Tidmore v. Fullman, 57642

• Decision Date: 08 June 1982
• Docket Number: No. 57642,57642
• Parties: Curtis Don TIDMORE and State Farm Insurance Company, Petitioners, v. Flora Pauline FULLMAN, Respondent.
• Court: Oklahoma Supreme Court

Page 1278

646 P.2d 1278

1982 OK 73

Curtis Don TIDMORE and State Farm Insurance Company, Petitioners, v. Flora Pauline FULLMAN, Respondent.

No. 57642.

Supreme Court of Oklahoma.

June 8, 1982.

As Corrected June 8, 1982.

Appeal from the District Court of Tulsa County; Richard V. Armstrong, Trial Judge.

Petition for certiorari to review certified interlocutory order of trial judge determining by pre-trial order that name of plaintiff motorist's insurer and terms of insurance policy coverage together with name of defendant motorist's insurer and terms of defendant's insurance policy are admissible in evidence before the jury in an action brought by plaintiff against plaintiff's insurer and defendant underinsured motorist.

CERTIORARI HERETOFORE GRANTED; ORDER OF TRIAL COURT REVERSED.

Best, Sharp, Thomas, Glass & Atkinson, Tulsa, for petitioner, State Farm Ins. Co.

Knight, Wagner, Stuart, Wilkerson & Lieber, Tulsa, for petitioner, Curtis Don Tidmore.

Lang, James & Bingham, Inc., Tulsa, for respondent.

LAVENDER, Justice:

The issue certified for interlocutory appeal to the Supreme Court by the court below and presented by petition for certiorari is as follows:

In a personal injury action arising out of a motor vehicle accident where plaintiff driver sues defendant driver and also sues plaintiff's uninsured motorist insurance carrier alleging that the defendant driver was underinsured, is the following evidence admissible before the jury?

a. The liability insurance policy limits of the defendant driver.

b. The policy of uninsured motorist insurance issued to plaintiff driver and the identity of the company issuing the policy.

The parties have stipulated:

1. Defendant Tidmore carried a policy of liability insurance on his vehicle in compliance with the requirements of the Oklahoma financial responsibility laws.

2. Tidmore's policy was in full force and effect at the time of the collision and that 3. Tidmore's policy limit is less than the uninsured motorist coverage afforded by defendant State Farm Insurance Company to plaintiff Fullman under Fullman's policy with it, and less than the amount prayed for by Fullman in her petition.

the proceeds of the policy will be available in the event that plaintiff recovers judgment against him.

4. Fullman's policy with State Farm provides uninsured motorist coverage for the collision with a policy limit of $25,000.

Defendants further agree to provide to the Court, if requested, copies of their respective policies.

Defendant State Farm agrees not to participate in the trial of the case and further agrees to be bound by the jury verdict.

At pre-trial conference, the court below ruled that the jury upon trial would be allowed to hear evidence as to the liability insurance limits under Tidmore's policy and to hear evidence that plaintiff had an uninsured motorist insurance policy with State Farm. The court below entered a pre-trial order embodying the rulings, and that order was certified for interlocutory appeal.

The pertinent portion of 36 O.S.Supp.1976, § 3636 providing for uninsured motorist coverage is as follows:

"(A) No policy insuring against loss resulting from liability imposed by law for bodily injury or death suffered by any person arising out of the ownership, maintenance or use of a motor vehicle shall be issued, delivered, renewed, or extended in this state with respect to a motor vehicle registered or principally garaged in this state unless the policy includes the coverage described in subsection (B) of this section.

"(B) The policy referred to in subsection (A) of this section shall provide coverage therein or supplemental thereto for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles and hit-and-run motor vehicles because of bodily injury, sickness or disease, including death resulting therefrom. Coverage shall be not less than the amounts or limits prescribed for bodily injury or death for a policy meeting the requirements of Section 7-204 of Title 47, Oklahoma Statutes, as the same may be hereafter amended; ....

"(C) For the purposes of this coverage the term 'uninsured motor vehicle' shall include an insured motor vehicle where the liability insurer thereof is unable to make payment with respect to the legal liability of its insured within the limits specified therein because of insolvency or whose liability insurer for any reason either cannot or is not legally required to afford at least the per person coverage limits with respect to the legal liability of its insured, applicable to any injured party under any uninsured motorist coverage covering such injured party.

Thus, by legislative definition an "uninsured motor vehicle," insofar as prescribed insurance coverage is concerned, includes vehicles which are uninsured, hit-and-run vehicles, insured motor vehicles where the liability insurer thereof is unable to make payment with respect to the legal liability of its insured within policy limits by reason of the insolvency of the insurer.

In Keel v. MFA Insurance Company, ¹ we held that an insured who has a claim against an uninsured motorist has the following options:

(1) He may file an action directly against his insurance company without joining the uninsured motorist as a party defendant and litigate all of the issues of liability and damages in that one action.

(2) He may file an action joining both the uninsured motorist and the insurance company as party defendants and litigate all issues of liability and damages in one action.

(3) He may file an action against the uninsured motorist without joining the insurance company as a party defendant, but (4) He may file an action against the uninsured motorist and give no notice to the insurance company.

give adequate notice of the filing and pendency of such action to the insurance company so that it may take whatever action it desires, including intervention.

Here the plaintiff chose the second option and joined both the "uninsured" motorist and plaintiff's insurance carrier as parties defendant.

In Missouri, Kansas & Oklahoma Tran. Lines, Inc. v. Baker, ² we held that a municipality could by ordinance require a bus company to maintain liability insurance under legislative delegation of authority so to do. It is significant to point out that the ordinance there under consideration expressly provided that the insurer was not directly liable to the claimant. There, the trial court, over objection, permitted the joinder of the insurer as a party defendant in a personal injury action, and in its instructions to the jury forcefully advised the jury that the defendants were protected by liability insurance issued by the defendant insurance company. There, after determining insurer was not properly a party to the case, we held:

"This Court consistently has adhered to the rule that to inform or suggest to a jury that a defendant may be protected by liability insurance or that the loss will fall upon an insurance company, is prejudicial as a matter of law and constitutes ground for reversal of the judgment rendered.

"In Redman et al. v. McDaniel, Okl., 333 P.2d 500, we acknowledged the verity of this principle:

'Experence has demonstrated that whenever jurors know that an insurance company will have to pay any judgment entered on their verdict, such knowledge will usually be reflected in a larger recovery.' "

In Redman v. McDaniel, ³ we held in a case where liability insurance was not required to be carried by the defendant and the insurance carrier was not a party to the cause, the plaintiff is entitled to ask jurors on voir dire such questions as are necessary or may become necessary to enable him to discover whether a juror is interested in the insurance business, especially where he believes that some of the jurors may be writing insurance for an insurance company that he believes has written insurance for the defendants. But in doing so, it is equally well settled that he should not indicate to the jury that defendant is insured unless it is necessary in order to obtain a jury free from favoritism toward defendant, and when plaintiff unnecessarily and without justification brings the fact of insurance coverage to the attention of the jury, such may be reversible error.

Thus, we conclude, that where the fact of liability insurance coverage is brought before the jury unnecessarily or forcefully where liability insurance coverage is not legislatively mandated and where the insurer has no direct liability to the claimant, such jury revelations are, as a matter of law, prejudicial, and if the insured is or might have been harmed thereby, reversible error.

On the other hand, the insurer under a compulsory insurance policy may be joined as a defendant with the insured in an action by an injured third person, generally, on the theory that under statutes requiring and controlling compulsory insurance, a direct or joint right is created in favor of the injured person against both the insured and the insurer. ⁴ And our Court has on many occasions held that where a motorist is required by statute or ordinance to file a policy of liability insurance to protect the interests of the public or injured persons, though not expressly giving to them a direct benefit under the policy, the joinder of In the case before us and under 36 O.S.Supp.1976, § 3636, supra, liability insurance coverage on a motorist is not expressly legislatively mandated; but if liability insurance is proffered to a motorist, uninsured motorist coverage, as defined in the statute, is required, unless the named insured opts to reject such uninsured motorist coverage under conditions set forth in the statute but which are not herein involved.

the insurer and the insured in the same action is permitted. ⁵

In considering an uninsured motorist statute similar to 36 O.S.1976, § 3636(B), the Kansas Supreme Court, in the case of...