RAYMOND v. TAYLOR
RAYMOND v. TAYLOR
Opinion
¶ 1 The question presented is whether the uninsured motorist insurance carrier is entitled to subrogation against the under-insured tort-feasor's assets, including excess insurance coverage, in the amount the uninsured motorist insurance carrier had previously paid to the injured party. We answer in the negative.
*1143 FACTUAL AND PROCEDURAL HISTORY
¶ 2 This case originated with a motor vehicle accident on July 6, 2012. William Cole Taylor (Taylor) was driving a vehicle owned and insured by Guy's Seed Company (Guy's Seed); Appellant, Mark Raymond (Raymond), was a passenger in the vehicle driven by Taylor. Both Raymond and Taylor were employees of Guy's Seed. Appellee, American Mercury Insurance Company (Mercury), issued a commercial automobile insurance policy to Guy's Seed which provided uninsured/under-insured motorist (UM) coverage of $1,000,000 per accident.
¶ 3 Larry Bedell (Bedell) was an employee of BlueKnight Energy Partners (BlueKnight); BlueKnight carried a $1,000,000 primary automobile liability policy and a $40,000,000 excess liability policy. Bedell was driving an oil tanker truck, owned by BlueKnight, and attempted to turn in front of the Guy's Seed vehicle causing a collision. The collision caused an immediate explosion, which resulted in Taylor's death and Raymond suffering significant permanent injuries.
¶ 4 Raymond qualified as insured under Mercury's UM coverage 1 and the UM claim was reported to Mercury on July 9, 2012. On July 12, 2012, Raymond filed a petition against Defendants, Bedell and BlueKnight, in Woodward County District Court. On September 4, 2012, Defendants filed their Answer. 2 Meanwhile, Mercury investigated and offered the UM policy limits to Raymond's and Taylor's representatives, paying $500,000 to each on September 24, 2012. On November 20, 2012, an agreed order of transfer to Woodward County was granted.
¶ 5 On December 3, 2012, Mercury filed a motion to intervene for subrogation from Defendants for the $500,000 payment made to Raymond from the UM policy. On December 18, 2012, Mercury's motion to intervene was granted. The case was mediated in late August 2013 with BlueKnight, Raymond, and Mercury present.
¶ 6 Raymond disputed Mercury's right to subrogation in this action, but Defendants refused to settle unless the settlement amount was inclusive of Mercury's disputed subrogation claim. An agreement was reached where Raymond settled with Defendants for a confidential amount greater than the primary insurance liability limits but less than the excess policy; 3 Defendants paid Raymond the amount of the settlement minus the $500,000 claimed by Mercury. The disputed $500,000 was to be held until there was an agreement or court order as to who was entitled to the funds.
¶ 7 On September 30, 2013, Mercury filed a motion to determine allocation of settlement funds. On August 29, 2014, the District Court granted Mercury's motion, finding that Mercury was entitled to the right of subrogation for the full $500,000. On April 6, 2015, the District Court dismissed the case, making the order of allocation of settlement funds final and ripe for appeal.
¶ 8 Raymond timely appealed and the matter was assigned to the Oklahoma Court of Civil Appeals (COCA), Division III. Raymond argued that the district court erred in finding Mercury had a valid subrogation interest in the proceeds of Raymond's settlement with Defendants. On September 30, 2016, COCA affirmed the District Court's order. Raymond timely filed a Petition for Certiorari which this Court granted on March 6, 2017.
STANDARD OF REVIEW
¶ 9 Statutory interpretation is a question of law and is subject to de novo
*1144
review.
Head v. McCracken
,
ANALYSIS
¶ 10 Title 36, Section 3636 of the Oklahoma statutes provides regulations for uninsured motorist insurance coverage and makes it mandatory as an option for all automotive insurance policies. 36 O.S.Supp. 2009, § 3636(A),(B).
4
For purposes of UM coverage protection, the term "uninsured motor vehicle" also includes insured vehicles where the liability limits are less than the amount of the claim of the person making a claim, otherwise known as under-insured vehicles. 36 O.S.Supp. 2009, § 3636(C). Any excess or umbrella policy is not included when determining the liability limits of a vehicle under Section 3636(C).
GEICO General Ins. Co. v. Northwestern Pacific Indemnity Co.
,
¶ 11 Mercury seeks subrogation of the UM funds it paid to Raymond under Title 36, Section 3636(F) :
In the event of payment to any person under the coverage required by this section and subject to the terms and conditions of such coverage, the insurer making such payment shall, to the extent thereof, be entitled to the proceeds of any settlement or judgment resulting from the exercise of any rights of recovery of such person against any person or organization legally responsible for the bodily injury for which such payment is made, including the proceeds recoverable from the assets of the insolvent insurer. Provided, however, with respect to payments made by reason of the coverage described in subsection C of this section, the insurer making such payment shall not be entitled to any right of recovery against such tort-feasor in excess of the proceeds recovered from the assets of the insolvent insurer of said tort-feasor. Provided further, that any payment made by the insured tort-feasor shall not reduce or be a credit against the total liability limits as provided in the insured's own uninsured motorist coverage. Provided further, that if a tentative agreement to settle for liability limits has been reached with an insured tort-feasor, written notice shall be given by certified mail to the uninsured motorist coverage insurer by its insured. Such written notice shall include:
1. Written documentation of pecuniary losses incurred, including copies of all medical bills; and
2. Written authorization or a court order to obtain reports from all employers and medical providers. Within sixty (60) days of receipt of this written notice, the uninsured motorist coverage insurer may substitute its payment to the insured for the tentative settlement amount. The uninsured motorist coverage insurer shall then be entitled to the insured's right of recovery to the extent of such payment and any settlement under the uninsured motorist coverage. If the uninsured motorist coverage insurer fails to pay the insured the amount of the tentative tort settlement within sixty (60) days, the uninsured motorist coverage insurer has no right to the proceeds of any settlement or judgment, as provided herein, for any amount paid under the uninsured motorist coverage.
*1145 36 O.S.Supp. 2009, § 3636(F) (emphasis and underline added). Mercury primarily points to the first sentence of this section as providing the right to subrogation.
¶ 12 When a statute is unambiguous, its language will be applied without further inquiry as to its meaning.
Ball v. Multiple Injury Tr. Fund
,
¶ 13 When reviewing a statute for meaning, relevant provisions must be considered together to give full force to each, if possible.
Barnes v. Okla. Farm Bureau Mut. Ins. Co.
,
¶ 14 The second sentence of 3636(F) states:
Provided, however, with respect to payments made by reason of the coverage described in subsection C of this section, the insurer making such payment shall not be entitled to any right of recovery against such tort-feasor in excess of the proceeds recovered from the assets of the insolvent insurer of said tort-feasor.
36 O.S.Supp. 2009, § 3636(F) (emphasis added). This exception limits the UM carrier's right to subrogation to recovery from the tort-feasor's primary automotive liability insurer only and prohibits recovery against the tort-feasor in excess of the proceeds recovered from primary insurer or their assets. This exception only applies to UM payments made because of UM coverage described in subsection (C). Subsection (C) describes tort-feasor vehicles with insolvent liability insurers
and under-insured vehicles
as "uninsured" for purposes of UM coverage.
10
Section 3636(C) does not contemplate excess policies in determining liability limits for whether a vehicle is under-insured.
GEICO
,
¶ 15 As Title 36, Section 3636(F) specifically refers to subsection (C), it is clear that the insurer referred to is the same primary insurer who is either insolvent or with whom the tort-feasor is under-insured. There is no language in Section 3636(C) or (F) to indicate that the legislature contemplated UM carriers recovering from excess insurance policies of the tort-feasor. Instead, the legislature gave explicit instructions that UM carriers are not entitled to any right of recovery against the tort-feasor in excess of recovery from the insurer of the tort-feasor. Mercury argues that this exception only applies to insolvent insurers not to under-insured tort-feasors and that to apply it to both would make the word 'insolvent' superfluous. Mercury further claims that because the exception only applies to insolvent insurers, in the absence of insolvency the UM insurer may recover from the tort-feasor in excess of the proceeds from the primary insurance.
¶ 16 A statute must be read to make every part operative and to avoid making parts of it superfluous or useless.
Moran v. City of Del City
,
¶ 17 While Section 3636(C), was originally enacted with only language referring to insolvency,
*1147
Sess. Laws 211-12. Resolving the apparent conflict by having the reference in subsection (F) apply to the entirety of subsection (C) promotes the Legislature's intent and is consistent with this Court's tendency to protect the insured's right to collect from the UM carrier.
Burch v. Allstate Ins. Co.
,
¶ 18 Contrary to Mercury's claims, Raymond is not receiving a windfall here. Mercury was paid a premium for UM protection and Raymond recovered an amount not covering all of his damages within the limits of the primary liability policy and the UM policy. Raymond has also recovered an amount from the tort-feasor's other assets that, combined with the liability and UM funds, covered his damages. It would be unjust to permit Mercury to avoid its liability with its claim that the tort-feasor's other assets, that happened to be an excess liability policy, removed Mercury's liability thus denying Raymond from receiving that for which Mercury was paid a premium.
Keel v. MFA Ins. Co.
,
¶ 19 In the present case, the tort-feasors carried $1,000,000 in primary automotive liability insurance. Because Raymond's claim was clearly in excess of the liability limit, Mercury paid UM benefits under the definition of uninsured motor vehicle in Section 3636(C). We hold that under Section 3636(F), Mercury was limited to subrogation from the primary insurer and is not entitled to subrogation from any assets of the tort-feasor, including the excess liability policy. 13
CONCLUSION
¶ 20 As there is no right to subrogation by an UM carrier against an under-insured tort-feasor's assets, Mercury did not have the right to subrogate the UM payment and we do not need to address the issue of attorney fees. The Court of Civil Appeals opinion is vacated and the judgment of the district court is reversed. The case is remanded with instructions to the District Court to release the $500,000 to the Appellant.
COURT OF CIVIL APPEALS' OPINION VACATED; JUDGMENT OF DISTRICT COURT REVERSED; CAUSE REMANDED WITH INSTRUCTIONS.
KAUGER, WATT, EDMONDSON, COLBERT AND REIF, JJ.-CONCUR
COMBS, C.J. (by separate writing), GURICH, V.C.J., WINCHESTER AND WYRICK, JJ.-DISSENT
COMBS, C.J., with whom Gurich, V.C.J., Winchester and Wyrick, JJ., join, dissenting:
*1148
¶ 1 The question presented in this matter is whether an uninsured motorist insurance carrier, American Mercury Insurance Company (Mercury), is entitled to subrogation against the underinsured tortfeasor's assets beyond the amount paid by the tortfeasor's primary liability insurer, including excess secondary insurance coverage. Based on its interpretation and analysis of
I.
THE UNINSURED MOTORIST STATUTE-TITLE
¶ 2 The controlling statutory provision in this matter is
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. For the purposes of this coverage the term "uninsured motor vehicle" shall also include an insured motor vehicle, the liability limits of which are less than the amount of the claim of the person or persons making such claim, regardless of the amount of coverage of either of the parties in relation to each other.
The applicability of the second sentence of
¶ 3 Title
F. In the event of payment to any person under the coverage required by this section and subject to the terms and conditions of such coverage, the insurer making such payment shall, to the extent thereof, be entitled to the proceeds of any settlement or judgment resulting from the exercise of any rights of recovery of such person against any person or organization legally responsible for the bodily injury for which such payment is made, including the proceeds recoverable from the assets of the insolvent insurer. Provided, however, with respect to payments made by reason of the coverage described in subsection C of this section, the insurer making such payment shall not be entitled to any right of recovery against such tort-feasor in excess of the proceeds recovered from the assets of the insolvent insurer of said tort-feasor. Provided further, that any payment made by the insured tort-feasor shall not reduce or be a credit against the total liability limits as provided in the insured's own uninsured motorist coverage.
II.
TITLE
¶ 4 Mercury argues it is entitled to subrogation pursuant to the first sentence of
Provided, however, with respect to payments made by reason of the coverage described in subsection C of this section, the insurer making such payment shall not be entitled to any right of recovery against such tort-feasor in excess of the proceeds recovered from the assets of the insolvent insurer of said tort-feasor.
Because Section 3636(F) specifically references payments made pursuant to Section 3636(C), the majority concludes subrogation against the tortfeasor beyond the amount provided by the liability insurer is prohibited under both uninsured motorist scenarios described in Section 3636(C) : 1) where the liability insurer is unable to make full payment due to insolvency; and 2) where the motor vehicle has insufficient liability insurance to equal the claim.
¶ 5 The majority notes that originally Section 3636(C) only referenced the insolvent insurer scenario, and did not provide for an underinsured vehicle situation like the one central to this cause.
2
According to the majority's analysis, this explains why the second sentence of
¶ 6 The result of this line of reasoning is the rule the majority sets out in 15 of the opinion: "UM carriers are not entitled to any right of recovery against the tort-feasor in excess of recovery from the insurer of the tort-feasor." This would include another excess policy, as exists under the facts of this cause. This rule is not in accord with: 1) a plain reading of the statute's language; 2) the principles behind equitable subrogation; and 3) this Court's prior case law.
¶ 7 First, the majority's interpretation would make the reference to "insolvent insurer" in the second sentence of Section 3636(F) superfluous. 3 Had the Legislature intended the restriction to apply to the underinsured motorist scenario it added to Section 3636(C) in 1979, it could have also amended the second sentence of Section 3636(F) to encompass both situations (a vehicle with an insolvent insurer AND an underinsured vehicle). The Legislature did not do so, and therefore the plain language of the second sentence of Section 3636(F) indicates its restriction on subrogation applies only to situations where there is an insolvent insurer.
¶ 8 Second, such an interpretation not only fits the plain language of the statute, but is also in accord with the purpose behind equitable subrogation:
The goal of equitable subrogation is to place the entire burden for a loss on the party who is ultimately responsible for it and by whom it should have been discharged, and to relieve entirely the insurer who indemnified the loss and who is not responsible for paying it.
U.S. Fidelity and Guar. Co. v. Federated Rural Elec. Ins. Corp.
,
Simply put, a tortfeasor's liability insurer being unable to pay due to insolvency is not the tortfeasor's fault. In that context, it makes sense to limit subrogation to only the assets of the insolvent insurer of the tortfeasor, which is precisely what the second sentence of
¶ 9 Third, the above principles are supported by this Court's prior case law.
Porter v. MFA Mut. Ins. Co.
,
MFA contends that the statute requiring uninsured motorist coverage, 36 O.S. § 3636 (E), specifically allows for subrogation rights. We agree with MFA's contention that said statute specifically recognizes the rights of MFA as the uninsured motorist insurer to recoupment of its loss from the third party tortfeasor .
Porter
,
The Legislature's subsequent amendment of Section 3636(C) does not alter this rule, given the Legislature's decision to leave unchanged the language referring specifically to insolvent insurers in the second sentence of Section 3636(F).
¶ 10 Further, this Court has referenced
Porter
and continued to recognize an underinsured motorist carrier's right to subrogation against the tortfeasor in a line of subsequent cases, all decided after Section 3636(C) was amended to include the underinsured motorist contingency. For example, in
Frey v. Independence Fire and Cas. Co.
,
¶ 11 Subrogation rights and the application of
Porter
were also discussed by this Court in
Sexton v. Continental Cas. Co.
,
¶ 12 By way of another example, in
Burch v. Allstate Ins. Co.
,
... the UM carrier is directly and primarily liable to its insured for the entire loss to be indemnified, except where the insured affirmatively destroys the insurer's subrogation right, does not make the UM carrier the final indemnitor for the injured party's loss. The UM carrier is statutorily subrogated to the rights of its insured against the tortfeasor and the tortfeasor's liability carrier, if any there be , and must seek recovery of paid indemnity through an exercise of its right to subrogation. (Emphasis added).
This holding does not suggest that the UM carrier's right of subrogation is limited solely to the amount recovered from the primary liability insurer. Rather, it goes so far as to indicate that the right of subrogation exists against the tortfeasor, period.
¶ 13 In short, nothing in this Court's prior case law or in the language of
The exact amount of damages suffered by Raymond was not submitted to this Court, but was stated by Raymond as exceeding $2,000,000. It is undisputed that Raymond's injuries exceeded the combined total of BlueKnight's primary automobile liability policy of $1,000,000 and the $500,000 paid in benefits under the Mercury UM policy.
In September 2012, both Taylor's estate and CompSource Oklahoma filed motions to intervene. On November 20, 2012 and February 14, 2013, respectively, Taylor's and CompSource Oklahoma's motions to intervene were granted. The actions were dismissed with prejudice in December 2013 and February 2015 respectively.
Both parties state the confidential settlement amount was inclusive of Mercury's disputed subrogation claim. Neither the settlement agreement nor the insurance contracts were included in any of the materials to this Court.
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. ....
36 O.S.Supp. 2009, § 3636(A),(B).
"An Act relating to insurance; requiring that an "uninsured motorist clause" be contained in every automobile liability insurance policy; prescribing the limits of liability of such coverage; providing for an insolvency clause; providing exceptions; defining terms ...."
Umbrella policies are "at most tangentially related to automobile liability" and thus do not further the intent of the UM statute.
Moser
,
In the event of payment to any person under the coverage required by this section and subject to the terms and conditions of such coverage, the insurer making such payment shall, to the extent thereof, be entitled to the proceeds of any settlement or judgment resulting from the exercise of any rights of recovery of such person against any person or organization legally responsible for the bodily injury for which such payment is made, including the proceeds recoverable from the assets of the insolvent insurer.
36 O.S.Supp. 2009, § 3636(F).
"Provided further, that any payment made by the insured tort-feasor shall not reduce or be a credit against the total liability limits as provided in the insured's own uninsured motorist coverage." 36 O.S.Supp. 2009, § 3636(F).
Provided further, that if a tentative agreement to settle for liability limits has been reached with an insured tort-feasor, written notice shall be given by certified mail to the uninsured motorist coverage insurer by its insured. Such written notice shall include:
1. Written documentation of pecuniary losses incurred, including copies of all medical bills; and
2. Written authorization or a court order to obtain reports from all employers and medical providers. Within sixty (60) days of receipt of this written notice, the uninsured motorist coverage insurer may substitute its payment to the insured for the tentative settlement amount. The uninsured motorist coverage insurer shall then be entitled to the insured's right of recovery to the extent of such payment and any settlement under the uninsured motorist coverage. If the uninsured motorist coverage insurer fails to pay the insured the amount of the tentative tort settlement within sixty (60) days, the uninsured motorist coverage insurer has no right to the proceeds of any settlement or judgment, as provided herein, for any amount paid under the uninsured motorist coverage.
36 O.S.Supp. 2009, § 3636(F).
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. For the purposes of this coverage the term "uninsured motor vehicle" shall also include an insured motor vehicle, the liability limits of which are less than the amount of the claim of the person or persons making such claim , regardless of the amount of coverage of either of the parties in relation to each other.
36 O.S.Supp. 2009, § 3636(C) (emphasis added).
Changed language from "subsection (C) above" to "subsection C of this section."
Legislative silence may be considered as giving rise to an implication of legislative intent.
Zaloudek Grain Co.
,
Mercury claims that an UM carrier can recover from "any available assets of the tortfeasor."
Barnes
,
Section 3636 was last amended in 2014 by SB 991, 2014 Okla. Sess. Laws, c. 307, § 1 (eff. Nov. 1, 2014). Prior to that, it was amended in 2009 by SB 1022, 2009 Okla. Sess. Laws, c. 176, § 31 (eff. Nov. 1, 2009). The collision and underlying injuries occurred on July 6, 2012. Accordingly,
Majority Opinion at ¶ 17. See HB 802, 1968 Okla. Sess. Laws, c. 106, § 2.
Title
Provided, however, with respect to payments made by reason of the coverage described in subsection C of this section, the insurer making such payment shall not be entitled to any right of recovery against such tort-feasor in excess of the proceeds recovered from the assets of the insolvent insurer of said tortfeasor . (Emphasis added).
Reference
- Full Case Name
- Vonda RAYMOND, Guardian of Mark Raymond, an Incapacitated Adult, Plaintiff/Appellant, v. Tami TAYLOR, Individually and as Personal Representative of the Estate of William Cole Taylor, Deceased, and on Behalf of the Wrongful Death Beneficiaries, Plaintiff/Intervenor v. Larry Bedell, an Individual, and Blueknight Energy Partners, L.P., a Foreign Corporation, Defendants, v. CompSource Oklahoma, Intervenor, and American Mercury Insurance Company, Intervenor/Appellee.
- Cited By
- 48 cases
- Status
- Published