Cofer v. Morton

• Decision Date: 12 December 1989
• Docket Number: No. 72485,72485
• Citation: 784 P.2d 67,1989 OK 159
• Parties: Thomas W. COFER, Administrator of the Estate of Eddie Moye Cofer, Plaintiff, v. Johnny Wesley MORTON and Iowa Mutual Insurance Co., Defendants.
• Court: Oklahoma Supreme Court

Page 67

784 P.2d 67

1989 OK 159

Thomas W. COFER, Administrator of the Estate of Eddie Moye

Cofer, Plaintiff, v. Johnny Wesley MORTON and Iowa Mutual Insurance Co., Defendants.

No. 72485.

Supreme Court of Oklahoma.

Dec. 12, 1989.

Certified Questions from the United States District Court for the Western District of Oklahoma; David L. Russell, Judge.

Federal Certified Questions. Questions of law certified to the Supreme Court of Oklahoma pursuant to the Oklahoma Uniform Certification of Questions of Law Act, 20 O.S.1981 § 1601-1613, from the United States District Court for the Western District of Oklahoma.

Jack B. Sellers Law Associates, Inc. by Bruce A. McKenna, Sapulpa, for plaintiff.

Abowitz & Welch by Mort G. Welch, Oklahoma City, for defendant Iowa Mut. Ins. Co.

HODGES, Justice.

The United States District Court for the Western District of Oklahoma has certified two questions of law to this Court pursuant to the Oklahoma Uniform Certification of Questions of Law Act, 20 O.S.1981 § 1601 et seq. The two questions certified for answer are:

I. Under Okla.Stat. tit. 36, § 3636(C), as amended effective March 16, 1976, and prior to its amendment effective May 16, 1979, is the determination that a vehicle is an "uninsured motor vehicle" made by comparing (1) the per person limit of liability of the tortfeasor's bodily injury liability insurance coverage to the per person limit of liability of the insured's uninsured motorist coverage, or (2) the per person limit of liability of the tortfeasor's bodily injury insurance coverage to the "stacked" limits of liability of the insured's uninsured motorist coverage calculated by multiplying the per person limit of liability of the uninsured motorist coverage by the number of vehicles insured under the policy for which a separate premium for uninsured motorist coverage is charged?

II. Under Okla.Stat. tit. 36, § 3636(B) as amended effective March 16, 1976, what is the effect, if any, of the failure of the insurer providing uninsured motorist coverage to offer to the insured increased limits of liability for uninsured motorist coverage not to exceed the limits of liability provided in the insured's policy for bodily injury liability insurance coverage where one of the named insureds is aware of the availability of increased limits of liability for uninsured motorist coverage and chooses to purchase uninsured motorist coverage with the minimum limits of liability provided for by law?

The Certification Order provides for consideration by this Court of the following statement of facts describing the nature of this controversy:

1. Defendant Iowa Mutual Insurance Company issued a policy of automobile insurance number 35-1271343 in the name of Roy D. Goodner, Inc., Roy D. Goodner, Thomas D. Goodner, Red Top Stamp Co., and Goodner # 2, Inc., effective from September 17, 1978 until September 17, 1979, with a per person limit of liability for uninsured motorist coverge of $5,000, and a per person limit of liability for bodily injury liability coverage of $250,000. The policy when issued described ten vehicles for which a separate premium was charged on each vehicle for uninsured motorist coverage. As of April 15, 1979, 12 vehicles were described on the policy for which a separate premium was charged for uninsured motorist coverage.

2. Thomas D. Goodner is the son of Roy D. Goodner and the President of Roy D. Goodner, Inc., Red Top Stamp Company and Goodner # 2, Inc. He was the person who purchased the Iowa Mutual Insurance Company policy from the Duncan Insurance Agency in Duncan, Oklahoma. ¹ At the time he purchased the policy Mr. Goodner was aware uninsured motorist coverage could be obtained in an amount up to the amount of liability insurance purchased in the policy but decided to purchase the minimum amount of uninsured motorist coverage available instead.

3. For the purpose of this certification proceeding, it is assumed that Iowa Mutual Insurance Company did not make an offer to Thomas D. Goodner of uninsured motorist coverage with increased limits of liability not to exceed the limits of liability of the bodily injury liability insurance coverage in the policy.

4. Eddie Moye Cofer was the natural son of Shirley M. Goodner. On April 15, 1979, Shirley M. Goodner was married to Roy D. Goodner, who was not Eddie Moye Cofer's natural father.

5. On April 15, 1979, while a pedestrian, Eddie Moye Cofer was struck by a vehicle driven by Johnny Wesley Morton.

6. At the time of the accident Morton was insured under a policy of automobile insurance having a per person limit of liability for bodily injury liability coverage of $10,000.

7. On April 9, 1981, Eddie Moye Cofer filed a Complaint in this case against Morton to recover damages as a result of the April 15, 1979 accident. On March 3, 1982, Eddie Moye Cofer filed an Amended Complaint adding Iowa Mutual Insurance Company as a Defendant and seeking recovery for the damages sustained as a result of the April 15, 1979 accident under the uninsured motorist and medical expense coverages of the policy issued by Iowa Mutual Insurance Company.

8. After a bifurcated trial on September 27, 1982, a jury returned a verdict in favor of Cofer against Morton, finding Cofer 30% negligent and Morton 70% negligent in causing the accident on April 15, 1979, and fixing Cofer's damages at $300,000. On September 28, 1982, a jury answered an interrogatory finding Eddie Moye Cofer was a resident of the household of Roy D. Goodner and Shirley Goodner on April 15, 1979. The effect of this finding was to qualify Eddie Moye Cofer as a person insured under the uninsured motorist coverage of the policy issued by Iowa Mutual Insurance Company.

9. On February 3, 1983, judgment was entered on the verdict in favor of Eddie Moye Cofer against Morton for $210,000 damages and $46,257.30 pre-judgment interest. Morton and Iowa Mutual Insurance Company appealed the judgment against Morton and, on December 2, 1986, the Tenth Circuit Court of Appeals affirmed the judgment against Morton.

10. During the pendency of the appeal Eddie Moye Cofer died on June 20, 1986. After the case was remanded from the Tenth Circuit Court of Appeals, the present Plaintiff, Thomas W. Cofer, Administrator of the Estate of Eddie Moye Cofer, deceased, was substituted as Plaintiff on April 29, 1988.

I.

Rights of recovery under the Uninsured Motorist Act are governed by the statute in effect on the date of issuance or last renewal of the policy against which an uninsured motorist claim is made. Uptegraft v. Home Ins. Co., 662 P.2d 681 (Okla.1983). On September 17, 1978 (the policy issuance date) subsection (C) of 36 O.S. § 3636 read as follows:

(C) For the purposes of this coverage the term "uninsured motor vehicle," shall include an insured motor vehicle where the liability insurer thereof is unable to make payment with respect to the legal liability of its insured within the limits specified therein because of insolvency or whose liability insurer for any reason either cannot or is not legally required to accord at least the per person coverage limits with respect to the legal liability of its insured, applicable to any injured party under any uninsured motorist coverage covering such injured party. (emphasis added).

This Court has construed the emphasized portion of the statute to mean that a tortfeasor's vehicle is uninsured if the per person limit of liability of the injured party's uninsured motorist coverage is greater than the per person limit of liability of the tortfeasor's liability coverage. Mid-Continent Cas. Co. v. Theus, 592 P.2d 519 (Okla.1979). Defendant Iowa Mutual Insurance Company (hereinafter "IM") argues that, in the present case, the tortfeasor's vehicle was not uninsured as it was covered by a $10,000 per person limit of liability for bodily injury coverage while the injured party's coverage only afforded a per person limit of liability for uninsured motorist coverage of $5,000. The plaintiff takes the position that the tortfeasor's vehicle was uninsured because the policy containing the $5000 per person limit of liability for uninsured motorist coverage listed 12 vehicles for which separate premiums had been paid. Therefore the stacked limits of liability for uninsured motorist coverage would be $60,000 which is greater than the tortfeasor's $10,000 per person limit of liability for bodily injury coverage.

IM relies heavily on this Court's holding in Heavner v. Farmers Ins. Co., 663 P.2d 730 (Okla.1983), where the tortfeasor's $20,000 bodily injury liability coverage was divided among the passengers with Heavner receiving only $4500. In analyzing Heavner's subsequent claims (under the 1976 statute) against two uninsured motorist coverage carriers, not only did the Court treat each policy separately in determining whether the tortfeasor's vehicle was uninsured, but it rejected Heavner's contention that the bodily injury liability and the uninsured motorist coverage be stacked. Prior to Heavner, the Court had allowed (under the 1968 statute) stacking of uninsured motorist coverage under two policies from one carrier where two separate premiums had been paid. Keel v. MFA Insurance Company, 553 P.2d 153 (Okla.1976). In construing the 1979 version of § 3636(A) and (B) (which provisions were identical to the 1976 versions) the Court continued to apply the rationale of Keel and stacked the limits of uninsured motorist coverage where one policy covered three vehicles for which three premiums had been paid. Richardson v. Allstate Ins. Co., 619 P.2d 594 (Okla.1980). Under the current version of § 3636, this Court has reiterated its commitment to allow stacking of uninsured motorist coverage in various situations. See State Farm Mut. Auto. Ins. Co. v. Wendt, 708 P.2d 581 (Okla.1985) and Lake v. Wright, 657 P.2d 643 (Okla.1982).

Any decision reached in answer to the first certified question therefore must focus on the legislative intent evidenced in the...