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FILED
United States Court of Appeals
Tenth Circuit
AUG 28 2001
PATRICK FISHER
Clerk PUBLISH
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
JOYCE BROWN PHILLIPS,
Plaintiff_Appellant,
v. No. 00_6384
NEW HAMPSHIRE INSURANCE COMPANY,
a corporation,
Defendant_Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
(D.C. No. 00_CV_349_M)
Submitted on the briefs:
David W. Edmonds of Edmonds, Cole, Hargrave, Givens & Witzke, Oklahoma
City, Oklahoma for Plaintiff_Appellant.
William S. Leach and Michael F. Smith of Rhodes, Hieronymus, Jones, Tucker &
Gable, Tulsa, Oklahoma, for Defendant_Appellee.
Before SEYMOUR and McKAY, Circuit Judges, and BRORBY, Senior Circuit
Judge.
SEYMOUR, Circuit Judge.
Appellant Joyce Brown Phillips appeals from summary judgment granted in
favor of appellee New Hampshire Insurance Company (NHIC) on her state_law
breach of insurance contract and bad faith claims. Jurisdiction in federal court is
based on diversity of the parties. See 28 U.S.C. § 1332. Ms. Phillips raises two
issues on appeal: whether the district court erred in applying Porter v. MFA
Mutual Insurance Co., 643 P.2d 302 (Okla. 1982), and Okla. Stat. tit. 36,
§ 3636(E), to absolutely bar her claim for uninsured/underinsured motorist ("UM"
and/or "UIM") insurance benefits against NHIC, and whether the court
accordingly also erred in dismissing her bad faith claim. Our jurisdiction arises
under 28 U.S.C. § 1291, and we reverse.(1)
I.
Because the district court sat in diversity, it was obliged to apply the most
recent statement of applicable Oklahoma law by the state's highest court. See
Wood v. Eli Lilly & Co., 38 F.3d 510, 512 (10th Cir. 1994). On appeal, we utilize
"the normal federal standards of appellate review to examine the district court's
decision process." Mid_America Pipeline Co. v. Lario Enters., Inc., 942 F.2d
(1) After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties' request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument.
1519, 1524 (10th Cir. 1991). Thus, we review the district court's grant of
summary judgment de novo, applying Oklahoma law. See Charter Canyon
Treatment Ctr. v. Pool Co., 153 F.3d 1132, 1135 (10th Cir. 1998). Under
Fed. R. Civ. P. 56(c), summary judgment is proper only if the evidence, viewed in
the light most favorable to the party opposing summary judgment, shows that
there are no genuine issues as to any material fact, and that the moving party is
entitled to judgment as a matter of law. See id.
The following facts are either undisputed or viewed in a light most
favorable to Ms. Phillips. Ms. Phillips was injured in an automobile accident
with Jimmy Boldien while she was driving her personal car in the course and
scope of her employment. At the time, her employer had in force a commercial
automobile liability and UM/UIM insurance policy with NHIC that expressly
included employees as insureds. See Aplt. App. at 70, 141_42. After the
accident, Ms. Phillips initiated suit against her employer for worker's
compensation benefits and also pursued a claim against Mr. Boldien in state
court.
In April 1998, through interrogatories to her employer in her worker's
compensation suit, Ms. Phillips requested information about, and production of,
any automobile insurance policies her employer had in force, but her employer
did not respond to the interrogatory and did not produce the policy until October
1999, after settlement of the worker's compensation suit. See id. at 169_170,
175, 182_83. Ms. Phillips had settled her claim against Mr. Boldien for the
liability limits of his automobile insurance policy on March 9, 1999. Because she
did not know at the time whether her employer had a UM/UIM policy that
covered her or who the carrier was, Ms. Phillips did not inform NHIC of Mr.
Boldien's settlement offer. Id. at 170.
Ms. Phillips' damages exceeded Mr. Boldien's liability limits. Upon
Ms. Phillips' further inquiry regarding UIM coverage, NHIC refused to pay her
UIM claim, asserting that no UIM coverage existed except for the automobiles
specifically described in the employer's policy, id. at 183, which did not include
Ms. Phillip's personal automobile. Ms. Phillips brought suit against NHIC in
state court, and NHIC removed the action to federal court.
NHIC then filed for summary judgment. Relying on Porter, the district
court concluded as a matter of law that NHIC was entitled to judgment because
Ms. Phillips' claim for UIM coverage was extinguished by her failure to give
notice to NHIC of Mr. Boldien's settlement offer as required by section 3636(E).
Id. at 262. The court also held that NHIC did not breach its duty of good faith by
refusing to pay Ms. Phillips' claim because her failure to give notice of the
settlement gave NHIC a reasonable basis for denying the claim. Id. at 263.
On appeal, we must first attempt to predict whether the Oklahoma Supreme
Court would have applied the Porter waiver/forfeiture doctrine as a complete bar
to Ms. Phillips' UIM claim based on a reading of that case and on subsequent
Oklahoma law applying the doctrine. We next consider whether NHIC should be
precluded from raising the Porter defense. Finally, we determine whether section
3636(E) requires the result reached by the district court.
II.
A. Application of the Porter doctrine.
The insured in Porter personally contracted for UM/UIM coverage under
four separate policies with his insurance carrier. The policies contained a "[t]rust
[a]greement" indicating "that in the event of payment by the insurer, the company
becomes entitled to any proceeds of a settlement or judgment against the
tort_feasor and that the insured shall hold in trust for the company any rights of
recovery that he might have against the tort_feasor." Porter, 643 P.2d at 303.
The policies further provided that the insured would "do nothing after loss to
prejudice such rights." Id. n.4. After the injured insured realized that his demand
for damages exceeded the tort_feasor's liability policy limits of $10,000, he put
his insurer on notice of a possible UIM claim. He settled for the tort_feasor's
policy limits, giving a general release of all claims to both the tort_feasor and the
tort_feasor's insurance company. His insurer later refused to pay under the UIM
policies, contending the insured had forfeited his right to payment by destroying
the insurer's contractual right to subrogation. Id. at 303.
On appeal, the insured claimed his insurer did not have a valid policy
defense based on Oklahoma case authority prohibiting the type of subrogation
claimed. Id. at 304. After noting that the line of cases on which the insured
relied had been overruled, the court examined section 3636(E) of the Oklahoma
UM statute to determine whether subrogation was statutorily permissible. Id. at
305.
The sentence examined by the court, which remains in effect today,
provided:
In the event of payment to any person under the [UM] coverage required by
this section . . . 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 . . . .
Id. at 305 n.10. The court held that this sentence specifically allows a UM carrier
to enforce its contractual subrogation rights against a third_party tort_feasor. Id.
at 305. The "central question" then became "whether [the insured's] settlement
prejudiced the rights of [the insurer]." Id. at 303 (emphasis added). Because the
insured, "by voluntarily and knowingly making settlement with and giving a
general release to [the tort_feasor], barred [the UIM carrier] from exercising its
lawful right of recourse against the responsible party," in violation of the policy,
the court held he was precluded from bringing an action on the UIM policy. Id. at
305 (emphasis added).
In applying Porter, the district court held irrelevant the facts that Ms.
Phillips was unable to obtain NHIC's identity prior to executing the settlement
agreement and that Mr. Boldien was judgment_proof, and held immaterial the
question whether NHIC was actually prejudiced by the release. Aplt. App. at
260_61 & n.1.
Section 3636(E) also provides:
[I]f 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 carrier by its insured. . . .
. . . .
2. . . .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.(2)
The district court held that under Porter and this portion of section 3636(E), the
"only material fact issue is whether [Ms. Phillips] provided the statutorily_
required notice to [NHIC] upon reaching a tentative settlement agreement." Aplt.
(2) As amended in 1989.
App. at 261. The district court thereby extended Porter to apply absolutely in
situations in which the alleged insured was not aware of the existence of the
policy or its terms at the time of settlement and the insurer had alleged no facts to
establish actual prejudice.
We are not persuaded the Oklahoma Supreme Court would have reached
this same result. That court has an avowed "tendency to protect the insured's
right to collect from the UM carrier." Burch v. Allstate Ins. Co., 977 P.2d 1057,
1061 n.14 (Okla. 1998). The Porter court couched the key questions of the
insured's right to recovery under his UIM contract in terms of waiver by the
insured and prejudice to the insurer, considering these two factors in arriving at
its conclusion that the "trust agreement" provisions should be enforced to bar the
insured's recovery. We address both Porter issues in turn.
1. Waiver. Because the insurer's main argument in Porter was that the
insured had waived or forfeited his right to payment, the primary consideration
was whether the insured knew what he was doing at the time he signed the
release. "Waiver is the voluntary and intentional relinquishment of a known right.
The doctrine is essentially a matter of intention, focusing on the intent of the
party against whom waiver is asserted." Barringer v. Baptist Healthcare of Okla.
22 P.3d 695, 700_01 (Okla. 2001) (citation omitted); cf. United Bhd. of Maint. of
Way Employees & Ry. Shop Laborers v. Blair, 282 P. 141, 143 (Okla. 1928)
("Forfeitures are looked upon by the courts with ill favor, and will be enforced
only when the strict letter of the contract requires it. On the question of forfeiture
of a life insurance policy, which is so framed as to be fairly open to construction,
the view should be adopted, if possible, which will sustain rather than forfeit the
contract of insurance.") (quotation omitted). The Porter court expressly
determined that the insured signed the release with full knowledge that doing so
was inconsistent with the rights of his insurer under their contract. Porter, 643
P.2d at 305.(3) Because the insurer's subrogation rights were actually prejudiced by
this knowing conduct, the court precluded the insured's recovery. See id. at 303,
305.
After Porter, in another case focusing on waiver/forfeiture and prejudice to
the insurer, the Oklahoma Supreme Court held that a clause in a commercial UM insurance contract, which provided that the insurer was not obligated to pay if the
action against the uninsured tort_feasor was barred by the statute of limitations,
would not operate to bar the insured's UM recovery under the contract even
though the insurer's subrogation rights had actually been defeated by the running
of that statute of limitations. Uptegraft v. Home Ins. Co., 662 P.2d 681, 685_86
(Okla. 1983). The court held that the clause contravened Art. 23, § 9 of the
Oklahoma Constitution, which provides that contracts stipulating for notice or
demand other than that provided by law as a condition precedent to establish
liability are void. Id. at 686. Furthermore, because the insurer had not demanded
that the insured protect its rights by suing the tort_feasor within the two_year tort
statute of limitations, the court determined there was an absence of "affirmative
acts or prejudicial conduct by the insured" that had operated to destroy the
insurer's subrogation rights, and the insurer could therefore not invoke Porter to
effect a discharge of its liability. Id. at 686_87 & n.12. Thus, the court held that
even when prejudice to the insurer exists, if the insured did not knowingly and
affirmatively cause the prejudice, the Porter doctrine would not bar the insured's
recovery.
The court again declined to apply Porter in Robertson v. United States
Fidelity & Guaranty Co., 836 P.2d 1294 (Okla. 1992), in part on the basis of the
insured's lack of knowledge. There, the insured had a liability policy with his
(3) Every case cited in Porter for support of the general statement that an
insured who deprives his insurer of its right of subrogation by settlement and
release of the tortfeasor provides the insurer with a complete defense, see id. n.14,
involved an insured who settled with full knowledge of the policy terms and the
insurer's subrogation rights. See, e.g., Blocker v. Nat'l Discount Ins. Co., 493
P.2d 825, 826 (Okla. 1972); State Farm Fire & Cas. Ins. Co. v. Farmers Ins.
Exch., 489 P.2d 480, 481 (Okla. 1971) (insurer had paid claims and notified both
insured and tort_feasor of its subrogation rights before settlement and release);
Geertz v. State Farm Fire & Cas., 451 P.2d 860, 862 (Or. 1969) (insured refused
to allow insurer to subrogate even though contract provided for subrogation);
Jacobson v. State Farm Mut. Auto. Ins. Co., 491 P.2d 168, 170 (N.M. 1971)
(insurer prepared to pay but insured refused to sign form that allowed insurer to
subrogate, settled, and destroyed subrogation rights); McNeill v. District_Realty
Title Ins. Corp., 342 A.2d 55, 57 (D.C. 1975); Hart v. State Farm Mut. Auto. Ins.
Co., 248 N.W.2d 881, 882 (S.D. 1976).
carrier that on its face did not include UM/UIM coverage. Id. at 1296. As
Ms. Phillips had done, the insured settled with the tort_feasor and gave a release
without notifying his carrier of the proposed settlement. When the insured later
discovered that, under the Oklahoma UM statutes, UM coverage would be
statutorily imputed under the contract if his carrier had failed to offer him UM
coverage and had not obtained a written rejection of that coverage, he made a
claim under his policy. Id. at 1295. On summary judgment, the insurer
successfully contended it was entitled to an absolute defense under Porter because
of the settlement and release. Id. The Oklahoma Supreme Court reversed. It held
that an insurance company's failure to offer UM coverage constitutes a
constructive denial that precludes raising a Porter defense. Id. at 1296. The court
noted that the insured's ignorance of the existence of UM coverage at settlement
may have been due to the insurer's failure to comply with its duty to inform him of
the right to coverage. Id. at 1297. It held that the insured's claims were not
barred by the executed release. Id.
In the current case, the district court distinguished Robertson because the
insured there executed the release with an impression that none of his insurance
policies included UM coverage, while Ms. Phillips executed the release before
even obtaining NHIC's identity or a copy of the policy. Aplt. App. at 261. This
seems to be a distinction without a difference. Neither insured in either case knew
at the time the release was signed that he/she was impairing any prospective
subrogation rights of his/her insurer. Thus, neither insured "voluntarily and
knowingly" interfered with the insurer's contract rights as the insured in Porter
had done.
In sum, being legally able to exercise subrogation rights is not the sine qua
non of an obligation to pay a UM/UIM claim. At least four times the Oklahoma
Supreme Court has held that even if the UM carrier is legally barred from
exercising its subrogation rights against the tort_feasor, it must still pay its insured
unless it would be unfair in light of the insured's knowing, affirmative, and
prejudicial conduct. See Torres v. Kan. City Fire & Marine Ins. Co., 849 P.2d
407, 413 (Okla. 1993); Robertson, 836 P.2d at 1297; Barfield v. Barfield, 742 P.2d
1107, 1112 (Okla. 1987); Uptegraft, 662 P.2d at 686_87. We hold that the
waiver/forfeiture doctrine found in Porter does not bar Ms. Phillips' claims as a
matter of law.
2. Actual prejudice. We also predict the Oklahoma Supreme Court would
hold that NHIC may not rely on the Porter defense if it was not actually prejudiced
by the signing of the release.(4) Cf. Indep. Sch. Dist. No. 1 v. Jackson, 608 P.2d
(4) NHIC urges application of a Kansas case holding that a similar Kansas
statute does not require the insurer to demonstrate prejudice from lack of
adequate notice of settlement. See Dalke v. Allstate Ins. Co., 935 P.2d 1067,
1069 (Kan. Ct. App. 1997). Because Oklahoma law sufficiently addresses theissue of prejudice, we do not need to look to other states to resolve the question.
Further, we note that Oklahoma protects the rights of insureds more vigorously
than does Kansas. Compare, e.g., id. at 1070 (noting that Kansas upholds
consent_to_settle clauses as basis for denying payment of UM claims) with Porter,
643 P.2d at 304 (holding that consent_to_settle clauses are void as against public
policy because they chill settlements and dilute the UM statute's protection for
injured victims). We also note that the Dalke court concluded that the insured's
actions actually denied the insurer its subrogation rights, apparently because it
was prepared to substitute the settlement payment, pay the UIM claim, and follow
the statutory procedure to preserve its rights. 935 P.2d at 1071.
1153, 1155 (Okla. 1980) (holding that when notice is condition in policy, "unless
the insurer is prejudiced from the lack of notice, failure to give the insurer notice .
. . will not relieve the insurer from liability" under the policy). As mentioned
above, Porter stated that prejudice to the insurer was the ultimate inquiry when
applying the waiver doctrine in cases in which a release has been knowingly given.
643 P.2d at 303. Actual, not just theoretical, prejudice is a necessary element of a
Porter defense because only the insured's conduct that causes injury to the insurer
can be unfair. See Travelers Ins. Co. v. L.V. French Truck Serv., Inc., 770 P.2d
551, 555 (Okla. 1988) (noting that "[s]ubrogation is an equitable principle").
Consequently, because NHIC did not allege any undisputed facts to establish that
it was actually injured by Ms. Phillips' conduct, it failed to satisfy its summary
judgment burden.
B. Repudiation of the existence of a contract as a bar to raising the
Porter doctrine.
"Subrogation is a doctrine the law has devised for the benefit of one
secondarily liable who has paid the debt of another." Sexton v. Continental Cas.
Co., 816 P.2d 1135, 1138 (Okla. 1991) (emphasis added). Ms. Phillips also argues
that NHIC should be precluded from raising the Porter doctrine because of
NHIC's refusal to pay and its stance that no applicable contract for UIM coverage
exists. In Sexton, the Oklahoma Supreme Court applied an equitable doctrine to
excuse knowing and prejudicial conduct by the insured that actually destroyed
subrogation rights: the insurer's renunciation of the existence of an insurance
contract with the insured. The court held that "when an insurer completely denies
a claim for uninsured motorist (UM) coverage by its insured the insurer is
estopped from later invoking the defense of loss of subrogation rights." Id. at
1135. The court explained that, when an insurer repudiates its contractual
obligation to pay a UM claim by denying that a contractual relationship with an
alleged insured even exists, its right to subrogation never arises, and the insurer
cannot later "resurrect the insurance contract" and claim that its subrogation rights
have been impaired by settlement with the tort_feasor. Id. at 1138_39.
The court extended Sexton in Buzzard v. Farmers Insurance Co., 824 P.2d
1105, 1113_14 (Okla. 1991), to hold that an insurer's unjustified delay during
negotiations was equivalent to a denial and that the insurer's refusal to pay the
UIM claim until settlement with the tort_feasor was reached (and a covenant not to
sue was signed) precluded the insurer from relying on Porter. The court
recognized that an insurer's conduct could lead an insured to believe that benefits
would not be forfeited, estopping the insurer from denying benefits even if
forfeiture could technically be claimed under the express terms of the insurance
contract. See id. at 1113.
The district court distinguished Sexton and Buzzard by the fact that in those
cases, the insureds had made claims for coverage before settlement and the
insurers either denied coverage or delayed payment until settlement with the tort_
feasor occurred. Aplt. App. at 260. We do not believe this distinction is
consequential, however, because the Oklahoma Supreme Court did not find it to be
fatal in Robertson, supra.
The Robertson insured did not (and indeed, could not) detrimentally rely on
a denial of coverage in signing the release, as did the insureds in Sexton and
Buzzard, and yet the court still barred the insurer from raising a Porter defense.
See Robertson, 836 P.2d at 1297. Moreover, Sexton's rationale was based on the
principle that an insurer who denies the existence of coverage under the contract
on the one hand cannot resurrect the contract to claim an equitable defense on the
other, and that subrogation rights arise only when payment has been made or the
insurer stands ready to pay pursuant to its UM/UIM contract. See Sexton, 816 P.2d
at 1138.
The UM/UIM insurer must take prompt action to determine what payment is
due if the insured's damages exceed the liability coverage available under the tort_
feasor's policy. See Buzzard, 824 P.2d at 1112. Thus, in commercial/business
policies that cover employees, the UM/UIM insurer may also have a concomitant
duty to inform an injured employee_insured who may be ignorant of potential
coverage and contract terms of its right to contractual or statutory subrogation if
the insurer wishes to later elect to exercise that right. See Uptegraft, 662 P.2d at
687 n.11 (citing New Jersey case holding that if an insurance contract has a
cooperation agreement, "the initial responsibility to act to protect subrogated
rights rests upon the insurer. . . . [W]hen an insurer sits on these rights, it cannot
be heard to complain."); Sexton, 816 P.2d at 1138 (noting the insurer's duty to "aid
its insured in the preservation of its subrogation rights") (quotation omitted). At
the very least, the insurer has a duty to promptly produce a policy on request to an
injured employee with a colorable claim under the policy so that the employee may
ascertain whether he is covered and what responsibilities he has under the
contract.
NHIC does not assert that it was unaware of the accident until a claim was
made on the policy, and it appears that the policy expressly covered at least "non_
ownership liability" for employees driving their own cars. See Aplt. App. at 70,
141_42. The policy required the employer to notify NHIC of accidents. Id. at 78_
79. Thus, it is unlikely that the employer would have failed to notify NHIC of Ms.
Phillips' accident, especially when Ms. Phillips requested identity of the carrier
and the policies during the worker's compensation discovery process.
Even if Ms. Phillips had ascertained NHIC's identity, obtained a copy of the
policy, made a claim for UM coverage, and given notice of settlement before
signing the release, it is uncontroverted that NHIC would have denied the claim as
not covered by the policy. Subrogation rights would never have been an issue. We
hold that because NHIC continued to completely deny the existence of UM
coverage for Ms. Phillips after it learned of the settlement and release of the
tortfeasor, it repudiated the existence of an applicable contract and cannot raise the
Porter defense to bar Ms. Phillips' claim notwithstanding that its denial occurred
after settlement rather than before.
C. Application of Section 3636(E).
Our conclusion does not change upon review of Okla. Stat. tit. 36,
§ 3636(E). "Because [the Oklahoma] UM statute is remedial and mandates the
inclusion of UM coverage in motor vehicle insurance policies, it is to be liberally
construed to accomplish the legislative purpose, that of providing coverage for injuries which would otherwise go uncompensated." Forbes v. Shelter Mut. Ins.
Co., 904 P.2d 159, 162 (Okla. Ct. Civ. App. 1995) (citing Simmons v. Hartford
Acc. & Indem. Co., 543 P.2d 1384, 1388 (Okla.1975)). We first note that since
section 3636(E) is expressly prefaced by the condition "[i]n the event of payment"
of UM/UIM claims, it appears that section 3636(E) may have no application to the
case at bar. Moreover, the section does not make an insured's failure to notify of
proposed settlement an absolute bar to recovery under a UM/UIM policy. The
central goal of section 3636 is to protect victims injured by uninsured or
underinsured motorists (or by insured motorists whose carriers become insolvent)
by ensuring payment of damages. See Barnes v. Okla. Farm Bur. Mut. Ins. Co., 11
P.3d 162, 173 (Okla. 2001) (stating that clear intent of part of section 3636(E) was
that payments made by a tort_feasor should not diminish injured party's recovery
under their UM policy); Porter, 643 P.2d at 304_05 (refusing to enforce policy's
consent_to_settle clause because it diluted the injured victim's protection under the
UM statute); Forbes, 904 P.2d at 162.
One way it accomplishes that goal is by providing the speedy payment
mechanism in section 3636(E) that is triggered by the insured giving notice of an
impending settlement with the tort_feasor to the UM/UIM carrier. The last part of
the section entitles the UM/UIM carrier that has paid a UM/UIM claim to prevent
settlement by making a substitute payment of the tort_feasor's offer of settlement.
See Barnes, 11 P.3d at 168 (noting, "if the UIM carrier substitutes, the insured
would not finally accept the tentative settlement because the UIM carrier would
have substituted its payment for that offered by the tortfeasor"). The UM/UIM
carrier may then force the tort_feasor to go to trial (or to a higher settlement) and
take the insured's right of recovery to the extent of that substitute payment plus
any payments already made under the UM/UIM policy. See id. ("[U]pon proper
substitution, in addition to protecting its subrogation rights for any benefits paid
under the UIM coverage, section 3636(E)(2) expressly provides that the UIM
carrier is also entitled to any ultimate recovery . . . from the tortfeasor, to the
extent of the payment made in substitution of the tentative settlement.") (emphasis
added). Of course, as mentioned above, the only time taking such action would be
profitable to the UM/UIM carrier is when the tort_feasor has assets beyond the
liability limits (or settlement offer) of his insurance policy that may be collected
after judgment.
The last sentence of section 3636(E)(2) bars the UM/UIM carrier from
making any subrogation claims notwithstanding any contractual agreement
providing otherwise if it has received written notice of the proposed settlement but
has not offered a timely substitute payment to the insured and paid the UM claim
as well. See id. at 169 (noting that UIM carrier waived its subrogation rights by
deciding not to substitute payment and simply paying UIM claim); Sexton, 816
P.2d at 1138 (stating that subrogation is a right arising when one has paid the debt
of another); section 3636(E)(2) (prefacing preservation of rights provisions with
"in the event of payment" and providing for preservation of both substitute
payment and UIM claims that have been paid). Oklahoma thus punishes a
UM/UIM carrier (that has been given written notice fulfilling the statutory
requirements) for refusing to quickly settle.
The purpose of the notice requirement is to trigger the speedy payment
mechanism and to enable the insurer to protect any subrogation rights it may wish
to preserve __ not to serve as a hurdle for recovery. Cf. May v. Nat'l Union Fire
Ins. Co., 918 P.2d 43, 48_49 (Okla. 1996) (stating that "once it appears that the
legislative purpose of section 3636 has been served, the statute's mandate is
satisfied" and refusing to go beyond statute's express mandates to impose a
remedy for noncompliance with the statute). Nothing in this section indicates the
legislature's intent to completely extinguish an insured's rights to UIM coverage
as a matter of law if the insured has not complied with the notice of settlement
provisions,(5) and we decline to read such a result into it in light of Oklahoma's intent to protect the injured insured by this statute. We hold that section 3636(E)
does not support summary judgment in favor of the insured under the
circumstances of this case.
D. Bad_faith claim.
Because the district court's grant of summary judgment on Ms. Phillips'
bad_faith claim was predicated on its holdings that any entitlement to UIM
proceeds was extinguished under Porter; that NHIC should not be precluded from
raising the Porter defense; and that NHIC therefore had a justifiable reason for
denying her claim, we accordingly also reverse summary judgment in favor of
NHIC on this claim.
In sum, we REVERSE the judgment of the United States District Court for
the Western District of Oklahoma and REMAND this case for further proceedings
consistent with this opinion.
(5) Clearly, if a UM carrier does not have notice of proposed settlement as
provided in this statute, this section would not operate to foreclose its contractual
right to subrogation. Thus, if the district court had determined that Ms. Phillips'
employer's UIM insurance covered Ms. Phillips, Ms. Phillips could not claim that
NHIC's subrogation rights were foreclosed by any failure to make a substitute
payment.