*1 LEWIS, Jr., Floyd Appellant, COMPANY,
FARMERS INSURANCE
INC., Appellee.
No. 58862.
Supreme Court of Oklahoma.
Oct. 1983.
As Corrected Oct. 1983.
Rehearing Denied June
Gary by Gary L. Brooks & Associates L. Brooks, City, appellant. Oklahoma for Green, James, Williams & Elliott Ken- Elliott, City, appel- neth Oklahoma W. lee.
HODGES, Justice. question presented
The novel
is whether
pre-
the twelve-month statute of limitations
§ 4803(G)
by 36
and con-
scribed
O.S.
policy1
in the
controls
tained
standard
4803(G)
part:
policy prescribed
provides
1. The standard fire insurance
*2
independent
adjuster;
bring
alleged
loss with insurer’s
the time to
an action for
claim;
1981,
8,
an
faith refusal
to
a valid insurance
the insured submitted
on March
tort,
if,
loss;
19,
May
or
the action sounds
proof
because
of
and on
unnotarized
§ 95(3),
two-year
tort
limita-
1981,
the
conducted a
the insurer’s
counsel
period applies.2
tion
original
Because the
sworn examination.
proof
incomplete,
it was re-
of loss was
Lewis,
Floyd
(appellant-homeowner),
The
by
counsel
to the in-
turned
the insurer’s
Jr.,
policy
purchased a fire insurance
28,
May
proof
1981. Two blank
of
sured
Inc., (appel-
Company,
Insurance
Farmers
sixty-day
loss forms
enclosed and a
were
1981,
lee-insurer).
January
15,
On
while
1, 1981,
granted.
July
coun-
extension was
effect,
the
policy
the
was in full force and
noted that
the
examination had
sel
sworn
fire dam-
residence sustained substantial
unclaimed;
receipt of the
been returned
age, and afterwards
the home was vandal-
proof
insured’s
of loss and sworn examina-
ized. The homeowner demanded
24, 1981;
acknowledge July
and
tion was
by
poli-
the
the
the insurer under
terms of
16, 1981,
August
1981.3
cy:
January
he discussed his
the claim was denied
on
insurer,
loss,
duty
receiving proof
policy
a
the recov-
of the
of
to
"No suit or action on this
ery
any
any
rejection
of
claim shall
sustainable
submit a written offer of settlement or
require-
(90)
equity
ninety
court of law or
unless all the
of the claim to the insured within
complied
policy
ments of
with,
shall have been
Upon
days
receipt
proof
of
of that
of loss.
a
within twelve
and unless commenced
judgment
party, costs and
rendered to either
inception
months next after
of the loss.”
attorney
prevailing
shall be
to the
fees
allowable
section,
party.
purposes
prevail-
For
of this
the
95(3):
by
provided
2.
It is
12 O.S.1981 §
ing party is the insurer in those cases where
(2) years:
trespass
An
“Within two
action for
judgment does not exceed written offer of settle-
taking,
upon
property;
real
an action for
detain-
judgments
ment.
In all other
the insured shall
ing
injuring personal
including
property,
or
ac-
party.
prevailing
provision
be the
This
shall not
specific recovery
personal prop-
the
of
tions for
apply
coverage.”
to uninsured motorist
injury
rights
erty; an action for
to the
of anoth-
Mid-Century
See also
Insurance
Shinault
er,
contract,
arising
and not
not
hereinafter
(Okl.1982).
enumerated;
ground
an action for relief on the
policy
require
and 36 O.S.1981 4803
§
of fraud —the cause of action in such case shall
loss,
days
sixty
within
after the
the insured must
not
accrued
the dis-
be deemed
have
until
signed
proof
covery
submit a
and sworn
of loss unless
of the fraud."
writing by
company,
the
extended in
the
time is
memos,
February
Insurer's inter-office
dated
provided by
§
as
which states:
4, 1981,
delay
March
that a
reflect
any
policy subject
pro-
the
"When
game
being
in effect.
the
was
was
Because
provision
this article contains a
visions of
investigated,
adjustment company purport-
proof
must render a written sworn
insured
edly
advised the insurer that it would
(60)
sixty
days
date of
of loss within
from the
any
wise to make
investigation
decision on the claim until the
insurer,
fire or loss to the
or the same is re-
completed.
The insurer sent
rendered,
quired by
the insurer
law be so
proof
a
of
demand letter and exercised the
loss
cannot assert the failure of insured to so render
right
policy
under the
to secure a statement
proof
any litigation
such
court
of loss in
or
under oath from the insured.
proceeding,
prove
plead
unless the insurer
An insurer has the
to furnish forms of
that it has furnished the insured with two blank
proof of loss to the insured. The insurer does
loss,
proof
forms for the execution of
of
that has
any responsibility
completion
not have
for the
thereon,
printed
conspic-
type
in bold-faced
in a
form,
completion
or
of the
attempted completion. Upon receipt
the manner of
or
place,
warning
proof
uous
that a
of loss
proof
sixty
must be rendered to the insurer within
loss,
it is the
of the insurer to submit a
(60) days
receipt
from the date
of the blank
rejection of the
written offer of settlement or
insured,
proof
by
by
forms for
or
of loss
ninety days, pursuant
claim within
to 36 O.S.
putting
warning
like
such
in a
form in
letter
3629(A)(B),
states: "A.
insurer
which
An
executing proof
of instruction for
of loss that
furnish,
any
upon
request
shall
written
in-
accompany
proof
will
of loss blanks fur-
claiming
sured
to have a loss under an insur-
insured,
insurer,
nished the
and the insurer has further
by
issued
such
forms of
ance contract
proof
executed and furnished the insured its written
person,
completion
of loss for
such
but
time,
(60)
not,
giving
sixty
the insured
require-
extension of
days
such insurer shall
reason of the
forms,
any responsibili-
from the date such blanks were received
ment so to furnish
have
requirements
ty
completion
cannot be
for or with reference to the
the insured. These
by any agreement
proof
any
comple-
parties
such
or the
such
waived
between the
manner
attempted completion.
tion or
B. It
be the
otherwise.”
shall
4, 1982,
February
by parties
torts
be committed
filed
to a
An action was
contract,
damage to the
seeking recovery
for the
a tort
is a violation of a
contents,
punitive
imposed by
independent
its
residence and
law
of contract.
wrongful, refusal of
damages
on the
merely
based
If the contract is
the inducement
The insurer
the claim.
tort,
the insurer
the occasion for the
creates
filing
general
special
responded by
tort,
contract,
not the
is the
basis
*3
summary judg-
and a motion for
demurrer
A
perform
action.4
common law
that the claim
ment
on the assertion
based
care, skill,
expediency,
with
reasonable
and
of limitations.
by the statute
was barred
accompanies every
faithfulness
contract.
overruled, and the mo-
The
were
demurrers
Negligent
any
failure to observe
of these
af-
summary judgment was denied
tion for
give
conditions will
rise to an action ex
that the
of
the court determined
cause
ter
delicto as well as an action ex contractu.5
in tort. The insurer filed
action sounded
reconsider, and the trial court
motion to
In Christian v. American Home
ruling upon
theory
the
that the
reversed its
Co.,
(Okl.1978),
Assur.
Tort
if
Piskor, 281 Md.
627, 639,
poration
v.
insurer,
in
showing
there is a clear
that the
genre
A.2d
22-23
Claims of this
unreasonably
faith
withholds
[1977].
of both tort and con
exhibit characteristics
the claim. A cause of action in tort
actions. A tort will be deemed
the im
tract
arose when the insurer breached
relationship if the
arise out of a contractual
fairly
good
to deal
and in
faith
plied
and the contract
delictual
breached
its
We find that
the home
with
insured.
one cannot be
are so
alleged
of action is founded
intertwined
owner’s
cause
the other
tort,
viewed in isolation from
because
two-year
statute
in
sought
arose
ar
the detriment
to be vindicated
applicable.
appellee’s
is
limitations
directly
performance
nonperform
is
gument that the statutes are
conflict
Motors Cor
General
contract.
ance of the
persuasive because 36 O.S.1981
Piskor, supra,
poration
v.
381 A.2d at
can
no conflict
inapplicable.
is
There
Republic
Insurance Com
Caruso
controlling
of two
statutes.
the absence
*4
430,
pany,
F.Supp.
558
434-435 [D.C.Md.
REVERSED.
1983].
LAVENDER,
SIMMS, V.C.J.,
DOO-
nothing more
The “tort” here consists of
WILSON, JJ.,
LIN,
con-
HARGRAVE
con-
nonperformance
than a bad-faith
of a
cur.
litigation
tract. What occasioned
single, allegedly
insured-against
a
loss
OPALA,
BARNES, C.J., and IRWIN and
recovery
sought
fire. Whether its
now be
JJ., dissent.
policy provisions
an insurer’s breach of
as
OPALA, Justice, dissenting:
claim,
a
refusal
to settle a
or as
bad-faith
question
first-impression
before
one
ten-
only
episode
of breached
is
the insurer’s
court is whether a claim for
legal
insurer’s non-
dered for
redress —the
pay
gov-
fire loss is
faith refusal
single
No matter how
loss.
in
by one-year
prescribed
limitation
erned
characterized,
may
pleader’s
claim
be
§ 4803(G)
for actions on a
that,
escape the fact
the insured cannot
policy
by two-year limitation
contract,
be here
save for the
there would
§ 95(3)
governs
period in 12
legally
redressed. As a
no detriment
to be
another,
injury
rights
actions “for
theory
recovery, an insurer’s bad-faith
arising
contract
...”
The court
not
on
necessarily draw its
pay
refusal
must
that the claim is ex delicto hence
holds
presupposed existence of an
viability from
accede to
inapplicable.
4803 is
I cannot
policy obliga-
actionable breach
a valid
this view.
gone stale but re-
tion which has not
presently
mains
remediable.
very
At the
The claim
us was first fashioned
before
liability
Home Assur.
core of insurer’s extracontractual
v. American
Christian
in
nonperformance of an en-
Co., Okl.,
lies mala
There,
at
irremediable. guise or revived under
resurrected fail- bad-faith to enforce the insurer’s
suit Development v.Co.
ure to settle. Barrow Co., 418 F.2d Insur.
Fulton [9th Industries, Carpet and Modern Cir.1969] Association, Factory Insurance Inc. v. Ga.App. 186 S.E.2d Fire
[1971]; Skrupky see also v. Hartford 201 N.W.2d 55 Wis.2d
Insurance § 4803(G) the [1972], Because under longer enforced
obligation in can no suit “inception of the year from the
after one
loss”, claim contest before the bad-faith I hence timely brought. would
us was not in- for the summary judgment
affirm the
surer. BARNES,
I am authorized to state IRWIN, J.,
C.J., concur in this view. *5 TEXAS, Lynch, Merrill BANK
PARIS OF Smith, Inc.,
Pierce, Far- Fenner &
Mar-Co., Inc., Defendants/Appellants,
v. Custer, Marilyn J.
D.W. CUSTER
Defendants/Cross-Petitioners-Appel
lees. COMPANY, Corpo MILLING
HUGO
ration, Doris J. D. Ellis and Austin
Ellis, Defendants/Appellants, Custer, Marilyn J.
D.W. CUSTER
Defendants/Cross-Petitioners-Appel
lees.
Nos.
Supreme Court Oklahoma. 14, 1984.
Feb.