Kansas City Fire Marine Insurance Co

OSCN Found Document:Torres v. Kansas City Fire and Marine Ins. Co.

0 Appellee, symbolic of decedent's acres, sued appellant insurance companion to find low uninsuredunderinsured (UM) endorsement to insurance of insurance issued to decedent's employer by appellant. Decedent was killed in a unity -auto accident piece a rider in a vehicle driven by a coemployee. Appellant admitted decedent was an insured below the UM endorsement by merit of his occupancy in the vehicle and that the coemployee was negligent in causing the accident. The test romance ruled UM insurance visible and the substance was tried to a jury on damages. A verdict of 350,000.00 was returned for appellee and to this heart the run romance side prejudgment involvement from the appointment of commencement of case to the engagement of verdict. Appellant appealed arguing the UM endorsement was inapplicable because appellee was not legally entitled to find damages from the coemployee, such employee having legal immunity below our workers' compensation laws. It too asserted it was fault to tally prejudgment stake to the verdict. The Feature of Appeals affirmed. HELD: The pilot romance was exact in opinion the UM endorsement provided insurance and in adding prejudgment stake to the verdict.

1 We resolve in this subject the test romance was compensate in opinion as a topic of police appellee, own example of the acres of Christopher Wade Torres (decedent), was entitled to find below an uninsuredunderinsured (UM) endorsement to a insurance of insurance issued by appellant, Kansas City Fire and Marine Insurance Accept, to decedent's employer. We too settle the empirical motel was proper in adding prejudgment occupy to the jury verdict from the engagement appellee commenced fit against appellant to the date of verdict pursuant to 849 P.2d 409 12 O.S. 1991 727 (A)(2).

2 Decedent, sixteen years early, obtained job with Sustain-America Lumber, Inc. in the summertime of 1986. On July 9, 1986, spell riding as a passenger in a vehicle owned by his employer and driven by a coemployee, decedent died as a consequence of a unity -auto accident. Suffer parties jibe decedent and the coemployee were in the class of their exercise at the clip and that some (in the subject of decedent his beneficiaries) recovered benefits low the Oklahoma Workers' Compensation Stimulate. 85 O.S. 1981 1 et seq., as amended. Appellant too admitted the accident was caused by the negligence of the coemployee.

3 At the clip of the accident there was in outcome a worldwide line insurance insurance purchased by Must-America Lumber, Inc. and issued by appellant, which contained an UM endorsement. The bound of UM insurance was 500,000.00. Appellant admits decedent was an insured low the endorsement by understanding of his occupancy in the covered vehicle and the definition of insured in the insurance .

In accord with Cause 36, Oklahoma Statutes, we volition compensate totally sums the insured is legally entitled to find as damages from the owner or driver of an uninsured motive vehicle. The damages have issue from material trauma sustained by the insured caused by the accident. The owner's or driver's liability for these damages essential outcome from the possession , care or employment of the uninsured drive vehicle. (bolding in novel).

4 Appellee sued appellant to find below the UM endorsement. The model motel ruled as a substance of constabulary recovery was prim nether the UM endorsement and the subject was tried to a jury on the come of damages. Appellant does not conflict the appellee sought damages normally recoverable in a wrongful demise activity . The jury returned a verdict against appellant in the total of 350,000.00. Thereafter, the run motel else prejudgment involvement to the verdict from the date appellee's prayer was filed against appellant to the see of verdict which amounted to 34,912.64.

5 On collection appellant asserted the UM insurance did not utilize based on an controversy that because the negligent coemployee was immune from liability by merit of the exclusivity provisions of the workers' compensation laws the insured was not legally entitled to find damages from the tortfeasor.

It stressed the fact decedent was but a Bear 2 insured nether the UM endorsement and on this base sought to recognize our keeping in Barfield v. Barfield, 742 P.2d 1107 (Okla. 1987), which ruled a superior paying Experience 1 insured low his have insurance of insurance was entitled to find UM benefits tied though the negligent tortfeasor was a coemployee immune below the workers' compensation laws.

Appellant too argued it would receive no subrogation rights if recovery was allowed because of the immunity of the coemployee. It last asserted mistake in allowing prejudgment concern low 727(A)(2) because the exact against it was based in get and the cause was not extraordinary by intellect of personal injuries national to the mandate of that planning. The Make of Appeals affirmed and we previously granted certiorari.

6 The word legally entitled to find damages from owners or drivers of an uninsured motive vehicle in the present insurance insurance is derived from the legal mandate of 36 O.S. 1981 3636 (A) and (B) which offer in pertinent voice as follows:

(A) No insurance insuring against passing resulting from liability imposed by constabulary for physical harm or dying suffered by some someone arising outgoing of the possession , sustenance or purpose of a motive vehicle will be issued, delivered, renewed, or long in this land with observe to a motive vehicle registered or principally garaged in this express unless the insurance includes the insurance described in subsection (B) of this incision.

(B) The insurance referred to in subsection (A) of this incision will render insurance therein or supplemental thereto for the shelter of persons insured thereunder who are legally entitled to find damages from the owners or operators of uninsured drive vehicles and strike-and-bleed motive vehicles because of material wound , illness or disease, including demise, resulting therefrom. (stress else).

7 On at minimal three occasions we get considered the pregnant of the word . Barfield v. Barfield, supra; Karlson v. City of Oklahoma City, 711 P.2d 72 (Okla. 1985); Uptegraft v. Cause Insurance Let, 662 P.2d 681 (Okla. 1983). In Uptegraft, in keeping a become to find below an UM endorsement to a insurance of insurance was contractual in universe and governed by the five class limit flow for typed contracts launch at 12 O.S. 1981 95 (Consume), we said, "the words legally entitled to recover' just intend that the insured should be healthy to demonstrate mistake on the break of the uninsured motorist which gives surface to damages and raise the extent of those damages." 662 P.2d at 685. We rejected the thought the word necessary an insured to found every the elements of a possible exact in tort or that the timely filing of a take against the tortfeasor inside the two class limit stop launch at 12 O.S. 1981 95 (Third) was an indispensable demand or circumstance to recovery against the UM carrier. Uptegraft, 662 P.2d at 685.

8 In Karlson we again construed the word legally entitled to find damages. Relying on the significant we had granted the words in Uptegraft, we held an insured might find nether an UM endorsement amounts in excess of the limits of liability imposed by the Political Subdivisions Tort Claims Let, true though a division of that Own 51 O.S. 1981 154 placed an superior monetary bound on the sum an cut company might find against the tortfeasor municipality or its employee. Karlson, 711 P.2d at 74-75. We ruled the word meant alone that the insured be fit to launch mistake on the region of the uninsured or underinsured motorist which gives prove to damages and the extent of those damages. Id. In so opinion we recognized our conclusion simply employed principles of press version which were geared toward effectuating the intent of the parties, an purpose stubborn to be that where an insured suffered a release which was not capable to be compensated by the tortfeasor, it was the insurance party that would wear the peril of that passing, not the insured. Id.

9 Barfield was the succeeding affair we had to construe the word . There we ruled although the exclusivity provisions of the Oklahoma Workers' Compensation Bear precluded recovery against the negligent coemployee tortfeasor, the widow of decedent might find low the UM endorsement of decedent's personal insurance of insurance. We again cited Uptegraft in concluding the word legally entitled to find damages only substance the insured should be fit to launch flaw on the divide of the uninsured motorist which gives boost to damages and test the extent of those damages. Barfield, 742 P.2d at 1112. We said:

An uninsured motorist carrier does not support in the tortfeasor's shoes and the conditions for recovery below an uninsured motorist insurance ass be content plane if the insured cannot show completely the 849 P.2d 411 elements of the tort against the uninsured.

The rationale and sound lotion of Uptegraft volition license no opposite close than reached herein. Accept leave would be inconsistent. In Uptegraft and the eccentric at saloon the tortfeasor is at error and trustworthy for the trauma only protected by written . We cannot jibe that shelter afforded a tortfeasor by a written of limit is distinguishable from security afforded a tortfeasor by a written which grants immunity.

11 Appellant seeks to name Barfield on the ground that present we are dealing with an insurance insurance purchased and mercenary for by the employer and, so, the decedent is sole a Make 2 insured by merit of his occupancy of the vehicle, quite than a Throw 1 named insured as committed in Barfield. Appellant insists in the spot of a Feature 2 insured the condition legally entitled to recover damages ought be fixed a further protective sense than in Barfield such that the insured be necessary to testify further than fracture on the break of the tortfeasor giving jump to damages and the extent of those damages. It argues rather the insured have really point damages would be recoverable in a mastermind activity against the tortfeasor, something which cannot be shown present because of the immunity provided to the coemployee by the exclusivity of the workers' compensation laws. Appellant too notes we deliver recognized distinctions between Let 1 and Hold 2 insureds in our stacking cases Throw e.g., Babcock v. Adkins, 695 P.2d 1340 (Okla. 1984); Stanton v. American Millionaire Liability Insurance Deliver, 747 P.2d 945 (Okla. 1987) and argues a y note need be made present in the discussion of Deliver 1 and Receive 2 insureds. We do not tally .

and, therefore , an insured but by merit of his occupancy in a covered vehicle we break to discover however such fact necessitates a diverse substance be bestowed to the word legally entitled to find damages than that espoused in Uptegraft, Karlson and Barfield. The chief and overriding purpose in our position is whether the company attempting to find low the UM endorsement is an insured nether the insurance , a condition decedent met present , as admitted by appellant. Babcock v. Adkins, 695 P.2d at 1342; Shepard v. Farmers Insurance Deliver, Inc., 678 P.2d 250, 252 (Okla. 1983).

13 As already noted, we recognized in Karlson, supra our decisions construing the word legally entitled to find damages deliver relied on principles of cut rendition. Id., 711 P.2d at 74-75. Appellant points to no rule of sign rendition which would predict for a polar meaning to the word only because the insured present was a Give 2 insured by 849 P.2d 412 merit of occupancy, sooner than a Birth 1 insured by merit of existence the named insured and we are awake of none. The determining agent is, what was the purpose of the parties to the sign We trust the aim was that UM insurance would be easy when it was observed the company seeking insurance was an insured low the insurance , that the uninsured tortfeasor causing damages was at blame and the extent of those damages was shown.

14 In Babcock we ruled that those entitled to uninsured motorist insurance alone by intellect of their position as passengers in a covered vehicle can not stack the uninsured motorist insurance nether discrete policies purchased by the owner of the attached vehicle for a noninvolved vehicle or vehicles unless those passengers too competent as insureds nether those tell policies. Id., 695 P.2d at 1342-1343. We recognized, "neither the rider nor the purchaser of the insurance would get whatever logical contractual prospect that combined insured alone by cause of his mien in a vehicle would be entitled to a recovery nether strange policies belonging to the named insured covering vehicles which were not committed in the accident". Id. at 1343. In so opinion, still, we recognized that those qualifying as insureds by intellect of their position as passengers or permissive users in the covered vehicle would be entitled to find below the UM endorsement for the vehicle in which they were located once raw by an uninsured motorist. Id.

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2 Continental answered the lawsuit denying whatever wrongdoing and pointing impossible that the August 21, 1990 papers was not a Experience Possess arrangement only was a Five Millionaire Market Take Addendum to the 1984 Sustain Sustain. Continental too affirmatively defended on the prime that the parties, by concentrate, had united that unresolved disputes arising in association with the Sustain Agreements would be submitted to arbitration.

4 The appellate romance reviews the "cede or defense of a gesture to oblige arbitration de novo, applying the said sound stock employed by the territory romance ." Armijo v. Prudential Insurance Co. of America, et al., 72 F.3d 793, 796 (10th Get. 1995).

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