The Stewart decision involved a legal issue of first impression for the state’s appellate courts. RKCG won the case. The firm anticipates this ruling will impact a large number of civil cases throughout the state. The Stewart case stems from a motor vehicle accident that occurred in Tulsa, Oklahoma. Prior to trial, RKCG’s trial team offered to “confess” judgment (on behalf of RKCG’s clients) under a “cost-shifting statute,” 12 O.S. § 1101. By invoking this statute, RKCG’s trial team converted the underlying litigation into a high stakes game of poker. The person suing RKCG’s clients made the tactical decision to try the case, but ultimately failed to best RKCG’s pre-trial offer. As a consequence, RKCG’s clients were awarded certain defense costs that would not have otherwise been recoverable. After the favorable verdict, the assigned trial judge ruled it would be unlawful to require the party suing to pay any portion of the costs incurred by the parties defending the case. RKCG appealed the judge’s decision, and prevailed. The sole issue on appeal was whether Section 1101 authorizes multiple Defendants to jointly file an offer to confess judgment to a single plaintiff. The appellate court decided the issue in RKCG’s favor. Accordingly, the trial judge’s decision was overturned, in favor of RKCG’s clients.
Plaintiff asserted claims against Progressive on the grounds Progressive’s use of the Mitchell International WorkCenter Total Loss program to determine the “total loss value” of Plaintiff’s vehicles allegedly breached the insurance contract and the duty of good faith and fair dealing. Plaintiff sought class certification, arguing that this was appropriate despite the fact that every vehicle property damage claim submitted to Progressive by its insureds, necessarily, includes issues of fact concerning the vehicles’ condition and value that are far from common. Judge Patrick Wyrick of the United States District Court for the Western District of Oklahoma denied Plaintiff’s request for class certification, noting that Plaintiff had “offered little to no support” for her claim that Progressive’s use of this system “categorically violate[d] Oklahoma law[.]”
Plaintiff has filed a Rule 23(f) petition with the Tenth Circuit seeking review of Judge Wyrick’s denial of her request for certification, to which Progressive has objected.
Two cases which present the same question of law have recently been decided by the United States District Court for the Western District of Oklahoma. At issue in both matters is the question of whether Progressive may properly exclude uninsured motorist (“UM”) coverage under its policy when an insured has already recovered at least the minimum amounts of liability coverage provided by that same policy. Three Plaintiffs, all represented by the same counsel, filed three suits involving extremely similar factual scenarios and an identical UM coverage exclusion. All three Plaintiffs asserted breach of contract and bad faith claims against Progressive. Two of the cases were consolidated into the Lane case, and McKinney proceeded separately. In all cases, the plaintiffs were “Class Two” insureds under the insurance policies, which means they were all considered insureds because they were occupying an insured vehicle, not because they were the named insured who purchased the policy or a resident relative of the named insured.
Two judges of the Western District of Oklahoma decided the issue differently. Judge Joe Heaton, in the case of McKinney v. Progressive, held that though “the issue is not free from doubt,” the exclusion at issue violates Oklahoma UM public policy. On the other hand, Judge Stephen Friot held Progressive had carried its burden of demonstrating the exclusion, as applied to the facts of the claims at issue, is permitted under Oklahoma law. Judge Heaton, therefore, denied Progressive’s request for summary judgment on Plaintiff’s breach of contract claim. Judge Friot, however, granted Progressive’s motion for judgment on the pleadings. Both judges found in Progressive’s favor on Plaintiffs’ bad faith claims, finding Progressive’s position regarding coverage was not unreasonable.
Both cases are currently on appeal. The Tenth Circuit heard argument in the McKinney v. Progressive matter, and then issued a certified question to the Oklahoma Supreme Court, which was accepted by that court on March 13, 2020. The appeal in Lane v. Progressive was stayed by the Tenth Circuit pending the Oklahoma Supreme Court’s determination of the certified question regarding the validity of the UM exclusion.
Lee McIntosh was involved in a hit and run accident caused by Jake Watkins. He sought treble damages against Watkins based upon the damage done to his vehicle. The District Court of Pottawatomie County held that 47 O.S. 2011 § 10-103 did not allow for treble damages because McIntosh also sustained injuries. Judgment was granted for Watkins. McIntosh appealed. In a 5-4 verdict the Oklahoma Supreme Court reversed the District Court's ruling saying that its interpretation "maintains the public policy behind 47 O.S. 2011 § 10-103 and avoids an absurd result."
The minority judges wrote a scathing rebuke of the majority's parsing of the legislative intent of 47 O.S. 2011 § 10-103. They noted that the majority had failed to appreciate the plain language of the statute and blasted the the decision as a "three-card-monte-like application of ambiguity, absurdity, and intentionalism" that resulted in "treble damages for everyone. The minority judges concluded that the case "demonstrates that it is all too easy to craft perfectly logical and sound policies from the isolation of judicial chambers" that fail to consider "the legislative compromises essential to a law's passage."
Richard Whitham filed suit against Progressive Northern Insurance Company for breach of contract due to its alleged failure to pay owed underinsured motorist benefits. The suit was originally filed in Tulsa County District Court, but because Whitham's Petition alleged damages in excess of $75,000, Progressive removed the case to the United States District Court Northern District of Oklahoma on the basis of party diversity and the amount of damages sought. Whitham subsequently said he was seeking only the underinsured motorist policy limits of $50,000, so he filed a motion to have the suit remanded to Tulsa County. Whitham's motion was denied. In denying the motion the Northern District noted that the law was clearly established that a "plaintiff may not defeat removal based on diversity of citizenship by reducing the amount in controversy after removal."