Marshall v. Allstate Ins. Co., 71027

• Decision Date: 30 October 1990
• Docket Number: No. 71027,No. 3,71027,3
• Citation: 805 P.2d 689
• Parties: 1990 OK CIV APP 100 Tom and Marie MARSHALL, Surviving Next of Kin of Jason Todd Marshall, Deceased, Appellants, v. ALLSTATE INSURANCE COMPANY, Appellee. Court of Appeals of Oklahoma, Division
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma

Page 689

805 P.2d 689

1990 OK CIV APP 100

Tom and Marie MARSHALL, Surviving Next of Kin of Jason Todd Marshall, Deceased, Appellants, v. ALLSTATE INSURANCE COMPANY, Appellee.

No. 71027.

Released for Publication by Order of the Court of Appeals of Oklahoma, Division No. 3.

Court of Appeals of Oklahoma Division No. 3.

Oct. 30, 1990.

As Corrected Nov. 5, 1990.

Rehearing Denied Dec. 19, 1990.

Certiorari Denied Feb. 5, 1991.

Appeal from the District Court of Tulsa County, Oklahoma; Robert E. Caldwell, Judge.

Steven R. Hickman, Frasier & Frasier, Tulsa, for appellants.

James K. Secrest, II, Secrest & Hill, Tulsa, for appellee.

MEMORANDUM OPINION

ADAMS, Judge:

Appellants Tom and Marie Marshall appeal from an order of the trial court denying their Application for Leave to Amend Petition and granting Allstate's Motion for Summary Judgment.

Allstate issued policy number 0-10-805485-08-11 149664373 (the policy) to Thomas J. Marshall on August 10, 1983 covering three vehicles. On that same day, Marshall, in writing, waived coverage for uninsured motorist pursuant to 36 O.S. § 3636(F). On March 5, 1985, a fourth vehicle was added to the policy, a 1973 Ford pickup apparently owned or used primarily by Marshall's adult daughter who was still living at home. On May 4, 1985, Jason Todd Marshall, the Marshalls' son who also lived with them, was killed in an auto accident involving two uninsured motorists. On January 23, 1987, the Marshalls filed a petition to recover under the policy, alleging they gave no waiver of uninsured motorist coverage when the daughter's vehicle was added to the policy, and that all residents of the Marshall household, including Jason Todd Marshall, were covered for uninsured motorists under the policy. Allstate answered and later filed a motion for summary judgment claiming Mr. Marshall's initial waiver was effective for the added vehicle. The Marshalls opposed the motion and filed an application for leave to amend their petition pursuant to 12 O.S.Supp.1990 § 2015, seeking a reformation of the policy. After hearing, the trial judge denied the Marshalls' application and granted Allstate's motion, entering judgment for Allstate denying the Marshalls' claim.

The Marshalls appeal, alleging error of the trial court in 1) granting summary judgment on the issues raised in the unamended pleadings, and 2) denying leave to amend. We discuss the issues in that order.

I WAS SUMMARY JUDGMENT APPROPRIATE?

The trial court determined Mr. Marshall's waiver of uninsured motorist coverage was effective as to the fourth vehicle added to the specific policy pled in the petition. The fact of Mr. Marshall's waiver was not in dispute, only its legal effect. Our task in reviewing the trial court's order is to determine whether the facts material to the issues raised in the unamended pleadings are "uncontroverted". The essential facts as recited at the outset of this opinion are not in dispute. The law to be applied is equally clear.

Section 3636(F) of Title 36, Oklahoma Statutes, 1981, states that the named insured, not the owner of the vehicle, will have the right to reject uninsured motorist coverage in writing. Mr. Marshall did so on August 10, 1983. Under the law in effect in 1985, when the Marshalls filed this action, a second rejection of uninsured motorist coverage was not necessary when adding a vehicle to an existing policy. Hicks v. State Farm Mutual Automobile Insurance Co., 568 P.2d 629 (Okla.1977). Since Mr. Marshall was the named insured, his waiver was effective as to the added vehicle.

The Marshalls argue persuasively that this case is distinguishable from Hicks since it involves an additional vehicle, not a replacement vehicle, and in the absence of the Oklahoma Supreme Court decision in Beauchamp v. Southwestern National Insurance, 746 P.2d 673 (Okla.1987) we would be inclined to agree. In Beauchamp, a case involving adding another vehicle to an existing policy, the Court determined Hicks supported the position advocated by Allstate in this case, and overruled Hicks in adopting prospectively the position advocated by the Marshalls.

Although the Marshalls state cogent reasons why they should not be treated differently than the plaintiffs in Beauchamp, the Court's decision is clear, and we may not disregard it. The Marshalls' claim arose more than two years before the Beauchamp mandate, and the rule announced in Hicks controls this case. Mr. Marshall's written waiver of uninsured motorist coverage was effective as to the daughter's vehicle. Since the undisputed facts are susceptible of but a single inference, i.e., a valid waiver of uninsured motorist coverage, the trial court correctly determined the Marshalls could not recover under the specific policy pled in the petition.

II SHOULD THE TRIAL COURT HAVE ALLOWED THE MARSHALLS TO AMEND?

After Allstate moved for summary judgment, the Marshalls asked the court for permission to amend their petition to seek reformation of the policy covering the fourth vehicle to show their daughter as the named insured. The trial court denied that request without ever giving the Marshalls an opportunity to present an amended petition which stated the facts upon which such a claim was based. In the denying of the requested leave, the trial court concluded:

The Court found that the plaintiffs brought this cause of action on a specific policy of insurance. The Court will not allow the plaintiffs to amend their petition in such a manner as to join an additional party plaintiff, with a separate cause of action for reformation, which would create a second policy of insurance.

While the trial court has considerable discretion in granting or denying requests to amend pleadings, Cook v. Clinkenbeard, 524 P.2d 27 (Okla.1974), that discretion is limited by the provisions of 12 O.S.Supp.1990 § 2015, which states: "... leave shall be freely given when justice so requires." Section 2015 was adopted from and is virtually identical to Federal Rule 15, and we may safely look to federal authority for guidance in applying its provisions. Shores v. First City Bank Corp., 689 P.2d 299 (Okla.1984). In reviewing the purpose of this rule, the United States Supreme...