*1 Accordingly, trial that issue. case state that also and Summers 37 White court objective remanded to trial with directions 2-714(2), mea- “A common new grant DaimlerChrysler’s motion for trial as and in value of the difference surement replace- determining the of amount dam- repair of limited is the cost as warranted omitted). (footnotes ages only. The treatise Id. ment.” a court only one case in which found noted PART, IN 40 AFFIRMED REVERSED repair of rejected the cost of as a measure IN PART AND REMANDED WITH IN- 2-714(2). at n. 5. “If a Id. damages STRUCTIONS. radia- buyer accepts a truck a defective tor, good measure the difference JOPLIN, concurs, P.J., and the truck as warranted tween the value of C.J., concurs result. price is the and its value as delivered new radiator.” Id. ease, Plaintiffs present In the

jury presented evidence that Daimler- $12,100.00 replace the

Chrysler engine running at engine

truck’s and Ap sold at auction.

the time the truck was objective measurement plying the above 2005 OK CIV APP 36 only evi present we conclude EQUIPMENT, INC. OCT damages placed before dence of recoverable Company, cost of replacement jury was the Petitioners, jury prop could engine. argues Plaintiff repair erly costs of have considered dealership $5,600.00 at the Colorado FERRELL, $3,000.00 Kingfisher in arriv at Johnson’s and The Workers’ Com- However, ing hold Plaintiff its verdict. we Respondents. recover the cost truck is not entitled to No. by repairs Daimler- were absorbed obligation. warranty Chrysler part of its Subaru, Inc., 619

Faulkingham v. Seacoast of Civil (Me.1993). competent We find no A.2d 987 Division 3. evidence, there nor reasonable inferences from, jury’s support award $30,000.00. Denied Certiorari

IV. CONCLUSION foregoing, of the we hold basis correctly court verdict DaimlerChrysler on Plaintiffs OCPA

favor of properly also hold the trial court

claim. We Magnuson-Moss Plaintiffs claim

submitted competent jury evidence to

to the and find jury’s that cause of

support the verdict on conclude the trial

action. applica- Plaintiffs fee

court’s total denial of and we remand issue

tion was erroneous opin-

for reconsideration consistent with Finally, amount of the

ion.

jury’s Magnuson-Moss award on Plaintiffs evidence, competent

claim is DaimlerChrysler to a new

we hold entitled

480 (Claimant),

rell pay ordered First Insurer to compensation, the awarded and directed (Second Insurer) CompSource Oklahoma provide hearing Claimant with aids. We va- insurer, cate holding the order to first 85 imposes solely on Second Insurer.

¶ began working Employer Claimant for years ago aas truck driver. In the mid- 1970s he mechanic became and continues in position today, working noisy in a indoor shop. September On he filed a compensation compensa- workers’ claim for hearing repetitive tion for from exposure loss to loud noise. perma- the issues of partial disability

nent and authorization for hearing aids came before the trial court. evidentiary hearing, After an the trial court issued an order Claimant sustained on-the-job hearing loss repeated due to trau- ma to exposure from ears continued noise, loud exposure with on October It found First insured Insurer Employer August through July 31, 2003, and Second Insurer insured Em- ployer August 2003 until the date of trial. The trial court Employer provide Second Insurer Claimant with hearing aids. It found Claimant sustained loss, 35.9% hearing binaural over and above loss, pre-existing hearing 2% for which compensation was entitled to Beuch, week, C. Scott C. Scott Beuch & per Associ- 118.47weeks at in the total $264.00 Highsaw, City, $31,276.08, ates and Robert Oklahoma amount of of which weeks had OK, for Petitioners. lump accrued and should sum of $7,656.00. The trial court ordered Ryan, Philip Ryan Ryan, D. Bisher Okla- pay and First Insurer the award. OK, City, homa Respondent, Kenneth E. Ferrell. ¶4 appealed Insurer First the order to a three-judge panel of the Workers’ Com Sheffield, Gray City, OK, Linda panel Court. The affirmed the Respondent, CompSource Oklahoma. decision of court. First Insurer appeals panel’s order, contending from the Opinion by KENNETH L. solely Second Insurer is liable for Claimant’s Judge: Chief prove Claimant did not (Em- Equipment, Petitioners OCT Inc. injury First Insurer’s of cover ployer) Compa- age, and provided Second Insurer cover (First Insurer) ny of an seek review order of age at exposure the time of Claimant’s last a three-judge panel Compen- of the Workers’ injury. cumulative trauma sation affirming court’s the trial permanent disability partial reviewing awarded 5 In the order of three- judge Claimant Kenneth Fer- ..., it be liable the order unless not disturb will prior employer or insurance carri- competent evidence Mun. contrary v. Norman to law. Parks er.”

Hosp., 684 P.2d 1984 OK 9 The trial court found Claimant’s 11(B)(5), to enactment Prior exposure to cumulative trauma was October *3 apportioned Compensation Court Workers’ 28, 2003. This is contested. not among compensation award successive the Employer during worked for the Cel employers in cumulative trauma cases. prior that 90-day period to date. entire Hines, estica, 2004 OK CIV APP Inc. v. applies, the scenario which does Thus first P.3d 1097. In provide for contribution between succes- not 11(B)(5) § became effective: insurers. sive an payable is Where Hodges CompSource on v. relies trauma, resulting from cumulative Hodges, 2003 APP P.3d employer employment in whose the last Polston, and Southwest United Industries injuriously exposed was last employee the proposition P.2d for the 1998 OK 964 during period a of at least to the trauma apportionment appropriate is where two (90) more, insur- ninety days or and the diming employment the insurers cover carrier, any, the risk the ance if on when trauma the cumulative occurred. such employee exposed last was so authority discussing ap- no cites therefor, liable employer, shall alone be 11(B)(5). §of portionment after enactment any pri- right to without authority, countervailing ap- we will Absent If there employer or insurance carrier. or 11(B)(5). § plain language of The ply the the employment no employer is whose day of expo- the risk on last insurer on the injuriously exposed to the employee was solely liable if the claimant worked for sure is (90) ninety period a at least trauma for days prior single employer a for the 90 days, employer last em- then the whose exposure. last injuriously last ployment employee was the exposed the and the insurance trauma reasons, foregoing the 11 For the carrier, any, on risk when such em- if the three-judge the exposed such ployee was last so as to Compensation Court VACATED Old therefor, with employer, shall be liable Company, and RE- Republic Insurance em- right prior contribution from judg- instructions to enter MANDED with ployer or insurance carrier. solely against Comp- on the award ment Sess, emerg. § Ex. c. eff. Laws 2001 1st employer. as insurer Source October two sce- 7 This subsection is divided into concurs; HANSEN, J., JOPLIN, P.J., employee has narios. The first where separate opinion. dissents “during period a employer worked for HANSEN, J., dissenting: M. CAROL (90) ninety days” least the date case, “the exposure. If that is the then last by the agree this matter is controlled ... insurance carrier on when 11(B)(5) 85 O.S.2001 first scenario of ... alone employee e^qiosed last so shall was Claimant worked for cause liable, therefor, right without to contribu- injurious last 90-day period of his entire any prior ... insurance carrier.” tion from disagree majority as exposure, with the but language statute there is to the effect of 8 The second scenario where successively cov- employee more than one insurer single employer for whom the when not 90-day during ninety days prior to last ered risk for the worked carrier, case, provides, “the insurance “then last em- The statute exposure. In that employee when the was any, if employment employee ployer in whose exposed employer, under such last so injuriously exposed to the trauma was therefor, right con- without ... risk alone be liable carrier on the insurance any prior employer or insur- ... exposed employee when such tribution added). (emphasis anee carrier.” exposed”

The “last so refers to the words clause, injuriously

previous exposed “last period ninety of at trauma least Therefore, days or more.” I read the place coverage liability on

statute “the

insurance carrier ... the risk when the

employee injuriously exposed [last ninety

trauma at least

days ... more] without to contribu- any prior

tion from ... insurance carrier.”

In one more than insurer was on *4 90-day period. the relevant

I would sustain the Workers’ appor- it properly

Court’s

tioned between the two suc- insurers

cessively APP 34 WILLIAMS, Dorothy Williams,

Timothy White, Best, Paula Robert

Best, Sanders, Goins, Ray Keith Bob

Sanders, Sanders, George Sanders, Pat

Randy Monk, Monk, Bates, Janet Pat Larson, Jr., Mary Hawk,

Robert Sam Willis,

Gann, Enterprises, Ruth Fox

Inc., Mary Tucker, Tucker, Clinton Ron- Hilton, Hilton, Virgil Sitsler,

ald Brenda Sitsler, Plaintiffs/Appellants,

and Teresa SALINA, Mayes County, OF

TOWN

Oklahoma, Defendant/Appellee.

Court of Civil

Division No. 1.