TOKIKO JOHNSON, Plaintiff, and TRIPLE DIAMOND CONSTRUCTION LLC, Plaintiff/Appellant, v. CSAA GENERAL INSURANCE COMPANY, CSAA INSURANCE EXCHANGE, CSAA FIRE AND CASUALTY INSURANCE COMPANY d/b/a AAA FIRE & INSURANCE COMPANY, and AUTOMOBILE CLUB OF OKLAHOMA d/b/a AAA OKLAHOMA, Defendants/Appellees.
Case Number: 118689
THE SUPREME COURT OF THE STATE OF OKLAHOMA
Decided: 12/15/2020
2020 OK 110, __ P.3d __
NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL.
APPEAL FROM THE DISTRICT COURT OF OKLAHOMA COUNTY
¶0 The owner of real property and a construction company filed an action in District Court against the insurer of the property and alleged related insurer entities. Defendants (insurer) filed a motion to dismiss or in the alternative motion for summary judgment, argued an insurance policy may not be assigned, and sought dismissal of the construction company as a party. The Honorable Cindy H. Truong, District Judge, granted the defendants’ motion, and the construction company appealed. Defendants filed a motion for the Oklahoma Supreme Court to retain the appeal and the motion was granted. We hold a post-loss insured‘s assignment of a property insurance claim was an assignment of a chose in action, and not an assignment of the policy. Insurer‘s motion to dismiss the appeal is denied.
DISTRICT COURT ORDER REVERSED AND CAUSE REMANDED TO THE DISTRICT COURT FOR FURTHER PROCEEDINGS CONSISTENT WITH THE COURT‘S OPINION; APPELLEES’ MOTION TO DISMISS DENIED
Aaron Stiles, Austin Meyer, Downtown Legal Group, Norman, Oklahoma, for Plaintiff/Appellant.
Gerard F. Pignato, Matthew C. Kane, Ryan, Whaley, Coldrion, Jantzen, Peters & Webber PLLC, Oklahoma City, Oklahoma, for Defendants/Appellees.
¶1 This case involves an insured assigning a post-loss property insurance claim to a construction company for the purpose of the company repairing her property after a storm. Insurer argued the insured property owner was required to obtain written consent
¶ 2 Tokiko Johnson‘s real property was damaged in a storm and she filed a claim with her insurance company. Johnson also executed an assignment of her insurance claim for the purpose of repairing the property with the execution in favor of Triple Diamond Construction LLC (the construction company). An appraiser retained by the construction company determined storm damage to the property in the amount of $36,346.06. The insurer determined the amount of damage due to the storm was $21,725.36.
¶3 Johnson and the construction company brought an action against Johnson‘s insurer and alleged related entities which are “part of a reciprocal inter-insurance exchange which pools its business among insureds and ‘exchange policies’ within the AAA/CSAA Insurance Group of companies sharing premiums, expenses and losses”1 (insurer). Plaintiffs’ petition in its labeled “first cause of action - breach of contract” alleges damages in the amount of $14,620.70, not including interest, attorneys’ fees, and costs. Plaintiffs’ petition also contains allegations labeled “second cause of action--bad faith (Johnson Only).” This part of the petition alleges the insurance company did not timely and adequately investigate the insurance claim or timely name an appraiser to determine the storm damage. These allegations are combined with others alleging the insurer failed to act in good faith with respect to the insurance contract obligations.
¶4 Insurer filed a motion to dismiss or an alternative motion for summary judgment for the purpose of dismissing the construction company as a party. Insurer raised one argument: Johnson‘s policy and
¶5 The District Court sustained insurer‘s motion. Johnson dismissed her claims without prejudice to re-filing and the construction company appealed. In response to a show cause order by this Court, the parties agree that nothing remains pending in the District Court. However, insurer argues the construction company may not appeal without Johnson as a party in the appeal and insurer requests dismissal of the appeal. Insurer‘s argument is based upon (1) characterizing an insurance claim on an insurance policy as a single legal claim which may not be split between Johnson and the construction company, and (2) identifying Johnson as a necessary and proper party for this appeal involving a legal claim against her policy.
¶ 6 The Court‘s show cause order requested the construction company to address Mann v. State Farm Mutual Automobile Insurance Company, 1983 OK 84, 669 P.2d 768. The construction company responded and argued Mann applies in an appeal from a judgment which resolves fewer than all of the issues in a case, and all issues have been resolved due to the combined effect of the trial court‘s order and Johnson‘s dismissal without prejudice. The construction company argued Mann does not apply for this reason.
¶7 Insurer responded to the show cause order and argued the construction company is appealing “only part of a [legal] claim” or part of a cause of action and one principle stated in Mann applies. Insurer‘s approval of Mann was limited to citing it for the proposition that a cause of action includes all theories of recovery or types of damages stemming
I. Standard of Review
¶8 The parties argued in the trial court a single question: May an insured assign a property insurance policy benefit to a third party without the consent of the insurer when (1) the policy requires insurer‘s consent for assignment of the policy, (2) a statute allows a policy to state it is or is not assignable, and (3) the insured‘s assignment relates to a previous covered loss to the insured‘s property? This issue was presented for adjudication by the insurer‘s motion to dismiss or alternative motion for summary judgment.
¶9 The appellate standard of review for an assignment of error is based upon the nature of the proceeding in District Court (e.g., law, equity, and types of administrative proceedings), nature of the trial court‘s decision (e.g., deciding an issue of law, fact, mixed law and fact), and the nature of the procedure used by the trial court (e.g., dismissal of a petition, summary judgment, judgment on a jury verdict), with the procedure linked to a particular judicial power and judicial discretion exercised by the trial court.3 Generally, a legal question involving the District Court‘s statutory interpretation of law is subject to de novo appellate review.4 Similarly, when the meaning assigned by the trial court to an insurance contract and its terms is based upon a legal conclusion, then the assignment of error on appeal presents a legal question and is reviewed using a de novo standard.5
¶10 The trial court decided insurer‘s motion to dismiss or in the alternative summary judgment. Insurer‘s motion relied on
¶11 The trial court adjudicated the meaning of the language in both
II. Insured‘s Assignment
¶12 Generally, when an insurance policy is deemed to be a personal contract between insured and insurer, a policy provision requiring insurer‘s consent for an assignment will be enforced. However, this Court has noted exceptions to this general rule. For example, in American Alliance Ins. Co. of N. Y. v. McCallie, 1957 OK 312, 319 P.2d 295, we noted an exception occurs when the subject of the assignment is not the policy and its coverage, but a right to receive funds for a policy-covered loss and the assignment occurs after the loss. We stated the following.
It seems to be the rule, followed by most courts, that where such a policy is in force and effect at the time the insured property burns, by the happening of the latter event, the relationship between the insurer and the insured becomes simply that of debtor and creditor; and that the chose in action, which the latter then has against the former, may be validly transferred to a third person, by assignment, without compliance with the policy‘s requirement that the insurer‘s consent thereto (by endorsement or otherwise) be obtained.
American Alliance Ins. Co. of N. Y. v. McCallie, 319 P.2d at 298 (relying on court opinions from Wisconsin and Iowa, cases cited in Annotations at 122 A.L.R. 144, 56 A.L.R. 139, and the then current 45 C.J.S. Insurance, 29 Am.Jur. Insurance, and 5 Appleman, Insurance Law and Practice, § 3458).
The phrase “chose in action” was used in common law and has modern applications which include an assignable legal right.12 The
. . . although the policy provides that an assignment thereof, without the consent of the company, will avoid the contract, yet the law is well settled that this only applies to an assignment before a loss under it. After a loss, the claim, like any other chose in action, may be assigned without affecting the insurer‘s liability. May on Ins. 468; Wood on Ins. 189. Says Mr. Wood on this point: “The contract, while the risk is active, is personal, and the parties contract in reference to the delectus personae of each other; therefore, the obligation cannot be changed without the insurer‘s consent. But, when liability actually attaches under the policy, the entire relation is changed, and the relation of insurer and insured is changed to that of debtor and creditor, and the delectus personae of the contract is no longer material.”
Dogge v. Northwestern Nat. Ins. Co., 49 Wis. 501, 5 N.W. 889, 889-890 (1880).
The Wisconsin court was not alone when asserting this rule in 1880. The Supreme Court of Michigan also recognized this concept as an important public policy in 1880.
The provision of the policy forfeiting it for an assignment without the company‘s consent is invalid, so far as it applies to the transfer of an accrued cause of action. It is the absolute right of every person--secured in this state by statute--to assign such claims, and such a right cannot be thus prevented. It cannot concern the debtor, and it is against public policy.
Roger Williams Ins. Co. v. Carrington, 43 Mich. 252, 5 N.W. 303, 304 (1880).
By 1917 the Florida Supreme Court described the rule allowing an insured‘s assignment of post-loss contractual rights without an insurer‘s consent as a matter which was “well-settled” in law.15 The Florida court relied on an opinion from Georgia which in turn cited Joyce on Insurance, Roger Williams Ins. Co., and opinions from Wisconsin, New York, and Pennsylvania.16 Legal hornbooks of that day also recognized the principle.
¶ 13 In American Alliance we noted this post-loss exception to a policy-required insurer‘s consent did not apply because: (1) The insured had transferred ownership of the insured property to the new owner prior to the loss and the insured/assignor “had no insurable interest in the property” at the time of loss; and (2) “It is elementary that a fire insurance policy was a personal contract with the party insured,” and the insurance policy did not pass to the purchaser of the property without the policy-required insurer‘s consent to the assignment.18 In other words, the insured could not assign insurance coverage to a new owner of the property, and an attempt to assign coverage was an attempt to assign the policy.
¶14 In 1963 and few years after American Alliance we again noted the distinction between assignment of a chose in action and one to create insurance coverage.19 We commented on what the property owners had been required to show in the trial court relating to an assignment of a “matured claim” which had “ripened” into a “chose in action.”
The cases plaintiffs cite in support of their argument that Mrs. Wythe‘s assignment was effective, even though the subject of the insurance had already been destroyed, concern situations in which those insured under the policies involved, had insurable interests, or valid claims that had already matured at the time of their assignments, in which situations the subject of the assignments were choses in action against the insurors. If, on the date of Mrs. Wythe‘s purported assignment, there had been anything in being, upon which the assignment, or the policies, could have operated, or to which either could have applied--that is, either the property, or a chose in action growing out of the loss thereof--then there might be a basis for the position that said assignment transferred some right to plaintiffs. As we have seen, however, when the assignment was belatedly executed on December 21, 1960, the ostensible assignor, Mrs. Wythe, could neither claim any loss from the fire, nor assert that, by reason of the fire, any such claim had matured, or ripened, into a chose in action in her--nor was the property--the subject of the insurance coverage--any longer in existence.
Shadid v. American Druggist Fire Ins. Co., 1963 OK 146, 386 P.2d 311, 314-315.
We noted a difference between (1) an insured possessing an insurable interest and valid insurance claim matured at the time of assignment when the subject of the assignment was a policy-created chose in action after a policy-covered loss, and (2) a person possessing no insurable interest and no policy-created chose in action and who attempts to create personal insurance coverage without a policy-required consent of insurer.20
¶15 Our explanation in Shadid relied upon reasoning we cited in American Alliance relating to a matured claim assignable as a “chose in action.” Shadid occurred in the context of a fire insurance policy, property loss due to fire, and whether an assignment was proper. Oklahoma‘s standard fire insurance policy both before and after the then recent 1957 Insurance Code has continued to provide: “Assignment of this policy shall not be valid except with the written consent of
¶16 Many courts since 1957-1963 have agreed with the rule stated in American Alliance and Shadid, and a majority have continued to state a post-loss assignment by the insured of a chose in action is one exception to an insurer‘s policy-required consent for assignment. For example, one legal encyclopedia states: “Moreover, the majority rule is that a provision that requires the insurer‘s consent to an assignment of an insurance policy is void as applied to an assignment made after a loss covered by the policy has occurred.”23 This division of majority and minority views was recently discussed by the United States Court of Appeals for the Fifth Circuit when applying the law of Texas, and the court observed the following.
According to Couch on Insurance, “the great majority of courts adhere to the rule that general stipulations in policies prohibiting assignments thereof except with the consent of the insurer apply only to assignments before loss, and do not prevent an assignment after loss.” These courts reason that “[t]he purpose of a no assignment clause is to protect the insurer from increased liability, and after events giving rise to the insurer‘s liability have occurred, the insurer‘s risk cannot be increased by a change in the insured‘s identity.”
Keller Foundations, Inc. v. Wausau Underwriters Ins. Co., 626 F.3d 871, 874 (5th Cir. 2010) (quoting 3 Couch on Insurance § 35:7 (Westlaw 2010) and collecting various cases), (notes omitted).
Courts adopting the majority position have relied on a long-recognized public policy against restraints on assigning a chose in action, and they have stated this policy supersedes or outweighs a public policy favoring contractual freedom to create such a restraint in a contract of insurance. For example, the Supreme Court of New Jersey recently stated the following.
The majority rule is an exception to the general principle that parties to a contract may freely limit assignment of their contractual rights. The principle underlying the rule is a deeply rooted public policy against allowing restraints on alienation of choses in action. See Bolz v. State Farm Mut. Auto. Ins. Co., 274 Kan. 420, 52 P.3d 898, 904, 908 (2002) (adopting majority rule and rejecting insurer‘s position “that the public policy in favor of freedom of contract is superior to the public policy in favor of free assignment of choses of action“); Wehr Constructors, Inc. v. Assurance Co. of Am., 384 S.W.3d 680, 688 (Ky. 2012) (finding majority rule “fully consistent with [Kentucky‘s] prior holdings adverse to contractual provisions tending to restrain the alienability of choses in action“). New Jersey similarly recognizes choses in action as personal property and disfavors any attempt to restrict alienation of that property. Morris v. Glaser, 106 N.J. Eq. 585, 610, 151 A. 766 (Ch. 1930) (“[A] chose in action has almost time out of mind been assignable.“), aff‘d, 110 N.J. Eq. 661, 160 A. 578 (E. & A. 1932); see also
N.J.S.A. 1:1--2 (including choses in actionin statutory definition of “personal property“).
Givaudan Fragrances Corp. v. Aetna Cas. & Sur. Co., 227 N.J. 322, 151 A.3d 576, 586--587 (2017).
These courts echo our observations in both American Alliance and Shadid by explaining a difference between assignment of a policy and a chose in action.
The principle on which the courts hold that an assignment of a right under a policy prohibiting assignment may be made is that such an assignment is not the assignment of the policy itself (because the parties have contracted otherwise), but it is the assignment of a claim, or debt, or chose in action. The rule is stated in 2 May on Insurance, § 386, as follows: “An assignment after loss is not the assignment of the policy, but the assignment of a claim or debt--a chose in action. *** An assignment after loss does not violate the clause in the policy forbidding a transfer even if the clause reads before or after loss. The reason of the restriction is, that the company might be willing to write a risk for one person of known habits and character and not for another person of less integrity and prudence, but after loss this reason no longer exists.”
Givaudan Fragrances Corp., 151 A.3d at 588, quoting Ocean Accident & Guar. Corp. Ltd. v. Sw. Bell Tel. Co., 122 A.L.R. 133, 100 F.2d 441, 446 (8th Cir.), cert. denied, 306 U.S. 658, 59 S.Ct. 775, 83 L.Ed. 1056 (1939).
Distinguishing between an assignment of an insurance policy and an assignment of a post-loss chose in action which does not increase an insurer‘s risk has continued to be recognized by a majority of courts in the United States as implementing an important public policy.24
¶17 We have explained contractual rights are presumed to be assignable, but parties may expressly provide otherwise.25 We observed that contractual language concerning assignment has been examined by courts to determine (1) if the language is clear and unambiguous, (2) the parties’ intent, (3) if the language eliminates both the power and the right to assign, (4) the nature of any harm to the party obligated to perform by the mere assignment, (5) the nature of the benefit created by the assignment, (6) the public policy considerations applicable to the particular contract and (7) assignability of contractual rights.26
¶18 The insurer in our case focuses on public policy considerations by relying on
Except as provided in subsection D of Section 6055 of this title, a policy may be assignable or not assignable, as provided by its terms. Subject to its terms relating to assignability, any life or accident and health policy, whether heretofore or hereafter issued, under the terms of which the beneficiary may be changed upon the sole request of the insured, may be assigned either by pledge or transfer of title, by an assignment executed by the insured alone and delivered to the insurer, whether or not the pledgee or assignee is the insurer. Any such assignment shall entitle the insurer to deal with the assignee as the owner or pledgee of the policy in accordance with the terms of the assignment, until the insurer has received at its home office written notice of termination of the assignment or pledge, or written notice by or on behalf of some other person claiming some interest in the policy in conflict with the assignment.
Johnson‘s policy contains similar language: “Assignment of this policy will not be valid unless we give our written consent.”28 The statutory language relied on by insurer expressly states “a policy may be assignable or not assignable, as provided by its terms.” The policy itself states assignment of “this policy” requires written consent. The issue is whether the statutory language expressing a public policy relating to an assignment of an insurance “policy” includes a post-loss assignment of a chose in action when the insurance policy restricts an assignment of “this policy.”
¶19 A primary goal when reviewing a statute is to ascertain legislative intent, if possible, from a reading of the statutory language and its plain and ordinary meaning.29 This is so because the plain words of a statute are deemed to express legislative authorial intent in the absence of any ambiguity or conflict in language.30 We have explained the plain meaning of statutory language is conclusive, except in a rare case when literal construction produces a result which is demonstrably at odds with legislative intent.31 When a provision of an insurance policy and a statute relate to the same insurance principle we read the policy in light of the statute.32 In the present case where the statute refers to the parties’ agreement in the policy, we examine the policy to give effect to the ordinary meaning of the words in the policy.33
Bd. of Regents of Univ. of Oklahoma v. Lucas, 2013 OK 14, ¶ 15, 297 P.3d 378, 387; Cline v. Oklahoma Coalition for Reproductive Justice, 2013 OK 93, ¶ 14, 313 P.3d 253, 258--259, and Rogers v. Quiktrip Corp., 2010 OK 3, ¶ 11, 230 P.3d 853, 859.30
Samman v. Multiple Inj. Tr. Fund, 2001 OK 71, ¶ 13, 33 P.3d 302, 307.31
Siloam Springs Hotel v. Century Sur. Co., 2017 OK 14, ¶ 22, 392 P.3d 262, 268.32
Max True Plastering Company v. United States Fidelity & Guaranty Co., 1996 OK 28, 912 P.2d 861, 865 (words in an insurance policy “are given effect according to their ordinary or popular meaning).33
The appellate record does not contain the insurance policy. One exhibit in the record before us does contain a “declaration” from insurer‘s “Custodian of Records” referencing a “policy booklet and declaration of coverage.” This page is attached to one page numbered “52” with paragraphs relating to the topics of nonrenewal, assignment, subrogation, and death, as well as an additional two pages labeled Homeowners Policy Declarations.34
Haworth v. Jantzen, 2006 OK 35, ¶ 13, 172 P.3d 193, 196 (“an insurance policy is a contract“); American Economy Ins. Co. v. Bogdahn, 2004 OK 9, ¶ 8, 89 P.3d 1051; 1054 (“Oklahoma law governing insurance coverage disputes is well-established. The foremost principle is that an insurance policy is a contract.“);
Graham v. Travelers Insurance Co., 2002 OK 95, ¶ 17, 61 P.3d 225, 229. Cf. Public Service Co. of Oklahoma v. State ex rel. Oklahoma Corp. Com‘n, 2005 OK 47, ¶ 54, 115 P.3d 861, 884 (a part of every contract in this state is the law applicable to that contract).36
See, e.g., Mulford v. Neal, 2011 OK 20, n. 29, 264 P.3d 1173, 1184 (trial court properly construed policy as a contract of adhesion); Brown v. Patel, 2007 OK 16, ¶ 11, n. 8, 157 P.3d 117, 122 (insurance policy is a contract of adhesion).37
William Reynolds Vance, Handbook on the Law of Insurance, pg. 159 (West Pub. 1904) (“The completed contract of insurance is usually evidenced by a formal written instrument known as a ‘policy.‘“).38
William Reynolds Vance, Handbook on the Law of Insurance, pg.138 (West Pub. 1904) (discussing some of the elements courts analyze to determine whether a complete contract of insurance exists). See also McMullan v. Enterprise Financial Group, Inc., 2011 OK 7, ¶ 15, 247 P.3d 1173, 1179 (elements courts examine to determine the existence of insurance include the presence of an insurable interest, a risk of loss, an assumption of the risk by the insurer, a general scheme to distribute the loss among the larger group of persons bearing similar risks; and the payment of a premium for the assumption of risk), citing with approval, Jim Click Ford, Inc. v. City of Tucson, 154 Ariz. 48, 739 P.2d 1365 (1987); Poteete v. MFA Mut. Ins. Co., 1974 OK 110, 527 P.2d 18, 20 (discussing similar elements of insurance contract).39
William Reynolds Vance, Handbook on the Law of Insurance, pg.1 (West Pub. 1904), relying in part on State ex rel. Sheets v. Pittsburg, C., C. & St. L. R. Co., 68 Ohio St. 9, 96 Am. St. Rep. 635, 67 N.E. 93, 96 (1903) (insurance is “a contract whereby, for an agreed premium, one party undertakes to compensate the other for loss on a specified subject by specified perils“). See also
1957 Okla. Sess. Laws, 215-409, at pg. 369, § 3624 (Insurance Code Adoption, eff. July 1, 1957, by 26th Legislature, Regular Session, House Bill No. 501, § 119).
Some insurance contracts are specifically exempted from application of Article 36, but the exemptions are not an issue in this proceeding.
West Florida Grocery Co. v. Teutonia Fire Insurance Co., supra, note 15.42
In Russell v. Prospect Lodge, 1935 OK 1226, 46 P.2d 478, we noted that the Court had followed a holding in West Florida relating to a garnishment principle in both Jacobs v. Colcord, 1929 OK 181, 275 P. 649; and Ray v. Paramore, 1935 OK 124, 41 P.2d 73. Russell, 46 P.2d at 480.43
American Alliance relied on Alkan v. New Hampshire Ins. Co., 53 Wis. 136, 10 N. W. 91 (1881). American Alliance, 319 P.2d at 298. See the discussion of West Florida, Georgia Fire Ass‘n v. Borchardt, and reliance on Alkan at note 16, supra. Alkan was also used by Vance, Insurance, explaining assignment of a money demand or chose in action is not prohibited by language prohibiting assignment of a policy. See note 17, supra.44
Walton v. Colonial Penn Ins. Co., 1993 OK 115, 860 P.2d 222, 225.45
Murphey v. Liverpool & L. & G. Ins. Co., 1922 OK 275, 214 P. 695, 697.46
Murphey v. Liverpool, 214 P. at 697, relying upon 1 & 3 Cooley, Insurance, pgs. 630, & 2610, and reliance on Knarston v. Manhattan Life Ins. Co., 140 Cal. 57, 73 Pac. 740 (1903).47
Characterizing post-loss assignment as not increasing an insurer‘s risk is consistent with courts examining an insurer‘s risk relating to personal insurance and concluding an assignment to a mortgagee of insurance proceeds did not increase the insurer‘s risk. See, e.g., Whiting v. Burkhardt, 178 Mass. 535, 60 N.E. 1, 52 L.R.A. 788, 86 Am.St.Rep. 503 (1901) (transfer of right to policy proceeds to the assignee of a mortgage was not a transfer of the policy but a transfer of the right to receive payment). Cf. Kintzel v. Wheatland Mutual Insurance Association, 203 N.W.2d 799, 808, 65 A.L.R. 3d 1110 (Iowa 1973) (“the general rule that an assignment of the note and mortgage carries with it such rights as existed in the assignor with respect to the ancillary insurance policy, without the consent of the insurer“) (collecting cases).48
The insurance policy is not in the record on appeal, and whether a policy may prevent an assignment of a chose in action presents a hypothetical issue. We need not address this hypothetical issue. Gaasch, Estate of Gaasch v. St. Paul Fire and Marine Insurance Company, 2018 OK 12, n. 23, 412 P.3d 1151 (Court does not address hypothetical issues in an appeal).49
Record on Accelerated Appeal, Tab 8, reply in support of defendants’ motion to dismiss, Nov. 20, 2019, pg. 1.50
Miller v. National Life & Acc. Ins. Co., 1978 OK 92, 588 P.2d 1078, 1081 (“We have repeatedly held that when ambiguity exists in the meaning of an insurance contract the doubt is to be resolved against the company.“), quoting Combined Mut. Cas. Co. v. Metheny, 1950 OK 269, 223 P.2d 533, 535.51
Chamberlin v. Chamberlin, 1986 OK 30, 720 P.2d 721, 723-724; Okla. Sup. Ct. Rule 1.36 (accelerated procedure for summary judgments and certain dismissals).52
Chamberlin v. Chamberlin, 720 P.2d at 723-724.53
House of Realty, Inc. v. City of Midwest City, 2004 OK 97, ¶ 6, 109 P.3d 314, 317.54
Okla. Sup. Ct. R. 1.6(a) (“Where the facts relied upon are not of record in the Supreme Court, the motion or response shall be supported by affidavit.“).55
Mann, 1983 OK 84, 669 P.2d at 772.57
Mann, 1983 OK 84, 669 P.2d at 770-77258
First Pryority Bank v. Moon, 2014 OK CIV APP 21, ¶ 53, 326 P.3d 528, 539 (Division I) citing Chimney Rock Ltd. Partnership v. Hongkong Bank of Canada, 1993 OK CIV APP 94, 857 P.2d 84, 88 (Division III).59
1993 OK CIV APP 94, 857 P.2d 84.60
1993 OK CIV APP 94, 857 P.2d 84, 87-88. See also Rose Group, L.L.C. v. Miller, 2003 OK CIV APP 18, ¶ 4, 64 P.3d 573, 575 (Division I) (pure tort not assignable); United Adjustment Services, Inc. v. Professional Insurors Agency, LLC, 2013 OK CIV App 67, ¶ 20, 307 P.3d 400, 404 (Division II) (same).61
Chimney Rock, 857 P.2d at 88.62
Momand, 37 F.Supp. at 652, relying on Sullivan v. Associated Billposters and Distributors, 6 F.2d 1000, 1004, 42 A.L.R. 503 (2nd Cir. 1925).63
See, e.g., Cooper v. Runnels, 48 Wash.2d 108, 291 P.2d 657, 658-660 (1955) (discussing Stat. 4 Edw. III, chapter 7 [1330], assigning a tort action based on damage to property, and stating “The test of assignability is: Does the cause of action survive to the personal representative of the assignor? If it does, the cause of action is assignable.“); Clements v. ITT Hartford, 1999 OK CIV APP 6, 973 P.2d 902 (bad faith claim survived the death of the insured as a cause of action because it was
See, e.g., Cales v. Le Mars Mut. Ins. Co., 2003 OK CIV APP 41, 69 P.3d 1206 (trial court committed reversible error when it bifurcated contract and tort claims for trial).65
Indep. Sch. Dist. No. 52 of Okla. Cnty. v. Hofmeister, 2020 OK 56, ¶ 52, & n. 73, 473 P.3d 475, 498.66
Torres v. Seaboard Foods, LLC, 2016 OK 20, n. 11, 373 P.3d 1057, 1081 (stating principle in the context of a public-law controversy).67
In re Kaufman, 2001 OK 88, ¶ 8, 37 P.3d 845, 851 (an assignment is the expressed intent of one party to pass rights owned to another); Mid-Continent Petroleum Corp. v. Blackwell Oil & Gas Co., 1932 OK 281, 15 P.2d 1028, 1031 (a contract must be so interpreted as to give effect to the mutual intention of the parties at the time of contracting).68
Independent School Dist. No. 52 of Okla. Cnty. v. Hofmeister, 2020 OK 56, ¶ 52, 473 P.3d 475, 497 (“We require parties to preserve error with proper argument and authority, or the error is waived for the appeal.“). The issue was not raised by insurer‘s motion to dismiss filed in the trial court.69
Notes
A meaning assigned by the trial court to an insurance contract and its terms may be based upon adjudication of an issue of fact in some circumstances. See, e.g., Hensley v. State Farm Fire and Casualty Co., 2017 OK 57, ¶¶ 37, 38, 398 P.3d 11, 23-24. (parties’ intent relating to third party beneficiary status occurring in the context of a latent ambiguity claim required trier of fact to adjudicate the issue of fact presented by competing claims).
D. ASSIGNMENT AND SUBROGATION OF CLAIMS. The assignment of claims not arising out of contract is prohibited. However, nothing in this section shall be construed to affect the law in this state as relates to the transfer of claims through subrogation.
A thing in action, arising out of the violation of a right of property, or out of an obligation, may be transferred by the owner. Upon the death of the owner, it passes to his personal representatives, except where, in the case provided by law, it passes to his devisees or successors in office.
The then new 1957 Insurance Code continued to state “Assignment of this policy shall not be valid except with the written consent of this Company” in the form for fire insurance in the new Article 48 “Property Insurance,” and codified at