606 F. Supp. 727 | W.D. Okla. | 1984
ORDER
The Plaintiff, Mary B. Duckett, brought this action against her insurer, Allstate Insurance Company, to recover damages suffered in an automobile accident with the third party Defendant, Dale L. Cheek. Duckett has since filed this Motion for Partial Summary Judgment in her favor.
The basis of Duckett’s motion is her assertion that a “limits of liability” clause in an automobile insurance policy is unenforceable under Oklahoma law inasmuch as the clause prohibits “stacking” of several medical payment provisions purchased by the insured. Allstate attacks this proposition by noting that the Supreme Court of Oklahoma has never directly addressed the issue of “stacking” of medical payment provisions; instead, that Court has addressed only the issue of “stacking” uninsured motorist coverage provisions. Allstate argues that “med pay” provisions are sufficiently distinguishable from uninsured motorist coverage that an analogy cannot be drawn between the two.
The Court concludes that the Plaintiff’s point of view represents the rule of
Nevertheless, the Court is of the opinion that partial summary judgment is inappropriate in this case. Duckett and Allstate are in disagreement as to the number of cars covered by “med pay” provisions; Duckett claims that there are six (for a “stacked” amount of $6,000), while Allstate asserts that there are only five. Thus, the Court cannot determine the amount to which Duckett is entitled as a matter of law. There being a factual dispute as to this issue, summary judgment is inappropriate. Adickes v. S.H. Kress & Co., 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970); Ando v. Great Western Sugar Co., 475 F.2d 531 (10th Cir.1973).
Accordingly, the Plaintiff’s Motion for Partial Summary Judgment is denied.