Bruce v. Employers Cas. Co., 84967

• Decision Date: 02 May 1995
• Docket Number: No. 3,No. 84967,84967,3
• Citation: 897 P.2d 313
• Parties: 1995 OK CIV APP 65 Doris BRUCE, Appellant, v. EMPLOYERS CASUALTY COMPANY, and/or Employers of Texas Lloyd's, Inc., and/or Employers National Insurance Company, and/or Employers National Insurance Corporation, Appellees. Court of Appeals of Oklahoma, Division
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma

Page 313

897 P.2d 313

1995 OK CIV APP 65

Doris BRUCE, Appellant, v. EMPLOYERS CASUALTY COMPANY, and/or Employers of Texas Lloyd's, Inc., and/or Employers National Insurance Company, and/or Employers National Insurance Corporation, Appellees.

No. 84967.

Released for Publication by order of the Court of Appeals of Oklahoma, Division No. 3.

Court of Appeals of Oklahoma Division No. 3.

May 2, 1995.

Appeal from the District Court of Choctaw County; G. Gail Craytor, Judge.

REVERSED AND REMANDED WITH DIRECTIONS.

Robert D. Jones and Bryan W. Morris, Ardmore, for appellant.

Robert B. Mills and Kent R. McGuire, Oklahoma City, for appellees.

OPINION

HUNTER, Judge:

On June 4, 1989, Appellant was a passenger in a car which was struck by a railcar. The car in which she was a passenger did not have liability insurance. On June 1, 1994, Appellant mailed to the Choctaw County Court Clerk, by certified mail, her petition to commence her lawsuit.

Appellee, Employers National Insurance Company, in receivership, through the Oklahoma Property and Casualty Insurance Guaranty Association, moved for summary judgment asserting that the action was time barred. The undisputed evidence shows that on June 2, 1994, the Post Office left notice with the Court Clerk that the certified letter or parcel, numbered and addressed to the Court Clerk, was at the Post Office. The yellow slip also showed that the Court Clerk signed for the parcel on June 3, 1994. A yellow slip is the proof retained by the Post Office which reflects the history of certified mail. It is also uncontroverted that the petition has a June 7, 1994, file-stamp date with the Choctaw County Court Clerk's office. Appellees argue that the five year statute of limitations expired June 4, 1994.

When a "defendant moves for summary judgment on the basis of an affirmative defense he must show that there is no substantial controversy as to facts that are material to the affirmative defense, and that the facts and inferences that may be reasonably drawn from them are in his favor." Daugherty v. Farmers Cooperative Assoc., 689 P.2d 947, 949 (Okl.1984). On review of cases where the facts are presented to the trial court in documentary form, the appellate court "is free to substitute its analysis of the record for the trial court's analysis." Loffland Brothers Co. v. Overstreet, 758 P.2d 813, 817 (Okl.1988).

The trial court's grant of summary judgment based on its finding that the petition was received and filed on June 7, 1994, is erroneous in view of the conflicting evidence. According to statute, "[A] civil action is commenced by filing a petition with the court." 12 O.S.1991 § 2003. The file-stamp date does not always reflect the file date, however, because filing means "delivery of the instrument to the proper custodian ..." State National Bank v. Lowenstein, 52 Okl. 259, 155 P. 1127, 1129 (1915) (citation omitted). The Lowenstein court, at 1129, also restated the well-settled rule that "such delivery may be shown by...