Niemeyer v. U.S. Fidelity and Guar. Co.

• Decision Date: 03 April 1990
• Docket Number: No. 69092,69092
• Citation: 789 P.2d 1318
• Parties: Dianne NIEMEYER, Appellant, v. UNITED STATES FIDELITY AND GUARANTY COMPANY, Appellee.
• Court: Oklahoma Supreme Court

Page 1318

789 P.2d 1318

1990 OK 32

Dianne NIEMEYER, Appellant, v. UNITED STATES FIDELITY AND GUARANTY COMPANY, Appellee.

No. 69092.

Supreme Court of Oklahoma.

April 3, 1990.

Certiorari to the Court of Appeals, Division No. 1; William R. Saied, Trial Judge.

The trial court granted appellee's motion to dismiss the action for failure to state a claim. The Court of Appeals affirmed the trial court's order. We find that: 1) the appellant's petition adequately states a claim for tortious interference with a contract; and 2) the appellee did not have a legal duty to keep a third party claimant's underinsured motorist carrier advised of its investigation.

CERTIORARI PREVIOUSLY GRANTED; OPINION OF THE COURT OF APPEALS VACATED; MOTION FOR ORAL ARGUMENT DENIED; JUDGMENT OF THE TRIAL COURT REVERSED AND REMANDED.

John Michael Johnston, Claro & Johnston, Oklahoma City, for appellant.

Donald R. Wilson, Fenton, Fenton, Smith, Reneau & Moon, James L. Percival, Derryberry, Quigley, Parrish & Solomon, Oklahoma City, for appellee.

KAUGER, Justice.

This case involves an alleged tortious interference by United States Fidelity & Guaranty Company, USF & G, appellee, with an insurance contract between the appellant, Dianne Niemeyer and her uninsured/underinsured motorist carrier, American General Fire and Casualty Co. The trial court granted USF & G's motion to dismiss after finding that Niemeyer's petition failed to state a cause of action. We granted certiorari to address two first impression questions: 1) whether under the 1984 Pleading Code, 12 O.S.Supp.1984 § 2001 et seq., a plaintiff must specifically plead that a third party tortiously participated in an "unjustified, non-privileged or unexcused interference" with the contract in order to state a cause of action for tortious interference, or if general allegations are sufficient; and 2) whether USF & G had a legal duty to inform American General, the uninsured/underinsured motorist carrier, of its investigation. We find that: 1) the petition stated a claim for tortious interference with contract; and 2) USF & G did not have a legal duty to report its investigative findings to American General.

FACTS

Dianne Niemeyer's daughter was killed when the car in which she was riding was involved in a one car accident. Because the driver's car was insured by USF & G, the appellant/mother/Niemeyer began negotiations with USF & G and with her underinsured motorist carrier, American General Fire and Casualty Company. On December 1, 1986, USF & G tendered its policy limits--$50,000.00. Although American General's uninsured/underinsured policy On February 24, 1987, Niemeyer brought an action for tortious interference with contract. She alleged that because of the falsehoods furnished to American General by USF & G, her underinsured carrier had offered only $1,000 to settle the claim. USF & G admitted that it gave its file to American General, and it does not dispute Niemeyer's assertion that the information contained in the file was untrue. Nevertheless, USF & G filed a motion to dismiss asserting 36 O.S.1981 § 3636 required it to share sensitive information with the "excess" carrier. The trial court granted the motion to dismiss for failure to state a claim, apparently ruling as a matter of law, that USF & G was incapable of interfering with the contract. The Court of Appeals affirmed the trial court after finding that the appellant's pleadings were insufficient to state a claim because she had failed to plead that USF & G's interference was not "justified, privileged or excused". Niemeyer petitioned for certiorari, and USF & G requested oral argument. We granted certiorari on September 25, 1989.

contained a $200,000 limit, it offered $1,000.00 to settle the claim, refusing to negotiate further. After Niemeyer filed suit against American General to enforce the policy provisions, she discovered that American General's refusal to negotiate was premised on false, derogatory information supplied by USF & G. Shortly thereafter, American General settled with the appellant, and it paid the full limits of the policy. Niemeyer accepted USF & G's offer on February 6, 1987.

I.

THE PETITION ADEQUATELY STATES A CLAIM FOR TORTIOUS

INTERFERENCE WITH A CONTRACT UNDER THE OKLAHOMA

PLEADING CODE.

The law recognizes the right to transact one's lawful business without unjustified interference. Any malicious interference with such business is an unlawful act and an actionable wrong. ¹ An action for tortious interference of contract arises when one maliciously interferes in a contract between two parties inducing one of them to break the contract to the detriment of the other. ² USF & G, relying on Mac Adjustment, Inc. v. Property Loss Research Bureau, 595 P.2d 427-28 (Okla.1979), asserts that Niemeyer failed to plead specific facts demonstrating that the dissemination of false information was not "justified, privileged or excused". Niemeyer maintains that under liberal pleading rules, her petition is sufficient to state a cause of action. ³

Niemeyer alleged in her petition that USF & G had tortiously interfered with her underinsured motorist contract to her detriment. The Oklahoma Pleading Code, 12 O.S.Supp.1984 § 2001, et seq., does not require a plaintiff to set out in detail the facts upon which the claim is based. Notice pleading under the Code merely requires "a short and plain statement of the claim" which will give the defendant fair notice of the plaintiff's claim Ten years before the 1984 Pleading Code was adopted, we held in Crystal Gas Co. v. Oklahoma Natural Gas Co., 529 P.2d 987, 990 (Okla.1974), a case in which the plaintiff sought to recover damages for interference with contractual and business relations, that the plaintiff must prove that the defendant's wrongful acts were the proximate cause of the plaintiff's injury. However, we recognized that the plaintiff could plead causation in general terms. Obviously, there is a difference between the burden of proof in a claim for tortious interference with contract, and with what is necessary to allege its commission. ⁸ The archaic rules of code pleading have been replaced by the 1984 Code of Civil Procedure, thus placing the spirit of the law above strict compliance with the letter of the law. ⁹ Based on these statutory provisions, we find that the petition states a claim for a tortious interference with a contract.

                and the grounds upon which it rests. 4  [See the appendix of forms, 12 O.S.Supp.1984 §§ 2026, 2027.]  Title 12 O.S.Supp.1984 § 2008(F) provides that pleadings shall be construed to do substantial justice. 5  In assessing the sufficiency of the petition, the general rule is that a petition should not be dismissed for failure to state a cause of action unless it appears beyond doubt that the plaintiff can prove no set of facts in support of the claim which would entitle her to relief. 6  With the exception of fraud, mistake, denial of performance, and special damages, 7 Oklahoma no longer requires strict compliance with terms of art and legal phraseology when pleading a cause of action
                

II.

USF & G DID NOT HAVE A LEGAL DUTY TO ADVISE A THIRD PARTY

CLAIMANT'S UNDERINSURED MOTORIST CARRIER OF ITS

INVESTIGATION.

USF & G asserts that American General's uninsured motorist coverage is excess to the underinsured motorist's liability coverage because it is not affected until such time as the tortfeasor becomes underinsured. USF & G contends that, in essence, it is the primary carrier, and that it is bound by 36 O.S.1981 § 3636 to keep the excess carrier advised of its investigation. USF & G argues that failure to do so would subject it to a bad faith action by American General for failure to negotiate a settlement.

Excess coverage comes into play only after any primary coverage has been exhausted. ¹⁰ Although the record does not contain the insurance policies, § 3636 provides that the policy shall provide coverage The situations in which an excess carrier has been allowed to sue a primary carrier have occurred when the primary carrier has failed to settle a claim in good faith with a mutual insured. This is based on the rationale that an insurance carrier has the duty to use the utmost good faith in the disposition of claims made against its insured. Under the theory of equitable subrogation, the duty has been extended to the excess insurer. ¹² Here, the insurance carriers do not share the same insured. USF & G insured the owner of the car, and Niemeyer's daughter was a passenger at the time of the accident. Niemeyer was American General's insured and a third party claimant to USF & G's coverage.

                therein, or supplemental thereto, for the protection of persons insured by owners of either uninsured or underinsured motor vehicles. 11  If the tortfeasor is underinsured, the uninsured motorist policy pays any damages not covered by the primary policy up to the uninsured policy limits.  Even if the underinsured motorist coverage is excess coverage as asserted by USF & G, we cannot agree with its conclusion that USF & G owed a duty to American General as excess carrier
                

Because, Niemeyer is a third party claimant, she could not bring a bad faith action against USF & G. We reached this conclusion in Allstate Ins. Co. v. Amick, 680 P.2d 362, 365 (Okla.1984). The Amick Court held that in the absence of a contractual or statutory relationship, there is no duty to settle a claim in good faith, ¹³ and that because third party claimants (as distinguished from third party beneficiaries) are strangers to the insurance contract, they cannot bring a bad faith action.

The Amick principle applies here because: 1) there is no contract between American General and USF & G; 2) Niemeyer is not a third party beneficiary; 3) if subrogation were allowed, American General would stand in the same shoes as Niemeyer, and it would be subject to the defense that a third party claimant cannot bring a bad faith action; ¹⁴ and 4) there was no statutory...