Progressive Direct Ins. Co. v. Pope

Decision Date11 January 2022
Docket Number119,309
Citation507 P.3d 688
Parties PROGRESSIVE DIRECT INSURANCE COMPANY, Plaintiff/Appellee, v. Ikia POPE, Defendant/Appellee, Brandi Powell, Defendant/Appellant, v. Ikia Pope, Cross Claim Defendant/Appellee.
CourtOklahoma Supreme Court

Donald E. Smolen, II, Smolen Law, PLLC, Tulsa, Oklahoma, for Defendant/Cross-Claim Plaintiff/Appellant.

Brad L. Roberson and Dawn M. Goeres, Roberson, Kolker, Cooper & Goeres, PC, Edmond, Oklahoma, for Plaintiff/Appellee.

Brian L. Carter, Latham, Steele, Lehman, Keele, Ratliff, Frieje & Carter, Tulsa, Oklahoma, for Defendant/Appellee.


¶1 The controversy in the District Court centered on whether the insurer's policy excluded statutory treble damages pursuant to 47 O.S.2011, § 10-103 because of an exclusionary clause for punitive damages in the policy. The trial court stated the treble damages were punitive in nature and excluded by the policy. We agree, and affirm the District Court.

I. The Controversy

¶2 Ikia Pope and Brandi Powell were in a motor vehicle collision. Pope left the scene of the collision. Powell alleged Pope drove a vehicle owned by third parties who gave permission for Pope to drive the vehicle. Progressive Direct Insurance Company insured the vehicle driven by Pope.

¶3 Powell made bodily injury and property damage claims with Progressive Direct Insurance Company (insurer). Powell asserted she was entitled to treble property damages pursuant to a statute which states as follows.

The driver of any vehicle involved in an accident resulting only in damage to a vehicle which is driven or attended by any person shall immediately stop such vehicle at the scene of such accident or as close thereto as possible but shall forthwith return to and in every event shall remain at the scene of such accident until he has fulfilled the requirements of Section 10-104 of this title. Every such stop shall be made without obstructing traffic more than is necessary. Any person failing to stop or comply with said requirements under such circumstances shall be guilty of a misdemeanor and upon conviction thereof shall be punished by a fine not to exceed Five Hundred Dollars ($500.00) or by imprisonment in the county jail for not more than one (1) year, or by both such fine and imprisonment. In addition to the criminal penalties imposed by this section, any person violating the provisions of this section shall be subject to liability for damages in an amount equal to three times the value of the damage caused by the accident. Said damages shall be recoverable in a civil action. Nothing in this section shall prevent a judge from ordering restitution for any damage caused by a driver involved in an accident provided for in this section.

47 O.S.2011, § 10-103 (emphasis added). Powell relied upon the language stating "any person violating the provisions of this section shall be subject to liability for damages in an amount equal to three times the value of the damage caused by the accident." The parties indicate Pope "pled no contest to criminal misdemeanor charges ... including a violation of 47 O.S. § 10-103."

¶4 Progressive Direct Insurance Company (insurer) filed a District Court petition for a declaratory judgment, and alleged treble damages pursuant to 47 O.S.2011, § 10-103, did not apply to its insurance policy. Powell filed an answer, cross-claim against Pope, and a third-party petition against third-parties who were the alleged owners of the vehicle Pope was driving.

¶5 Insurer filed a motion for summary judgment for an adjudication whether the insurance policy required indemnification for treble damages pursuant to 47 O.S.2011, § 10-103. Powell filed an objection to insurer's motion. Powell disagreed with insurer's interpretations of the insurance policy and 47 O.S. § 10-103, as well as the insurer's factual valuation of damage to Powell's vehicle. Insurer filed a reply supporting its motion for a summary judgment.

¶6 The trial court stated the issue for adjudication was whether public policy required statutory treble damages to be excluded from the policy's coverage. The trial court concluded the treble damages in 47 O.S. § 10-103 "is more aligned with the definition of punitive damages than it is with non-punitive or compensatory [damages]." The trial court concluded a punitive purpose in statutory language would be frustrated by allowing a driver to shift the statutory economic burden to an insurer. The trial court determined the policy did not include coverage for the statutory treble damages, and granted a part of the insurer's motion for a summary adjudication.

¶7 Insurer's Petition for declaratory judgment raised the statutory treble damages issue, sought a declaratory judgment, and requested "This Court determine and adjudicate the rights and liabilities of the parties with respect to the subject contract of insurance." Powell responded and filed an answer, cross-claim, and third-party petition on her behalf and as mother and next friend of her minor child who had been a passenger in her mother's vehicle at the time of the collision. Powell asserted property damages and injuries to her person and the person of her minor child as a result of the collision. Powell sought attorney's fees.

¶8 Insurer's motion for summary judgment also sought an adjudication whether Powell was entitled to attorney's fees: "As such, in addition to seeking a judicial determination on the issue of whether the Policy is required to indemnify any treble damages Powell may recover pursuant to 47 O.S. § 10-103, Progressive also seeks a judicial determination as to whether the Policy is required to indemnify any award of attorney fees for Powell."1 The trial court's "Order" adjudicating insurer's motion was filed in the trial court on April 15, 2020, and states: "The Plaintiff's Motion for Summary Judgment is sustained as to the treble damages issue." The trial court also stated: "As to the attorney fee issue, the Court will reserve any decision on the matter until (or if) an application for attorney fees is submitted."

¶9 We have explained "[t]he disposal of a segment of a cause of action is not a judgment but an interlocutory summary adjudication, a limitation on the issues to be tried."2 Of course, a partial summary adjudication which is lacking finality and appealability as a non-appealable interlocutory order "is but an intermediate order in the case," remains within the trial judge's complete control to modify or alter at any time before judgment," and a motion to reconsider or otherwise challenging that intermediate order "is to be treated as a request for reconsideration of an intermediate ruling in the case."3 A trial court's partial summary adjudication on an issue of law related to a cause of action and occurring anterior to judgment is not usually immediately appealable, but the interlocutory decision may thereafter be reviewed when a judgment is appealed.4 The parties did not request a review of the interlocutory order in the trial court.

¶10 The parties and trial court did not treat the trial court's April 15th order as a summary judgment adjudication after the trial court's decision; i.e. , they did not treat the order as a final determination on the merits of the controversy.5 A Journal Entry of Consent Judgment was filed several months later on December 10, 2020. The parties treated the order of April 15, 2020, as an uncertified partial summary adjudication,6 which was appealable after the consent judgment was filed.

¶11 The settlement agreement referenced in the consent judgment stated an amount of $2,558.74 was paid for Powell's property damage claim pursuant to the parties' agreement.7 Generally, a party who voluntarily accepts the benefits from a judgment cannot question the validity of the judgment in an appeal.8 One of the exceptions to this rule may occur when "it is only possible to receive a more favorable judgment, but not a less favorable one."9 Powell's appeal does not create the possibility of a less favorable judgment for Powell.

¶12 Additionally, the claim for statutory treble damages was specifically reserved in the consent judgment as a court-adjudicated and non-consensual property damage claim, and the treble damages claim has been construed by the parties as a property damage claim completely separate from the $2,558.64 property claim. Further, we note the consent judgment states "all parties to bear their own fees and costs," and the issue of attorney fees raised during the partial summary adjudication appears to have been resolved by the consent judgment. There appear to be no claims pending in the District Court controversy and no jurisdictional impediment to our review of the single issue before us involving a right to 47 O.S.2011, § 10-103 treble damages.

¶13 The consent judgment stated Powell had a right to appeal the order entered on April 15, 2020, with the right to appeal that order commencing after the consent judgment was filed. This appeal is not one from the April 15th interlocutory order. Powell appealed the consent judgment for the purpose of challenging the anterior interlocutory summary order adjudicating a right to 47 O.S. § 10-103 treble damages.10 Appellate jurisdiction is based upon a timely appeal from the judgment in the controversy. An accelerated appellate procedure is provided by Oklahoma Supreme Court Rule 1.36 for appeals from (1) a District Court Rule 13 order granting summary judgment, and (2) final orders in cases in which motions to dismiss for failure to state a claim or lack of jurisdiction (of a person or subject matter) under District Court Rule 4 were filed after October 1, 1993.11 Powell properly filed a petition in error seeking appellate review outside the scope of Okla. Sup. Ct. Rule 1.36 summary judgment appeal.

¶14 When an order granting summary judgment is appealed the trial court filings serve as the appellate briefs.12 Insurer attempted to litigate the issue before us by using a motion for summary judgment in ...

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