Mason v. Dunn et al
Filing
132
OPINION & ORDER by Magistrate Judge Kimberly E. West granting 50 Motion for Summary Judgment. Defendant Liberty Mutual Insurance Company will be dismissed from this action and judgment will be entered accordingly. (adw, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF OKLAHOMA
RICHARD A. MASON,
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Plaintiff,
v.
MAURITA T. DUNN;
SCHNEIDER NATIONAL
CARRIERS, INC.; and
LIBERTY MUTUAL INSURANCE
COMPANY,
Defendants.
Case No. CIV-14-282-KEW
OPINION AND ORDER
This matter comes before the Court on Defendant Liberty Mutual
Insurance Company’s Motion for Summary Judgment (Docket Entry #50).
On October 11, 2011, Plaintiff was involved in a traffic accident
with
a
tractor
(“Dunn”),
owned
trailer
and
driven
operated
by
by
Defendant
Defendant
Maurita
Schneider
T.
Dunn
National
Carriers, Inc. (“Schneider”), and insured by Defendant Liberty
Mutual Insurance Company (“LIberty”). Plaintiff struck the back of
the semi-tractor trailer driven by Dunn causing him injury.
Schneider is an interstate motor carrier headquartered in
Green Bay, Wisconsin.
Liberty provides insurance for Schneider,
including for the vehicle involved in the accident which forms the
subject matter of this action.
Plaintiff does not allege any
independent act of negligence on the part of Liberty.
Rather,
Plaintiff names Liberty as a party because it provides insurance to
Schneider’s vehicles.
The sole legal question at issue in the
subject Motion is whether it is appropriate for Plaintiff to name
Liberty as a party defendant in this case.
Summary judgment is appropriate only if there is no genuine
dispute of material fact and the moving party is entitled to
judgment as a matter of law.
Fed. R. Civ. P. 56(a); Celotex Corp.
v. Catrett, 477 U.S. 317, 322 (1986); Henderson v. Inter–Chem Coal
Co., Inc., 41 F.3d 567, 569–70 (10th Cir. 1994).
Whether there is
a genuine dispute as to a material fact depends upon whether the
evidence presents a sufficient disagreement to require submission
to a jury or is so one-sided that one party must prevail as a
matter of law.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
251–52 (1986); Stone v. Autoliv ASP, Inc., 210 F.3d 1132, 1136
(10th Cir. 2000).
Once the moving party meets its initial burden
of demonstrating an absence of a genuine dispute of material fact,
the burden then shifts to the nonmoving party to demonstrate the
existence of a genuine dispute of material fact to be resolved at
trial.
See 1–800–Contacts, Inc. v. Lens.com, Inc., 722 F.3d 1229,
1242 (10th Cir. 2013)(citation omitted).
A fact is “material” if
it pertains to an element of a claim or defense; a factual dispute
is “genuine” if the evidence is so contradictory that if the matter
went to trial, a reasonable jury could return a verdict for either
party.
Anderson, 477 U.S. at 248.
The facts must be considered in
the light most favorable to the nonmoving party.
Cillo v. City of
Greenwood Vill., 739 F.3d 451, 461 (10th Cir. 2013)(citations
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omitted).
The Court will not consider statements of fact, or rebuttals
thereto, which are not material or are not supported by competent
evidence.
Fed. R. Civ. P. 56(c)(1)(A), 56(e)(2), 56(e)(3). Only
admissible evidence may be considered when ruling on a motion for
summary judgment.
Jaramillo v. Colorado Judicial Dep't, 427 F.3d
1303, 1314 (10th Cir. 2005)(citation omitted) (holding that hearsay
evidence is not acceptable in opposing a summary judgment motion);
World of Sleep, Inc. v. La–Z–Boy Chair Co., 756 F.2d 1467, 1474
(10th Cir. 1985).
Plaintiff contends two Oklahoma statutes provide authority for
a direct action against Liberty - Okla. Stat. tit. 47 § 169 and
Okla. Stat. tit. 47 § 230.30.
Initially, this Court agrees with
Liberty that the current Okla. Stat. tit. 47 § 169 applies by its
very terms only to confined to household goods and used emigrant
movables or other intrastate motor carriers, of which Schneider is
indisputable not.
In contrast, Okla. Stat. tit. 47 § 230.30
applies to interstate motor carriers, such as Schneider.
pertinent part of this statue provides:
A. No license shall be issued by the Commission to any
carrier until after the carrier shall have filed with the
Commission a liability insurance policy or bond covering
public liability and property damage, issued by some
insurance or bonding company or insurance carrier
authorized pursuant to this section and which has
complied with all of the requirements of the Commission,
which bond or policy shall be approved by the Commission,
and shall be in a sum and amount as fixed by a proper
order of the Commission; and the liability and property
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The
damage insurance policy or bond shall bind the obligor
thereunder to make compensation for injuries to, or death
of, persons, and loss or damage to property, resulting
from the operation of any carrier for which the carrier
is legally liable. A copy of the policy or bond shall be
filed with the Commission, and, after judgment against
the carrier for any damage, the injured party may
maintain an action upon the policy or bond to recover the
same, and shall be a proper party to maintain such
action.
Okla. Stat. Ann. tit. 47 § 230.30(A).
Liberty first asserts that Plaintiff may only maintain a
direct
action
against
it
upon
obtaining
a
judgment.
In
interpreting the former Section 169 which mirrored the language in
the current Section 230.30, the Oklahoma Supreme Court recognized
that a direct action could be jointly brought against the carrier
and the insurer by virtue of the obligation to maintain insurance
under the statute.
1989).
Daigle v. Hamilton, 782 P.2d 1379, 1381 (Okla.
No prior judgment was required.
To confuse matters even more, the Oklahoma Court of Civil
Appeals issued two directly contradictory opinions on this statute.
In Fierro v. Lincoln Gen. Ins. Co., 217 P.3d 158 (Okla. Civ. App.
2009), the Court found a direct action could only be maintained
after a judgment was obtained against the carrier. In a concurring
opinion, Judge Adams agreed that § 230.30 did not apply since the
carrier was not obtain a license from the Oklahoma Corporation
Commission as required by the statute but disagreed that a judgment
was
required
before
maintaining
such
an
precedent from the Oklahoma Supreme Court.
4
action
in
Id. at 161.
light
of
In contrast, a different panel of the Oklahoma Court of Civil
Appeals found a direct action could be maintain, even absent a
prior judgment, in light of the reasoning in Daigle, distinguishing
Fierro.
Alfalfa Elec. Cooperative, Inc. v. Mid-Continent Casualty
Co., 350 P.3d 1276, 1281-81 (Okla. Civ. App. 2015).
Plaintiff’s arguments of inconsistency in treatment between
foreign and domestic corporations notwithstanding, this Court must
look to the express requirements of the statute in order to
determine its applicability.
The terms of Section 230.30 clearly
apply in the limited circumstance where the motor carrier obtains
a license from the Oklahoma Corporation Commission as defined by
Okla. Stat. tit. 47 § 230.23(3).
Oklahoma has joined other states
in recognizing registration under the federal Uniform
Registration Act.
Carrier
This Act allows for licensing in the state of
the carrier’s principal place of business which permits carriers to
operate vehicles in several states, including Oklahoma.
49 C.F.R.
§ 367.4; 49 U.S.C. § 14504a; Okla. Stat. tit. 47 § 162.1.
Schneider registered in its home place of business, Wisconsin,
under the Unified Carrier Registration Act.
Oklahoma
license
from
the
Oklahoma
It did not obtain an
Corporation
required for Okla. Stat. tit. 47 § 230.30 to apply.
Commission
as
No federal law
permits a direct action against an insurer but rather provides for
the recovery from an insurer should a judgment be obtained against
a covered carrier.
49 C.F.R. § 387.15.
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As a result, no direct
action against Liberty may be maintained under the specific facts
of this case.
IT
IS
THEREFORE
ORDERED
that
Defendant
Liberty
Mutual
Insurance Company’s Motion for Summary Judgment (Docket Entry #50)
is hereby GRANTED. Defendant Liberty Mutual Insurance Company will
be
dismissed
from
this
action
and
judgment
will
be
entered
accordingly.
IT IS SO ORDERED this 23rd day of March, 2016.
______________________________
KIMBERLY E. WEST
UNITED STATES MAGISTRATE JUDGE
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