Ouellette v. State Farm Mut. Auto. Ins. Co.
| Decision Date | 28 June 1994 |
| Docket Number | No. 78236,78236 |
| Parties | Gerald OUELLETTE and Mae Ouellette, Plaintiffs-Appellants, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant-Appellee. |
| Court | Oklahoma Supreme Court |
Joseph J. Reinke, Oklahoma City, for appellants.
David D. Wilson, Oklahoma City, for appellee.
The dispositive issue on certiorari is whether the risk carrier of UM 1 coverage must answer in damages for the "grief and loss of companionship" of its insureds, occasioned by the wrongful death of their emancipated, adult son, even though in the distribution stage of an earlier wrongful-death action (by the decedent's surviving spouse) the plaintiffs-parents were denied, for lack of legal interest, any part of the recovery. We answer in the negative.
ANATOMY OF LITIGATION
The surviving spouse--qua personal representative of the decedent's next of kin and of his estate--brought an action to recover for personal injuries and wrongful death of the decedent, Gerard Dwayne Ouellette. He died in a car/motorcycle accident on May 5, 1988 from injuries occasioned by a negligent underinsured motorist. 2 His widow joined as defendants in the case both the tortfeasor and his motorcycle's UM carrier. She claimed damages in excess of the tortfeasor's own $10,000 liability insurance limit and of the $20,000 limit upon the motorcycle's UM coverage. After a jury-waived trial, the nisi prius court entered a $30,000 judgment for the plaintiff. The judgment is now released as satisfied by both the tortfeasor and the decedent's UM carrier. In a postjudgment proceeding 3 the trial court (1) allowed $10,000 of the recovery to the decedent's surviving spouse and $10,000 to each of his two minor children and (2) for "lack of legal interest" denied the parents any distributive share in the widow's wrongful-death recovery. 4
Three years later the plaintiffs, Gerald and Mae Ouellette [parents], brought this action to recover directly from State Farm Mutual Automobile Insurance Company [State Farm or insurer] under the UM provisions of their three automobile policies for loss they claim to have sustained from the wrongful death of their emancipated, adult son. They sought damages for their "grief and loss of companionship." 5
The parents' UM carrier pressed for dismissal on the grounds that (1) the parents The parents argued that the law allows them to press this claim in a breach-of-contract action. At the time of their loss, they asserted, a UM clause of their policies provided coverage for any losses which they were "legally entitled to recover" from the operator of an uninsured or underinsured motor vehicle. According to the parents, the earlier death action's termination has no effect on their direct ex contractu demands. The trial court ruled for the insurer and dismissed the case.
are not authorized by 12 O.S.1991 §§ 1053(B) 6 and 1054 7 to bring a wrongful-death action as parties plaintiff; (2) in an earlier wrongful-death action the widow, individually and as the personal representative of decedent's estate, had secured a complete adjudication of all issues now sought to be tendered; (3) State Farm's rights qua insurer would be prejudiced if this action were allowed to proceed, because the earlier wrongful-death judgment against the tortfeasor operates as a bar to the UM carrier's subrogation claim against the offending actor; (4) the trial court's finding (in the prior wrongful-death action) that the parents are not entitled to any recovery (for lack of legal interest) raises a bar of "estoppel by judgment"; 8 and (5) since the parents themselves could not bring another death action, they cannot by this lawsuit indirectly secure a recovery that stands barred to them directly. To its dismissal motion the insurer attached some but not all of the pleadings and rulings in the widow's wrongful-death action. 9
The Court of Appeals' Disposition
The Court of Appeals affirmed, correctly treating the nisi prius ruling as one for summary judgment. 10 The appellate court reasoned that (1) while the insurer's liability for UM coverage is contractual, the parents' statute-based quest for any element of wrongful-death damages is comprised within the single death claim that must be brought by an authorized party plaintiff--i.e. by the decedent's widow in this case; (2) the widow's claim is derivative of that which the decedent could have brought had he survived Although we reach today the same conclusion as the Court of Appeals, we nonetheless afford certiorari review in order to provide an in-depth analysis of the parents' UM-coverage claim within the confining framework of a statutory wrongful-death action.
the accident; 11 and (3) because wrongful death is not actionable absent a statute, the parents' quest for the damages they seek (whether directly from a tortfeasor or indirectly via the UM coverage) must accord with the legislative wrongful-death recovery regime
Wrongful-death claims are not cognizable at common law. In that tradition, the right of action for personal injury stands extinguished by the death of the injured party. 12 This rule stands abrogated by the provisions of 12 O.S.1981 §§ 1051-1055. 13 A cause of action for an injury to the person is now survivable (§§ 1051 and 1052), and a new and independent wrongful-death claim has been created (§§ 1053 et seq.). Both the death and the survivor actions lie only if at the time of his/her death the decedent had a right of recovery for the injury in suit (§ 1053). 14
A wrongful-death claim may be pressed only by persons authorized to bring it (§§ 1053 and 1054). 15 By force of § 1053(A) the action may be brought by the personal representative of the decedent, 16 but if none has been appointed, then by the widow, or where there is no widow, by the decedent's next of kin (§ 1054). 17 Recovery must inure to the exclusive benefit of "the surviving spouse and children, if any, or next of kin " (§ 1053). (Emphasis supplied.)
The term "next of kin," used in § 1053, has been defined as including "all who would be We cannot treat the present action by the parents as a functional equivalent of one for wrongful death. There can be only one wrongful-death claim and one recovery. 22 Moreover, the parents are not authorized parties plaintiff for the recovery they seek. This is so because the decedent left surviving him both a widow and children. 23 Were we to assume that the parents could bring a wrongful-death claim, this action would nonetheless fail unless the earlier suit by the widow could, in this action, be declared void on the face of the record proper (judgment roll) in the other case. 24 The judgment roll in the death action has not been included in the record on appeal. 25 There is hence nothing before us to show a fatal facial infirmity in the earlier decision. 26 We hence conclude the parents cannot maintain this suit as a new action for wrongful death.
entitled to share in the distribution of the personal property of the deceased." 18 The parents' quest for the next-of-kin status must be gauged by the order of succession established in 84 O.S.Supp.1984 § 213(B)(1) and (2). The last cited section provides that if the decedent leave a surviving spouse and a child or children, the parents may not take as next of kin. 19 In the scheme of succession they take as next of kin if the decedent leave neither issue nor a surviving spouse. 20 Only when the parents are the decedent's next of kin may they press for "grief and loss of companionship" damages as an element of their authorized recovery. 21
THE PARENTS CANNOT MAINTAIN THIS ACTION IF THEIR QUEST BE
The insurer qua UM carrier undertakes to provide indemnity for the harm occasioned by one who is either uninsured or underinsured. 27 UM coverage is the insurer's first-party contractual obligation to pay for the tortious acts inflicted on one "legally entitled to recover damages from owners or operators of uninsured motor vehicles." 28 The insurer's ex contractu liability is hence to be gauged by the delictual accountability of another--that of the uninsured/underinsured tortfeasor. 29
In order to maintain the claim, the parents in this case must have an actionable death loss against the tortfeasor. They must show themselves legally entitled to recover from the offending under- or uninsured actor. 30
The UM insurer's ex contractu liability for death-related losses is measured by the regime of damages legally recovered or recoverable in wrongful death. When this standard is applied to the parents' claim now before us, it is clear the trial judge was correct in giving summary judgment to the insurer. No wrongful-death damages have been or may be recovered for these parents' alleged death loss. The tortfeasor's wrongful-death obligation had been adjudicated in the widow's earlier claim. Once the widow's death-claim judgment stood satisfied, there was no longer any actionable loss to be recovered. Her judgment raises an insuperable res judicata bar to an ex contractu contest over any additional loss components.
Legal error may not be presumed from a silent record; it must be affirmatively demonstrated. 31 Appellate courts must presume on review that a trial court's decision is correct; every fact not disputed by the record is to be regarded as supportive of the trial court's judgment. 32 The parents have not met the law's burden by providing a record sufficient to overcome the presumption of correctness that attaches to the nisi prius adjudication. Because they failed to prove either (a) some fatal infirmity in the wrongful-death litigation in which they were explicitly excluded from distribution or...
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