Frey v. Independence Fire and Cas. Co., No. 59091

CourtSupreme Court of Oklahoma
Writing for the CourtIn an action against the insurer to recover a loss under uninsured motorist coverage of automobile policy, the District Court, Oklahoma County, William R. Saied; OPALA; SIMMS; WILSON
Citation698 P.2d 17,1985 OK 25
PartiesCarl Phillip FREY, III, Gayla D. Frey; and Traci Frey, a minor, By and Through her father and next friend, Carl Phillip Frey, III, Appellants, v. The INDEPENDENCE FIRE AND CASUALTY COMPANY, an Oklahoma Insurance Corporation, Appellee.
Decision Date02 April 1985
Docket NumberNo. 59091

Page 17

698 P.2d 17
1985 OK 25
Carl Phillip FREY, III, Gayla D. Frey; and Traci Frey, a
minor, By and Through her father and next friend,
Carl Phillip Frey, III, Appellants,
v.
The INDEPENDENCE FIRE AND CASUALTY COMPANY, an Oklahoma
Insurance Corporation, Appellee.
No. 59091.
Supreme Court of Oklahoma.
April 2, 1985.
As Corrected April 2, 1985.

Page 19

Certiorari to the Court of Appeals, Div. 2

In an action against the insurer to recover a loss under uninsured motorist coverage of automobile policy, the District Court, Oklahoma County, William R. Saied, Judge, rendered summary judgment for the insurer. The Court of Appeals reversed and certiorari was granted.

THE COURT OF APPEALS' OPINION IS VACATED AND THE TRIAL COURT'S JUDGMENT AFFIRMED.

Jim W. Lee, Lee, Beuch & Davis, Oklahoma City, for appellants.

Rex K. Travis, Oklahoma City, for appellee.

OPALA, Justice.

Certiorari presents two questions: (1) Did the insured timely raise the issue whether the insurer, because of its denial of the insured's claims, was precluded, by waiver or estoppel, from relying on the insured's breach of the so-called trust agreement clause of his uninsured motorist coverage? and (2) Did the insured's "covenant not to sue", given the tortfeasor before suit was brought under the uninsured motorist coverage, destroy the insurer's subrogation rights and hence bar recovery under the doctrine announced in Porter v. MFA Mutual Ins. Co.? 1 We answer the first question in the negative and the second in the affirmative.

The insured, his wife and child were injured in a car accident with an underinsured tortfeasor. After accepting the tortfeasor's settlement offer, the insured executed a "covenant not to sue". Because the settlement is said not to have covered the total amount of his claims, the insured brought an action against his insurer to recover under the uninsured motorist coverage. The insurer moved for summary judgment, contending that the insured's breach of the policy's so-called trust agreement--by execution of a covenant not to sue the tortfeasor--had destroyed the insurer's subrogation rights. The insured filed neither a response nor objections to the motion. The trial court rendered summary judgment for the insurer. This appeal was then brought by the insured who was successful in the Court of Appeals. Certiorari was granted on insurer's petition.

The estoppel theory was first injected into the case when the insured attached several letters to his brief-in-chief on appeal. One of the letters was from the insured to the insurer. In it he advised the insurer of the tortfeasor's settlement offer. Another letter was the insurer's reply in which it denied liability and refused to participate in any settlement negotiations. The decision of the Court of Appeals doubtless was rested on the evidentiary material attached to the insured's brief. The appellate opinion here under review appears to hold that (1) the insurer must suffer the loss, as a matter of law, because the letter-attachments reveal the insurer's refusal to participate in the settlement with the tortfeasor and (2) the "covenant not to sue" was not a "general release" and hence the suit was not barred by the Porter doctrine.

On certiorari insurer argues that: (1) because the estoppel issue, relied on by the Court of Appeals, was raised for the first time on appeal, its consideration was improper; (2) the Court of Appeals dealt with an issue not previously decided by this court, i.e., whether a covenant not to sue the tortfeasor, without reserving any rights to the insurer, destroys the insurer's subrogation claim; and (3) whether the Court of Appeals decided the case contrary to Porter. We granted certiorari and now affirm the trial court's judgment.

I

TIMELINESS OF THE INSURED'S ESTOPPEL THEORY AS AN ISSUE ON APPEAL

The insurer contends that the insured's theory of estoppel or waiver was not raised

Page 20

below nor were the "facts" relied on in the appellate opinion a part of the evidentiary material before the trial court when summary judgment was rendered. In response, the insured asserts that the appellate court did not consider extraneous materials and, furthermore, that the Court of Appeals relied on the Porter doctrine in reaching its conclusion.

After summary judgment is granted, the objecting party cannot on appeal rely on any fact or evidentiary material that was not before the trial court at the time of its rendition. 2 The ruling on a motion for summary judgment must be rested on the record which is then before the court rather than on one that could have been assembled. 3 Similarly, the reviewing court is always limited to the issues actually presented below, as reflected by the record. 4

The insured presented below no defense to the insurer's quest for summary judgment. No reply was filed in which estoppel was plead. Nor did the insured submit below any evidentiary material--such as the later-proferred letter-exhibits--which could have qualified for incorporation into the appellate record. The insured cannot supplement the record on appeal by injecting into it material that was not before the trial court at the judgment stage. 5 Neither may an appellate pronouncement serve as a means of supplying a deficiency in the record tendered for review. 6 In short, there can be no post-decisional amendment of the record to include material that was not timely...

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105 practice notes
  • Andrew v. Depani-Sparkes, Case Number: 114082
    • United States
    • Supreme Court of Oklahoma
    • May 16, 2017
    ...by order of the Court of Civil Appeals).31 Culpepper v. Lloyd, 1978 OK 90, 583 P.2d 500, and Frey v. Independence Fire and Cas. Co., 1985 OK 25, 698 P.2d 17.32 Weeks v. Wedgewood Village, Inc., 1976 OK 72, 554 P.2d 780.33 12 O.S. Supp. 2013 Ch. 2, App. Rules for District Courts of Oklahoma,......
  • Boyle v. Asap Energy, Inc., Case Number: 112682
    • United States
    • Supreme Court of Oklahoma
    • October 24, 2017
    ...12, 136 P.3d 634, 637 and Pracht v. Oklahoma State Bank , 1979 OK 43, 592 P.2d 976, 978.8 Frey v. Independence Fire and Casualty Company , 1985 OK 25, 698 P.2d 17, 20 ("The ruling on a motion for summary judgment must be rested on the record which is then before the court rather than on one......
  • State v. Torres, No. 96996
    • United States
    • Oklahoma Supreme Court
    • February 24, 2004
    ...it material that was not before the trial court when the judgment or order under review was issued. Frey v. Independence Fire and Cas. Co., 1985 OK 25, ¶7, 698 P.2d 17, 20 ("[T]here can be no post-decisional amendment of the record to include material that was not timely admitted or properl......
  • State v. Torres, No. 96,996.
    • United States
    • Oklahoma Supreme Court
    • February 24, 2004
    ...it material that was not before the trial court when the judgment or order under review was issued. Frey v. Independence Fire and Cas. Co., 1985 OK 25, ¶ 7, 698 P.2d 17, 20 ("[T]here can be no post-decisional amendment of the record to include material that was not timely admitted or proper......
  • Request a trial to view additional results
104 cases
  • Andrew v. Depani-Sparkes, Case Number: 114082
    • United States
    • Supreme Court of Oklahoma
    • May 16, 2017
    ...by order of the Court of Civil Appeals).31 Culpepper v. Lloyd, 1978 OK 90, 583 P.2d 500, and Frey v. Independence Fire and Cas. Co., 1985 OK 25, 698 P.2d 17.32 Weeks v. Wedgewood Village, Inc., 1976 OK 72, 554 P.2d 780.33 12 O.S. Supp. 2013 Ch. 2, App. Rules for District Courts of Oklahoma,......
  • Boyle v. Asap Energy, Inc., Case Number: 112682
    • United States
    • Supreme Court of Oklahoma
    • October 24, 2017
    ...12, 136 P.3d 634, 637 and Pracht v. Oklahoma State Bank , 1979 OK 43, 592 P.2d 976, 978.8 Frey v. Independence Fire and Casualty Company , 1985 OK 25, 698 P.2d 17, 20 ("The ruling on a motion for summary judgment must be rested on the record which is then before the court rather than on one......
  • State v. Torres, No. 96996
    • United States
    • Oklahoma Supreme Court
    • February 24, 2004
    ...it material that was not before the trial court when the judgment or order under review was issued. Frey v. Independence Fire and Cas. Co., 1985 OK 25, ¶7, 698 P.2d 17, 20 ("[T]here can be no post-decisional amendment of the record to include material that was not timely admitted or properl......
  • State v. Torres, No. 96,996.
    • United States
    • Oklahoma Supreme Court
    • February 24, 2004
    ...it material that was not before the trial court when the judgment or order under review was issued. Frey v. Independence Fire and Cas. Co., 1985 OK 25, ¶ 7, 698 P.2d 17, 20 ("[T]here can be no post-decisional amendment of the record to include material that was not timely admitted or proper......
  • Request a trial to view additional results

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