*1 engaged practice m the optometry cited, with- volved m the cases m that it does in the meaning “measure, permit optician fit, statutes of this adapt, state.” prepare, dispense, adjust” or the lenses to permits the human face. hold that this Plaintiff cites two Attorney optician the Keratometer to use aid opinions 69-172(A) General’s issued June fitting in the of contact lens. The trial 3, 1969 18, and 69-305 May issued 1970. enjoined court the defendant from examin- question proposed opinion in the first eye for ocular abnormalities and any prohibit “Does opti- state statute fitting from lenses without written cians from measuring fitting contact scription. op- here held that We have lenses, fitting or pursuant contact lenses duplicate may type tician lenses prescription physician?” of a The Attor- prescription. public without a written ney General part answered the first protected by rulings. is well these affirmative and the second in negative, allowing optician to fit contact Appeals part lenses if affirmed prescription physician from the op- part reversed in and trial court’s order full, tometrist is complete specific paragraph (5) reinstated. ordered prescription for contact lenses. The sec- All the concur. Justices opinion ond prior opinion clarified the added that prescription required by the
statute must contain results of all measure- eye.
ments of appear prohibit optician
using the Keratometer.
The final construction of a statute
rests with
opinion
the courts and an
SIMMONS, Appellant,
Elliott D.
Attorney
controlling,
General
al
though
given
great
respect.
See HARTFORD
ACCIDENT
INDEMNITY
Hitchcock,
Wenke v.
6 Cal.3d
Foreign Corporation,
COMPANY,
Cal.Rptr. 290,
whether or may not a wear contact
lenses. This prescrip is indicated optician
tion. The does not use the Kera-
tometer to astigma measure refraction or patient
tism. The is advised to return to
the examiner proper for assurance as to
fit. If all ophthalmologists would be re
quired purchase a Keratometer and take
the extra making time to use it in measure contacts,
ments fitting for the patient result in a disservice to the expense. added The Oklahoma statute
is much broader than most statutes in- *2 Keel, ap- City,
Robert T. Oklahoma for pellant. Reneau, Smith, Fenton, Fenton,
Dale Moon, City, ap- Reneau & Indemnity pellee, Hartford Accident Co. Pierce, Couch, Clayton Okla- B. R. John City, appellee, Progressive Cas- homa ualty Ins. Co.
BARNES, Justice: Appellant question presented by whether, him, vehicle which riding at the time was was uninsured within the O.S.1971, of Title 36 3636 [Uninsured Coverage], pol- and the insurance Motorist then in force. icies injuries Appellant and dam- Simmons’ admittedly negli- ages caused were gence of the driver of the car in which passenger. Hartford Accident & was a Company issued Indemnity had [Hartford] policy of insurance on the automobile Appellant riding, limits of injury $5,000.00 person to one $10,000.00 injury per- more two or Admittedly the car the driver of sons. policy, under the terms of the was insured expended had the sum and Hartford arising $9,211.30 in settlement of claims occupants oth- the accident out of involved accident. er car Appellant unex- Simmons the tendered $10,000.00 pended balance [$788.70] by it liability assumed account car negligence of driver Appellant ages operators unin- riding. from owners Simmons tender, contending sured vehicles refused motor and hit-and-run Simmons satisfy injury, motor requirement in order to vehicles because of disease, including “insured motorist” the limit of sickness or death $5,000.00 sulting Coverage should be for each therefrom. *3 per- irrespective the number of not less than the jured, of amounts of limits bodily injury reasoned that scribed for injured. sons He further or death since, policy opinion, meeting requirements in his the driver of the car of riding O.S.1961, uninsured as (7-204) in which he was .... § him, permitted in- then he to to would purposes For the of cover- this “(C) the uninsured motorist benefits of voke vehicle’, age the term ‘uninsured motor policy Progressive Casualty In- own with shall, subject to terms and conditions Company, as the surance as well coverage, of such be deemed to include policy. Hartford of the an insured motor vehicle lia- where the bility
The other car involved in the and driver insurer thereof is unable make by liability payment respect accident were covered with legal liabili- car, ty speci- The Darlene of surance. driver of its insured within the limits joined party Johnson, was as defendant fied therein insolvency.” because of action, along in earlier with the Estate provision and the in Ballard, deceased, theory Carvin on the of Progressive’s policy: they joint were tort-feasors. Service “Coverage Damages Bodily In I— upon Johnson, never Darlene obtained jury Caused Uninsured Automobiles. Appellant $15,000.00 judg- recovered pay To all sums the insured or Ballard, against ment Earlie Administrator legal representative shall legally enti Ballard, the Estate of deceased. of Carvin tled damages recover Appellant brought against then suit operator owner or of an auto Progressive. mobile bodily injury. . . . of hinges upon case 47of surance fective “(a) No 0.S.1971, . company policy . §7-204: . unless issued . or . surety company (cid:127) . shall an in- ef- means: “ ‘Uninsured [*] [*] [*] automobile’ [*] [*] [*] (a) an automobile or trailer with policy
unless or such bond spect ownership . . in at subject, bodily accident resulted in specified by least the amounts the finan- injury death, limit, or to a exclusive of responsibility cial law costs, of the state interest and not less than Five princi- which the insured automobile is ($5,000.00) Thousand Dollars because of pally garaged, bodily injury no bodily injury to or death and, bond or applicable at any subject one accident to said the time accident respect person, limit for one to a limit of not any person respect ... or with less than Ten Thousand Dollars bodily to which is a injury there bodily injury because of ($10,000.00) policy applicable bond or insurance at persons or death of two or more time of but the one accident . . . .” writing the same denies coverage there- O.S.1971, 3636: § ” under. “(B) (liability coverage for provide coverage injury) previously passed We have not supplemental therein or thereto for the uninsured motorist as used supra, insured thereunder but a number courts legally entitled to recover dam- have. Empire Marine Ins. Fire Ins. Co. & [106 Farmers Texas In Villarreal 258).” Ariz. P.2d 633, the Court 274] 510 S.W.2d (Tex.Civ.App.), said: Kemp Fidelity Casualty Co. In (Tex.Civ.App.), New York S.W.2d uninsured are “The terms 633,the Texas Court said: under- meaning and common words of person whose An is a
standing. upon “Appellants rely Porter v. Em- by policy of property is insured life or pire Company, Fire & Marine means not! prefix ‘un’ insurance. fully 106 Ariz. insur- liability insurance Automobile choose, supports their contention. We loss protection against provides ance however, reasoning follow the damages aris- legal liability from or true, Porter. It is as ob- rationale of maintenance, ownership, out Porter, appellants served in It vehicle. of a operation motor position if have been in better the tort- *4 give recog- full duty the courts to of liability had carried no feasor Smith When legislative intent. nition par- in this surance. While is true lan- in the plainly expressed intent is case, feel that this is ticular we do not statute, give effect must we guage of enlarge sufficient reason attempting to language without to such unambigu- of words which are clear meaning that its or- give it a construe or ous.” import. dinary does signification See, also, Hamp McMinn v. New automo- an uninsured definitions of 682; shire (Miss.), Ins. Co. 276 So.2d policies these respective of in the bile Employees Chandler v. Government Ins. the intent plaintiffs not contravene do Co., Cir., 420; Aetna 5 342 Detrick v. F.2d question. in purpose the statute of Co., 1246, Casualty Surety Iowa 158 & 261 Casualty and Sure- Aetna Detrick v. See 99; 44 Smiley Toney, Estate N.W.2d v. of 1246, 158 N.W.2d ty Company, 261 Iowa 127, 440; Ill.2d 254 Lund State v. 99 (W.D. Mutual Ins. Farm Automobile Co. was the owner Mitchell “Here Gerald 917; F.Supp. 342 Darrah v. Okl.), He liability insurance. 243, of Ass’n, of Cal.App.2d 259 S.A. California required in the amount was insured 374, Cal.Rptr. that a 66 all to the effect Respon- Safety Texas Motor Vehicle is not an uninsured motorist if motorist un- sibility Mitchell was Law. coverage required carries the minimum word, and in any definition of der their statutes. ‘unin- particular under the definition Appellant, fact, contending in in is contained sured automobile’ O.S.1971, 3636, requires $5,000.00 that 36 provisions of motorist’s the uninsured injured in an ac coverage person each for Family and Automo- Texas Standard plain contrary lan This is cident. had in- policy. Mitchell insurance bile plain here guage and intent statutes required that was surance in the amount in Ballard had tofore set out. Decedent liability Mitchell’s Texas law. under surance, liability met limits not insolvent. carrier was e., statutory requirements, $5,000.00 i. us It is clear to deny coverage. did not $10,000.00. mo- an uninsured was not that Mitchell note that uninsured motorist further pro- torist so that the being coverage as is defined policies plaintiffs’ vision by the specified “in at least the amounts could come effect. into responsibility of the State.” financial law “ ap- Supreme Our this Court province Kemp Fidelity It is proved holding v. statute, fact that York, and the supra, interpret the New Casualty Co. & adequate minimums provide contrary (Porter Porter v. does which is 1388 coverage to requiring injuries a mat- Appellant’s care of take automobile correct, be included in standard rather Legislature
ter for by the in- expressly waived policies unless to rewrite. We than one for this Court not an un- sured. Ballard was that decedent find summary insured motorist and reme Uninsured Motorists Statutes in favor of judgment of trial court liberally They construed to are to dial. companies was correct purpose, accomplish legislative their by a was covered statu- the Bruton vehicle injuries which providing hence torily adequate liability policy and uncompensated, and to go would' otherwise the term vehicle” as was not an “uninsured in person same ques- policies in the insurance is defined as jured by an uninsured motorist provided statutes of tion and as if the uninsured enjoyed present Under the the State of Oklahoma. carried effective motorist himself or car motorist statute a driver Acci Balestrieri v. insurance. minimum is insured if it has Co., Ariz.App. 22 Indemnity dent $10,000.00
$5,000.00
one
(1974);
P.2d
Webb
injured in
acci-
more
two or
Ass’n.,
Pa.Super.
States Auto.
United
interpret
this to mean
We do not
dent.
Charest
(1974);
323 A.2d
$5,000.00 for each individual
minimum of
Providence, 113 N.
Union Mut. Ins. Co. of
injured.
Chavez v.
(1973);
H.
firmed. as the as well insurance Contracts be lib are to regulating insurance statutes DAVISON, IRWIN, LAVENDER object to in favor erally construed SIMMS, JJ., concur. the provisions accomplished. If the be HODGES, WILLIAMS, J., V. C. J.,C. being capable of are policy or the statute DOOLIN, JJ., dissent. and BERRY and ways, construed two insured to the favorable which is most HODGES, (dissent- Vice Chief Justice provisions. Pur placed on should be ing)- to be awarded of insurance chasers they for which benefits protection and presented The sole for our de- justi can benefits paid when such termination is whether the an existence of v. Auto legal reasons. Leist fied sound on liability automobile Co., 835 N.E.2d 311 Owners satisfy sufficient to the minimum limits Cas. Co. (Ind.App.1974); Continental requirements, statutory insufficient to but Aetna (Okl.1969); 684 Beaty, satisfy admittedly multiple tort valid (Okl. Zoblotsky, 481 Ins. Co. v. claims, renders that vehicle uninsured 1971). provisions motor vehicle under the policies.
claimants’ automobile I believe purpose the uninsured does. the un- coverage for provide law is not to afford object is to insured vehicle. Its purpose The obvious behind 36 O.S.1971 event protection in the additional insured close the chasm inherent 3636 to § provide benefits accident, and to Act, of an Responsibility O.S. Financial 47 pays person who specified amounts for seq., et when it discov- 1971 7-101 § the contract coverage based adequately pro- such ered that the Act did not recovery right- to parties. irresponsi- between injured by financially tect those upon not, dependent not, is and should protection was ble motorists. This lack of party as to a third states, forty-six the decision apparent by so buy. coverage he should Oklahoma, amount of statutes had enacted including 1389 Co., parties to insurance contract Buckeye Union Hanlon v. his Rhodes entitled to recover from (Ohio 1975); 604 company up Pa.Super. own insurance Ignition to v. Automotive amount of if his 275 A.2d damages compensated aby can not be meaning of the the literal Reliance on up to tort-feasor’s such adopted by motorist as word “uninsured” amount.” clear opinion is majority contra majority opinion The basic result of the The ma- legislative intent of the statute. that if a tort-feasor motorist has no in- covered jority opinion states that a vehicle surance, right has not unin- by statutorily adequate policy coverage, on his cover but statutes, sured. The 36 O.S.1971 that tort-feasor had minimum limits liabili- clearly 7-204(a) and 47 O.S.1971 § ty coverage recovery on there could be no dollars is re- that a limit five thousand provision, though the uninsured even bodily injury to one quired for or death coverage. for the The reason person. given denying such benefits is insurance, In construing contract of right recovery there is no when pro- determine whether court should tort-feasor carries which are statuto- limits relation- posed has a rational construction rily sufficient. ship object sought be obtained. statute, pro- Our 3636(A), O.S.1971 § object the statute to be achieved liability policy” automobile vides “no to an is make available and the contract pay- issued unless offers injured full amount of insured the ment within limits of what an uninsured up damages minimum amount motorist would be liable for to an insured Responsibility Act. the Financial scribed injuries. unambiguously so the sum is recoverable This is whether prima grants the facie recourse victim policy, the in- from a tort-feasor’s applicable policies. and all coverage, or both. jured uninsured motorist *6 legislation is to aim this Co., 324 N. Buckeye Ins. Hanlon v. Union protection in minimum financial supra. p. 603 E.2d $5,000.00. amount An automobile or In at bar the Hanlon case and case "uninsured” within the motorist is interpretation is whether liabil- of our statutes to the extent that the participat- which excludes ity the amount of insurance actual- exceeds in benefits paid for ly victim who has available benefit, is premiums, solely own coverage. This con- uninsured motorist if an insur- construction of reasonable only is is one which reason- struction ex- ance contract and statute which able, permits legislative intent of party its ben- cludes a to the contract from multiple the statutes to be exercised. In contrary efits to be is so unreasonable as minimally by victim accident caused so, If it public of Oklahoma. tort-feasor, individual recoveries sured which affords mandates carrier from the tort-feasor’s insurance purchaser of the protection compared damage be minute can receive. coverage understood he would is a tort-feasor’s incurred. When page 604 of Hanlon v. At coverage, greater than his Co., supra, court Buckeye Union Ins. clearly for the difference. uninsured stated: supported by Porter v. position 106 Ariz.
“Very required Empire Fire & Marine little reflection de- Porter, legislative intent and cide it was the coverage, was contemplation that was within the carried injured gets in an automo- of five courthouse before he does or party bile a tort-feasor who some other failed caused coverage.” carried unlimited the minimum liabilities insurance quired by of that in- law. Porter’s share against pol- I public believe is also The Arizona surance came to $2500.00. icy of the State of Oklahoma. Supreme that under the Court held Unin- I, therefore, respectfully dissent. Statute, sured Porter was entitled Motorist to recover an of his ad- additional $7500.00 his own damage
mitted under p. coverage. The court at p.
“The is issued
protection of the insured the minimum provided in
amount the Financial Re- Otherwise,
sponsibility Act. better off the of- The STATE of Oklahoma ex rel. B. Joe fending motorist had no insurance what- HUNT, Commissioner, Insurance principle Plaintiff-Appellee, agree soever. with the
that the himself of the who avails afforded uninsured motor- LIBERTY INVESTORS LIFE INSURANCE COMPANY, an permitted Life ist Insurance should to re- Corporation, Defendant-Appellee, cover as tort-feasor had if the the mini- liability insurance; pro-
mum amount of Cyril ROGERS, Third-Party-Appellant. B. vided that there available to him the damages, up full amount No. 47487. prescribed by
minimum amount the Fi- Supreme Oklahoma. Act, Responsibility nancial which in this Dec. 1975. $10,000. case is This is so whether this sum is under recoverable the insured’s
policy alone in combination with those actually
funds receivable from the tort- coverage.”
feasor’s liability situation,
In recently an identical it was Buckeye
determined in Hanlon v. Union although Co., supra,
tort-feasor had in the amount of limits, statutory logical was not
just right insured motorist’s hold
to recover on a contract between himself dependent
and his insurance proceeds how tort-feasor’s
liability policy spent. The court stated page
at 324 N.E.2d 605: repeat, definitely
“We not consist- public policy
ent with the of Ohio to so
construe a contract or statute as to right person’s
hold that a ben- recover premium
efits for other
eliminated some