Siloam Springs Hotel LLC v. Century Surety Company

Filing 47

ORDER finding that the Oklahoma Supreme Court is the appropriate court to answer the certified coverage question from this Court (as more fully set out). Signed by Honorable Vicki Miles-LaGrange on 3/21/2016. (ks)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
SILOAM SPRINGS HOTEL, L.L.C.,
Plaintiff,
vs.
CENTURY SURETY COMPANY,
Defendant.

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Case No. CIV-13-572-M

ORDER
On February 9, 2016, the Court entered an order finding that the coverage question at issue
in this case should be certified to the appropriate state supreme court. In its order, the Court directed
the parties to submit briefs regarding (1) which state supreme court is the appropriate state supreme
court, Arkansas or Oklahoma, and (2) what question(s) should be certified. The parties have filed
their briefs. Based upon the parties’ submissions, the Court makes its determination.
The appropriate state supreme court to certify the coverage question to depends on whether
this case is governed by Arkansas or Oklahoma law. The Court must initially determine whether
there is, in fact, a choice of law issue in this case. Both plaintiff and defendant agree that Arkansas
law does not differ from Oklahoma law in any way material to this coverage dispute. Further, the
Court has found that Oklahoma’s rules for construction of an insurance contract are identical to
those of Arkansas. See May 14, 2014 Order [docket no. 29] at 3, n.1. Because there is no conflict
between Oklahoma law and Arkansas law, “any perceived choice-of-law issue is contrived.” Rogers
v. Dell Computer Corp., 138 P.3d 826, 831 (Okla. 2005). Additionally, “[w]hen there is no conflict
[of law], the [c]ourt applies the law of the forum.” Emp’rs Mut. Cas. Co. v. Bartile Roofs, Inc., 618
F.3d 1153, 1170 (10th Cir. 2010). Since this case is pending in the United States District Court for
the Western District of Oklahoma, the law of Oklahoma should be applied. Therefore, the

Oklahoma Supreme Court is the appropriate court to answer the certified coverage question from
this Court.
Regarding what question(s) should be certified, the Court, having reviewed the parties’
submissions, finds that any question that is certified should be narrowly tailored to address only the
concern expressed by the Tenth Circuit. Therefore, the Court finds that the following question
should be certified to the Oklahoma Supreme Court: Does the public policy of the State of
Oklahoma prohibit enforcement of the Indoor Air Exclusion, which provides that the insurance
afforded by the policy does not apply to “‘Bodily injury’, ‘property damage’, or ‘personal and
advertising injury’ arising out of, caused by, or alleging to be contributed to in any way by any toxic,
hazardous, noxious, irritating pathogenic or allergen qualities or characteristics of indoor air
regardless of cause”? The Court will issue a separate order certifying this question to the Oklahoma
Supreme Court.
IT IS SO ORDERED this 21st day of March, 2016.