*1 BARNES, agree- V.C.J., LAVENDER, of the trust impacted section der SIMMS, WILSON, JJ., ment. HARGRAVE and concur. argument a However such convolutes statute, O.S.1971, reading
clear of ALA, J., part; OP concurs in dissents in 175.23(C): are, districts school § part. doubt, agree- beneficiaries under the trust IRWIN, J., HODGES, J., C. dissent. ment; such when OIA admits it concedes impacted received aid school districts have past: OIA in the “.. . the school guaranteed a
districts are constitutional percentage subjects’ funds
minimum are
whether said funds distributed County
to the Oklahoma Treasurer or government in the
OIA local units O.S.1971,
impact area pursuant 178.7(b).” Don Curtis TIDMORE State Farm Company, Petitioners, Insurance argues It such that at time as the funds method, are distributed under either appropriate school districts can institute the FULLMAN, Respondent. Flora Pauline proceedings they in the event do receive No. 57642. constitutionally guaranteed minimum percentage. Court Oklahoma. argument pursuasive would be Such June deed, 175.23(C) except for which man- As Corrected June agree- dates that beneficiaries of the trust necessary parties are any ment action. might argue
School also that the districts question [175.23(C)]
section in contains a
prerequisite to admission of benefi- a
ciary necessary party: “predicated upon
under this must be section
any act obligation any beneficiary
...” doubt There is no the school
districts made written demand OIA money paid in lieu into the treasurer,
general county funds of the
shortly declaratory after demand this question was filed resolve the proper depository We funds. view
such demand letter as within the definition “any act” described statute.
Having found that school districts
statutorily authorized become a neces-
sary lawsuit, party to the we need not reach ruling they on whether qualify would
necessary party any other law of our
state.
REVERSED AND REMANDED TO
DISTRICT TO ADMIT COURT APPEL-
LANTS AS NECESSARY PARTIES.
Best, Sharp, Thomas, Atkinson, Glass & Tulsa, petitioner, for State Farm Ins. Co. Knight, Wagner, Stuart, Wilkerson & Lieber, Tulsa, petitioner, Curtis Don Tidmore.
Lang, Inc., Bingham, James & Tulsa, for respondent.
LAVENDER, Justice: The issue certified for ap- interlocutory peal the Supreme the court below presented by petition for certio- rari is as follows: personal In a injury arising out of a motor vehicle accident where driver sues defendant driver also sues plaintiff’s uninsured motorist car- rier alleging that the defendant driver was underinsured, is the following evidence ad- missible jury?
a. The policy limits the defendant driver.
b.
policy
of uninsured
issued
driver and
identity
company issuing
policy.
The partiés
stipulated:
have
1. Defendant Tidmore carried a policy
of liability insurance on his vehicle in com-
pliance with
requirements
of the Okla-
homa financial responsibility laws.
policy
Tidmore’s
full
was in
force and
effect at the
time
the collision
disease,
will be available
sickness or
proceeds
including
death re-
judg-
recovers
the event
sulting
Coverage
therefrom.
shall be not
against him.
ment
less than the amounts or
prescribed
limits
bodily injury
or death for a policy
limit is
Tidmore’s
less than the
meeting
requirements
of Section 7—
coverage afforded by
uninsured motorist
*3
Statutes,
204 of Title
as the
Farm Insurance Company
defendant State
amended;
same may be hereafter
....
policy
to
Fullman
Fullman’s
******
it,
than the amount prayed
with
and less
petition.
Fullman in her
by
for
“(C) For the purposes of this coverage
policy
Fullman’s
with
Farm
State
the term ‘uninsured motor vehicle’ shall
provides
coverage
uninsured motorist
include an insured motor vehicle where
$25,000.
policy
collision with a
limit of
liability
insurer thereof is unable to
agree
provide
Defendants further
to
to
payment
respect
make
with
legal
Court,
requested, copies
if
of their re-
liability of its insured within the limits
spective policies.
specified therein because of insolvency or
liability
whose
any
insurer for
reason ei-
agrees
par-
Defendant
Farm
not to
State
ther
legally required
cannot or is not
ticipate in the trial of the case and further
per person
afford at least the
coverage
agrees
by
to be bound
verdict.
limits
respect
legal
with
liability of
conference,
pre-trial
At
the court below
insured, applicable
injured
its
any
par-
jury upon
ruled that
trial would be
ty under any uninsured motorist coverage
allowed to hear evidence as to the liability
covering
injured
party.
policy
insurance limits under Tidmore’s
and
Thus, by legislative
hear
that plaintiff
evidence
had an unin-
definition an “unin-
vehicle,”
policy
sured motorist insurance
with
sured
prescribed
State
motor
insofar as
Farm. The court
below entered a
coverage
concerned,
includes
embodying
rulings,
order
and that order
uninsured,
vehicles which are
hit-and-run
was certified
interlocutory appeal.
vehicles, insured motor vehicles where the
liability insurer thereof is unable to make
pertinent portion
The
of 36 O.S.Supp.
payment
respect
legal
providing
for uninsured motor-
of its
policy
insured within
limits
reason
ist
is as follows:
of the insolvency of the insurer.
“(A)
policy insuring against
No
loss re-
sulting
liability imposed by
law for
In Keel v. MFA Insurance Company,1 we
bodily injury or death
by any
suffered
held that an insured who has a claim
person arising out of
the ownership,
against an uninsured motorist has the fol-
maintenance or use of a motor vehicle
lowing options:
issued, delivered, renewed,
shall be
or ex-
(1)
may
He
file an
respect
tended- in this state with
his insurance company
joining
registered
motor vehicle
principally ga-
or
party
motorist as a
defendant
raged in this
state unless the
litigate
and
all of
the issues of
and
cludes the
described in subsec-
damages in that one action.
(B)
tion
of this section.
(2) He
file
may
joining
an action
“(B)
referred
subsec-
uninsured motorist and the insurance com-
(A)
provide
tion
of this section shall
cov-
pany
as
defendants
litigate
all
erage
supplemental
therein or
thereto for
issues of
damages
in one ac-
protection
persons
insured thereun-
tion.
der who are legally entitled to recover
damages
(3)
operators
may
from owners or
of un-
He
file
an action
insured motor vehicles and hit-and-run
joining
uninsured motorist without
the in-
motor
bodily
vehicles because of
injury,
give adequate filing notice of the In Redman McDaniel,3 we held case ency compa- of such action to the insurance where insurance was not re- quired whatever action ny it take it carried the defendant and desires, including intervention. insurance carrier was not cause, is entitled to jurors ask (4) He file an action on questions voir dire such are necessary give uninsured motorist and no notice to necessary become to enable him to company. juror discover whether a is interested in the option Here the chose the second business, especially where he be- joined both “uninsured” motorist lieves that some the jurors may be writ- parties insurance carrier as ing insurance for an insurance company defendant. that he believes has written insurance for doing so, defendants. But in equal- it is Missouri, Kansas & Oklahoma Tran. *4 ly well settled that he should not indicate to Lines, Baker,2 Inc. we held a v. that munici- the jury that defendant is insured unless it pality require could ordinance a bus com- necessary is in order to obtain a free jury to pany maintain insurance under favoritism toward legislative delegation so to authority do. when plaintiff unnecessarily and without significant point It to is out that the ordi- justification brings the fact of insurance nance there under consideration expressly coverage to the attention of the such jury, provided the that insurer was not reversible be error. There, liable to the claimant. the trial court, joinder over objection, permitted the Thus, conclude, we that where the party as a defendant in insurer a fact insurance coverage is action, personal injury and in its instruc- brought before jury unnecessarily the or jury forcefully to the the jury tions advised forcefully where liability insurance cover protected by that the defendants were lia- age legislatively is not mandated where bility by the insurance issued defendant the insurer has no direct liability to the There, company. insurance after determin- claimant, jury are, such revelations ing properly party insurer was not a law, matter of prejudicial, and if in the case, we held: or might sured is have been harmed there consistently “This Court has adhered to by, reversible error. the rule to or suggest that inform
jury that a protected defendant be hand, the other On the insurer under by liability insurance loss or will a compulsory insurance policy be upon company, preju- fall an insurance is joined aas defendant with the in insured dicial a matter of law and constitutes injured anby person, third generally, ground judgment for reversal of the ren- theory on the that under statutes requiring dered. and controlling compulsory insurance, a di McDaniel, Okl., “In Redman et v. al. joint rect is right or created favor of 500, acknowledged we verity injured person against both insured and principle: many insurer.4 And our Court has on
‘Experence has demonstrated that
occasions held
that where a motorist
re
jurors
quired by
know that an insur-
statute or
to
a
ordinance
file
company
pay
ance
have
any policy
protect
will
verdict,
injured
entered on their
public
persons,
interests
knowledge
usually
will
though
expressly
reflected in a
giving
them di
”
larger recovery.’
joinder
rect benefit under the
policy,
Okl.,
(1964).
2.
869
4. For
an annotation of
cases
hold
1103;
ing,
20
see
A.L.R.2d
7A Am.Jur.2d
P.2d
We
same
find
decision of
Kansas Su-
insured
and the
insurer
preme
persuasive
in its determination
permitted.5
action is
the insured claimant has a contractual
us and under 36 O.S.
before
the case
In
right
bring
suit
its insurer under
liability insurance
supra,
Supp.1976,§
join
its uninsured motorist
and to
expressly leg-
is not
coverage on a motorist
alleged
as a defendant the third
tort
mandated;
if
insur-
islatively
However,
feasor.
the facts in Winner v.
motorist,
proffered to
ance is
Ratzlaff, supra,
significantly
distin-
statute,
coverage, as defined
motorist
guishable from
case before us. The
opts
the named
required, unless
place
here seeks to
motorist
such uninsured
reject
name of the
underinsured defendant’s
in the statute but
set forth
under conditions
insurer and the terms of the underinsured
involved.
which are not herein
Here,
policy.
defendant’s
underinsured
insurer is not a
defendant’s
considering an uninsured motorist
right
suit. Neither is there a contractual
O.S.1976, 3636(B),
to 36
statute similar
part
on the
to maintain a
Court, in the case of
the Kansas
claim
the underinsured defendant’s
Ratzlaff,6 held that the insured
Winner
Thus,
insurer.
the foundation
which
action both the uninsured
may join in one
Ratzlaff, supra,
Winner
rested is here
insurer. Pursu-
and the claimant’s
modified.
order the fact
ant
simply
What remains is
the determi
the liti-
was a
*5
of whether the
nation
trial court should
existence of uninsured motor-
gation or the
permit
presented
jury
evidence to be
the
jury.
ist
was not disclosed
of the name of both insurers
the
and
terms
in
judgment was rendered
The verdict and
where,
respective
their
policys
of
motorist and
favor of defendant uninsured
stipulations
because of the
entered in the
appealed. A Kansas statute for-
plaintiff
case,
prove
such evidence could not tend to
coverage dur-
bids the mention of insurance
disprove any
unresolved issues in the
action,
damage
much as
ing the
of a
trial
only
prejudice
case and could
serve
the
has forbidden
the
jury by advising
any judg
its members that
weighing
by judicial pronouncements.
it
ment for the
to the extent
it
that
against mentioning insur-
prohibition
exceeds the underinsured defendant’s cov
hand
ance
on the one
erage up
pol
to the underinsured motorist’s
right
to determine
plaintiff’s contractual
icy
paid
limits will
by plaintiff’s
be
insur
sue, the Kansas Court ruled
whom he would
justification
ance
The only
carrier.
rights
substantive
plaintiff’s
in favor of the
ruling
plaintiff’s
right
such a
asserted
only
contract not
reason of his insurance
control the manner in which his lawsuit
sue,
also
to determine whom he would
proceed
plaintiff postulates
shall
which
in
The Kansas
manner he desired.
right
place
jury
cludes the
before the
that, although by stipula-
Court concluded
plaintiff’s
names of both
insurer and de
judicial
tion or
there were no
admission
insurer, together
fendant’s
with the terms
tried between the
affirmative issues to be
respective policies.
In contrast to
carrier,
and his insurance
right
plaintiff’s
right
asserted
is the
of
right
had a
nevertheless
plaintiff’s
impartial
insurer to a fair and
maintain the action
jury unhampered by
obviously prejudi
motorist even
sured and the uninsured
impact
unnecessarily
forcefully
cial
of
and
permitted
plain-
though
procedure
having
thrust
their minds the fact
place
tiff to
the fact
plaintiff’s damages
paid wholly
will be
the claim was covered
the insurance and
part by plaintiff’s
or in substantial
insurer.
placed
proper perspective,
the name
When
in
we be-
of the insurer.
59,
606,
A.L.R.2d,
p.
seq.
5. 20
et
6. 211 Kan.
IRWIN, HARGRAVE, [1967]. C. SIMMS JJ., BOX, Special Judge, concur. clearly The issues before us are outside the merits of the controversy below. If this BARNES, J., part V. C. concurs in attention, petition warrants 952(3) our part. dissents in certiorari for corrective relief advance of JJ., HODGES, OPALA, DOOLIN and trial routinely granted should dissent. ruling unfavorable limine is chal- WILLIAMS, J., disqualifica- certified his lenged here as less perfect. than tion. The Honorable Dwain D. Box was appointed in his stead. II.
OPALA, Justice, dissenting:
THE COURT’S PRONOUNCEMENT SET-
*6
TLES
UNDER
ISSUES ARISING
is a proceeding
This
for certiorari
re-
THE NOW REPEALED 3636 COV-
§
judge’s
view a trial
certified
order
ERAGE
against
(Flora
plaintiff’s
an action
Fullman’s)
per-
risk carrier
recover for
controversy
collision in this
occurred
injuries
sonal
under the
of her
terms
unin-
28,1979.
January
Rights under
3636
§
[un
coverage
against
sured motorist
coverage] depend
insured motorist
on the
allegedly offending
car
driver
another
statute in effect
when
was issued
(Curtis
Tidmore).
Don
In the order certi- or was last renewed. MFA Ins. Co. v. Han
following matters should be withheld from
fied
ist endorsement.
the nature and the
erage
own
public liability
tiff’s uninsured motorist
limit of the
coverage.
The court holds
jury: (a)
protection
the jury
and of the terms of the
our review the trial
defendant’s
insurer and that of the
should be informed
under
identity
today
limits of
the uninsured motor-
public
of the defendant’s
carrier;
that all of the
liability
judge
the parties’
plaintiff’s
plain-
ruled
cov- 1269,
(b)
against
McKinley
erned here
kins, Okl.,
unless the tortfeasor’s
ence between the
torist
the adverse
is less than the
§
1976 3636. Under that act
3636 insured stands limited to the differ
§
1270
coverage
her
by
own
by
[1980], The plaintiff’s rights
[other]
Prudential,
limit
risk carrier are hence
higher
vehicle’s
terms of
(b)
public liability
Okl.App.,
the uninsured
§
787
3636
public
(a)
claim
36 O.S.Supp.
[1980]
there is no
limit and
carrier
of the
limit
gov
mo
explained,
Casualty
For the reasons
limit. Mid-Continent
to be
I would
Co.
Theus,
deny
certiorari.
effect —makes who rights one seeks to vindicate under the tortfeasor’s erage applicable uninsured motorist endorsement.3 With the limit is less than the amount public liability 1979 redefinition of coverage, 3636 there § claim, “regardless of the plaintiff’s of the longer great is no a need for the insured parties of . .. in rela- amount of routinely join party-defendant mine], [emphasis and the tion to each other” public tortfeasor insufficient longer re- 3636 insured is no claim of § expected limit. It can be more by the limit of the tortfeasor’s duceable 3636 claims which exceed the § tortfeasor’s liability protection.1 36 O.S.1981 public public liability limit doubtless will liti- 3636(C) (E). passage With § by the gated with his insur- amendment, 3636 be- § 1979 er. This is so because after the 1979 protection against came transformed amendment, the latter stands liable persons underinsured into a uninsured or entire claim that falls rubric. personal in- first-party veritable automobile Neither the tortfeasor nor his insurer need jury protection by from loss occasioned brought now be in as a participant limit motorist with of less than the litigation unless the § re- Today, the extent asserted claim. covery his own carrier turns out to exposure vastly insurer’s direct § be less than the public liability tortfeasor’s prior than under the 1968 and 19762 greater protection. In the wake of the 1979 exposure of our law. That no versions change, the 3636 carrier in suit will § longer dependent comparison on a opportunity often have the escape being respective policy limits. Nor it be identified as a protection jury. by diminished vehicle. The new apt available to the adverse most cases such carrier is only be the indemnity par- 3636 carrier is not party-defendant § in the action. The veil of coverage ap- tial but total. Whenever the anonymity provided insurers to- plies, from the gets the insured it all carri- day’s opinion likely will prove illusory more er. than real. Of the four alternatives offered Keel, only the first —a suit directly and III. solely against 3636 carrier —will THE COURT’S PRONOUNCEMENT PRO- present a viable option post-1979 initial LAW
VIDES CASE
IRRELEVANT
amply
who is
insured. A later
. TO LITIGATION STRATEGY PAT-
the tortfeasor —and thus in-
LIKELY
TERNS
TO EVOLVE UN-
the latter’s insurer —would
DER THE 1979 AMENDMENT TO represent
contingency
but a
to be used in
*7
recovery against
case
3636 carrier be
less than
public liability
In Keel v. MFA Insurance
the tortfeasor’s
Company,
[1976],
this court
limit.
Travis,
(2)
may
joining
Oklahoma: Uninsured/Underinsured
He
file an action
Tactics,
Coverage,
compa-
Motorist
Cases and
[Oklaho-
uninsured motorist and the insurance
CLE,
County
ny
litigate
ma
Bar Association’s
1979].
defendants and
all issues
damages
in one action.
pgs.
2. Okla.Sess.L. 1968
163-164 and Okla.
(3)
He
file an action
the unin-
pgs.
Sess.L. 1976
32-33.
joining
sured motorist without
company
give
ade-
options
3. These
are:
quate
filing
pendency
notice of the
“(1)
He
file an action
company
such action to the insurance
joining
his insurance
desire,
they
they
take whatever action
includ-
uninsured motorist as a
defendant and
ing intervention.
litigate
all of the issues of
and dam
(4)
He
file an action
the unin-
ages in that one action. Associated Indemni
give
sured motorist and
no notice to the in-
ty
Cannon,
Corp.
(Okl. 1975).
IV.
SUMMARY today
Even if the issues tendered to us suit, pending
were on the merits of the I This deny
would still certiorari. is so be-
cause we called to deal here with legal
obsolescent lore that will soon become antiquarian.
purely energies This court’s pretrial expended
should be neither on re- rulings on
view of limine nor the law
that was. DOOLIN,
I am authorized state that
J., joins my views. SMITH, Appellant,
Ernest Lee Oklahoma, Appellee. STATE
No. F-80-11. Appeals
Court of Criminal of Oklahoma.
June