Ball v. Wilshire Ins. Co.

• Citation: 2007 OK 80,184 P.3d 463
• Decision Date: 23 October 2007
• Docket Number: No. 104,939.,104,939.
• Parties: Amanda L. BALL, Petitioner-Appellant, v. WILSHIRE INSURANCE COMPANY, a North Carolina Insurance Company, Defendant-Appellee.
• Court: Supreme Court of Oklahoma

184 P.3d 463

2007 OK 80

Amanda L. BALL, Petitioner-Appellant, v. WILSHIRE INSURANCE COMPANY, a North Carolina Insurance Company, Defendant-Appellee.

No. 104,939.

Supreme Court of Oklahoma.

October 23, 2007.

Certified Questions Of Law From The United States Court Of Appeals For The Tenth Circuit.

¶ 0 The United States Court of Appeals for the Tenth Circuit (Tenth Circuit) certified five questions of Oklahoma law under the Revised Uniform Certification of Questions of Law Act, 20 O.S.2001 §§ 1601, et seq. Included with the certification materials were two orders issued by the Tenth Circuit. The first indicated that the appellate court was considering summary dismissal of the appeal for lack of jurisdiction. The second reserved the jurisdictional issue for decision by the panel assigned the cause. Because a decision by the Tenth Circuit to deny jurisdiction would render this Court's opinion advisory, we decline to answer the questions certified.

Answers to Questions Declined.

Rick W. Bisher, Ryan Bisher Ryan, Oklahoma City, OK, for Plaintiff-Appellant.

Scott M. Rhodes, James W. Dobbs, Smith Rhodes Stewart & Elder, P.L.L.C., Oklahoma City, OK, for Defendant-Appellee.

WATT, J.

¶ 1 The United States Court of Appeals for the Tenth Circuit certified five questions¹ of Oklahoma law under the Revised Uniform Certification of Questions of Law Act, 20 O.S.2001 §§ 1601, et seq. It is apparent from the materials accompanying the certification that the Tenth Circuit may refuse to exercise jurisdiction over the appeal.² Because this leaves any decision issued subject to being rendered a prohibited advisory opinion,³ we decline to answer the questions certified.

RELEVANT FACTS

¶ 2 On August 22, 2006, the District Court for the Eastern District of Oklahoma issued an order in which the trial judge recognized that the plaintiff-appellant, Amanda L. Ball (Ball), filed a lawsuit alleging that she was an insured under a policy issued by the defendant-appellee, Wilshire Insurance Company (Wilshire/insurer). Ball alleged that Wilshire breached the insurance contract and acted in bad faith by refusing to defend and by failing to timely pay uninsured motorist coverage. The order also notes that on August 21, 2006, Ball and Wilshire filed a stipulation of dismissal, effectively closing the bad faith suit.⁴ The stipulation of dismissal provides in pertinent part:

"... The parties in this matter give notice ... that Amanda Ball hereby dismisses without prejudice her remaining cause of action, breach of the UM contract, not previously disposed of by the Court by Summary Judgment...." [Emphasis added.]

¶ 3 Ball filed a notice of appeal on September 15, 2006, asserting that the trial court's order of August 21st, resolving the final issues in the cause, made an earlier order, entered on April 4, 2006, final and appealable. Ball admits that the April 4th order dismissed all of her claims with the exception of her breach of contract claim regarding uninsured motorist coverage.⁵ On October 5, 2006, the Tenth Circuit issued its first order indicating that it was considering summary dismissal of the appeal for lack of jurisdiction. Ball was directed to file a brief on the issue of whether "the judgment of the district court [was] final and appealable where the appellant dismissed her remaining cause of action without prejudice."⁶ [Emphasis provided.] Ball apparently sought an order from the trial court which issued on October 20, 2006, granting the motion for immediate certification of issues central to her bad faith claim. Noting the trial court's order, the Tenth Circuit issued an order on December 19th referring the jurisdictional issue to the panel assigned to hear the appeal on the merits.⁷

¶ 4 The Tenth Circuit's certification order was filed with this Court on August 20, 2007. On September 18, 2007, we issued an order indicating that an examination of the record revealed that the certifying court had reserved a jurisdictional issue for consideration on the merits. The parties were directed to file briefs showing cause why: 1) answers to the certified questions would not be advisory should the Tenth Circuit elect not to address the pending appeal on jurisdictional grounds; and 2) this Court should not exercise its discretion to refuse to answer⁸ the questions certified as issues which may not be determinative of the cause. Briefing on the merits was completed on September 24, 2007, with the simultaneous filing of answer briefs by both parties. On September 28, 2007, Ball filed a brief in response to the show cause order. Wilshire's brief was filed on October 2, 2007.

Answering the questions certified is inappropriate where a decision by the certifying court to deny jurisdiction would render this Court's opinion advisory.

¶ 5 The insurer acknowledges that, if the Tenth Circuit denies jurisdiction, any opinion issued here would be advisory.⁹ Ball urges us to answer the questions arguing that, even if the Tenth Circuit declines the appeal, our opinion would not be advisory as the questions certified are first impression and will settle an undetermined area of state law that will affect this case and all others with similar issues. We do not find Ball's arguments convincing and decline to answer the questions certified.

¶ 6 Pursuant to 20 O.S.2001 § 1602,¹⁰ this Court has discretion¹¹ to answer a question of law within designated guidelines when properly certified by specific tribunals. The authority to answer such questions is not universal. Rather, it extends only to those issues which may be determinative of the cause before the certifying court.¹²

¶ 7 We have elected not to answer questions certified in the past.¹³ In Scottsdale Ins. Co. v. Tolliver, 2005 OK 93, 127 P.3d 611, we declined to do so where controlling Oklahoma precedent existed on the issue certified. The Court did not answer a certified question in Cray v. Deloitte Haskins & Sells, 1996 OK 102, 925 P.2d 60 where the trial court had made a judicial determination of an issue over which this Court had no judicial review. The Cray Court determined that because the ultimate issue of review would lie in the federal court, it was inappropriate to answer the question certified. On two other occasions, we have declined to answer all of the questions certified.¹⁴

¶ 8 Here, the certification puts us in the position of answering questions which may not be determinative of any issue in the cause. Just as we are under a duty to inquire into our own jurisdiction,¹⁵ the Tenth Circuit must determine its jurisdiction to exercise its adjudicatory power.¹⁶ If the Tenth Circuit determines that it will not hear the appeal, the answers proffered would be given in the abstract.¹⁷ The certification statute does not extend to the exercise of such judicial authority. Furthermore, to render answers to questions which may never be subject to review in the federal cause would result in our issuing a prohibited advisory opinion¹⁸ concerning nothing more than a hypothetical situation.¹⁹ This we will not do.²⁰

CONCLUSION

¶ 9 The phrase indicating that a court "may" answer questions determinative of the cause has been included in statutes similar to Oklahoma's to ensure that answers to certified questions do not result in merely advisory opinions.²¹ We are not prepared to utilize the certification process to resolve issues that will have, at best, a speculative impact in determining the underlying cause. To answer the questions here might arguably promote judicial economy of the Tenth Circuit in a single case, but it would not do so for this Court nor for the federal courts in general.²² We determine that, under these particular circumstances, where the issue of jurisdiction remains unresolved in the federal court, it is inappropriate to answer the questions certified.²³

ANSWERS TO QUESTIONS DECLINED.

WINCHESTER, C.J., EDMONDSON, V.C.J., HARGRAVE, KAUGER, WATT, TAYLOR, COLBERT, JJ. concur.

OPALA, J. dissents.

1. As certified, the questions provide:

"1. Is a motor-vehicle-insurance-policy provision that excludes liability coverage for `Vehicles Loaned, Leased or Rented to others, including those dealerships and repair shops who provide [sec] while customer's auto is being repaired' void, in whole or in part, in light of Oklahoma's Compulsory Liability Insurance statute, Okla. Stat., tit. 47 §§ 7-600 to 7-612 (the Compulsory Insurance Law)?

2. If the answer to the first certified question is `yes,' does the exclusion nevertheless relieve an insurance company of its contractual duty to defend an insured?

3. If the answer to the second certified question is `no,' does an insurance company act in bad faith in relying on the exclusion to deny a defense to an insured?

4. If the answer to the first certified questions is `yes,' does the exclusion nevertheless apply to exclude uninsured/underinsured motorist coverage that was accepted by the named insured?

5. If the answer to the fourth certified question is `no,' does an insurance company act in bad faith in relying on the exclusion to deny or delay payment of uninsured/underinsured motorist benefits?"

2. On October 5, 2006, the Tenth Circuit issued an order for briefing providing in pertinent part:

"... The court is considering summary dismissal of this appeal for lack of jurisdiction. ...

JURISDICTIONAL ISSUE ...

Whether the judgment of the district court is final and appealable where the appellant dismissed her remaining cause of action without prejudice...."

On December 19, 2006, the Tenth Circuit issued an order providing in pertinent part:

"... The court reserves judgment on the jurisdictional issue raised in this court's show cause order. The matter will be referred to the panel assigned to hear this appeal on the merits...."

3. This Court does not issue advisory opinions or answer hypothetical questions. Scott v. Peterson, 2005 OK 84, ¶ 27, 126 P.3d 1232; City of Midwest City v. House of Realty, Inc., 2004 OK 56, fn. 14, 100...