Gaasch v. St. Paul Fire & Marine Ins. Co.

Decision Date06 February 2018
Docket NumberCase Number: 113035
Citation412 P.3d 1151
CourtOklahoma Supreme Court
Parties Stacey GAASCH, as Personal Representative of the ESTATE OF Troy GAASCH, Deceased, Plaintiff/Appellant, v. ST. PAUL FIRE AND MARINE INSURANCE COMPANY, Defendant/Appellee, and McGivern & Gilliard, P.C., an Oklahoma corporation, Defendant.

Victor Owens, Tulsa, Oklahoma, for Plaintiff/Appellant.

Jim Loftis, Loftis & Barnard, Norman, Oklahoma, for Plaintiff/Appellant.

Derrick T. DeWitt and Melanie K. Christians, Nelson, Terry, Morton, DeWitt, Paruolo & Wood, Oklahoma City, Oklahoma, for Defendant/Appellee.


¶1 Plaintiff brought an action in the District Court alleging the St. Paul Fire and Marine Insurance Company failed to timely provide reasonable and necessary medical treatment as previously ordered by the Workers' Compensation Court. St. Paul filed a motion for summary judgment which was granted. We conclude plaintiff's District Court action based upon a previous workers' compensation court adjudication required plaintiff to obtain a certification order prior to bringing an action in District Court.

¶2 Troy required multiple surgeries over several years due to his work-related injury. Troy was hospitalized due to his work-related injury. He allegedly became malnourished with accompanying weight loss and different physicians recommended a nutritional consult. A nurse case manager recommended monthly a nutritional consult. Troy died during his hospitalization approximately six months after the initial recommendation for a nutritional consult.

¶3 Prior to his work-related injury, Troy underwent a gastric bypass surgery

and allegedly suffered from a malabsorption syndrome secondary to this surgery. A disagreement arose between insurer and Troy concerning whether the insurer was required to pay for a nutritional consult. Insurer claimed Troy's nutritional problems were created prior to his work-related injury and his nutritional state in the hospital was not due to the work-related injury.

¶4 During his hospitalization Troy's counsel filed a Form 9 and requested an order from the Workers' Compensation Court for treatment by a nutritionist. The Form 9 was filed three days prior to Troy's death.1 Two days later and one day prior to his death, St. Paul Fire & Marine Insurance Company, the workers' compensation insurance carrier, approved the request for a nutritional consult. Troy died on February 26, 2010.

¶5 A few months later the Workers' Compensation Court held a hearing on the issue of death benefits. The court found "without a doubt that claimant died as a direct result of the original injury." The court made findings in support of this conclusion and relied upon one doctor's report and another doctor's autopsy report. The court awarded a lump sum payment, continuing payments, and an amount for funeral expenses. The payments were ordered to be paid to the surviving spouse and two children. This order was affirmed in part and modified in part by a three judge panel of the court. The order was reduced because one of the children was an adult. The panel agreed that claimant died as a direct result of his original work-related injury combined with "consequential injuries." The Court of Civil Appeals agreed in a subsequent appeal.

¶6 Stacey Gaasch, as personal representative of Troy's estate, brought an action in the District Court for Oklahoma County, and alleged the workers' compensation insurance carrier failed to provide Troy with the reasonable and necessary medical treatment as required by "the final orders of the Oklahoma Workers' Compensation Court."2 Plaintiff alleged McGivern & Gilliard, P.C., had acted as the agent for the insurer. Plaintiff stated the insurer breached its duty of "good faith" and characterized this allegation as a "bad faith" claim.

¶7 The second part of the petition plaintiff characterized as a claim for "wrongful death." Plaintiff alleged Troy's survivors suffered compensable damages arising from the insurer's breach of its duty of good faith and fair dealing associated with the insurance contract. The third part of the petition alleges the defendants (1) continued to deny approval of reasonable and necessary medical treatment until the day before Troy died, (2) made statements shortly before his death it would be cheaper for the insurer if Troy would die, and (3) the insurer's conduct and statements caused Stacey severe emotional distress.

¶8 A motion to dismiss was filed by McGivern & Gilliard and St. Paul. The motion to dismiss by McGivern & Gilliard was denied on Plaintiff's intentional infliction of emotional distress claim, and the trial court noted plaintiff had agreed the bad faith and wrongful death claims were not being asserted against McGivern & Gilliard.

¶9 The motion to dismiss brought by St. Paul was granted on plaintiff's "claim of bad faith" and denied on plaintiff's wrongful death claim. The trial court noted plaintiff voluntarily dismissed with prejudice the claim against St. Paul based upon intentional infliction of emotional distress.3

¶10 One claim was left for adjudication against McGivern & Gilliard, the one for intentional infliction of emotional distress. Plaintiff subsequently filed a dismissal with prejudice for "this case," i.e. , all causes of action against McGivern & Gilliard, and this party dropped out of the case. After the dismissal of McGivern & Gilliard one claim was left for adjudication in this case, the claim against St. Paul for wrongful death.

¶11 St. Paul sought summary judgment on plaintiff's wrongful death claim. St. Paul argued: (1) No wrongful death claim may arise from the breach of an insurance contract; (2) Plaintiff's exclusive remedy was provided by the worker' compensation statutes; (3) No evidence exists that Troy's death was the result of a denial of the nutritional consult; (4) No order was issued by the Workers' Compensation Court required for a breach of contract claim; and (5) Any claim for damages based upon a breach of contract would be limited to the value of the nutritional consult. St. Paul also argued Troy could have obtained a nutritional consult and submitted the charge to the Workers' Compensation Court as part of his claim. Defendant asserted Troy could have, at any time, filed a Form 9 with the Workers' Compensation Court and the issue of a nutritional consult would have been set for trial and determination by the Workers' Compensation Court.

¶12 Plaintiff responded to St. Paul's arguments and argued the wrongful death claim was not based upon a tort, but breach of an insurance contract. Plaintiff also argued the workers' compensation death benefits did not bar a separate recovery for wrongful death because the insurer did not "stand in the shoes of the employer." Plaintiff argued no certification order from the Workers' Compensation Court was required to bring a District Court action for an insurer's failure to provide medical benefits to a person covered by an insurance contract, i.e. , opinions from this Court requiring a certification order apply to bad faith actions and not actions for breach of contract. Plaintiff also argued that "medical providers, with rare exception, require authorization from a workers' compensation carrier prior to providing treatment." Further, plaintiff alleged the lack of a timely authorization from St. Paul was a cause of Troy's death.

¶13 The District Court granted St. Paul's motion for summary judgment. The trial court simultaneously determined plaintiff's motion for partial summary judgment was moot because of the judgment granted to St. Paul. Plaintiff appealed and this Court retained the appeal. Our review is limited to those assignments of error listed in plaintiff's petition in error which are supported by argument and authority in plaintiff's trial court briefs.4

I. Wrongful Death and Plaintiff's Alleged Breach of Contract

¶14 The common law provided no remedy in tort when a person's injury to another resulted in that person's death because the injured person's right of action abated on death.5 Generally, a cause of action in the common law based on contract survived and could be enforced by the personal representative of the deceased.6 Whether an action survived was not based upon the form of the action being in contract versus tort, but whether the alleged injury was to property and rights of property which survived, or injury to the person which did not survive.7

¶15 The harshness of this situation was ameliorated by statutes allowing for the decedent's personal representative to bring an action for the decedent's death only if at the time of his or her death, the decedent had a right of recovery for the injuries in suit.8 General survival and abatement statutes are codified at 12 O.S.2011 §§ 1051-155, inclusive, where, for example, 12 O.S. §§ 10519 & 105310 include causes of action for injury to the deceased, including pain and suffering, as well as a cause of action for damages resulting from the death of the injured person.11

¶16 The § 1053 action allows a plaintiff to recover for "loss of consortium and the grief of the surviving spouse." Plaintiff argues a wrongful death action may be based upon a breach of contract where damages for personal injuries are sought. Again, plaintiff argues the action is for consequential damages resulting from a wrongful death and is based in contract.

¶17 Historically, when an action is a claim which seeks to recover for unliquidated damages for a personal injury caused by negligence, although the negligence complained of amounts to a breach of contract on the part of the defendant , the action is one ex delicto and the law of torts governs that claim.12 We have explained a surviving spouse's wrongful death action "is purely statutory, [and] suit may be brought only by a person expressly authorized by statute to do so" within the two-year limitations period provided by § 1053.13 Of course, an action founded upon a contract survives and may be brought by an...

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