Thames v. Evanston Insurance Company
Filing
97
OPINION AND ORDER by Magistrate Judge Paul J Cleary Granting (Re: 70 MOTION in Limine (Omnibus) ) (kjp, Dpty Clk)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OKLAHOMA
GERRY G. THAMES,
Plaintiff,
v.
EVANSTON INSURANCE CO.,
Garnishee.
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Case No. 13-CV-425-PJC
OPINION AND ORDER
Before the Court for consideration is the Motion in Limine filed by Evanston Insurance
Company (“Evanston”). [Dkt. No. 70]. The Court has also considered the Objection of Plaintiff
Gerry G. Thames (“Thames”) (Dkt. No. 75), and Evanston’s Reply in support of its motion (Dkt
No. 80). The Motion in Limine is GRANTED as set forth herein.
I.
Background
Thames brought this garnishment action against Evanston to recover damages awarded to
Thames in an underlying lawsuit, Thames v. Brookside Title & Escrow, Inc., et al., Case No. CJ2011-3624. [Dkt. No. 3-1]. Those damages stemmed from the actions of Brookside Title &
Escrow, Inc. (“Brookside”), which was insured by Evanston. Thames was awarded a confessed
judgement of $120,000.00 against Brookside in the underlying lawsuit. Evanston’s Motion
sought to exclude 1) evidence concerning any damages besides the confessed judgment and 2)
testimony, exhibits, or other evidence purporting to interpret and give meaning to the terms of
the insurance policy at issue. Thames only objected and provided argument concerning the first
part of Evanston’s motion. The Court has reviewed Evanston’s argument concerning the
admission of extrinsic evidence and deems that confessed.
II.
Applicable Legal Standard
A post-judgment garnishment proceeding "is a special and extraordinary remedy given
only by statute," which allows a judgment creditor to secure payment of a judgment through
enforcing a liability owed to the judgment debtor by a third party. Johnson v. Farmers Alliance
Mut. Ins. Co., 499 P.2d 1387, 1390 (Okla. 1972) (citation omitted). In garnishment proceedings
"[t]he court shall render such judgment in all cases as shall be just to all of the parties and shall
properly protect their respective interests . . . ." Okla. Stat. tit. 12 § 1182. Ordinarily, "[i]n a
garnishment proceeding, there is a presumption in favor of the trial court's finding." Spears v.
Preble, 661 P.2d 1337, 1342 (Okla. 1983).
In a garnishment proceeding, the judgment creditor stands in the shoes of the judgment
debtor to enforce a liability owed to the latter by a third party - the garnishee. The former may
claim no greater rights against the garnishee than the latter himself possesses. A debt subject to
garnishment must be owed absolutely at the time the summons is served upon the garnishee.
Culie v. Arnett, 765 P.2d 1203, 1205 (Okla. 1988).
An insurer's liability to its insured can be neither created nor enlarged in a garnishment
proceeding. Post-judgment garnishment is available to enforce a judgment debtor's right against
a third party. Id. at 1206. Garnishment proceedings are indeed ancillary proceedings in the
sense that they are in aid of a judgment previously obtained. Joe v. Marcum, 621 F.2d 358, 362363 (10th Cir. 1980); accord Fulkerson v. Laird, 421 S.W.2d 523, 526 (Mo. App. 1967) (quoting
Harrison v. Harrison, 339 S.W.2d 509, 517 (Mo. App. 1960)). ("Garnishment is in aid of an
execution and is merely 'an ancillary remedy to obtain payment of the judgment.'").
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III.
Discussion
The damages at issue in the present garnishment proceeding cannot go as far as to
include any additional damages claimed by Thames. The only issue at hand and to be decided
by the Court is whether garnishee Evanston, a third-party to the original action, is liable to its
insured, Brookside, under its professional negligence insurance policy. Under the Federal Rules
of Evidence 401 and 403, any evidence of additional damages allegedly suffered by Thames may
be excluded as it would be irrelevant to determining the liability of Evanston to Thames for the
$120,000.00 judgement that is the subject of this garnishment action.
In the present case, Thames is attempting to bring evidence of additional damages into
this garnishment proceeding; damages which he allegedly suffered as a result of the actions of
Evanston’s insured, Brookside, and by Evanston itself. However, Thames’ ability to recover
from the garnishee, Evanston, is limited to the amount of the confessed judgement accepted by
Thames. Sisk v. Gaines, 144 P.3d 204, 207 (Okla. Civ. App. 2006). Thames has already
obtained a confessed judgement of $120,000.00 against Brookside, and any additional damages
beyond that amount are irrelevant to the current garnishment proceeding.
Allowing these damages to be entered into evidence would enlarge the insurer’s liability
to the insured, which is beyond the scope of a garnishment proceeding. This garnishment
proceeding is merely in aid of the judgement previously awarded to Thames and the only issue to
be answered is whether Evanston is liable to Brookside for the judgement which was entered
against it. The debt subject to garnishment here can only be $120,000.00, as that was the only
amount owed absolutely at the time the garnishment proceedings were initiated by Thames, and
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thus any evidence of additional damages should be excluded, consistent with Evanston’s motion
in limine.
IT IS THEREFORE ORDERED that Evanston’s Motion in Limine (Dkt. No. 70) is
hereby GRANTED.
DATED this 26th day of May, 2015.
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