Knight ex rel. Ellis v. Miller

• Decision Date: 16 September 2008
• Docket Number: No. 103,460.,103,460.
• Citation: 195 P.3d 372,2008 OK 81
• Parties: Robert David KNIGHT, by and through his guardian ad litem Carol Sue ELLIS, Plaintiff/Appellant, v. Johnny MILLER, Timeline Recovery, L.L.C., and Empire Fire and Marine Insurance Company, Defendants/Appellees.
• Court: Oklahoma Supreme Court

195 P.3d 372

2008 OK 81

Robert David KNIGHT, by and through his guardian ad litem Carol Sue ELLIS, Plaintiff/Appellant, v. Johnny MILLER, Timeline Recovery, L.L.C., and Empire Fire and Marine Insurance Company, Defendants/Appellees.

No. 103,460.

Supreme Court of Oklahoma.

September 16, 2008.

Review of Certified Interlocutory Order, Entered in the District Court of Creek County.

¶ 0 Plaintiff in a pending personal injury case seeks review of a certified interlocutory order of Honorable Douglas W. Golden, District Judge, dismissing plaintiff's declaratory judgment petition based on the determination that the plaintiff's request for a pre-judgment declaration of an insurer's rights and responsibilities did not present an actual justiciable controversy; dismissal having been based additionally on the finding that such a declaration, if rendered, would not terminate all or part of the controversy giving rise to the proceedings.

PETITION FOR CERTIORARI PREVIOUSLY GRANTED; CERTIFIED INTERLOCUTORY ORDER OF THE DISTRICT COURT AFFIRMED.

Patrick E. Carr, A. Laurie Koller, Carr & Carr, Tulsa, OK; Rex Travis, Paul D. Kouri, Oklahoma City, OK, for Plaintiff/Appellant.

Mark A. Smiling, Gerald M. Bender, Tulsa, OK, for Defendant/Appellee Timeline Recovery.

David S. Landers, Tulsa, OK, for Defendant/Appellee Johnny Miller.

Michael J. Masterson and David R. Smith, Tulsa, OK, for Defendant/Appellee Empire Fire & Marine Insurance Company.

EDMONDSON, V.C.J.

¶ 1 In 2004 the legislature deleted from our Declaratory Judgment Act, 12 O.S.2001 § 1651, a proscription of declarations of liability or nonliability for damages on account of alleged tortious injuries "concerning obligations alleged to arise under policies of insurance covering liability or indemnity against liability for such injuries." The question before us in this accelerated review is whether, under the revised statute, a plaintiff in a negligence/injury suit, who has not yet obtained a judgment against a tortfeasor, may bring a declaratory judgment action against the tortfeasor's insurer to determine issues of liability or indemnity insurance coverage.

¶ 2 We find that notwithstanding the statutory change, the trial court correctly determined the facts of this case do not present an actual justiciable controversy. Certiorari was previously granted to review the certified interlocutory order of the trial court and we affirm that court's dismissal of the action.

¶ 3 Plaintiff, Robert Knight, through his guardian ad litem, brought a suit in negligence against defendants Johnny Miller and Miller's employer, Timeline Recovery, L.L.C. (Timeline), for injuries he suffered in a motor vehicle accident on Highway 16 in Okmulgee County on January 17, 2003, when his vehicle collided with a pick-up truck occupied by defendant Johnny Miller and Melissa Stone and owned by Timeline. At the time of the accident, Ms. Stone and Mr. Miller were returning from Muskogee where Mr. Miller had been on a repossession assignment for Timeline. Ms. Stone, who had joined her friend Mr. Miller for the trip, was driving. Ms. Stone was killed and both Mr. Knight and Mr. Miller sustained serious injuries. Mr. Knight's petition alleged Ms. Stone and Mr. Miller were agents of Timeline, which should be liable on grounds of respondeat superior, negligent entrustment and permissive use.

¶ 4 The trial court permitted Mr. Knight to amend his petition to add a request for declaratory judgment against Timeline's insurer, Empire Fire & Marine Insurance Company (Empire), that its commercial general liability insurance policy provided coverage for the accident and for all plaintiff's injuries which defendants Miller and/or Timeline should become legally obligated to pay, up to the limit of the policy.

¶ 5 Empire moved the court to dismiss the claim, contending (1)the action is not authorized by our Declaratory Judgment Act, and (2) plaintiff was merely trying to obtain an advisory opinion about a hypothetical question. Empire argued that Knight, who was not an insured under the policy and had not yet obtained a judgment against an Empire-insured, did not have standing to sue for declaration of coverage, and therefore there is no requisite actual justiciable controversy between parties. Knight argued that declaratory judgment was appropriate under the recent amendment to § 1651. The trial court agreed that the matter did not present a justiciable controversy, sustained Empire's motion, granted Knight's request to certify the order as a certified interlocutory order pursuant to 12 O.S.2001 § 952(b)(3), and Knight brought this appeal.

¶ 6 Our review of the trial court's dismissal order is de novo as it presents a question of law. May v. Mid-Century Ins. Co., 2006 OK 100, 151 P.3d 132, 140.

¶ 7 Our Declaratory Judgment Act was adopted in 1961. It was recognized as "substantially" the same as the Uniform Declaratory Judgments Act, although it provided certain exceptions to the power of the court to grant declaratory relief. Gordon v. Followell, 1964 OK 74, 391 P.2d 242; Fraser, Oklahoma's Declaratory Judgment Act, 32 OBJ 1447. The original version of the statute was as follows:

District courts may, in cases of actual controversy, determine rights, status, or other legal relations, including but not limited to a determination of the construction or validity of any foreign judgment or decree, deed, contract, trust, or other instrument or agreement or of any statute, municipal ordinance, or other governmental regulation, whether or not other relief is or could be claimed, except that no such declaration shall be made concerning liability or nonliability for damages on account of alleged tortious injuries to persons or to property either before or after judgment or for compensation alleged to be due under workers' compensation laws for injuries to persons or concerning obligations alleged to arise under policies of insurance covering liability or indemnity against liability for such injuries. The determination may be made either before or after there has been a breach of any legal duty or obligation, and it may be either affirmative or negative in form and effect; provided however, that a court may refuse to make a determination where the judgment, if rendered, would not terminate the controversy, or some part thereof, giving rise to the proceeding. (emphasis added).

Following the legislature's 2004 amendments, the statute now reads:

District courts may, in cases of actual controversy, determine rights, status, or other legal relations, including but not limited to a determination of the construction or validity of any foreign judgment or decree, deed, contract, trust, or other instrument or agreement or of any statute, municipal ordinance, or other governmental regulation, whether or not other relief is or could be claimed, except that no declaration shall be made concerning liability or nonliability for damages on account of alleged tortious injuries to persons or to property either before or after judgment or for compensation alleged to be due under workers' compensation laws for injuries to persons. The determination may be made either before or after there has been a breach of any legal duty or obligation, and it may be either affirmative or negative in form and effect; provided however, that a court may refuse to make a determination where the judgment, if rendered, would not terminate the controversy, or some part thereof, giving rise to the proceeding.

¶ 8 It remains clear that the first requisite of a proper case for declaratory relief is an actual controversy. This Court does not issue advisory opinions or answer hypothetical questions where there is no case or controversy, and this rule does not change when a declaratory judgment is involved. Speaking to that point in Gordon v. Followell, 391 P.2d at 242, this Court stated in the first paragraph of its syllabus: "In order to invoke the court's jurisdiction under our declaratory judgment act, there must be an actual, existing controversy between parties having opposing interests, which interests must be direct and substantial, and involve an actual, as distinguished from a possible, potential or contingent dispute." In further explanation of the requisites, including standing, of an "actual controversy" which must be the basis of the declaratory relief sought, the Court quoted with approval the following summarization originally from Declaratory Judgments, Borchard, pages 26 and 27:

The requisite precedent facts or conditions which the courts generally hold must exist in order that declaratory relief may be obtained may be summarized as follows: (1) there must exist a justiciable controversy; that is to say, a controversy in which a claim of right is asserted against one who has an interest in contesting it; (2) the controversy must be between persons whose interests are adverse; (3) the party seeking declaratory relief must have a legal interest in the controversy, that is to say, a legally protectible interest; and (4) the issue involved in the controversy must be ripe for judicial determination. Id. at 244.

¶ 9 Without question, the prohibition against resolving the rights and obligations of the parties to a liability policy by declaratory judgment was removed by the 2004 amendment to § 1651. Such was the post-amendment conclusion reached by the Court of Appeals in Equity Insurance Co. v. Garrett, 2008 OK CIV APP 23, 178 P.3d 201, where insurer successfully brought a declaratory judgment action against insured concerning their liability insurance contract and insured appealed, challenging that court's jurisdiction to render the declaratory judgment. The court upheld the jurisdiction of the trial court, stating: "In our view, the deletion of the insurance proscription from § 1651 clearly evinces a change in the law and our Legislature's intent to permit a declaratory judgment action to determine the rights and obligations of the ...