Ply v. National Union Fire Ins. Co.

• Decision Date: 12 November 2003
• Docket Number: No. 91,108.,91,108.
• Citation: 2003 OK 97,81 P.3d 643
• Parties: Dale PLY, Plaintiff, v. NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH, PENNSYLVANIA and Safeco Insurance Company of America, Defendants.
• Court: Oklahoma Supreme Court

81 P.3d 643

2003 OK 97

Dale PLY, Plaintiff, v. NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH, PENNSYLVANIA and Safeco Insurance Company of America, Defendants.

No. 91,108.

Supreme Court of Oklahoma.

November 12, 2003.

Rehearing Denied December 18, 2003.

G. Steven Stidham, Brian S. Gaskill, Brian T. Inbody, Tulsa, OK, for plaintiff.

Jo Anne Deaton, Tulsa, OK, for defendant National Union Fire Insurance Company of Pittsburgh, Pennsylvania.

BOUDREAU, Justice:

¶ 1 Plaintiff, Dale Ply, suffered severe electric burns in a tragic accident that occurred while he worked on overhead electric wires from the raised bucket of a bucket truck. Plaintiff's employer, Davis H. Elliot Company, Inc., owned the bucket truck and insured it through National Union Fire Insurance Company of Pittsburgh, Pennsylvania, with an uninsured motorist (UM) endorsement. Plaintiff recovered workers' compensation benefits for his accidental injuries and now seeks to recover UM benefits.

¶ 2 Plaintiff filed a complaint in the United States District Court for the Northern District of Oklahoma against the UM insurer, alleging that the accident arose out of Elliot Company's negligent use and negligent maintenance of the bucket truck.¹ Insurer moved for summary judgment asserting that plaintiff's accident did not fall within the scope of the UM coverage because 1) his injuries were not caused by the actual use of the bucket truck by another person, and 2) even if Elliot Company negligently maintained the bucket truck, his injuries were not caused by such negligence.

¶ 3 At the summary judgment hearing, the court determined that there is no Oklahoma law controlling the questions presented. Accordingly, the federal district court, pursuant to the Revised Uniform Certification of Questions of Law Act, 20 O.S.Supp.1997, §§ 1601 et seq.,² certified the following questions of state law to this Court:

1. Whether an employer's or supervisor's instructions or directions to its employee regarding work to be performed by that employee, which involves the use of a company-owned vehicle, can constitute "use" of the vehicle by the employer or supervisor so as to give rise to potential liability under Oklahoma's uninsured motorist laws; and

2. Whether allegations of an employer's non-contemporaneous negligent maintenance of an employer-owned vehicle, if proven, are sufficient to establish an employee's potential entitlement to uninsured motorist benefits.

¶ 4 We reformulate the first question within the confines of the certified statement of facts.³ We answer the two questions of state law in the affirmative.

I. Statement of Facts

¶ 5 The federal court certified the following statement of facts:

1. Plaintiff, Dale Ply ("Ply"), received severe electrical burns, resulting in amputation of both his arms, in an accident which occurred on May 17, 1996, while he was working in the raised bucket of a bucket truck owned by his employer, Davis H. Elliot Company, Inc. ("Elliot Company").

2. The accident occurred when Ply was "tying in" electrical wires on a job near Broken Bow, Oklahoma, and came into contact with an energized line.

3. The bucket truck in which Ply was working at the time of the accident was owned by Elliot Company and insured by National Union Fire Insurance Company of Pittsburgh, Pennsylvania ("National Union"), which carried the uninsured motorist coverage for Elliot Company's vehicles.

4. Ply was working alone in the bucket truck when his accident occurred with the knowledge of and pursuant to directions and instructions he received earlier that day from his supervisor.

5. Ply has alleged in his lawsuit that Elliot Company's Safety Handbook required that aerial bucket equipment should only be operated when at least two persons completely familiar with the hydraulic controls were present.

6. Ply has alleged in his lawsuit filed against National Union seeking uninsured motorist benefits that the accident resulted from the "use" of the bucket truck by Elliot Company or by Ply's supervisor, also an employee of Elliot Company.

7. The only vehicle which was present at the scene at the time of Ply's accident was the bucket truck owned by Elliot Company. No other vehicles were involved in the accident.

8. An investigation conducted by Elliot Company revealed that Ply's accident occurred when a canvas and leather tool bag, which was attached and hanging from the outside of the bucket, came into contact with an energized wire located below Ply.

9. The investigation further concluded that "whether the presence of a second crew member would have prevented the accident cannot be determined with any certainty."

10. Ply has alleged in his lawsuit filed against National Union seeking uninsured motorist benefits that there was a hydraulic fluid leak in the bucket truck's hydraulic boom which would occasionally cause the bucket to sag. Ply claims that the hydraulic boom on the bucket sagged right before his injury, causing him to come into contact with the energized line.

11. Ply has alleged in his lawsuit that Elliot Company did not properly maintain the hydraulic boom on the subject bucket truck.

12. Ply has alleged in his lawsuit that Elliot Company, through its supervisor, was negligent in instructing him to work alone in the bucket truck.

¶ 6 Ply claims he is entitled to recover uninsured motorist insurance benefits from Elliot Company's policy on the basis that: 1) Elliot Company, as his employer, was at fault in the use of its bucket truck when its supervisor assigned him to work alone from the bucket truck and this negligent use of the bucket truck caused his injuries; and 2) Elliot Company, as owner of the bucket truck, was negligent in the maintenance of the bucket truck and its negligent maintenance caused his injuries. National Union answers that: 1) an absent employer cannot be viewed as an uninsured motorist; and 2) any negligence in the maintenance of the bucket truck did not cause Ply's injuries.

II. The uninsured motorist statute, 36 O.S.2001, § 3636.

¶ 7 Our analysis must begin with the UM statute, 36 O.S.2001, § 3636.⁴ The statute mandates UM coverage to protect insured persons from monetary loss due to personal injury resulting from an accident caused by another who carries no liability insurance or who is underinsured. Uptegraft v. Home Insurance Co., 1983 OK 41, ¶ 6, 662 P.2d 681, 684.

¶ 8 Our decisional law teaches that § 3636 mandates UM coverage where: 1) the injured person is an insured under the UM provisions of a policy;⁵ 2) the injury to the insured has been caused by an accident;⁶ 3) the injury to the insured has arisen out of the "ownership, maintenance or use" of a motor vehicle;⁷ and 4) the injured insured is "legally entitled to recover damages from the owner or operator of the uninsured motor vehicle."⁸ These four elements of an UM claim are determined from the facts and circumstances of each claim.

III. The First Certified Question

¶ 9 The first question certified by the federal court reads:

Whether an employer's or supervisor's instructions or directions to its employee regarding work to be performed by that employee, which involves the use of a company-owned vehicle, can constitute "use" of the vehicle by the employer or supervisor so as to give rise to potential liability under Oklahoma's uninsured motorist laws?

¶ 10 This question does not concern the first three elements of the mandated UM coverage set out above. It rests on the presumptions that Ply is an insured under the UM provisions in National Union's policy issued to Elliot Company; that Ply's injuries were accidental; and that Ply's injuries arose out of the use of a motor vehicle.⁹

¶ 11 Although expressed in terms of "use" of a motor vehicle, the substance of this query into potential liability relates to the employer's fault rather than use. In essence, it is an inquiry as to whether an employer providing faulty or negligent directions or instructions to an employee relating to the use of an employer-owned vehicle can be considered someone at fault from whom the injured employee may be "legally entitled to recover" under § 3636. Accordingly, we reformulate the question¹⁰ to plainly state its substance, as follows:

Where a supervisor, acting on behalf of the employer, provides faulty or negligent instructions or directions to an employee relating to the use of an employer-owned motor vehicle and the employee is injured while following the instructions, can the employer be considered at fault within the meaning of the phrase "legally entitled to recover from the owner or operator" in § 3636 of title 36 of the Oklahoma Statutes.

¶ 12 In answering this novel question, we look first to Oklahoma UM law. Under our UM statute, a liability policy must provide UM coverage to an insured who is "legally entitled to recover from the owner or operator of an uninsured vehicle." Under our UM jurisprudence, the phrase "legally entitled to recover" normally refers to issues of fault. Uptegraft v. Home Insurance Co., 1983 OK 41, at ¶ 6, 662 P.2d at 684. The phrase requires that "there must be a tortfeasor, someone who has committed a wrong from which the insured has suffered damages, before uninsured motorist coverage can come into play." Martin v. Hartford Underwriters Insurance Co., 1996 OK 55, ¶ 4, 918 P.2d 49, 51. It does not mean that the injured insured must secure a judgment.¹¹ Rather, it means that the injured insured must establish fault on the part of the "owner or operator" of an uninsured vehicle and the extent of his or her damages. See, Uptegraft v. Home Insurance Co., 1983 OK 41, at ¶ 9, 662 P.2d at 685.

¶ 13 The issue of fault is determined by the application of legal principles to the facts presented. If an insured can establish that his or her injury was caused by negligence on the part of the owner or operator of an uninsured vehicle, he or she can recover UM benefits. Negligence comprehends a failure to exercise due care required by the...