals above those shared with other human beings.
In Republic Underwriters v. Moore, an insurance dispute arose after several hundred people were infected with E. coli in the largest outbreak of its kind in the country. Many people were hospitalized and one person died after eating food contaminated with the bacteria. The food was prepared and served by the Country Cottage Restaurant, both at the restaurant location and at a catered church event. Reasoning that the food was prepared and served at two different places, a magistrate judge concluded that there were two “occurrences” under the applicable insurance policies, and therefore the pertinent aggregate limits of the policies applied rather than their “per occurrence” limits. The Tenth Circuit reversed, finding there was only one occurrence. All the injuries were caused by the restaurant’s ongoing preparation of contaminated food. That the contaminated food was prepared and served at another location is irrelevant.
There were various arguments as to the proper number of occurrences and thus the amount of insurance available to pay the claims. The insurers claimed there was only one occurrence. The policies defined an “occurrence” as “an accident, including continuous or repeated exposure to substantially the same general harmful conditions.” The insurers relied on Business Interiors, Inc. v. Aetna Casualty & Surety Co., which held that “an occurrence is determined by the cause or causes of the resulting injury.” 751 F.2d 361, 363 (10th Cir. 1984). Because all the injuries could be traced back to the ongoing preparation, handling, or storage of contaminated food, insurers insisted there was but one occurrence.
Some claimants argued that there were 8 occurrences because the cause of the outbreak was inconclusive and because the health department report indicated 8 areas of negligence which contributed to the outbreak including contamination by food handlers and cross contamination from food preparation areas and equipment. Other claimants argued that each sale of contaminated food was a separate occurrence. These claimants argued that under Farmers Alliance Mutual Insurance Co. v. Salazar, 77 F.3d 1291, 1296-97 (10th Cir. 1996), an occurrence is marked by its immediately surrounding circumstances. Since multiple people were injured consuming different foods prepared by different food-handlers at different times and at two different locations, it was argued that there were necessarily multiple occurrences.
The magistrate judge ultimately concluded there was a total of $4 million in available coverage. The magistrate judge reasoned, however, that the basis for finding multiple occurrences was neither the eight alleged acts of negligence nor each individual sale of contaminated food, but rather the two separate locations where the food was prepared and served. The magistrate judge agreed that the causation rule from Business Interiors required the court to examine the cause of the injuries. But without pinpointing the definitive cause of claimants’ injuries—that is, without resolving whether the injuries were singularly the result of the preparation, handling, and storage of contaminated food or the various factors that led to the contamination—the magistrate judge concluded that under Salazar, there were two occurrences because the injuries were caused at two different places.
Declaratory judgment actions are often used by insurance companies in cases of questionable coverage. In such actions, a court can determine whether there is coverage for a loss under the policy language. While a federal court may declare the rights and obligations under a contract or policy through a declaratory judgment action, there is no requirement that the federal courts accept jurisdiction over such claims. Whether a federal court properly exercised jurisdiction or dismissed a declaratory judgment action is reviewed under an abuse of discretion standard.
In Mid-Continent Casualty Co. v. The Village at Deer Creek, Mid-Continent appealed the dismissal of its declaratory judgment action by the federal district court. The parties agreed that the factors set out in State Farm Fire & Casualty Co. v. Mhoon, 31 F.3d 979, 982–83 (10th Cir. 1994) applied to determine whether the trial court abused its discretion in dismissing the action. Since there was evidence which supported the district court's dismissal, there was no abuse of discretion and the dismissal was affirmed.
While imposing on the trial court the obligation to weigh these various factors when deciding whether to hear a declaratory judgment action, this circuit has repeatedly over the years held that on appeal it will not engage in a de novo review of all the various fact-intensive and highly discretionary factors involved. Instead, it will only ask whether the trial court’s assessment of them was so unsatisfactory as to amount to an abuse of discretion.
Apparently, the district court found that the issues raised by the dec action could be determined in the pending state action, and dismissed the case. The Tenth Circuit affirmed the dismissal, stating:
The [trial] court concluded the Missouri courts were simply better situated to provide complete relief to all parties involved in the coverage dispute. * * * * The [trial] court’s analysis of the Mhoon factors was carefully reasoned and appropriate under the circumstances. Mid-Continent’s arguments amount to little more than an invitation to re-weigh the Mhoon factors or to substitute this court’s judgment for that of the [trial] court. Such review is precluded by longstanding precedent. . .
McClure v. Sunshine Furniture, 2012 OK CIV APP 67: McClure was injured when a box of chairs fell out of Devitt's truck into the road. McClure sued Sunshine Furniture claiming it negligently loaded Devitt's truck. The trial court granted summary judgment and the appellate court reversed.
Since Sunshine was aware that accidents could happen if furniture was improperly loaded into pickup trucks, the accident was forseeable and Sunshine had a duty to properly load the truck. The fact of injury, standing alone, does not create a presumption of negligence and McClure presented no direct evidence of breach of duty and he does not rely on res ipsa loquitur.
Sunshine's summary judgment materials established the absence of evidence to show that Sunshine's employees acted or failed to act according to a standard of care which a reasonably careful person would employ under the same circumstances. In other words, Sunshine made a preliminary showing that it was entitled to summary judgment because McClure had no direct evidence to demonstrate the second element of her case, the breach of duty or want of ordinary care.
As a result, McClure then had the burden of showing that evidence is available which justifies a trial of the breach of duty issue. Moreover, McClure must meet this burden without the aid of res ipsa loquitur. McClure utilized the inference as the basis to argue that the issue of breach of duty is for the jury. In Greyhound Corp. v. Gonzales De Aviles, 1963 OK 223, 391 P.2d 273 (Syl. 3), the Court held:
An inference of negligence must be based upon something other than mere conjecture or speculation, and it is not sufficient to introduce evidence of a state of facts simply consistent with or indicating a mere possibility, or which suggests with equal force and leaves fully as reasonable an inference of the nonexistence of negligence. The inference of negligence must be the more probable and more reasonable inference to be drawn from the evidence.
The facts supported an inference of breach of a duty sufficient to make it a jury question. Thus, summary judgment was reversed.
In BancFirst v. Ford Motor, the issue was whether the expert's opinion was properly excluded. Moore had hit a child when she darted out in an intersection on her bike. The issue was whether Moore counter-steered when he skidded. If so, it was claimed, then the accident happened because of a defect in the braking system in the truck Moore was driving. But Moore claimed he had not counter-steered, and there was no evidence otherwise. Thus, the opinion was properly excluded, and summary judgment was affirmed. Since the plaintiff did not ask that the court allow them to get another expert, there was no error there, either. The Tenth Circuit states:
In light of the gap between opinion and data, we find ourselves in no position to call the district court’s exclusion of [the expert] Mr. Medcalf an abuse of discretion. “[A]n expert’s scientific testimony must be based on scientific knowledge, which ‘implies a grounding in the methods and procedures of science’ based on actual knowledge, not ‘subjective belief or unsupported speculation.’” Dodge v. Cotter Corp., 328 F.3d 1212, 1222 (10th Cir. 2003) (quoting Daubert, 509 U.S. at 590). In this case, the district court concluded that speculation is all that exists to support Mr. Medcalf’s belief that Mr. Moore attempted to counter-steer. We find ourselves unable to disagree.
Usually, when there is a property loss, the bank that has the mortgage on the property is on the check for the damages, along with the insured. This makes the bank a loss payee, and a third party beneficiary of the insurance contract. In Truman Bank v. New Hampshire Insurance Company, however, the insurance company failed to include the Bank on the checks it wrote to the insured Marina after a storm damaged the property. When the Bank found out, it demanded that the insurance company pay for the damages again, but this time, pay the Bank. Shortly after the demand, however, the insured sold the Marina and paid off the loan to the Bank. Still, the Bank continued to demand that the insurer pay a second time for the storm damage.
The trial court granted partial summary judgment to the Bank, as the facts were uncontroverted that the Bank was a loss payee, and its name was not included on the checks. Thus, the Bank only had to prove to the jury that it was damaged by the insurer’s breach of contract to win at trial. The jury was unconvinced, and found for the insurer. The Bank appealed, claiming that the trial court should not have let the jury know the loan was paid off after the insurer paid for the storm damage. The evidence was properly admitted, since the Insurer had a right to show the Bank had no damage from being left off the insurance checks. In sum, even though the Bank was left off of the checks, it was not damaged because the loan had been paid.
In Brown v. Beets, the plaintiff was injured while on horseback on a trail ride, when another horse kicked and struck her in the knee. A release had been signed which said that the Brown's wouldn't sue the Beets based on injuries which may occur during the trail ride. The Browns had an affidavit saying the Beets' trail ride did not meet industry standards on several grounds, including that the Beets failed to determine each rider's ability before putting them on horses. The trial court granted summary judgment to the Beets, finding the release valid and the Oklahoma Court of Civil Appeals reversed, finding fact questions precluded summary judgment.
The affidavit created a fact issue as to whether Beets was acting up to industry standards, precluding summary judgment.
In Waltrip v. Osage Million Dollar Elm Casino, an injured employee of a tribal enterprise brought a claim against his employer's workers' compensation insurer in Oklahoma Workers Compensation Court. The case was dismissed, based on previous cases where the Tribe had a tribal workers compensation court which reviewed such claims. But in this case, there was no tribal workers compensation court, so the case should have proceeded in the Oklahoma Workers Compensation court.
The Oklahoma Supreme Court states:
The Tribe's sovereign immunity does not place Insurer beyond the reach of the estoppel act when there is no tribal ordinance or forum for the adjudication of workers' compensation claims under a policy of "sovereign nation workers' compensation." Such claims will be adjudicated in tribal court under a tribal ordinance when both law and a forum exist. Only when such law and forum are unavailable to an injured employee will the estoppel act operate to bring the Insured alone under the purview of Oklahoma's Workers' Compensation Code.
It is the absence of a tribal workers' compensation ordinance and the lack of a tribal forum that distinguishes this matter from Cherokee Nation cases in which the Court of Civil Appeals refused to apply the estoppel act to claims asserted under a "sovereign nations workers' compensation" policy. The Cherokee Nation has a tribal workers' compensation ordinance by which it adjudicates workers' compensation claims in its tribal court. If Insurer wishes to be certain that the claims of tribal enterprise employees will not be adjudicated in the Oklahoma Workers' Compensation Court pursuant to the Workers' Compensation Code, it should require that a tribe enact a tribal ordinance and provide a forum for the adjudication of workers' compensation claims before it contracts to insure those claims pursuant to tribal ordinance.
Today's decision in no way holds or implies that the Osage Nation is not immune from the jurisdiction of the Oklahoma Workers' Compensation Court. The Indian sovereignty causes resolved that issue long ago. Additionally, tribal sovereign immunity for the actions of tribal enterprises has been acknowledged widely. That acknowledgment is not diminished by today's holding which is directed only at Insurer's promise to provide workers' compensation benefits to employees of the tribal enterprise. The Osage Nation is entirely within its authority should it choose to enact a workers' compensation ordinance and provide a tribal forum. In the absence of such ordinance or forum, however, Insurer is not entitled to evade liability. Regardless of the tribes' sovereign immunity, the Oklahoma Workers' Compensation Court may exercise jurisdiction over Insurer, which is a Delaware corporation, and its third party administrator.
In Brumley v. Keech, Plaintiffs sought punitive damages based in part on the trucking company's failure to perform post accident drug-and-alcohol testing as required by federal law (FMCSR & 49 C.F.R. § 382.303), by failing to keep certain log books, and by allowing the drivers to exceed permitted drive time. The trial court excluded the evidence on the failure to perform post accident testing, noting that the failure to test did not cause the accident, and there was no evidence that the truck driver had been drinking alcohol or using controlled substances prior to the accident or that he was, or appeared to be, under the influence of alcohol or any controlled substances at the time of the accident. the alleged violations did not support a claim for punitive damages and were properly excluded.
In Vinstickers, LLC., vs Stinson Morrison Hecker, et al., VinStickers was sued after it removed Hinkle and Karg from the organization. Hinkle and Karg sued VinStickers, and the case was settled when VinStickers agreed to pay them $1,221,000 and assign them any right against Stinson, Morrison, Hecker et al, When Hinkle and Karg sued the law firm, the law firm moved for dismissal since malpractice claims against lawyers “are not now and have never been assignable in Missouri”. The dismissal was affirmed.
The settlement agreement was an assignment of VinStickers’ legal malpractice action to Karg and Hinkle. The whitewashing of the assignment by allowing Karg and Hinkle to pursue the matter "in the name of VinStickers" does nothing to change that fact. the court stated:
Thus, to prevail in the action, VinStickers would need to prove that Hinkle and Karg should have been terminated for cause and, but for law firm’s malpractice, would have been. Having determined that the action was being brought by Hinkle and Karg in the name of VinStickers, the trial court was "faced with a situation in which the parties attempting to bring a claim for legal malpractice are the very parties who benefitted from that malpractice (assuming that it occurred) during a previous stage of this litigation. The Missouri rule against assignment was created precisely so as to prevent this type of counterintuitive claim."
In Roedder v. Callis, the Missouri Court of Appeals ruled that a claim for legal malpractice survives the death of the plaintiff or injured party. In Gray v. Wallace, 319 S.W.2d 582 (Mo. 1959), the Missouri Supreme Court found that the legislature intended a broad and comprehensive construction of the survival statutes. Thus, the Court of Appeals concluded that legal malpractice actions survive the death of the injured party. And, since breach of fiduciary duty is a fraud claim, and it has already been decided that fraud claims survive the death of the injured party, breach of fiduciary duty actions also survive the death of the injured party. Finally, since the other claims survive, so do the claims for punitive damages.
In Moore Automotive v. Lewis, Moore Automotive sued Lewis for $2.4 million it claimed she diverted for her own use while she was Moore's CFO. Moore had pleaded guilty to stealing the money in federal court. Moore sought summary judgment, but Lewis said she was entitled to an offset for the money that Moore received in settlement of its claims against its accountants for failing to discover the theft. The trial court ruled that Lewis was not entitled to a set off under the collateral source rule. On appeal, the summary judgment was reversed.
Whether the money paid by the accountants was attributable to Lewis' actions was a question of fact which precludes summary judgment.
In Sanders v. Ahmed, the Missouri Supreme Court found that the legislature, which created the right to sue for wrongful death, could limit the damages recoverable for such claims. Thus, the limitation on non-economic damages was constitutional under Missouri law.
Previously, the court had found that caps on non economic damages were ok in common law actions. These decisions reflect a belief by many legislatures that while juries are competent to decide life or death matters, they are not able to decide issues which relate solely to money.
In Charles vs. Consumers Insurance the underinsured motorist insurer moved to intervene in insured’s action, circuit court granted intervention, then dismissed insurer based on an allegation that insurer initially denied liability. “[A]n uninsured or underinsured motorist carrier has an absolute right to intervene in a lawsuit brought by its policyholder against an . . . underinsured motorist [,] steps into the shoes of the alleged tortfeasor and assumes an adversarial position to that of the insured.” Initial denial does not negate that right, as it does the contractual grounds for permissive intervention, and settlement with tortfeasor in reliance on denial of coverage does not support equitable estoppel. Therefore, insurer was entitled to notice of a hearing on liability and damages.
In Spradley v. The Owens-Illinois Hourly Employees Welfare Benefit Plan, the Plaintiff, Spradling retired from the company, and then sought ERISA plan benefits. Plaintiff was denied benefits for permanent and total disability (PTD) life insurance benefits, because it was claimed that Plaintiff's benefit coverage ended when his employment ended. In making this claim, the Plan cited part of the summary plan description which applied to healthcare benefits. On administrative appeal, the Plan cited to another part of the summary plan description which stated that an employee was eligible to participate in the health care plan if the employee is a full time active hourly employee. At the trial court, the Plan came up with another reason to support its denial of benefits based on language in the “Life and Accident Insurance Benefits” section of the Summary Plan Description which said that life insurance coverage ends when the employee retires.
The trial court concluded that Plaintiff was entitled to benefits under the unambiguous language of the Plan or, alternatively, that Defendant’s interpretation of ambiguous Plan terms was arbitrary and capricious. The district court accordingly remanded the case for the Committee to reconsider Plaintiff’s claim in accordance with this conclusion.
On appeal, the Tenth Circuit notes that a plan administrator is required by statute to provide a claimant with the specific reasons for a claim denial along with a citation to the specific plan provision. As a result, federal courts will consider only “those rationales that were specifically articulated in the administrative record as the basis for denying a claim.” The Tenth Circuit states: “The specific reasons and specific provisions supporting Defendant’s broad coverage argument have changed, and we will not permit Defendant to sandbag Plaintiff with its after-the-fact interpretation of an entirely different section of the Plan.”
In Scott v. Edwards, Dean had a party at his house. Ethan was there, got intoxicated, wandered off into the street, got hit by a car and died. Scott, parents of Ethan, sued Edwards, parents of Dean, claiming that the Edwards were responsible for the death of Ethan because he was a minor and became intoxicated at their house. The motion to dismiss was affirmed.
Missouri law makes it a crime to furnish alcoholic beverages to minors. But in Missouri, social hosts have no common law civil duty “to abstain from furnishing alcoholic beverages to an individual” even though its illegal. The court cites Andres v. Alpha Kappa Lambda Fraternity, 730 S.W.2d 547, 550 (Mo.banc 1987) in support of this conclusion. A change in the statute did not create civil liability.
Claims made policies require that notice of a claim be given as soon as possible. Unlike occurrence policies, claims made policies only cover claims made during the policy period. Occurrence policies will cover claims which occurred during the policy period, regardless of when the claim is made. Where the insured failed to let the insurer know of an EEOC type claim, and did not mention it in the renewal, there was no coverage for the claim. The insured had knowledge of acts which could result in a claim before the policy period, and failed to mention it in the renewal. Thus, the policy did not cover the claim.
Ellis's grandparents let Ellis use their car while delivering for Papa Johns. The car was insured by Allstate. Ellis had an accident in the course and scope of his employment. As a result, Ellis and Papa John's was sued. Allstate defended Ellis and paid its policy limits, but refused to defend Papa Johns.
Summary judgment to Allstate was affirmed. Papa John's was not an insured under the policy. Papa John's was not using the car with the policyholders' permission at the time of the accident -- Ellis was.
Just because Ellis had permission to use the car in the course and scope of his employment with Papa John’s did not mean that Papa John’s had permission to use the car – for example, Papa John’s could not put another driver in the car. Simply because Papa John’s benefitted from Ellis being able to use the car did not make Papa John’s a permissive user. Papa John’s respondeat superior liability did not make it a permissive user. Legal responsibility for the use of a car is not synonymous with permissive use of the car.
In Remund v. State Farm Fire & Cas. Co., the plaintiff built his cabin over a creek. He wanted flood insurance to cover any damages caused to his cabin or to the piers and channel which supported his cabin and affected the flow of the creek. He was told the policy would cover any damage to his property. But when high runoffs did damage the piers and channel, the claim was denied. He sued State Farm for breach of contract, breach of warranty, estoppel, and bad faith. The federal regulations on flood insurance say that representations regarding the extent and scope of coverage which are not consistent with the National Flood Insurance Act or the Program’s regulations, are void. Summary judgment to State Farm was affirmed on appeal.
The court found that the claims were preempted by federal law. 44 C.F.R. § 61.5(e). The regulation creates the legal fiction that an insurance agent “acts for the insured,” instead of for her employer (the private insurance company). Thus, § 61.5(e) shields the private insurance company from liability for certain of the agent’s tortious acts. Whether this is good public policy because it makes participation in the NFIP more attractive to private insurance companies, or bad public policy because it may result in injustice for some insureds, is not for the courts to decide.
In Olsen v. Siddiqi, Olsen sued Siddiqi and Global in a class action for sending unsolicited faxes under the Telephone Consumer Protection Act (TCPA). Global tendered the defense to its commercial general liability insurer, American Family, which refused the defense, claiming the policy did not cover the claims. Global then settled the case for $4,917,500, with the parties agreeing the judgment could only be recovered from the proceeds of Global's insurance policy with American Family. Eventually, the trial court granted summary judgment to Olsen, and the Missouri Court of Appeals reversed.
The issue was whether the statutory damages awarded to Olsen constituted "property damage" under the policy and under Missouri law. Olsen relied on Universal Underwriters Ins. Co. v. Lou Fusz Automotive Network, Inc., 401 F.3d 876 (8th Cir. 2005), which held that statutory damages under the TCPA constituted "damages" under the terms of the insured's policy. But the policy in that case was materially different than the policy in this case. In Universal, the policy covered punitive damages. In this case, the policy did not.
Under Missouri law, unless otherwise bargained for, the term "damages" does not include fines and penalties. Thus, if the statutory damages awarded in the underlying judgment are in the nature of fines or penalties, they are not covered by Global's policy. The court concluded that the TCPA is both remedial- when an individual seeks recovery for actual monetary loss- and penal- when an individual seeks the statutory damages of $500.00 for each violation. As Olsen opted to recover statutory damages, those damages were penal in nature, and as penalties, did not constitute "damages" under the terms of Global’s policy.
The court concluded:
The statutory damages awarded to Olsen and the class members in the underlying suit do not constitute "property damage" under the terms of Global's general commercial liability policy and the laws of this State. As such, Global's policy provides no coverage for the damages awarded in the settlement agreement, and the trial court erred in determining otherwise. The case is remanded to the trial court with an order to enter summary judgment in favor of American Family.
Eissa vs. Aetna Life Ins. Co. involved Long Term Disability (LTD) benefits under an ERISA plan. Eissa received short term disability under Boeing's ERISA plan for physical and mental disabilities. The plan limited benefits for mental disabilities to 24 months total. In addition, the amount of benefits was reduced by any Social Security benefits awarded. Eissa was denied any LTD benefits because his disability was found to be mental rather than physical. This finding was affirmed on appeal. Aetna then sought to "recoup" payments made to Eissa based on the award of Social Security benefits. Eissa sought bankruptcy protection and was discharged, yet the trial court found that he owed the money anyway, under a recoupment theory. The Tenth Circuit reversed this ruling. Since Aetna did not owe Eissa any more money, there was no fund from which Aetna could recoup the money. Thus, there was no exception to discharge, and the debt was discharged by the bankruptcy.
Western World Ins. Company v. Markel American Ins. Company involved two insurance companies which insured a "Haunted House." Judge Gorsuch had some fun with his opinion some of which will be quoted below. Hodges' flashlight went out and he fell down an elevator shaft while looking for another. Western defended and paid the claim; then sued Markel. Markle claimed it owed nothing because of an escape clause in its policy. But the "escape clause" was found in the "who is an insured" part of the policy, not in the "other insurance" part of the policy. And, it was unclear whether the "escape clause" applied to all insureds or just additional insureds. Furthermore, the "escape clause" if applied as Markel claimed would make the other insurance clause superfluous, something that contract law doesn't like to do. Oklahoma law requires that ambiguities be resolved in favor of coverage, and that's what the Tenth Circuit did. Judge Gorsuch states:
“[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.
Finally the whole escape clause precludes any liability argument was not raised in Markel's reservation of rights letter to its insured -- which raised many other arguments as to why it should not cover the claim ("arguments it gave up the ghost on long ago")
The case was sent back to the trial court for determination of how much Markel should pay. No escape for either insurance company, indeed.
In Graham v. State Farm, summary judgment to the insured was reversed on appeal. The primary UM limits exceeded the insured's UM limits. The State Farm policy language was clear and unambiguous, providing underinsured motorist coverage only to the extent that the State Farm policy limits exceed those of any primary underinsured motorist coverage. Thus, because the primary underinsured motorist coverage exceeded the State Farm policy limits, the trial court erred in granting summary judgment for $100,000 in favor of Graham. Reversed and remanded.
Based on its previous rulings in the same case, the Tenth Circuit held there was no duty to defend claims based on an insured’s negligent and unworkmanlike construction under the CGL policy issued by EMC to Bartile. “[R]egardless of the label applied to a claim, “[u]nder [both] Wyoming and Utah law, the natural results of an insured’s negligent and unworkmanlike construction do not constitute an occurrence triggering coverage under a CGL policy.” Bartile I, 618 F.3d at 1174. . .”
In this case, the allegations were amended to specifically include claims of negligence. There was a claim that Bartile’s negligence caused damage to other parts of the building. It was claimed that “work was negligently performed so as to accident[ally] cause physical damage to, and loss of use of other parts of the work at the project”. . . i.e., water damage. Bartile claimed that Wyoming law would hold that conduct constituting both a breach of contract and a tort can trigger a duty to defend. But the court stated the tort/contract distinction is essentially irrelevant to the applicable definition of an “accident” per Bartile I. According to the court, Bartile made no argument that the consequential water damage at issue was not a natural result of Bartile’s own unworkmanlike or negligent construction. Thus, “Bartile has not established an “accident” subject to policy coverage.
In Walker v. Progressive, the Tenth Circuit affirmed a summary judgment in favor of the insurer on the plaintiffs’ bad faith claim. The bad faith claim involved the investigation of the theft loss of plaintiffs’ Tahoe while they were on vacation. The Tahoe was found later, burned. Progressive found that the steering column was not damaged, the car was for sale when it was stolen, it was a gas guzzler and plaintiffs had all the keys. Progressive said these were red flags for fraud, and had its Special Investigation Unit (SIU) investigate the claim. Plaintiffs were out of town when the theft occurred and Progressive wanted photos of the vacation. When the photos were received, they appeared altered. In addition, although the plaintiffs had said there were two keys, a third showed up. The key and the photos were explained and the claim was paid.
Plaintiffs’ bad faith claim is founded on the contention that Progressive’s investigation was both “untimely” and “improper,” and does not concern the disagreement between the parties concerning the value of loss or Progressive’s right to conduct a fraud investigation. The gist was the way Progressive handled the third key and photo issues. Plaintiffs offered no explanation as to how they were damaged by the alleged unreasonable actions of Progressive, which is a required element of the bad faith claim.
Once Progressive verified that the Walkers were out of town during the date of loss, it authorized
coverage for the claim, even though the origin of the third key remained unresolved. Thus, “it was irrelevant when Progressive determined the origin of the third key because Progressive agreed to pay for the repairs to The Vehicle in November 2008.” The expert report prepared after the lawsuit was filed and after payment was authorized was irrelevant to the claim at issue – and was prepared in response to the lawsuit itself.
Circuit court erred in granting summary judgment to insurers based on a conclusion that appellants (successors in interest to the original insureds) are not an insured under policies. Policies unambiguously cover occurrences while policies were in effect, and cover successors, which include appellants. “Occurrence-based policies cover negligent acts or omissions which occur within the policy period, regardless of the date when the negligent acts or omissions are discovered or claim is made.” Allegations describing facts covered by policy trigger duty to defend. Therefore, if petition alleges that a covered event occurred within the policy’s effective date, insurer has a duty to defend though the policy has long expired. Presence of allegations on which no recovery is possible do not discharge duty to defend.
If two events, one excluded and the other covered, each constitute a “separate and distinct” cause of injury, exclusion of the one will not bar coverage of the other. Malpractice policy excluded liability for any person’s sexual conduct. Plaintiff alleged that, after insured failed to supervise employee, employee sexually assaulted plaintiff. Plaintiff alleged that failure to supervise proximately caused plaintiff’s injury separately and concurrently with employee’s conduct. In insurer’s declaratory judgment action, insurer failed to negate such causation. Summary judgment was improperly granted to the insurance company.
Missouri courts have recognized "that where an insured risk and an excluded risk constitute concurrent proximate causes of an accident, a liability insurer is liable as long as one of the causes is covered by the policy." Under this rule, an insurance policy will be construed to provide coverage where an injury was proximately caused by two events -- even if one of those events was subject to an exclusion clause -- if the differing allegations of causation are "independent and distinct." that is:
[i]f the essential elements of a negligence claim asserting a cause of injury can be stated without regard to the essential elements of a differing claim of negligence that also is asserted to have caused the same injury, then the separate causes are independent and distinct from the other, and support the application of the concurrent proximate cause rule.
The proper supervision of medical personnel is not inherently related to the prevention of sexual assault. Because the Clinic's negligent supervision of PA constituted an independent, concurrent proximate cause of Appellant's injuries, the trial court erred in granting summary judgment in favor of the insurance company.
A declaratory judgment action where the insurer claimed it had no defend or indemnify the mother and daughter who died as a result of the insured's negligence in failing to take them to the doctor. The insurance policy contained a household exclusion which provided that the policy did not cover bodily injury to any resident of Horner’s household. The court found that the mother resided with the insured, so the daughter resided there, too. The term “resident” has only one reasonable interpretation in this context – the unborn child, who was in her mother’s womb at the time of her injuries, resided wherever her mother resided. Therefore, the unborn child resided with her mother in Horner’s household. Because the policy excludes coverage for bodily injury to residents of Horner’s household, Fire Insurance Exchange has no duty to defend or indemnify Horner in the wrongful death action.
Facts: Marsh & McLennan Co. has served as Emerson Electric Co.’s insurance broker for more than 20 years, helping Emerson procure excess liability, aircraft, international and other specialized insurance. The record does not reveal whether Emerson and Marsh operated under a written agreement, an oral agreement or a combination of both. But it does reveal that, during the course of their relationship, Marsh accepted contingent commissions from certain insurers based on the amount of business it placed with those insurers. The record also shows that Emerson paid its insurance premiums directly to Marsh, which placed the premiums in interest bearing accounts before forwarding them to the proper insurer. Emerson asserts that, as its insurance broker, Marsh was its agent and owed Emerson fiduciary duties of loyalty and due care. Emerson claims that Marsh breached its duty of loyalty by steering Emerson’s business to certain insurers
to maximize the commissions Marsh earned and by not disclosing its receipt of interest on the premiums it collected from Emerson prior to forwarding them to insurers. Emerson also claims that the receipt of the contingent commissions violated its duty of care because it prevented Marsh from obtaining insurance at the lowest possible price and that, even if insurance brokers have no general duty to obtain the best price, Marsh agreed to do so for Emerson. The trial court granted Marsh judgment on the pleadings, and Emerson appeals.
REVERSED AND REMANDED.
Court en banc holds: (1) Insurance brokers are agents of the insured when acting on behalf of the insured, and all agents owe fiduciary duties of loyalty and due care when acting in the scope of the agency relationship. Marsh, therefore, owed Emerson fiduciary duties of loyalty and due care when acting as Emerson’s agent. Nevertheless, unless otherwise agreed, brokers only have a duty to procure the requested insurance and have no duty to advise insureds about the proper types and amounts of insurance or to obtain insurance at the lowest possible price. As a result, absent an agreement to the contrary, Marsh did not violate the fiduciary duties of loyalty or care by failing to obtain insurance at the lowest possible price.
(2) Although under the common law a broker acts as the agent of the insured when procuring insurance, it usually acts on behalf of the insurer when collecting premiums from the insured. Missouri statute supports this interpretation by recognizing that brokers may act on behalf of insurers at certain times and insureds at others and by allowing brokers to keep premiums from multiple insureds in the same account. As a result, Marsh did not owe a fiduciary duty to Emerson to tell it about interest it might collect once it had collected premiums and prior to forwarding them to the relevant insurer.
(3) Missouri statute expressly authorizes brokers to receive commissions without limiting that authority to a particular type of commission; therefore, Marsh did not breach its fiduciary duties to Emerson by receiving contingent commissions. Furthermore, because commissions are authorized expressly, Marsh had no duty to disclose its receipt of contingent commissions, just as it had no duty to disclose any other statutorily authorized aspects of its financial arrangements.
(4) Although Marsh had no general duty to obtain the lowest cost insurance or to disclose its receipt of contingent commissions or the interest it collected on Emerson’s premiums, it did have a duty to use reasonable care in procuring insurance, and the record was inadequate for the trial court to grant judgment against it on the claim that the desire to obtain contingent commissions caused Marsh not to use due care. Furthermore, Marsh may have assumed additional duties through either contract or its course of dealing with Emerson, but because the case was decided on the pleadings, Emerson had no opportunity to develop evidence on this issue. It was error, therefore, to hold that Marsh was entitled to judgment as a matter of law.
James Brimer died and autopsy results attributed the death to acute combined drug toxicity due to the ingestion of prescription drugs. The medical examiner noted that Mr. Brimer had a history of hypertension and back pain. The medical examiner determined that Brimer's death was an accident.
Life Insurance Company of North America (LINA) insured Mr. Brimer under a group policy through his employer. The policy covered losses from accidental bodily injuries which directly and from no other cause, result in a covered loss. The policy's exclusions in relevant part were as follows: No benefits will be paid from losses resulting from: (1) intentional self-inflicted injuries or any attempt thereat; (6) benefits will not be paid for loss covered by or resulting from sickness, disease, bodily infirmity, or medical or surgical treatment thereof…;(7) voluntary self -administration of any drug or chemical substance not prescribed by, and taken according to the directions of, a licensed physician. [Accidental ingestion of a poisonous substance (is) not excluded.]
The Brimers submitted a claim to LINA and LINA denied the claim under Exclusion 7 (voluntary, self-administration of drugs). The Brimers administratively appealed the decision arguing that Mr. Brimer had ingested medication that was prescribed to him by his physician. LINA, on appeal, held that the denial was correct based on four grounds: (1) Mr. Brimer's death was not accidental, (2) Exclusion 1 applies, (3) Exclusion 6 applies, and (4) Exclusion 7 applies. LINA informed the Brimers that they had exhausted all administrative appeals.
The Brimers sued in state court alleging breach of contract and breach of the covenant of good faith and fair dealing. LINA removed the action to federal district court because of diversity and that the policy is governed by the Employee Retirement Income Security Act ("ERISA").
The District Court issued two opinions. In Brimer I, the court rejected the Brimers' argument that because LINA based the initial denial of their claim solely on Exclusion 7, not Exclusion 6, that it was only fundamentally fair the LINA be held to Exclusion 7. The District Court also affirmed LINA's decision to deny the claim because even if the Brimers could prove the death was accidental the claim was barred by Exclusion 6. LINA cited authority which was uncontested that an exclusion in an insurance policy for medical treatment of a sickness or disease, unambiguously includes death caused by accidentally overdosing on a drug prescribed by a doctor for a medical condition.
In Brimer II, the district court reversed its previous decision regarding the accidental nature of Mr. Brimer's death. It concluded that the Brimers have met the burden of proving the death was an accident.
The court also dealt with Exclusions 1 and 7. It ruled that Exclusion 1 was not a legitimate basis for denial and that Exclusion 7 was ambiguous. Exclusion 6 still applied.
The Brimers appealed and the appeals court affirmed the district court's judgment in favor of LINA. The court held that although LINA had violated ERISA the procedural violation did not prejudice the outcome. In spite of the procedural issues the district court did consider LINA's denial of benefits under Exclusion 6.
The Brimers asserted on appeal that the district court erred when it declined to consider their argument that Exclusion 6 was ambiguous when read along with Exclusion 7. LINA argued, and the appeals court agreed, that the Brimers forfeited this argument because they did raise it in a timely fashion and did not carry their burden on appeal of showing that plain error occurred.
The court of appeals held that since the procedural defect in the administrative appeal did not prejudice the Brimers or foreclose judicial review of Exclusion 6, because the Brimers forfeited their argument that Exclusion 6 conflicts with Exclusion 7 and failed to argue plain error, and finally, because the Brimers have not otherwise challenged the district court's conclusion, that Exclusion 6 precludes coverage.
In Estate of Max E. Overbey v. Chad Franklin National Auto Sales North, L.L.C., and Chad Franklin, the Overbeys sued Chad Franklin National Auto Sales (National) for fraudulent representation in violation of the Missouri Merchandising Practices Act. The Overbeys enrolled in the "payment-for-life" membership plan at National. As a "Payment-for-Life" member, the Overbeys paid a $500 enrolment fee and National paid them $3253 which lowered the their monthly car note to $49. The salesman promised the Overbeys that they could trade the SUV in six months for another vehicle. The Overbeys returned to National in six months to trade the SUV and a National salesperson told the them that they were required to pay $719.52 per month for the remaining 65 months left on the contract.
The jury found in favor of the Overbeys and entered judgment against National for $76,000 in actual damages and $250,000 in punitive damages. The jury also awarded $4500 in actual damages and $1 million in punitive damages against Franklin but the trial judge reduced the punitive damages amount to $500,000 pursuant to a statutory punitive damages cap contained in 510.265, RSMo. Supp. 2010. The Overbeys appealed arguing that the trial court's reduction of punitive damages violated their right to a jury trial, due process and equal protection and violates the separation of powers doctrine. Mr. Franklin appealed on the basis that the Overbey's failed to make a submissible case and that the reduced amount of punitive damages was excessive.
The Overbey's overcame their burden of proof by proving that Mr. Franklin used deception, fraud, false pretense, misrepresentation, unfair practice or the concealment, suppression or omission of any material fact connected to the sale or advertisement of the sale of merchandise. The Court held that the following evidence was sufficient for a submissible case: (1) Mr. Franklin was the sole owner of National and Chad Franklin Suzuki; (2) Nationals commercials offering the "payment-for-life" program; and (3) Chad Franklin Suzuki's commercials advertising a similar program.
The Court relied on Missouri precedent that considered the egregiousness of conduct when awarding significant punitive damages in a case where there were minimal actual damages. The Court held that the $500,000 in punitive damages was reasonable and proportionate to the harm Mr. Franklin inflicted.
Furthermore, the Court held that the Overbey's decision to sue under a statutory cause of action subjected them to the remedies defined under the Missouri Merchandising Practices Act. As such the trial court's decision to cap the punitive damages did not violate the separation of powers doctrine or their right to a trial by jury or due process and equal protection.
In Cooks v. Mid-Continent, Cooks was insured by Mid-Continent when it installed some equipment made by Greystone and sold to LaFarge. The equipment collapsed, causing damages including lost income while the equipment was being repaired. LaFarge and Greystone settled, and then Greystone sought indemnity from Cooks, which was granted. In the meantime, Mid-Continent said there was no coverage because the damage arose out of Cooks work, and was therefore subject to the damage to your work exclusion, even though the policy had products completed operations (PCOH) coverage. The trial court granted summary judgment to Mid-Continent, saying the "own work" exclusion precluded coverage. The appellate court reversed.
The own work exclusion states
This insurance does not apply to:
I. Damage To Your Work
“Property damage” to “your work” arising out of it or any part of it and included in the “products-completed operations hazard.”
Mid-Continent focused on the phrase “arising out of,” arguing that because all damages at issue arose out of Cooks’ work, they are not covered. Cooks responded that the exclusion applies only to “damage to your work” (emphasis added), and that to read the policy as Mid-Continent urges would be to render PCOH coverage illusory. The court agreed with Cooks and states:
A plain reading of these two policy provisions reveals that while the PCOH definition in the instant case encompasses certain “‘property damage’ … arising out of … ‘your work,’” the exclusion addresses only the portion of that same property damage which was actually caused to “your work.” Both contain the same language concerning property damage arising from the insured’s work, and both clearly address property damage falling within the definition of PCOH. However, the exclusion contains the qualifying phrase “to your work,” thereby removing from coverage property damage that falls within the PCOH definition, but that actually occurred to the insured’s work. Any remaining property damage meeting the definition of PCOH but occurring to property that was not the insured’s work, it follows, would be covered. We find no ambiguity in these provisions.
CGL policies, such as this one, insure the risk of the insured causing damage to other persons and their property, but not insuring the risk of the insured causing damage to the insured’s own work. The court states:
In fact, an ambiguity is present only when reading the policy as Mid-Continent does. If the exclusion in fact addresses all property damage arising from “your work” and “included in the PCOH definition,” then the exclusion would remove coverage for all property damage included in the PCOH definition, rendering the latter provision illusory. Such a conclusion would not be warranted even if the wording was as Mid-Continent suggests.
The exclusion, then, only applied to the equipment that Cooks actually installed. Since there was other damages, summary judgment was not proper. Furthermore, since the claim was covered, Mid-Continent had a duty to defend Cooks in the underlying lawsuits.
The appellate court concluded that the trial court erred in granting summary judgment in favor of Mid-Continent because the CGL policy’s exclusion for “Damage To Your Work” did not apply to alleged damage to property that was not Cooks’ “work.” In this light, based on our finding that the state and federal petitions alleged potentially covered claims, the trial court erred in determining Mid-Continent had no duty to defend Cook’s in either suit. It reversed the trial court’s grant of summary judgment to Mid-Continent and remanded for a determination of the amount of damages to property that was not Cooks’ work and was thus covered by the policy.
In Haltom v. Great Northwest Ins., the issue was whether Plaintiffs' knee injury arose out of the car accident she was in a few weeks before. When Haltom was checked out after the accident, she complained of many things, but not her knee. A few weeks later, while doing yoga, her knee began to hurt. She sought treatment and an MRI 4 months after the accident showed no tear. But a few months after that, she had a tear in her knee and got it fixed. She told the doctor her knee was hurt in the car accident. In the meantime, the other driver agreed to pay policy limits and Haltom asked Great Northwest for a subrogation waiver. Eventually, Great Northwest agreed to the waiver and paid her $10,000 in med pay. Later, it declined any payment under her underinsured motorist coverage, claiming that the knee problem was not related to the accident.
Summary judgment to the insurance company was affirmed. It was not unreasonable to question whether the knee was injured in the accident, especially since there was no evidence of injury to the knee after the accident in the emergency room, and the first MRI did not show any tear.
Mr. Toppins died in an airplane crash within 2 years of taking out a million dollar life insurance policy – i.e., within the 2 year contestable period. Minnesota Life began a routine investigation because the death occurred within 2 years of the policy. The investigation included a telephone interview with Mrs. Toppins, the beneficiary, and a request that she sign the investigator’s report and some medical information release forms. Rather than sign the documents, counsel for Mrs. Toppins demanded immediate payment and disputed Minnesota Life’s right to conduct an investigation. Suit was filed against Minnesota Life about 35 days after the claim was sent. Five days later, Minnesota Life was told there were no changes to the report, and Minnesota decided to pay the claim without Mrs. Toppins signature on the report or authorization. Minnesota Life contacted its reinsurer to confirm the decision, and sent off the check for the face amount of the policy plus interest. The claim was paid 47 days after it was received.
Summary judgment was later granted to Minnesota Life on Mrs. Toppins claims of breach of contract and bad faith. The Tenth Circuit affirmed.
Ms. Toppins argued that Minnesota Life breached its duty of good faith and fair dealing as follows: (1) it delayed payment while waiting for the reinsurer’s confirmation of its decision to pay, (2) it delayed payment while it waited for Ms. Toppins to sign her statement and complete the medical records authorizations, (3) it engaged in a standard practice of conducting underwriting review after an insured’s death, and (4) it did not pay on the policy within 30 days of receipt of the claim.
As to the 4 days delay in payment caused by consulting with the reinsurer, the court said that it was reasonable for an insurer to consult with its reinsurer, and the 4 day delay was not unreasonable. The insurer was entitled to investigate the claim because the insured died within 2 years of the policy inception. As to Mrs. Toppins claim that Minnesota Life was in bad faith for conducting post claims underwriting, the court rejected the claim, saying that “The tort of bad faith breach of an insurance contract must be based upon an insurer’s wrongful denial of a claim; it cannot be based upon the conduct of the insurer in selling and issuing the policy.”
Oklahoma law says that life insurance claims shall be paid within 30 days after proof of death, otherwise, interest must be added to the amount paid. The failure to pay within 30 days, coupled with the fact that Minnesota Life did not know of the statute was not bad faith. The payment of the full amount of the life insurance policy, plus interest, 47 days after receipt of proof of death did not constitute bad faith.
In Hale v. Allied Insurance, Plaintiff was hurt in an accident involving a non-owned ATV on a wilderness trail. The ATV was not registered, and not covered by insurance. Plaintiff claimed he was entitled to UM coverage under his own policies for his injuries. The insurer denied the claim, relying on an exclusion for accidents involving “any vehicle or equipment . . . [d]esigned mainly for use off public roads while not upon public roads.” Reasoning the ATV was designed for off-road use and the trail was not a public road, the insurer denied the claim. The trial court agreed, granting summary judgment to the insurer.
The Tenth Circuit affirmed. It noted that although "road" wasn't defined in the policy, the policy distinguishes between public roads and terrain suitable only for specially designed vehicles. The policy’s language excludes coverage for accidents involving vehicles “designed mainly for use off public roads while not upon public roads.” The trail where the accident happened was not a road, but an obstacle course, which inexperienced drivers were told to avoid.
In addition, Plaintiff argued that UM coverage was mandated by Wyoming law, which required motor vehicles be covered; since ATV 's are defined as motor vehicles, they are required to be covered. But, since this argument wasn't made to the trial court, the Tenth Circuit declined to consider it.
The Arkansas Supreme Court, affirming summary judgment for an insurer, upheld an exclusion to medical payments coverage contained in its policy which stated, “THERE IS NO
COVERAGE FOR AN INSURED . . . IF ANY WORKERS’ COMPENSATION LAW OR ANY SIMILAR LAW APPLIES TO THAT INSURED’S BODILY INJURY.” The exclusionary language applied to preclude coverage for medical bills incurred in a motor vehicle accident while working, despite the fact that workers’ compensation benefits did not cover all bills, as physical therapy bills were denied since they were not ordered by the claimant’s authorized treating physician.
Justice Danielson rejected arguments that medical payments coverage applied to cover the unpaid bills, noting that an insurer may exclude certain risks, and while there is statutory language authorizing such things as intentional acts, commission of a felony or evasion of arrest, in Ark. Code Ann. § 23-89-205, the Court has held that is not an exclusive list.
The Court pointed out by a previous decision, Aetna Insurance Co. v. Smith, 263 Ark. 849, 568 S.W.2d 11 (1978), it has upheld a similar occupational exclusion. In that case, the exclusion read, “This coverage does not apply to bodily injury (a) sustained by any person to the extent that benefits therefor are in whole or in part paid or payable under any workmen’s compensation law, employer’s disability law or any similar law.”
The Court explained its earlier ruling:
“Therefore, the exclusion clearly applied in all scenarios where workers’ compensation benefits either had been paid in whole or in part or could be paid in whole or in part. In other words, the exclusion this court upheld in Aetna would have applied even had workers’ compensation not covered the medical bills in full, and there is no distinction between it and the exclusion at issue in the instant case.”
The Supreme Court rejected arguments that it should overrule the Aetna case, citing case law supporting stare decisis “unless great injury or injustice would result.” The Court declined to
rewrite precedent with this case.
Edizone sued the insureds after the insureds continued to use Edizone’s patent to create and sell products after the insureds’ licensing agreement with Edizone ended. During the relevant time frame (about 4 ½ years) the insureds had policies from Ohio Casualty and Unigard. There was a six month gap in insurance coverage between the two insurers’ policies.
The insureds asked Ohio Casualty and Unigard to defend them in the Edizone action. Ohio Casualty declined and filed a declaratory judgment action. Unigard agreed to defend under a reservation of rights and then intervened in the dec action. Unigard got partial summary judgment, which required Ohio Casualty to share the defense costs equally with Unigard. Ohio Casualty appealed, and the Tenth Circuit certified the following question to the Utah state courts:
Should the defense costs in the Edizone case be allocated between Ohio Casualty and Unigard under the “equal shares” method set forth in the “other insurance clause” of Ohio Casualty’s policy, or, in the alternative, because the policies were issued for successive periods, should those defense costs be allocated using the time-on-risk method described in Sharon Steel Corp. v. Aetna Casualty & Surety Co., 931 P.2d 127, 140 (Utah 1997)?
In Sharon Steel, the court added up all the limits for all the years and apportioned defense costs accordingly. If there were uninsured periods, the insured would be allocated part of the defense costs. In this case, however, the Utah court said apportion defense costs as in Sharon Steel, but don’t make the insured pay since the insurers get to control the defense. The “other insurance clause” simply does not apply to successive risk insurers, but only to concurrent risk insurers.
In Cornwell v. Union Pacific, Mrs. Cornwell was killed at a railroad crossing when she was struck by a train. The trial court excluded various experts based on Daubert, and the jury found for the railroad. An appeal followed.
The trial court's rulings were affirmed. For one thing, the accident reconstructionist apparently trespassed on Union Pacific property when the reconstruction was filmed. But, more importantly, the vehicle used in the accident reconstruction was not the same type of vehicle in the accident. Another expert was properly excluded because he was not qualified and kept changing his opinions.
Mount Vernon issued a liquor liability policy insuring Okmulgee Inn for liability for injuries imposed on the insured by reason of the selling, serving or furnishing of any alcoholic beverage. Okmulgee was sued by three patrons who were injured in a bar fight on the premises. Mount Vernon said it had no duty to defend the subsequent lawsuit because the allegations did not indicate the patrons’ injuries were caused by the selling, serving, or furnishing of alcoholic beverages. The trial court agreed, but the Tenth Circuit reversed.
Okmulgee argued there was a duty to defend because the victims were served alcohol, witnesses referred to beer bottles being used in the bar fight just before the shooting, and a police report from a prior incident revealed that the shooter previously had been arrested at the same bar for public intoxication. Mount Vernon said there was no evidence that the shooter had been served or furnished any alcohol, or that alcohol precipitated the shootings. The Tenth Circuit said that the facts showed there was a credible possibility that alcohol contributed to the injuries. The district court arrived at a different conclusion because the victims’ complaints did not specifically allege that alcohol caused the injuries, and the district court declined to make that assumption based on the circumstances. The Tenth Circuit found the district court’s analysis was too restrictive. “The duty to defend cannot be limited by the precise language of the pleadings. The insurer has a duty to look behind the third party's allegations to analyze whether coverage is possible.” Based on the nature of the facts gleaned from the underlying complaints and other materials, the Tenth Circuit concluded “there is a possibility of coverage. Consequently, Mt. Vernon is obligated to defend its insured, and Okmulgee is entitled to summary judgment on the duty-of-defense issue.” But the court declined to decide whether Mount Vernon had any duty to indemnify Okmulgee, prior to a determination of any liability of Okmulgee to the patrons. “[I]f Okmulgee is found to be liable for any claims, Mt. Vernon's duty of indemnification will extend only to those claims falling within the scope of the policy.”
In Trinity Mortgage Companies v. Dryer, Dryer was sued for malpractice after a default was entered against Trinity in favor of Junker. Later, Trinity and Junker reached an agreement which gave Junker an ownership interest in Trinity but only to the extent that Junker could control any lawsuit and any proceeds of that lawsuit against Dryer, on behalf of Trinity. Trinity then sued Dryer and both sides sought summary judgment. Summary judgment was granted to Dryer and Trinity appealed. The Tenth Circuit affirmed.
The trial court found that the claim against Dryer was effectively assigned to Junker. Without the agreement, Junker would not likely recover anything against Trinity, and thus, the assignment was prohibited by 12 Okla. Stat. § 2017. In addition to the statutory prohibition, the court decided that the assignment of a legal malpractice claim to a former adversary was contrary to public policy.
The Tenth Circuit agreed that Trinity in fact did improperly assign tort claims. The settlement agreement between Junker and Trinity assigned tort claims by giving Junker decision-making authority concerning the litigation, precluding Junker from making decisions for Trinity apart from the lawsuit, sheltering Junker from any of Trinity’s liabilities, limiting Junker to money received from the lawsuit, prohibiting Junker from sharing in any other income of Trinity, and allowing Junker to collect on his judgment against Trinity only through the lawsuit. Thus, the settlement agreement was an assignment of a tort claim prohibited by Oklahoma law. The Tenth Circuit did not reach the public policy argument, but also affirmed summary judgment on the contract claim, because the breach of contract claim sounded in tort.
In American Farmers & Ranchers v. Shelter, American's insured was driving a car owned by Shelter's insured when he had an accident. American claimed that the "other insurance" clause in Shelter's policy violated Oklahoma's Compulsory Insurance law and should be disregarded such that Shelter should be required to pay its limits before American was required to pay anything. The trial court disagreed. The trial court found that since both policies had mutually exclusive other insurance clauses, the clauses would be disregarded and each policy would pay a prorated amount. The Oklahoma Court of Civil Appeals agreed with the trial court and affirmed.
When concurrent policies have such "other insurance" clauses which cancel each other, we hold that they are mutually repugnant and are to be disregarded, with the loss shared by the insurers on a pro rata basis. Where the insurers have designated in their policies the same method of apportionment, the contracts will control. Absent concurring provisions for apportionment, coverage of the loss is to be shared on a pro rata basis according to the ratio each respective policy limit bears to the cumulative limit of all concurrent policies. ...
Oklahoma's compulsory liability insurance laws do not dictate the determination of primary coverage.... Statutory policy is implicated only when insurers deny liability, not when they are in dispute as to which will provide primary coverage.
Even if the last part of the opinion was dicta, the Court found it persuasive and found that both insurers should pay their pro rata amounts to the injured party. The court concludes that Oklahoma's Compulsory Insurance Law "does not constrain an insurer from declaring its coverage as excess when there is other insurance which covers its insured's liability with respect to a claim also covered by its policy. The statutory policy of the [compulsory insurance law] is implicated only if the insurer denies liability. It does not control a dispute between insurers as to which provides primary coverage. Such a dispute is a matter of contract. "
An oral contract of insurance is possible. “The five elements necessary for an oral contract of insurance are: ‘First, the subject-matter; second, the risk insured against; third, the amount; fourth, the duration of the risk; and fifth, the premium.” Plaintiffs showed all elements so circuit court did not err in finding coverage.
In American National Property and Casualty Company v. Ensz & Jester, P.C. et al., American National, an insurance company, hired the law firm of Ensz & Jester to represent its insured, Justin Kurtz, in an automobile accident. After Kurtz received a judgment that was in excess of his policy he sued Ensz & Jester for malpractice and American National for bad faith. They both independently settled Kurtz’s claims against them. American National then sued Ensz & Jester for professional negligence, breach of contract and breach of fiduciary duty. American National alleged as damages the amounts it paid in the bad-faith matter including its attorneys’ fees and the amounts it paid to Esnz & Jester in the automobile accident case.
Ensz & Jester argued that since it had entered into a good-faith settlement with Kurtz, section 537.060 barred American National’s claims. Section 537.060 bars any claim by another tort feasor for the indemnification for the same injury. The circuit court entered summary judgment in favor of Ensz & Jester holding that section 537.060 barred American National’s claim. On appeal, American National argued that the: (1) the parties had a “legal relationship”; or (2) its claims are not for “indemnity”. The Court found that regardless of how American National denominates its claims, part of its claims seeks reimbursement for the amounts it expended in discharging its liability to Kurtz; thus, seeking indemnification. On the other hand, American National’s claim to a refund of attorneys’ fees in the underlying accident case is not a claim for indemnity, so Section 573.060 does not bar them from asserting it.
American National then argued that even if some or all of its claims are for indemnity, section 573.060 does not apply because it had a “legal relationship” with Ensz & Jester via the attorney-client relationship and/or a contractual relationship that creates a duty to indemnify them. The Court of Appeals found that American National had an equitable indemnity relationship with Ensz & Jester. Equitable indemnity imposes “...indemnity due to the relationship of the parties...regardless of intention.” But, Section 573.060 discharges liability for equitable indemnity when the alleged indemnitor settled in good faith with the injured party. Since Ensz & Jester settled with Kurtz, their liability for indemnity has been discharged. Section 573.060 applies to tort feasors liable for the same injury unless (1) one of the parties contracts to indemnify the other or (2) one was held vicariously liable for the other’s conduct. There was no contract to indemnify and American National was not vicariously liable to Kurtz.
In Greystone Construction v. National Fire & Marine Insurance Company, Richard and Lisa Hull bought a house built by Greystone, a general contractor. Greystone hired subcontractors to perform all work on the house. The house was built on soils containing expansive clays. Over time the soil expansion caused extensive damage to the home. The Hulls sued Greystone in 2005 asserting defective construction by the subcontractors. Greystone was insured under a commercial general liability (CGL) policy by National. National denied it owed Greystone a defense.
There is another home at issue. Douglas and Sandra Giorgetta bought a home in 1999, from Branan, a general contractor, who also hired subcontractors to build the house. Their home’s foundation also shifted due to being constructed on expansive soils. In 2006, the Giorgettas sued Branan asserting claims that mirrored the claims that Hull brought against Greystone. Branan also had a CGL policy with National, and National denied it was obligated to defend. The district court awarded summary judgment to National holding that Hull and Giorgetta complaints do not allege accidents that would trigger covered occurrences under their policies.
The main issue was whether property damage resulting from faulty construction by a sub-contractor was an “occurrence” under the terms of the policies. National argued that construction defects are not “occurrences” but rather the foreseeable result of poor workmanship, which is not covered by a CGL policy. The Court held that injuries flowing from improper or faulty workmanship constitute an “occurrence” so long as the resulting damage is to non-defective property and is caused without expectation or foresight. The Court considered the facts to determine if faulty workmanship was anticipated or accidental. The Court found that the damages suffered by the homeowners may have resulted from an unforeseen “occurrence” and the damage suffered was an unanticipated or unusual result flowing from a common place cause thus qualifying as a covered “occurrence” under the policy.
When S&W’s contractor Griffin, was hurt working on Noble’s site, he sued Noble. Noble asked S&W to indemnify it per their contract. The issue was which one of S&W’s insurers (primary or umbrella) was liable to pay for Griffin’s injuries. If the accident was Griffin’s fault, the primary carrier, Mid Continent was on the hook. Otherwise, the umbrella carrier, Union, had to pay.
The Mid Continent Policy contains “exclusions,” which limit Mid-Continent’s coverage. The exclusions in turn contain “exceptions,” which limit the scope of an exclusion and broaden Mid-Continent’s coverage. If an event is listed in an exception to an exclusion, Mid-Continent must cover that event.
The issue in this case involves an exception to an exclusion in the Policy. The “Contractual Liability Exclusion” limits coverage for, among other events, bodily injury arising from a contractual assumption of liability. The “Insured Contract Exception” narrows the Contractual Liability Exclusion so that Mid-Continent covers S&W’s contractual assumption of liability if S&W assumes that liability as part of an “insured contract.” The Contractual Liability Exclusion in the Policy provides: “This insurance does not apply to: . . . ‘Bodily injury’ . . . for which the insured is obligated to pay damages by reason of the assumption of liability in a contract . . .”. The Insured Contract Exception to the Contractual Liability Exclusion provides: “This exclusion does not apply to liability for damages: . . . Assumed in a contract that is an ‘insured contract’ . . . .”
Thus, because of the Contractual Liability Exclusion, Mid-Continent generally does not provide coverage for bodily injuries for which S&W (the insured) has assumed liability in a contract. But, Mid-Continent provides coverage if S&W assumed that liability as part of an insured contract by virtue of the Contract Exception to the Contractual Liability Exclusion. An insured contract is a contract where the insured assumes liability for bodily injury to a third party where the insured or those acting for the insured would be liable in tort.
It was agreed that Mid Continent would be liable if Griffin caused his injuries. So the question became, what does “cause” mean? Mid Continent relied on depositions to show that Griffin did not cause his injuries. Union put on experts to opine that Griffin caused the explosion when he took apart the machine he was working on, and that Griffin’s failure to wear flame resistant clothes contributed to his injuries. The trial court defined “cause” in its plain and ordinary usage to mean “be the cause of, effect, bring about; occasion, produce; induce.” The court found that Griffin caused, at least in part, his injuries because the explosion was caused by Griffin’s taking the machine apart. Thus, Mid Continent was liable.
There is also a nice discussion of determining causation under Oklahoma law and with regard to insurance policies.
In GEICO v. Quine, Watkins was a fault free passenger injured in a 3 car collision. Her medical bills were $9,000 and she was paid $13,000 from the tortfeasor. GEICO waived its subrogation rights and Watkins sought policy limits of $100,000 for her injuries. GEICO declined to pay policy limits and offered between $6,000 and $11,000 to settle Watkins’ claim. Watkins rejected the offers but demanded that GEICO was required to tender the “undisputed” portion of the UM policy. GEICO declined to make any payment without a release and filed a declaratory judgment action.
Based on the facts and following the doctrine of stare decisis, the court answered the certified legal question in the negative.
In reaching its decision, the Supreme Court relied heavily on Garnett v. GEICO, 2008 OK 43, 186 P.3d 935. Watkins received compensation from the tortfeasor's insurer in excess of her economic/special damages. GEICO, through its evaluation, determined that Watkins was entitled to some amount of UIM benefits under the GEICO policy for the noneconomic/general damage element of her claim. The distinction between these two damage elements is especially germane under the facts of this case. The parties could not agree on an appropriate value for Watkins' general damage claim; thus, a legitimate dispute arose. GEICO's refusal to issue an advance payment on Watkins' UIM claim presents a scenario far different than one involving a request for partial payment needed to satisfy unpaid medical expenses, lost wages, or other economic/special damages--cases where the impact of the loss is direct, immediate, and measurable with reasonable certainty.See, e.g., Weinstein v. Prudential Prop. & Cas. Ins. Co., 233 P.3d 1221, 1229-1231, 1241 (Idaho 2010) (finding sufficient evidence to support bad faith verdict where insurer unreasonably delayed payment of UM proceeds for unpaid medical bills). The only portion of her claim remaining after payment from the tortfeasor were those indeterminate sums attributable to general damages, and accordingly, the facts of this case are governed by our prior decision.
The court concludes:
that an insurer's refusal to unconditionally tender a partial payment of UIM benefits does not amount to a breach of the obligation to act in good faith and deal fairly when: (1) the insured's economic/special damages have been fully recovered through payment from the tortfeasor's liability insurance; (2) after receiving notice that the tortfeasor's liability coverage has been exhausted due to multiple claims, the UIM insurer promptly investigates and places a value on the claim; (3) there is a legitimate dispute regarding the amount of noneconomic/general damages suffered by the insured; and (4) the benefits due and payable have not been firmly established by either an agreement of the parties or entry of a judgment substantiating the insured's damages.
In Jones v. UPS, the Tenth Circuit ruled that an award of $2 million in punitive damages was too big. The jury had awarded $630,000 in compensatory damages on a retaliatory discharge claim, in addition to the $2 million in punitive damages. The determination of the constitutionality of an award of punitive damages is reviewed de novo. Citing State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 419 (2003), and finding it a “close question,” the court found the award of punitive damages was excessive. The jury awarded Plaintiff a substantial amount of actual compensatory damages, in light of the injuries suffered. As a result, while the ratio of punitive to actual damages was not per se unconstitutional, the jury’s punitive damage award was grossly excessive and therefore in violation of UPS’ due process rights. The court states:
having considered the degree of reprehensibility, the size of the punitive damage award compared to the compensatory damage award, and comparable cases, we conclude that the jury’s award of $2 million was constitutionally excessive.
So, the case was sent back down for the plaintiff to choose between a new trial on punitive damages or remittur as ordered by the trial court.
In DISH Network Corporation, et. al. v. Arch Specialty Insurance et. al., Dish filed a lawsuit against Arch (insurers) for failure to defend and indemnify against a patent infringement claim. DISH reasoned that the patent infringement suit was equivalent to an “advertising injury” which the insurers had a duty to defend and indemnify. The district court granted summary judgment to the insurers because the underlying complaint did not allege an “advertising injury” under the policies issued to DISH.
The insurers disputed whether a claim for patent infringement can ever constitute “advertising injury” within the relevant policy language. The Court of Appeals concluded that it can. The Court also considered whether the specific allegations in this case brought the underlying suit within the policy language. The Court relied on several courts decisions that held where an advertising technique itself is patented, its infringement may constitute advertising injury. See, Hyundai Motor Am. v Nat. Union Fire Ins. Co. of Pittsburgh, Pa., 600 F.3d 1092, 1102 (9th Cir. 2010); Amazon.com Int’l, Inc. v. Am. Dynasty Surplus Lines Ins. Co., 85 P.3d 974, 977 (Wash. Ct. App. 2044).
The Court used a causation analysis to identify the alleged injury and its origin. The Court determined that the infringement occurred in the advertising itself and reversed and remanded the grant of summary judgment.
In Blumenthal v. New York Life Insurance, Blumenthal cancelled his universal life insurance policy with New York Life after discovering the policy’s cash value and death benefit would be zero between 13 and 17 years. The district court granted New York Life’s motion for summary judgment on the ground that the claims were barred by Oklahoma’s statutes of limitation. Written materials relating to the policy were enough to put Blumenthal on notice of the basis of any claim he may have against New York Life. Blumenthal appealed. The Court of Appeals affirmed the district court’s ruling. It was an undisputed fact that Blumenthal received information that would put a reasonable person on notice that the anticipated premiums might be insufficient to maintain the policy until its maturity date. Blumenthal admitted that he never would have bought the policy if he had read the information when it was provided to him.
In Lucas v. Liberty Life Assurance Company, Lucas was injured at his job and received 24 months of disability under the company’s long-term disability plan. The company’s policy required that the employees eligible to receive benefits for the first 24 months not be able to perform substantial and material duties of his own occupation. After the expiration of 24 months, Lucas applied for additional disability benefits. Liberty Life, the company’s plan administrator and insurer, denied Lucas’ application. To be considered disabled and eligible to receive benefits after the first 24 months, one must “... not be capable of performing substantial and material duties of any occupation comparable to his former position.” After losing an administrative appeal, Lucas filed suit against Liberty Life for violating the Employee Retirement Income Security Act of 1974 (ERISA). The district court entered judgment in favor of Liberty Life and Lucas appealed. The appellate court considered whether the determination to deny benefits was arbitrary and capricious. The court explained that a decision is arbitrary and capricious only if it lacks a reasoned basis. The Court found that Liberty Life had a reasoned basis for denying the claim based on the following: three separate reviews of the claim; extensive citation to medical records and investigative surveillance; and Lucas’ securing a full-time university teaching position.
Giant African snails are invading Miami. The snails can grow up to 8 inches in length; and eat not only vegetation, but stucco and concrete; which could damage homes. But these types of damages are usually not covered under homeowners policies which view pest problems as maintenance issues.
Certain Underwriters v. B3, Inc., was a declaratory judgment action in state court, on whether the Total Pollution exclusion in an insurance policy issued by Lloyds applied to bar coverage for liability and damages. The trial court found that there was no coverage, and the Court of Civil Appeals affirmed. Since there was no coverage for the claim, there was no need to determine whether another party was a third party beneficiary of the policy and entitled to indemnification.
The claim involved a damage claim by nearby landowners who said that their sewage from the defendants' wastewater treatment plant ended up on their property. The court found that sewage was a pollutant (no kidding!) and was within the pollution exclusion of the policy.
In Brown v. Oklahoma Farm Bureau, Brown was sued for negligently conducting a house inspection. Although his policy was issued by AG Security, he sued both AG and Oklahoma Farm Bureau. The court found that Oklahoma Farm Bureau was not liable on the claim because it did not issue the policy, even though it handled the claims for AG.
The court found that Brown's alleged negligent inspection did not cause property damage, a requirement for coverage under the policy. Further, even if it had, the professional services exclusion (the exclusion excluded coverage for property damage resulting from "rendering of or failure to render professional services in the performance of any claim, investigation, adjustment, engineering, inspection, appraisal, survey or audit services.") precluded coverage for the claim.
There were coverage issues so that the bad faith claim was properly dismissed; further, the exclusion applied, so the contract claim was properly dismissed.
In NAICo v. Gerlicher, the issue was whether an exclusion in a CGL for liability coverage for "damages that arise out of any work that you do, work that is done on your behalf or any other activity related to an "exterior insulation and finish system" (commonly called EIFS) was an appropriate basis for summary judgment. The Court of Civil Appeals held that it was.
First, the exclusion was clear and unambiguous and applied to the claims in the lawsuit. Second, the efficient proximate cause doctrine did not turn the issue into a jury question because the policy contracted around the efficient proximate cause doctrine. The efficient proximate cause doctrine applies when at least two identifiable causes combine to form a single property loss, and one is covered under the policy while the other one is excluded under the policy."If the cause which is determined to have set the chain of events in motion, the efficient proximate cause, is covered under the terms of the policy, the loss will likewise be covered." While the issue of proximate cause in insurance coverage cases has generally been a fact question not suitable for summary judgment, the exclusion in this case contracts around the efficient proximate cause doctrine. The policy exclusion applies regardless of whether whether the loss was caused by another possibly covered cause of loss.
This case is about a pair of missing tail lights and the limits of reasonable foreseeability. Russell and Jennifer Johnson blame Liberty Mutual for failing to hold onto a pair of tail lights that, they say, would have helped them win a personal injury lawsuit they wanted to bring. Problem is, the Johnsons never asked Liberty Mutual to keep the tail lights, never mentioned their intent to sue, and allowed years to pass without a word. Now they fault the company for failing to divine their hidden (and perhaps not yet formed) intentions. Because the Johnsons, quite unsurprisingly, cannot identify a statutory or contractual basis for their claim, they ask us to create one for them in the common law of tort. But, we hold, the common law doesn’t require such uncommon foresight.
* * * *
Judge Gorsuch explains:
The Johnsons seek to use the common law in many uncommon ways. They ask us to recognize and enforce an independent spoliation tort, but the Colorado courts have yet to go so far. They say Liberty Mutual neglected its duties as the bailee of their property, but it’s unclear from the record whether the Johnsons even owned the tail lights by the time they asked for them. They argue that Liberty Mutual tortiously (in bad faith) disregarded an insurance obligation, but it’s hardly obvious what obligations Liberty Mutual had as an insurer to help the Johnsons anticipate and prepare for an affirmative lawsuit; no one, after all, suggests that Liberty Mutual had a contractual or statutory duty as insurer to pursue a lawsuit against Zimmerman and Mr. Dellock for the Johnsons. But all these questions pale beside another. To prevail on any of their (putative) tort claims, the Johnsons must show that their claimed damages were reasonably foreseeable — that Liberty Mutual knew or should have known that the destroyed tail lights would be relevant (valuable) evidence in their future affirmative litigation.. . . And this the Johnsons can’t do as a matter of law — either on the evidence at summary judgment (in their spoliation and bailment claims) or on their pleadings at the motion to dismiss stage (in their bad faith claim).
So, there you have it. I cannot improve upon Judge Gorsuch's prose.
In Leprino Foods Company v. Factory Mutual Insurance Company, (10th Circuit 2011) Leprino stored millions of pounds of cheese in a warehouse (Gress). The cheese became tainted by damaged fruit containers stored near the cheese. Leprino sued Gress and Gress settled with Leprino for $2.4 million. Leprino also made a claim to their insurance company, Factory Mutual. Factory Mutual denied the claim relying on the policy’s Exclusion Clause and Leprino sued Factory Mutual for breach of contract. The District Court found that Leprino had adequately proved that the damages were covered and not excluded under the policy’s Exclusion Clause. The Court awarded judgment for the full amount of the loss, $14 million, plus prejudgment interest, totaling $23 million. Factory Mutual appealed stating that the insurance claim amount should be offset by the settlement amount obtained from Gress. The Tenth Circuit Court found that the judgment should be offset by the settlement amount from Gress, but ordered that the attorney’s fees and costs in obtaining that settlement must be shouldered by Factory Mutual reasoning that, “...if an insurer wrongfully denies coverage, even in good faith, it must pay its proper share of expenses incurred by the insured in recovering from a third party when the benefits of the recovery also inure to the insurer.” Louisville & Jefferson Cnty. Metro. Sewer Dist. v. Travelers Ins. Co. 753 F.2d 533 (6th Cir. 1985). The court also held that any evidence introduced in a trial must have some probative value, if it does not, it must be excluded under Rule 402 of the Federal Rules of Evidence.
In Wilson v. State Farm Mutual Automobile Insurance Company, No. 3:10-CV-256-H, 2011 WL 2378190 [2011 U.S. Dist. LEXIS 63430] (W.D. Ky., June 15, 2011), the United States District Court for the Western District of Kentucky ruled that an insurance carrier did not act in "bad faith" by delaying payment of a settlement pending its determination of Medicare's reimbursable conditional payment amount.
In Wilson, the plaintiff filed an uninsured motorist claim which the insurer agreed to settle for the policy limits. However, the insurer delayed tendering payment until after it obtained Medicare's reimbursable conditional payment amount. The plaintiff sued the insurer claiming that the insurer's delay in paying the settlement violated Kentucky's bad faith law. For the reasons more fully discussed below, the court found that the insurer's actions did not constitute bad faith under Kentucky law.
Brendan Johnson was killed when a vehicle driven by Mark Royal collided with his Chevrolet Cavalier, which he was driving. At the time of the accident, neither Johnson's nor Royal's vehicle was covered by an automobile insurance policy. Johnson was residing with Addrea Stewart, his mother, when the accident occurred. Stewart owned a Ford Explorer, which was insured by American Family Mutual Insurance Company and provided uninsured motorist coverage with policy limits of $100,000 per person/$300,000 per occurrence. Stewart sought Uninsured Motorist ("UM") coverage benefits for the death of her son, Johnson, under the UM provisions of the policy covering her Explorer. American Family filed a motion for summary judgment contending that Johnson was not an insured person under Stewart's policy, relying primarily on a "named driver exclusion" ("NDE") endorsement. The NDE was added to Stewart's policy after its original issuance due to the termination of coverage for Johnson and for his vehicle. The exclusion was in effect on the date of the accident and read as follows:
This policy does not apply under any of the coverages to any vehicle in the care, custody or control of, or while operated by Brendan Johnson. . . . . All other terms, agreement, conditions and provisions remain unchanged.
Stewart opposed the granting of summary judgment, claiming that she was the injured "insured person" making a claim under her own policy. She claimed that she, as a named insured, was covered under the UM coverage of the policy for wrongful death damages with respect to the death of any person as to whom she is entitled to bring a wrongful death claim; in this case Johnson. The trial court relied on the NDE endorsement, finding the Stewart policy did not apply to any of the coverages if Johnson was driving, and granted summary judgment in favor of American Family. Stewart appealed.
Division One holds: While courts will enforce an NDE when it clearly excludes coverage when any named excluded person is driving, the language of the NDE section here is not effective, by itself, to bar a claim as to UM coverage. Nevertheless, the trial court obtained the right result in the case because the record shows that Johnson owned his own vehicle and thus could not qualify under the policy as an insured person, and because the "bodily injury" was sustained by Johnson, who was not an "insured person." Because Stewart did not suffer the bodily injury herself, as required under the policy, and Johnson was not an "insured person," Stewart could not recover under UM coverage for Johnson's death. The judgment is affirmed.
Arthur L. Been, who was sentenced in 2007 to serve concurrent terms for assault with a dangerous weapon, malicious injury/destruction of property, obstructing a police officer, and public intoxication following an altercation at a bar. He sued the bar, claiming if he hadn't been drunk, he wouldn't be in jail. Summary judgment to the bar affirmed.
In Guideone v. Shore, Guideone (Insurer) wanted Shore (Agent) to pay for all or part of a bad faith settlement it made with its insured. Apparently Agent had told the insured that her UM coverage did not kick in until after the liability carrier paid its limits. This is wrong under Oklahoma law. But, when the insured repeated this information to the Insurer, the Insurer did not correct the error. In addition, the Insurer did not timely investigate the claim. As a result, the Insurer was sued for UM and for Bad Faith. The Insurer settled with the Insured, and then went after the Agent for the money it paid in extracontractual damages. Summary judgment to the Agent was affirmed.
There was no express indemnity in the Agency contract, so summary judgment was appropriate on that theory. There was no right to implied indemnity because the Insurer was at fault for the Insured's claims. There was no right to contribution under the contribution among joint torfeasors statute (12 O.S. § 832) because as an agent, Agency could not be liable to the insured for bad faith.
In Breen v. Gardner, the Oklahoma Court of Civil Appeals affirmed the denial of a motion for mistrial after the investigating officer testified that he checked drivers licenses and insurance at the scene of a car wreck. The court reasoned that since Oklahoma law requires compulsory insurance, the jury would not be surprised that the officer checked insurance at the scene. Further, there was no evidence as to whether any party had insurance. Thus, the mere mention of insurance by the officer did not warrant a mistrial.
In addition, the defendant claimed that the jury was unduly influenced by the word insurance because it awarded $170,000 based on $3,300 in medical bills. But, because the record was insufficient to support this argument, this claim did not warrant a new trial, either.
In Hartford Underwriters Insurance Company v. Donna Ledbetter, the Missouri Court of Appeals considered whether an insurance policy’s language was ambiguous thus warranting coverage in favor of the insured. Ledbetter received injuries in a car wreck when another car driven by Danny Harris struck her car. Ledbetter sued Harris for her personal injuries and later settled the suit in exchange for his liability insurance policy limit of $50,000. Ledbetter then attempted to recover $200,000.00 against her insurer, Hartford, under the Underinsured Motorist provision of the Policy. Hartford denied that Harris’ vehicle was underinsured. Both parties filed a Motion for Summary Judgment and the trial court entered judgment in favor of Hartford finding that Harris’ vehicle failed to meet the Policy’s definition of an underinsured vehicle. Ledbetter appealed.
The appellate court’s review focused on the Policy’s “Other Insurance” clause pertaining to underinsured motorist coverage. The applicable provision stated, “Any insurance we provide with respect to a vehicle you do not own shall be excess over any collectible insurance providing such coverage on a primary basis.” Ledbetter argued the provision was ambiguous and required a construction that the underinsured motorist coverage was excess to the tortfeasor liability coverage regardless of whether she occupied the non-owned vehicle because a requirement that she actually occupy the non-owned vehicle was not contained in the policy.
“Language in an insurance policy is ambiguous if it is reasonably open to different constructions, and the language used will be viewed in the light of the meaning that would ordinarily be understood by a layman who bought and paid for the policy.” Hobbs v. Farm Bureau Town & Casualty Ins. Co., 965 S.W.2d 194, 197-98 (Mo. App. 1998).
The Court considered Goza v. Hartford Underwriters Ins. Co., 972 S.W.2d 371, 372 (Mo. App. 1998) where Hartford’s “Other Insurance” clause, which mirrors the “Other Insurance” clause in question, was found ambiguous and resolved in favor of the insured despite the fact that Goza was driving her own insured vehicle at the time of the accident. The Goza Court found the policy ambiguous because one could reasonably interpret the ‘excess coverage’ language as providing coverage for a vehicle that the insured did not own, while the ‘excess coverage’ language could also be interpreted as providing underinsured coverage in excess to amounts recovered from tortfeasor.
This Court held that an objective examination of the ‘excess’ language of the “Other Insurance” clause suggests that the language might reasonably be interpreted by an average lay person to mean underinsured coverage was excess to amounts recovered from the tortfeasor. It also could be interpreted to mean that the ‘excess’ language prevailed over the conflicting language contained in the Policy’s definition of an underinsured and Limits of Liability sections.
The trial court’s grant of summary judgment was reversed and remanded.
In Mendota v. Ware, Appellant (Ware) obtained a wrongful death judgment of $175,000 in damages against the driver of the car involved in a car accident of which her father was a passenger. Ware sought satisfaction of the entire judgment from respondent’s insurance carrier, Mendota. Ware argued that the Policy contained a typo that described property damage as “Coverage A” when it should have been designated as “Coverage B” thereby rendering the Policy ambiguous with no effective limits of liability. Mendota refused to pay more than the specified $25,000 policy limit for bodily injury claims and filed a declaratory judgment asking the circuit court to determine that the Policy was unambiguous and that the policy limit for bodily injury was $25,000. Both parties filed motions for summary judgment and the circuit court granted Mendota’s motion. Ware appealed. Relying on a single-character typo on the Policy’s Declaration page, Ware contends that the policy should be interpreted in her favor and impose no monetary limit on liability of coverage. The Court of Appeals relied on a recent Missouri Supreme Court definition of ambiguity as a “duplicity, indistinctness, or uncertainty in the meaning of the language of the policy. Language is ambiguous if it is reasonably open to different constructions.” Burns v. Smith, 303 S.W.3d 505, 509 (Mo. banc 2010). The court noted that despite the “blatant” typographical error on the Policy’s Declaration page, the Policy can neither be construed to impose no monetary limit, nor can it be construed to impose a limit other than the policy’s specified $25,000 limit. The Court also found the Policy to contain straight forward terms on how the limits of liability would operate. The Court took its decision a step further and noted that even if the Policy were deemed ambiguous, Ware would only be entitled to a resolve the ambiguity consistent with a reasonable expectation as to what coverage would be provided. Ware’s argument of unlimited liability is contrary to the reasonable expectation as to what coverage would be provided and goes beyond what any fair interpretation will allow.
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.
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.
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.
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:
The language of the OAMIC policy is clear and unambiguous in excluding from coverage the following:
This policy does not apply:
a. To any claim arising out of any dishonest, fraudulent, criminal, malicious or knowingly wrongful act or omission or deliberate misrepresentation committed by, at the direction of, or with the knowledge of any insured.
b. To any claim arising out of the division of fees or fee [apportionment] between an insured and any other lawyer or lawyers.
. . . .
All of the allegations . . . arise from the fee dispute . . . . and as such, are excluded from coverage under the policy.
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.
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.
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.
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.
In Mulford v. Neal, the Oklahoma Supreme Court in a per curiam decision decided that a named driver exclusion violated Oklahoma's public policy. As a result, the court found that there was coverage for an accident where a driver who was specifically excluded under the policy was driving. Previously, the court had upheld a named driver exclusion where the excluded driver had a bad driving record. Here, the excluded driver was a child of the insured. The court believed that the insurance company routinely excluded minors from coverage, but it is not clear whether the record supports that conclusion. The court also found coverage under the mother's policy which had a similar exclusion. It is unclear why this would be necessary since the court has previously held that freedom of contract principles apply to any coverage over the minimum amount required by law. In any event, the use of any exclusions in an automobile liability policy in Oklahoma is now suspect, and it seems likely that insurers will be on the hook for any accidents involving family members.
Cohen-Esrey, the insured, was a property manager for an apartment complex. Its employee, Phillips was found to have been pocketing rental money in September, 2006. Cohen-Esrey notified its insurers of a potential claim on or before October 30, 2006. But on November 1, 2006, Cohen-Esrey switched its errors and omissions coverage to Twin Cities. No notice of the potential claim was given to Twin Cities until after June, 2007, when the apartment complex owners demanded that Cohen-Esrey make good on the money its employee, Phillips, stole. When Twin Cities denied the claim, Cohen-Esrey sued. On summary judgment, the trial court found for Twin Cities because of the failure to satisfy the policy’s condition precedent that at the policy’s inception Cohen-Esrey “was [not] aware of [a] Wrongful Act, fact, circumstance or situation that [it] knew or could reasonably have foreseen might result in a Claim under this Policy.” The Tenth Circuit affirmed.
Cohen-Esrey’s errors-and-omissions policy with Twin City was a claims made liability policy that covered both loss and defense costs. “Under a claims-made policy, coverage is only triggered when, during the policy period, an insured discovers and notifies the insurer of either claims against the insured or occurrences that might give rise to such claims.” In contrast, under an occurrence policy, “coverage becomes effective if the negligent or omitted acts occur during the term of the policy.” The Twin City policy covered losses that Cohen-Esrey “shall become legally obligated to pay . . . resulting from Claims first made against the Insured during the Policy Period . . . for a Wrongful Act by the Insured, or an Entity for whom an Insured Entity is legally responsible. The policy provision central to the dispute states that “as [a] condition precedent to coverage hereunder[,] . . . as of the inception date no partner, principal, officer, director, or member of the Insured was aware of any Wrongful Act, fact, circumstance or situation that he or she knew or could reasonably have foreseen might result in a Claim under this Policy.” Such prior-knowledge conditions are common in claims-made policies because they “ensure that only risks of unknown loss are potentially incurred,”
Kansas applies what it terms a two-prong, subjective-objective test to determine whether a prior-knowledge condition has been satisfied. The subjective prong is “whether the insured knew of certain facts.” The objective prong is whether Cohen-Esrey could reasonably have foreseen that the facts known to it might result in a Claim under the Policy. Because the facts show that the insured knew facts which might result in a claim under the policy and failed to tell Twin City about those facts, summary judgment was proper.
The Gibsons were told by their insurance company that their homeowner's policy would not be renewed when it expired on March 28; the Gibsons contacted their agent and thought they had insurance because they had taken down an above ground pool. But the Gibsons did not pay any premium and heard nothing from the insurance company. When they had a loss about a month after the policy expired, the insurance company denied it, saying there was no insurance in effect at the time of the loss. The trial court granted summary judgment to the insurance company and the Court of Civil Appeals affirmed.
The Gibsons were given proper notice of non renewal; and they did not pay any premiums. The agent's statements could not bind the insurance company to cover a risk it had declined. There was no policy in effect at the time of the loss and summary judgment was proper.
Here, the plaintiffs hired the defendant lawyer to file a wrongful death case for them against their deceased's co-employees. Suit was not filed within the limitations period. At trial, the judge permitted the jury to determine if the employers insurance would have covered the claims against the co-employees. The jury found that it would and found for the plaintiffs. The trial court then granted the defendant's motion for judgment notwithstanding the verdict, finding it was error to let the question of insurance coverage go to the jury. The appellate court affirmed, finding that insurance policies are to be interpreted as a matter of law.
Statute allows named driver exclusions. Named driver exclusion denied coverage for damages caused by drivers in insured’s household but named for exclusion in policy. Such exclusion “enabl[es] drivers with family members having poor driving records to procure affordable insurance, rather than obtaining coverage from an assigned risk pool at a greater cost or not securing insurance at all.” Gregory F. Yates vs. Progressive Preferred Insurance Company
In Panico v. State Farm Fire & Casualty Co., the Panicos (insureds) sued State Farm for failing to defend them in an action brought when the property they sold to a third party was not as the third party expected. The Panicos sought a defense under their homeowners’ policy. State Farm refused since the claims did not come within coverage of the policy. Summary judgment to State Farm was affirmed.
Colorado uses the four corner rule to determine whether there is a duty to defend. If any of the allegations of the complaint come within coverage, there is a duty to defend. State Farm had no duty to defend because the third party did not bring bodily injury claims, and the property damage claims are subject to the owned property exclusion.
There was no bodily injury claim because the underlying complaint, while mentioning some bodily injuries, did not not seek damages, or any other relief, for bodily injuries. The underlying complaint does not seek relief for bodily injury. Rather, the complaint clearly seeks recovery for the economic damages incurred in the purchase of the Property: the cost to bring the Property up to its warranted condition, or the difference between what was paid for the Property and what was received. Because the underlying complaint cannot reasonably be read as an attempt to hold the Panicos liable for bodily injury, State Farm’s duty to defend is not triggered.
All of the property damage claimed, whether based on the Panicos’ alleged misrepresentations concerning the Property, their alleged negligent construction of the Property, or their alleged negligent maintenance of the Property would have taken place while the Panicos owned the property and is thus subject to the owned property exclusion.
The court notes that other courts have held that an owned property exclusion bars coverage of a home purchaser’s negligence claims against the insured (discussing cases). The court also notes that the policy only covers property damage caused by an occurrence; and that the misrepresentation did not cause the property damage.
In McMullan, the plaintiff purchased a used car from a dealership, and also purchased a vehicle service contract from the Defendant, Enterprise. The service contract indemnified the buyer for certain repair costs if mechanical breakdowns occurred before 48 months or 50,000 miles, whichever happened first. When a claim was made within 6 months, Defendant refused to pay. McMullan sued Enterprise for breach of contract and bad faith.
The trial court granted summary judgment on the bad faith claim, since the vehicle service agreement was not an insurance contract. The Oklahoma Supreme Court reversed. The court states:
Although vehicle service providers may not be subject to the exact same requirements and regulations as insurance providers, vehicle service contracts meet the definition of and are designed to function and perform as "insurance." The consumer pays for indemnity and pays to shift the risk of paying for high repair costs to the vehicle service provider in exchange for a pre-paid premium. Because these contracts function like insurance, their providers should be subject to the same covenants of good faith that insurers must meet.
In United Fire & Casualty v. Boulder Plaza, the 10th Circuit wades into some weighty yet somewhat obscure coverage issues dealing with builders, contractors, subcontractors and the indemnity agreements between them.
The subcontractor was insured with United Fire (UFC); and the general contractor was an additional insured for imputed liability arising out of the ongoing operations of the subcontractor. The floors the subcontractor put in were bad, apparently because of excessive moisture in the concrete below them. Owners sued the builder who general contractor who sued the subcontractor. And of course there were various cross claims, counterclaims, etc. Subcontractor was eventually exonerated in these cases. The general contractor wanted UFC to defend it in the claims. When UFC declined, a declaratory judgment action was filed, and UFC was granted summary judgment which the 10th Circuit affirmed (but on different grounds).
First, Colorado law applies the 4 corner rule to duty to defend claims, looking at the 4 corners of the complaint. Second, under occurrence policies, coverage is only triggered when a third party suffers actual damage within the policy period. The occurrence is when the damage happens, not when the negligent act occurs. The underlying complaint alleged the subcontractor's work was complete before the damage occurred, and therefore, the damage did not arise out of "ongoing operations" and there was no coverage. The CGL policy was not a performance bond and did not cover completed operations.
There have been some recent unpublished cases of interest which discuss landowner liability, including landlord liability to third parties for conditions on the property.Here is a summary of some of the main points of these unreported decisions.
An absentee landlord in Oklahoma generally cannot be held liable as the keeper or harborer of its tenant’s pets. Hampton v. Hammons, 1987 OK 77, 743 P.2d 1053; Eastin v. Aggarwal, 2009 OK CIV APP 67, 218 P.3d 523; Bishop v. Carroll, 1994 OK CIV APP 37, 872 P.2d 407.
A property owner owes a licensee a duty to exercise reasonable care to disclose to him the existence of dangerous defects known to the owner, but unlikely to be discovered by the licensee. To an invitee, an owner owes the additional duty of exercising reasonable care to keep the premises in a reasonably safe condition for the reception of the visitor, but the owner need not remove known but obvious hazards. Pickens v. Tulsa Metropolitan Ministry, 1997 OK 152, 951 P.2d 1079, 1084. In other words, a landowner owes to an invitee, as well as to a licensee, a duty to protect him from conditions which are in the nature of hidden dangers, traps, snares and the like.” “A landowner has no duty to protect a business invitee from open and obvious dangers.” McKinney, 1993 OK 88 at 9, 855 P.2d 602 at 604.
A “hidden danger” within the terms of the rule governing the liability of an owner or occupant of the premises “need not be totally or partially obscured from vision or withdrawn from sight; the phrase is used to describe a condition presenting a deceptively innocent appearance of safety `which cloaks a reality of danger.’ Pickens, 1997 OK 152 at 10, 951 P.2d at 1084 (quoting Rogers v. Hennessee, 1979 OK 138, 3, 602 P.2d 1033, 1034). See also Jack Healey Linen Serv. Co. v. Travis, 1967 OK 213, 8, 434 P.2d 924, 927. In Julian v. Secured Investment Advisors, 2003 OK CIV APP 81, 23, 77 P.3d 604, 608, this Court noted:
The Oklahoma Supreme Court has stated that “the characteristic of an item as being observable . . . cannot, by itself, require that item to be declared as a matter of law an open and obvious danger.” Zagal v. Truckstops Corp. of America, 1997 OK 75, 9, 948 P.2d 273, 275. Instead, “[a]ll of the circumstances must be examined to determine whether a particular condition is open and obvious to the plaintiff or not.” Id. (citing Brown v. Nicholson, 1997 OK 32, 8, 935 P.2d 319, 322).
The general rule is that the right of possession and control over leased premises is a fundamental requirement for ascribing liability to a landlord for injury suffered on those leased premises, but the general rule does not apply where the leased premises are open to the public. See Schlender v. Andy Jansen Co., 1962 OK 156, 0, 380 P.2d 523 (Syllabus 3); Price v. MacThwaite Oil & Gas Co., 1936 OK 562, 0, 61 P.2d 177 (Syllabus 2).
Regional Air v. Canal Insurance involved a property damage claim between an insurer (Canal) and an insured (Regional). It went to appraisal and the Regional was awarded about $44,000. But, Regional felt it was owed more and went to federal court. Ultimately, the federal court found the appraisal ok, but a jury awarded Regional an additional $12,000 in storage costs. The question became who was the prevailing party since the prevailing party gets attorneys fees.
The trial court erred in entering judgment for only $12,000; the judgment should have been for the full amount awarded -- the $44,000 plus the $12,000. This clearly makes the insured the prevailing party because it was more than the written settlement amount offered by Canal.
The trial court erred in finding that Regional was not entitled to attorneys fees. The notice of the loss was sufficient to satisfy the proof of loss requirement. In addition, the statute, 36 Okla. Stat. § 3629, mandates attorneys fees to the prevailing party. Thus, the case was remanded to the trial court to determine attorneys fees.
Regional was not entitled to interest on the judgment, however. Regional was only entitled to interest on the verdict -- the amount awarded by the jury, not the amount awarded under the appraisal process because that was what the statute provides.
An insured had a commercial vehicle policy with $1M limits. The insured selected UM limits of $100,000. Because there was no separate rejection of UM limits equal to the liability limits as required under New Mexico law, the court found the "rejection" ineffective. This resulted in the UM limits being equal to the liability limits as a matter of law.
In Union Insurance v. Mendoza, Mendoza was injured by breathing in ammonia fumes. Ammonia fertilizer was being sprayed onto farm land next to where Mendoza was working on the highway, injuring her. Summary judgment to the insurer was affirmed. The claim was excluded under the pollution exclusion clause, which was not ambiguous. Recent Kansas case law confirmed that the pollution exclusion was not ambiguous and therefore enforceable. As a result, there was no coverage for Mendoza's claims and summary judgment was proper.
Doug Hambelton hit a deer with his tractor-trailer truck and his transmission failed about two weeks later. Canal, his insurer, refused to pay for the transmission repair, contending it was a mechanical failure. Hambelton sued Canal for breach of contract and bad faith. A jury found and awarded in favor of Hambelton on both claims, awarding actual damages of $5,366.98, plus $117,555.00 for bad faith, punitive damages of $75,000.00, and $72,982.50 in attorneys’ fees. The Tenth Circuit affirmed.
First it was determined that the trial court correctly applied Oklahoma law. Although the significant contacts were fairly evenly split, the trial court was correct in not applying Missouri law because while Missouri’s prohibition against bad faith and extracontractual damages protects Missouri insurers, Canal was not a Missouri insurance company. Because the contractual relationship, which gave rise to the duty of good faith Oklahoma law seeks to protect, came into existence in Oklahoma, the district court correctly held that applying Oklahoma law protects Oklahoma’s policy interest without violating the policy of Missouri or South Carolina.
Canal’s claim that there was insufficient evidence to support the verdict was waived because Canal failed to file a Rule 50(b) motion after the verdict. This failure forecloses a challenge to the sufficiency of the evidence. See, Unitherm Food Sys., Inc. v. Swift-Eckrich, Inc., 546 U.S. 394, 404 (2006). Canal’s claims that the bad-faith and punitive damage awards were excessive and unconstitutional were also waived. Canal neither moved for a new trial after the jury verdict nor filed a post-trial motion to set aside the verdict. It cannot do so for the first time on appeal. See Hardeman v. City of Albuquerque, 377 F.3d 1106, 1122 (10th Cir. 2004). In a separate order, the award of attorneys fees was also affirmed.
Decedent was killed on the job in a traffic accident. His estate received workers comp death benefits. His estate also sued the parties involved in the accident for wrongful death. The workers comp insurer sought to intervene in the tort action, claiming a right to be reimbursed for the payments it made under the workers comp law.
The Oklahoma State Legislature has not included the insurance company the rights to subrogation for monies paid to an employee's beneficiaries and thus, the workers comp insurance company has no standing to intervene in the case. The statutory language is neither ambiguous nor uncertain. The workers comp insurer may not stand in the shoes of the Employer and since the Employer did not pay any benefits to the employee's beneficiaries, the Employer has no right to seek reimbursement for benefits paid by the workers comp insurer.
In Dodson v. National Union Fire, Dodson, which salvaged aircraft, had an insurance policy with National Union which only provided for Products Completed Operations Coverage (PCO). The PCO did not have its own coverage section. Rather, PCO coverage was provided in the definition section of the policy, Section V. This was troublesome to the court since the care, custody and control exclusion relied upon by National Union to decline coverage was in Section I, Coverage A. Since there was nothing which clearly stated that the exclusions set forth in Coverage A would apply to the PCO coverage, however, the policy was ambiguous and must be construed in favor of coverage.
The city of Kinloch, Missouri, had an insurance policy with Scottsdale. The policy had 4 parts: four separate “coverage forms” that apply to various types of claims, including “Employment Practices Liability Coverage Form Claims Made Coverage,” “General Liability Coverage Form Occurrence Coverage,” “Law Enforcement Liability Coverage Form Occurrence Coverage,” and “Public Officials Liability Coverage Form Claims Made Coverage.” Each “Coverage Form” has its own definitions, exclusions and declarations page. There was also a general exclusion page which applied to all the coverages.
In the General Liability Coverage form, there was a jail exclusion, but that exclusion did not appear in the general exclusions applicable to all coverages. Thus, the appellate court found there was a fact issue which precluded summary judgment. Summary judgment would only be appropriate if there was no insurance (and therefore, no sovereign immunity).
The Missouri Western Court of Appeals for the Western District was looking at an auto policy to determine if the liability coverage "stacked." In finding that the policy was ambiguous, the Court indicates that exclusions make a policy ambiguous.
In Durbin v. Detrick, Durbin was injured by Deitrick, [the insured or covered individual], while Deitrick was operating a vehicle he did not own. Because Deitrick’s four personal automotive liability policies are ambiguous as to whether they may be stacked in this specific circumstance, we must construe the policy language against American Family and in favor of permitting stacking of Deitrick’s four liability policies. On cross motions for summary judgment, the trial court found for the insured, and this was affirmed by the Court of Appeals.
The Court notes: “Where an insurance policy promises the insured something at one point but then takes it away at another, there is an ambiguity.” Thus, “if policy language is ambiguous as to whether stacking is permitted, we construe the language of the policy against the insurer and in favor of stacking.”
The Court concluded “that while the Limits of Liability provision and Section 3 of the General Provisions in the American Family policies appear to generally prohibit the stacking of multiple liability policies, the language of the second sentence of the Other Insurance provision, analogous to that of Ritchie and Niswonger, could reasonably be understood by a lay person to indicate an exception to this general prohibition in the specific case where liability coverage is afforded for injuries incurred through use of a vehicle not owned by a covered individual.”
Cook was used a policy by Admiral. Cook told Admiral of a claim in Oklahoma. Admiral said the policy did not count the claim and that Texas laws applied because the policy was delivered to Cook in Texas.
The court disagreed finding that the service of suit endorsement allowed Oklahoma law to apply. In the Service of suit endorsement, Admiral agreed it could be sued in any court of competent jurisdiction and that all matters would he determined in accordance of the law and practices of such court.
Since the suit was filed in Oklahoma, the court found that Oklahoma law applied. Further, fact questions precluded summary judgment on whether the pollution exclusion applied and also whether the insured acted in bad faith.
Oldenkamp vs. United American Insurance involved cross motions for summary judgment. The trial court granted summary judgment to the plaintiffs on their claim for coverage and to the defendant on plaintiffs’ bad faith claim.
The insurance company refused to pay for surgery for the removal of a congenital cyst from plaintiffs’ son’s eyelid, claiming it was a pre-existing condition. An Oklahoma insurance regulation precludes pre-existing condition exclusions for congenital anomalies of a covered dependent child. United claimed the regulation did not apply to it because the policy was not a “health insurance policy”, but was a “limited benefit policy”. The Tenth Circuit reviewed the statutes and agreed with United. A statute specific to limited benefit policies allowed for a waiting period for coverage of pre-existing conditions. Plaintiffs also believed the policy was not a limited benefits policy. The trial court gets to decide if that issue may be raised on remand.
As to the bad faith claim, the summary judgment dismissing it was affirmed. United raised a legal argument on which there was no controlling decision by the Oklahoma courts which would have shown that the argument was unreasonable. “[B]ecause we have held that United did not breach the insurance contract by denying coverage under these circumstances, it follows that we necessarily agree that United’s denial of coverage was reasonably based.” The fact that United was unaware of the regulation relied on by Plaintiffs was not bad faith, and United didn’t have to get a legal opinion before denying the claim. The court noted that one Oklahoma case allowed a bad faith claim to go forward when the contract was not breached, but declined to apply it in this case. Even if United falsely stated that a doctor reviewed the claim, that did not cause any damages, and therefore could not form the basis of a bad faith claim. The fact that United gave Plaintiffs the “runaround” on their claim and did not produce everything that Plaintiffs thought it should was also not grounds for their bad faith claim.
The spoliation claim was not supported and was properly denied.
In Flores v. Monumental Life, the Tenth Circuit reversed a summary judgment entered in favor of the insurer on the breach of contract claim, but affirmed the dismissal of the bad faith and negligence per se claim.
Mrs. Flores had an accidental death policy with Monumental, which would pay off if death was caused by an accidental bodily injury, independent of all other causes. The policy said that “[t]he Injury must not be caused by or contributed to by Sickness.” Mrs. Flores was on blood pressure medicine when she fell and broke her arm. She was in the hospital for 10 days and was transferred to a rehab center when she died from toxic levels of her blood pressure medicine. The medical examiner could not determine if the high levels of the medicine was caused by Mrs. Flores liver problems or by an overdose of the medicine.
Monumental denied the claim for benefits because there was no evidence Mrs. Flores’s death had resulted from an accidental bodily injury independent of all other causes and because her death fell within the specific exclusion for sickness or its medical or surgical treatment. The district court found that Mrs. Flores high blood pressure was a contributing cause to the death and found there was no coverage. While the fall was not an injury which caused death, the Tenth Circuit found that there was a fact question as to whether an overdose of blood pressure medicine caused her death. If so, that would constitute an injury under the policy.
Just because the policy requires the injury causing death to be independent of all other causes, that doesn’t mean it must have occurred in a vacuum. Rather, the accidental injury itself must be the sole proximate cause of the death. Courts have long rejected attempts to preclude recovery on the basis that the accident would not have happened but for the insured’s illness. The court distinguished cases where either the disease was aggravated by the accident or the accident aggravated the disease. Where a pre-existing disease only contributed to death insofar as it placed the insured in a position where an unanticipated and unintended occurrence might happen, the Oklahoma Supreme Court has found coverage under the terms of similar accidental insurance policies.
Since the medical examiner said he could not tell if the high levels of the medicine were caused by Mrs. Flores bad liver or by an overdose, it was up to the jury to decide. The sickness exclusion did not preclude coverage. The definition of “sickness” is “Sickness means an illness or disease which results in a covered Loss.” Because of the use of covered in the definition of sickness, the court found a reasonable person could believe that sickness could result in a covered loss, despite the sickness exclusion. In other words, the policy was ambiguous.
The court affirmed summary judgment on the bad faith claims, finding no basis for bad faith from the defendant’s general claims handling, failure to have written guidelines, or failure to train its claims handlers in Oklahoma law. There was a legitimate dispute as to coverage.
Plaintiff argues that he stated a valid negligence per se claim based on Defendant’s violation of two Oklahoma statutes: an administrative code which requires that warning language be put at the beginning of accident-only policies; and a statute which requires an insurer to adopt and implement reasonable standards for claims investigations. There was no evidence that violation of the first caused damages and no evidence of violation of the second.
Peter Sindhuphak in the Insurance Litigation and Regulatory Law Blog discusses a recent California Supreme Court case. The insured settled his earthquake claim against his insurer, State Farm, and released all his claims against the insurer. Then, the insured apparently became dissatisfied with the settlement and sued State Farm for fraud, claiming, inter alia, that State Farm misrepresented the limits available under the policy. But in order to sue for fraud, the insured had to rescind the settlement and return the money to State Farm.
Oklahoma law also requires by statute return of consideration in the rescission context.
Diane Polscer discusses a recent Oregon case on exhaustion requirements on the duty to defend in umbrella policies. The court concluded the insurer’s duty to defend under an umbrella policy was triggered even where all other underlying coverage for all possible periods had not been exhausted.
Generally, umbrella policies are only required to kick in once the primary policy (or policies) have been used up. Here, the court held that only primary policies covering the same year as the umbrella policy needed to be exhausted before the umbrella policy was on the hook.
Brownings v. American Family involved a claim for the breach of the duty to defend and indemnify. The Tenth Circuit describes the underlying facts:
Michael Browning’s response to a property dispute was, even most charitably regarded, extreme. He threatened his neighbors, David and Brenda Reichles, with violence and punctuated his threats with gunfire. Reichles sued both Michael and his wife. Brownings asked American Family Mutual Insurance Company (American Family) to pay for their defense of Reichles’ claims. When it refused, Brownings sued in Colorado state court claiming a breach of their homeowner’s insurance contract. American Family removed the case to federal court. Brownings unsuccessfully objected to the removal. Ultimately the district court entered summary judgment in favor of American Family. Brownings appeal from both the merits and the procedural decisions. We affirm.
The case involved a fence dispute – when new owners had the property surveyed, they (the Reichles) tried to move the fence, and Brownings tried to keep them from moving it. After one incident where Brownings swore at the Reichles and fired his assault rifle 15-30 times, the Reichles sued Brownings for negligent and intentional emotional distress (among other things). Brownings requested a defense of the Reichles claims from American Family, which declined. Eventually, there was a judgment against Brownings on the emotional distress claims. When American Family did not pay, Brownings sued and the case was removed to federal court.
While the policy had the expected coverages, it also had the expected exclusions, including an intentional acts exclusion and a criminal acts exclusion. Because Brownings pleaded guilty to threatening the Reichles with a gun, the court found both exclusions applied to preclude coverage, stating: “The Policy does not require American Family to defend intentional acts or those resulting in a criminal conviction. Such limiting policy provisions seek “to prevent extending to the insured a license to commit harmful, wanton or malicious acts.”” Trespass claims were intentional acts under Colorado law were not covered – even if it did result in property damage.
As to the claims for emotional distress, the factual allegations were the same for both the negligent and the intentional infliction of emotional distress claims, including but not limited to:Brownings’ verbal and physical threats (including the dramatic placement of a bullet riddled human silhouette on the fence), rapid-fire discharge of the assault rifle in the immediate vicinity of the Reichles, and threats to shoot them. The inseparability of the factual allegations, coupled with the admitted intentional acts, necessarily invokes the intentional acts exclusion of the Policy. And besides, the since Brownings pleaded guilty to charges of threatening the Reichles with a gun, the criminal acts exclusion applied as well.
One other issue raised was whether the removal was proper since American Family did not file the notice of removal in state court for 18 days. While the rule requires the notice be filed promptly in state court, there was no action taken by the state court during the 18 day period and no one was harmed by the oversight. As a result, the motion to remand was properly denied.
In Tarrant v. Guthrie First Capital Bank, plaintiff's judgment against the bank was reversed because the court instructed the jury on prima facie tort, which has not been recognized in Oklahoma. In fact, the Oklahoma Supreme Court has indicated in Patel v. OMH Medical Center, Inc., 1999 OK 33, 987 P.2d 1185,:
The expression "prima facie tort" does not appear ever to have been recognized in Oklahoma. For the view that the concept of prima facie tort has been applied in Oklahoma jurisprudence under limited circumstances, seeMerrick v. Northern Natural Gas Co., 911 F.2d 426 (10th Cir. 1990).
Until the Oklahoma Supreme Court recognizes such a claim, any verdict based on a prima facie tort instruction is reversible error.
The Tenth Circuit clarified the appropriate standard for discovery related to a dual role conflict of interest in ERISA cases in Murphy v. Deloitte & Touche Group based on the recent Supreme Court decision of Metropolitan Life Insurance Co. v. Glenn, 554 U.S. 105, 128 S.Ct. 2343 (2008). While the holding did not change Tenth Circuit law, the court felt it was appropriate to clarify its prior holdings.
In an ERISA case where the plan “‘gives the administrator or fiduciary discretionary authority to determine eligibility for benefits or to construe the terms of the plan,’” the administrator’s decision is reviewed for an abuse of discretion – and in this context, abuse of discretion and arbitrary and capricious are the same standard.
In reviewing a plan administrator’s decision under the arbitrary and capricious standard, the federal courts are limited to the administrative record. As a result, discovery is generally inappropriate in these cases. The court found that while case law prohibits courts from considering materials outside the administrative record where the extra-record materials sought to be introduced relate to a claimant’s eligibility for benefits, this general restriction does not conclusively prohibit a district court from considering extra-record materials related to an administrator’s dual role conflict of interest. Therefore, discovery related to the scope and impact of a dual role conflict of interest may, at times, be appropriate. The appropriateness of such discovery is governed by Fed.R.Civ.P. Rule 26(b). A district court has substantial discretion in handling discovery requests under Rule 26(b).
Insurer not entitled to recoup costs of defense where there was no duty to defend
In Employers Mutual Casualty v. Bartile Roofs, the Tenth Circuit ruled that there was no right to recoup defense costs from the insured where the insurer defended under a reservation of rights. The court first determined that jurisdiction and venue was proper, and that Wyoming law would apply unless it conflicted with Utah law. The case involved a dispute between a general contractor and a subcontractor regarding a hotel roof. The district court concluded that EMC did not have a duty to defend its insured, Bartile, against the allegations. As a result, EMC contended that it was entitled to recoup those defense costs.
Wyoming law, however, disfavors an insurer’s attempts to defend insureds while retaining the right to deny coverage and recoup defense costs at a later date. This is seen as a unilateral attempt to modify and change the policy coverage. Rather, an insurer who does not believe that coverage exists should deny a defense at the beginning, instead of defending and then seeking to recoup defense costs from its insured. The CGL policies contain no provisions allowing such recoupment, and the reservation of rights letter cannot unilaterally change the policy requirements.
In State Farm v. Fisher, Fisher was shot and killed by Brown. Fisher had stopped his car and was in the highway signaling for help after a passenger was shot by Brown as Brown rammed the Fisher car and then fired a shotgun at the vehicle after pulling even with it. Brown stopped his truck, got out and shot Fisher, who was signaling for help in the road. Fisher's family sought UM benefits from its insurer, State Farm, for his death. Summary judgment to State Farm was affirmed.
Citing State Farm Mut. Auto. Ins. Co. v. Kastner, 77 P.3d 1256 (Colo. 2003), the court noted that to be entitled to UM benefits under Colorado law, a claimant must demonstrate 1) that an uninsured motor vehicle was being “used” at the time he or she sustained an injury; and 2) that the use is causally related to the injury. The “use” must be contemporaneous with the injury. Because both Brown and Fisher were out of their vehicles when Brown shot Fisher, the motor vehicle was not being used at the time of the injury. Apparently, a different result would obtain as to the passenger who was shot in the Fisher vehicle while Brown was in his truck. Because it was debatable whether there was any UM coverage, State Farm was entitled to summary judgment on Fisher’s bad faith claim as well.
In Anchondo, the Tenth Circuit discusses the ins and outs of attorneys fees applications and objections. The plaintiff was successful in getting a class action settlement for violations of the Fair Debt Collection Practices Act and then was awarded fees on top of that. The defendant thought the fee award was too high -- Plaintiffs counsel was apparently awarded all their hours at a set hourly rate. But the trial court is in the best position to determine whether the tasks billed for were necessary, and the trial court need not address all factors in making a fee award. Further, while certain travel hours could have been discounted, the defendant did not ask that the hours be discounted -- so the court wouldn't do it now on appeal. And, the court remanded the case to the trial court to award appellate attorneys fees.
In Newmont USA vs. Insurance Co. of North America, the Tenth Circuit affirmed an order requiring arbitration of a reinsurance disagreement. “The arbitration provision in the Reinsurance Agreements encompasses the parties’ dispute concerning the BHP Litigation and neither the Reinsurance Agreements’ expiration nor the Settlement Agreements extinguish arbitrability. Accordingly, the district court did not err in compelling arbitration.” The trial court erred, however, in not applying the postjudgment interest rate in the reinsurance agreement, rather than the federal postjudgment interest rate.
In Valley Forge v. Health Care Management, the insureds were sued for medicare fraud and asked their insurers for a defense. The insurers agreed, but told the insureds that it was under a reservation of rights and that if there was no duty to defend, the insurers would ask the court to make the insureds pay the insurers for the defense costs. The court previously held there was no duty to defend (see Zurich Am. Ins. Co. v. O’Hara Reg’l Ctr. for Rehab., 529 F.3d 916 (10th Cir. 2008)) and sent it down to determine the amount of fees owed. The trial court gave the insurers all their fees but no interest and both parties appealed. The Tenth Circuit affirmed in a wonderfully written opinion by Judge Gorsuch.
The insureds claimed that the insurers cannot recover the defense costs they expended for the simple reason that no provision in the parties’ insurance contracts contemplates that possibility. The insurers argued, however, that Colorado law requires an insurer to pay defense costs, but at the same time provides the insurer with this assurance: if it pays defense costs pursuant to a reservation of rights letter, the insurer may later seek and obtain recoupment of its defense costs if the facts at trial prove the claim against the insured wasn’t covered by the policy. The court notes it must follow Colorado law on the issue and sides with the insurers – and cites Sherlock Holmes! (See below) The court also finds that the insurers need not wait until the underlying action is completed before seeking a declaration of no coverage.
Having decided that the insurers were entitled to recover the defense costs, the next question is are they entitled to all of their defense costs or might the amount be limited in some way? The court says it does not matter since the case was decided on summary judgment and no factual issues are presented. The insured’s expert affidavit was not quite sufficient under Rule 56(f) to get them more discovery. As to prejudgment interest, the statute talks about money wrongfully withheld, not wrongfully paid, and there are no cases awarding insurers interest on recoupment.
In two decisions today the Oklahoma Supreme Court decided cases which involve police pursuits. In one, the court said the police could be liable for damages caused when the pursued vehicle causes an accident with an innocent citizen, and in the other the court held that the tort claims act did not provide immunity under the “recognized standards” exception to liability. The dissent in the first case indicates that such a change in the law should be done by the legislature, not the courts. See, State ex rel. Oklahoma Dept. of Public Safety v. Gurich, 2010 OK 56 (law enforcement could be liable for damages caused by fleeing vehicle; reckless disregard standard used) ; and Ray v. Broken Arrow Police Dept., 2010 OK 57 (the exemption from liability for "[a]cts or omissions done in conformance with then current recognized standards" did not apply, reversing summary judgment to the police department.
Vanderwerf v. SmithKline Beecham Corp. involved a claim by surviving family members that the drug Paxil caused or contributed to a suicide. Over the course of the proceedings, several partial judgments were granted, with the end result being that all claims were eventually dismissed. A Rule 59(e) motion to reconsider was timely filed by plaintiffs, but no decision was made on the motion for over 7 months. So Plaintiffs withdrew their motion to reconsider and appealed the summary judgment. But the court said the appeal was untimely, because when the motion to reconsider was withdrawn, the date of the order appealed from was more than 30 days before the notice of appeal was filed.
There is a strong dissent which notes the unfairness of this "catch 22". The dissent notes that the tolling starts with the filing of the motion, and only ends when the court enters an order on the motion.
While not an insurance case, this case notes a trap for the unwary. The court notes the plaintiffs had other options:
The Vanderwerfs had other options, which may have allowed this court to take jurisdiction. First, the Vanderwerfs could have filed a motion requesting a ruling. Second, they could have continued to wait for a ruling, or sought a writ of mandamus in this court, which, if granted would compel the district court to rule on the Rule 59 motion. Third, they might have filed a motion for an extension of time under Federal Rule of Appellate Procedure 4(a)(5)(A)(ii), provided that they might show good cause or excusable neglect underlying the untimely notice. Fourth, they might have filed a premature notice of appeal that would ripen into a timely notice of appeal when the district court finally ruled. See Fields v. Okla. State Penitentiary, 511 F.3d 1109, 1111 (10th Cir.2007). Finally, it seems the best option may have been for the Vanderwerfs to have moved to withdraw the motion, in hopes that the district court would rule on that motion thereby triggering a 30-day period for the filing of a timely appeal.
The court dismissed the appeal for failure to timely file it.
In Miller vs. Monumental Life Ins. Co. the trial court ordered (after remand from a prior appeal) that the ERISA based case be sent back to the plan administrator so the record could be completed. The plaintiff, Miller, appealed from this order, claiming it was improper on various grounds. The Tenth Circuit ruled that it was an interlocutory order over which it had no jurisdiction to determine.
Aside from a few well-settled exceptions, federal appellate courts have jurisdiction solely over appeals from final decisions of the district courts of the United States. A final decision is one that ends the litigation on the merits and leaves nothing for the court to do but execute the judgment. The order remanding the case to the plan administrator was not a final decision.
The court considers whether ERISA remand orders are reviewable on a case by case basis, and considers “practical finality.” Neither the cost or delay associated with additional review of the “sole cause” defense, nor Miller’s unfounded fear about loss of his argument that Monumental was not entitled to raise this defense, justifies treatment of the remand order as a final order for purposes of review. Miller’s contentions are not “effectively unreviewable.” The appeal was dismissed for lack of jurisdiction.
In Salazar Roofing & Construction, Inc. v. City of Oklahoma City, 2010 OK 34, a city dump truck driver backed up into Salazar’s dump truck, causing damages. The City admitted that the city driver was in the course and scope of his employment and admitted liability, but claimed it was only liable for Salazar’s insurance deductible. The City claimed that an exclusion from liability for “Any claim or action based on the theory of indemnification or subrogation;” applied and precluded any liability in excess of the insurance deductible, since the loss had been paid by Salazar’s insurer. The Supreme Court disagreed, noting that “the Claim filed under the Governmental Torts Claim Act by Salazar was filed in Salazar's name, directly against the tortfeasor, for the benefit of the owner of the damaged vehicle. The action was not filed by the insurance carrier to recoup the amount paid to insured. Therefore it appears that this matter is a first-party claim, not a claim for subrogation. No subrogation is at issue in the instant matter. There is no party secondarily liable for the damage caused by the City's negligence present in the case at bar.”
In Morris v. America First Insurance Company, 2010 OK 35, the Oklahoma Supreme Court in answering a question certified from the United States District Court for the Western District of Oklahoma, found that a UM exclusion violated Oklahoma public policy. Specifically, the court found that an exclusion which precludes UM coverage for bodily injury sustained by a resident family member, who is otherwise insured by such policy, violates public policy and is void insofar as it requires separate UM coverage on a specific vehicle even though the owner is otherwise covered by the UM provisions of a liability policy he purchased on another vehicle. Morris was injured by an underinsured motorist while in his semi-truck. Morris did not have UM on the truck, but did have UM on his personal auto. In addition, Morris qualified as an insured on his mother’s policy because he was residing with his mother when the accident happened. The court said that the mother’s insurer could not exclude Morris from coverage simply because the policy covering the truck involved in the accident did not have UM coverage where Morris had other UM coverage available to him.
Alea London Ltd. v. Canal Club, Inc., 2010 OK CIV APP 33 is an odd case. It starts out as a liquor liability exclusion case and ends up being an assumption of liability case. Canal Club was the insured, and Alea the insurer. Canal Club was sued when an intoxicated patron (Valle) left its premises and was involved in a car accident which hurt two people. It was claimed that Canal served Valle when he was obviously intoxicated, a dram shop claim. Alea refused to defend the case because of its liquor liability exclusion. Another insurer (with lower limits) defended Canal, and Alea filed a declaratory judgment action, seeking a declaration that it had no coverage under its policy. The underlying case was then amended to add a second claim that Valle became intoxicated before entering Canal Club’s premises, its employees escorted him from those premises while he was still in an intoxicated state, and those employees negligently breached a duty of reasonable care when they “failed to make sure” Valle did not leave the area outside its premises, get into his car, and drive while he was intoxicated. Alea was not notified of the change in the allegations.
In the underlying action, the first claim was dismissed, and Canal admitted liability on the second claim. A non-jury trial settled the amount of the damages. Then, the action switched back over to the declaratory judgment case. On cross motions for summary judgment, the trial court found that Alea was liable for the claims. The Court of Civil Appeals (COCA) reversed, finding no coverage for the claims.
First, it found that Canal Club had an obligation to notify Alea of “critical post-denial developments” and the failure to do so “may modify, excuse or provide a defense to the performance of an insurer’s contractual duties.” Second, the COCA found that there was no duty under Oklahoma law which required Canal Club to prevent a drunk patron from leaving its premises and driving his own vehicle. As a result, the admission of liability in the underlying case triggered an assumption of liability exclusion. That exclusion precluded coverage” for which the insured is obligated to pay damages by reason of the assumption of liability in a contract or agreement;” but the exclusion does not apply if the insured would be liable even in the absence of any agreement.
The court finds there would be no duty on the part of Canal Club to restrain Valle if he were not drunk, and no duty to restrain him simply because he was drunk – where Canal Club had not served Valle any drinks. As a result, “Coverage under the CGL policy was not triggered by the basis for judgment in the underlying lawsuit.” In other words, the only reason Canal Club had any liability is because it agreed or confessed it. This brought the claim within the assumption of liability exclusion and the policy did not provide coverage. The court reversed and remanded, ordering that judgment be entered for the insurer.
In Traders Insurance v. Johnson, the question was whether the daughter, not a named insured, had authority to reject UM (uninsured motorist) coverage on a policy issued to her parents. The answer is “maybe.” Oklahoma’s UM statute limits the right to reject UM to named insureds and applicants. (36 O.S. § 3636 (G)) The daughter was neither, so the court found summary judgment to the insurer was properly denied. Fact issues as to whether the daughter acted as an apparent agent of her parents in signing the UM rejection precluded summary judgment in favor of the insureds. So, the whole case was remanded.
This result surprised me as I would have guessed that the statutory enumeration of who may reject UM coverage would have been considered exclusive, such that agents of the insureds would not be able to reject UM for the insureds.
A homeowner’s policy did not cover a claim for the wrongful death of a high school girl who was mauled by a tiger. In Safeco v. Hilderbrand, the insureds ran an animal sanctuary for exotic animals no longer wanted by zoos and circuses. While it was a non profit organization, the insureds also created a for profit company, Animal Entertainment Productions (AEP), to generate income to maintain the sanctuary. The insureds kept their jobs as social workers, but got a small business loan for AEP, and AEP earned some money, but was always operated at a loss. The insureds did not have a business policy, but had a homeowners policy with Safeco. When demand was made on the claim, Safeco filed a declaratory judgment action, claiming it had no duty to defend or indemnify its insureds for the claim because of a business pursuits exclusion in the policy. The policy excluded “bodily injury or property damage: . . . arising out of business pursuits of any insured . . . , ” but the exclusion did not apply to: “Activities which are ordinarily incident to nonbusiness pursuits.” After a bench trial on the merits, the trial court found the policy did not cover the claim and the Tenth Circuit affirmed, finding the business pursuits exclusion applied and the exception to the exclusion did not apply.
Under Kansas law, “To constitute a business pursuit, there must be two elements: first, continuity, and secondly, the profit motive.” Both elements were found. The activities of the insureds in operating AEP showed the engagement in a business over time. To show a profit motive, the business must be capable of being run for profit; the evidence showed the insureds operated AEP with a profit motive, even though no profit materialized. It is the profit motive and not any actual profit which the court considers. The court states:
In sum, we conclude the [insureds] operated AEP with both continuity and a profit motive when the incident occurred. At the time of the accident, Doug’s “trade, profession or occupation” was animal trainer for AEP. Therefore, AEP qualifies as a business pursuit and any incidents arising from its operation, including the tiger attack, are not covered by the [insureds’] homeowners policy.
The Tenth Circuit then found the non business pursuits exception did not apply. The accident arose out of the insured’s exotic animal shelter and entertainment business. The victim was a volunteer at the animal shelter and the insured used his business property and his expertise as an animal trainer for the photo shoot. The fact that there was no payment for the photo shoot was not determinative.
In McBride v. NES Rentals, an employee was killed on the job in a multi vehicle accident. The employee's family received workers comp death benefits, then sued the various tortfeasors. The employer and the workers comp carrier sought to intervene. The trial court denied the intervention, but the COCA (Court of Civil Appeals) found that the employer should have been allowed to intervene and press its claim regarding death benefits and both the employer and the carrier should have been allowed to intervene and recoup expenses of the last illness and the funeral.
The case is rather difficult because of recent changes in the workers comp laws in Oklahoma. It used to be that an employer had no right to subrogate against comp death benefits. But the statute was changed, and allowed the employer to recover from a third party the amount of death benefit payments made to a claimant's survivors under the Workers Comp Act.
In Allstate v. Moser, Moser was injured in a one car accident. Moser was a passenger, and her brother was driving. Allstate’s policy was issued in Colorado to Moser’s parents . It had $100,000 limits and contained a family exclusion. There was an accident in Kansas. Kansas had a compulsory insurance law which required that all policies provide at least $25,000 per person, up to $50,000 per accident. Allstate’s policy also provided that when the vehicle was operated in other states, the policy would comply with the liability insurance requirements in those states. Moser also had an umbrella policy which provided coverage in excess of $100,000 when the primary policy limits were exhausted. When Moser sued, Allstate filed a declaratory judgment action. In that action, it was determined that Allstate’s liability under the policy was limited to the minimum requirements under Kansas law – $25,000.
On appeal, the issue was whether Allstate’s liability was limited to $25,000 or whether the entire policy limit was available to Moser. The Tenth Circuit affirmed the trial court’s ruling that limited Allstate’s liability to $25,000. Because $25,000 was less than the policy limits, the underlying policy was not exhausted, and therefore the umbrella policy did not apply.
The Tenth Circuit has determined that ERISA’s exception for governmental plans applies to plans sponsored by Indian tribes, so long as those plans meet the requirements of the definition. This means that ERISA preemption does not apply to insurance plans involving Indian tribes. Dobbs v. Anthem Blue Cross Blue Shield was the second time the case came before the Tenth Circuit. The first time, the Tenth Circuit remanded the case, asking the district court to make factual findings, and stating that “i]f the Dobbses’ benefit plan meets the new definition of governmental plan under § 1002(32), ERISA will not preempt their state-law causes of action against Anthem.” On remand, the district court found that the plan would be preempted under the new statutory language regarding governmental plans, but that the amendment was not retroactive.
The Tenth Circuit explained “law of the case” principles and stated that it had already determined by implication that the amendment would retroactively apply to the Dobbses’ claims. It questioned whether it could affirm a district court decision that rejects a prior panel decision as clearly erroneous, citing In re Smith, 10 F.3d at 724 (noting that the Tenth Circuit is bound by the precedent of prior panels absent en banc reconsideration or a superseding contrary decision by the Supreme Court). T he court discussed the general principles regarding when statutory amendments are applied prospectively or retrospectively.
The court reversed and remanded the case, once more asking the district court to make the factual determination it had previously asked it to make.
Rather than looking to Mr. Dobbs’ duties, the court must determine whether all plan participants are employees ‘substantially all of whose services . . . are in the performance of essential governmental functions but not in the performance of commercial activities (whether or not an essential government function).’
Finally, the court held that the Dobbses could not claim fraud as to benefits. Those claims relate to the contracted for benefits, thus, if the plan was subject to ERISA, those claims would be preempted.
Federal Judge Vacates Reinsurance Award for Evident Partiality
A federal judge has vacated a reinsurance arbitration award on grounds of evident partiality, ruling that the failure of two arbitrators to disclose their involvement in a second arbitration involving affiliates of the parties in the first arbitration and a common witness constituted a material conflict of interest.
In FFE Transportation Services, Inc. v. Pilot Travel Centers, L.L.C., the plaintiff, Medlin, had slipped and fallen while fueling at the defendant's station. Plaintiff received workers compensation benefits from FFE, and then sued the defendant. FFE also sued defendant for the benefits it paid to Medlin. The verdict form had a place for the jury to fill in for the amount to award to plaintiff and to FFE. The jury found against the defendant and filled in separate amounts for each of the plaintiffs. This was reversible error.
The verdict form did not permit damages to be awarded to Medlin without awarding damages to FFE, nor did it permit a jury to award damages of less than a stipulated amount to FFE. The court said, "Moreover, it is not clear from this form whether FFE's stipulated damages are to be deducted from Medlin's award, or whether Medlin's award was over and above that given to FFE. FFE's derivative subrogation claim would normally be deducted from any damages awarded to Medlin; however, the verdict is not clear whether this was the intent of the jury."
The court held: Because FFE has paid Medlin's medical expenses and lost wages (which are the subject of FFE's subrogation claim), if FFE is an active, named party participating at trial, Medlin cannot request and seek to recover damages for those medical expenses and lost wages; only FFE can do so. However, if FFE is not an active, named party participating at trial, the trial court must ask the jury, if it finds in Medlin's favor, to set out the amounts, if any, attributable to medical expenses and lost wages so that the court and the parties can ascertain what compensation FFE is entitled to for its subrogated interest.
In Roberts v. Printup, Ms. Roberts was injured in a one car accident. She was a passenger, her son Printup was driving. The accident was promptly reported to Shelter, the insurance company, and she received the limits of the medical payments. Eleven days before the statute of limitations ran on the claim, Roberts sent a letter to Shelter offering to settle for policy limits ($25,000) and estimating her medical bills to be in excess of $125,000. The letter said she needed a response within 10 days because of the statute of limitations. Ms. Roberts had an agreement with her attorney that if Shelter paid the claim upon demand, she would not owe any attorneys fees on the amount paid. Shelter did not respond for three weeks and then attempted to accept the offer. Ms. Roberts refused. After liability was admitted, a judge determined Ms. Roberts damages to be in excess of $1 million. Shelter paid its limits and Ms. Roberts then was assigned Printup’s claims against Shelter for the excess judgment.
The trial court granted summary judgment to Shelter on the claims of bad faith and negligence. The Tenth Circuit reversed, affirming the dismissal of the bad faith claim, but sending back the negligence claim. See, Roberts v. Printup, 422 F.3d 1211, 1212 (10th Cir. 2005). In the first appeal, the court found that Shelter’s failure to respond to Roberts letter within 10 days was a violation of the Unfair Claims Practices Act as adopted by Kansas. In the second go around, the district court found that Shelter did not have a written policy, procedure, or mechanism in place to ensure that a claim would be acknowledged within ten working days, that Shelter was negligent in handling the letter and that Roberts was not trying to manufacture a bad faith claim. Nevertheless, the district court found that the failure to timely respond did not cause the excess judgment, thus ruling that Shelter was not liable for the excess judgment.
The Tenth Circuit reversed again. The court states:
It is readily apparent that it was foreseeable to Shelter that its negligence in failing to implement a system to handle reasonable time-sensitive settlement offers from an injured party could result in a lawsuit being filed against its insured. Accordingly, its attempt to accept the expired offer in this case did not absolve it of liability for damages to its insured caused by its earlier negligent failure to settle.
* * * *
Shelter did not give Mr. Printup’s interest the same consideration as its own or it would have set up an appropriate system to handle time-sensitive settlement offers.
The Tenth Circuit found that based on the district court’s findings, “it is apparent that it was Shelter’s failure to implement a system to handle reasonable time-sensitive offers in negligent disregard of its insured’s interest that exposed Mr. Printup to damages in excess of policy limits.” Thus, the court reversed and remanded the case with directions to enter judgment in favor of Roberts.
In Porter v. State Farm Mutual Automobile Insurance Co., 2010 OK CIV APP 8, the plaintiff, Porter, was a passenger who was injured in a car wreck. State Farm insured the driver and also insured Porter on her own car. The driver had limits of $100,000. State Farm offered to settle her claim against the driver for $85,000 and Porter accepted, even after being told that she would not be entitled to UM if she did so. She took the settlement and then continued her claim for UM. Plaintiff believed she was entitled to UM because State Farm was the automobile insurance carrier for both Plaintiff and the tortfeasor, despite having settled with the tortfeasor for an amount less than the liability limits of tortfeasor’s policy.
Before an insured can proceed in an action to recover UM/UIM benefits under the contract, he must prove the existence of two simultaneous conditions precedent: 1) that he has a legal right to recover against the tortfeasor, and 2) that his claim exceeds the available liability coverage of the tortfeasor. These conditions precedent must both be present at the same time in order to obtain UM/UIM coverage. Porter could not meet the first requirement because she released the driver from liability. She could not meet the second requirement because by accepting less than the liability-policy limits and releasing the driver from further liability, she established that the claim did not exceed the available liability coverage. In other words, Plaintiff cannot prove the driver was underinsured.
In Houck v. Farmers Insurance Company, Inc., 2010 OK CIV APP 12, plaintiffs complained that Farmers used a claims management company to reduce the amount of medical payments made on claims. The trial court granted class certification and Farmers appealed.
The trial court certified the following class:
All persons who made a covered claim pursuant to the Medical Payments Coverage of a private passenger automobile insurance policy written by [Farmers] where:
A. Zurich Services Corporation (“ZSC”) was utilized to review medical expenses;
B. Farmers applied ZSC’s RC 40 reduction to the medical expenses; and
C. The insurance policy was written in one of the following states:
10. New Mexico;
13. South Dakota; and/or
The listed states were states in which the same policy language was used. The appellate court found all requirements for a class action were met, and affirmed the trial court’s ruling.
The 10th Circuit has affirmed the dismissal of a lawsuit against John Grisham and others for the book, The Innocent Man. The book details the wrongful conviction of Williamson and Fritz for the rape and murder of Debra Sue Carter. Both men were later exonerated after spending over a decade in jail.
(Ok, this isn't an insurance case, but I found it interesting)
The plaintiffs were Oklahoma District Attorney William Peterson; former Shawnee police officer Gary Rogers; and former Oklahoma state criminologist Melvin Hett each of whom played a role in the investigation or prosecution and conviction of Williamson and Fritz. The book did not portray these folks in a positive light, so they sued Grisham and others, claiming defamation, intentional infliction of emotional distress and false light invasion of privacy. The district court dismissed the suit for failure to state a claim and the Tenth Circuit affirmed, finding that since the plaintiffs were public officials, any statements critical of them were privileged, so long as there was no accusation of criminal activity.
Because no special damages were claimed, the plaintiffs had to allege libel per se; but 12 OS § 1443.1 applied because the plaintiffs were public officers and states that “[a]ny and all criticisms upon the official acts of any and all public officers” are privileged and cannot be considered libelous, unless a defendant makes a false allegation that the official engaged in criminal behavior. To fall into this category, “the words alleged to have been spoken of the plaintiff, when taken in their plainest and most natural sense, and as they would be ordinarily understood, [must] obviously import the commission of crime punishable by indictment.”
The court states:
Plaintiffs point to no statement in which defendants directly accuse any plaintiff of a crime.
Plaintiffs expect us to scale a mountain of inferences in order to reach the conclusion that defendants’ statements impute criminal acts to plaintiffs and render the statutory privilege of § 1443.1 inapplicable. We decline to engage in such inferential analysis, or to take a myriad of other analytical leaps plaintiffs ask us to make. Any connection between defendants’ statements and an accusation of criminal activity is far too tenuous for us to declare them as unprivileged for purposes of § 1443.1.
Since the statements were privileged for defamation purposes, the court found them privileged for claims of intentional infliction of emotional distress and for false light invasion of privacy.
The eight corner rule says that you compare the allegations of the complaint to the policy to determine the duty to defend. This works for most cases, but where the insurer is aware of other facts, those facts must also be considered in determining coverage.
In Apartment Investment and Management Company (AIMCO) v. Nutmeg Insurance Co., AIMCO had been sued in several actions based on the acts of one of AIMCO’s independent contractors. The trial court looked at each complaint separately and said there was no duty to defend, since the allegations either did not state facts which amounted to wrongful acts, or were otherwise excluded under the policy. The Tenth Circuit reversed, finding that the insurance company should have looked at all the allegations in all the complaints to determine if there was coverage. After examining the complaints taken together, the Tenth Circuit was satisfied they contained sufficient information to provide Nutmeg with reasonable notice that these suits “might fall within coverage of the policy,” Hecla, 811 P.2d at 1089. The Tenth Circuit also ruled that the exclusions did not apply to preclude coverage.
In Professional Solutions Insurance Company v. Mohrlang, the issue was whether one limit or two applied to claims against the same attorney. If the claims were “related” one limit applied, if not, two limits applied. Professional Solutions Insurance Company (PSIC) provided single coverage liability of $500,000, up to an annual aggregate limit of $1 million, to one of its insureds. When appellee Bruce Mohrlang submitted a negligence claim against the insured, and appellee Harry Mohrlang submitted another alleging breach of fiduciary duties, PSIC conceded liability of at least $500,000 on each but argued that under the policy definitions, the claims were related and thus subject to the $500,000 single coverage limit. The parties eventually settled, with PSIC agreeing to pay the single coverage limit of $500,000 and pursue a declaratory judgment action to determine any further liability. The sole question was whether the two claims were related to one another so as to cap PSIC’s liability at $500,000, or whether the two claims were unrelated and thus separately covered under PSIC’s annual aggregate limit of $1 million. On a stipulated record, the district court granted summary judgment in favor of the Mohrlangs, and the Tenth Circuit affirmed.
The critical inquiry was whether the claims were “temporally, logically or causally connected by any common fact, circumstance, situation, transaction, event, advice or decision.” Bruce Mohrlang’s claim was based on the insured’s negligence in structuring a corporate stock sale, while Harry Mohrlang alleged breach of fiduciary duties based on the insured’s misrepresentations that caused him to release a deed of trust he held against the corporate entity.
First, the court found that Harry Mohrlang’s claim was not temporally connected to the sale because the insured caused Harry Mohrlang to release his deed of trust some three weeks after the sale closed. Next, the court found no logical connection between the claim and the sale because neither the deed of trust nor the promissory note it secured was incorporated into the final sale agreement and both should have remained unaffected by the sale. Finally, the court determined that no causal connection existed between Harry Mohrlang’s claim and the sale because the promissory note remained a valid, independent obligation even after the sale, and the deed of trust was not released until the insured’s unforeseeable acts severed any causal link that could have existed. Hence, the court ruled that the two claims were unrelated and PSIC was liable under the policy’s $1 million annual aggregate limit.
The Tenth Circuit affirmed for the reasons stated by the trial court.
Hartford insured Vakas' medical office when it was destroyed in a fire. The policy provided for replacement cost coverage up to $240,000; but only if the property was replaced. Otherwise, it provided for actual cash value of the destroyed property. In this case, only 4 items were replaced, as Dr. Vakas had been dead several years by the time of the fire. But, the claimants (Dr. Vakas' heirs) still wanted Hartford to pay the replacement cost for the destroyed office contents.
The court notes that Kansas law applied and follows the general rules regarding construing ambiguous policies against insurance companies. The court found that the policy is not ambiguous or internally inconsistent. After reading the policy, “a reasonably prudent insured would understand that Hartford would not pay replacement-cost value unless and until the property actually was replaced.”
In Andres v. Oklahoma Farm Bureau Mutual Ins. Co., the Oklahoma Court of Civil Appeals decided that even though OFB should have paid the Andres' claim, it could not be found liable for bad faith. It therefore affirmed in part and reversed in part a motion for summary judgment granted in favor of OFB.
Andres made a claim on his homeowners policy when water from a city sewer line backed up into his home. OFB said it wasn't covered, citing to policy language which excluded losses from water damage, including “water which backs up through sewers or drains . . .” The court found this exclusion applies not only to water, but to the sewage which might be in the water. But, the policy policy specifically covered "Accidental Discharge or Overflow of Water or Steam from within a plumbing . . . system[.]" Thus, the policy was ambiguous, because it both included and excluded sewage back ups, and therefore, the policy was construed against the insurer.
Although the court decided that OFB was liable to the homeowners on the policy, it upheld the summary judgment on the bad faith claim, since OFB had a legitimate dispute as to coverage. The court states:
OFB denied the claim on the grounds that the claim was not covered by the policy; it relied upon decisions from nine other jurisdictions which supported its theory; its legal theory was plausible; and there was no Oklahoma precedent. Nothing in the appellate record suggests that OFB lacked a good-faith basis for refusing to pay Plaintiffs' claim. Thus, we conclude as a matter of law that OFB had a reasonable legal basis for refusing to pay the claim, and it is not liable for breach of the duty of good faith and fair dealing. The trial court properly entered summary judgment on this claim.
In Clark v. State Farm, the issue was whether the court should have certified a class action against State Farm after Clark’s claims against it had been determined and a judgment issued. The case involved a PIP claim under Colorado law. There was a determination that the State Farm policy at issue had to be retroactively reformed to comply with Colorado law; it was, and a judgment was entered against State Farm for the policy limits, which was paid. The court then refused to certify a class of others for whom such retroactive reformation could apply, finding the controversy moot, as judgment had been entered for Clark. Other people were not allowed to intervene as plaintiffs because they sought intervention too late. The court said there was no case or controversy, and class action was properly denied.
In Mansur v. PFL Life Insurance Co., the issue was whether PFL was properly granted summary judgment on Mansur’s claims of breach of contract and bad faith. PFL issued Mansur a long term care policy which was to pay $80 a day while Mansur was in a nursing home. If the parties agreed on an Alternate Plan of Care (APC) then it could provide benefits while the insured was at home. This appeal concerns the meaning of the Policy’s APC provision. Mansur claims that because PFL agreed that the home care provided was appropriate, the requirements for APC coverage were satisfied and PFL should have paid $80 per day for Mansur’s home care after she left the nursing home. Mansur also claims that PFL acted in bad faith (1) by offering to pay under that provision only $32 per day for one period and $48 per day for a later period, (2) by refusing to pay even those amounts when Mansur demanded the full $80, and (3) by refusing to waive payment of Policy premiums while Mansur was receiving home care. The trial court’s grant of summary judgment to PFL was affirmed.
In Graham v. Hartford Life & Accident, the Tenth Circuit held that a health and disability plan provided to US postal employees was not a governmental plan – therefore it was subject to ERISA. The plan was apparently offered through the National Rural Letter Carriers Association, the exclusive bargaining agent for rural letter carriers. Since the plan was governed by ERISA, there was no right to a jury trial. The court affirmed the ruling of the trial court that the denial of benefits was not arbitrary and capricious
In reviewing the year end blogs and blawgs, I came across this list of the top 10 coverage cases in 2009. Page 3 starts the list of dumb insurance cases of the year; the top 10 significant cases are listed at p. 4; and then discussed beginning on p. 5; the cases include a discussion of whether single or multiple occurrences resulted when two boys fell into a pit on the insured's property (court found there were two occurrences); whether insurers are entitled to get attorneys fees from each other in coverage disputes between them (no; there is no exception to the American rule for insurance companies); and whether a contractor's endorsement which effectively reduced coverage to an insured was enforceable (it was).
While the insurer had waived certain privileges relating to the settlement of the underlying claim, based on the insurer’s concession that it would not advance an advice of counsel defense, the waiver would not be expanded to include all privileged communications and work product of the insurer’s attorneys. The decision clarifies a prior decision which found a waiver of attorney client privileges related to the settlement of underlying asbestos claims.
Previously, the court found that USF&G waived the attorney-client privilege as to communications between its officer, James Kleinberg, and Robert Omrod, the in-house lawyer whose advice Kleinberg disclosed at his examination before trial regarding preparation of the reinsurance billing.
“During the testimony of Kleinberg, many questions were asked regarding USF&G's decision to allocate all claims to a single treaty year as opposed to spreading them over the several coverage years. This witness repeatedly revealed the advice he received regarding preparation of the bill. Consequently, he placed this matter at issue,” the panel concluded. “Therefore, the Reinsurers may seek testimony and production of documents regarding presentation of the reinsurance claim . . . only to the extent that the discovery relates to disclosures made during James Kleinberg's examination before trial testimony.”
After examining the policy language, Judge Robert C. Chambers of the U.S. District Court for the Southern District of Virginia ruled that it was reasonable for the policyholder to expect Swiss Re to act as a direct insurer.
In its motion to dismiss, Swiss Re asserted that it is the reinsurer of IRI’s insurance contract with Felman, not the original insurer, therefore there is no privity of contract between Swiss Re and Felman and Felman fails to state a claim upon which relief can be granted.
Judge Chambers noted that, generally, an insured party cannot maintain a direct action against a reinsurer because the insured is neither a party to the reinsurance policy nor in privity therewith. However, a reinsurer may become directly liable to the insured if the reinsurance contract is drafted to provide for direct liability on the part of the reinsurer where the original insured is a third-party beneficiary to the contract and/or the reinsurer expressly assumes liability, the judge noted. A reinsurer may also become directly liable to the insured by directly handling an insured’s claim, the judge added.
Judge Chambers concluded that the terms of the original insurance contract are unclear as to Swiss Re’s role under the policy, therefore it was reasonable for Felman to expect Swiss Re to act as a direct insurer and to join it as a defendant in the instant suit.
“In West Virginia, an insurance policy should be interpreted according to the plain, ordinary meaning of the language used,” the judge explained. “Further, ‘whenever the language of an insurance policy provision is reasonably susceptible of two different meanings or is of such doubtful meaning that reasonable minds might be uncertain
or disagree as to its meaning, it is ambiguous.’ An ambiguous provision in an insurance policy is then ‘construed strictly against the insurer and liberally in favor of the insured.’”
As evidence of its role as a reinsurer, Swiss Reinsurance pointed to the “Syndicate Policy” pages in the policy, which identified Swiss Re as the reinsurer. Felman countered that the insurer is referred to as “the companies” throughout the policies and “the companies” is defined as “the members of Industrial Risk Insurers as hereby applicable to this policy.” Felman further argued that the “insurer” is identified as “Industrial Risk Insurers” in the body of the policy.
In Berry & Murphy v. Carolina Cas. Co., the issue was whether notice to a former law partner of a claim was notice to the other law partner. The court held it was. Thus, because the former partner had notice of the claim before the policy was issued, the claim was not covered as to the other law partner.
The Burkhardts hired Murphy to handle a lawsuit. Murphy was a partner at Berry & Murphy. A year after he filed suit for the Burkhardts, he left the firm taking the case with him. The case was dismissed for failure to prosecute and was later reinstated with new counsel. A year after the partner left with the case, Burkhardts new counsel put Murphy on notice of a potential malpractice claim for the way he handled the lawsuit. Murphy put his carrier on notice of the potential claim – which happened to also be Carolina Casualty. No notice was given to Berry. When Berry was sued along with Murphy, he tendered the claim to Carolina Casualty, which denied coverage, claiming that the alleged malpractice claim was first made against an insured (i.e., Murphy) prior to the inception of the insurance policy, thereby falling outside the claims-made coverage of the policy.
The policy was a claims made policy, rather than an occurrence policy. This means it covered claims only if first made during the policy period. “A Claim shall be deemed to have been first made at the time notice of the Claim is first received by any Insured.” The court found that Insured was defined to include an individual after he left the law firm if the claim involved that individual’s acts or omissions that occurred while at the law firm. Thus, Murphy was an insured, and notice to him of the claim before the policy period meant that Berry was not covered under the policy.
There is a spirited dissent, which states that since Murphy was not Berry’s agent when he had notice of the claim, notice to Murphy was NOT notice to Berry.
The odd thing about this case is that Carolina Casualty did have notice of the claim, and had it before Berry did; and issued the policy anyway. But, the policy as a claims made policy, was not in effect when Murphy gave Carolina Casualty notice. Therefore, it was not a claim made within the policy period and was not covered. An occurrence policy also requires that the event happen during the policy period. If Carolina Casualty had insured Berry the entire time, I am not sure it could have escaped liability, as the notice from Murphy could have been notice under the Murphy policy, too.
Payless was sued in California for making hourly employees work "off the clock." It asked its insurer, Travelers, to defend and indemnify, but Travelers declined, saying that the claim was not covered. Payless settled the claims and then went after Travelers for reimbursement of the settlement and defense expenses. Travelers got summary judgment and the Tenth Circuit affirmed.
The Tenth Circuit found that this was a case of a misplaced modifier. The clause at issue excluded certain statutory claims against employers and stated:
The Insurer shall not be liable for Loss on account of any Claim made
against any Insured . . . for an actual or alleged violation of the Fair Labor Standards Act (except the Equal Pay Act), the National Labor
Relations Act, the Worker Adjustment and Retraining Notification Act,
the Consolidated Omnibus Budget Reconciliation Act of 1985, the
Occupational Safety and Health Act, the Employee Retirement Security
Act of 1974, any workers’ compensation, unemployment insurance,
social security, or disability benefits law, other similar provisions of any federal, state, or local statutory or common law or any
amendments, rules or regulations promulgated under any of the
foregoing; provided, however, this exclusion shall not apply to any
Claim for any actual or alleged retaliatory treatment on account of the
exercise of rights pursuant to any such law, rule or regulation.
The question was whether "other similar provisions" modified all the listed exclusions, or just the underlined exclusions. The court found that even though bad grammar was used, the clause excluded all claims arising out of the Fair Labor Standards Act or other similar state law.
The court held that bad grammar did not make the clause ambiguous and even quoted Groucho Marx:
The opinion states:
All this underscores that, while the rules of English grammar often afford a valuable starting point to understanding a speaker’s meaning, they are violated so often by so many of us that they can hardly be safely relied upon as the end point of any analysis of the parties’ plain meaning. So it is that Groucho Marx could joke in Animal Crackers, “One morning I shot an elephant in my pajamas. How he got into my pajamas I’ll never know,” leaving his audience at once amused by the image of a pachyderm stealing into his night clothes and yet certain that Marx meant something very different. In the more mundane task of contract interpretation, we must be no less entitled to acknowledge the parties’ plain meaning without being straight-jacketed by a grammatical rule into reaching a patently unintended result.
Grammar and Groucho in an insurance policy interpretation case. Doesn’t get much better than that!
In Rasenack vs. AIG Life Insurance Company, the Tenth Circuit ruled that AIG’s delays in deciding Rasenack’s claim for benefits under an accidental death and dismemberment policy (ADD policy) were substantial enough to result in a de novo review of the claim by the trial court. Generally, under ERISA, claims decisions by administrators such as AIG are reviewed by the courts under an arbitrary and capricious standard. Under the arbitrary and capricious standard, so long as the decision is supported by evidence, it will be upheld, while under a de novo standard, no weight is given to the claims administrator’s decision. Summary judgment for AIG was reversed, and the case was remanded.
Mr. Rasenack was severely injured as a pedestrian by a hit and run vehicle. He was in a coma for three weeks and remained hospitalized for months. He claimed he was entitled to paralysis benefits under the AIG policy because he lost the use of both legs and his left arm. The plan says that claims will be determined in 90 days, or under special circumstances, within 180 days; AIG took 16 months to deny the claim. Rasenack appealed. Appeals were to be decided in 60 days. Seven months later, with no decision by AIG on the appeal, Rasenack sued. AIG then denied the appeal.
First the court held that the claims administrator’s decision was entitled to no deference where the decision was made by operation of law, rather than the use of discretion. Then the court found that the policy was ambiguous. The policy’s definition of hemiplegia as “complete and irreversible paralysis” is wholly dependent on the meaning of “paralysis,” which the policy does not define. AIG claimed that the definition of hemiplegia carries a plain meaning, i.e., that the entire arm and leg of one side of the body must be “completely paralyzed,” and that “anything less than ‘no movement at all’ would not be ‘complete’ paralysis.” While complete absence of movement may be a reasonable interpretation of ‘paralysis’, it was not the only interpretation, as found in various medical texts. And the summary plan description defined hemiplegia as the loss of “use of both upper and lower limb on same side of body.” The language was strictly construed against AIG, the drafter of the policy.
When Willbros was sued for wrongful death, it notified its brokers of the claims. The claims were settled for an amount in excess of the primary policy limits. But, by the time the claims settled, the excess carriers denied any responsibility for the additional amounts paid, claiming the notice was untimely. Willbros then sued its insurance brokers, Gallagher and JLT for failing to properly notify the excess insurers. Gallagher is an Oklahoma broker, while JLT is based in London. JLT was dismissed by the trial court for lack of personal jurisdiction. The Court of Civil Appeals reversed.
The court said it was JLT's contacts with the forum and not JLT's contacts with the plaintiff which were determinative. Because JLT chose to do business with an Oklahoma broker, and made calls on the plaintiff's Oklahoma offices, there was sufficient purposeful availment of Oklahoma to support jurisdiction based on minimum contacts. (Oklahoma courts may exercise jurisdiction to the full extent permitted by the Constitution)
In Salisbury v. Hartford, Ms. Salisbury sued Hartford for denying her long term disability claim more than 3 years after the denial. The plan said all suits must be filed within 3 years. Her claim was dismissed as untimely and the 10th Circuit affirmed.
First, the court found that the state law limitation period didn't matter since the contract stated a limitation period. Then the court found the limitation period reasonable. Salisbury claimed the contractual limitation was confusing and circular, but since she failed to file suit for nearly 5 years after her claim was denied, the court dismissed her arguments.
In Moses v. Halstead, the court was faced with a choice of law issue: should the court apply the law of the place of the insurance policy or the law of the place of performance? The court found that Kansas law applied under both the place of the contract and the place of performance analysis.
Moses was the passenger in her car when Halstead ran off the road, injuring her. The insurance policy was issued by Allstate in Kansas. The accident occurred in Missouri. When Allstate failed to settle Moses' claim for policy limits, Moses sued Halstead in Missouri and got a judgment in excess of limits. The judgment was registered in Kansas state court, and Moses started garnishment proceedings. Allstate removed the case to federal court.
The trial court ruled that Missouri law applied and that Allstate was entitled to judgment since Missouri required an assignment from the insured before a judgment creditor can file an action agaisnt the insurance company for bad faith refusal to settle. Kansas does not require such an assignment.
The Tenth Circuit reversed, finding that Kansas law applied to the claim. It noted that in Kansas, while an insurer's duties are contractually based, breach of the duty is judged by a tort standard of care. The court reviewed various Kansas decisions and determined that a claim for negligent or bad faith refusal to settle goes to the substance of an insurer's contract duties, rather than the manner of performance of those duties. Therefore, the claim would be govered by the law of the place of the contract, Kansas. Furthermore, the court determined that a failure to settle claim went to the manner and method of performance, and that the place of performance would apply to this issue. Since the demand for performance and the rejection of that demand was made in Kansas, the court found that Kansas law applied to this issue, as well.
The court then remanded the case for the trial court to apply Kansas law in the first place.
In Conner v. American Commerce Insurance, the Oklahoma Court of Appeals held that a family member who rejected uninsured motorist (UM) coverage on his motorcycle was not covered under another policy owned by a family member in his household. Plaintiff, Barry Connor, insured his motorcycle, with AIG, and rejected UM coverage. Plaintiff was also listed a driver on his parents’ insurance policy with American Commerce. He resided with his parents at all relevant times. After an accident with an underinsured motorist, Plaintiff requested UM benefits from American Commerce. American Commerce denied the claim, based on an exclusion for resident relatives who are injured while occupying an owned motor vehicle without UM coverage. The Court of Civil Appeals upheld the denial, based on Shepard v. Farmers Ins. Co., Inc., 1983 OK 103, 678 P.2d 250 and National American Ins. Co. v. Vallion, 2008 OK CIV APP 41, 183 P.3d 175. The Court of Civil Appeals reasons that the Plaintiff had the opportunity to purchase UM coverage but failed to do so and therefore, found the exclusion valid.
While there is case law which supports this conclusion, the law is not as clear as the Court of Appeals seems to claim. Oklahoma has held that UM follows the person and not the vehicle. See, e.g., State Farm v. Wendt, 708 P.2d 581 (Okl. 1985). In Wendt, the court states:
In conformity with the clearly expressed legislative intent, above, every automobile liability policy issued in this state must provide uninsured motorist coverage for "persons insured thereunder." Accordingly, this Court has examined with critical scrutiny policy provisions which purport to dilute the legislatively mandated uninsured motorist coverage. In Keel v. MFA Insurance Co., 553 P.2d 153 (Okl. 1976), this Court voided "other insurance" clauses to the extent that those clauses precluded the insured from stacking coverages under separate policies. In Biggs v. State Farm Mutual Automobile Insurance Co., 569 P.2d 430 (Okl. 1977) this Court invalidated the "physical contact" requirement for hit-and-run coverage. In Porter v. MFA Mutual Insurance Co., 643 P.2d 302 (Okl. 1982), this Court invalidated the "consent to settle" clause. In Lake v. Wright, 657 P.2d 643 (Okl. 1982), this Court held the "limits of liability" clause was void and unenforceable as against public policy. In Chambers v. Walker, 653 P.2d 931 (Okl. 1982), this Court held invalid a clause in an uninsured motorist policy which permitted the uninsured motorist carrier to offset any amounts paid or payable under Workers' Compensation against the amounts payable under the uninsured motorist coverage. In Uptegraft v. Home Insurance Co., 662 P.2d 681 (Okl. 1983), this Court held invalid a clause in an uninsured motorist policy requiring the insured to sue the tort-feasor within two years or lose his uninsured motorist coverage. In Heavner v. Farmers Insurance Company, 663 P.2d 730 (Okl. 1983), this Court refused to apply the insurer's "insured motor vehicle exclusion" to deny uninsured motorist coverage to a passenger/plaintiff under the driver/tort-feasor's policy. We today reiterate and re-emphasize the viability of our prior decisions, which hold to the principle that once a person is insured under an uninsured motorist policy, subsequent exclusions inserted by the insurer in the policy which dilute and impermissively limit uninsured motorist coverage are void as violative of the public policy espoused by [Oklahoma’s UM statute].
Since Plaintiff in this case was insured under a UM policy, it is not clear why the owned car exclusion should be permitted while the insured motor vehicle exclusion or the vehicle furnished for the regular use of an insured exclusion is not permitted.
In Fierro v. Lincoln General Insurance Company, Fierro was injured in an accident with a motor carrier registered in California, and insured by Lincoln General. Fierro sued both the motor carrier and its insurer, Lincoln General. Lincoln General argued, its insured was an interstate motor carrier, and therefore, did not operate under an Oklahoma Motor Carrier License - thus, neither of the two Oklahoma direct action statutes applied to it. The court agreed. It found that the direct action statutes only apply to intra-state carriers, not interstate carriers. Furthermore,
Oklahoma takes part in the single state system, 47 O.S. §162.1 that is, where interstate motor carriers register and insure in their home states. Section 230.30 plainly states that “... after judgment against the carrier for any damage, the injured party may maintain an action upon the policy or bond to recover the same, and shall be a proper party to maintain such action." 47 O.S.2001 §230.30(A).” The reasons given for the prohibition [defendant's insurer cannot be directly sued by a plaintiff], besides statutory directive, include policy, prohibition by judicial decision, lack of privity between the injured plaintiff and the insurer, misjoinder of the tort action and the action on the contract, and the enforcement of the “no-action” clause in the policy.” Daigle v. Hamilton, 1989 OK 137, ¶ 5, 782 P.2d 1379, 1380.
Thus, for interstate carriers properly registered in their home state, a direct action is not available against the insurance carrier until after there is a judgment.
Griffin, while attempting to enter an Indian casino, stepped into a flower bed and fell. She sued the casino for negligence in state court. The casino claimed it was immune from suit in state court, as a sovereign, and that Griffin would have to sue in tribal court. The court disagreed. It found that under the State-Tribal Gaming Act and The Model Tribal Gaming Compact, the tribe has granted limited consent to be sued by patrons in courts of competent jurisidiction. State district courts are courts of competent jurisdiction.
The gaming compact mandates liability insurance coverage for the benefit of the public, prohibits the liability insurer from asserting tribal immunity, prescribes the procedure for casino patrons to claim damages, and expresses the tribe’s consent to suit. Claims against tribes are limited to amounts set forth in the Oklahoma Governmental Tort Claims Act, and the presuit procedures found there must be followed for claims by patrons against tribes. The Compact further requires tribes to carry insurance, and prohibits the insurer from asserting tribal immunity.
We believe that suits against tribes will increase as more and more casinos are built, especially since more and more casinos are making alcoholic beverages more readily available to their patrons.
The Tenth Circuit has affirmed a summary judgment in favor of State Farm, which held that the earth movement exclusion is not ambiguous. In Davis-Travis v. State Farm Fire & Casualty Co, a pipe in the bathroom had burst and flooded the house. An inspection revealed damage to the flooring and baseboards as well settlement damage to the residence. The settlement damage was determined to have been caused by movement of the clay under the foundation. State Farm covered the portion of the claim related to interior water damage but denied the portion related to the foundation movements caused by settlement. The denial was based on the policy’s earth movement exclusion, which the court called the lead-in clause. The homeowners sued for breach of contract and bad faith, claiming the policy covered the settlement damages. The trial court found that neither the lead-in clause nor the term earth movement was ambiguous, and granted summary judgment to State Farm, which was affirmed by the Tenth Circuit.
In Ball v. Wilshire Insurance Company, the court ruled that a loaned vehicle exclusion which excluded coverage for those using the car with the owner’s permission was unenforceable, since Oklahoma public policy requires that the general public be protected up to the minimum amount of legislatively mandated coverage. The court also ruled, however, that there was no duty to defend under the policy, since such a duty was not required to fulfill the public policy behind mandatory minimum liability coverage. The court also determined that Wilshire did not act in bad faith in delaying UM payment to Ball, since the law was unsettled.
After the Olahs sued him for malpractice, Dr. Baird filed bankruptcy. The Olahs asked the trustee of Dr. Baird’s bankruptcy estate to “sell” them Dr. Baird’s right to consent to settlement under his medical liability insurance policy. The trustee balked, writing that by the terms of the insurance contract he did “not believe that there was any asset which the trustee could assume and assign to” the Olahs. The Olahs then sought a declaration that the “right to settle” was indeed part of the estate. When the trial court refused to so hold, they appealed. The Tenth Circuit ruled that the liability policy is properly part of the estate, and that the trustee has discretion to exercise Dr. Baird’s rights under the policy (including the consent to settle) or to assign those rights to the Olahs.
There were some interesting arguments made in this opinion. The insurance company argued that making the consent to settle clause assignable would “drastically impact the risk and burden on [it].” The Tenth Circuit didn’t buy it, noting that the insurance company had the right and duty to defend the claim, and that no one could force the insurance company to settle. If the insurance company and the plaintiffs negotiated a mutually agreeable settlement, then it would be in the insurance company’s interest to have the plaintiffs and not Dr. Baird exercise consent. Further, since Dr. Baird’s liability was discharged in bankruptcy, he had nothing to lose and everything to gain from frustrating a settlement.
In re Baird, Case No. 07-4282
The Oklahoma Supreme Court has ruled that private citizens may sue for unsolicited faxes. In MLC Mortgage Corporation, the plaintiff had received various unsolicited faxes from the defendants. In an issue of first impression in Oklahoma, the court held that private parties may pursue violations of the Telecommunications Consumer Protection Act (TCPA), 47 U.S.C. §227 (2005), in Oklahoma courts.
When an Oklahoma resident is injured in Oklahoma by an uninsured motorist, you might expect Oklahoma law to apply. But not if the UM policy was issued or delivered in another state on a vehicle registered or principally garaged in another state. In Bernal v. Charter County Mutual Insurance Co., the Oklahoma Supreme Court said that Oklahoma's UM statute only applies to vehicles registered in or principally garaged in Oklahoma. Thus, even though the accident occurred in Oklahoma, and the insured was from Oklahoma, Texas law would apply because that was where the vehicle was registered. Since Oklahoma law does not apply, there was no need to do a choice of law analysis -- and really, who wants to do that?
The court says that Oklahoma's statute applies solely to cars registered or garaged in Oklahoma. It then concludes that this a legislative mandate to use the law of the state of the policy or where the car is garaged and/or registered.
There is no discussion as to whether there is any choice of law provision in the policy, and whether that would make any difference. Certainly, under Oklahoma (and most other states laws), the parties may choose to be governed by a specific state's laws. Whether and to what extent this may affect other types of insurance is not yet known.
The Oklahoma legislature has not embraced arbitration. In fact, it seems somewhat hostile towards it. Thus, there has been some tinkering with Oklahoma’s arbitration act by the legislature. First, it said that the only types of insurance agreements that could be arbitrated were those between insurers, which would, of course, include reinsurance agreements. But then the statute changed to delete the exception which permitted arbitration between insurance companies. Then, it changed again to permit it. It was during these changes that Mid-Continent sued GenRe for failure to pay under the reinsurance contracts.
The trial court said that the arbitration clause was unenforceable, and that therefore, the suit could proceed. GenRe appealed, claiming that the arbitration clause was enforceable. It was after the trial court’s ruling and before the Tenth Circuit’s ruling that the law changed again to permit arbitration between insurance companies. The Tenth Circuit found the arbitration clause was enforceable, and that the change applied retroactively, since it was a procedural and not a substantive change.
Our friends at Reed McClure in Seattle have published their latest insurance law newsletter. The cases discussed include issues such as parental immunity, what type of business is covered under a business coverage clause, and a case which held that certified mail is not mail. For these and other reasons, you should check out the latest Washington Insurance Law Letter.
In this declaratory judgment action, the 10th Circuit reversed the district court’s finding of coverage. The insured, Hobbs, rents oil field drilling equipment. It hired Brunson to move a piece of equipment from the oil field to the rental yard. While unloading the equipment in Hobbs’ yard, the truck touched an electrical line and Brunson’s employee was injured. The employee sued Hobbs, and Hobbs put its CGL carrier on notice of the claim. The CGL carrier began defending, but then declared bankruptcy, so Hobbs notified its business auto liability carrier (Union Standard) of the claim, who defended under a reservation of rights.
The Union Standard policy covered certain non-owned vehicles "used in connection with" the insured’s business. The issue was whether the Brunson truck was covered. The court used the policy language to determine context; and found that the non-owned autos provision covered ""autos" owned by [Hobbs] employees or partners or members of their households but only while used in [Hobbs] business or [Hobbs] personal affairs." By using this context analysis, the Tenth Circuit found that instead of covering all autos somehow related to Hobbs’ business, the policy was only intended to apply to Hobbs’ affiliated persons using privately owned vehicles on company business.
Finding coverage was also in conflict with New Mexico’s "reasonable insured" standard, as well as the common purpose of such provisions.
The court was concerned with the expansive interpretation of the clause by the district court, which it believed would expand coverage to any vehicle which had a business connection to the insured. Rather, the coverage was only as to those vehicles over whom the insured might be considered to have respondeat superior liability.
A New Jersey judge who allowed a lawyer to plug an evidentiary gap with a Wikipedia page has been reversed on the ground that the online encyclopedia that "anyone can edit" is not a reliable source of information.
This may be a good opinion where there is a hotly contested fact. But then, I don't think that judicial notice is appropriate for any hotly contested fact. A study compared Wikipedia with the Encyclopedia Britannica for accuracy, and considered them to be equal.
Ms. Kreisler worked for CCC. She was terminated. She was given an unsigned severance agreement. She requested and was given some additional items (such as a letter of recommendation), but these items were not put into writing. Then, she added a mutual release clause to the severance agreement, signed it and presented it to CCC’s human resource director (without advising her of the changes) who signed it on behalf of CCC. Later, it was discovered that Ms. Kreisler had embezzled over $860,000 from CCC, and had changed the severance agreement. Payments under the severance agreement were stopped, and CCC sued Kreisler for recission of the severance agreement and for various claims relating to the embezzlement. Kreisler counterclaimed for enforcement of the severance agreement, including the mutual release.
The first day of trial, CCC asked the court to let it raise the issue of the lack of authority of the human resources director to sign the modified agreement. The court reviewed this issue under a plain error standard because 1) there was no claim that the evidence fell outside the pleadings until after trial; 2) there was no contemporaneous objections to the evidence at trial; and 3) her contemporaneous objection was only as to the submission of a late brief and request for additional time which could not be construed as an objection to the evidence. The court said that while CCC should have raised this issue earlier, it was not error to permit it to address the issue at trial. The court found that “Ms. Kreisler had notice of the defense of lack of authority and, therefore, suffered no prejudice from CCC’s failure to comply with Rule 8(c). . .”
Her claim that she was entitled to a jury trial on the issue of authority to sign the agreement was without merit, since she had agreed to a bench trial. The agreement was not ratified by performance, since once it was discovered that the agreement had been changed, performance was discontinued.
Ms Kreisler also claimed error in admitting parts of her deposition at trial because she was available to testify. But Fed.R.Civ.P. 32 allows the use of a deposition of a party “for any other purpose allowed by the Federal Rules of Evidence.” The evidence rules permit the admission of a party’s deposition as a statement of a party.
Finally, Ms. Kreisler claimed the civil action should have been stayed pending the outcome of the criminal charges against her. But, because the only issue before the court in the civil action was the validity of the release provisions and the severance agreement, there was no abuse of discretion in proceeding with the civil case.
Ms. Ellis had some work done on her house in 2002 when it was discovered a pipe had broken and there was a water leak. It was fixed, but later, the concrete slab started to crack. Ellis submitted a claim to State Farm, which denied it. She then sued State Farm claiming that the slab was covered and that State Farm's denial was in bad faith.
Both parties moved for summary judgment and the trial court granted summary judgment to State Farm. The 10th Circuit affirmed in Ellis v. State Farm, finding that the “continuous or repeated seepage or leakage” clause excludes coverage for the damage to the concrete slab.
Ms. Ellis contends that the district court erred in applying the “continuous or repeated seepage or leakage” clause for three reasons: (1) the evidence on summary judgment was disputed as to whether the sand fill under the foundation was washed away by water or whether “the sand sifted into the drain pipe and was washed out by effluent that stayed within the pipe,”; (2) the policy language refers to “water or steam,” not to sewage, so the clause is either ambiguous or simply does not apply to this situation where the sand fill was carried away by sewage; and (3) under the doctrine of “reasonable expectations,” Ms. Ellis is entitled to coverage because an insured would reasonably expect the clause to apply to “a water supply line or a steam line, both of which are under pressure, rather than a drain line,”
The court ruled: 1) reasonable expectations was raised for the first time on appeal and not considered; 2) didn't matter if it was a water or a sewage pipe, it contained liquid and a leak in the pipe caused the damage; and it also did not matter if the liquid contained sewage, it was still excluded; and 3) the evidence presented showed that the pipe leak washed supporting sand away from the foundation causing the cracking. Summary judgment was affirmed.
The Oklahoma Bar Association is celebrating Law Day by giving free legal advice. Oklahomans across the state are encouraged to take advantage of this community service by calling (800) 456-8525 on Thursday, April 30 from 9 a.m. to 9 p.m. So, pass the word to family and friends!
Also that evening on Oklahoma’s PBS station OETA the Ask A Lawyer TV show at 7 p.m. will feature segments on frauds to watch out for and equal rights in the workplace. More details about the legal advice and the TV show are at
Oklahoma law does not permit a tort action to state a claim for damages for a specific amount in excess of $10,000. Rather, such claims can only request damages in excess of $10,000. A default cannot be taken for more than the amount requested in the petition.
In Vannoy v. Earth Biofuels, Inc., the defendant was served through the Secretary of State, but failed to answer. Apparently, there had been some settlement negotiations. Plaintiffs got a default judgment against defendant for $1 million. The trial court refused to vacate the default judgment, and the defendant appealed.
The Court of Civil Appeals vacated the default, stating that the defendant was required to have notice of the amount claimed before default was entered against it. The trial court could not rely upon a district court rule says that no notice of default is required if no entry of appearance has been made, since the rule conflicted with the statute requiring notice of the amount claimed.
Plaintiff was injured when he collided with a truck which became stuck on the highway when it tried to turn around. The jury found the plaintiff was 25% at fault and awarded him $3.2M (reduced to $2.4M). The Tenth Circuit reversed the jury verdict, however, because of improper closing argument by plaintiff's counsel. Whittenburg v. Werner, Case No. 07-6063, 4/3/09
Plaintiff's counsel asked the jury to imagine that the defendant wrote plaintiff's family a letter telling the family that it was going to do various bad things which would result in plaintiff being badly injured; and that defendant would then improperly defend itself and spend lots of money on its defense so it would not have to pay any money to plaintiff; and in defending itself, it would cast all sorts of aspersions on plaintiff.
The permissible limits of closing argument were exceeded in this case in two principal ways. First, counsel referred extensively to evidence not in the trial record. Second, without apparent provocation or basis in the record for doing so, counsel flooded his argument with abusive references to his opposing party and counsel.
* * * *
Before us, the parties fight considerably over the propriety of ever using an imaginary letter as a way to structure a closing argument. But we need not resolve today an abstract debate over the proper form of closing arguments because in this case there is a more pressing problem. Even assuming the possible propriety of the technique generally, the content of this particular imagined letter included a great many facts about Mr. Whittenburg’s children and Werner’s conduct that lacked any basis in the evidence adduced at trial. Counsel’s argument accordingly violated the cardinal rule of closing argument: that counsel must confine comments to evidence in the record and to reasonable inferences from that evidence.
Oklahoma has a statute of repose for "improvements to real property". If you are hurt by an improvement to real property more than 10 years after it is substantially completed, you may not sue. See, 12 Okla.Stat. § 109. In Goad v. Buschman, the 10th Circuit affirmed the trial court's grant of summary judgment to the owner of a building which had a conveyer belt system. The building was used for grocery warehouse operations. The court found that the factors favored finding that the conveyor system was part of the property and therefore fell within the ambit of the statute of repose.
The evidence presented to the district court shows that in 1985, Buschman contracted for the design, construction, and installation of the conveyor system. Buschman designed and installed the system. It was constructed from several conveyor “standards” that were installed to fit within the building’s existing footprint. The system is hardwired into the building, is three stories high, and originally contained about 6,155 feet of conveyor. It is attached to the floor by anchors set in concrete and bolts, and further attached to the building by a variety of bolts, angle bracing, stabilizing legs, floor-support columns, and ceiling hangers. The conveyor system is not welded to the building or embedded in the floor. The purchase price of the system was approximately $776,852.
We previously reported about former General Re Corp. chief executive officer Ronald E. Ferguson being sentenced to two years for his role in a fraudulent scheme to inflate AIG's loss reserves which caused investors to lose over $500 million dollars. Now another General Re Corp executive, Christopher Garand, has been sentenced to one year in prison and fined $200,000 for the same scheme. Garand is a former Gen Re senior vice president.
In addition, former American International Group vice president Christian M. Milton, has been sentenced to four years in prison and fined $200,000 for his participation in the fraudulent scheme which involved General Re Corp. and American International Group Inc. (AIG). Other convicted former Gen Re executives are Robert D. Graham and Elizabeth A. Monrad.
A Connecticut federal judge today sentenced former General Re Corp. chief executive officer Ronald E. Ferguson to two years in prison and fined him $200,000 for his participation in a fraudulent scheme involving General Re Corp. and American International Group Inc. United States of America v. Ronald E. Ferguson, et al., No. 06-137 (D. Conn.).
The court ruled that the loss portfolio transfer (LPT) transaction between AIG and Gen Re caused more than 250 AIG investors to sustain between $544 million and $597 million in losses.
Ferguson, along with Christopher P. Garand, Robert D. Graham, Elizabeth A. Monrad and Christian M. Milton, were accused of engineering a LPT transaction that helped AIG inflate its loss reserves by $500 million in 2000 and 2001. Prosecutors alleged that the deal transferred no risk of loss to AIG and included a secret side agreement that AIG would refund Gen Re’s $10 million premium and pay it a $5 million fee.
All five defendants were charged with securities fraud, conspiring to commit securities fraud, making false and misleading statements in reports filed with the SEC, falsifying the books and records of a public company, and mail fraud.
In an unpublished case, the Oklahoma Court of Civil appeals reversed summary judgment in favor of an insurance agent who allegedly failed to properly estimate replacement cost coverage. The insureds had purchased replacement cost coverage, but the coverage was limited to a certain dollar amount. That limit turned out to be about half the actual replacement cost required after a tornado destroyed farm buildings. The insureds claimed that the agent was negligent in failing to follow replacement cost estimating standards. The Court of Civil Appeals said that generally, the insurance agency and the insurer do not have a duty to advise an insured with respect to insurance needs, but on the other hand, an insurance agency has a duty to exercise reasonable care and skill in performing its tasks. The breach of this duty with accompanying injury establishes a claim for negligence.
Since there was a fact question as to whether the acts were negligent and caused damage, summary judgment was not proper, and summary judgment for the agent and insurer was reversed.
The Tenth Circuit has recently decided two cases involving benefits under an ERISA plan. The first case dealt with death benefits. In Kellogg v. Metropolitan Life, the plaintiff’s husband was killed in a one car accident. General life insurance benefits were paid, but the accidental death claim was denied. It was claimed that the deceased had suffered a seizure just before he lost control of the car, and that the seizure caused the death, not the accident. The ADD policy excluded coverage when the loss was cause by a physical illness or infirmity. Summary judgment for the insurance company was reversed, and the trial court was directed to enter judgment for the plaintiff. Procedurally, the case was interesting because the Plan did not make a ruling on the appeal from the denial of benefits, so a de novo standard of review was used. The court held that the deceased died from injuries received from the accident, not from the seizure (if any). Further, the court ruled that the insurance company could not raise a new ground for denial on appeal. In reaching its decision, the court cites numerous cases where a physical ailment caused an accident which resulted in death. In such cases, the death was caused by the accident, not the physical ailment, and therefore covered. In this case, the death was caused by a skull fracture resulting from the car accident, not by physical or mental illness; while the seizure may have been the cause of the crash, it was not the cause of death.
The second case, Brown v. Hartford, involved a disability policy. Like most disability policies, this one said that for the first year, you were entitled to benefits if you can’t do your old job; but after that, you are only entitled to benefits if you can’t do any job. Hartford told Brown to apply for Social Security benefits (which reduced the amount Hartford had to pay under the policy) and then said that it was not bound by Social Security’s determination that Brown was unable to work. Since Hartford believed that Brown could work at some job, it cut off benefits. Hartford got summary judgment and the Tenth Circuit reversed.
First, the trial court erred in finding that Hartford did not have discretion under the Plan. Although this means that Hartford’s decision can only be overturned if its arbitrary and capricious, there is an additional factor – Hartford’s conflict of interest which was not considered by the trial court. The Tenth Circuit said the trial court should consider whether Hartford’s financial conflict could have had a role in influencing its decision to ignore the SSA and workers compensation court’s determinations that Brown was totally disabled. The Tenth Circuit apparently felt it was unfair for Hartford to require Brown to apply for Social Security, reduce the amounts it paid because of the award, and then ignore the SSA’s finding of disability in order to cut Brown off from all further payments.
Wife takes 5th during deposition, cannot recover on life insurance policy
Angelina and Bryan were married; several years later, Bryan took out a $1M life insurance policy naming Angelina as primary beneficiary, and his kids as secondary beneficiaries. Three months later, Bryan was killed; and Torre was convicted of the murder. There was evidence that Torre and Angelina were lovers and had been heard talking about killing Bryan for the insurance.
The insurance company filed a declaratory judgment action so the court could determine who should get the proceeds. Angelina refused to testify at Torre’s trial and refused to answer questions in her deposition on Fifth Amendment (self incrimination) grounds. The trial court ruled that Angelina was involved in her husband’s murder and could not benefit from the insurance, and awarded the proceeds to the children. The Ninth Circuit affirmed.
The Ninth Circuit said that it was ok to preclude Angelina from testifying at trial, since she had taken the Fifth at deposition. It would be unfair to allow Angelina to invoke the privilege during discovery and then disclose the information during trial. Further, the trial court acted within its discretion to draw an adverse inference from Angelina’s assertion of the Fifth, because there was independent evidence about the facts to which she refused to testify, and there was a substantial need for the testimony. Finally, it was proper to admit deposition testimony of a witness who said he was approached by Angelina and Torre to kill Bryan. The witness was out of state and therefore, unavailable. Testimony about what Torre told the witness were also admissible as a statement of a co-conspirator.
Commercial seller requirement in products liability claims
Oklahoma’s products liability law is based on Restatement of Torts (Second) §402A. One of the requirements is that the seller be engaged in the business of selling such a product. Liability is not imposed upon occasional sellers who where the sale is not part of a business. Thus, in order to impose §402A liability, the defendant must be a "seller . . . engaged in the business of selling" the allegedly dangerous product. In Spence v. Brown-Minneapolis Tank, Co., 2008 OK CIV APP 90, the court stated that if defendant is not a commercial "seller engaged in the business of selling" the allegedly dangerous product, summary judgment is proper. In this case, intra-company transfer of goods was not a sale, and the defendant was not in the business of selling the doohickies that caused the injury. Thus, summary judgment was proper.
Bob owned a restaurant. Bob closed the restaurant. But Bob kept his office in the restaurant open. The sprinklers malfunctioned and the restaurant was water damaged. Bob’s insurance claim was denied. The policy did not cover losses on vacant premises or from freezing pipes. Then it was determined that the sprinklers had been deliberately tampered with and the tampering caused the damages. The claim was denied again. The trial court said the building was vacant and tha tthe vandalism and water damage exclusions precluded coverage. Summary judgment to the insurance company was affirmed on appeal.
There was no dispute that the building was vacant on the date of the loss because it was not being used for customary operations on the date of the loss. Using a small part of the building did not make the building occupied. Further, it did not matter that there was no evidence that Bob tampered with the sprinklers. The vandalism exclusion applied. There was no bad faith in the investigation of the claim.
If it looks like an insurance policy and quacks like an insurance policy, its an insurance policy -- according to the Oklahoma Court of Civil Appeals. And if it meets the requirements of an insurance policy, statements in the contract that says its not insurance are going to be ignored. Further, breach of the contract can give rise to a bad faith action. Thus, calling a contract a debt release waiver will not insulate the parties from a bad faith claim.
Layman was injured on the job. She was awarded money. The employer appealed. While it was pending, Layman died. The award was affirmed and then the lawyer sought to have the award certified. The comp court told the employer to pay the money to the estate. This was appealed and reversed. Neither the estate, nor the p.r., was a party to the proceedings. the court had no authority to require payment to a non party.
WAREHOUSE MARKET, INC. v. LAYMAN 2008 OK CIV APP 78
Equity lets their insureds pay their premiums by the month. In its monthly invoices, it helpfully lets its insureds know that if the premium is not received by a certain date, the policy will be cancelled. St Clair paid for a few months and then quit. Equity believed the policy was cancelled, per the invoice. So, when St. Clair wrecked his car 4 months after he stopped paying premiums, Equity thought there was no coverage. The Oklahoma Supreme Court disagreed. You see, you cannot give notice of cancellation for nonpayment until there actually has been non-payment. Thus, the notice in the monthly invoice was ineffective to cancel the policy.
Today's email brought another issue of Washington Insurance Law Letter, edited by William Hickman at Seattle's Reed McClure. I love reading Hickman's newsletter. The cases are entertaining and the style has just the right mix of facts and sass. And even those who do not practice in the Northwest now have reason to read it, as although the California Supreme Court is considered the most influential state court, the Washington Supreme Court is considered the second most influential state court, having been followed 942 times in the last 65 years. At least, that's according to this UC Davis law review article.
In Newman v. State Farm, the 10th circuit discussed the quantum of proof necessary for an insurance company to show a set fire and avoid a bad faith claim. The Newman's house burned down when no one was home; Mrs. Newman had moved out and the rest of the family was camping. The cause and origin inspection showed the fire started in or near the stove, but no accelerants were found, and no cause was determined. State Farm was getting ready to pay the claim when it received information that the Newmans had paid someone to burn the house.
When the claim wasn't paid, the Newmans sued State Farm for breach of contract and bad faith. State Farm got summary judgment on the bad faith claim and the jury found for State Farm on the breach of contract claim. On appeal, the Newmans complained that the jury was not properly instructed on State Farm's intentional acts and false swearing defense.
“First, the Newmans argue[d] that contrary to Oklahoma law the district court did not instruct the jury that State Farm must prove each of the necessary elements of its arson defense.” But in a case where evidence of arson is circumstantial, proof that the fire had an incendiary origin along with proof of motive, intent, and opportunity by the insured is sufficient. The insurer is not required to prove motive, intent, and opportunity specifically as elements of arson. The jury was properly instructed that the affirmative defense of fraud need only be shown by a preponderance of the evidence, not by clear and convincing evidence. As to the false swearing defense, no detrimental reliance need be shown, since that was not a requirement under the policy.
The insured (OKEMAH) was a sub contractor on a building. The owner sued, claiming that the building leaked because of poor workmanship. Naico filed a declaratory judgment action, claiming it was not required to defend Okemah because the CGL policy covered negligence claims, not breach of contract type claims; or that various exclusions precluded coverage. The exclusions included 1) Contractual Liability Exclusion; 2) Damage to Your Product Exclusion; 3) Damage to Your Work Exclusion; 4) Building Related Illness Exclusion; 5) Fungi or Bacteria Exclusion; and 6) Exterior Insulation and Finish Systems (EIFS) Exclusion.
The court found the EIFS exclusion applied; it did not require the insured to install or apply all 5 elements of the EIFS; and the court did not reach the other issues. Since the claim was excluded, there was no duty to defend.
Miller was injured in a head on collision while driving his employer's car. The accident occurred in 1991, and in 2001, Liberty has paid Miller approximately $20,000 on his claim. Liberty had denied payment of medical claims which were incurred more than a year after the accident. Miller sued Liberty for bad faith, claiming that Liberty failed to properly investigate and evaluate his claim, in part because Liberty initially offered Miller less than its lowest evaluation of the claim. Liberty said it wasn't bad faith, and even if it were, the statute of limitations had run on any claim. The trial court agreed, granting summary judgment to Liberty. But the Court of Civil Appeals reversed.
Material fact issues precluded summary judgment on the issues of bad faith and statute of limitations.
Liberty had the duty to promptly settle Miller's initial claim "for the value or within the range assigned to the claim as a result of its investigation." Newport v. USAA, 2000 OK 59, ¶ 16, 11 P.3d 190, 196. Newport explained that the duty of good faith and fair dealing "prevents an insurer from offering less than what its own investigation reveals to be the claim's value." Id., 11 P.3d at 197.
As to the statute of limitations, the court found that while the action was brought more than 2 years after the claim had been paid, the discovery rule applied. The period of time a statute of limitations is tolled pursuant to the discovery rule is generally a question of fact. Samuel Roberts Noble Found., Inc. v. Vick, 1992 OK 140, ¶ 30, 840 P.2d 619, 626.
Therefore, summary judgment was improper and the case was reversed and remanded.
In Ferguson v. Corgis Insurance Co., the issue was the limits of a CGL policy. The policy declarations showed a $2 million limit, but there was a endorsement which tied the limits to the limits in the Idaho Governmental Tort Claim Act. Unfortunately for Corgis, however, the Idaho GTCA stated required minimum limits for insurance policies, not maximum limits. Thus, the Ninth Circuit found the policy was not ambiguous and the $2 million limit applied. It therefore reversed summary judgment in favor of Corgis.
This is an interesting case – not necessarily for the holding, but because under undisputed facts, two courts reached opposite conclusions and still found the policy unambiguous.
In National American Insurance Co. v. Vallion, 2008 OK CIV APP 41 , NAICO issued an insurance policy to a school district which covered vehicles owned by the school district. Vallion was employed by the school and was a passenger in a covered vehicle which was hit by an underinsured driver. Vallion had a car which was covered by insurance.
The NAICO policy excluded from the definition of an "insured" for uninsured motorist coverage purposes, those who own their own vehicles which are covered by statutorily mandated insurance. Thus, NAICO argued that even though Vallion was injured while riding in a district-owned vehicle, the policy language excludes UM coverage for him because he owns a personal motor vehicle and is insured under an insurance policy in compliance with the Oklahoma Financial Responsibility Act, 47 O.S. 2001 §7-101 et seq. (the Act).
Under Oklahoma law, the purpose of UM is "to protect the insured from the effects of personal injury from an accident with another motorist who either carries no insurance or has inadequate coverage." Burch v. Allstate Ins. Co., 1998 OK 129, ¶13, 977 P.2d 1057, 1063. Similar contractual exclusions were upheld in Shepard v. Farmers Ins. Co., 1983 OK 103, 678 P.2d 250, and Graham v. Travelers Ins. Co., 2002 OK 95, 61 P.3d 225.
The appellate court affirmed the trial court's ruling that Vallion was not covered under the policy.
In Gutkowski v. Oklahoma Farmers Union Mutual Insurance Co., 2008 OK CIV APP 8, 176 P.3d 1232, Plaintiffs had asphalt or composition shingles on top of wooden shingles. The wooden shingles were used instead of decking. Plaintiff's roof was damaged by hail. Farmers agreed to replace the damaged asphalt shingles, but not the wooden shingles, even though the removal of the asphalt shingles would make the wooden shingles no longer usable as a nailable surface on which to attach the new asphalt shingles.
The Insureds sued Farmers for breach of contract, fraud and bad faith. Summary judgment was denied and a jury found for Farmers. The Court of Civil Appeals reversed, finding that the trial court erred in submitting the issue of the parties’ contractual intent to the jury.
Whether an insurance contract provision is ambiguous is a question of law to be determined by the court. Max True Plastering Co., v. U.S.F. & G. Co., 1996 OK 28, ¶20, 912 P.2d 861, 869. The test to be applied in determining whether a word or phrase is ambiguous is whether the word or phrase is susceptible to two interpretations on its face from the standpoint of a reasonably prudent lay person. Id. This Court will not indulge in forced or constrained interpretations to create and then construe ambiguities in insurance contracts. Id.
Under Oklahoma law, when an insurer desires to limit its liability under a policy of insurance, it must employ language that clearly and distinctly reveals its stated purpose. Farmers failed to do so, and the subroof was, therefore, covered.
Farmers claimed that the Insureds had two separate roofs, ie. the wood shingles constituted a divisible and separate roof from the composition roof. Farmers argued that because the wood roof did not sustain direct hail damage and the policy does not cover damage not caused by a covered peril, Farmers was only obligated to pay for the damage to the composition roof. To prevail on this theory, Farmers would have to show the necessary components that make up a single roof are divisible and separate. Oklahoma law ( Redcorn v. State Farm Fire & Cas. Co., 2002 OK 15) does not support this argument.
The trial court's judgment in favor of Farmers on the contract claim was reversed. The trial court was directed to enter judgment in favor of the Insureds as to liability, and conduct a trial on damages.
While it might be stating the obvious, in National American Insurance Company v. Okemah Management Company, 2008 OK CIV APP 58 , the court held that there was no duty to defend a claim that was excluded under the policy. NAICO's insured, Okemah, was sued for various construction defects in a building. NAICO filed a declaratory judgment action seeking a declaration there was no duty to defend or indemnify its insured because the claims were not covered.
Plaintiffs initially sued for breach of implied warranty and poor workmanship. Plaintiffs later amended their petition to claim that Okemah was guilty of negligence per se for violating the BOCA (Building and Code Administrators) code regarding installation of the EIFS (Exterior Insulation and Finish Systems) system.
NAICO claimed that the policy only covered tort claims, not breach of contract claims and that various exclusions precluded coverage, including 1) Contractual Liability Exclusion; 2) Damage to Your Product Exclusion; 3) Damage to Your Work Exclusion; 4) Building Related Illness Exclusion; 5) Fungi or Bacteria Exclusion; and 6) Exterior Insulation and Finish Systems (EIFS) Exclusion. NAICO contended it did not have any duty to defend where there is no coverage under the policies.
In Vanguard Environmental Inc. v. Curler, 2008 OK CIV APP 57, the Oklahoma Court of Civil Appeals held that a contract which restricted a former employee from competing against her employer was unenforceable. The agreement precluded the former employee (Curler) from marketing because such marketing could influence customers of the employer. This clause was unenforceable. Previously, it had been held that restraints on a former employee's dealings with clients of the former employer are unenforceable (except for active solicitation).
The court also found that the ban on client contact was unenforceable, as was the ban on contacts with the employer's suppliers. Summary judgment to the former employee was affirmed.
Two recent Oklahoma Court of Civil Appeals decisions discusses the applicability of the Oklahoma Residential Property Condition Disclosure Act, found at 60 Okla. Stat. § 831 et seq. The Act permits buyers of residential property to sue sellers of that property for conditions known to the sellers at the time of the sale, such as flood damage to the property. The Act requires that actions be brought within two years of the date the property was transferred. 60 Okla. Stat. § 837(C), and precludes any claims for fraud resulting from sales covered by the Act.
In Mamoodjanloo v. Wolf, 2008 OK CIV APP 59, the Court of Civil Appeals found that the Act does not cover “[t]ransfers by a fiduciary who is not an owner occupant of the subject property in the course of the administration of a ... trust.” §838(A)(3). Thus the fact that the Trustees signed a disclosure form did not mean the sale was covered by the Act. But since the Act did not apply, the buyer could bring a fraud claim against the seller/trustee. The court stated:
Under the common law doctrine of caveat emptor, when a buyer inspects property prior to sale, silence on a seller's part does not constitute fraud if it relates to conditions that the buyer, through the exercise of reasonable diligence, could discern upon inspection. Therefore, the buyer may not base a fraud claim on misrepresentations concerning patent, or readily observable, defects when the purchaser has been afforded an unimpeded opportunity to inspect the property. The doctrine does not apply if a seller fraudulently conceals a latent defect. Rogers v. Meiser, 2003 OK 6, 68 P.3d 967, 976-977. A latent defect known to the seller creates a duty of disclosure in the seller. Failure to disclose amounts to fraudulent concealment of the defect. Brauchitsch v. Cravens, 1978 OK CIV APP 48, 604 P.2d 379, 380.
Since the Buyer presented some evidence that the trustee knew of prior flooding on the property and failed to disclose it, there was sufficient evidence to go to trial on a fraud claim against that trustee.
In another case, Lester v. Smith, Case No. 104,854 (released for publication by the Court of Civil Appeals, but not yet published), the court held that the two year limitation period in the Act is a statute of repose, not a statute of limitations. Therefore, the discovery rule (which tolls the statute of limitations in tort cases until the injured party knows or in the exercise of reasonable diligence should know of the injury) does not apply to claims under the Act. The Court contrasted the language of the Act’s limitations with the general statute of limitation and other Oklahoma statues of limitations and statutes of repose. The Court found that the Act was a statute of repose and that the discovery rule would not apply to claims under it. As a result, the buyer’s claims against the sellers were untimely, and judgment in the seller’s favor was affirmed. Neal Stauffer, Jody Nathan and Nathan Parrilli were on the briefs for the sellers.
Roesler was a nurse anesthetist. He purchased liability insurance from TIG in May 2002. In August 2002, Roesler was sued for his involvement in the June 1998 cesarian section birth of a severely brain-damaged infant. Roesler notified TIG, and TIG rescinded Roesler’s policy because he failed to include information about the incident on his application. Roesler sued for bad faith and breach of contract. A jury awarded him $60,072 for breach of contract, $2.31 million in compensatory damages for TIG's bad faith, and $2.3 million in punitive damages. The Tenth Circuit found that the introduction of certain post - litigation conduct was improper, but it also found that the trial court properly denied TIG’s motion for directed verdict. The Tenth Circuit reversed, the judgment, however, because of improper jury instructions. The trial judge had instructed the jury (over TIG’s objection) that if the jury found that TIG’s coverage position was wrong, they would have to find that TIG acted in bad faith. (Jody R. Nathan made this argument to the trial court). The appellate court agreed. The case was remanded for a new trial. Continue Reading...
A judgment in excess of $650,000 was affirmed by the Tenth Circuit against Hartford Insurance Company because it did not know the provisions of its own policy, and it changed the reason it denied the claim once suit was filed.
In this case, Haberman was the sole shareholder of a corporation. She and an employee were driving on a pleasure trip when the employee lost control of the vehicle. The employee was killed and Haberman was injured. After Haberman collected both the liability and UM limits on the employee’s car (the one involved in the accident), she sought UM coverage under her Hartford policy. The Hartford policy was issued to her corporation and the employee’s car was not a scheduled vehicle. The Hartford policy, however, had an endorsement on the auto policy which specifically named Haberman as an insured for auto liability purposes. Hartford denied the claim. The policy limited UM coverage to specific vehicles and the employee’s car was not a listed vehicle.
On summary judgment motions, the court ruled that the endorsement made Haberman an insured for all purposes under the policy. Even if the policy was ambiguous, the court would have to find for coverage. It therefore entered summary judgment on behalf of Haberman finding coverage. At trial, Haberman was granted judgment as a matter of law on her contract claim and Hartford’s quest to remove punitive damages from the jury was denied. The jury found for Haberman and awarded her $548,000 on the contract claim, $5,000 for actual damages on the bad faith claim and a further $100,000 for punitive damages on the bad faith claim.
The appellate court affirmed both the contract and bad faith findings. Even if there was a legitimate dispute as to coverage, the bad faith claim was appropriately decided by the jury because the reason Hartford gave when it denied the claim (that Haberman was not in a covered vehicle) was different from the reason it gave when it was in court (that Haberman was not an insured). Furthermore, because there was evidence that Hartford ignored its own policy language and well settled Oklahoma law, and because it delayed payment of her med pay claim, there was sufficient evidence to take the question to the jury.
Burton (who was convicted of first degree manslaughter) shot and killed Savage in an apparent road rage incident. Plaintiff sued Burton for the wrongful death of her husband, claiming that Burton violently and negligently shot Savage. The court entered a judgment against Burton for $1.2 million dollars. The judgment stated there had been a trial with witnesses and evidence presented. Savage then garnished State Farm, Burton's insurer. State Farm tried to get the judgment vacated. Instead, the trial court modified it -- instead of a trial, the modified judgment stated it was based on "stipulations."
The appellate court found that the judgment should have been vacated in its entirety. There was no evidence that there was a trial. The judge did not remember one. Plaintiff was not at the "accident" and could not testify as to the facts of the accident. Neither Burton nor his attorney were present. Therefore the judgment, which should be based on what actually happens in court, rather than on what might happen, was improper. It was also improper to try to prop it up by claiming it was a judgment based on stipulations. There is nothing in the record that shows that Burton or his attorney agreed to any of the facts the court found.
This case is the first one to interpret Oklahoma's amended declaratory judgment statute. Previously, Oklahoma did not permit insurers to use the declaratory judgment statute to determine rights and liabilities under an insurance policy. Since 2004, however, the statute specifically permits such determinations. The court agreed that the plain language of the statute permitted such a determination.
In addition, the court specifically found that the intentional act of hitting someone with your car is not covered, even if the insured did not intend to cause injury. This is not so obvious as you might think in Oklahoma, since there are cases that distinguish between intentional acts and intentional injuries.
In this case, summary judgment in favor of Equity was affirmed. Garrett, the insured, admitted to intentionally bumping Hull with her car. She claimed she was trying to stop a fight between Hull and her husband and did not intend to cause Hull injury. Equity filed a declaratory judgment seeking a declaration of no coverage and no duty to defend Garrett in Hull’s action against her. The court found that under Oklahoma’s declaratory judgment statute, as amended, the trial court could properly declare whether there was coverage under the policy. The Court of Civil Appeals also affirmed that there was no coverage for the intentional act of Garrett.
In Stehm v. The Nordam Group, Inc., 2007 OK CIV APP 94, www.oscn.net/applications/oscn/deliverdocument.asp, employee claimed that he was recruited by Nordam while employed with another company. Employee was concerned about the financial stability of the airline industry, and was told that the company was financially secure due in part to substantial revenue under a specific contract. Based in part on these assurances, Employee quit his job and went to work for defendant/Employer. Plaintiff quickly learned that the specific contract had been terminated and that the person who had assured him of the company’s stability based on that contract was aware of the contract’s termination during the interview process. The trial court granted summary judgment, and the Court of Civil Appeals reversed.
There was no direct Oklahoma precedent for the claim, but the court relied upon a Colorado Court of Appeals case, Berger v. Security Pacific, 795 P.2d 1380 (1990) which found that a claim could be considered viable. Berger recognized an action brought by a terminated employee against the former employer for fraudulent concealment of a substantial known risk that a project for which the employee was being hired would be discontinued in the near future. Berger held the employer had a duty to disclose to the prospective employee facts that "in equity or good conscience should be disclosed." This is generally in line with Oklahoma law on fraud as stated in Varn v. Maloney, 1973 OK 133, 516 P.2d 1328:"It is equally well settled that the concealment of material facts which one is bound under the circumstances to disclose, may constitute fraud." . . . “A duty to speak may arise from partial disclosure, the speaker being under a duty to say nothing or to tell the whole truth. One conveying a false impression by the disclosure of some facts and the concealment of others is guilty of fraud, even though his statement is true as far as it goes, since such concealment is in effect a false representation that what is disclosed is the whole truth.”
The elements for the claim for fraudulent misrepresentation and/or concealment in hiring are (1) the employer misrepresented or concealed a material fact during the hiring process, (2) the employer had knowledge of the falsity of the fact or lacked reasonable grounds for believing it to be true, (3) the employer intended to induce the employee's reliance, (4) the employee justifiably relied upon the misrepresentation, and (5) damages resulted. Since there was some evidence on each of the required elements, and the evidence was disputed, summary judgment was improper.
Yaffe v. Great American, Case No. 06-7057 (10th Cir. 8/27/07);
After an explosion at the insured's plant, the insured's total liability was $1,785,000. Because the underlying CGL policy had a $10,000 per claim deductible (rather than a per occurrence deductible), the primary carrier paid only about half of its million dollar limits. The insured wanted its excess carrier to pay the amounts over its primary carriers' million dollar limits, but the excess carrier said it was not required to pay because the primary carrier had not paid its limits. The trial court sided with the excess carrier on summary judgment, but the Tenth Circuit reversed, finding that excess carrier's loss payable clause was ambiguous.