SectionsStatute of LimitationsStatute of Limitations ExceptionsContributory Negligence/Comparative FaultMed Pay/PIP SubrogationDeductible ReimbursementMade Whole DoctrineEconomic Loss DoctrineLandlord/Tenant SubrogationSpoliationParental ResponsibilityContribution ActionsSuspension of Drivers' LicensesAnti-Indemnity StatutesDiminution of ValueRecording ConversationsCriminal RestitutionHealth and Disability InsuranceFuneral Procession Traffic LawsWorkers’ CompensationDog Bite LawsEmployee Leasing LawsCondominium/Co-Op Waiver of Subrogation LawsAutomobile Total Loss ThresholdsSudden Medical Emergencies While DrivingState Sovereign Immunity And Tort LiabilityPayment of Sales Tax After Vehicle Total LossDamage to Property Without Market ValueMunicipal/County/Local Governmental Immunity and Tort LiabilityNo Pay, No Play LawsLaws Regarding Using Cell Phones/Headphones/Texting While DrivingAdmissibility of Expert TestimonyWorkers’ Compensation Claims by Undocumented EmployeesProduct Liability LawImputing Contributory Negligence of Driver to Vehicle OwnerOwner Liability For Stolen VehiclesAnti-Subrogation RuleUse of Non-Original Equipment Manufacturer (OEM) Aftermarket Crash Parts in Repair of Damaged Vehicles
STATUTE OF LIMITATIONS
- Personal Property2 YearsOkla. Stat. Ann. Tit. 12, § 95
- Personal Injury/Death2 YearsOkla. Stat. Ann. Tit. 12, § 95
- Breach of Contract/Written5 YearsOkla. Stat. Ann. Tit. 12, § 95(A)(1)
- Breach of Contract/Oral3 YearsOkla. Stat. Ann. Tit. 12, § 95(A)(2)
- Breach of Contract/Sale of Goods5 YearsOkla. Stat. Ann. Tit. 12A, § 2-725
- Staute of Repose/ProductsN/AN/A
- Statute of Repose/Real Property10 YearsOkla. Stat. Ann. Tit. 12, § 109*
- Breach of Warranty5 YearsOkla. Stat. Ann. Tit. 12A, § 2-725
- Workers’ Compensation2 Years85 Okla. Stat. Ann. § 348 and 85 Okla. Stat. Ann. § 43
- Strict Product Liability2 YearsOkla. Stat. Ann. Tit. 12, § 95
Statute of Limitations Exceptions
*10 Years from substantial completion of improvement to real property.Okla. Stat. Ann. Tit. 12 § 109.
Contributory Negligence/Comparative Fault
Modified Comparative Fault: 51% Bar. Damaged party cannot recover if it is 51% or more at fault. If 50% or less at fault, it can recover, although its recovery is reduced by its degree of fault. Plaintiff cannot recover if it is 51% or more at fault. If plaintiff is 10% at fault, plaintiff gets 90% recovery. Okla. Stat. Ann. Tit. 23 § 13.
Med Pay/PIP Subrogation
Med Pay: No. Subrogation clause in policy violates common-law rule on non-assignability of cause of action in tort, and is void as between insurer and tortfeasor. Okla. Stat. Ann. Tit. 36, § 6092. Exception exists for benefits paid to anyone other than named insured or insured’s family members (“relative”).
The two (2) year personal injury statute of limitations runs from the date of the insured’s accident. Okla. Stat. Ann. Tit. 12 § 95 (2001).
PIP: Coverage not applicable.
Automobile: Pro-Rata. Okla. Admin. Code § 365:15-3-8 provides: “Including deductible in subrogation demands. Insurers shall, upon claimant’s request, include first-party claimant’s deductible, if any, in subrogation demands. Subrogation recoveries shall be shared on proportionate basis with the first-party claimant, unless the deductible amount has been otherwise recovered. No deduction for expenses can be made from deductible recovery unless outside attorney is retained to collect such recovery. The deduction may then be for only pro-rata share of allocated loss adjustment expense.”
Deductible must be included in any collision subrogation demand upon claimant’s request.
Made Whole Doctrine
Oklahoma first considered application of the Made Whole Doctrine in 1996 and with regard to an ERISA Plan. Equity Fire & Cas. Co. v. Youngblood, 927 P.2d 572 (Okla. 1996). Where the ERISA Plan’s subrogation or reimbursement terms neither expressly set a priority for repayment of benefits, nor otherwise give the right to subrogation or reimbursement before any funds are paid to the beneficiary, the Made Whole Doctrine will apply. Id; Reeds v. Walker, 2006 WL 1686739 (Okla. 2006).
In 2000, an Oklahoma Court of Appeals applied the Made Whole Doctrine for the first time to a non-ERISA Plan. American Medical Sec. v. Josephson, 15 P.3d 976 (Okla. Civ. App. 2000). It declared that the reimbursement and subrogation provisions of a group health Plan were unenforceable unless the Plan beneficiary was fully compensated by the tortfeasor. Id. The court did give some wiggle room, however, and implied that if there was a “priority-of-payment provision,” the result might be different. Id.
The Made Whole Doctrine in Oklahoma has been described as prohibiting an insurer from recouping anything by way of subrogation or reimbursement until the insured has been made entirely whole for recovery of all compensatory damages to which he is entitled. Sunbeam-Oster Co., Inc. Group Ben. Plan v. Whitehurst, 102 F.3d 1368 (5th Cir. 1996). When there is a settlement, evidence must be proffered by the insurer as to the elements of damages recovered in and represented by the settlement funds. Where the record before the trial court contains no such evidence, it is not possible to determine whether or not the Plan beneficiary has been made whole. Josephson, supra.
Unlike the case in Georgia (Thompson v. Fed. Express Corp., 809 F. Supp. 950 (M.D. Ga. 1993), simply because a Plan beneficiary settles and executes a release in Oklahoma, doesn’t mean that he has been “fully compensated” or “made whole” as a matter of law. Id. A settlement in Oklahoma does not necessarily represent an injured party’s actual or total compensatory damages. Price v. Southwestern Bell Tel. Co., 812 P.2d 1355 (Okla. 1991). There is still ample authority in Oklahoma to the effect that the Made Whole Doctrine may be overridden by specific contract terms in a policy or Plan. Williams & Miller Gin Co. v. Baker Cotton Oil Co., 235 P. 185, 187 (Okla. 1925); Reeds v. Walker, 2006 WL 1686739 (Okla. 2006); Fields v. Farmers Ins. Co., 18 F.3d 831 (10th Cir. 1994) (applying Oklahoma law). The Oklahoma Supreme Court indicated in Reeds that the following Plan reimbursement language was not sufficient to overcome the Made Whole Doctrine:
When We pay benefits under the Plan and it is determined that a third party is liable for the same expenses, We have the right to subrogate from the monies payable from the third party equal to the amount We have paid for such benefits. You must reimburse Us from any monies recovered form (sic) a third party as a result of a judgment against or settlement with or otherwise paid by the third party. You must take action against the third party, furnish all the information and provide assistance to Us regarding the action taken, and execute and deliver all documents and information necessary for Us to enforce Our rights of subrogation.
The Court in Reeds set a new priority-of-payments standard. An insurance contract stands subject to the make-whole rule unless it contains an unequivocal, express statement that the insured does not have to be made whole before the insurer is entitled to recoup its payments. Reeds, supra.
Addressing the enforceability of subrogation provisions in an ERISA claim context, the Oklahoma Supreme Court held if the plan doesn’t specifically provide that the insurer is entitled to priority of payment, doesn’t expressly give its managers the right to resolve ambiguities, and the facts do not clearly show the beneficiary’s settlement included reimbursement for medical expenses, the plan won’t be allowed to recover unless the insured is made whole. Equity Fire and Cas. Co. v. Youngblood, 927 P.2d 572 (Okla. 1996); American Med. Sec. v. Josephson, 15 P.3d 976 (Okla. Civ. App. 2000) (holding that, in the absence of a priority-of-payment provision, subrogation clause is unenforceable unless insured has been fully compensated).
Economic Loss Doctrine
Majority Rule. Oklahoma recognizes the ELD, which provides that a product liability claim is not available for injury but only to the product itself resulting in purely economic loss. Waggoner v. Town and Country Mobile Homes, Inc., 808 P.2d 649 (Okla. 1990). The Oklahoma Supreme Court has amended the ELD in two important ways. The ELD does not apply in any case where the plaintiff is alleging a personal injury from using an allegedly defective and unreasonably dangerous product. Dutsch v. Sea Ray Boats, Inc., 845 P.2d 187, 193-94 (Okla. 1992) (plaintiff could collect damages for personal injury and damage to the product in a products liability action without bringing a separate breach of warranty claim to recover damages for economic loss). The ELD does not preclude recovery for damage to a defective product in cases where the plaintiff was personally injured or suffered damage to “other property”. United Golf, L.L.C. v. Westlake Chemical Corp., 2006 WL 2807342 (N.D. Okla. 2006). Oklahoma has gone about as far as any state in destroying tort remedies for defective products and relying on warranty remedies. The illogical holding in United Golf closes the door opened by Dutsch, holding that “consequential damages” to be governed by the ELD include:
(a) any loss resulting from general or particular requirements and needs of which the seller at the time of contracting had reason to know and which could not reasonably be prevented by cover or otherwise; and (b) injury to person or property proximately resulting from any breach of warranty. Okla. Stat. tit. 12A, § 2-715.
The Oklahoma Supreme Court has focused on the foreseeability of damages to determine if the alleged harm qualifies as consequential damages under the U.C.C. United Golf, supra.
The fire insurer is not entitled, as subrogee, to bring an action against the tenant to recover for amounts paid to the landlord for fire damage to rental premises caused by the tenant’s negligence in absence of express agreement between the landlord and tenant to the contrary. Landlord and tenant are co-insureds under the fire policy. Sutton v. Jondahl, 532 P.2d 478 (Okla. App. 1975) (known as the “Sutton Rule”).
Tort of Spoliation: In Patel v. OMH Medical Center, Inc., 987 P.2d 1185 (Okla. 1999), the Oklahoma Supreme Court stated “[n]either spoliation of evidence nor prima facie tort (for acts constituting spoliation of evidence) has ever been recognized by this court as actionable.” When there is destruction or spoliation of evidence, the Oklahoma Supreme Court has said “it is certainly a maxim that all evidence is to be weighed according to the proof which it was in the power of one side to have produced and in the power of the other to have contradicted.” Harrill v. Penn, 273 P. 235 (Okla. 1927). Oklahoma’s spoliation doctrine only applies when the evidence is in the custody of one of the parties and it can be shown that a person has attempted to destroy, suppress, alter, or fabricate the evidence. Id.
Adverse Inference: “Spoliation occurs when evidence relevant to prospective civil litigation is destroyed, adversely affecting the ability of a litigant to prove his or her claim.” Patel v. OMH Medical Center, Inc., 987 P.2d at 1202. If applicable, destruction of evidence without a satisfactory explanation gives rise to an inference unfavorable to the spoliator. Manpower, Inc. v. Brawdy, 62 P.3d 391, 392 (Okla. Ct. App. 2002). Spoliation of evidence without a satisfactory explanation gives rise to an inference unfavorable to the spoliator. See Manpower, Inc. v. Brawdy, 62 P.3d 391, 392 (Okla. App. 2002). A party asserting spoliation must establish negligent or willful destruction of evidence which impairs the party’s ability to prove or defend a claim. Barnett v. Simmons, 197 P.3d 12, 25 (Okla. 2008).
Willful Misconduct. Limited to criminal or delinquent acts of child. Westlake Presbyterian Church v. Cornforth, 940 P.2d 1208 (Okla. 1996); Also applies to non-custodial parent. In re J.L.M., 109 P.3d 336 (Okla. 2005). Okla. Stat. Ann. Tit., 23 § 10.
Minor’s Driving. Any negligence by a minor while driving a motor vehicle will be imputed to the parent/adult who signed their drivers’ license application. Okla. Stat. Ann. Tit. 47 § 6-107.
The limit of liability is $2,500.00. Child must be under 18-years-old.
Modified Joint and Several Liability. Several Liability – each tortfeasor is liable only for the amount of damages allocated to that individual. 23 Okla. Stat. Ann. § 15.
Contribution allowed in underlying or separate action where tortfeasor pays more than his share of common liability. Liability insurer specifically subrogated to rights of contribution tortfeasor. Contribution plaintiff only entitled to contribution if liability of contribution defendant was extinguished by a reasonable settlement. 12 Okla. Stat. § 832; Barringer v. Baptist Healthcare, 22 P.3d 695 (Okla. 2001). Two (2) year statute of limitations after final judgment or settlement. Fruehauf Trailer Co. v. Gilmore, 167 F.2d 324 (10th Cir. 1948).
Suspension of Drivers' Licenses
Administrative Suspension: Any person who is convicted of driving without proof of financial responsibility will have their license suspended until they provide proof of security to the Department of Public Safety. 47 Okla. Stat. Ann. § 7-605. Suspension stays in effect until the fine is paid and proof of financial responsibility is shown. 47 Okla. Stat. Ann. § 6-212.
Judgment: Upon receipt of unsatisfied judgment, the Department will immediately suspend the driver’s license of the judgment debtor. 47 Okla. Stat. Ann. § 7-310. Suspension will last until the judgment is stayed or satisfied, and until the judgment debtor provides proof of financial responsibility. 47 Okla. Stat. Ann. § 7-314.
Contact Information: State of Oklahoma, Department of Public Safety, Driver Compliance Division, P.O. Box 11415, Oklahoma City, OK 73136-0415, (405) 425-2098, https://www.ok.gov/dps/.
Diminution of Value
First Party: Oklahoma has held that “unless the collision resulted in a total loss of the automobile plaintiff’s measure of recovery was the difference between the fair market value of his automobile in the condition in which it was immediately prior to the collision, and its value thereafter. If the collision resulted in a total loss of the auto his measure of recovery was the fair market value thereof in the condition in which it was immediately before the collision.” Phoenix Ins. Co., Hartford, Conn. v. Diffie, 270 P.2d 634 (Okla. 1954).
Third Party: Oklahoma statute provides, “For the breach of an obligation not arising from contract, the measure of damages, except where otherwise expressly provided by this chapter, is the amount which will compensate for all detriment proximately caused thereby, whether it could have been anticipated or not.” Okla. Stat. Ann. tit. 23, § 61. In cases where it is shown that repairs failed to bring damaged item of personal property up to the condition it was in prior to the damage, the cost of repairs made plus post-repair diminution in value of the property will ordinarily be the proper measure of damages. Brennen v. Aston, 84 P.3d 99 (Okla. 2003).
One-Party Consent: Pursuant to the Security of Communications Act, it is not unlawful for an individual who is a party to or has consent from a party of an in-person or electronic communication to record and or disclose the content of said communication unless the person is doing so for the purpose of committing a tortious or criminal act. Okla. Stat. Ann. tit. 13, § 176.4; Okla. Stat. Ann. tit. 13, § 176.2.
Oklahoma statute specifically allows a court to award a “victim” restitution paid by a convicted criminal defendant. Okla. Stat. tit. 22 § 991f. Although no Oklahoma case law or statute directly addresses an insurer’s right to restitution amounts, a “victim” under the restitution statute is defined as “any person, partnership, corporation or legal entity that suffers an economic loss as a direct result of the criminal act of another person.” Okla. Stat. tit. 22 § 991(f)(2).
Health and Disability Insurance
Statute of Limitations: 2 Years. Okla. Stat. Ann. Tit. 12, § 95.
Subrogation of Medical and Disability Benefits are allowed. Am. Med. Sec. v. Josephson, 2000 OK CIV APP 127, ¶ 7, 15 P.3d 976, 978.
Made Whole Doctrine applies, but it can be overcome by clear policy language. Reeds v. Walker, 2006 OK 43, 157 P.3d 100; Equity Fire & Cas. Co. v. Youngblood, 1996 OK 123, 927 P.2d 572. Common Fund Doctrine applies. Okla. Tax Comm’n v. Ricks, 885 P.2d 1336 (Okla. 1994).
Funeral Procession Traffic Laws
Oklahoma has very little law governing the operation of funeral processions. Section 11-315 provides that no driver of a motor vehicle can drive between the vehicles comprising a funeral or other authorized procession while the vehicles are in motion and when such vehicles are conspicuously designated. This provision does not apply at intersections where traffic is controlled by traffic control signals or police officers. Okla. Stat. Ann. Tit. 47, § 11-315.
ACCIDENT PRIOR TO FEBRUARY 1, 2014
Statute of Limitations: 2 Years. 85 Okla. Stat. Ann. § 348.
Can Carrier Sue Third Party Directly: Yes.
Recovery from UM/UIM Benefits: No.
Subrogation Against Medical Malpractice: Yes.
Subrogation Against Legal Malpractice: Yes.
Recovery Allocation/Equitable Limitations: (1) Fees – costs off top; (2) If recovery is “compromise settlement” approval of court is needed. Balance apportioned as parties may agree. If no agreement, the court can equitably apportioned; and (3) If recovery is not “compromise settlement, Prettyman formula allowed.
Employer Contribution/Negligence: No.
Attorney’s Fees/Costs: No.
Future Credit: Only if the recovery is more than the lien.
Auto No-Fault: No.
ACCIDENT AFTER FEBRUARY 1, 2014
Statute of Limitations: 2 Years. 85 Okla. Stat. Ann. § 43.
Can Carrier Sue Third Party Directly: Yes.
Intervene: Must intervene.
Recovery from UM/UIM Benefits: Yes.
Subrogation Against Medical Malpractice: Yes?
Subrogation Against Legal Malpractice: Yes?
Recovery Allocation/Equitable Limitations: (1) Fees – costs off top; (2) Carrier receives 2/3 of net recovery or its entire lien, whichever is less; and (3) Balance to plaintiff.
Employer Contribution/Negligence: No.
Attorney’s Fees/Costs: No.
Future Credit: No, must recover future payments in third-party recovery.
Auto No-Fault: No.
Dog Bite Laws
Dog owner will be held responsible for all damages, absent trespass or provocation. Okla. Stat. Ann. § 4-42.1.
Employee Leasing Laws
Neither the Oklahoma Workers’ Compensation Act nor case law directly addresses the Exclusive Remedy Rule in connection with employee leasing situations. The Oklahoma Court of Appeals, however, has held that a worker assigned by a temporary agency to a client company is considered a loan servant, and that both employers are responsible for the provision of workers’ compensation, and therefore cannot be sued in a third-party action. Zant v. People Electric Co-op., 900 P.2d 1008 (Okla. App. 1995).
Condominium/Co-Op Waiver of Subrogation Laws
No waiver of subrogation required. 60 Okla. Stat. Ann. § 526.
Automobile Total Loss Thresholds
Percentage of Value: 60%
Cost to repair damage to vehicle exceeds 60% of fair market value. 47 Okla. Stat. Ann. § 1111(C)(1).
Sudden Medical Emergencies While Driving
Unavoidable Accident Defense. When the operator of a motor vehicle, who, while driving, becomes suddenly stricken by a fainting spell or loses consciousness from an unforeseen cause, and is unable to control the vehicle, is not chargeable with negligence or gross negligence. Bowers v. Wimberly, 933 P.2d 312 (Okla. 1997).
Sudden unconsciousness was foreseeable when defendant had two prior fainting incidents. Parker v. Washington, 421 P.2d 861 (Okla. 1966).
State Sovereign Immunity And Tort Liability
Tort Claims Act: Oklahoma Governmental Tort Claims Act. 51 Okla. Stat. § 151 – 200 (1978).
51 Okla. Stat. § 152.1(A) adopts sovereign immunity.
51 Okla. Stat. § 152.1(B) waives immunity as provided in the Act.
Notice Deadlines: Notice of claim within one year after loss. 51 Okla. Stat. § 156(B). Notice filed CMRRR with Risk Management Administrator of the Office of Public Affairs. 51 Okla. Stat. § 156(C). Suit may be filed once claim denied (deemed denied if not approved within 90 days). Plaintiff has 180 days after 90 day period to file. 51 Okla. Stat. § 157.
Claims/Actions Allowed: State employee acting in scope of employment is liable for loss unless falls under exceptions (General Waiver of Immunity). 51 Okla. Stat. § 152.1(A). No subrogation claims allowed against State. 51 Okla. Stat. § 155(28). Liable for operation of motor vehicles. However, liability limited to amount of liability insurance purchased. 51 Okla. Stat. §§ 157.1-158.2.
Comments/Exceptions: Thirty-seven exceptions where State not liable for torts of State employees acting in scope of employment:
(1) legislative functions;
(2) discretionary acts such as policy decisions (limited). “Planning-operational” approach to understanding the scope of this exception to liability;
(3) natural snow or ice conditions;
(4) absence, condition, location or malfunction of traffic sign unless not corrected within reasonable time after notice;
(5) subrogation claim; and
(6) any loss to person covered by workers’ compensation.
See 51 Okla. Stat. § 155 or more exceptions.
Damage Caps: Property Claims: $25,000. Other losses: $175,000 per person. ($200,000 for medical negligence). $1 million per occurrence. 51 Okla. Stat. § 154(A). No punitive damages. Several liability only. 51 Okla. Stat. § 154. If policy of insurance covers State, terms and limits of policy govern rights and obligations of State. 51 Okla. Stat. § 158.
Payment of Sales Tax After Vehicle Total Loss
First-Party Claims: If the policy provides for the settlement of first-party auto total loss, insurer may (1) offer a replacement of like kind and quality including all applicable taxes, license fees, or other fees, or (2) offer a cash settlement based on the ACV of a comparable vehicle including all applicable taxes, license fees, or other fees. Okla. Stat. Ann. tit. 36, § 1250.8.
Third-Party Claims: No applicable statute, case law, or regulation governing recovery of sales tax.
Damage to Property Without Market Value
Service Value: “… by the negligence of another is entitled to … be restored to the same position it was in prior to the accident, and is not restricted to recovery of the depreciated value of the pole, nor to depreciated value of pole plus amount of expenses incurred, depreciated to the same extent as the depreciated value of the pole.” Polk v. Oklahoma Gas & Elec. Co., 410 P.2d 547 (Okla. 1966).
Intrinsic Value: “The measure of damages in an action for injury to used articles of personal property having no fixed market value is the value of the goods to the owner; not any fanciful value…” Oklahoma Transp. Co. v. Seminole Lodge No. 430, I.O.O.F.I, 217 P.2d 164 (Okla. 1950).
Sentimental Value: “The measure of damages in an action for injury to used articles of personal property having no fixed market value is the value of the goods to the owner; not any fanciful value…” Oklahoma Transp. Co. v. Seminole Lodge No. 430, I.O.O.F.I, 217 P.2d 164 (Okla. 1950).
Municipal/County/Local Governmental Immunity and Tort Liability
Oklahoma Governmental Tort Claims Act: 51 Okla. Stat. § 151 – 200 (1978). 51 Okla. Stat. § 152.1(A) political subdivisions are immune whether performing governmental or proprietary function. 51 Okla. Stat. § 152.1(B) waives immunity as provided in the Act. Same statutory provisions apply to political subdivisions as to state.
Notice Deadlines: Notice of claim within one year after loss. 51 Okla. Stat. § 156(B). Notice filed CMRRR with Risk Management Administrator of the Office of Public Affairs. 51 Okla. Stat. § 156(C). Suit may be filed once claim denied (deemed denied if not approved within 90 days). Plaintiff has 180 days after 90-day period to file. 51 Okla. Stat. § 157.
Claims/Actions Allowed: State employee acting in scope of employment is liable for loss unless falls under exceptions (General Waiver of Immunity). 51 Okla. Stat. § 152.1(A). Liable for operation of motor vehicles. However, liability limited to amount of liability insurance purchased. 51 Okla. Stat. §§ 157.1-158.2.
Comments/Exceptions: Thirty-seven (37) exceptions where State not liable for torts of State employees acting in scope of employment: (1) legislative functions; (2) discretionary acts such as policy decisions (limited). “Planning-operational” approach to understanding the scope of this exception to liability; (3) natural snow or ice conditions; (4) absence, condition, location or malfunction of traffic sign unless not corrected within reasonable time after notice; (5) subrogation claim; and (6) any loss to person covered by workers’ compensation. See 51 Okla. Stat. § 155 for more exceptions.
Damage Caps: Property Claims: $25,000. Other Losses: $175,000 per person. ($200,000 for medical negligence). $1 million per occurrence. 51 Okla. Stat. § 154(A). No punitive damages. Several liability only. 51 Okla. Stat. § 154. If insurance, policy terms govern rights and obligations of State. 51 Okla. Stat. § 158. No subrogation claims allowed against political subdivision. 51 Okla. Stat. § 155(28).
No Pay, No Play Laws
Rule: In December 2014, Oklahoma’s “No Pay, No Play” statute was found unconstitutional by the Supreme Court of Oklahoma as violating Oklahoma’s state constitution. The statute stated that uninsured drivers injured in accidents could not recover non-economic damages from insured tortfeasors unless they could show the tortfeasor was under the influence and convicted of that offense at the time of the accident.
Authority: In Montgomery v. Potter, 341 P.3d 660, 2014 OK 118, the Supreme Court of Oklahoma ruled Oklahoma statute 47 O.S. § 7-116 violated the Oklahoma State Constitution because the statute targeted a specific group people, uninsured motorists, and prevented them from recovering certain non-economic damages without considering who was at fault. The Court reasoned that the statute holds uninsured drivers to a different and stricter standard than other plaintiffs injured in automobile negligence cases by creating an impermissible special class and restricting damages in civil negligence actions.
Laws Regarding Using Cell Phones/Headphones/Texting While Driving
Cell Phone/Texting: No driver may operate a motor vehicle on any street or highway while using a hand-held electronic communication device to compose, read, or send text messages. Exceptions apply if there is an emergency situation and the driver is contacting emergency services or law enforcement. 47 Okla. Stat. Ann. § 11-901(d).
Drivers with a learner permit or Class “D” license may not use a cell phone while driving in any capacity. 47 Okla. Stat. Ann. § 6-105.
Other Prohibitions: Earphones and headphones may not be used when operating a motorized powered vehicle. Exceptions are limited to devices that minimize injurious sound. Oklahoma City, Okla. Code of Ordinances §. 32-579.
No applicable state-wide laws.
Comments: Any local laws regarding cell phone use are preempted by state law. 47 Okla. Stat. Ann. § 15-102.1.
Admissibility of Expert Testimony
Admissibility Standards: Daubert
Case/Statutory Law: Okla. Stat. Tit. 12 § 2702
Workers’ Compensation Claims by Undocumented Employees
Statute: The statute is silent on “aliens” and does not mention “illegal” or “legal” status. But, the statute is broad with the phrase “any person in service to an employer.”
Case Law: Lang v. Landeros, 918 P.2d 404 (Okla. Civ. App. 2004).
Comments/Explanation/Other: Lang held that there is no wording or exception in the Workers’ Compensation Act that precludes compensation for an illegal alien.
Product Liability Law
Statute of Limitations/Repose: 2 years for personal injury and wrongful death. Okla. Stat. Ann. Tit. 12 § 95(3). Discovery Rule applies. Statute of Repose is 10 years. Okla. Stat. Ann. Tit. 12 § 109.
Liability Standards: Negligence, Strict Liability, Warranty.
Fault Allocations: Modified Comparative. Okla. Stat. Ann. Tit. 23 § 13.
Non-Economic Caps/Limits On Actual Damages: Yes (With Exceptions).
Punitive Y/N and Limits: Yes (Limits).
Heeding Presumption?: Yes. Cunningham v. Charles Pfizer & Co., 532 P.2d 1377, 1382 (Okla. 1974).
Innocent Seller Statute: Yes.
Joint and Several Liability: Several Only. 23 Okla. Stat. Ann. § 15.
Available Defenses: Assumption of Risk; Misuse; Alteration; Learned Intermediary; Inherently Unsafe Products; State of the Art; Government Contractor Defense; Presumption; Alcohol/Drugs; Sophisticated User.
Restatement 2nd or 3rd?: Both.
Imputing Contributory Negligence of Driver to Vehicle Owner
Imputed Contributory Negligence Law: Contributory negligence of driver is not imputed to owner in owner’s action against third-party tortfeasor, unless there is a joint enterprise or joint venture. Reeves v. Harmon, 475 P.2d 400 (Okla. 1970).
Vicarious Liability/Family Purpose Doctrine: No Vicarious Liability Statute.
No Family Purpose Doctrine. Traber v. House, 240 P. 729 (Okla. 1925).
Sponsor Liability for Minor’s Driving: Okla. Stat. Ann. Tit. 47, § 6-107: Any negligence by a minor while driving a motor vehicle will be imputed to the parent/adult who signed their drivers’ license application.
Owner Liability For Stolen Vehicles
Key In The Ignition Statutes: 47 Okla. Stat. Ann. § 11-1101.
Common Law Rule: A vehicle owner will not be liable for the negligent operation of his vehicle by a thief, unless a special set of circumstances exists that creates a special duty to prevent the acts of a third person. Joyce v. M&M Gas Co., 672 P.2d 1172 (Okla. 1983); Merchants Delivery Service, Inc. v. Joe Esco Tire Co., 533 P.2d 601 (Okla. 1975); Felty v. City of Lawton, 578 P.2d 757 (Okla. 1977).
An insurer may not subrogate against their insured or a co-insured on the policy. Travelers Ins. Companies v. Dickey, 799 P.2d 625 (Okla. 1990). The agreement between the property owner and subcontractor determines whether a subcontractor is a co-insured on the policy. Id. In Dickey, a building that Dickey was replacing the roof on suffered extensive damage after Dickey negligently failed to waterproof the roof. Travelers Insurance Company (“Travelers”) paid the building owner for the water damage and then sought to subrogate against Dickey for the damage. Dickey attempted to block the subrogation claim on the basis that he was a co-insured under the owner’s policy and that the owner had previously agreed to not hold Dickey liable for damages. The court ruled that subrogation could proceed on the basis that Dickey was not co-insured under the owner’s policy because Dickey was not expressly named, there was no reference in the agreement to it applying to anyone else besides the owner, and the agreement expressly required Dickey to hold his own liability insurance. The court also found that the previous agreement to not hold Dickey liable also did not apply because that agreement also required that Dickey hold liability insurance, and limited the owner’s requirement to only holding insurance for damage to the roof itself. Because the damage that occurred was to the interior of the building, the agreement to not hold Dickey liable did not hold because it only applied to damage to the roof, not for damage to the interior, that damage was supposed to be covered by Dickey’s general liability insurance.
Use of Non-Original Equipment Manufacturer (OEM) Aftermarket Crash Parts in Repair of Damaged Vehicles
Authority: 15 Okla. Stat. Ann. §§ 952 to 956.
Summary: All non-OEM parts must have the logo or name of the manufacturer on the part and should be left visible if possible. Insurers cannot specify to a repair shop that they must use non-OEM parts and the repair shop may not use non-OEM parts until written notice is given to the insured. Any written estimate must clearly identify any non-OEM parts used and include a disclosure that informs the insured that the part’s manufacturer warrants the non-OEM parts, not the auto manufacturer.