*1 H07 Imler, brook v. plaintiffs’ bills from the tort claim Tenny Kugler, medical & M.D. 's, Inc., Okl., a to the rendition constituted barrier of a 572, (1985). 713 P.2d 587 judgment jury plain- on the verdict for the is so force of
tiffs. This because
provisions
judg-
in
ment until all of the parties
issues between the have been re- When a counterclaim
solved.5 which
tenders issues for resolution that are in-
terrelated with the transaction or occur- litigated plaintiffs rence in the claim re- Jacqueline BARFIELD, Appellant, A. undetermined, mains a decision on the v. plaintiffs claim alone cannot constitute a Judy BARFIELD, Beth Executrix of “judgment.”6 Barfield, Deceased;
Estate of Robert E. III City and Kansas Fire & Marine Insur Company, corporation, Appel THE RATE OF POSTJUDGMENT IN- lees. TEREST TO BE APPLIED TENDERS ISSUES No. WHICH MUST 62801. BE LITIGATED AFTER REMAND Supreme of Oklahoma. Court
Judicial postjudgment determination of applied interest rate to be computa and the 21, 1987.
tion of the total amount of interest that is Rehearing 29, Sept. Denied 1987. upon due judgment today affirmed are remand.7 I litigated issues to be after hence concur in the court’s abstention from
reaching settling these issues at this
time.
I would direct that the trial court’s “judgment” decision here under re- —the
view—be vacated rather than stayed. Be- premature
cause of its rendition in ad-
vance of the counterclaim’s determination, judgment presently cannot stand.
When all the hospital’s issues raised resolved,
counterclaim have been the trial may
court then judgment reinstate its on
jury verdict plaintiff. for the
SIMMS, Justice, dissenting:
I respectfully dissent for the reasons ex
pressed my
dissenting opinion in Middle
provisions
4. The
of 12
O.S.1981
681 are:
7. Missouri-Kansas-Texas
Railroad Co. v. Ed
Okl.,
wards,
(1961);
judgment
Baptist
"A
401 P.2d
the final
303
First
determination of the
rights
parties
Church,
Okl.,
260,
Holloway,
in an action.”
Bristow v.
402 P.2d
Okl.,
(1965);
McDougal,
262
Reardon v.
524 P.2d
194,
Hurley
Hurley,
5.
v.
191 Okl.
6. Dennis v.
204 Okl.
233 P.2d
(1944)
Okl.
145 P.2d
Baldwin v.
(1951);
Seminole,
Fowler v.
196 Okl.
Okl.,
Collins,
(1971).
P.2d
(1945)
Wilson,
and Hutchison v.
(1929).
136 Okl.
Glen & Clark, City, appellant. Oklahoma H09 III, Holloway, negligence received and caused Jennings, Dob- A. James uninsured or Bachman, son, Hudson & underinsured City, Oklahoma motorists. appellees. Judy Beth Barfield and Kansas Fire Company
and Marine Insurance demurred Appellant Jacqueline petition Barfield’s WILSON, Justice: ALMA ground on the that it failed to state facts L. Barfield January Vern On *3 sufficient to constitute a cause of action killed in a E. Barfield were and Robert against City them. Kansas Fire and Ma- accident, in the course of while one-vehicle Company additionally rine Insurance an- employment. their interposed swered and affirmative defenses accident, of this fatal Robert At the time contributory negligence assumption and Barfield, for experienced truck driver risk; the and for further defense the provid- Transports, Petroleum was United company Appel- insurance asserted that brother, training on-the-job for his Vern ing alleged lant’s decedent and the underin- employment rela- began his Barfield. Vern employees sured motorist were both of the Transports Petroleum tionship with United therefore, employer, same the court did not week, passenger in and was a previous the matter, jurisdiction in have this as the lia- by Robert order the tractor-trailer driven bility employer, of the United Petroleum procedures and to learn the routes Transports, (including, employees and its transporting tanks of fuel for Unit- used alleged motorist) underinsured under Transports. ed Petroleum the Oklahoma Workers’ Act Judy is exclusive. Beth Barfield for her Barfield, surviving Judy spouse Beth wrongful and to the death answer defense Barfield, Jacqueline Ann E. and of Robert alleged action also that the district court Barfield, surviving spouse of Vern L. jurisdiction due to the exclu- was without Barfield, sought compensa- workers’ both Compen- sivity provisions of the Workers’ Trans- from United Petroleum tion benefits Act; inso- sation and further asserted that May ports and its insurance carrier. On concerned, the accident and far as she is 11, 1982, Bobby Barfield and Judy Beth resulting injuries of the decedents were the Barfield, minor son of Robert Scott accident, occurring of unavoidable result Barfield, death as were awarded benefits Barfield, E. through no fault of Robert provided by the Oklahoma Workers’ Com- deceased. 9, 1982, pensation Jacqueline Act. On Ann Barfield, Barfield was likewise awarded death Jacqueline denied all Appellant, provided benefits as the Oklahoma E. Bar- and asserted that Robert defenses L. Barfield were Compensation Act. Workers’ em- field and Vern employer so as to ployees the same Thereafter, January Jacque- on recovery under the Oklahoma Work- make brought line Ann Barfield the instant reme- Compensation Act the exclusive wrongful in district court death action dy. against Judy executrix of Beth Barfield as Kansas Barfield; Following discovery procedures, E. and the estate of Robert Company Insurance City Fire and Marine City Kansas Fire and Marine Insur- Summary Judgment pur- on her filed a Motion Company to recover husband’s Dis- 13 of the Rules Jacqueline al- suant to Rule policy. uninsured motorist reviewing file and Upon leged injuries trict Court. that her husband’s and death parties, and submitted negligence from the of Robert briefs resulted counsel, argument the trial Barfield; hearing Barfield at the time after that Robert granted summary judgment Kan- or under- court of the accident was an uninsured Compa- motorist; City Fire and Marine Insurance that at such time sas insured Jacqueline Barfield of law. ny Fire Marine Insurance as a matter Kansas contending that appeal this prosecutes motor- now Company policy had a of uninsured granting the sum- erred in in favor of the trial court ist in force effect (1) the evidence Jacqueline injuries mary judgment because and Vern L. Barfield for court test to established sub- determine whether is an inde- before district one controversy pendent status of stantial contractor or is to servant ascer- independent con- E. as an employer Robert Barfield tain right whether had the of United Petroleum control, tractor or servant purported attempted or to con- Transports, district court trol, such work, the manner doing of the exclusivity provi- upon the relying erred and if right, he did have that it exercised Act to sions the Workers’ regardless right so, of his to do the rela- employment status re-litigation of the bar tionship is that of master and servant. in this action in of the Barfield brothers Nease, Sawin v. Okl. P.2d tort; (2) company is the insurance liable (1939). case, In the instant Appellant employment the decedents’ regardless of (plaintiff-below) conceded “that her dece- status; (3) spouse “legal- decedent’s dent, Barfield, began Vern L. had his rela- recover” from the insurance ly entitled to tionship with Transports United Petroleum company the uninsured/underin- under a short time in ques- before accident question. policy in sured motorist *4 part arrangement tion. As of his with Transports, United Petroleum Vern L. Bar- I undergo to period on-the-job field was of Jacqueline that her Barfield submits training whereby go he on would hauls Barfield, decedent, indepen L. was Vern an experienced with by drivers used United dent contractor of United Petroleum Trans Transports Petroleum in order to learn ports, servant-employee. sup and not a procedures.” the routes and It is thus thereof, alleged port Mrs. Barfield that proce- uncontroverted that the “routes and by used United each driver Petroleum required implemented dures” be by to Unit- Transports provided his own vehicle and Transports ed Petroleum in drivers were responsible providing liability was in by some measure dictated United Petrole- surance for that vehicle. The drivers were Transports transportation um such and ser- required accept not to each “run” offered performed wholly according vices were not by Transports United Petroleum and were method, to the driver’s own manner and permitted to have someone else drive their free from control and of direction United truck on a run. Mrs. Barfield further al Transports. Petroleum We find the trial leged paid by that drivers were United determining court not error in did commit Transports percentage Petroleum on a ba as of on a matter law the of uncontro- basis to according sis the number they of loads verted facts that the relation between Unit- hauled, carried, gallons the of fuel and the Transports ed Petroleum and its drivers the destination of run. United Petroleum employer independent was that of not and Transports provide did not health medi Appellant’s allegations regard- contractor. cal insurance the drivers and the driv ing surrounding employ- other factors paid ers their own taxes. United Petrole relationship ment are non-decisive in law. however, Transports, um provide did for its The person decisive test as to whether a employees Compensation Workers’ Insur independent has been hired as an contrac- law; coverage, as required by and employer tor is or not the whether retains specified procedures also and routes to control to the means or methods of the implemented in transportation be of tanks exists, such per- work. If control then the of fuel for Transports. United Petroleum independent son hired is not an contractor. “independent An contractor” is one who Frymyer, Kaw 105 Okl. Boiler Works engages perform to a certain service for (1924). P. another, according manner, to his own and method, Entry In its of Judgment, and free from Journal control and direction July his employer in dated court not all matters trial did connected service, performance previous with the recite except of the as reason therefor the or product as to result or ders Compensa of the work. entered the Workers’ Hawk Rush, Ice Cream Co. v. on May Okl. Court and (1947). P.2d 154 Generally, 1982, respectively finding the decisive that Robert and
HH
(Okl.
engaged
Kay County,
in
Court
Barfield were both
Vern
of
1979).
on
Transports
Petroleum
It
employ
undisputed
of
is
alleged
United
that
However,
tortfeasor,
the date of their fatal accident.
Barfield,
Robert E.
as well as
rely
company
Appellee
did
Barfield,
Vern
acting
were
in the course
exclusivity provisions
upon the
of
scope
of
employment
their
at the time
Compensation
fact
Act and the
Workers’
question.
of the
Moreover,
accident in
it
that
Court
Workers’
has been determined on the basis of the
surviving
awarded benefits
both
uncontroverted facts that
the relation of
L.
E.
spouses of
Barfield
Robert
Vern
alleged
tortfeasor-driver, Robert E.
Appellant
why
Barfield as reason
Barfield, with United Petroleum Trans-
damages
“legally
any
entitled to recover”
ports was not
of
independent
con-
from the
of Robert E. Barfield
estate
due
tractor
to the control of United Petrole-
this action.
Transports
um
proce-
over
routes and
of
Section 12
the Oklahoma Workers’
of its
regard
dures
drivers. With
to the
Act,
seq.,
85 O.S.
et
performed
tasks
(on-the-job fuel driv-
provides
pertinent part:
training
transportation
fuel)
on
liability prescribed
“The
in Section
the date
the fatal accident
on
here
re-
of this
shall
title
be exclusive and
view,
Transports
United Petroleum
was
place
liability
other
em-
all
properly
principal
employer
and direct
ployer
any
employees, at
his
Barfield,
E.
Robert
as well as Vern L.
otherwise,
inju-
common
for such
law
Barfield. As
such United Petroleum
death,
ry,
em-
loss of services or
Transports
compensation
stood liable in
*5
representative,
ployee, spouse, personal
provisions
therefor under the
the Work-
of
parents, dependents,
any
person
or
other
Compensation
disability
Act for
[Emphasis supplied.]
...”
employees arising
death sustained
its
Appellee
The
company argues
insurance
employment,
out of and in the course of
that,
employer
since an
is liable for com
regard
consequence
In
without
to fault.
of
pensation
even
no
benefits
where there is
liability
prescribed
fault
in 11
without
§
negligence,
proper
fault or
it is
and fair to
Act,
Compensation
of the Workers’
such
liability
compensation
limit his
to
benefits
liability under
Act has been deemed
grant immunity
from common law tort
all
liabili-
place
exclusive and in
other
of
liability
negligence
where
even
there
employ-
ty
employer
any
his
part
employer
fault on the
of the
or his
Accordingly
12.
ees.
m3
OPALA,
Justice,
Co.,
(Okl.1976);
State
with
whom
HARGRAVE,
Justice,
Vice Chief
Wendt, 708
Auto
Co. v.
Farm Mut.
Ins.
LAVENDER, Justices,
HODGES
join,
(Okl.1985).
pro-
P.2d 581
The contractual
dissenting.
poli-
tection afforded
the decedent’s own
cy
con-
of insurance is thus co-existent and
The court holds that the risk carrier of
through
recovery
sistent
of benefits
with
uninsured/underinsured motorist
cov-
[UM]
erage must answer in damages
the
for
carrier of
decedent’s em-
the
of its
death
insured even though the tort-
ployer pursuant
provisions
of
feasor-motorist stands shielded from liabili-
imposi-
Act.
Workers’
The
ty by
immunity
conferred in the Work-
policies
represent
tion of
does not
a
both
join
Act.1 I cannot
The
has
windfall to
insured.
insured
pronouncement.
today’s
paid
premium
the insurer a
for unin-
purpose
The
of
statutory
mandate
protection. It
sured/underinsured motorist
coverage,
for UM
O.S.
is to
§
manifestly unjust
permit
woudl be
to
first-party protection
afford
bodily inju-
for
insurer to avoid its contractual
duty,
ry or death
to
occasioned
who is
insured
statutorily imposed liability
well as its
un-
legally
"...
damages
entitled
recover
3636, by
der 36 O.S.
its
assertion
§
operators
owners or
uninsured
from
party
immunity
entitlement
to third
tort
vehicles_”
motor
[Emphasis added.]
deny
which
the insured’s
re-
would
widow
The insurer’s liability clearly
gauged by
is
ceipt
of that
which
decedent has
that
another —the uninsured/underin-
paid
See, Keel,
premium.
supra,
Although
sured tortfeasor.
the carrier’s ex
parallel.
obligation may
contractu
be enforced un-
premises considered,
longer
The
der a
above
the sum-
statute of limitations than that
governs
which
the ex delicto claim
mary judgment of
trial
court is RE-
tortfeasor,2
an uninsured
must
insured
VERSED and this case is REMANDED for
show,
nonetheless
aas
condition
recov-
proceedings
further
consistent with
dic-
ery,
uninsured/underinsured mo-
opinion.
tates of this
for the
liability
torist bears
harmful event.
REVERSED AND REMANDED.
coverage
only
The
extends
situations
offending
which the
motorist lacks insur-
inadequately insured;
is
it
ance or
does
DOOLIN, C.J., and SIMMS and
apply
operator
when the owner or
SUMMERS, JJ., concur.
immunity
liability.
cloaked with
from
KAUGER, J.,
In the latter event
insured
cannot be
concurs
reason
who,
regarded
meaning
as one
within the
stare decisis.
legally
stands "...
entitled to
HARGRAVE, V.C.J.,
HODGES,
damages
...” the uninsured
recover
from
OPALA, JJ.,
LAVENDER and
*7
dissent.
tortfeasor.3
2.
3.
1.
Inc. v.
surance
P.2d
see in this
case of
So.2d
Carroll v. District Ct.
ny,
(workers’ compensation
overrules,
sation
33 Ill.Dec.
Cherokee
Williams,
See,
85
Williams
28
O.S.Supp.1984
681,
Uptegraft
immunity);
Harris, Okl.,
Allstate
Ill.App.3d
Company, Mich.App.
County,
684 [1983].
connection,
supra); Gray Margot
nor is its rationale in discord
v.
Country
[La.App.1981]
Ins.
v. Home Insurance
trix The UM carrier.
against her decedent’s here is not for a tort presses
demand she from the recoverable legally
loss that hence affirm I would
co-employee-driver. summary for the judgment
the trial court’s
insurer.
SAMSON RESOURCES
COMPANY, Appellant,
The CORPORATION OKLAHOMA and TXO
COMMISSION Corp., Appellees.
Production 62102.
No.
Supreme Court of Oklahoma. 1987.
As Corrected Oct. 1987.
Rehearing Sept. Denied 1987. *8 grant compensa- the exclusiveness of the workman’s to recover “would be to ...a windfall coverage, plaintiff remedy contemplated by parties never had a ... and not intended Legislature_" [Emphasis supplied.] plaintiff the tortfeasor" and to allow the