Barnes v. Oklahoma Farm Bureau Mutual Insurance Co.

2000, 31, May the effective date of this agreed comply Respondent has 7. respondent's resignation. approval Court's Governing Disci- Rule 9.1 of the Rules 1991, 1, § plinary Proceedings, 5 0.8. Ch. respondent 14 It is further ORDERED 1-A, may acknowledges he App. he and comply Governing with Rule 9.1 of the Rules practice only upon com- reinstated to law 1991, Proceedings, Disciplinary 5 O.S. Ch. procedures pliance with the conditions and 1, 1-A. App. Rules prescribed by Rule Gov- Disciplinary Proceedings, 5 erning O.S8. SUMMERS, C.J., HARGRAVE, 1-A; 1, App. Ch. V.C.J., LAVENDER, KAUGER, and disciplinary resignation pending BOUDREAU, JJ., 8. The concur. compliance proceedings respondent is in OPALA, J., T6 concurs result. Governing Disci-

with Rule 8.1 of the Rules Proceedings, plinary 5 0.8. Ch. WATT, J., with whom HODGES and 1-A; App. WINCHESTER, JJ., join dissenting. ap- Respondent's name and address 9. accept resignation I1would decline to pear on the official roster maintained and remand this matter to the PRT. back Bar Association as follows: the Oklahoma Owen, #6825, 1429 N. M. Irvin OBA Shawnee, 74801;

Broadway, Although

10. costs have been incurred complainant, Bar Associ-

by the Oklahoma matter, investigation of this ation 2000 OK 55 complainant agreed payment has to waive BARNES, Appellee, Julie Plaintiff/ by respondentofsaidcosts. and Respondent's resignation 11. should be approved. Barnes, by through Michael and friend, accepting resigna- his mother and next

12. Our Order May respondent Barnes, Plaintiff, tion of is effective as of Julie 31, 2000, ap- application the date filed in proval resignation of his FARM BUREAU MUTUAL OKLAHOMA Court. COMPANY, INSURANCE that, acknowledges Respondent 18. Defendant/Appellant. conduct, Security a result of his Client 89,745. No. claims from his former Fund receive agrees He that should the clients. Okla- Supreme Court of Oklahoma. approve pay and homa Bar Association claims, Security Fund he will such Client July 2000. principal Fund the amounts

reimburse the July Aug. and 2000. As Corrected statutory prior applicable interest and Dissenting Opinion Dec. Corrected filing any application for reinstatement. As Jan. Corrected complain- 12 It is therefore ORDERED respon- application approved ant's is accepted resignation approved

dent's 31, 2000, respondent's May

effective

right relinquished. practice law is respondent's

T8 It further ORDERED Attorneys

name be stricken from the Roll of application for rein- that he make membership

statement in the Oklahoma (5) years Bar prior Association to five

164 A, Miller,

James Dollarhide, Scimeca of Dawson White, & Shaw and E. Joe Jr. of the Firm, White Law Oklahoma, Oklahoma City, Appellee. Mills, Robert B. Stefan K. Doughty and Margaret Myers Associates, K. of Mills & P.C., City, Oklahoma, Oklahoma Appel- lant.

LAVENDER,J. (Barnes Appellee, Julie Barnes or in sured) appellant, sued Oklahoma Farm Bu (insurer) reau Mutual Company Insurance contract to recover underinsured motorist (UIM) benefits and tort for breach of the implied duty good act faith and to deal fairly with her as its insured. The trial judge granted partial summary judgment $15,000 Barnes for the policy limits and that, actions, by its had waived subrogation claim to from the tortfeasor. A jury additionally $10,000 awarded her actual punitive million damages $1.5 on the tort theory of liability, judge and the granted trial $300,000 her in attorney prior In fees. (COCA) appeal, Appeals the Court of Civil partial affirmed summary the judgment. Barnes v. Oklahoma Farm Bureau Mut. Ins. (Barnes I), Co. 1998 OK CIV APP appeal 852.1 insurer asserts relating errors theory to the tort attorney and the fee award. The COCA respects. previously affirmed all We granted certiorari review. 1) jury

T2 We presented hold: the sufficient evidence find insurer breached O.S.1991, partial summary judgment We note that the Supp. 1006. See now 12 O.S. ruling of the trial court was certified § 994. a final judgment appeal pursuant for immediate to 12 justice has been job system of in our fair faith and deal- implied case, jury-tried jury. In a reposed in the 2) err submit- judge did not trial ing; jury as the exclusive jury to the that acts it is punitive ting the issue of credibility dam- of the witnesses. statutory cap on such arbiter of lifting the or in 3) sufficiency award is not of the evidence Finally, punitive ages; 4) legal American judgment to the in an action excessive; adherence sustain attorney appellate fees cognizance is determined regarding Rule attorney tending judge's light the trial of the evidence court requires reversal it, every of that issue to reasonable support together remand fee award therefrom, rejecting all inference deducible Accord- consideration. further court for trial party judgment based on the adverse adduced ingly, we affirm evidence omitted) (citations it. conflicts with attorney fee verdict, reverse but matter back remand that award Intern., Re Inc. v. GTE Market Florafax proceedings. further court for trial sources, Inc., 1997 OK involving an applies cases The standard ON OF REVIEW I. PART STANDARD implied duty alleged breach APPEAL. dealing. fair McCorkle good faith and legal regarding The review standard T3 Atlantic Ins. Great jury a is: actions tried to 588,586. P.2d law, jury is a verdict at In an action as to the review standard 14 Unlike all disputed facts and to all as conclusive are reviewed questions, issues of law factual statements, there is and where conflicting plenary, has appellate an court de novo and reasonably tend competent evidence any authority to independent and non-deferential jury, [an verdict of the support ing to rulings. legal State reexamine a trial court's jury's not disturb appellate will court] ¶68, 4, 990 Baggett, 1999 rel. v. OK ex Jones judgment based court's the trial verdict or 235; L.L.C. v. Win Acquisition, Neil P.2d competent evidence such thereon. Where 125, 932 Corp., 1996 OK grod Investment are exists, prejudicial errors shown and no 1. 1103fn. P.2d jury instructions in the trial court's presented questions rulings legal on AND PROCEDURAL PART II. FACTUAL trial, dis will not be during the verdict BA CKGROUND.3 appeal from a In an appeal. on turbed injured in a head-on appel T5 Barnes was jury a an and decided tried case January another motorist weigh evi collision with not to late court's I, 853]; injuries her P.2d at produced [Barnes side which and determine dence treatment; fairly extensive medical required i.e. it is not an greater weight, evidence Barnes, pe physical therapist, missed a function to decide where appellate court's injuries.4 Shun due to her riods of the evidence lies- preponderance work Security Bank and Trust Park v. Di flicts with it. or circumstantial. be direct 2. Evidence Our Company, 512P.2d 1973OK may persuade the fact evidence is rect fact without evidentiary existence of a conforms to this standard. of the recitation finder drawing any necessity therefrom. inferences Farm Bureau to the extent Oklahoma Further, ¶ 14 Cordes, Inc., fn. (insurer) Sides v. John questions Company Mutual Insurance evidence credibility of 301. Circumstantial 14, 981 P.2d appellate submissions the in its must drawn which inferences that from witnesses, credibility questions these certain disputed determining fact. Id. of a the existence Court, unravel, jury not this as were for the I clear. PART makes (unless in our discussion 3. The factual matters indicated) sub- based on evidence are otherwise insured) (Barnes son minor Julie Barnes' STAN- I, PART trial. As set out mitted Any injured claim in the collision. was also REVIEW, a law appellate court in DARD OF apparently regarding [Barnes settled him was evi- is sufficient decides there action whether (Barnes I), Mut. Ins. Co. Farm Bureau Oklahoma light judgment of the evi- dence to sustain 2], 853 fn. APP it, CIV together tending support with all dence court, trial therefrom, although party the suit in the re- deducible reasonable inferences appeal. in this claim of his is involved jecting party which con- adverse evidence of the 3686(E) proper and, thus, interpretation $ Donaldson, involved, driver of other car $10,000 judicial its lability per seeking had insurance with a behavior forum to provided supposedly resolve what it person policies legit- limit. Two unin considered a 3636(E) (UM/UIM) dispute imate meaning $ as to the motorist cov sured/underinsured $15,000 could not be found erage. jury tortious. Before The one with insurer had a submission, other, limit; judge cap trial lifted the per person Farm with State punitive damages, permissively allowing the Company Automobile Mutual Insurance jury to (State punitive damages award Farm), $25,000 in an amount per person limit. exceeding that awarded for actual damages. By August T6 the end of 1991 Barnes had He also ruled the issue of whether Barnes $15,000 incurred about in medical bills. She attorney fees, was entitled to and the amount $10,000. wages also had lost over A claim thereof, subject post-verdict to his con- was made to recover UIM benefits sideration and was not an issue for August insurer and State Farm. In she also resolution and ascertainment as an item of in tort and sued Donaldson the two UIM recoverable as of her tort theo- policies. to recover insurers under both Be- ry liability, argued insurer. lieving handling of her claim over the next unreasonable, several months was Barnes PART IIA. INSURER'S TREATMENT OF supplemented petition to her sue insurer for BARNES UIM CLAIM. implied duty breach faith and Initially, appar Barnes' husband dealing fair in March 1992. ently attempted to deal with insurance judge granted T7 mid-1992 the trial accident, claim. Within weeks of the howev partial summary judgment to Barnes er, represent she retained counsel her. $15,000 policy insurer, limit and ruled adjustor An with insurer understood actions, by its had subrogation waived its February might end of 1991the matter turn 3636(E). 0.8.1991, rights under 36 How- August into an UIM claim and in he ever, $15,000 she did not receive the nor was clear, liability concluded Donaldson's seemed $10,000 finally accept she able to liability ie. negligence his caused the accident. As limit settlement from offer Donaldson and 853], set out in I Barnes P.2d at [869 the liability his carrier until I Barnes became collision occurred while Donaldson was driv {i.e. appellate final in until all avenues of ing Further, left of though the center-line. concerning partial summary judg- review the insurer itself failed to evaluate her to claim ment were exhausted insurer. Barnes I complete injuries determine the extent of her was decided in October 1998 and certiorari damages placed or and it never a total mone February review denied in Court claim, tary value on the insurer's counsel counsel, either agreed conceded to Barnes' or with him there question, was no serious her part T8 That of the suit for breach of the were, (Le. least, $50,000 damages at least implied duty good dealing of faith and fair the amount of all available insurance cover stayed pending had been resolution of the age) prior supplemented to the time Barnes I, appeal in Barnes 869 P.2d at 853. After petition her to sue for bad faith.5 I, Barnes the case returned to the trial court and the theory liability tort to a was tried evaluating 110 Instead of her claim to jury in A 1997. main defense of complete injuries insurer was: determine the extent of her handling reasonably its of the claim UIM was placing or or some reasonable value claim, based on its counsel's concerning essentially advice the on the insurer took the counsel, apparent, large 5. As will become to a extent rather than acts or omissions on its through handling directly, insurer acted subject liability. its counsel in the insurer would still be to (UIM) and, underinsured (17) motorist claim as noted ago We ruled over seventeen that an years text, in the a main liability defense was reliance on could insurer not avoid for breach of the duty good dealing by delegating faith and fair counsel's Thus, advice. sometimes when we re- referring fer to we responsibility independent insurer are either to insurer its to an contractor. directly acting by through or as its counsel. Timmons Globe Ins. Co., Royal short, duty implied good duty Even if breach of the faith owed to was, dealing part, nondelegable. and fair due to actions of its the insured is carrier is also entitled provides that UIM concerning Barnes' claim. following stance informed 1991insurer's counsel recovery (by In November any ultimate settlement tortfeasor, liability carrier Donaldson's to the extent judgment) insurer from liability his limits offer Barnes payment would made substitution behalf,. Also, $10,000 the case on his to settle tentative settlement. inform insurer did although November advice, based on its counsel's Again, $15,000 tender the Barnes' counsel it would for the making a true substitution instead of $15,000 Barnes, no check for limit to UIM intended settlement tentative February actually until was issued 8636(E)(2), actually did send to insurer her sent to Barnes or the check was never $10,000, but a draft for Barnes' counsel coun- attorney, but was retained insurer's part of check was both a maintained said reason(s) part, the check At sel. least proper $15,000 coverage and a UIM actually to Barnes be- never sent was was liability lim- the tentative substitution "dispute" regarding who parties' cause of settlement, which it be entitled its would to Donaldson's cov- would be entitled Donaldson's recover back from be- accepted if the check and erage Barnes including liability policy. assets, It his issuance, cause, Barnes prior to the check's $5,000 only it now owed her further insisted 8686(E) under given had notice to insurer $10,000 coverage. draft The under a tentative settlement with Donaldson receipt partial accompanied by a $10,000 liability "dispute" limits. his supposed to execute be- Barnes was release contention, on its based arose over insurer's the draft. This document negotiating fore $15,000 advice, paid it counsel's that onee $10,000 of its UIM released Barnes, it, entitled rather than her would be insurer and, effect, prohibited her from obligation $10,000 liability coverage to Donaldson's words, In other settling with Donaldson. right subrogation. via paid clung position that onee specific shortcomings Though multiple I 11 $10,000, it, $15,000 rather Barnes either position support Barnes' presented to were her, reap of or have a would the benefit than faith insurer breached its $10,000 rightful of entitlement claim properly in- (e.g. failure to dealing and fair and, effect, ultimate liability coverage claim, make failure to vestigate the UIM only responsibility to her was or actual UIM pay un- payment and failure to swift/prompt $5,000. amounts), her a central focus of disputed response claim was ¶13 advice, Barnes, re with her counsel's 3636(E) of a tentative settlement § notice partial receipt the re fused to execute policy liability limits with Donaldson for his it would given signature that her lease in December 1991. UIM insurers sent to both agreement insur basically acknowledge with 3636(BE)(2) that, within requires Subsection $10,000 was also position. The draft er's (60) receipt a UIM sixty days of the notice's insurer returned and her counsel demanded pay- its own either substitute carrier must her, $15,000 coverage pay in the UIM settlement amount- ment for the tentative $10,000 payment for either substitute its own pay the amount of the it must its insured ie. with liability limits settlement the tentative settlement-or, deemed to have tentative subrogation rights- or waive its Donaldson subrogation rights against the any waived have allowed Barnes the latter which would any paid under the amount tortfeasor $10,000 finally accept tentative settle the course, if the UIM carri- coverage. Of UIM liability his carrier. ment with Donaldson and substitutes, finally would not er the insured subroga its I would not waive 14 Insurer because the accept the tentative settlement position that rights or alter its tion pay- its would have substituted UIM earrier $10,000 proper under both a substitution was by the tortfeasor and for that offered ment 3636(E) $15,000in part of the UIM § and a Further, upon proper liability carrier. his it, Barnes, $10,000 it owed to substitution, benefits protecting its sub- in addition to paid under recover rights any benefits be entitled to rogation than her would rather $10,000 lability 8686(E)(2) expressly from Donaldson's § back coverage, the UIM response 16 The of State Farm-the oth- coverage. actually -It also never tendered to 3686(E) $5,000 er UIM carrier-to Barnes the additional in UIM benefits. notice was response. unlike insurer's effect, Having evaluated prevented insurer's stance settle be, least, $50,000, her claim to at State Farm Hability ment with Donaldson for his limits- merely paid $25,000, its UIM limit of without fact, unquestionably the evidence was suf claiming entitlement to recover express purpose ficient to show insurer's was payment $10,000 back from Donaldson's attempt to block Barnes' to settle with Don liability Further, coverage. concluding Don- liability aldson for his limits because insurer aldson had no assets other than the liability liability claimed entitlement coverage policy, Farm State decided not to substitute $10,000 paid $15,000 once either to her. $10,000 payment its own for the tentative prevented stance any Insurer's also final res waiving any settlement-instead subrogation olution of the required UIM claim and $25,000 rights as to its payment UIM "dispute" between it and litigated Barnes to be Barnes. .6 explained As more detail in PART III, infra, the advice insurer received from litigating pur- 15 Insurer insisted on its counsel as to how to handle Barnes' UIM pprted "dispute" though with Barnes even unreasonable; claim was patently it was con- plainly evidence was sufficient to show trary 8636; to the dictates of it conflicted any reasonable evaluation her claim would with existing jurisprudential then authority; been, least, $50,000-i.c. have the com- directly conflicted express provi- with an Hability bined limits of policy Donaldson's sion of the policy insurance insurer issued to policies, and the two UIM that insurer Further, Barnes and her husband. evidence its counsel either knew this or would and/or was support submitted sufficient to finding have known it had a reasonable evaluation attorneys represented insurer in UM/ Further, been made of her claim. insurer's UIM matters other than the counsel claim of entitlement to Donaldson's represented it in the gave Barnes' case coverage though was taken even it knew same advice to it concerning "interpreta- special damages Barnes' equaled alone tion" of adopted 8636 it in the Barnes' case (ic. $25,000 exceeded lability Donaldson's and, fact, all lawyers other representing limit) plus limit insurer's UIM and insurer insurer disagreed matters UM/UIM any did not claim entitlement credit or "interpretation" adopted. so The evi- liability by reduction as to its UIM virtue of dence was also sufficient to show reason- coverage provided by the other UIM able insurer would have understood that un- insurer, State Farm. provides derinsurance under Oklahoma law appellate In its repeatedly submissions insurer supports findings also note the record inappropriateness holding $15,000 asserts the it in bad (apparently check retained $15,000 pay faith because it offered to Barnes counsel) 7, 1992; only February was issued coverage, accept. which she refused to Al- $10,000 actually check sent to Barnes' counsel though argue tried to show and before issued 10, 1992; $15,000 February case, jury jury that such was the obvious- by by February check was voided insurer ly rejected arguments regard. its in such As we 1992; and insurer never offered to both substi- record, (or competent view the evidence reason- $10,000 tute for the tentative settlement therefrom) able inference deducible was submit- $15,000 pay coverage tortfeasor and its in UIM ted to show insurer's initial offer to $15,000 pay attempt- to Barnes. We also note that insurer's accept- was tied to its assertion that once Barnes pay which was refused the trial court-to into ed, insurer would be entitled to the tortfeasor's $15,000 already request- court after Barnes had coverage. Furthermore, as set out liability in judge supplement ed the trial to allow her to her text, insurer sent a $15,000 never check to to sue bad faith, for was not to petition required supports Barnes or her counsel and the evidence be deemed a viable defense to the bad finding part a it did reason not was be- faith claim. Otherwise, insurer, after be- position response cause of its unreasonable every to ing withholding payment, sued for bad faith 3636(E) § the 36 0.$.1991, notice that a $10,000 merely pay money payment could into court and be by it to Barnes could be considered both a substitution for the tentative settlement claim, from a bad faith no matter how protected egregious, payment offer from the tortfeasor and as a unfounded or its earlier unreasonable part coverage withholding of the UIM it payment. owed to Barnes. We conduct of attempt disputes with its to settle erage in an the tortfeasor's when an insured coverage to they right than were compen- for less UIM insureds coverage insufficient

liability coverage.7 their UIM fully owedunder injuries suffered sate the insured $15,000 to both was entitled that Barnes $10,000 Don- from coverage and RE- ADVICE INSURER PART III. THE in UIM its substituted coverage [or liability WAS UN- ITS COUNSEL aldson's FROM CEIVED 8686(E) § ]. insurer under ENTI- from equivalent THE WAS AND JURY TENABLE DID NOT FIND TLED TO INSURER findings ¶18 also warranted The evidence FAITH A HAVE REASONABLE/GOOD argu using a baseless merely insurer was THAT ADVICE. BELIEF IN "interpretation" concerning ment - - 3636(E) attempt gain a tactical § in an stated, already a main de 120 As negotiations with advantage settlement reasonably allegedly was: of insurer fense and that her claim concerning UIM Barnes concerning counsel's advice relied on its understood with insurer more officials one or 3686(E) thus, and, interpretation of proper under making a true substitution it was not judicial forum to seeking a its behavior attempting argue it could 3636(E), but considered, resolve, a le supposedly what it rights anyway. The subrogation its retain batl dispute could not be considered gitimate sufficiently that no rea showed also evidence dispute legitimate defense is faith. understood the could have insurer sonable following passage in the grounded $10,000 could be consid to Barnes draft sent Assur. v. American Home Christian substitution under true ered both 904-905: 1977OK 8636(E) and a settlement for the tentative who not hold that an insurer We do Barnes; coverage it owed to part of the UIM made its litigates a claim resists and would have reasonable but if peril that it loses does so at its insured was of its counsel the advice understood against it judgment the suit or suffers feigned/artificial at than a nothing other larger amount than it had offered for a against its or take a credit tempt to reduce be held to have breached payment, it will liability liability upon the based limit of UIM fairly faith and act tortfeasor, Donaldson. coverage of the liable in tort. thus be attempt gain Barnes the 119 With there can be dis- recognize that We negotiations advantage in settlement tactical and insured agreements between insurer unsuccessful; although, as ultimately insurable variety matters such as on a noted, actually did not receive she previously loss, interest, coverage, cause of extent of $15,000 nor was she benefits loss, policy condi- or breach of amount of finally settle with Donaldson allowed per judicial forum is not Resort to a tions. $10,000 liability coverage until Le. his dealing unfair se bad faith or all avenues of exhausted until insurer had regardless of the outcome of the insurer However, I. evi concerning Barnes appeal Rather, liability tort the suit. to show that sufficient dence was submitted only is a clear show- imposed where there Barnes was not an treatment unreasonably, and in ing that the insurer insurer, incident, but isolated faith, the claim payment of withholds bad counsel, had used the same or through its of its insured. tactic with other UIM unreasonable similar its ac basis for claims reasonable relying on an un Insurer repeatedly, i.e. insureds law, and, bad faith tions under Oklahoma cov claim to the tortfeasor's founded ing to their insureds. owed insurers such other was submitted that one 7. Evidence companies convincing types its all of insurance was successful to case insurer extends a amount less to settle for substantial insured 1981 OK Co., Atlantic Ins. v. Great [McCorkle paid in UIM bene- 583, 588], have been 128, compa- than what should applies and P.2d 637 fits. coverage. v. providing See nies Buzzard P.2d OK 824 Co., Inc., Ins. 1991 Farmers Co., 1977 v. American Home Assur. 8. Christian 1105. recogniz- leading case OK P.2d 899 is 577 implied duty and fair deal- ing faith the 171 if cannot exist an insurer's conduct was rea the tortfeasor either has no insurance or an the Manis sonable under circumstances. See satisfy insufficient amount the insured's Co., Bussard, Fire Ins. 1984 OK 681 claim. 824 P.2d at 1110. Subsec- Hartford ; Co., Inc., 8636(C) P.2d 760 Buzzard v. Farmers Ins. provides tion in pertinent part: (insurer purposes For the coverage of this the term payment litigate resist claim when "uninsured motor vehicle" shall also in- defense); Loy, it has reasonable Durbin and vehicle, clude an insured motor liability Current Status Good Faith Law in Okla limits which are less than the amount of Okla, homa, City U.L.Rev. 157-159 person the claim of persons or making (1999). claim, such regardless of the amount of coverage of parties either of the Although agree we a decision relation to each other. delay if payment, withhold based on a legitimate dispute justification or reasonable $238 (18) Eighteen months before factual) (legal or cannot form the basis of bad expressed Barnes' accident this Court liability-and faith tort such a situation an 3636(C) § meaning of following lan peril insurer does not act at its in seeking guage: "[aln insured must be allowedto look judicial dispute-the resolution of the corol liability [her UIM] insurer when the limits that, lary recognition of this is a claim must negligent prevent motorist the insured promptly paid unless the insurer has a recovering fully injuries [for] suf legally reasonable belief the claim is either Greer, fered." Farm State Auto. Ins. v.Co. Bussard, factually supra, insufficient. 943. The advice view, P.2d at 1109. In our the evidence at directly of its counsel conflicted with this trial, light readily of the law available to prior expression Court's of the meaning of insurer handling counsel when 8636(C). Here, counsel's advice was that claim, plainly findings Barnes' warranted rightful insurer had some claim to Donald legitimate dispute justification or reasonable liability coverage paid son's any once it bene existed for the manner insurer dealt with Barnes, though fits to even liability cov Barnes and that insurer did not have a rea erage clearly insufficient to allow her full sonable belief in its counsel's advice. To injuries; for her damages eq her plainly understand that the evidence was suf ualed, least, at coverage all the insurance finding ficient for a actions were available; this, and insurer knew or would unreasonable, only rudimentary apprecia have known it had a reasonable evaluation coverage tion of underinsurance motorist un Further, been made of her UIM claim. be statutory jurisprudential-is der Oklahoma law-both disputed cause insurer never that Barnes' ry.9 necessa (Donald worth, least, $25,000 claim was 00.98.1991, Title 86 limit) 3636 mandates Hability plus son's limit insurer's UIM uninsured coverage motorist be offered in and it claimed no entitlement credit or liability by reduction as to its UIM virtue of every policy insuring insurance un- vehicle Bussard, supra, coverage provided by less waived the insured. the other UIM 8636(C) 824 P.2d at 1110. in- Subsection insurer, Farm, State insurer's assertion of rightful cludes within the definition "uninsured some claim to Donaldson's motor vehicle" coverage simply vehicles which are underin- mystifying absolutely insupportable.10 and, thus, coverage applies sured where argument unaccompanied by Insurer's that its actions-based on to certiorari sent denial was 3636(E)-can- "interpretation" published explanation. unamplified its counsel's These dis- provide any not be deemed support unreasonable because one Court sents do not real (COCA) Appeals' judge put of Civil "dispute" dissented to the claimed forward insurer was a majority opinion legitimate in Barnes I and one Justice of or reasonable basis for the manner in Certainly, which it handled Barnes' UIM claim. this Court dissented to our 15, 1994 February (ie. they provide denial of certiorari review in Barnes I no conclusive indicia of same. vote) denial of certiorari was an 8 to 1 unavailing. judge Although appellate The COCA dissented without not cited in its submis- opinion way gauge and there is no fit the exact sions, relied in the trial court, part, Likewise, rationale behind the dissent. dis- Roberts v. Mid-Continent Cas. 1989 OK CIV coverage 8686(E) insurer motorist reveals the uninsured also of T 24 A review payment in- its to the substitute counsel's advice. of unreasonableness patent tentative settlement unam- sured for plain, explicit and provision-in That The uninsured motorist cover- amount. an UIM insur- language-forecloses biguous age then be entitled to attempted to do insurer shall doing what insurer er from recovery right the extent insured's of to provides: It Barnes. to any payment un- and settlement of such any per- payment to In the event of E. coverage. If der the uninsured motorist by coverage required under the son coverage motorist insurer the uninsured subject and to the terms and section pay the insured the amount of fails to coverage, the insurer conditions of such sixty within the tentative tort settlement shall, the ex- making payment to such (60) days, motorist cover- the uninsured thereof, proceeds entitled be to tent right proceeds age insurer has no to resulting any judgment or settlement of pro- any judgment, as settlement or of any rights of recov- the exercise of from herein, any paid under vided for amount any ery against person person or of such (em- coverage. uninsured motorist responsible legally organization for added) payment phasis bodily injury such for which made, proceeds recoverable including the any its Although really never set forth of insurer. of the insolvent from the assets essence, appeal, in ar- in this insurer briefs however, Provided, respect pay- to the first sentence of gued below that because coverage of the made reason ments 3636(E) provides that: the event of "[in section, C of this subsection described any person coverage payment UIM] [of payment making such shall the insurer payment making insurer such shall ... [an] recovery against any right of be entitled to proceeds any ... of settle- be entitled proceeds of the in excess such tort-feasor judgment resulting from the exer- ment or the insolvent from the assets of recovered any recovery person such rights cise fur- Provided insurer of said tortfeasor. legally any person organization against ther, payment the in- that made bodily injury for which responsible for the reduce shall not or be tort-feasor sured ]", payment made there was a rea- [ such liability against limits a credit total payment argument upon its sonable provided unin- in the insured's own $15,000 Barnes, $10,000 it was either coverage. fur- Provided sured motorist rightful had claim to entitled to or some agreement ther, tentative if a $10,000 lability This ar- Donaldson's limits. liability limits has been settle manifestly gument is untenable. tort-feasor, reached with an insured given be certified written notice shall $25 statutory inter goal coverage motorist mail to the uninsured legislative intent. pretation is to discern written no- its insured. Such Com'n, Neer v. Oklahoma Tax tice shall include: ¶ 15, statutory pro P.2d 1071. Where pecuniary and the Written documentation plain unambiguous, vision is incurred, copies including of all med- losses unmistakable, justifica meaning clear bills; ical meaning. to fabricate a different tion exists ¶ 16. reviewing a stat Further when order Id. at authorization or court Written meaning, provisions must relevant employers all ute for its reports to obtain (60) days possible, sixty together, where providers. medical Within considered notice, to each. Ledbetter v. receipt give force and effect of this written would, in- the UIM carrier support In such a situation 1121 to its stance that APP deed, lay rights paid UIM benefits to Barnes could insured's once it become entitled its coverage liability based on recovery against claim to Donaldson's the tortfeasor and the torifea- support subrogation rights. Roberts does not carrier, pays when the UIM carrier sor's Roberts, coverage stance. dam- insured the full amount to its his/her provide full sufficient present ages, one. a situation unlike the injuries. all insured's reasonable value of Beverage Laws 129 It is reading Alcoholic unmistakable from Oklahoma Enforce 83686(E)(2) § Com'n, that a payment substituted 764 P.2d ment being by tentative settlement offered 8686(E) $ one cannot 126 To understand conceivably Donaldson could not also be con merely take of context one sentence or out payment a sidered as under the UIM cover sentence, provision a but the must be age, position by taken insurer. It is also por- entirety, including the other read its unmistakable that a substitution for a tenta 3636(E) § highlighted. we have tions offer, liability tive limits settlement in order one does this it is unmistakable the When protect subrogation the UIM carrier's highlighted portion of the first sentence of rights, does not relieve the UIM carrier of 3636(E) basis, provide § in this cannot responsibility pay its to its insured the full case, for claim to Donaldson's liabil- amount coverage of underinsurance when a ity coverage. inju reasonable evaluation of the insured's ries/damages equal or exceed the limits of Firstly, we note that Barnes could not liability both the tortfeasor's coverage and merely accept by the settlement offer made coverage. correctly UIM As the COCA lability Donaldson and his carrier for his I, "[allthough noted in Barnes 'ex [insurer's] $10,000 general liability give limits and $25,000 posure' if prop this case is it had therefor, if release because she had she erly substituted Donaldson's [tentative] set forfeiting run would have the risk her own tlement, subrogated insurer would have been coverage UIM with insurer. This is so be $10,000 right only to Barnes' and would ruled in v. MFA cause this Court Porter pay out the amount that it had contracted Mut. Ins. 1982 OK 643 P.2d 302 $15,000-the provide[,]" with Barnes to i.e. voluntarily knowingly insured who subject potential latter amount also re- gives general makes a settlement with and coupment by any UIM from tortfeasor, precluded release to the available assets of the tortfeasor. bringing against an action their own UM/ only "interpreta £30 Not was counsel's UIM carrier because such action on the in unambiguous language tion" at odds with the part destroys sured's carrier's UM/UIM 8636(E)(2), contrary §of it provi was to the subrogation rights against the tortfeasor. immediately preceding so the substitution 3636(E)(1)-(2) provides Subsection a mecha 8686(E): provisions any payment "that by nism which an insured can receive the made the insured tort-feasor shall not equivalent of a offer settlement from the against reduce or be a credit the total liabili tortfeasor, protecting while the same time ty provided limits as in the insured's own subrogation rights against the UIM carrier's coverage[ provision [UIM] ]" and a wrongdoer. policy stating: "[alny it issued to Barnes protect subrogation right(s) 128 To its payment made or on behalf of under- [an once notified of a tentative limits insured motorist] shall reduce or be a settlement, a UIM carrier must "substitute against credit liability." [UIM] our limit of added).11 payment to the insured for the tentative (emphasis recognized in We settlement amount" and "then [it legislature the clear intention of the willl right entitled to the insured's 8686(E) regard proviso to the above payment any the extent of such settle- payments made a tortfeasor should ment coverage." under [UIM] injured party's recovery not diminish an un - - added). § 83636(E)(2)(emphasis Walker, If no substi- policy. der their own Chambers v. right tution is made the "insurer has no view, our proceeds any judg- settlement or was entitled to conclude was sim ment, herein, provided amount ply beyond pale legiti that insurer could paid coverage." under mately argue payment supposed [UIM] that is - 3636(E)(2). be made the UIM carrier substitution provision policy 11. The is found in the at PART OUR LIMIT OF LIABILITY. COVERAGE, E(2), C-UNINSURED MOTORIST attorney's purported reliance on its insurer's the tortfeasor-in order one offered for The subrogation We think so. protect its advice unreasonable. to was the carrier anything findings other advice warranted counsel's considered evidence rights-could unfounded; un- contrary behalf of the wholly made on it was to payment a was than meaning provi- or that it could be tortfeasor of the relevant derinsured unmistakable sion(s) used, attempted 3636; existing to use it at odds with as insurer was case, reduce, against, a credit its act as intent recognizing legislative case law coverage. liability under UIM limit of in- coverage; it was underinsurance behind provision the insurance with a consistent $31 against an In a tort case Barnes; nothing and was policy issued to implied duty of of the insurer for breach sleight hand. Sufficient than verbal other (Le. faith) dealing for bad fair good faith and presented was show evidence of the the unreasonableness it is could not have had faith/reasonable the tort. the essence of Conti that is actions that its counsel's advice was reasonable belief Co., Ins. Republic Underwriters v. provided legitimate basis for its treat- 1357, 1360; v. Na Alsobrook Instead, claim. ment of Barnes' UIM Co., 1992 CIV Ins. tional Travelers Life jury was entitled to conclude insurer Although reli APP take a unreasonably attempting to reduce or can be a de the advice of counsel ance on responsibility for against credit its own UIM suit, the reliance on bad faith fense to a offering pay Donaldson was the amount Durbin must be reasonable. counsel's advice Barnes, arguing it at the same time while Good Faith Law Loy, Current Status protect subrogation rights against could its Oklahoma, City supra, 24 Okla. U.L.Rev. unambigu- compliance with the him without Particularly applicable here is at 169-170. 8636(E). relevant terms of ous by the following statement made United Fifth Appeals for the Cireuit Court of effect, States really offered 33 In insurer never counsel defense concerning the advice of $5,000 pay any than in UIM Barnes more claim faith insurance bad in Barnes I P.2d at coverage. [869 As stated litigation: enough for the carrier to simply [It 855]: counsel, advice of however say it relied on $10,000.00 a "substi- The tendered was not unfounded, expect then that valid settlement tution" of Donaldson's insurer's coverage can be denied with claims for only portion but tender [offer] The impunity pursuant to such advice. which Barnes was due. benefits [UIM] is but one factor to be advice of counsel rationale, would ten- [it]} Under [insurer's] deciding whether carri considered $15,000.00 to Barnes and would [] der argu denying a claim was er's $10,000.00 Hability Donaldson's receive reason where, ably We believe that reasonable. benefits, payment [only] making net [its] hand, sleight through verbal advis $5,000.00. tender Or could [insurer] imagined loophole

ing attorney concocts an $10,000.00 to Barnes "substitution" plain language extends policy in a whose [offer], $10,000.00 settlement Donaldson's coverage, such advice heeded subrogation against have full [it] would carrier's risk. $10,000.00. this last Donaldson for Under Co., scenario, only Szumigala Nationwide Mutual Ins. tender [insurer] would (5th Cir.1988). Further, 853 F.2d $5,000.00 its UIM limit which would be $10,000.00 judicial inter In ei- even where there has been "substitution". after statutory case, pretation provision, really offered [insurer] of a relevant ther all $5,000.00 advice of the reasonableness of reliance on of her contracted Barnes was $15,000.00. normally question fact coverage, counsel will be a plain language of counsel where misreads approxi- actions forced Barnes into Insurer's Murphree a statute. v. Federal Ins. 'mately years unnecessary litigation two (Miss.1997). 523,532-535 So.2d claim, though even concerning her UIM injuries/dam- evaluation of her question is wheth reasonable 132 The ultimate her entitlement ages would have shown presented to show er sufficient evidence was coverage percentage the full amount of UIM from insur- limitation on such set $10,000 er and the from Donaldson's forth in apply. this section shall not equivalent [or limits settlement offer provisions B. The of this section shall be 8636(E) insurer under line ]. bottom strictly construed. here is: had before it sufficient provides Section 9 two levels for an award of evidence to find insurer's treatment punitive damages. Cordes, Sides v. John patently Barnes' claim was unreason- Inc., 36, ¶ 11, 1999OK 981 P.2d 301. Which minimum, able; at a insurer acted reckless a jury may level by consider is determined disregard duty good of of faith and fair which, either, her; if of preliminary two different dealing toward and its were actions findings by is made attempt delay judge. taken in a bad faith or the trial If Id. rightful withhold the insurance benefits to judge the trial any decides there is compe which she was entitled. tent demonstrating evidence the defendant engaged has in a wanton or reckless disre PART FIND IV. WE CAN NO ERROR another, gard rights for the oppression, of IN THE TRIAL JUDGE'S DECISIONS TO malice, presumed, fraud or actual or the THE SUBMIT ISSUE OF PUNITIVE judge jury capped must submit to the plea THE DAMAGES TO JURY OR TO LIFT punitive for damages, i.e. in an amount not THE CAP ON SUCH DAMAGES. exceeding However, damages. actual Id. if recognized 134 This Court has the judge convincing the finds clear and evidence availability punitive damages of in a bad faith of such delineated conduct must sub he/she automatic, governed by is not case but is the plea mit to jury uncapped puni the the for applicable standard in other tort cases. Buz Id.; damages. tive By Rodebush zard, supra, 824 P.2d at 1115. The statute Through Nursing Rodebush v. Oklahoma punitive controlling damages the award of in Homes, Ltd., 1993 OK 867 P.2d O.S.1991, provided: § this case was 9.12It question 1246-1247. The of whether there is A. action the breach of an convincing clear and evidence sufficient to lift contract, obligation arising not where cap presents an issue of law to be made guilty has been defendant of conduct by judge. the trial Id. convincing Clear and evineing disregard a wanton or reckless evidence is that degree proof measure or of another, rights oppression, fraud or produces in the mind of the fact finder malice, presumed, jury, actual or a firm belief or conviction as to the truth of damages, may give addition to the actual allegation(s) sought to be established. damages example, for the sake of Green, State ex rel. Bar Oklahoma Ass'n v. way defendant, punishing in an 947, 949; 1997 OK 936 P.2d Matter C. exceeding amount not the amount actual G., 637 P.2d 71 fn. 12. Provided, however, damages awarded. if challenges 135 Insurer both the trial prior at the conclusion of the evidence and judge's punitive decision submit dam- jury, to the submission of the to the case age jury find, issue to the at all and to allow the the court shall on the out record and jury damages uncapped to award such presence jury, that there is amount based on his determination there convincing clear and was evidence that the de of, least, convincing clear and evidence one guilty evincing fendant of conduct specified $ of the enumerated factors disregard rights wanton or reckless for the another, malice, oppression, already We have much of fraud or set out the evi- presumed, jury supporting actual dence the trial may give or then the court's determina- damages example, punitive for the sake of tion to the issue of submit defendant, way II, punishing supre. and the in PART to the In PART O.S.1991, repealed by apply § "[§ 9 was 1995 Okla. shall to all civil actions after 9.1] filed Laws, replaced by Sess. Ch. 23 O.S. [August Barnes filed suit 1995]." initially Cordes, Inc., Supp.1995, § 9.1. Sides v. John supplemented 1991 and in 1992 to sue for ¶ note 2 36 at 10 fn. implied supra, breach of the faith and fair case, at 304. The instant was tried however, dealing. 9.1(G) provides under 9 because influ- given under the appearing to have been explained why the advice III, have supra, we passion prejudice) was or or virtue of receiving from its counsel ence of insurer was disagree for remittitur.14 We motion been not have utterly and could untenable purpose appel by insurer. No under our current reasonably relied on the COCA because repeating these matters require was no procedural regime would be served late there subject of a here. issue be made the ment trial or remittitur order to motion for new recita quite clear from our %86 It is appellate review. preserve it for above, judge had analysis the trial tion and findings that warranted him evidence before 991(a) O.S.1991, provides $ 1 Title 12 to Barnes' actual defense insurer had no party right of a pertinent "[tlhe claim; rightful claim its assertion of appeal judgment, from a order perfect an coverage lability to Donaldson's Supreme trial court decree of the legitimate any reasonable based upon his hav shall not be conditioned Court merely feigned or con was ground, but new ing in the trial court a motion for filed advantage in attempt gain some to trived 991(a) § passage of in 1968 trial ..." Before claim; settling regard Barnes' UIM to 895, 1], Law, § in order Sess. Ch. Okla. [1968 treatment of Barnes insurer's unreasonable preserve appellate review party for a for incident, the same or an isolated but was not final or relating judgment to a an issue by repeatedly was used insurer similar tactic der, required party was to file a motion the review of the ree- with other insureds. Our v. for new trial the trial court. See Stokes there was clear and convine- ord convinces us State, 155, P.2d 59 and Benham 410 determination, supporting a at a ing evidence Keller, fn. 673P.2d 153 1. 1983OK minimum, disregard acted in reckless insurer a reexamination in the same "A new trial is finding of a rights for the of Barnes and fact, law, court, or of either or of an issue her complete indifference to its to treat both, by jury, approval after a verdict the Therefore, find no fairly.13 we UIM claim referee, by report of a or a decision of the judge's decisions to submit error in the trial State, 651; § 410 P.2d court." Stokes v. the jury punitive damage issue to the or to the 991(a), abrogat § Legislature, by at 60. The § cap damages under 9. lift the on such new trial on an the rule that a motion for ed be required was before that issue could issue PART THE PUNITIVE DAMAGE V. view, plain appeal. on In our the raised AWARDIS NOT EXCESSIVE. 991(a) party, who §of was to relieve a intent ap challenges also on 187 Insurer court, in the trial already has raised an issue peal the purported the excessiveness of $1.5 having the to raise the same burden punitive damage award assessed million through a motion for new a second time issue jury. The COCA did not reach the issue the trial. to raise on the ostensible bases insurer failed Here, was, therefore, excessiveness issue es insurer's the issue below and effect, sufficiency evi sentially challenges the of the preserved appellate review. pre punitive determined insurer failed to support the COCA million dam dence to a $1.5 and, view, challenge in our such appellate age issue for verdict serve the excessiveness appro have, preserved at all was because because insurer could review insurer have, challenged propriety the of sub priate times should raised the excessiveness issue consideration, mitting, jury's the the issue for new trial under 12 virtue of motion 651(Fourth)(excessive ©.S.1991, damages § punitive damages. Insurer demurred § supporting version of 651 because Although lift 14. We cite to the 1991 some of the evidence tried punitive damages may catego in effect at the time this matter was ing cap be it was the on judge judgment entered on and when the trial acknowledgment circumstantial, such rized as note, however, jury § judge's verdict. We decision. The the does not doom the trial slightly in but the amendments cap may properly § amended be lifted based on circum this case. See By Through have no effect on our decision in Ro stantial evidence. Rodebush Ltd., Homes, Supp. Sess. 651 and 1999 Okla. Nursing 12 O.S. v. Oklahoma debush 1248-1249. Ch. Laws, punitive P.2d at 868. Unless such a verdict on the issue Barnes' evidence 7 appears grossly in chief and excessive or the result at the close of her case damages jury's passion, prejudice improper In of the judge overruled the demurrer. the trial sympathy, it will not be conditioned on a for a directed verdict surer also asked remittitur. Id. cap punitive dam objected lifting the on of all the evidence. ages at the close punitive T41 As to the amount of quest the directed verdiet judge trial denied damages-if jury- was allowed the text, and, in PART in the as discussed IV jury's guided Instruction No. 18 discre punitive cap judge lifted the trial by setting specified tion out factors objected Finally, to sub insurer damages. Jury Oklahoma Instructions Uniform - - punitive damages to the mitting the issue (OUJT), Civil, Instruction No. 5.5. The fac objection Trial jury by of its Court virtue likely tors were: the harm caused or to be punitive Jury Instruction No. conduct; degree caused instruction, permissively allowed the conduct; wrongfuiness long how amount an punitive to award likely conduct and whether it was lasted damages.15 In view of exceeding actual continue; engaged whether insurer in other objections challenged, every these and, so, often; if similar conduct how insur turn, propriety punitive damages er's awareness of its conduct and its conse abrogation, via legislative this case and attempted quences, and whether it to conceal 991(a), conditioning appeal upon conduct; whether benefitted trial, filing for new there was no of a motion and, so, if from the conduct whether case, for insurer to ask requirement, this away; benefit should be taken the need to reexamination, by new judge the trial for a conduct; discourage others from similar and remittitur, jury million trial or $1.5 the financial resources of insurer. Insurer COCA, accordingly, erred verdict. The challenge appeal does not the substantive punitive dam failing to review the excessive regard correctness of No. 18 in to Instruction appeal. We age raised insurer on issue view, Nor, in our has such factors. insurer now address the issue. jury shown that was motivated its proper punitive amount of assessment of the though the issue 140 Even we determine improper damages by passion, prejudice or subject properly preserved and is to was sympathy. review, appellate opinion, in our no valid put by insurer to reason has been forward previ- already 42 As detailed in we have modify the amount of reverse or downward handling parts opinion, insurer's ous jury. Pu punitive damages by the awarded patently unreason- of Barnes' UIM claim was allowedfor the benefit of damages nitive are jury was entitled to find insurer able and Denton, society punishment. as Chandler absolutely had no valid defense her claim. purpose 741 P.2d 868. The 1987 OK proper jury insur- It was for the to conclude wholly provide claim reck- handling punitive damage er's of her was a award is to a upon, warning a and restraint and serve as complete less and exhibited a indifference fairly. to, its to treat the UIM claim The example wrongdoer and to deter [/d.] sufficiently any from the commission of similar others evidence showed reasonable Royal Ins. wrongs. Timmons v. Globe have understood that Barnes insurer would punitive A 653 P.2d $15,000 entitled to both the UIM was $10,000 from damage peculiarly coverage lies within the and the Donaldson's verdict liability equiva- jury casually coverage not be its substituted province [or and will Denton, 3686(E)]. Yet, appeal. lent from insurer under interfered with on Chandler v. factor, obviously given slightly enumerated because the a as an 15. The instruction was modified Jury conduct was Uniform trial court determined fraudulent version of that found at Oklahoma 5.5, Civil, (OUJI), engaged Uniform insurer. Oklahoma Instructions Instruction No. being deletion of the last sen- one modification Notes on Instructions, Civil, 5.5, Instruction Jury 5.5, provides, tence of Instruction that a trial court should include in Use, "in provides damage only type damages punitive punitive exceed the instruction event should the engaged only shown to have been awarded." The conduct amount of actual that fraud was not listed defendant. other modification was fees, deprived attorney unreasonably Barnes of was entitled to the amount insurer period of time these for an extended thereof, benefits subject post-verdiet con- his litigate her entitlement it forced her to jury sideration not an and was issue for $25,000 based on an untenable to the full resolution and ascertainment as an item of argument had some valid claim insurer as of her tort recoverable theo- liability coverage. Donaldson's ry liability. jury After the trial was con- find jury The was also entitled to cluded Barnes moved for the purported merely using a "inter- insurer was attorney judge, fees and the trial after con- 8686(E) ploy gain pretation" of as a parties' sidering legal arguments negotiations advantage tactical settlement holding evidentiary hearing, determined concerning her UIM claim and with Barnes attorney she was entitled to fees that one or more officials with insurer under- $300,000. Relying amount of on Brashier v. making stood it was not a true substitution Co., Inc., Farmers Ins. 83686(E). sup- under evidence also 20, insurer asserts that Barnes waived her ported finding reasonable right attorney to recover fees she because have understood the advice of its would coun- nothing feigned/artificial attorney sel was other than a jury failed to submit fees to the attempt against to reduce or take a credit its damage recovery an element of her for insur- liability upon limit based UIM er's bad faith treatment of her UIM claim. tortfeasor, coverage of the Donaldson. The argues Barnes Brashier does not stand for jury was also entitled to find that insurer's proposition attorney fees was a treatment of Barnes was not an isolated inci- 1) question. In that engen- Brashier has dent, insurer, by through but attorney dered confusion on fee recoverabili- counsel, had used the same or similar unrea- ty in litigation by an insured UM/UIM tactic with other insureds re- sonable hig/her 2) insurer; against Brashier does peatedly, relying i.e. on an unfounded claim support argument attorney that the liability coverage in an tortfeasor's fee issue should have been submitted to the attempt disputes in- to settle with its UIM jury for resolution anas element or item of they rightfully than sureds for less were damage theory under Barnes' tort of recov- coverage. owed under their UIM There was 3) ery; misinterpreted import Brashier the presented concerning finan- also evidence the Christian, supra potential as to the for the cial of insurer. wealth/resources recovery attorney litiga- fees in UM/UIM light presented 1 44 In of the evidence insurer; tion between an insured and his/her record, simply say we cannot a $1.5 4) Brashier, view, in our exhibited an punitive damage million award is somehow grossly passion, excessive or the result of unwarranted deviation from the American prejudice improper sympathy. To rule concerning Rule attorney the allowance of merely improper be an otherwise would re- fees, Brashier, we decide this case that to placement given by of our verdict for that plain- the extent it held a insured UM/UIM jury, willing something we are not or war- attorney tiff is entitled to recover fees as Accordingly, uphold doing. ranted in we damage common law element of for an insur- punitive damage award and determine insur- faith er's bad refusal to settle a UM/UIM er's claim of excessiveness is without merit. loss, should be overruled. We also reverse judge's attorney the trial award of fees to PART THE VI ADHERENCE TO Barnes and remand to the trial court for a THE AMERICAN RULE REGARDING determination, upon proper application of RECOVERY OF ATTORNEY RE- FEES Barnes, QUIRES' attorney as to whether fees are re- THE TRIAL REVERSAL OF FEE AND recognized JUDGE'S ATTORNEY AWARD coverable her under some ex- REMAND THAT THE TRI OF ISSUE TO Rule, and, so, ception if to the American AL COURT FOR FURTHER CONSIDER- amount of the fees recoverable.

ATION. Oklahoma, right In of a

{145 II, supra, As set out PART judge trial ruled the of whether Barnes issue litigant attorney governed to recover fees is (15%) Pump v. percent per Rule. fifteen American at the rate of TRW/Reda payable 22. year P.2d from the date the loss was Brewington, 1992 OK firmly provisions established Oklahoma of the contract pursuant Rule is This provision courts are without provides that of the verdict. This [Id.] to the date in the attorney fees ab- authority award apply to uninsured motorist shall not or a contractual specific statute added) of a sence coverage. (emphasis fees, recovery allowing the of such provision readily by the bolded lan- As can be seen has exceptions. Id. This Court certain 8629(B) uninsured motor- guage, excludes Rule exceptions the American ruled litigation ist from its ambit. Kay v. Venezuelan narrowly defined. are 1991 OK 806 Oil Sun exclusion, Notwithstanding Bro- Here, basis has or contractual no statute Christian, supra to hold that shier relied on support an award of put forward been attorney law fees were common According- Barnes. attorney fees favor of damages an insured was entitled to recover have as its basis ly, award of fees must fees were incurred or caused when such That exception the American Rule. some withholding bad faith of the the insurer's in Brashier v. exception currently found Brashier, at policy benefits. See 925 P.2d Co., Inc., supra. Ins. Farmers misinterpreted misapplied 24. Brashier case, Brasher, in present like the T47 the insured was a Christian. Christian against his UM by an insured volved a suit group disability policy. 577 participant in a implied duty for breach carrier injury leaving an P.2d at 900. He sustained dealing. 925 P.2d at 23. One and fair faith totally Id. permanently him disabled. whether, Brashier issues disability policy made claim under He faith carrier for bad against victor his UM insurer, but the insurer refused to with the loss, pay insurance the insured an refusal policy. Id. pay him under the benefits Id. at a counsel fee. was entitled to recover to re- the insurer contract Insured sued though a statute Court held even This due maximum amount benefits cover the 3629(B)] O.S.1991, expressly disallows [36 policy in the District Court of under the prevailing by the recovery of counsel fees County, Although Id. insurer re- Garvin coverage, UM party in an action to disability fully pay the claim and enforce fused to an in did not foreclose such disallowance action, appar- litigated the contract became recovery of counsel fees as from the sured have, did not during trial ent of the insured's element had, a defense to its insured's and had never pay the claim. faith refusal insurer's bad judgment won a claim. Id. The insured 8629(B) 23-25, al 27. Section benefits, plus interest. policy the maximum in recovery attorney fees for the of lows the then sued insurer in Id. The insured following in litigation the insurance-related County seeking District Court of Oklahoma language: faith insurer for its bad impose to insurer, the of the B. It shall be disability claim. Id. pay his valid refusal to loss, writ- proof to submit a receiving a of damages sought in the Okla- of the he Part rejection of the of settlement or ten offer attorney fees he County were the homa case (90) days ninety the insured within claim to County prosecuting the expended in Garvin Upon a proof of loss. receipt of of that words, attorney In the Id. other action. party, costs judgment rendered to either by the insurer's bad purportedly caused fees be allowable to the attorney fees shall pay disability claim. to his faith refusal this sec- party. purposes For of prevailing attorney in the Although T49 Christian tion, party in prevailing is the insurer the prosecuting the Garvin expended in fees not ex- judgment does those cases where sought by as County the insured action were In all offer of settlement. ceed written by purportedly caused part damages shall be the judgments the insured other pay to his faith refusal the insurer's bad If the insured is the prevailing party. claim, approve did not disability this Court rendering in prevailing party, the court damage recovery as an element their on the verdict judgment shall add interest by pay disability to orderly timely disposition caused the refusal the achieve the cases.16 claim. What Christian held was that the attorney expended prose- fees the insured in 151 To the extent Brashier held cuting County poten- the Garvin action were attorney by fees were recoverable a UM/ tially compa- recoverable from the insurance against UIM insured insurance com his/her ny-as recognized equitable exception to pany as an element of the insured's the American Rule-if the trial in court the recovery pay for a bad faith refusal brought theory second action on a tort claim, quite plain it is that Brashier misinter recovery company found the insurance had preted beyond explic Christian and went the engaged litigation misconduct the Gar- holding of the Christian court. Brashier Christian, County supra,

vin action. mentioning discussing so held without the P.2d at 906. firm establishment of the American Rule If we Oklahoma. were follow Brashier

T City 50 Christian cited to National Bank that, here we would be led to the conclusion Owens, & Trust Co. v. as a common law element of the Christian, support holding. supra, tort, by caused the the determination of the recognized 577 P.2d at 906. Owens had the by recoverable fees must made the trier equitable authority inherent of a court fact, by jury, parties ie. the unless the attorney opponent award fees when an stipulate otherwise. Such is the case be faith, litigation vexatiously, has acted in bad O.S.1991, § provides: cause wantonly oppressive or for reasons. by court, of law upheld Issues must be tried the power P.2d at 7-8. Owens the of a arising unless referred. Issues of fact attorney trial court to award limited fees recovery money, actions for the or of party litigant plaintiff engaged where a specific personal property, real or shall be following oppressive litigation actions: jury, tried unless trial bringing trial, controversy litigation waived, ordered, or a reference be as here- taking opportunity strength to test added) provided. (emphasis inafter case, and weakness of the then after evidence, close of all the after the instruc Obviously, the instant matter was a ac- law upon, tions dismissing had been decided However, recovery money. tion for the prejudice-thus matter causing without nee- we cannot continue to follow be- Brashier essary expenses to be wasted the defen cause, above, explained have we Brashier dant(s) causing parties, attorneys, holding failed to follow the of Christian as to employees citizens and court to waste a con potentiality recovery attorney for the time, money siderable amount of and effort. equitable exception fees-ie. an inherent P.2d at against 8. The fees taxed faith, vexatious, the American Rule for bad defendant(s) plaintiff were those incurred oppressive litigation wanton or misconduct. for the preparation actual trial and trial un Further, mistakenly interpreted Brashier necessarily wastefully brought about import of Christian to allow the oppressive litigation misconduct of the attorney fees as of the common law plaintiff. City Winters v. Oklahoma damages an insured was entitled to recover 63, 724, City, 1987 OK 740 P.2d 726 this on the basis such fees were incurred or by recognized caused Court withholding equitable the insurer's bad faith that the inherent power attorney of a court Instead, to award fees for policy benefits. we decide practices litigation abusive delineated Ow that Brashier should be and is to overruled ens emanated from authority the inherent improperly the extent it deviated from the manage courts to their affairs so to American as Rule. discussing pro-

16. In later cases the Owens Services, 19, Human 1990 OK. 788 P.2d 959, 962. equitable nouncement that trial courts have the The Owens is a narrow one, and it exception cases, power attorney proper to award fees in applied degree should be with a of caution and Smith, 962; this Court has stressed that the Owens declara- restraint. 788 P.2d at Wallace v. broad, Co., 24, 1056, all-encompassing tion was not one of a Halliburton 1993 OK 850 P.2d 1060-1061, Smith, theory equity. Dept. quoting supra. Smith v. State ex rel. relation with others as to placed him such Although there are situations T52 attorney him incur necessary to recover to may be able make plaintiff where interests, damages attorney protect his fees attorney as fees to fees his/her claim, neither or tort cases as one of the being a contract recoverable such either damages flowing origi- from the the instant in Brashier nor elements existent situation under v. The easiest wrongful act of the defendant. of them. nal matter is one Griffin attorney are 546, 547, fees Bredouw, example of when 420 P.2d 1966 OK stood attorney where an damages is a situa- recoverable Syllabus. involved Second Griffin attor a reasonable to recover his client sues completed purchasers of a tion where when the client rendered ney fee for services required to defend a lien and lot were house Campbell, v. pay. to See refuses Wolfe brought by suit a subcontractor foreclosure P. 506. In such 107 Okla. OK and lot the vendor of the house because properly dispute case, parties when pay wrongfully refused to the subcontractor's amount, any, if should to what issue as the erection of a fence-the vendor's bill for recovered, would be as to what the issue being pay the subcontractor's bill refusal to ren attorney fee for the services reasonable purchas- of his contract with the violation by fact to be determined an issue of dered is purchasers enti- held the were ers. Griffin presented. the evidence jury from damage in a as an item of tled to recover example of when Another P. at 506-507. vendor, the attor- against the subsequent suit as an properly recoverable attorney fees are compelled expend in ney they were to fees compa an insurance damage is when item of defending the suit the subcontractor. See in duty defend its ny has a contractual v. Security State Bank Comanche also parties brought by third from lawsuits sured Co., Inc., & 1951 OK W.R. Johnston insured, wrongfully but insurer against examples, than in the above P.2d 169. Other defend, necessitating the insured refuses normally allowed-in attorney fees are not the third counsel to defend employ his own provision or absence of a contractual suit(s) against him. Timmons brought party recovery-as allowing their specific statute 1982 OK Royal Ins. Globe in either element of or otherwise an this situation illustration of 907 is an contract or tort. See action based on an company's wrongful an insurance involved Weber, 246 P. Hertzel v. brought prior law action to defend a refusal [ passenger(s) pilot by his the insured the situ- against The situation Brashier-as P.2d at 910 and airplane crash. 653 un- present after an Barnes' matter-is in the ation words, attorney providing an Wolfe, In other with this Court like that dealt against made the insured Obviously, claims to defend Timmons Wolfe Griffin. duty the insur part of the contractual was Brashier nor the distinguishable. Neither wrongfully and was company, which attorney ance a suit matter involve instant Iowa Home also tortiously withheld. See a client for services fees from to recover Mussett, 1959 Company v. Casualty Mutual inapplicable | because Timmons is rendered. Syllabus 554 Third provide a duty existed there a contractual (insurer's compensation to defend failure brought against the insured suits defense to compensa purview worker's within claim parties, to third the insured's constitutes insurer policy issued tion by the insur- wrongfully withheld insur obligation arising from an of an breach company the insurance company-ie. ance employer may and the insured ance contract provide its insured had a contractual against law an action at maintain insured was sued legal when the counsel sustained an element recover as in the In Braskier and passengers. by his attorney fees incurred by him the reasonable dealing with the present case we are compensation claim before in defense legal withholding of wrongful or tortious Commission). Industrial the State duty, but contractual in violation of counsel mone- withholding of the wrongful with the the example is where another T53 Yet Finally, is dis- tary policy benefits. have involved wrongful acts of the defendant Griffin nor in Braskier others, because neither tinguishable or have litigation in with plaintiff the ioning claim that the conduct of attorney quest Barnes is there her fee in the trial litigation court, the insured in the insurer involved we remand to the trial give court to others, placed either in such relation opportunity with her an apply for fees under a necessary as to make it to incur recognized exception others to the American Rule. attorney protect their interests. fees As both recognized, Christian and Owens is, exception opponent one such where an view, along In our to continue the faith, engages in oppressive bad wanton or path seemingly by charted Brashier would misconduct, court, litigation a trial in the firm be to undermine the establishment of exercise of its equitable power, may inherent the American Rule Oklahoma without a attorney award fees. Whether Barnes can solid rationale or stable foundation. It would prove herself entitled to such fees under the improperly expand those also his exception will question Owens be a for the torically recognized as recoverable both upon proper presentation trial court plead short, contract and tort cases. we can no Christian, ings proof. supra, See longer teaching sanction the of Brashier and P.2d at 906.18 principle remain true to the American Rule fees, attorney excep with certain limited PART VII CONCLUSION. tions, are not recoverable the absence of provision specific statutory summary, contractual au 157 In jury presented thority allowing recovery. attorney their If sufficient evidence to find insurer breached litiga to be fees are recoverable implied UM/UIM faith and fair deal- Further, brought by against an insured ing. tion judge by the trial did not err his/her insurer, Barnes, brought submitting like that here punitive the issue of damages to view, Legislature jury our it lifting is must or in statutory cap on course, authorize such a as it has damages. appellate done for such Insurer's assertion types litigation punitive other damage award insurer/insured is excessive was 3629(B).17 review; preserved appellate however, for in- surer has failed punitive to show the damage longer 1 56 In that we have decided to no jury award of the Finally, is excessive. represents in follow Brashier because attorney award of fees to Barnes must be exposition correct of Oklahoma law as to the reversed and remanded to the trial court to recovery attorney type fees of case afford Barnes the opportunity apply support and Brashier does insurer's claim recognized exception fees under a that error virtue of occurred the trial American Rule. judge deciding attorney fee question, submitting jury rather than the issue to the Accordingly, Ap- the Court of Civil peals' VACATED; as a Opinion recoverable item of under in is the trial court faith, AFFIRMED; sured's claim for bad we must judgment reverse on verdict attorney judge. fee award of the trial judgment and the trial court attorney fees However, is REVERSED and REMANDED to the not because Barnes did have the ruling benefit of our in this case when proceedings. fash trial court for further issue, ings attorney 17. We note our decision in this case is limited to on the fee we need not rule against lawsuits insureds their insur argument UM/UIM ance on insurer's that the amount of attor companies, i.e. a situation where no statute ney granted fees was excessive and unreason provision or contractual allows for the reason, able. For the same we need not decide Farm, attorney Compare Taylor fees. v. State by failing whether the COCA erred to address the 44, 981 P.2d 1253 [non-UM/UIM bad issue on the ba excessiveness/unreasonableness O.S.1991, falling faith insurance case under 36 attorney hearing transcript sis the fee 3629(B)-where theory under tort-related attorneys' Barnes' time records were not includ damages sought the core element of appellate ed in the record. We also note that a (i.e. composed and awarded is of the insured loss allowing attorney statute exists fees in certain benefits) policy attorney the reasonable fees misconduct, O.S.1991, litigation situations for spent preparing prosecut incurred for time Wagner, § 103. See Gorst v. ing a bad faith claim are recoverable]. impact any, 1227. The if on the recoverability attorney attorney In that we reverse the trial fees in this matter court's judgment today proceed fee and remand for further reached the Court.

183 HODGES, accede, SUMMERS, C.J., targets of my message dissent do not 59 BOUDREAU, WATT, and KAUGER, solely Part VL. JJ.,

WINCHESTER, concur. OPALA, J., dissents.

T 60 OF THE CONDEMNATION HARGRAVE,V.C.J., COURTS disqualified. 1 61 BRASHIER AS DISHARMONIOUS A OPALA, J., dissenting. RESTS ON WITH CHRISTIAN ANALYSIS FLAWED today the of Court court vacates T1 The judgment on Appeals' opinion, Civil affirms set 12 v. American Assur. Co.3 Christian insureds, out but jury verdict for snuffs adopted the issue. It California tled but one in Bro- declared law life of its common will lie cause of action tort view that a counsel fee and invalidates shier1 refusal to insurer for its bad-faith against an I from cause. dissent in this awarded The actionable an insured's claim.4 settle from Brashier and death warrant inswrer's conduct quality the described of Bra- its execution. given effect retrospective ratio decidendi.5 the sole Christian's violates constitu retrospective demise shier's pressed for in Christian T3 The insured the exercise restrictions on tionally anchored attorney's ele fee as a common-law an other there are judicial power.2 While recovery.6 There, court had I ment of to which today's pronouncement points 86, Co., Inc., argued. they South Cen were later OK 1996 Ins. 1. Brashier v. Farmers briefed if Alabama, 160, 526 U.S. 169- Tele. Co. v. tral Bell P.2d 20. 925 1180, 1186, 71, 143 L.Ed.2d 258 S.Ct 119 Inc., (1999); Virginia, 525 v. Galen Roberts infirmity in the from the constitutional 2. Aside 686-87, 249, 251-54, 119 S.Ct. U.S. Brashier, retrospective su abandonment court's (1999). litigants cause in this L.Ed.2d 648 overruling pronounce today's of that pra note opportunity to been had not brief afforded sponte. and sua ment is both unforeshadowed vitality. Brashier's continued given had Unforeshadowed, the court because disenchantment; sua of its indication earlier P.2d 3. 1977 insurer-appellant ar neither sponte, because decapitation nor even gued for Brashier's conceptual underpinnings of the insur- 4. For the authority revisited. pressed Unfore- heavily, liability, if Christian drew er's bad-faith changes jurisprudence have met shadowed jurisprudence. exclusively, California not disapprobation. Supreme Court's with the U.S. Gruenberg Co., 9 Cal.3d v. Aetna Insurance See 97, 106, U.S. Huson, Oil Co. See Chevron (1973), cited as the There, (1971). 349, 355, L.Ed.2d 296 S.Ct. pronouncement. Chris the Christian anchor of ascertaining three factors for the Court isolated note 3 tian, supra pronouncement retroactivity of a new when factor is that The threshold restricted. could be decidendi, see of ratio 5. For the definition infra principle of establish a new decision must recovery elements The new tort's note 12. law, precedent overruling past clear whether settled in Christian. discussed nor were neither an litigants relied, or on have on which explication by later-devel- They were saved for impression decision is not whose of first issue oped jurisprudence. sponte changes de- clearly Sua foreshadowed. giving the without effected law, cisional when that the appellate reveal briefs in Christian 6. The advocacy instru parties opportunity to submit an attorney's sought fee as insured ments, widespread condemnation have met insured/plaintiff states damages. The element of (at 1977) page (21 Redish, Carter in chief Martin H. brief in academic literature. in his December Decision Phillips, the Rules Act: 3) pay Erie and G. the benefits refusal the insurer's Dilemma, Appropriate fairly 91 Harv. deal Search [its] a violation of "was (1977). expense connection causing "great See in this thereby him L.Rev. faith" appellate court dissenting state view of a costs, court medical for additional expense, 1976) (9 January attorney's The insurer's 439, 976 Worrall, 293 Mont. judge State v. fees." 1977) J., (25 rehearing August briefs (1999)(Gray, concurring in answer and 979-84 an item plaintiff claims as dissenting part). current U.S. In the state that expended Garvin attorney [the] urged fee in the ... practice, Supreme issues Court added). (emphasis County case." considered even petition will not be for certiorari A. opportunities to two decide whether an attor ney's fee is recoverable as an item of Suggestion Christian's For Postremand 7 - cost-shifting or as a allowance first on the Exploration Attorney's Fee Recov- ery appeal's again and then submission on reh Does Not Make Christian A Prece- Ignored By dent Brashier earing8 The court instead left the issue T unresolved until Christion Christian's invitation prius that the nisi Brashier. - explore court on applicable remand for an merely suggested that the trial judge should exception to the American Rule11 was not explore possibility remand of counsel- necessary to the declared actionability of the fee allowance as costs.9 Its statement on the insured's claim. Because the court's state subject enigmatic is at best. If does not ment in Christian did not decide the ten settle the issue. initially Brashier declares issue, dered counsel-fee it can neither be Oklahoma's common law on counsel-fee re deemed a of the court's ratio decidendi covery in a claim.10 Christian carry any precedential 12 nor force.13 The rejfect- 7. The court in Christian could have either 10. For a "declaratory theory" discussion of the adopted sought recovery by ed or counsel-fee jurisprudence, of common-law see note 39 infra distinguishing attorney's the allowance of an fee accompanying and the text. as an element of from its award as costs. This distinction has been known to Okla opinion Alyeska Pipeline The Court's Service jurisprudence homa since at least 1917. In Unit 240, 247, Society, Co. v. Wilderness 421 U.S. Supply Gillespie, ed Co. v. States 1917 OK 1612, 1616, S.Ct. 44 LEd.2d 153-159 166 P. 139, 140, the court notes that because a (1975), describes the American Rule in these "prosecution counsel fee was awarded for the words: (for present action" unlawful conversion of States, property), additionally prevailing litigant the United was not recoverable as "compensation money properly ordinarily expended for not entitled to collect a reasonable pursuit property." of the The court attorneys' observes fee from the loser. We are asked to that the statute in contest there did not "contem far-reaching exception fashion a to this 'Ameri- plate recovery attorney's compensatory fees as having Rule'; can but origin considered damages, (emphasis supplied). or as costs." See development, we are convinced that it would Center, Sports also Oliver's Inc. v. Nat'l Standard inappropriate Judiciary, leg- for the without Co., 291, 296( Ins. Opala, 615 P.2d guidance, islative to reallocate the burdens of concurring)(whenever J. in a common-law action litigation.... triable sought damages, counsel fee is Rule, In contrast English American quantum question to be allowed is a of fact postdecisional Rule calls for an across-the-board trier) (citing jurisprudence, for the Kansas Mis shifting cost- and counsel-fee in favor of the souri Merrill, Pac. Co. v. 40 Kan. Ry. 404, 19 P. victorious at party. U.S. Alyeska, supra, (1888)). 95 S.Ct. at 1616. (27 1977) August 8. The rehearing brief 12. A decision on an issue that is not before the argues page at 28 that the "erroneously court has court, judicial much like arcane observations on plaintiff's attorney held that expended fee in Gar- twice-pressed an issue but left unsettled County may vin ... be recovered in the instant opinion, - paraded court's cannot be under rehearing case." Another brief that of an ami- - successfully banner of ratio pressed cus curiae decidendi. See Burch v. Allstate for clarification aspects opinion. some other of the Co., Insurance 1998 OK 129, ¶ 12, 977 P.2d (where 1057, 1062-63 recog the court refused to 9. The sole text in Christian, note 3 at supra gratuitous nize as ratio decidendi a comment directly that addresses itself to the insured's at- opinion an earlier on an issue that was not torney's quest, fee is: court). deciding before the In both of the de Appellant attorney seeks fees he missing scribed compo instances is the critical expend prosecution forced to in the of his binding pronouncement. nent qua That sine County Garvin Ordinarily, action. attorney component supplied non in the common-law fees not be recovered in the absence of an by judicially tradition settled issue law that agreement statutory authority. Globe & Re presented required case bar resolution. public Independent Ins. Trucking Co. v. only part previous "[The of a case which is Okl., (1963). exception One binding (reason is the ratio decidendi for decid this rule litigant is that where a has acted in Precepent Cross, ing)." Rupert In EncuisH Law faith, wantonly bad oppressive or for an rea (1961). 33, 34, 35, 37-38, 61-62,77 son, court, the trial equitable in exercise of its power, may attorney City award fees. Nation (6 Wheat) 264, Virginia, 13. See Owens, Cohens v. Okl., 19 U.S. al Bank & Trust Co. v. 565 P.2d 4 (1821), (1977). 5 L.Ed. 257 appellant Justice Whether Mar- comes within the Chief Bank, exception City shall's supra, National admonition about the weakness of dicta will be question produced by upon inadequate for the trial proper court efforts in its formula- presentation pleadings proof. tion: caselaw, inquiry is subject. According to California postremand hint about Christian occurs, the insurer breach a bad-faith textwriter when As one dictum.14 obiter at most are the any damages which for to avoid is "lable observes, "wishes a court when that breach.19 Califor proximate result of creation, may take law labor of hard clearly Superior Court20 Brandt v. nia's if it were as applying a dictum easy route of 5 authoritative, rule.1 governing element of fee is an that counsel an teaches damages an ac common-law insured's B. bad- of an insurer's for vindication tion There, the court to settle. refusal faith Teachings Brashier's unequivocally held: tendered the issue resolved 15 Brashier reason tortious conduct an insurer's When undecided) (but by sanction in Christian left an at to retain ably compels the insured element recovery as an ing counsel-fee under a the benefits due torney obtain (uninsured mo damage in a UM plaintiff's be should policy, it follows that insurer torist) The court dispute. coverage bad-faith expense. action for that in a tort liable "Christian, shaped our which observed - attorney's an economic loss fees are The tort,16made coun [bad-faith] law of common by the tort caused damages proximately the insured's element of fees an sel distinguished must be These fees pay refusal to bad-faith for attorney's qua attor recovery of fees 7 reference quoted Brashier's the claim.1 fees, those attributable ney's as such unequivocal recognition of Christian's was in itself.21 faith action bringing of the bad a jurisprudence as on California reliance 'added). (emphasis in tort.18 claim the new Oklahoma model for course stayed true to the Brasher has 16 and obe entirely consistent with Brashier is jurisprudence by California charted cases on diently follows the California 14. 15. describes the to craft the norms (emphasis § 2. before taken those this maxim general considered "It 2.18 volving legal proposition dom First nouncements have cording stepped when it free Because biage implies In THs American Cappalli, By binding, precedent's is parties' statutory to dismiss such at completely year expressions are used.... in the in connection the court is may a maxim page that some other expression, facts not speaks beyond supra texts text; nonbinding in its an but serve is obvious. precedent 19, dispute, mandate imprecise users." describe dicta as precedent-issuing we investigated." Professor law not note citations of common full extent. the bounds stated before the to illustrate it Common Law investigated only "persuasive force ac- already talk as with the its successor to be every opinion, can nature of dicta: this court talk within The essential omitted). scale of Richard 3.05(g) an know that law. 12 nonbinding. This court; question disregarded that freely ignored Other opinion case in Meraop The comprising a ... is authorized weightiness. B. court courts principles such care, reason of 26. are to be [are] 0.$.1991 Cappalli, authority resolving actually opinion all ver- but ^[1997] which pro- sel- has are in- 20. 210 18. See 17. 19. Neal al Union Cal.App.4th 796, 798 caused Rptr. (1992); 320 Co., such as damages nience, protected 148 Cal.Rptr. Motorists (the Life insured "Idlamages St.3d ted). action as from the insurer's Brashier, Brandt, court Ins. (1986); Filasky (1996) ("attorney's 152 Ariz. negligence prevailing supra Cal.Rptr. v. Farmers wrongfully refuses to defend White by insurer's bad (Cal.1985). attorney's affirmed Mut. property 520, Fire Ins. Co. well as ... supra note 20 at supra note 4. 648 NE2d 869, for pain, be emotional 200.Wis.2d v. Western Title Ins. 389, 582 P.2d 40 Cal.3d compensatory Ins. entitled to party action"); 211, 907, note bad Ins. pecuniary losses rights" (emphasis fees, trigger Co. v. See also faith"). 37 1 at 24. Exchange, humiliation, in a distress and Preferred fees 870, 890, award of Cal.3d Brandenburg, attorney Cal.Rptr.2d DeChant faith, first-party bad faith Pittsburgh, ... are recoverable Helfand 980, an invasion Risk (citations 21 813, compensatory 710 P.2d 82-83 holding Co., 221 fees when attorney's N.W.2d 988 (1995) ("an v. Monarch Cal.3d an insured supplied)); v. Nation Mut. Ins. 693 295, resulting inconve expenses 72 Ohio Pa., (1978). (1987) omit- 910, 309, Cal. fee an 10 II hence followed Christian's ratio deciden- teachings, di. That state's which authorize THE COURTS CONDEMNATION OF attorney's

an fee a claim for bad-faith BRASHIER AS VIOLATIVE THE OF settle, refusal to are based on the notion that AMERICAN RULE RESTS ON ITS attorney's is a common-law element fee DISTORTED VIEW OF THE RULE plaintiff loss to the and should hence be plaintiff's damages. recoverable The {8 quintessence of the American justice Brashier dissent who authored Rule, expressed Alyeska Pipeline Service justice's Christian was no more than that Co. v. Society,23 that, Wilderness in the untimely personal disapprobation the la of statute, absence of contract or the victor jurisprudential ter development.22 Today's cannot against recover vanquished party opinion, appears begin which and end its a post-judgment allowance legal of incurred Christion, analysis utterly ignores fees.24 The American Rule strikes at the genesis Christian's common- California's English concept shifting of litiga terminated jurisprudence law subsequent - tion's costs from the party-bearer victorious growth that state's common law in abso- of party's vanquished opponent.25 It consistency tute with the teachings Bra- of meither deals with mor affects of shier. counsel damage as an element of fee - plaintiff an issue on the merits T7 Brashier should not be condemned for aggrieved Rather, party's claim. the Ameri failure to follow Christian. The latter did can targets issues, Rule postjudgment not resolve the-there tendered issue of - i.e., issues on the merits those which attorney's whether an fee is recoverable as affect one or more elements of the claim for damages. theory, patterned Christian's af- (or defense).26 relief of the jurisprudence, ter California's logically led to adoption Brashier's of the notion that an 19 Brashier does not post- authorize attorney's fee element plaintiffs of the de- judgment assessment against costs mand be submitted to the triers as an vanquished party. merely It views the ex penses issue of on the attorney's of an merits of the in- fee a necessary as sured's claim. There is hence absolutely no element damage process in the of vindicat jurisprudential warrant for condemning ing to- the insurer's breach of an implied-in-law day "departure" Brashier's from Christian. covenant to settle the insured's claim in Brashier, supra (Simms, 22. See 11, note 1 at Alyeska 247-54, 27-28 supra note 421 U.S. at 95 J., concurring part, dissenting part). S.Ct. at 1616-20. See also Moses v. Hoebel, 1982 26, 601, 646 P.2d 603. 11, Alyeska, 247, supra 23. note 421 U.S. at 95 (the S.Ct. at 1621-1622, 1627 Court 25. explains 11, note Alyeska, U.S. at supra 247-54, 95 Rule). historical antecedents of the American English S.Ct. at practice 1616-20. The awarding Since Arcambel v. Wiseman, fees dates for some actions to the time 3 U.S. 306, Dall. 306, (1796) recognized L.Ed. 613 the Court has anterior to the Statute of Gloucester in 1275. that, contract, McCormick, unless authorized statute or Charles T. Counsel Fees and Other prevailing litigant "'the ordinarily Expenses Litigation not entitled Damages, an Element to collect attorneys' 619, a reasonable (1931). fee from the 15 Minn. L. Rev. 247, Alyeska, loser." 421 U.S. at 95 S.Ct. at Nussbaum, Attorney's 1616. See Fees in Public 26. What is on or depends dehors the merits Litigation, Interest 48 N.Y.U.L.Rev. 301, 312-13 whether the issue at hand affects one or more (1973). elements of the claim for relief or elements interposed against defense that stand Shaw, 21, claim. Hadnot v. 11, note 1992 OK Alyeska, 421 U.S. at 826 P.2d supra 257, 95 There, S.Ct. the Court reaffirmed its com- 985 n. 25. The word "merits" has well- mitment narrowly-defined to certain common- meaning eg., defined in law. See, Shamblin exceptions law recognized to the rule. Those 1998 OK. 967 P.2d Beasley, 1206; Elli (1) exceptions litigant preserves are: when the or Ellison, son v. 64, ¶ 5, 1996 OK 919 P.2d 2; others; (2) recovers a fund for the benefit of Pierson v. Canupp, losing party 8; faith, when a acts vexatiously, in bad Pryse Company 552 n. Monument v. District ; wantonly, oppressive (3) reasons when Court 1979 OK 71, 595 P.2d Kay County, wilfully disobeys defendant a court order. 437-38. among law's recog Oklahoma symmetry because that harm The inclusion faith.27 - 4.e., prosecution malicious nizes tort cases the notion rests on elements expense constitutes litigation proxi settle refusal of bad-faith the tort damage. recoverable element of expenses to litigation mately produces expense litigation That detriment. insured's consequence III and immediate legitimate

ais legiti A fairly. to deal failure the actor's THE ARE WITHIN PLAINTIFFS THE which is damage is that element of mate tort AFFORD- PROTECTIONS RANGE OF act.28 by the tortfeasor's proximately caused 52, 54, §§ OKL.CONST. ED BY ART. 5 legal recovery for The Brashier-authorized confined to tort expense in a Christian A. refusal of bad-faith grows out that which winning granted for settle; it is not §§ Mandate of Art. 5 lawsuit. 54, Okl.Const. { result stems Today's flawed not be rights may 112 Substantive in turn leads analysis which court's crude defense application to a claim or changed for litiga- tort that no conclusion UM/UIM Art. 5 judicial proceeding. pending in a without may recovered be a counsel-fee tion 52, Okl.Const.30 begun un proceeding A § light In of Rule. violating American the statutory substantive applicable norms of der a re- Brashier reaches teachings,

Alyeska's law) (or in force remains then law common running on a collision stays clear of that sult legislative by after-enacted unaffected - - American Rule. course with (or pro through the effected changes those 54, § Art. 5 Okl.Const.31 judicature). cess of Singles Today's Out One Pronouncement these constitu protected under interests The Application Tort For Uneven of Subclass "accrued provisions are deemed tional American Rule mean right within the An accrued rights." of action or a "matured cause ing § 54 is of approach jurispru to its 11 The court's Once authority demand redress.32 legal not that caselaw change creates dential absolute, and has become created it has been violates the pronouncement Its evenhanded. on commenced suit has been State. 24. After note 1 at Brashier, 27. supra action, Legislature shall have any cause of action, away or power cause to take such no the court's rationale connection 28. See in this of existing destroy any to such suit. John Security v. W.R. Bank Comanche State defense of 169, 173, Co., 40, added). P.2d OK 228 & 1951 ston {emphasis of attorney's expense an element making fee Const., 54, are: OkL of Art. 5 The terms 31. Quot prosecution case. damages a malicious Acker, etc., (McGaw approval v. ing from with revive a statute repeal shall not a statute The 734), 153, 731, court Md. 73 A. statute, shall by nor repealed such previously stated: penalty right, or repeal accrued such affect incurred, begun virtue of proceedings or wrongful the defendant acts of [WJhere litigation plaintiff with repealed have involved statute. such added). relations him in such others, or placed {emphasis Crudup, expense Valley necessary v. to incur as make it Bank Pauls others First Nat. See There, interest, 914, 132, expense such costs 916-917. protect his 1982 OK operated legal consequences that as with an enactment be treated dealt should the court governing wrongful period foreclo original abridge act. a limitation materialmen's added). or certain mechanic's sure of (emphasis timely pursuant to a filed statement liens. A lien 173; Bank, supra 28 at Security note State 29. See to constitute then-existing was held statute Salisbury, OK (First Taloga v. Nat. Bank could begun" whose limitation "proceeding 318, Weber, 10, 1113); v. 292 P. Hertzel without statute an after-enacted shortened 839, 841. 246 P. offending Okl.Const. Art. 5 are: 52, Okl.Const. of Art. 30. The terms ¶ 8, 207 P.2d - OK 132 Ross, re 256; County Tulsa Com'rs Barry v. Board power revive Legislature have shall The 548, 550; Morley County, 49 P.2d 1935 OK remedy become which have any right or Hurst, time, by any statute of by lapse or barred protected legislative it is from judicial in contract fashions "a new element of dam §§ imvasion Art. 52 and Okl. ages distinguished from [creating] a new Although Const.33 these sections' commands (or remedy...." Legislative increases de are directed legislature, they creases) are no in the common-law measure of dam binding less juris the courts. Our own age changes are rights substantive prudence, no than legislature's less en applied should be prospectively only.36 actments, faithfully must conform to the fun Claims that have accrued before the law is judiciary damental law's The mandate. changed protected are legislative without a fundamental-law license to de judicial invasion.37 stroy rights.34 accrued Like the legislature, respect protection courts must C. surrounds the interests shielded the Con judicially stitution. No sponsored common- Retrospective Brashier Had Sweep Full developments

law lay can immunity claim to Brashier, 1 14 concedes, as the court is the from constitutional restraints on lawmaking ruling common-law declaration on the issue activity destroys rights. accrued of attorney's fee as an element of an action to upon recover a Christian tort. B. It governing is the common law both Teachings of Thomas v. Cumberland parties plaintiff Christian in this cause Operating Co.35 as well defending as the insurer.38 Under 113 Thomas teaches statutory that a in the Blackstonian notion "declaratory theor y,3 crease in quantum the common law recoverable independently exists 33. v. Smith, Smith 1982 OK 115, ¶ 1, 652 P.2d stitution, statutes the common law. Okla (Opala, 297, 299 n. 1 concurring); J., Oklahoma homa Water Res. Bd., note 33 at 755; supra Dist., Water Smith, Resources Bd. v. Central Okl. M.C. supra J., (Opala, note 33 at 299 n.1 con 1968 73, ¶ 23, 464 P.2d 748, 755. The curring). repeal "[A] vested cause of action, whether of a any right statute shall not by affect accrued emanating from princi contract or common-law repealed virtue of the statute. Baker v. Tulsa ples, may property beyond constitute power Building & Loan Ass'n, 1936 OK 568, 66 P.2d 45, legislature away to take ...." de Rodulfa 49. States, 1240, v. United 461 F.2d 1257 n. 96 (D.C.Cir.1972), cert. denied, 409 U.S. 949, 93 5, protection 54, 34. §§ The of Art. 52 and (1972). OKL S.Ct. 270, 34 L.Ed.2d Const., 31, supra notes 30 and must extend with equal vigor rights to accrued derived from 38. fully Brashier retrospective has That force. common rights law. Common-law cannot be impact every is ascribed to common-law decision singled out under Art. 46, Okl.Const., for a unless a explicitly different effect is stated in its treatment different from that which is accorded text. rights. other provides The Constitution no au- thority distinguishing for right one accrued from 39. See Linkletter v. Walker, 381 U.S. 618, 623, 85 another the source of law from which it is 1731, 1733-34, (1965) (un- S.Ct. 14 L.Ed.2d 601 - derived. declaratory theory, der the being "rather than judge] creator of the law [the was but its 35. 1977 OK 569 P.2d 974. For Thomas' discoverer"); Distilling James B. Beam Co. v. progeny Ltd., Jimmy see Enterprises, Roach v. D. 529, 549, Georgia, 2439, 2451, 501 U.S. 111 S.Ct. 852; Good, 1996 OK Majors (1991) (Scalia, J., 115 LEd.2d 481 concurring) (statutory 832 P.2d 420 increases or (judges though they make law "as 'finding' were restrictions damages changes recoverable are discerning it- what the law is, rather than de- rights in substantive that applied pro- must be to, creeing today what it changed is or what it spectively only). be"). will declaratory tomorrow theory The is described in Blackstone's maxim to mean that 36. The issue in Thomas was whether the statuto- "pronounce of the court is not to a new ry wrongful increase in death benefits should law, expound but to maintain and the old one." applied retroactively. This court held that Blackstone, (15th 1809). Commentaries 69 ed. "[sltatutory increases in limitations are Linkletter, 381 U.S. at 622-23, 85 supra, S.Ct. at changes rights in substantive and not mere reme- "Although 1734. judges the view that discover Thomas, changes." dial supra note 35 at 976. rather than generally create the law is attributed to Blackstone, a similar view was expressed Art. years Sir Matthew 54, Okl.Const, Hale 13 before Blackstone note supra Rights are Fisch, established in the states their con was born." Jill E. Vanishing Prece- IV is function a court's decisions judicial it has Once law. this absolute to "discover" pronouncement found, the court's SUMMARY been retrospec fully law has common declared with Chris- is consistent 116 Brashier explicitlystates opinion unless tive force with its otherwigse.41 and hence ratio decidendi law tian's pre-Brashier There was harmony law) also in It is proscribed precedential force. (statute or common model Califor- tort's recovering an attor the Christian from plaintiff Christian Recovery element as an expense jurisprudence. ney's fee common-law nia's Bra- to settle. refusal for bad-faith in a tort attorney's fee as an element common pre-existing change shier did consequence of the insurer's legitimate ignored Rather, law it "discovered" law. det- process. -It is an economic harm-dealing rehearing its decisional by Christian proximately occa- the insured riment stages. into to enter refusal by the insurer's sioned retrospec- {15 applied Brashier good-faith Because settlement. arose of action this cause the date

tively to the American stretches T17 The court tort governed the law was its com outer limits of beyond the Rule far the claim at the time coverage for UM warrant, and, without boundary mon-law insured, trial, under reached law to of unwritten that norm elevates Thomas, clearly entitled teachings of retrospective Today's fetish.42 constitutional norm of pre-existing application of departure court's application of death retrospective Today's law. substantive 5, §§ 52 and OK. Art. violates Brashier the constitu- violates Brashier warrant exempt from law is not The common Const. exercise on the restrictions tionally anchored legislation, testing. Like constitutional legislative activity both lawmaking law's muster.43 fundamental pass the must government. judicial organs Vacatur, 535-36, Dame 501 U.S. 70 Notre Beam, note it. Meets supra dent: Eduardo Hale, at 2443. (1994). S.Ct. See Matthew n. 44 L.Rev. (The Enoranp History Law or tus Common THE not have a consti Rule" does "American 42. The (1713); 1971) Ha- Chicago University Press systems. It the state-court dimension in tutional Trans- Reid, Jr., The Charles J. Berman, J. rold of self-imposed the exercise restraint on is but a Legal From Hale English Science: of formation litigation See shifting costs. power judicial 448 437, Law Journal 45 Blackstone," Emory Montgomery, Bank Reynolds First Alabama v. of (Ch. (1996); 1, sub. 12 at 21-30 Cross, note supra 1238, (Ala.1985); Fleming v. 1241 471 So.2d 7, precedent). declaratory theory div. The of 1308, 1317 646 A.2d 77, Conn. Garnett, 231 Inc., (1994); v. E.F. Hutton Group, Goodrich precedent, orthodox is a there [When "... 1039, (1996); Dalo 1043-44 Del.Supr., 681 A.2d precedent that the theory to maintain has ceased 35, 37, (D.C.1991); Kivitz, Oliver A.2d 39 596 v. fitness, the moral evidence than is no more Co., Communications Techs. Co. v. United T. Carr convenience, conformity usage public 881, (D.C.1992); v. Green Sheridan 883 A.2d 604 previous or series decision from rule derived ("The 234, (Fla. App.1980) berg, 236 391 So.2d 'properly so called" law a rule is Such decisions. attorneys' fees that in Florida is rule fundamental judges, not made it was and law because and will law derogation the common are in usage, or the originated common because it agree pursuant to a contractual only granted public justice convenience. judges' idea of & authority"); Fire statutory State Farm ment suggesting in a manner wrote once Holdsworth Co., App.3d Ill. 231 Casualty v. Miller Electric Co. [on and Blackstone views of Hale that 890, 355, 359, N.E.2d 169 596 172 Ill.Dec. jurispru- retrospective of common-law effect Wyant, 672 N.E.2d (1992); v. Comm'rs Board of twentieth-century judicial doc- represent dence] Dodge Ser v. United (Ind.Ct.App.1996); 77, 79 Cross, (emphasis supra at 22 note 12 ..." trine. (Me.1980); 975 969, A.2d Ass'n, 417 vices Auto. supplied). 413 Honda Motor American v. Waldman (1992); 404, 322, 320, 406 597 N.E.2d Mass. application of decisions retrospective 41. The 460, 446 Mich. Ass'n, Club Ins. v. Auto Popma 831, (1994). function of that "the grounded the view 521 N.W.2d based them cases before to decide [is] courts Corp., Family Finance v. Sniadach understanding 43. See current upon their best L.Ed.2d 89 S.Ct. declaratory law", U.S. reflects the in turn a view that (where says, (1969) "The fact Court law, according the courts to which theory of the a feudal pass under law, muster procedure would only not to make find the are understood retrospective Inasmuch as given prius effect that is judge; but in today's zigzag jurispru today's pronouncement destroys rights pro roadmap provided dence no to a safe har - by §§ tected I 52 and would hold that the bor for party either the insured or the change in substantive norms the state's insurer. Happy hunting, gentle ladies and applied common law cannot be to claims men! "proceedings "accrued" begun" before the date mandate in this case will have is

sued.

118 Aside distorting the American

Rule, today's pronouncement magically tran-

smogrifies the justice's ashes of one lifeless post-Christian dissent from his mere after- 2000 OK 59 thought into a viable ingredient core Christian's ratio decidendi. A NEWPORT, Sammie individually remarkable Lou judicial display personal prestidigitation! representative of the Estate Bobby Newport, deceased, D. Appel An Ode Short lee, Life of Brashier: May it Rest in Peace! v. - T Changed minds not flawed jurispru USAA, unincorporated reciprocal - dence deal Brashier the lethal blow that association, insurance today. ends life rejected authority's Appellant, doctrinal soundness will not save it from - extinction. message The core of Brashier

plainly apparent conveniently but ignored un Terry, Third-Party Donavan Defendant. til appeal now lacks legal those minds 89,791. No. stubbornly remain averse letting lay lawyer triers set the value of services. Bro- Supreme Court of Oklahoma. shier's demise is passion. driven Be July it, cause I do not share I would remain faithful to stare decisis and remand this As Corrected Aug. 2000. cause for assessment of attorney's fee that one recover as an element of

legal damages in an action for an insurer's

Christian tort.44 The solution I propose is

vastly superior to that chosen the court.

The latter sends the suit back explora for an seas,

tion uncharted filled with waters

known inhospitable to be court-spon fishing expedition.

sored Handed to the vie- by today's

tor disposition postremand is a

license to search for some statute which

would prevailed authorize one who in tort to

seek a postjudgment counsel-fee award

against vanquished enemy. Invited to come along for fantasy ride is the nisi regime gives does necessary not mean it protec are inconsistent with the basic values our con property forms"); tion to all in its heritage" mine)). modern (emphasis stitutional Shaf Heitner, 186, 212, v. 433 U.S. 97 S.Ct. fer (1977) (where said, 53 L.Ed.2d 683 it is reviewing A court direct that on remand " '[TJraditional play notions of fair and substan prius nisi court conduct a trial of less justice' tial readily can be as than all the issues on the offended merits of the claim.

perpetuation ancient longer Schumacher, that are forms Hallford justified adoption procedures new

Case Details

Case Name: Barnes v. Oklahoma Farm Bureau Mutual Insurance Co.

Court Name: Supreme Court of Oklahoma

Date Published: Jan 16, 2001

Citation: 11 P.3d 162

Docket Number: 89,745

Court Abbreviation: Okla.