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Passenger Injured in Vehicle with No Insurance
Published on 2012-05-03 00:00:00
Does the new "no pay, no play" law apply to an innocent injured passenger in a uninsured vehicle? Answer: It does not. 47 O.S. Sec. 7-116B: The limitations provided for in subsection A of this section shall not apply: . . . 2. If the plaintiff or claimant was a passenger in a motor vehicle involved in the accident, unless the plaintiff or claimant is an owner of the vehicle;" Also, this is highly unlikely to be held constitutional as it is surely an impermissible restriction on access to the [..] > read more
Indian Tribe Subrogation
Published on 2012-04-26 00:00:00
When an Indian tribe has BCBS health insurance for its employees, does the coverage come under ERISA? Answer: I think it will depend on what your client does for the tribe. 29 USC 1003(b)(1) provides ERISA does not include a governmental plan as defined in § 1002(32) (includes federal, state or political subdivision "or agency or instrumentality of any of the foregoing." Sec. 1002(32) provides: ". . . . The term "governmental plan" includes a plan which is established and maintained by an I [..] > read more
Insurance Exclusion for Business Use of Vehicle
Published on 2012-04-19 00:00:00
Tortfeasor is delivering pizza when he causes wreck with my client. His car is personally insured but they say no coverage because he was using the car for business purposes and they have an exclusion. Is such an exclusion valid and, if so, can it exclude even the minimum coverage required by law? Answer: The pizza joint will be liable under respondeat superior. It’s liability coverage will apply because of its "hired and non-owned auto" coverage which might or might not also cover the deli [..] > read more
MSJ Response
Published on 2012-04-12 00:00:00
I have a fire case with total loss of a large metal building and all content. Defendant (co-tenant) has filed for summary judgment claiming we cannot establish causation. All experts, including defendant's, agree that origin was in defendant's half of the building and that because of the extent of the fire, specific cause will never be known. They all also agree that two potential causes were in exact area of fire origin: (1) extension cord running (in violation of National Electric Code) throug [..] > read more
Military Active Service Preventing Service of Summons
Published on 2012-04-05 00:00:00
Can you point me to the federal law regarding a stay on legal actions for military in active duty? I need to serve a petition, but just learned the defendant is overseas in the Air Force? Answer: I believe you are looking for 50 App. USC Sec. 522. > read more
Help with Case Cite
Published on 2012-03-29 00:00:00
Can you point me to the Oklahoma case that says a physician is the captain of the ship and is therefore liable for his staff working under him? Answer: While not labeled a "captain of the ship" case, I think you may be thinking of Jackson v. Oklahoma Memorial Hospital, 1995 OK 112, 909 P.2d 765. It essentially says it doesn't make any difference whether the doctor or an underling did the bad deed (a cautery burn), the doctor is liable. > read more
Loss Payee on Mortgage
Published on 2012-03-22 00:00:00
My client sold a business holding back a mortgage. The mortgagee's insurance acknowledged in writing that my client had a first mortgage on the property. When the property was later damaged the insurance issued the check to the mortgagee without naming my client as a payee. The mortgagee cashed the check but did not make repairs. Is my client a 3d party beneficiary to the insurance contract and can I sue the insurer for bad faith? Answer: There are two kinds of mortgage or loss payable clauses [..] > read more
Estate Creditors Claims Against Wrongful Death Proceeds
Published on 2012-03-15 00:00:00
Are the proceeds from a wrongful death settlement subject to claims by the deceased’s creditors (ie, credit card or other similar debt)? Answer: Damages in a survival action under 12 O.S. Sec. 1053 go into the estate where they pass by will or intestate succession. Wrongful death damages under 12 O.S. Sec. 1054 go to the survivors, do not pass through the estate and are not subject to debts of the estate. If you go to my website www.travislawoffice.com and click on the tab (upper right) "Pra [..] > read more
ERISA Plan and Recovery Costs for Subrogation
Published on 2012-03-08 00:00:00
There is an important new case out of the 3rd Circuit addressing whether ERISA health insurance plan must pay its share of recovery costs associated with its subrogation claim: US Airways, Inc. v. McCutchen, __F.3d __, 2011 WL 5557411: Where ERISA claim for bills paid was $66,866 and recovery (due to limited coverage) was $110,000 and injured plan member owed 40% attorney fee, District Court erred in requiring injured plan member to pay back all of the recovery. "Appropriate equitable relief" wh [..] > read more
Notice of Wrongful Death Claim When Parental Rights Terminated
Published on 2012-03-01 00:00:00
Decedent had parental rights terminated for minor child, who was then adopted by others. Am I right the children are still to receive notice of appointing personal representative for the estate and notice of wrongful death action? Answer: The children remain heirs of their natural parents despite the adoption. See: Stark v. Watson, 1965 OK 191, 359 P.2d 191, 197: "There are no words or expressions in our descent and distribution statutes which, in any way, limit or prohibit an issue of a deced [..] > read more
Minor as Personal Injury Defendant
Published on 2012-02-23 00:00:00
I have to file suit against a minor who hit my client. Do I sue the parents or the minor? Answer: Sue and serve the kid (I assume since he was driving he's over 15) per 12 O.S. Sec. 2004(c)(1): "c. Service shall be made as follows: (1) upon an individual other than an infant who is less than fifteen (15) years of age or an incompetent person, by delivering a copy of the summons and of the petition personally or by leaving copies thereof at the person's dwelling house or usual place of abode [..] > read more
Is owner of cow responsible for car wreck?
Published on 2012-02-16 00:00:00
I have a case where a cow got onto the road and my client hit the cow. Is the cow owner responsible? Answer: You have to prove that the animal is out of its pasture through negligence of its owner or keeper. See: Rouk v. Halford, 1970 OK 195, 475 P.2d 814: Fact that horse was loose on highway gave rise to no interference of negligence, but P. vehicle operator had to prove D. negligent in letting the horse out. Citing Champlin Refining Co. v. Cooper, 184 Okl. 153, 86 P.2d 61 (1939): Proof [..] > read more
Will naming John Doe defendant protect statute of limitations?
Published on 2012-02-02 00:00:00
I’m have to file suit in a day or so to protect statute of limitations and have a defendant that I can’t yet identify. Does naming a John Doe defendant protect the statute of limitations? Answer: I’m not sure suing the John Doe defendant protects the statute of limitations. The problem is you must have given notice to the correct defendant within the Statute of limitation but just misnamed them. Unless you have some way of showing that the John Doe corporation you ultimately identify ha [..] > read more
UM Exclusion
Published on 2012-01-26 00:00:00
May a commercial UM policy exclude coverage for injury covered by workers' compensation? Answer: Check out these cases: Chambers v. Walker, 1982 OK 128, 653 P.2d 931, prohibits offset or credit against the insured's own UM policy for workers' compensation benefits, despite a policy provision to that effect. Bill Hodges Truck Company v. Humphrey, 1984 OK CIV APP 55, 704 P.2d 94. prohibits the converse: an offset of UM benefits paid under the worker's own policy against a workers' compensation r [..] > read more
Briefing Issue of Statute of Limitations and Public Nuisance/odor
Published on 2012-01-19 00:00:00
What is the statute of limitations for a public nuisance/odor issue that is a continuing harm? Answer: This may help you: N.C. Corff Partnership, Ltd. v. OXY USA, Inc., 1996 OK CIV APP 92, 929 P.2d 288, 293: "The statute of limitations applicable to nuisance claims in Oklahoma is two years. To the extent damages caused by a nuisance are temporary in nature-i.e., damages reasonably capable of abatement-they will be held not permanent and the statute will not begin to run until injury is suffered [..] > read more
Proving Medical Bills are Usual
Published on 2012-01-12 00:00:00
What is sufficient evidence to prove the amount of medical bills is reasonable or usual and customary? Answer: In state court, it's not necessary to prove the bills reasonable, necessary, etc. See: 12 O.S. Sec. 3009: "Upon the trial of any civil case involving injury, disease or disability, the patient, a member of the patient's family or any other person responsible for the care of the patient, shall be a competent witness to identify doctor bills, hospital bills, ambulance service bills, drug [..] > read more
Lease to own agreement
Published on 2012-01-05 00:00:00
Does you have a lease to own agreement I can use for a friend? Answer: I don't do real estate practice but you might want to talk to or have your friend talk to a real estate lawyer about this before doing it. The problem is with 16 O.S. Sec. 11A: "All contracts for deed for purchase and sale of real property made for the purpose or with the intention of receiving the payment of money and made for the purpose of establishing an immediate and continuing right of possession of the described real [..] > read more
Peremptory Challenges
Published on 2011-12-29 00:00:00
I’m about to try a case against two defendants and wonder how many peremptory challenges each party gets? Answer: Generally, they get 3 among them, unless they can make a specific showing their interests are adverse. Anno. 32 A.L.R.3rd 747: No. of challenges allowable in civil cases where more than 2 parties are involved. Citing OK cases: M&D Motor Freight Lines v. Kelley, 1948 OK 128, 202 P.2d 215; Albina Engine & Machine Works, Inc. v. Abel, 305 F.2d 77 (10th Cir. 1962). Where interests o [..] > read more
Police Chase--Civil Rights Jurisdiction
Published on 2011-12-22 00:00:00
I have a case where a felon in police chase caused wreck injuring bystander client. Could a federal civil rights claim be rightly brought against the department and/or the involved officers? Answer: I'm afraid not. See: County of Sacramento v. Lewis, 523 U.S. 833, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998): "Parents of motorcycle passenger killed in high-speed police chase of motorcyclist brought § 1983 claim against county, sheriff's department, and deputy, alleging deprivation of passenger's s [..] > read more
Temp Agency
Published on 2011-12-15 00:00:00
Is a company that hires from a temp agency immune from suit if the temporary employee gets injured on the job? Answer: As I read 40 O.S. Sec. 600.7E, both the leasing company (which the statute calls a PEO) and the leasing company’s client or customer are employers and protected by the exclusive remedy: “E. Workers' compensation. Both client and the PEO shall be considered the employer for the purpose of coverage under the Workers' Compensation Act [FN1] and both the PEO and its client shal [..] > read more
Viable Cause of Action
Published on 2011-12-08 00:00:00
First driver driving on suspended license when another driver runs yield sign hitting first driver. Second driver, my client, is killed. First driver is convicted of 1st degree manslaughter, a felony, because of driving under suspension. Can I succeed with civil claim against first driver? Answer: Yes. See: Benham v. Plotner, 795 P.2d 510 (Okla. 1990): A final conviction is conclusive of the facts necessary to establish the judgment, citing Lee v. Knight, 771 P.2d 1003 (Okla. 1989). A convictio [..] > read more
Medical Lein-Wrongful
Published on 2011-06-30 00:00:00
What’s my remedy when a medical provider asserts a lien on a client's case that is invalid because it is for treatment for an injury unrelated to the actual claim? Answer: You can recover your attorney fee for an action to cancel or construe the l > read more
Comparative Fault and Punitives
Published on 2011-06-23 00:00:00
Does a PL’s comparative fault apply to and reduce a punitive damage award? Answer: No. Here are the authorities: Anno. 10 A.L.R.4th 946 "Application of Comparative Negligence in Action Based on Gross Negligence, Recklessness or the Like." Cites: A > read more
VA Liability in Face of Subsequen Treatment
Published on 2011-06-16 00:00:00
Client was treated at VA hospital. He returned later with complications but was never seen and finally left and went to another ER where he was treated but with a bad end result. Is VA liable for entire injury? Answer: The federal government is liab > read more
Subrogation-Make Whole Rule
Published on 2011-06-09 00:00:00
Health insurance policy says: "Payments of any Benefits will allow Claims Administrator to be subrogated to and succeed the rights of the Member for recovery against any person, organization or carrier in accordance with applicable laws. Any subrogat > read more
Out of State Policy Less than Minimum
Published on 2011-05-12 00:00:00
My client was injured in a car wreck in OKC. The at-fault driver has a NevadaFarmers policy with that state's minimum limits of $15K which is all Farmers has offered. I’m looking for authority to support the position that since the accident happene > read more
LLC Motion to Dismiss
Published on 2011-05-05 00:00:00
I filed a wrongful termination/whistleblower action against some members of an LLC. They have filed a motion to dismiss arguing they are protected by the LLC from personal liability for their acts. I’m looking for law to the contrary. Answer: This > read more
Venue/Writ
Published on 2011-04-28 00:00:00
I filed suit in one county under MVA venue statute which allows suit to be filed where any of the damages arise. Judge then granted the defendant’s motion to transfer to a different county. I’m considering seeking a writ, but wonder if there’s > read more
UM confusion
Published on 2011-04-21 00:00:00
May an injured passenger in a single car wreck stack UM coverage under policy on mother of tortfeasor driver, who lives in the mother’s home. The passenger is not a relative or household member of the mother. Answer: No. Persons insured only by > read more
Physician’s Lien—Pay “Lien” Amount or Greater, “Actual” Amount?
Published on 2011-04-14 00:00:00
I have a PI case were a chiropractor filed a lien for a relatively small amount, but ended up with a bill for several thousand. Client wants me to pay the lien amount rather than the bill. I’m concerned there may be an ethical problem with my doing > read more
Physician's Lien - Amount vs. Actually Amount Owed
Published on 2011-04-14 00:00:00
I have a PI case were a chiropractor filed a lien for a relatively small amount, but ended up with a bill for several thousand. Client wants me to pay the lien amount rather than the bill. I’m concerned there may be an ethical problem with my doing > read more
Medicare Subrogation
Published on 2011-04-07 00:00:00
Does Medicare subrogation right attach to UM proceeds? Answer: Yes. See: 42 U.S.C. Sec. 1396y(b)(2)(b)(III): "(iii) Action by United StatesIn order to recover payment made under this subchapter for an item or service, the United States may bring an > read more
UM
Published on 2011-03-31 00:00:00
A grown son lives with his mother and is in a wreck with inadequate liability available from the adverse driver. Can he make a claim under his mother’s UM, even though his car is not on that policy? Answer: It will depend on the language of the > read more
Plaintiff required to pay defense costs to pursue case when refiled
Published on 2011-03-17 00:00:00
A new statute, 12 O.S. section 684, lets a judge require a plaintiff in a refilled case to pay the defendant's costs from the first filing. Does this not unfairly restrict access to the courts? Answer: Moses v. Hoebel, 1982 OK 26, 646 P.2d 601 hold > read more
Public policy / insurance policy exclusions
Published on 2011-03-10 00:00:00
Am I right that an insurance policy exclusion that is against public policy is not valid and will not be enforced by the courts? Answer: I think you are thinking of a line of cases like McElmurry v. Garbow, 2005 OK CIV APP 38, 116 P.3d 198, 200-201: > read more
Minor Emancipation?
Published on 2011-03-03 00:00:00
I have a friendly suit for a minor client who has had a baby. Is the minor not emancipated upon giving birth? Answer: I don’t think so. Until the 2009 Legislature repealed it, 10 O.S. Sec. 10 provided that marriage emancipates a minor. 63 O.S. Sec > read more
State Law on tribal property
Published on 2011-02-24 00:00:00
Does Oklahoma’s statute of limitations apply where two private individuals are involved in an accident on tribal property? Answer: I think so, although I don’t know of a case squarely holding that. The closest authority to that issue is pr > read more
Wrong medication causes Serious brain damage to Oklahoma child
Published on 2011-02-20 00:00:00
Clayton Wehagen was a typical 9-month-old child before a bout of pneumonia led to a medication error and incapacitating brain injury... Read more at okwatchdog.org > read more
Does UM Insurer owe duty to protect wrongful death beneficiaries interest?
Published on 2011-02-17 00:00:00
Man dies in car wreck and is survived by common-law wife and three adult children from a previous marriage. He has UM which paid full UM benefits to common-law spouse. Was she entitled to full proceeds or are grown children also entitled to some of t > read more
Worker's Comp Exlusivity
Published on 2010-11-12 12:12:58
I have an on the job death case that appears to be the result of the negligence of a fellow employee. Since the decedent was not married and had no children, no claim for the death could be made under the worker's comp act, though the parents and sib > read more
Two Texans Wreck in Oklahoma
Published on 2010-11-12 12:11:16
Does Oklahoma state court have jurisdiction over suit between two Texans involved in a wreck in Oklahoma? Answer: It is pretty much “black letter law” that you can sue someone in the state in which they were involved in a wreck. See: 61 CJS Moto > read more
Case Against County
Published on 2010-11-12 12:09:22
Does the one year saving statute apply to governmental entities? Answer: The “saving statute” (12 O.S. Sec. 100) does apply to a Governmental Tort Claim Act Case. Cruse v. Board of County Commissioners of Atoka County, 1995 OK 143, 910 P.2d 998: > read more
New Class Notes Posted
Published on 2010-11-02 14:53:58
Class notes for Conflict Law 2010 classes 11 through 20 have been posted and are available for download in PDF format on the Law School Classes page. > read more
Stacking UM
Published on 2010-09-28 19:38:04
We have a client injured as a passenger who has been offered liability and UM limits under the driver's policy. Insurance company, Liberty Mutual, states in policy that UM policy is "nonstacked" and a single premium is charged. However, there are 3 v > read more
MVA Settlement/Bankruptcy
Published on 2010-09-28 19:36:03
Our MVA client filed bankruptcy after treatment for injuries and the bodily injury claim is listed on his Schedule B. His medical bills were discharged and the settlement is within the exemption. Since part of the settlement is actually for medical b > read more
Work Comp Subro
Published on 2010-09-28 19:33:46
I have a third party case where the workers’ compensation carrier has subrogation far greater than the liability money. I have tried for months to get the comp carrier to split the liability money with us but they will not respond. Do you have a mo > read more
MVA and Homeowners' Insurance
Published on 2010-09-28 19:32:02
In a straight negligence MVA, is it possible to tap into the tortfeasor owner/driver homeowners' insurance policy? Answer: Almost certainly not. Phillips v. Estate of Greenfield, 1993 OK 110, 859 P.2d 1101 (Motor vehicle exclusion precluded covera > read more
Defendants' Deposition
Published on 2010-09-28 19:28:33
I have both corporate and individual defendants in a federal case. They contend they cannot be compelled to come to Oklahoma for their depositions. Is that true? Answer: Cadent Ltd. v. 3M Unitek Corp., 232 FRD 625 (S.D. Cal. 2005) should get your > read more
Life Insurance and Divorce
Published on 2010-08-29 11:18:32
Does divorce revoke a spouse designation as beneficiary under life insurance policy? Answer: Yes, under 15 O.S. §178:Divorce revokes beneficiary designation, but statute inapplicable to a beneficiary designation in force before statute’s effectiv > read more
Med Pay Friendly Suit
Published on 2010-08-29 11:16:34
Do you friendly suit med pay payments made out to mom as parent and guardian of injured minor? Answer: Generally not because the med-pay goes to the parents who own the medical bill claim. > read more
Expert Attending Fact Witness Depo
Published on 2010-08-29 11:15:02
May my expert attend the other side’s fact witnesses’ depositions? Answer: Unless someone gets an order invoking “the rule” at depositions, there probably is not a problem. See: Pryor v. Estate of Edwards, 1991 OK CIV APP 49, 815 P.2d 202: > read more
Multiple Vehicles on Policy
Published on 2010-08-29 11:13:05
Is party injured in car wreck entitled to liability coverage equal to the policy limit times the number of vehicles insured or only the limit on the vehicle involved in the wreck? Answer: Just one policy limit. This is so because of the “our limit > read more
Pre-Judgment Interest Rate
Published on 2010-08-29 10:56:43
What is the pre-judgment interest rate for PI cases filed prior to the November 1, 2009 effective date of the tort reform legislation? Answer: I don’t have a clear answer on this one. The statute reads like it is intended to apply to all verdicts > read more
Interpleader and Subro
Published on 2010-08-29 10:56:26
I need to settle a case for less than medicals, or even Tricare lien. If I interplead rather than seek Tricare reduction, what happens if Tricare does not show up to interpleader? Can I distribute remaining funds to client after my fee? Answer: Don > read more