Chandler (USA), Inc. v. Tyree

• Decision Date: 09 March 2004
• Docket Number: No. 96436,96436
• Citation: 87 P.3d 598,2004 OK 16
• Parties: CHANDLER (U.S.A.), INC., NATIONAL AMERICAN INSURANCE COMPANY and LAGERE & WALKINGSTICK INSURANCE AGENCY, INC., Appellees, v. TERRY J. TYREE, STATE INSURANCE FUND COMMISSIONER, Appellant.
• Court: Oklahoma Supreme Court

2004 OK 16

87 P.3d 598

CHANDLER (U.S.A.), INC., NATIONAL AMERICAN INSURANCE COMPANY and LAGERE & WALKINGSTICK INSURANCE AGENCY, INC., Appellees, v. TERRY J. TYREE, STATE INSURANCE FUND COMMISSIONER, Appellant.

No. 96436

Supreme Court of Oklahoma

Decided: March 9, 2004.

Linda R. Driskill and Jake Jones, Driskill & Jones, Oklahoma City, Oklahoma, and R. Patrick Gilmore, Chandler, Oklahoma, for Plaintiffs/Appellees.

Stephen G. Solomon, George W. Velotta II, and Gladys E. Cherry, Derryberry, Quigley, Solomon & Naifeh, Oklahoma City, Oklahoma for Defendant/Appellant.

EDMONDSON, J.

¶1 The substantive issue in this proceeding involves whether the Commissioner of the State Insurance Fund¹ was required to provide workers' compensation insurance to a company who competes with the Fund in providing workers' compensation insurance. Plaintiffs, three insurance entities with common ownership, Chandler (U.S.A.), National American Insurance Company, and Lagere & Walkingstick Insurance Agency, Inc., (collectively, Chandler), are in the business of providing workers' compensation insurance. However, only National American Insurance Company is an insurance carrier.

¶2 Chandler sought mandamus in the District Court to compel Terry J. Tyree, Commissioner of the Oklahoma State Insurance Fund (or Fund) to provide Chandler with workers' compensation insurance. The District Court determined that the Fund was required to provide the insurance. We conclude that Chandler did not meet its burden of proof and that it must be afforded an opportunity to engage in discovery to obtain facts to meet its burden, if such facts exist. Before discussing the merits of the controversy before us, we must address appellate jurisdiction and the motion to dismiss filed by the Fund.

I. Appellate Jurisdiction

¶3 Chandler's petition in the District Court seeks relief in the form of a writ of mandamus and a judgment for damages. The mandamus relief is a request that the court order the Fund to issue a policy of workers' compensation insurance. The trial court issued an alternative writ of mandamus. The Fund filed an objection. The parties filed Joint Stipulations of fact. The stipulations did not address the request for damages. A Journal Entry of Judgment was filed March 28, 2001. That order states that the issues have been fully briefed by both parties, issues mandamus, and directs the Fund to issue a policy of workers' compensation insurance to Chandler. The journal entry is silent on the issue of damages.

¶4 The Fund filed a motion for a new trial and Chandler responded. The Fund also sought a stay pending appeal. Chandler responded with an argument that a judgment for damages had not yet occurred. On June 8, 2001, the District Court denied the Fund's motion for new trial, but granted the application for a stay pending appeal. The order contained no references to the request for damages. Chandler appealed and the Court of Civil Appeals issued an opinion that reversed the writ issued by the District Court.

¶5 Chandler sought certiorari in this Court. While the matter was pending on certiorari the Fund filed a motion to dismiss the appeal as moot. The Fund argues that the only issue on appeal is the District Court order compelling the issuance of workers' compensation insurance. The Fund argues that Chandler has workers' compensation insurance from another source, and that the proceeding is moot because of this other insurance.

¶6 Chandler claims that the appeal is not moot because it sought damages resulting from the Fund's failure to issue a policy. Chandler argues that the Fund would be liable for damages on remand if this Court concludes on appeal that it should have issued the policy, and that a dismissal of the appeal would leave the rights of the parties undecided. Chandler also argues that the appeal presents an issue of public interest which will likely reoccur, and that such is an exception to the mootness doctrine. We first address appellate jurisdiction.

¶7 Chandler's claim for damages is pending in the District Court. The specific statutory procedure for mandamus is consistent with this general procedure and allows an adjudication of damages as part of that proceeding. 12 O.S.2001 § 1460.² One issue in Braine v. City of Stroud, 1963 OK 189, 385 P.2d 428, was whether a recovery of damages pursuant to § 1460 applied to a defendant's wrongful conduct that was also an element of, and gave rise to, the mandamus cause of action. Braine said that § 1460 did apply to damages for such wrongful conduct. Braine further concluded that a failure to request such damages in a mandamus proceeding would support a plea of res judicata (claim preclusion) in a subsequent action for damages. Id. 385 P.2d at 431-432.

¶8 The parties do not discuss whether the pending claim for damages is part of the same transaction as the mandamus claim. If the request for damages is defined as part of a single cause of action that also includes the requested mandamus relief,³ then the order in this case granting the writ of mandamus would be an interlocutory order anterior to the judgment. This is so because the writ does not adjudicate the entire cause of action. See 12 O.S.2001 § 681, (a judgment is a final determination of the rights of the parties with respect to a particular cause of action or claim for relief). The writ would thus not be appealable as a judgment.

¶9 The procedural posture of the district court writ is not susceptible of being construed as a timely appeal. For example, even if a writ such as this could be appealed prior to an adjudication of all claims pursuant to 12 O.S.2001 § 994, no § 994 certification was made in this case. The absence of the certification shows that the order is not appealable prior to adjudication of the remaining claim for damages. Liberty Bank and Trust Co. of Oklahoma City v. Rogalin, 1996 OK 10, 912 P.2d 836, 838.⁴

¶10 This Court has observed potential problems that may occur when a trial court adjudicates part of a cause of action and makes that adjudication immediately effective, although the trial court's order is not one of those that is appealable by right prior to judgment. Liberty Bank and Trust Co. v. Rogalin, 1996 OK 10, 912 P.2d 836, 837; Federal Deposit Ins. Corp. v. Tidwell, 1991 OK 119, 820 P.2d 1338, 1341-1342. In Federal Deposit Ins. Corp. v. Tidwell, supra, we dismissed an appeal and recast a portion of the petition in error as an application for prohibition. Id. 820 P.2d at 1342. We must dismiss the appeal herein because of a lack of appellate jurisdiction. However, prohibition was requested herein to prevent the enforcement of the trial court's writ, and we issue that writ with directions for further proceedings in the trial court.

¶11 The Commissioner claims that the proceeding is moot. The mootness doctrine applies to both appellate and original jurisdiction proceedings.⁵ We do not view the motion to dismiss for mootness as a bar to our assuming jurisdiction⁶ and granting prohibition ancillary to dismissing an appeal.

¶12 The concept of mootness is often linked to circumstances that result in a court's inability to grant effective relief, and any opinion in that controversy would possess characteristics of a hypothetical or advisory opinion. Westinghouse Elec. Corp. v. Grand River Dam Authority, 1986 OK 20, 720 P.2d 713, 720; Rogers v. Excise Bd. of Greer County, 1984 OK 95, 701 P.2d 754, 761. Mootness will not act as a bar when the challenged event is capable of repetition yet evading review. Federal Land Bank of Wichita v. Story, 1988 OK 52, 756 P.2d 588, 589.

¶13 The Fund argues that the controversy is moot because Chandler purchased workers' compensation insurance from a source other than the Fund. Chandler argues that the controversy is not moot because it has a pending claim for damages. The Legislature has expressed a clear public policy that employees covered by the Workers Compensation Act be secured either through insurance or through a self-insurance arrangement establishing the employer's ability to pay. Self Insurers' Management Group v. YWCA of Oklahoma City, 1997 OK 95, 954 P.2d 115, 118. An employer complying with public policy by providing insurance while pressing a judicial complaint against the Fund is an event of public interest that is capable of repetition. We thus hold that Chandler's alternative insurance coverage obtained during this proceeding does not moot the controversy, and the motion to dismiss because of mootness is denied.

¶14 In sum, this appeal would be untimely regardless of whether we construe the request for damages as part of the mandamus cause of action or as a separate cause of action. This Court lacks appellate jurisdiction because of the pending claim for damages in the District Court. We accordingly vacate the opinion of the Court of Civil Appeals herein because it is predicated upon the existence of appellate jurisdiction.

II. The District Court Proceeding

¶15 The controversy was tried on the briefs and joint stipulations submitted by the parties. The plaintiffs (Chandler) employ approximately five hundred people in Chandler, Oklahoma. Except for the State Insurance Fund, NAICO is the largest writer of workers' compensation insurance in Oklahoma. Chandler requested an application for insurance and a quote for tendering a check for the required premium. Chandler submitted an application, but the Fund declined to provide Chandler with an amount for Chandler to tender as its premium payment.

¶16 The Fund also declined to provide insurance, and Chandler asked why it would not receive the insurance. The Fund responded with a letter stating that: "While there are many considerations that enter into a decision of coverage, the unique issues and conflicts faced by both parties in providing overage for a fellow insurance carrier were prevailing factors in our decision to decline coverage."

¶17 Chandler sought a writ of mandamus in the trial court. The...