Aetna Casualty & Surety Co. v. Craig

OPALA, Justice, Chief Vice

concurring. AETNA CASUALTY AND SURETY COMPANY, Plaintiff, opinion

I concur in court’s write separately to the enormity underscore v. probative responsibility defendant’s Dewayne CRAIG, Lee Defendant. summary judgment movant this No. 60866. common-law action on tort based the at- theory. Supreme

tractive nuisance Court of Oklahoma. burden to demon- 21, defendant’s March 1989. genuine strate that there was no contro- versy underage plaintiff whether the over age years

—a child of 7 between injured1 possessed

when a level of hu- — maturity self-protection man which was par

on persons with ordinary adult

prudence. evidentiary materials be-

fore the trial summary judg- court at the stage ment fall short of demonstrating far capacity minor’s adult-like apprehend

danger from the specific offending instru-

mentality by required clarity proof—

undisputed support evidence that would single positive

but a inference. sum, underage plaintiff’s capacity degree

for the exercise of that of due care expected ordinary adults with prudence

discretion and stood in a state of dispute.

factual summary judgment

for the clearly defendant was hence im-

proper and cannot stand. By Cheek, 227, the norms City of Oklahoma’s common law a dence. v. Shawnee 41 Okl. age age 724, child over the is of 7 and under [1913]; of 14 Ramage Mining 137 P. v.Co. presumed capacity to lack adult for the Thomas, exer 24, 19, [1935]; 172 Okl. 44 P.2d cise of due care. The burden is cast on the 665, 1133, Woodring, Keck 201 Okl. 208 P.2d to overcome evidence the law’s defendant [1949]; Kothe, 569, McClelland v. 770 P.2d presumed incapacity. presumption This of in also, [1989]; 152(1) see 21 O.S.1981 § and Col capacity apply age does not to children over the Stamatis, 125, lier v. 63 Ariz. 14; age group the latter is considered on a 127-128 [1945]. par persons ordinary pru discretion or

Corporation, Craig personal suffered in- juries when the vehicle in which he was riding by was struck an uninsured motor- ist, Walley. Peter The vehicle in which Craig passenger was a was owned being Multi-Media and driven another Multi-Media “The defendant filed suit the Dis- trict Court of County Oklahoma Walley. Judgment was entered on a jury Craig. verdict favor of The court Craig $5,000,000.00 awarded in actual damages $5,000,000.00 damages.

“In this Casualty Aetna is seek- ing a declaration that it is not liable to Craig damages for the under the unin- provisions sured policy motorist of a it Craig’s employer, issued to Multi-Media. policy question single policy was a providing coverage of insurance for Mul- company ti-Media’s fleet of vehicles. charged [separate] Multi-Media was premium for each vehicle. Fleming, Huckaby, Frailey & Chaffin Rhodes, “The States District has City, plain- Scott M. Oklahoma [United Court] Craig determined that was an insured tiff. policy under 1 of the subsection Berry Berry, K. Ber- & P.C. Howard defined the covered insureds as: Jr., ry, City, Oklahoma for defendant. (1) (referring in- You to the named sured) any family member. SIMMS, Justice: limiting contained a clause The United States District Court for the liability, provided: Western District of Oklahoma has certified following questions pursuant law Liability. E. Limit of Our Questions the Uniform Certification of Regardless of the of covered number Act, 1601, seq.: Law O.S. et § autos, insureds, claims made or ve- (1) May injured person, 1 in- an a Class accident, hicles involved in the sured, aggregate “stack” or the unin- pay most we will for all re- coverage sured motorist on fleet of sulting any is the one accident single commercial vehicles covered limit of Uninsured Motorist Insurance policy? shown on the declarations. (2) payment Whether parties “Both filed Motions for Sum- damages under uninsured motorist insur- insurer, mary Judgment, plaintiff, ar- coverage pub- ance would contravene the guing stacking of uninsured motor- lic State Oklahoma? ist a commercial fleet provided following That Court has sum- permitted public policy is not and that mary relating questions of facts punitive damages precludes presented, reproduce which we here for under an uninsured motorist endorse- clarity. Defendant, ment. as an asserts Dewayne Craig “Defendant Lee he is entitled to stack the uninsured mo- coverages torist insurance and to recover Corporation. Multi-Media riding punitive damages.” While a vehicle owned

I. Cunningham, supra, cases. See S.E.2d at 835. questions Our answers to these fol low stare decisis. In case Babcock As Rogers: “granting summarized in Adkins, Okl., (1984), P.2d 1340 same benefits to both Class 1 insured only persons qualified as held that who place upon and the Class insured would policies may “insureds” under a series of contemplated the insurer a risk not by the pro coverage the uninsured motorist stack parties.” Goad, contracting Rogers v. 739 by policies. vided those We stated that P.2d at 522. In Rogers, we stated that the by qualifying “those insured reason of employee 2 Class insured and as passengers permissive or status as users such, only coverage entitled the to qualify beyond poli do not as insureds the provided specific the vehicle he was cy covering they the vehicle in are occupying when injured. he was The rule injured by located when uninsured mo employees, that insureds, as Class 2 torist.” 695 P.2d at 1343. single to coverage entitled the vehicle stated Later, recently above was even more re- Goad, Okl., in Rogers v. 739 P.2d holding affirmed our (1987), presented 519 we Stanton v. were with the Liability American question qualified of who Mutual Insurance as an insured Co., Okl., (1987). 945 single, under commercial fleet insurance While cases, provides specifically stated in these for a num the clear There, question answer ber vehicles. we further defined to the first certified must the distinction between Class 1 and 2 therefore be that 1 Class ONLY Class insureds deciding may stacking insureds whether stack the protec- uninsured motorist an employee/insured. available to That tion in a policy. commercial fleet insurance presented factually case a situation similar Accordingly, we answer the certi- first facing to that now the United States Dis question fied in the AFFIRMATIVE. trict Court in this case. question We note that the first certified II. employee to us the assumes to have been a respect With to question the second 1 Class insured. The correctness of the certified, rely previous we on a decision conclusion so reached the federal court this Court on the related issue whether from the facts in this case has not been punitive an insurer can be held for liable legal analysis tendered either for our damages imposed against an In insured. responsive some comment. is plainly Dayton Corporation v. Hudson American subject appellate to this Court’s review. Liability Company, Mutual Insurance deciding employee that an was a Class Okl., (1980), opinion P.2d 1155 our permitted and thus not to stack closely public policy examined the consider coverage for all vehicles covered in fleet requiring pay ations involved in insurers to policy, ap insurance this Court cited with punitive damage awards. proval the rationale used the Virginia Supreme in Cunningham emphasized Court In Dayton, Insur this Court Company America, ance primary purpose punitive damages: North 213 Va. (1972). Paraphrasing “punishment S.E.2d of the offender and the deter- Court, others, Cunningham society, we remain com rence of benefit of to practice mitted the the wrongs.” that courts can from the commission like not substitute the name of Discussing each of the P.2d at 1158. the issue from a many employees given liability of a company standpoint, recog- insurance we place employer of the public nized named insured concerns damages, and thus stretch the policy support punitive of awards of employee to include each namely punishment, all deterrence require members of his household. To do so that the ultimate burden of such would awards rewrite the parties directly wrongdoer. contract of the on By and dis rest allow- awards, tort ing as set out in our one to insure wrongdoer protected by punitive to is shifted from the dam- burden age liability arising tortious, out of innocent insurer. Ultimate- the otherwise unauthorized, acts of a course, passed is then to servant. In that ly, of the burden framework, factual higher blameless insured consuming public in the form of responsibility some limited rates, bears for failure generally. public poli- precautions against employees’ take his damages cy support by assuming tortious behavior the ultimate practice. such a thwarted punitive damages through burden of the public policy under injustice premiums. later increased He is encour- in would be pinnings of aged greater supervision to take care in the if creased even more were sanction employees prevent of other other forms position here. In this advocated misconduct. The insured is is to force the inno the result advocated receiving bargain the benefit of his equally of an in cent insurer blameless By obtaining liability insurance. wrong of a com sured to bear burden coverage, employer pro- blameless person: person a third who is mitted tecting wrongful himself from the acts of contracting any way unrelated in to the which, employees his virtue of the em- protects parties. This rewards and the ployment relationship alone, imputed wrongdoer, punishes de rather than and cases, the insured. Consistent with our early As stated in an case in the ters. however, insured/employer the when is person Fifth Circuit: “Where a is able to to, in, party acquiesces wrongful the against punishment, he insure himself acts, liability protect will gains a freedom of misconduct [which is] against punitive damages of awards as- inconsistent with the establishment of sanc his, insured’s, “posi- sessed because of such misconduct.” North against tions wrongdoing”. tive 621 P.2d at 1161. Stat- Casualty Company western National yet way, in ed another the context of (5th Cir.1962). McNulty, 307 F.2d questions presented, it is the status suggestion The that innocent insurance analogous to that as a II i.e. Class company, through subrogation, can later employee, provides liability as an which punitive damage recover the assessment potential employer liability which the wrongdoer in from the this case is a ration designed protect against. insurance is alization that borders on the nonsensical. It is the combination of the status as Quite obviously, recovery if such a were employee an insured and as a source of as possible, this case would never have arisen. potential liability employer to a blameless holding against public that it libility excep- permits which the viacarious policy of the State of Oklahoma to allow a strong public policy tion to the concerns escape consequences tortfeasor to the civil examined here. insurance, wrong through recog of his we place great reliance on the dissents rule, exception nized one narrow to that by Craig that there exists a statement employer may where the insured be held form” rider to the “South Carolina vicariously for the liable tortious behavior policy specifically which abro excep of his Under that limited gates provisions of the tion, employer’s liability imputable is damages. exclude through operation of the doctrine of re- in record. do not find this rider We Dayton Hudson Cor superior. spondeat however, part Assuming, that the rider is poration Liability v. American Mutual legal question, in it is of no Company, Insurance supra, at pol strong public effect Oklahoma. Dayton factually distinguishable state, is previously at icy of this as discussed There, arrange length, against the instant case. Court such insurance Corpora Dayton Hudson in- faced with tortious of an ments. See: Liability tion v. American Mutual Insur sured whose tortious acts unautho- were Oklahoma, Company, ance supra. Unlike employer. public rized no There is Carolina, statute, allows for in is South violated when an innocent master against direct awards of protection against person/tortfeasor. the third surance Nor is e.g.: punitive damages. See S.C.Laws it relevant to our decision that the insured 56-9-830;1 (1976) 56-9-810 and State provisions protect insurer made §§ Automobile Insurance Farm Mutual against punitive damage similar awards Hamilton, F.Supp. Company v. jurisdictions by attaching other a rider to (D.S.C.1971). obviously, any Quite contract policy providing protection. conformity statutes written elementary any should seem that contrac- directly conflict another state laws whose provision tual Oklahoma strong public policy with Oklahoma’s would public policy be would void and unenforcea- deciding no absolutely be of relevance Oklahoma, regardless degree ble in of its question presented pure Oklahoma law. acceptance in other states. misguid- The dissent Justice Wilson payment puni- We therefore hold that cursory reading the most ed in that even in- tive under uninsured motorist cases, it employees our clear that makes surance contravenes II as a an insured are Class insureds result policy of the State Oklahoma. “per- as employees, of their status QUESTIONS CERTIFIED ANSWERED. suggests. missive users” the dissent Secondly, accept if we the dis- even could C.J., HARGRAVE, and LAVENDER theory, “incorporeal entity” must sent’s DOOLIN, JJ., concur. bodies, i.e., it be mindful that is not entities, corporeal employ- KAUGER, J., specially concurs corporation, but ees are the rather I, part dissents to II. accept To its shareholders. dissent’s V.C.J., OPALA, I, part concurs in of incorporeal view existence is in part dissents II. conclude, corporation’s logically, to that the they, It shareholders are Class I. HODGES, J., part I, in dissents through corporate in- purchase stock and part concurs in II. come, premiums, pay who insurance J., SUMMERS, part, concurs in corporation’s employees. not part. in dissents insurance, se, per Nor is an issue in this case. The focus of the second certi- WILSON, J., ALMA dissents. question recovery degree fied is the of SUMMERS, Justice, concurring in by afforded Uninsured motorist dissenting part. and in which public and is consistent with the I concur substance with the court’s presented of policy this state. We are with response question the first certified and injured employee equally a of an blameless to general language response in its to the blameless insured combined an admit- partial I out second. write dissent tedly employee The blameless insurer. perhaps injured concern that our answer to grievously by a person: was third situation, question fully number two does not an uninsured In this deal tortfeasor. Although public punishment interest or with facts of case. neither question be second certified not requiring deterrence would served does include policy question the insurer the fact that its responsibility to assume the paying punitive damage a expressly against punitive award assessed terms insured applicable provisions 1. The South No such or contract be or Carolina’s shall issued provision statutes are found in 7 of Article that state’s unless it en- delivered contains a Act, Responsibility otherwise, Financial as follows: or herein as dorsement referred to 56-9-810., undertaking “§ Definitions. used arti- provision, As in his uninsured motorist cle: .... pay to all sums he be insured shall "(4) ‘damages' The term shall include both legally damages entitled recover to as punitive damages. actual and operator or of an ve- owner uninsured motor provision "§ 56-9-830. Uninsured motorist hicle, ...” rates; generally; premium de- determination of fense of action insurer. certifying The court has determined that to be the case. damages, appears such ques- motor- was a Class insured —that usual uninsured policy included the excluding pu- proffered has not specifically tion been for review. endorsement ists CG- then endorsement damages, nitive but WILSON, Justice, dissenting: ALMA that the exclu- providing was added for sion question Craig whether is a “Class to be Aetna admits this apply. should opposed as a “Class insured One” Two” so. majority errs is not before this Court. See, deciding by inferentially this issue. Corp. v. American Dayton Hudson majority I paragraph Part (Okl.1980) recog- Mutual, four already federal has opinion. The court general exception nized Craig matter of fact that determined as a allowing to cover against an insured under both “Class One” takes exception That punitive damages. policy. “Class Two” of the The Order insured is a blameless effect where the two, Question, page vicariously for the Certification of at liable employer held specifically: the insured states of his Here torts equally employer Media Inc. was Multi single policy provided “... was Walley motorist uninsured blameless—the coverage for 268 vehicles and Multi-Me- the ver- the tortfeasor whom premium each charged dia was punitive damages returned. dict “in- Craig is an vehicle. Defendant Inc. had Multi Media But addition both subsections sured” under paid for a bought (presumably) the uninsured motorist of endorsement motorist insurance of uninsured policy, attached damages. terms its covered as insured: which defines insured) (referring Where, 1. You named in this Aetna issued any family col- member. charging presumably for and policy, coverage, and lecting the for such premium Anyone occupying a covered else where, here, factually insured cov- temporary or a substitute for a auto blameless, would my propriety notions of auto.” ered considering Aetna to be offended be [.Emphasis added.] raising policy dé- estopped opinion the federal I am of the fense. Craig’s as to classifica court’s conclusion This would not let driv- approach disagree I the ma tion is correct and Walley conse- er/defendant avoid the determina opinion’s conclusion that jority Aetna wrongdoing of should quences his question of the federal court’s certified tion rights subroga- as its pursue normal simply a stare decisis. is mátter of tion—the ultimate acknowledged court the absence federal tortfeasor would fall back on the case, point, with the facts a definitive v. as.public policy Lipscombe dictates. See stating controversy by and present so Hartford, Security 213 Va. Ins. Co. of tendering question to Babcock us. (1972). 189 S.E.2d 320 (Okla.1984); Adkins, Rog P.2d 1340 v. (Okla.1987); Goad, OPA- I am to state that V.C.J. authorized v. 739 P.2d ers joins LA Liability these views. Insurance v. Mutual Stanton (Okla.1987), Co., the cases 747 P.2d 945 KAUGER, concurring specially Justice dispositve majority opinion as cited in I, dissenting part II and part decisis, not involve did by reason of stare SUMMERS, J., insofar joining during the employee/agent insured an damages are concerned. for a employment scope and course of Moreover, ci corporate named insured. injured person, a Class an I concur that cases, supra, previous our cov- tations within motorist may uninsured stack “commit represent precedential do not vehicles erage on fleet of commercial a application beyond their single policy. The ments” covered this Court facts which were before at the not authorize this Court to reverse a feder- time cases were decided. To be those thus al court’s factual determination in its an- bound, dietim, governed is to be obiter questions I, swer to certified of law. Part ignore integrity factual to. four, paragraph majority opinion every presented each case this Court does so reference to dietim in a case for its merit. own distinguishable upon its own facts. If one parties or more of the to challenge wishes Adkins, supra, The case of Babcock v. determination, the federal court’s factual proposition permis- stands for the that true appropriate place to do so is in the may stack, i.e., persons sive users who circuit, federal tenth not in state court. coverage are entitled to uninsured motorist only occupants, because their status as Finally, in the case of Stanton v. Ameri i.e., “permissive present users”. can Mutual Liability Compa Insurance case, Craig’s status is not that of a mere ny, supra, this respect Court with to a occupant permissive in the user vehicle “permissive user” noted that: insured, therefore, of an unrelated named accident, “At the time Stanton dispositive. is not Babcock acting was not in the course of his em- Additionally, in the Rogers Case of v. ployment, but he was authorized to use Goad, (wherein supra, concurred), I no- personal vehicle his use as is it where stated therein that the compensation of his with Fuller.” [Em- triggered consequence as a phasis added.] agency status of the To the underlying Our rationale in Stanton was contrary, the issue in Rogers was charac- Goad, Rogers present- v. “because Rogers terized “permissive-user” as whether a analogous ed most situation to the mat- employee may stack uninsured motorist ter Stanton, before us.” at 946. [then] employer’s under his automobile However, the situation manifest in both fleet policy. permissive A user and Rogers factually Stanton distin- is one who is entitled to uninsured motorist guishable present corporate agency coverage only because of one’s status Therefore, situation. those cases do not occupant. Babcock, See, supra. an In the provide precedent. here My clear rationale present occupancy alone does not con- for the distinction is two-fold: gravamen stitute of the factual scenar- First, the “named incorpo insured” is an Here, Dewayne io. Craig simply is not (without physical real body) entity, princi permissive user occupancy reason of pal through agents. which can act its relationship without further to the named East Central Oklahoma Coop. Electric insured. At the in question, per- time this Co., Oklahoma Gas and Electric acting son was in the capacity agent (Okla.1973). corporation A nothing for the sole benefit of named robot, more law, than a created Craig’s insured. insurability thus arises only possessing sensibility that which its only not occupancy because of in a covered management agents bring to Wrig it. vehicle, but because of his relationship to ley Nottingham, 404, v. 111 Ga.App. corporate named insured. “Relation- (1965); and, expressed S.E.2d 859 still ship an to Named Insured” vis-a-vis “Occu- way, corporation other pancy an Covered Vehicle” more accurately artificial legal person intangible, embrace the invisible and so-called “Class One/Class Two” can through distinction. act its Accordingly, officers and the federal agents. correctly Gas, Inc., court here Rapid Aimonetto v. Craig's assessed status 453, encompass (1964). categories. corpo both S.D. N.W.2d 116 A re- this spect, abstraction, even were ration is no more an the federal than court’s factual incorrect, determination an abstraction against cannot be insured Cer- Uniform Questions physical Thus, Act, bodily injury. pol Law 20 O.S. when the tification of 1981 1601 et seq., icy’s is the sole basis for the uninsured motorist bodily injury § [UM] presentation questions provisions triggered consequence law to this aas Court a federal agent court and that Act does of the status of an acting at the agent Multi-Media, premium con insured that for which a has been behest of princi collected, reaps the abstract en- unjust constitutes insurer an structively Multi-Media, For insured. the named richment. pal, agent here is practical purposes, the all Similarly, of its of insur- Independent merely “Dewayne Craig—an ance, premium puni- Aetna collected a for is, “Multi-Media—the Occupant”, but whereby damages coverage, tive it volun- Insured”, for Multi-Media cannot Named tarily contracted to assume the risk of a through agents. other him and except act punitive damages recovery. I do not view agent may or Central, supra. An East coming auspices this contract as within corpora of the may a shareholder not be any exception established time; but sharehold any particular at tion of the very punitive and denial agents at all remain ers cannot contracted for is tantamount times, taken and for it is action unjust an enrichment. additional identity which is determinative. individual I dissent. Thus, insurability is not the focus rather insur- employment; mere but fact of upon prin

ability context rests in this relationship whereby

cipal/agent those of the

agent’s are in law actions Otherwise, the

principal named insured. designation illusory an UM

“Class One”

classification, body physical is no there personal injury by an

to insure Though incorpore

uninsured motorist. (i.e., vehicles), may property own entity al TUCSON, BANK OF UNION body, except that physical it has no human ARIZONA, Appellant, opin I am agents. of its therefore inju purpose bodily of UM ion that for v. coverage, designa insured”

ry the “named GRIFFIN, Tag Cynthia Bethany d/b/a acting in the tion refers to those here Agency, Appellee. scope corporation’s au course and thority agents, they any 62178. whether at No. —the employees, specially officers one time be Supreme Court of Oklahoma. upon designated agents, depending presented under facts agency question March logi of each This the natural and case. premise consequence

cal the settled

any attempt to tie uninsured motorist cov alone,

erage people, and not to vehicles Mut. Ins.

must fail. Farm Auto. State (Okla.1985); Wendt, v.

Co. see,

also Cothren Emcasco Insurance (Okla.1976). 555 P.2d 1037

Company, separate

Secondly, premi- mo-

ums have been collected uninsured coverage. premiums separate

torist Where company an insurance collected provision of uninsured motorist cover-

age, upon insured is entitled recover separate coverage purchased.

each Keel Co., (Okla.1976);

MFA 553 P.2d 153 Ins. Co.,

Richardson v. Allstate Ins. (Okla.1980). withholding from an

Case Details

Case Name: Aetna Casualty & Surety Co. v. Craig

Court Name: Supreme Court of Oklahoma

Date Published: Mar 21, 1989

Citation: 771 P.2d 212

Docket Number: 60866

Court Abbreviation: Okla.