Uptegraft v. Home Ins. Co., No. 59699

CourtSupreme Court of Oklahoma
Writing for the CourtOPALA; HARGRAVE
Citation1983 OK 41,662 P.2d 681
Docket NumberNo. 59699
Decision Date19 April 1983
PartiesRonald L. UPTEGRAFT, Jr., Plaintiff, v. The HOME INSURANCE COMPANY, a foreign insurance corporation and Oklahoma Farm Bureau Mutual Insurance Company, a domestic insurance company, Defendants.

Page 681

662 P.2d 681
1983 OK 41
Ronald L. UPTEGRAFT, Jr., Plaintiff,
v.
The HOME INSURANCE COMPANY, a foreign insurance corporation
and Oklahoma Farm Bureau Mutual Insurance Company,
a domestic insurance company, Defendants.
No. 59699.
Supreme Court of Oklahoma.
April 19, 1983.
As Corrected April 20, 1983.

Page 683

Clifton D. Naifeh, Miller & Naifeh, Norman, Randall A. Breshears, Monnet, Hayes, Bullis, Thompson & Edwards, Oklahoma City, for plaintiff.

Edwin F. Garrison, Looney, Nichols, Johnson & Hayes, Oklahoma City, for defendant, Home Ins. Co.

Earl D. Mills, Reggie N. Whitten, Robert B. Mills, Foliart, Mills & Niemeyer, Oklahoma City, for defendant, Oklahoma Farm Bureau Mut. Ins. Co.

OPALA, Justice:

Certified to us under the Uniform Certification of Questions of Law Act, 20 O.S.1981 § 1601 et seq., is the following first-impression question:

"Does an injured person, by failing to commence an action against an uninsured motorist tortfeasor within the time established by 12 Okla.Stat.1981 § 95 Third, thereby discharge the injured person's insurer from liability upon its uninsured motorist insurance policy?"

We answer in the negative and hold that actions to recover a loss under the uninsured motorist coverage are governed by the five-year statute of limitations applicable to written contracts and that a provision in the insurance policy which limits the time for bringing a suit thereunder to less than the statutory period is void.

The plaintiff-insured, while driving his employer's vehicle, incurred injuries in a collision with an uninsured motorist. The vehicle was protected by uninsured motorist coverage of the company policy. The injured worker, who had uninsured motorist coverage for his own personal vehicle with another insurance company, did not bring a suit against the tortfeasor within the two-year limitations period. Over three years after the loss he commenced in federal court an action against the two insurance companies which carried the uninsured motorist coverage.

The argument for the insured is that the five-year statute of limitations governs his claim. His contention is premised upon the view that an insurer's liability for the tort of another under the uninsured motorist endorsement is a contract and hence an action upon it is one ex contractu which is governed by a five-year statute of limitations. 12 O.S.1981 § 95(1).

The insurers, on the other hand, contend that the two-year statute of limitations applicable to torts should apply. They argue that the insured, in order to recover, must establish all of the elements of a tort action. 12 O.S.1981 § 95(3). Their argument submits that an insured who fails to comply with the statute is not "legally entitled to recover". The insurers claim that once the statute has run, as in this case, their subrogation rights under the endorsement are defeated.

I.

The purpose of an uninsured motorist provision in an insurance contract is

Page 684

to protect the insured from the effects of personal injury resulting from an accident with another motorist who carries no insurance or is underinsured. 1 The uninsured motorist statute, 36 O.S.Supp. 1976 § 3636, 2 does not provide a specific time bar nor does it make reference to any other limitations period which is to be applied. While an action in tort for personal injury must be brought within two years after the cause of action arises, 12 O.S.1981 § 95(3), by § 95(1) a five-year statute of limitations is provided for actions on written contracts.

An action is one ex contractu when it is derived from (a) an express promise, (b) a promise implied in fact or (c) a promise implied in law. 3 The uninsured motorist coverage constitutes a carrier's direct promise to the insured to pay indemnity for a specified loss. Because it is a promise by the insurer to pay its own insured, rather than a promise to its insured to pay some third party, the uninsured motorist coverage is understood, in insurance parlance, as "first-party coverage"--much like collision, comprehensive, medical payments or personal injury protection--and not as "third-party coverage", such as personal injury or property damage coverage of public liability insurance. 4 In short, we

Page 685

are dealing here with an agreement to indemnify the insured for injuries caused by another--who was uninsured or underinsured--based on a showing that the other motorist was guilty of negligence resulting in injury to the insured. 5 A suit founded upon the insured's allegations (a) that he is entitled to payment under one of the first-party coverage clauses in the contract and (b) that the carrier has refused payment thereby breaching its promise, is clearly a contract action. 6 The circumstances of the uninsured motorist's culpability and of the insured's damages are matters which the insured must prove in order to recover from the insurer, but these are really conditions of the insurer's promise. The recovery of the insured is based ultimately upon the policy without which no liability could be imposed upon the insurer for the tort of another.

Even if the nature of the uninsured motorist coverage does not call for application of the two-year statute of limitations, insurers urge, it should nevertheless govern here because, within the meaning of 36 O.S.Supp.1976 § 3636(B), the insured is no longer "legally entitled to recover" from the tortfeasor. They urge that this phrase requires every insured to establish all elements of a viable claim in tort and that the timely filing of a suit within a two-year period of limitations is a sine qua non of recovery against the insurer. We do not agree.

The words "legally entitled to recover" simply mean that the insured must be able to establish fault on the part of the uninsured motorist which gives rise to damages and prove the extent of those damages. The phrase does not subject the insured's claim to the two-year statute of limitations applicable to an action ex delicto. 7

II.

One of the insurers asserts that the plain language of its contract with the insured clearly establishes that it had no obligation to pay under the uninsured motorist coverage of the policy if the action against the uninsured tortfeasor was barred by the statute of limitations. This provision is perceived by the insurer as a condition

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which limits its insurance liability risk. The policy contained the following clause:

"The Company shall not be obligated to pay under this insurance if an action against the uninsured motorist is barred by the Statute of Limitations."

Our attention is directed to an Ohio decision in which the court held that in the absence of a controlling statute to the contrary, parties may by contract limit the time for bringing an action upon it to a period shorter than that prescribed in a general statute of limitations if that period is not unreasonable. 8

The insured, relying on the provisions of 15 O.S.1981 § 216, argues that this provision is void and unenforceable in Oklahoma. The terms of § 216 provide:

"Every stipulation or condition in a contract, by which any party thereto is restricted from enforcing his right under the contract by the usual legal proceedings in the ordinary...

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113 practice notes
  • Wille v. Geico Cas. Co., No. 93457.
    • United States
    • Supreme Court of Oklahoma
    • February 15, 2000
    ...accrues on the date of the accident giving rise to the claim. We are persuaded by our earlier decision in Uptegraft v. Home Ins. Co., 1983 OK 41, 662 P.2d 681 in which we held that actions on a claim for recovery of uninsured motorist benefits are governed by the statute of limitations appl......
  • I. T. K. v. Mounds Pub. Sch., No. 115,069
    • United States
    • Supreme Court of Oklahoma
    • September 24, 2019
    ...with the office of the clerk which commenced a 90-day approval/denial period unless tolled by agreement.82 Uptegraft v. Home Ins. Co. , 1983 OK 41, 662 P.2d 681, 684 ("An action is one ex contractu when it is derived from (a) an express promise, (b) a promise implied in fact or (c) a promis......
  • Hensley v. State Farm Fire & Cas. Co., No. 112,417
    • United States
    • Supreme Court of Oklahoma
    • June 20, 2017
    ...1977 OK 141, 577 P.2d 899, 901.11 Shebester v. Triple Crown Insurers, 1992 OK 20, 826 P.2d 603, 610. See also Uptegraft v. Home Ins. Co., 1983 OK 41, 662 P.2d 681, 684 ("An action is one ex contractu when it is derived from (a) an express promise, (b) a promise implied in fact or (c) a prom......
  • First Bank of Turley v. Fidelity and Deposit Ins. Co. of Maryland, No. 85735
    • United States
    • Supreme Court of Oklahoma
    • September 24, 1996
    ...Inc. v. State of Hawaii, 66 Haw. 413, 665 P.2d 648, 651-652 (1983). 9 See 36 O.S. 102, supra note 6; Uptegraft v. Home Ins. Co., Okl., 662 P.2d 681, 684 (1983) (uninsured motorist coverage is a first-party indemnity paid by the insurer for a specified loss); 1 COUCH ON INSURANCE 2d (Rev ed)......
  • Request a trial to view additional results
113 cases
  • Wille v. Geico Cas. Co., No. 93457.
    • United States
    • Supreme Court of Oklahoma
    • February 15, 2000
    ...accrues on the date of the accident giving rise to the claim. We are persuaded by our earlier decision in Uptegraft v. Home Ins. Co., 1983 OK 41, 662 P.2d 681 in which we held that actions on a claim for recovery of uninsured motorist benefits are governed by the statute of limitations appl......
  • I. T. K. v. Mounds Pub. Sch., No. 115,069
    • United States
    • Supreme Court of Oklahoma
    • September 24, 2019
    ...with the office of the clerk which commenced a 90-day approval/denial period unless tolled by agreement.82 Uptegraft v. Home Ins. Co. , 1983 OK 41, 662 P.2d 681, 684 ("An action is one ex contractu when it is derived from (a) an express promise, (b) a promise implied in fact or (c) a promis......
  • Hensley v. State Farm Fire & Cas. Co., No. 112,417
    • United States
    • Supreme Court of Oklahoma
    • June 20, 2017
    ...1977 OK 141, 577 P.2d 899, 901.11 Shebester v. Triple Crown Insurers, 1992 OK 20, 826 P.2d 603, 610. See also Uptegraft v. Home Ins. Co., 1983 OK 41, 662 P.2d 681, 684 ("An action is one ex contractu when it is derived from (a) an express promise, (b) a promise implied in fact or (c) a prom......
  • First Bank of Turley v. Fidelity and Deposit Ins. Co. of Maryland, No. 85735
    • United States
    • Supreme Court of Oklahoma
    • September 24, 1996
    ...Inc. v. State of Hawaii, 66 Haw. 413, 665 P.2d 648, 651-652 (1983). 9 See 36 O.S. 102, supra note 6; Uptegraft v. Home Ins. Co., Okl., 662 P.2d 681, 684 (1983) (uninsured motorist coverage is a first-party indemnity paid by the insurer for a specified loss); 1 COUCH ON INSURANCE 2d (Rev ed)......
  • Request a trial to view additional results

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