Question: Is UM carrier entitled to offset based upon payments made under medical payments coverage?

Answer: whether the insurance company is entitled to credit against the UM for the med-pay depends on whether the injured insured is a named insured/household member or a person insured only as a person occupying an insured vehicle.  If the injured insured is a named insured or household member, the insurance company is not entitled to credit.  If, on the other hand the injured insured is insured only as a permissive occupant, the insurance company can take the credit, assuming the policy calls for it. The basis for this rule is 36 O.S. Sec. 6092, which permits subrogation of med-pay where the injured insured is a permissive occupant but not where the injured insured is a named insured or household member.  See, Aetna Cas. and Sur. Co. v. State Board of Prop. & Cas. Rates, 1981 OK 153, 637 P.2d 1251.

Question: Does Kansas UM stack?

Answer: No.  Kansas has an anti-stacking statute.  KSA Sec. 40-284(d): “(d) Coverage under the policy shall be limited to the extent that the total limits available cannot exceed the highest limits of any single applicable policy, regardless of the number of policies involved, persons covered, claims made, vehicles or premiums shown on the policy or premiums paid or vehicles involved in an accident.”

Question: Do MRI and ambulance service liens attach to UM proceeds?

Answer: Under present law, MRI services outside a hospital are not covered.  Ambulance service is, under 42 O.S. Sec. 49.  As of November 1, 2008, however, an amendment "B" to 42 O.S. Sec. 43 will become effective extending a lien against liability (but not UM) coverage to MRI, CT, and PET imaging outside a hospital.

Question: Delaware corporation claims "internal affairs" doctrine prevents me from piercing corporate veil or alleging alter ego in a claim against a nursing home chain hiding behind its shell corps and Delaware law in order to defeat my recovery.

Answer: I think your opponent misperceives the function of the internal affairs doctrine.  It does not apply to your case but rather applies only to questions about disputes or the relationship between and among the corporation and its directors and shareholders.  The Supreme Court of Delaware probably best explains this disctinction in McDermott Inc. v. Lewis, 531 A.2d 206, 214-15 (1987).

Question: When state court case is removed to federal court is the state court issued discovery still due in 30 days? Or is it stayed and the FRCP then applies? I am trying to figure out when my discovery deadline is now that my case went from Oklahoma County to the Western District.

Answer: I think Rule 26 will apply and control so that your discovery will not be due until the deadlines are established in the federal court action.  Hanna v. Plumer, 380 U.S. 460 (1965) seems to stand for the proposition that where a federal rule addresses a procedural issue, the federal, rather than the state procedural rule will apply.

Question: Does health insurance company have subro interest in med pay monies?

Answer: Depends on the terms of the health policy.  If it refers only to being subrogated against claims against third parties, probably not, under Provident Life & Accid. Ins. Co. v. Ridenour, 1992 OK CIV APP 93, 838 P.2d 530 (Health insurance company not entitled to subrogation against UM, which provides for recovery against third party).  Distinguished by Reeds v. Honorable Thomas S. Walker/NAICO v. Reeds, 2006 OK 43, 157 P.3d 100 which allows recovery against other insurance.

Question: I'm looking for forms and procedures for non judicial determination of death to clear title on joint tenancy property without having to do a probate.

Answer: See 12 O.S. Sec. 912. 

Question: I've got a case where 2 adults were given an excessive amount of alcohol.  My client gets in the car with the other drunk guy driving, driver flips the car and my client is injured.  Am I correct that dram shop only applies when the tavern owner provides alcohol to minors or is the bar liable in this scenario?

Answer: There is at least a theoretical dram shop case.  I say theoretical because of the obvious contrib. problem of your client having been drinking with and then riding with the drunk.  There is also the practical problem that most bars don’t have dram shop liability coverage and it is devilishly hard to collect if you get a judgment.  If the server is not a bar, you have a social dramshop claim, which will not give rise to liability.  Here are some of the cases: Brigance v. Velvet Dove Restaurant, Inc., 725 P.2d 300 (Okla. 1986); Ohio Cas. Ins. Co. v. Todd, 813 P.2d 508 (Okla. 1991)(Intoxicated person may not recover for his own injuries (reversing earlier decision on rehearing)); Teel v. Warren, 2001 OK CIV APP 46, 22 P.3d 234 (Ct. of Civil Appeals will leave to Supreme Court whether to recognize social host liability, citing Battles v. Cough, 1997 OK CIV APP 62, 947 P.2d 600). 

Question: Client injured on the job - hit by a car driven for state entity. Can client elect between filing a comp claim or pursuing third-party governmental tort claim?

Answer: You cannot decline Work Comp and thereby have a GTCA claim.  51 O.S. Sec. 155(14) says the state shall not be liable for "Any loss to any person covered by any workers' compensation act or any employer's liability act;"  Your client is covered by work comp whether a claim is filed or not.  So, the bottom line is you cannot elect.  You also cannot recover both and pay subrogation.  I would think this also causes the tort-feasor to be uninsured so you can collect UM which, of course, will not be subject to work comp subrogation.  So, your client may come out better than you would otherwise expect, assuming your client has UM.

Question: 1. Minor involved in MVA; 2. Minor's parent's incur medical bills; 3. Minor files lawsuit medical bills not allowed in suit by judge; 4. Minor loses lawsuit (asking for P&S only); 5. Mom wishes to file lawsuit to ask medical bills be paid.  Is mom's claim precluded?

Answer: Assuming Mom was not a party to the prior suit, she should not be precluded.  I would worry, however, whether the statute may have run on her claim and would have a very practical worry how you’re going to win that case when the minor could not.

Question:  I took over a case where two companies were sued in Oklahoma County.  They denied jurisdiction in Oklahoma County saying they are not citizens of Oklahoma or Oklahoma County (they haven't removed).  I later filed suit against two other defendants in Tulsa County, one of which is a resident of Tulsa County.  I want to transfer the Oklahoma County case to Tulsa and consolidate the two actions.  Do I move for transfer and consolidation in the Tulsa or the OKC case?

Answer: Be aware you have two different issues going here.  One is whether the Oklahoma courts (any Oklahoma court, including federal court) has jurisdiction over the out-of-state defendant, which evidently claims an insufficient connection with Oklahoma to be subject to suit in Oklahoma. On that issue, they will be talking about World-Wide Volkswagen v. Woodson, 444 U.S. 286, Burger King Corp. v. Rudzewicz, 471 U.S. 462 and Asahi Metal Industry Co. v. Superior Court, 480 U.S. 102.  The other is venue, that is, assuming the Oklahoma courts have jurisdiction, which is the proper county in Oklahoma in which to try the case.  You'll have to file your transfer motion in OKC, in the county where the original suit was filed.  I don’t know enough about your facts to know whether jurisdiction in Oklahoma is proper or whether venue is proper in Oklahoma County but you need to keep the distinction in mind.   

Question: If the judge denies challenge for cause do I have to use a pre-emptory on that particular juror to preserve error; or do I simply have to use all pre-emptories before accepting the jury. 

Answer: Actually, you have to exhaust all your peremptory challenges and show that you have another juror on the panel you find objectionable.  See: Cox v. Sarkeys, 1956 OK 294, 304 P.2d 979, 984-5.

Question:  Insurance company has refused to defend policyholder saying there is no coverage for the claim.  We want to enter consent judgment and then pursue garnishment against policy.  Policy says insured may make no statement that will assume any obligation or admit any liability, for any “loss” for which we may be liable, without our consent. Given this, is there any way to enter into a consent judgment without losing possibility of coverage?

Answer: There is an old Tenth Circuit case, Traders & Gen. Ins. Co. v. Rudco Oil & Gas Co., 129 F.2d 621, which says if the insurance company unreasonably denies coverage, it is estopped to assert the “assume any liability” clause.  There, the insured actually settled and paid the money, but that may not be the only way to do this.  Some states (but not Oklahoma – yet) permit the insured to agree to a judgment and make a deal with the injured plaintiff under which the insured agrees to a judgment and gets a covenant not to execute on the judgment in return for an assignment of the insured’s claim against the insurance company.  In Arizona, these have come to be called “Damron” assignments, after Damron v. Sledge, 460 P.2d 997 (AZ 1969).  This is probably the direction in which we need to move Oklahoma law.  We’re not there just yet, though.  

Question: Ins. Co. states it will pay for one (1) layer of removal and one (1) layer of replacement.  However, roofing contractors are saying that it is impossible to do work to code by just removing one layer....  Any thoughts on this?

Answer: Gutkowski v. Oklahoma Farmers Union Mut. Ins. Co., 2008 OK CIV APP 8, 176 P.3d 1232 seems to hold the insurance company has to replace whatever needs to be replaced to properly repair the roof. 

Question: If husband is driving and wife is injured through his fault, can wife (a named insured on their policy) recover full amount of LIABILITY policy and full amount of UIM policy as well?

Answer: She should be able to recover both.  See: Heavner v. Farmers, 1983 OK 51, 663 P.2d 730 and State Farm v. Wendt, 1985 OK 75, 708 P.2d 581.  If there is a household exclusion (eliminating coverage if the injured person is the named insured or member of the household) the insurance company may argue that the exclusion is invalid only to the extent there is no coverage available to the wife so that she can recover up to $25,000 from one or the other of liability or UM, but not both.  See as an example of this argument Justice Opala’s concurring opinion in Nation v. State Farm Ins. Co., 1994 OK 54, 880 P.2d 877.  However, the other justices did not go along and I think the insurance company has its work cut out for it selling this theory to the present court.  

Question: Client in pure uninsured motorist position after motorcycle crash has two UM policies (different companies) one on the motorcycle and the other on her car.  Evaluation is below both 25K UM limits.  It is my position that both UM policies must evaluate and pay from first dollar since client paid separate premiums to separate carriers.  Carrier on car says its UM is excess beyond motorcycle UM (relying on "payments by 'other policies'" provision.  thoughts?

Answer: The insurance companies are wrong and getting dangerously close to a bad faith case.  Both are primary and cannot insist that the insured wait for them to sort out who is primary and who is excess.  See: Mustain v. United States Fidelity and Guaranty Co., et al., 1996 OK 98, 925 P.2d 533 (UM insurance is primary as between the insured and UM insurer; UM insurer’s responsibility to insured cannot be conditioned on amount of other coverage.)

Question: I'm looking for Oklahoma cases where the attorney fee award significantly exceeded the amount of the verdict.

Answer: S.W. Bell Telephone Company v. Parker Pest Control, Inc., 737 P.2d 1168 (Okla. 1987)(Amount involved is just one criteria; approves $3,000 fee on $1,500 confession of judgment).