*1 v. directly judgment Walker injury and based thereon. physical found that no was Ry. St. Louis-San Francisco appellee’s aggravated by caused negligence. In the mat- ter, evidence, we find the record contains Milk Wright v. Central Oklahoma conflicting, appellant that did not albeit Ass’n, (Okla.1973), Producers P.2d 464 any compensable injury sustain from the not incon- jury a verdict is this Court held accident. awarding dam- by not sistent with itself suffering jury ages pain and where Judgment jury AF- on the verdict preexisting a driver’s arthritic could find judgment of deny- FIRMED and trial court pre- aggravated or condition had not been ing motion for new trial AFFIRMED. a accident, suffered and he had cipitated except arising out of pain discomfort no DOOLIN, C.J., HARGRAVE, V.C.J., Wright, preexisting condition. LAVENDER, SIMMS, OPALA, and inju- sought damages personal plaintiff SUMMERS, JJ., WILSON and concur. However, contended the defendant ries. KAUGER, J., concurs in result. due to the acci- injuries were not This preexisting condition. dent but is not in- jury concluded the verdict
Court proves the unless the evidence
consistent accident, pain a result of the
plaintiff’s support a is insufficient to
and the evidence pain from the acci-
finding that no resulted
dent. case, In the instant and Martha N. Buz- James C. BUZZARD injuries resulted from appellant’s zard, Individually parents and as and par- Both the accident was controverted. Buzzard, Froy Dean De- next of kin of including expert presented evidence ties Petitioners, ceased, positions. Ap- testimony support their prove by pre- pellant had the burden to she did ponderance of the evidence that McDANEL, Honorable Mike entitled to be com- injuries sustain and was Judge, Respondent. District pain suffering and pensated for her No. 68431. According jury’s expenses. to the medical Supreme Court Oklahoma. her findings, appellant did not meet burden proof. April record, the trial we After examination of erroneously Appeals conclude the Court rendered on the judgment
reversed the It is jury decision. within
unanimous jury to determine the credi-
province of the and to decide the
bility of the witnesses weight given their testimo-
effect or court, day her
ny. appellant unanimously peers jury
and the of her complaints allegedly she suf-
found the accident. not the result of the
fered were of a is
In a law action the verdict disputed all facts and all
conclusive as to statements,
conflicting and where there reasonably tending
any competent evidence ap- support jury, the verdict court the verdict
pellate will disturb *2 by Troy
ed Dean Buzzard and on another by vehicle owned the family. Buzzard policies Both contained uninsured/underin- sured provisions. motorist The date of the August accident was A report of the accident was re- by ceived Farmers day. the next An ad- juster assigned by Farmers made a state- ment on October 1982 in a letter to the State Insurance Fund that the driver of the City Norman truck primarily at fault in the January, 1983, accident. follow- ing the submission of an report by accident an accident reconstructionist hired City Norman, petitioners, of individually and as next kin Troy Buzzard, of of Dean negotiations entered into settlement City of Norman. These conferences culminated on March 1983 with a settle- ment with the City for the limits of its liability.
Throughout period filing between the of the accident report and the settlement date, petitioners counsel for were in touch regarding with Farmers their claim under provisions underinsured motorist policies insurance since the limits of the City’s liability were less than the loss claimed as a result of Troy thé death of Dean Buzzard. Farmers did not offer to provisions honor the poli- of the insurance cies, 3, 1983, and after March refused to pay, arguing that the settlement had failed preserve right to its of subrogation. subsequently Petitioners initiated an ac- alleging tion Farmers that its re- petitioners’ fusal to honor claims under the provisions poli- motorist of its petitioners cies with been bad faith. Naifeh, Naifeh & Woska Clifton D. presently At issue is an order of the trial City, petitioners. Oklahoma granting court that case Farmers’ mo- Heath, Culp, Sushnick, Percival & Perci- pursuant tion 12 O.S.Supp.1984 Truex, val John F. Percival and Mark E. 2018(D) require petitioners to first liti- City, respondent Oklahoma party real issue, gate, as a petition- in interest Farmers Ins. Inc. legally ers were entitled to recover from City of Norman before LAVENDER, Justice: Farmers’ refusal to honor Troy Dean Buzzard was killed in a traffic claims could be jury. submitted to a Peti- involving oper- accident a truck requested owned and tioners have that this Court as- ated original jurisdiction Norman. At the time sume and issue a writ of his death Company, prohibition prevent Farmers Insurance the enforcement Inc., operat- was the insurer on the vehicle of the trial court’s order. Tulsa,1 this Court essence of tort of Umholtz intentional [T]he make regard the elements which would
stated
bad faith with
to the insurance
appropriate
in the
case:
unreasonable,
hibition
industry is the insurer’s
conduct, including
unjusti-
court, officer,
bad-faith
person
has or is
1. A
withholding
payment
fied
due under a
quasi-judicial
to exercise
about
policy,
conflicting
and if there is
evidence
power.
*3
may
from which different inferences
power
2. The exercise of
is unau-
said
regarding
drawn
the
of
reasonableness
thorized
law.
conduct,
insurer’s
then
is reason-
what
power
And the exercise
3.
of that
will
always
question
a
able is
to be deter-
injury
in
for
there is no
result
which
mined
the trier of
fact
a considera-
adequate remedy.
other
tion of the
in each case.
circumstances
presence of the
here is
first element
present
petitioners’
In the
case
action
clearly
contested. The trial court is
brings
question
handling
into
Farmers’
of
exercising
power
peti-
judicial
require
to
petitioners’ claim for
the
benefits under
to a
on the
separate
tioners to submit
trial
policy.
actions, in
insurance
Farmers’
this
legal
issue of their
entitlement to recover
regard,
light
must be assessed
all the
in
of
against
City
the
of Norman.
concerning
facts known and knowable
the
here, however, is
The second element
petitioners requested
claim at
the time
Farmers,
effect,
hotly
in
main-
contested.
perform
Farmers to
its contractual obli-
question
petition-
the
of
tains that
Thus,
whether,
gations.
in
the issue of
legally
to
as
ers are
entitled
recover
fact, petitioners
legal right
had a
to recover
against
City
as to whether it
controls
City
separable
from the
of Norman is not
refusing petitioners’
in
faith in
acted
bad
question
had
from
whether Farmers
provisions
under the
of the insurance
claim
belief,
good
per-
a
faith
at the time its
petitioners.
policy contract between it and
requested,
jus-
was
that it had a
formance
argues
it
Farmers
that was within the trial
withholding payment
for
un-
tifiable reason
grant
separate
to
trial
court’s discretion
a
policy.3
der the
O.S.Supp.1984
issue under 12
on the
2018(D).
§
judge
authority
Respondent trial
had no
O.S.Supp.1984 2018(D),
any
under 12
§
contend, however,
Petitioners
that
require
provision,
petitioners
to
to
other
question
they
legally
of whether
are
enti-
separate
compa-
trial as to the
submit
sepa-
City
tled to recover from the
is not a
rative fault of the
of Norman. While
controlling
in their action
rate or
issue
2018(D),grants
tri-
O.S.Supp.1984
12
brought on a bad faith refusal to honor an
provide
separate
to
al court discretion
Therefore, petitioners
insurance contract.
for distinct issues
a case it
trials
within
argue, respondent
no au-
judge
trial
clearly does not authorize the action of the
thority
require
sepa-
to
them
to
to submit
trial court here.
question.
rate trial on the
therefore find that the second ele-
agree
position urged by
We
We
in
ment stated Umholtz v.
Tulsa
petitioners.
McCorkle v. Great Atlan-
Co.,2
clearly present.
this
stated:
tic Insurance
Court
refusal,
Farmers,
(Okla.1977).
peti
P.2d
18
but whether
at the time
1. 565
claim,
possession
made their
in
tioners
2. pay
to establish that its refusal to
information
good
attempts
faith. As
was in
Farmers
agree
argument
We do not
with Farmers’
that
issue,
question
would be whether
frame
(Okla.
Uptegraft v. Home Ins.
ited from its order of March I 1987, bifurcating the trial of cause. THE THE ANATOMY OF PETITION-
ERS’ SINGLE CLAIM AGAINST THE INSURER DOOLIN, C.J., HARGRAVE, V.C.J., gravamen The of a claim SUMMERS, SIMMS, and WILSON and withholding payment insurer for of a loss JJ., concur. unreasonable, bad-faith con- mala fide seek duct. The insurer’s decision to resort OPALA, JJ., and concur in HODGES per forum is not se bad faith or result. dealing regardless unfair of the outcome J., KAUGER, participating. Conversely, the suit.3 determination Martin, issues, always right Corp. preserving 111 inviolate the 4. See Crescent v. 443 P.2d by jury.” 1.The terms of 12 vide: therance expedition rate trial of claim, or "D. SEPARATE TRIALS. The issue or of claims, when counterclaims, of convenience or to avoid third-party and any any economy, may O.S.Supp.1984 claim, cross-claim, trials number of claim, third-party will be conducive to or of claims, order a court, 2018(D) any separate claims, prejudice, counter- in fur- cross- sepa- 3. Manis v. party to the limit of its 904 [1978]. motorist, Co., Okl., v. American The 761 [1984]; had settled with the Hartford Home statutory liability litigation Norman, McCorkle v. Great Atlantic Ins. Assur. Fire Ins. below. alleged [1981] Co., Okl., Okl., and was not a insured Christian 681 P.2d ty prescribed limit alleged tortfeasor was the loss UM/UIM Act, indicative of the Governmental Tort Claims 51 O.S. per not at fault is not se handling Supp.1984 seq. in- I continue to good faith in et insurer’s §§ my position loss. favor undimin- payment demand for Karlson sured’s ished fervor. condemnation nor exoneration Neither may be dic- of the insurer’s conduct alone forensic resolution of
tated the ultimate legal dispute the loss. The insur- over good faith is to assessed
er’s vel non totality trier from the of all the facts at the and knowable about the loss
known performance
time the insurer’s contractual sought The trial
was due. bifurcation make the UM/UIM tort-
this case would dispositive fault of the insured’s feasor’s MOORE, Scotty Appellant, Lee jury’s thus cause of action and divert from the essence of the insured’s attention good insurer’s
claim—the absence of the Oklahoma, Appellee. STATE handling of the contested casu- faith in its No. F-84-760. alty light of all the facts which were loss at the or should have been known known Appeals Court of Criminal of Oklahoma. *5 performance could rea- time the insurer’s sonably expected. have been 15, April 1987. liability clearly tortfeasor’s UM/UIM 15, Rehearing May 1987. Denied inextricably inter- presents here an issue the remainder of the insured’s twined with short, indivisible claim.4
single and liability City of Norman to
the tort of the
the insured cannot be severed stage in the first of bifurcat-
submission giving issue undue
ed trial without grava-
prominence distorting and thus claim for the insur-
men
er’s to settle UIM bad-faith refusal controversy. loss in
II NOR- THE CITY OF
THE STATUS OF AN UNDERINSURED
MAN AS
MOTORIST today’s
By joining in condemnation regime I do not judge’s bifurcation retreating from understood as
wish to be
my view in Karlson v. Oklahoma I in dissent that City.5 There counseled coverage include an insurer’s
UIM does not municipality-inflicted tort
obligation for a liabili- bodily damages in excess of the Mann v. State Farm Mut. Auto. Ins. P.2d Lewis v. Farmers Ins. [1984] 773 [1983] (Opala, (Opala, J., dissenting). Inc., Okl., J., dissenting) Co., Okl., 5. ing). Okl., 75 [1985] (Opala, J., dissent-