Akins et al v. C & J Energy Services Inc

Filing 61

ORDER denying 52 Motion for Summary Judgment; denying 59 Motion to Certify; denying 60 Motion to Strike, as more fully set out. Signed by Honorable David L. Russell on 8/7/19. (jw)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
BELENDA LEE AKINS, Individually,
and as Surviving Spouse, and as
Personal Representative of the
Estate of Brian Dwayne Akins, Deceased,
Plaintiff,
v.
C&J ENERGY SERVICES, INC.; and
C&J SPEC-RENT SERVICES INC.,
Defendants,
GREAT MIDWEST INSURANCE
COMPANY, a Texas corporation,
Intervenor.

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ORDER
Before this Court is Plaintiff Belenda Lee Akins’ Motion for Summary Judgment
on Intervenor Great Midwest Insurance Company’s (“GMIC”) claims. See Doc. 52. The
issue presented is straightforward and purely legal: is 85A O.S. § 43 unconstitutional under
Article 23, Section 7 of the Oklahoma Constitution? Having considered the parties’ filings,
see Docs. 52, 56–57, the Court finds as follows.
I.

Background
The material facts are uncontested. See Doc. 56, at 5. On November 21, 2017, Brian

Dwayne Akins was involved in a fatal motor vehicle accident while in the course of his
employment with Two Guns Trucking Inc. See Doc. 52, at 9. Plaintiff, Mr. Akins’
surviving spouse, filed a workers’ compensation claim on behalf of herself and her

dependent child, Cody Dale Akins, against Two Guns Trucking and its workers’
compensation insurance carrier, GMIC. See Doc. 49, at 2; Doc. 51, at 1; see also Doc. 52,
at 10; Doc. 56, at 5. On May 23, 2018, the Oklahoma Workers’ Compensation Commission
entered an order awarding death benefits to Plaintiff and her son. Id. The Commission
awarded to Plaintiff (1) a $100,000 lump sum; (2) weekly benefits of $590.63, starting
November 21, 2017, and continuing for so long as Plaintiff meets the statutory eligibility
requirements; and (3) funeral expenses. See Doc. 52, at 10. The Commission also awarded
Cody Akins a $25,000 lump sum and weekly benefits of $126.56, which ran from
November 21, 2017, until December 13, 2018, when they were terminated by the
Commission. Id. GMIC, as Two Guns Trucking’s insurance carrier, paid these benefits to
Plaintiff and her son, and it continues to pay them to Plaintiff. See Doc. 49, at 2; Doc. 51,
at 2; Doc. 56, at 5.
Plaintiff also filed a wrongful death action in the District Court of Oklahoma County
on May 1, 2018, against Defendants C&J Energy Services, Inc., and C&J Spec-Rent
Services, Inc., alleging negligence and gross negligence and seeking wrongful death and
punitive damages. See Doc. 52, at 10–11. Defendants removed the action to this Court on
May 16, 2018. See Doc. 1. On March 28, 2019, Plaintiff and Defendants reached a
confidential settlement in this suit. See Doc. 52, at 10–11; see also Order, Doc. 48. Upon
hearing of this settlement, GMIC moved to intervene in this case on April 10, 2019,
asserting a statutory right of recovery against Defendants, a right of reimbursement against
Plaintiff, and/or equitable subrogation and indemnity rights. See Doc. 42; see also Doc. 52,
at 11; Doc. 56, at 6. The Court granted the motion to intervene, GMIC filed its complaint

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in intervention, and Plaintiff and Defendants answered. See Docs. 48–51. Plaintiff now
moves for summary judgment, arguing that the statute grounding Intervenor’s claims is
unconstitutional. See generally Doc. 52.
II.

Motion for Summary Judgment Standard
“The court shall grant summary judgment if the movant shows that there is no genuine

dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a). The Court must inquire “whether the evidence presents a sufficient
disagreement to require submission to a jury or whether it 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). In doing so, the Court construes all facts and reasonable inferences in the light most
favorable to the non-moving party. Macon v. United Parcel Serv., Inc., 743 F.3d 708, 712–
13 (10th Cir. 2014).
III.

Discussion
Plaintiff’s sole contention on summary judgment is that 85A O.S. § 43 is

unconstitutional under Article 23, Section 7 of the Oklahoma Constitution. Under this
constitutional section,
[t]he right of action to recover damages for injuries resulting in death shall
never be abrogated, and the amount recoverable shall not be subject to any
statutory limitation, provided however, that the Legislature may provide an
amount of compensation under the Workers’ Compensation Law for death
resulting from injuries suffered in employment covered by such law, in
which case the compensation so provided shall be exclusive, and the
Legislature may enact statutory limits on the amount recoverable in civil
actions or claims against the state or any of its political subdivisions.
Okla. Const. art. XXIII, § 7. The state statutory provision at issue, part of Oklahoma’s
Administrative Workers’ Compensation Act, 85A O.S. § 1 et seq., preserves the right of
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an employee’s dependents to “make a claim or maintain an action in court against any third
party for [the employee’s] injury,” even where a “claim for compensation against an[]
employer or carrier” for that employee’s death has been made. 85A O.S. § 43(A)(1)(a).
However, where such an action is brought against a third-party tortfeasor, the employer or
its compensation insurance carrier “shall be entitled to reasonable notice and opportunity
to join in the action.” Id. § 43(A)(1)(b). “If the employer or employer’s carrier join in the
action against a third party for injury or death, they shall be entitled to a first lien on twothirds (2/3) of the net proceeds recovered in the action that remain after the payment of the
reasonable costs of collection, for the payment to them of the amount paid and to be paid
by them as compensation to the injured employee or his or her dependents.” Id. §
43(A)(1)(c); see also id. at § 43(A)(2) (“The commencement of an action by an
employee[’s] . . . dependents against a third party for damages . . . shall not affect the rights
of the . . . dependents to recover compensation, but any amount recovered by the . . .
dependents from a third party shall be applied as follows: . . . (b) the employer or carrier,
as applicable, shall receive two-thirds (2/3) of the remainder of the recovery or the amount
of the workers’ compensation lien, whichever is less . . . .”).1

1
The Court limits its consideration of Plaintiff’s constitutional challenge to subsection (A) of 85A O.S. §
43. While Plaintiff challenges all of Section 43’s constitutionality, subsection (B), which deals with
subrogation rights of the employer or its compensation insurance carrier, is not relevant here, given this
case’s procedural posture. See 85A O.S. § 43(B)(1) (granting to an employer or carrier “the right to maintain
an action in tort against any third party responsible for [an employee’s] death”); see also id. § 43(B)(3) (“If
the employer recovers against the third party, by suit or otherwise, the injured employee shall be entitled to
any amount recovered in excess of the amount that the employer and carrier have paid or are liable for in
compensation, after deducting reasonable costs of collection.”). The parties agree that the underlying
wrongful death action by Plaintiff against Defendants has settled. See Doc. 50, at 1 (“[C]laims between
Plaintiff and Defendants are settled . . . .”); Doc. 52, at 11 (“On March 28, 2019, Plaintiff and Defendants
. . . reached a confidential settlement of the wrongful death lawsuit.”); Doc. 56, at 5-6; see also Order, Doc.
48, at 1 (“Moreover, the parties have represented to the Court that the underlying dispute has been settled
. . . .”). As GMIC intervened in this case after Plaintiff and Defendants settled, and did not assert an

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In seeking a declaration that a state statute is unconstitutional, Plaintiff faces
formidable hurdles:
In considering the constitutionality of a statute, courts are guided by wellestablished principles and a heavy burden is cast on those challenging a
legislative enactment to show its unconstitutionality. Every presumption is
to be indulged in favor of a statute’s constitutionality. A legislative act is
presumed to be constitutional and will be upheld unless it is clearly,
palpably and plainly inconsistent with the Constitution. If two . . .
interpretations of a statute are possible, only one of which would render it
unconstitutional, a court is bound to give the statute an interpretation which
will render it constitutional, unless constitutional infirmity is shown beyond
a reasonable doubt. The nature of [a] Court’s inquiry is limited to
constitutional validity, not policy. It is not the place of . . . any court[] to
concern itself with a statute’s propriety, desirability, wisdom, or its
practicality as a working proposition. A court’s function, when the
constitutionality of a statute is put at issue, is limited to a determination of
the validity or invalidity of the legislative provision and a court’s function
extends no farther in our system of government.
Lee v. Bueno, 2016 OK 97, ¶¶ 7-8, 381 P.3d 736, 740 (emphasis added) (citations and
paragraph breaks omitted); see also Lafalier v. Lead-Impacted Communities Relocation
Assistance Tr., 2010 OK 48, ¶ 15, 237 P.3d 181, 188–89 (“Even though the moving party
must show that there is no dispute of fact and that they are entitled to judgment as a matter
of law, there is a presumption that every statute is constitutional. . . . We scrutinize a
constitutional attack on a statute with great caution and grave responsibility.”).

independent action against Defendants, only subsection (A) of section 43 is implicated here. Moreover,
GMIC makes clear in its response to Plaintiff’s summary judgment motion that it is seeking to assert a
statutory lien interest against the settlement proceeds. See Doc. 56, at 4, 10–11, 18 (arguing that GMIC is
“entitled to recover its statutory lien of reimbursement”; that “there is no question that an
employer/insurance carrier is entitled to a statutory lien, which is not a diminishment of wrongful death
damages, but instead is a right and a remedy afforded to an employer/insurance carrier”; and that “Plaintiff
cannot avoid the fact that GMIC has a statutory lien” (emphasis original)).

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Plaintiff simply has not met her burden. The Court can first quickly dispense with
Plaintiff’s primary, on-point authority—because it is no authority at all. Plaintiff cites an
order in Rogers v. Sims, CJ-2015-22, filed in the District Court of Grady County on April
21, 2016, to show that Oklahoma courts have found 85A O.S. § 43 unconstitutional under
Article 23, Section 7. See Doc. 52, at 22–23; Doc. 57, at 4; see also Doc. 52-1. But the
Court is barred from relying on this order by Oklahoma Supreme Court rule and state and
federal judicial precedent. See Okla. Sup. Ct. R. 1.200(c)(5) (“Because unpublished
opinions are deemed to be without value as precedent and are not uniformly available to
all parties, opinions so marked shall not be considered as precedent by any court or cited
in any brief or other material presented to any court . . . .”); Blue Circle Cement, Inc. v. Bd.
of Cty. Comm'rs of the Cty. of Rogers, 27 F.3d 1499, 1513 (10th Cir. 1994) (“Because
under Oklahoma law neither the district court nor our court may rely upon . . . an
unpublished opinion, we must disregard that authority.”); Castanon v. Cathey, No. CIV18-537-R, 2019 WL 3037056, at *5 n.9 (W.D. Okla. July 11, 2019) (“[U]npublished
district court orders are without precedential or persuasive value; thus, neither Plaintiff[]
nor this Court may rely upon them.”); Burns v. Cline, 2016 OK 121, ¶ 3 n.4, 387 P.3d 348,
351 (finding that the parties' citation to unpublished district court judgments violated
Oklahoma Supreme Court Rule 1.200(c)). The Court, therefore, cannot and will not
consider this order.
Plaintiff also cites several Oklahoma Supreme Court cases to show that subrogation
in the workers’ compensation context has long been viewed with skepticism. Plaintiff
chiefly relies on Updike Advertising System v. State Industrial Commission, a 1955

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Oklahoma Supreme Court decision holding that “[t]he right of subrogation against a thirdparty tort-feasor never existed in favor of an employer or [workers’ compensation]
insurance carrier.” 1955 OK 19, ¶ 0, 282 P.2d 759, 761. In other words, any subrogation
rights enjoyed by employers or their insurance carriers would need to be statutory. Id. The
Updike petitioners, an employer and its insurance carrier, argued that the then-existing
statutory prohibition on subrogation was an unconstitutional deprivation of property
without due process. See id. ¶ 7, 282 P.2d at 762 (citing 85 O.S. § 44(b), a section of the
now-repealed Workmen’s Compensation Act, which stated that “[t]here shall be no
subrogation to recover money paid by the employer or his insurance carrier for death claims
or death benefits under this Act from third (3d) persons”). In finding no constitutional
violation, the Court closed its opinion with the following language, onto which Plaintiff
latches:
No doubt the employers who fall within the purview of the Workmen’s
Compensation Law have paid premiums for accidental death without
subrogation; as pointed out above the specific liability for death under the act
is exclusive and such employers can no longer be sued under the wrongful
death statute . . . . There is no other limitation on the maximum amount that
dependent widows and orphans can receive for the death of their husband
and father. Any such limitation except in favor of employers falling within
the purview of the Workmen’s Compensation Act would be unconstitutional.
So, if subrogation had been provided by the Legislature such provision
would have to be declared unconstitutional because in conflict with the
provision of the constitution which yet inhibits limitation of recovery for
wrongful death.
Id. ¶ 17, 282 P.2d at 764–65. Courts have subsequently repeated or paraphrased this
language. See Lee Way Motor Freight, Inc. v. Yellow Transit Freight Lines, Inc., 251 F.2d
97, 101 (10th Cir. 1957) (“Moreover, we think that what was said in the Updike case and
the cases following it, makes it quite clear that in Oklahoma, an employer or its insurance
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carrier cannot recover the death benefits from a negligent third person.”); McBride v.
Grand Island Exp., Inc., 2010 OK 93, ¶ 12, 246 P.3d 718, 721–22 (“Section 44(b) however
has no right of subrogation to recover money from third persons paid by the employer or
his insurance carrier for death claims or death benefits under the Workers’ Compensation
Act. The employer or the insurance carrier had no historical right by payment of workers’
compensation death benefits to pursue the tortfeasor to recover the workers’ compensation
death benefits paid because the right to death benefits subrogation was not authorized and
was viewed as in conflict with Oklahoma Constitution, Article 23 § 7.”); Earnest, Inc. v.
LeGrand, 1980 OK 180, ¶¶ 16–17, 621 P.2d 1148, 1153–54 (quoting Updike and noting
that, “[d]ue to the specific prohibition of s[ection] 7 of Art[icle] 23 . . . we do not find the
distinction between the right of subrogation in claims involving personal injury and the
lack of subrogation in claims involving death benefits to be arbitrary, capricious or
unreasonable”).
Plaintiff’s cited cases show that Oklahoma has no common-law subrogation right
for employers or their workers’ compensation insurance carriers, and that these entities,
until recently, faced a statutory prohibition on subrogation for death benefits against thirdparty tortfeasors. But what these cases do not show is that 85A O.S. § 43 is clearly,
palpably, and plainly inconsistent with Article 23, Section 7 of the Oklahoma Constitution.
Crucially, these cases dealt with neither the question posed to this Court nor an analogous
question. Rather, they involved employers or their insurance carriers challenging state
statutory prohibitions on subrogation for death benefits or seeking to assert equitable or
common-law subrogation or reimbursement rights where none existed. See Lee Way, 251

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F.2d at 99 (plaintiff, an employer, seeking indemnification for “money it had to pay
because of the wrongful death of the employee,” in order to evade Oklahoma’s statutory
bar on subrogation for death benefits); McBride, 2010 OK 93, ¶ 17, 246 P.3d at 722
(finding that Oklahoma’s prior workers’ compensation statute did not give an insurer a
right of recovery for death benefits); Earnest, 1980 OK 180, ¶¶ 7–8, 13, 621 P.2d at 1150,
1151–53 (finding no statutory right of subrogation in death claims and finding that the bar
on such subrogation claims did not constitute an arbitrary and capricious taking); Updike,
1955 OK 19, ¶¶ 0, 12, 282 P.2d at 760, 763 (finding no common-law right of subrogation
for employers or insurance carriers against third-party tortfeasors and, therefore,
concluding that the statutory bar on such subrogation was not constitutionally suspect).
Given their factual circumstances, procedural postures, and contested legal issues,
Plaintiff’s cited cases are inapposite here, and the language Plaintiff relies upon from them
is dicta. Am. Trailers, Inc. v. Walker, 1974 OK 89, ¶ 18, 526 P.2d 1150, 1154 (“Statements
in a decision neither necessary to support the conclusion reached nor applicable to the
situation are dictum, and not in any way controlling.”).2 Indeed, Updike’s language, the
wellspring of Plaintiff’s arguments about 85A O.S. § 43’s constitutionality, is dicta twice
over: not only are the Oklahoma Supreme Court’s musings about the constitutionality of
some theoretical statutory subrogation right inessential to its holding, but all the language
outside the court’s syllabus is non-binding given the opinion’s date. See Keota Mills &
Elevator v. Gamble, 2010 OK 12, ¶ 19 n.30, 243 P.3d 1156, 1162 (citing Robinson v. Okla.

2
Dicta are judicial comments or opinions unnecessary to a court’s decision or the opinion’s holding—and,
therefore, non-binding and nonprecedential. See Dictum, Black's Law Dictionary (11th ed. 2019).

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Nephrology Assocs., Inc., 2007 OK 2, ¶ 13 n.2, 154 P.3d 1250, 1255) (noting that, when
the Oklahoma Supreme Court used syllabi, “the syllabus contained the law of the case and
the body of the opinion was merely dictum. The reasoning of the court in the body of the
decision was an aid to the interpretation of the law expressed in the syllabus.”); Sampson
Const. Co. v. Farmers Coop. Elevator Co., 382 F.2d 645, 648 (10th Cir. 1967) (noting that
the syllabus in Oklahoma was “the law of the case”). Thus, Plaintiff cannot meet the heavy
burden of establishing 85A O.S. § 43’s unconstitutionality by relying on non-binding
judicial hypotheticals in factually distinguishable cases.3
Like the parties, the Court has been unable to locate any Oklahoma caselaw directly
addressing the question at issue. However, two state courts have addressed a similar
issue—that is, whether a statutory subrogation or lien right in favor of employers or their
workers’ compensation insurance carriers is constitutional under a state constitutional
provision barring abrogation of wrongful death actions or limitations on recoverable
damages. In both cases, the courts held that the statutes did not violate the state
constitutions. In Stout v. State Compensation Fund, 3 P.3d 1158 (Ariz. Ct. App. 2000), the
Court of Appeals of Arizona considered a constitutional challenge to a workers’
compensation carrier’s statutory lien right. Todd Stout was severely injured in an accident
at his place of employment, and he later died from his injuries. Stout, 3 P.3d at 1159. Debbie
Stout, Mr. Stout’s wife, and Logan Stout, Mr. Stout’s son, received workers’ compensation

3
GMIC also points out that Plaintiff’s cited cases address subrogation rights, rather than the statutory lien
right GMIC purports to assert against the settlement here. See, e.g., Doc. 56, at 8–9 (noting that 85A O.S.
§ 43 created for the first time a statutory lien right, which post-dates all of Plaintiff’s cited cases). As the
Court finds Plaintiff’s cited authority generally unpersuasive, it need not consider whether there is a
material difference between lien rights and subrogation rights in the wrongful death context.

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benefits; they filed a lawsuit against a third party after Mr. Stout’s death for medical
expenses, wrongful death, and loss of consortium. Id. at 1159–60. The State Compensation
Fund, the workers’ compensation carrier that paid benefits to Debbie and Logan Stout,
claimed a lien interest for the amount of those benefits. Id. On appeal, the Stouts argued,
among other issues, that the Fund’s lien right could not extend to Ms. Stout’s loss of
consortium claim without violating the Arizona Constitution. Id. at 1164–65.
When a deceased employee’s dependents bring an action against a third-party
tortfeasor, Arizona’s workers’ compensation statute “vests the employer’s insurance
carrier with a lien on any recovery (less reasonable and necessary expenses)” that the
dependents “collect[] from the third-party to the extent of the compensation benefits paid
by the insurance carrier.” Twin City Fire Ins. Co. v. Leija, 422 P.3d 1033, 1036 (Ariz.
2018); see also Stout, 3 P.3d at 1163 (recognizing that, under Arizona’s workers’
compensation statute, “the employer or its compensation carrier has a lien” on any recovery
from an action brought by a deceased employee’s dependents against a third-party
tortfeasor). Arizona also has a constitutional provision similar to the one at issue in this
case: “Arizona’s Constitution guarantees that ‘[t]he right of action to recover damages for
injuries shall never be abrogated, and the amount recovered shall not be subject to any
statutory limitation.’” Stout, 3 P.3d 1165 (brackets original) (quoting Ariz. Const. art. 18,
§ 6). The Stouts cited this provision to argue that application of a carrier’s statutory lien
right against a loss of consortium award would be an unconstitutional limitation on the
amount of damages recoverable. Id. at 1164–65.
The court of appeals disagreed with the Stouts’ argument:

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Simply put, a lien on a damages recovery to offset compensation paid is not
a limitation on the availability or amount of damages recovered in a thirdparty action. . . . [T]he statutory lien furthers the legislative purposes of
requiring the third party to pay what he would normally pay if there were no
workers’ compensation, reimbursing the carrier for its compensation
expenditure, and allowing the compensation beneficiary to enjoy the excess
of the damage recovery over compensation. Thus, when . . . the dependents
of a deceased worker recover from a third party, the compensation benefits
paid essentially act as an advance against the litigation award; the . . .
dependents have the advantage of getting medical payments, lost wages, and
other benefits paid early on by the compensation carrier while waiting for
tort recovery that may then be used to offset the amounts already paid in
order to prevent double recovery.
Id. at 1165 (internal quotation marks, citations, and brackets omitted). Moreover, the court
held that the classification of the claim as loss of consortium was immaterial: “regardless
of the name given to the benefits or damages—whether for loss of consortium, wrongful
death, or death benefits—the surviving spouse will receive at least the amount recovered
in the third-party action and possibly more if either the compensation benefits eventually
exceed the tort award or the award exceeds the benefits paid.” Id.; see also id. at 1164
(“The Fund . . . . has a lien against Debbie Stout’s wrongful death and loss of consortium
recovery, if any, for benefits that have been and will be paid to her since Mr. Stout’s death.
. . . [H]er tort recovery may be used to satisfy the liens attributable to the benefits paid to
her . . . .”). Accordingly, the court held that article 18, section 6 of Arizona’s constitution
did not render unconstitutional the compensation carrier’s statutory lien interest in a
recovery against the third-party tortfeasor.
The Supreme Court of Utah reached a similar conclusion in Anderson v. United
Parcel Service, 96 P.3d 903 (Utah 2004). Karl Anderson was killed in the course of his
employment with the United Parcel Service (UPS). Anderson, 96 P.3d at 905. His wife and

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two minor children received workers’ compensation benefits after his death, and they also
filed a wrongful death action against the third-party tortfeasor. Id. UPS and Liberty Mutual
Insurance Company, UPS’s workers’ compensation insurance carrier, asserted a statutory
right to reimbursement for any recovery the Anderson family obtained from the third-party
tortfeasor. Id. But in this case, application of the reimbursement right would cause the
entire recovery to go to UPS and Liberty Mutual. Id. The Andersons argued that this
“would be inconsistent with article XVI, section 5 of the Utah Constitution, which prohibits
any abrogation of, or statutory limitation on, the right to recover damages for wrongful
death.” Id. at 905–06; see also Utah Const. art. XVI, § 5 (“The right of action to recover
damages for injuries resulting in death, shall never be abrogated, and the amount
recoverable shall not be subject to any statutory limitation, except in cases where
compensation for injuries resulting in death is provided for by law.”).
The court rejected the Andersons’ constitutional challenge, holding that “[t]he
simple fact that [the statute] dictates how recovery from . . . an action [the Andersons have
against a third party] is to be disbursed does not mean that the cause of action itself has
been abrogated.” Id. at 907–08. “Neither does the reimbursement provision act as a
statutory limitation on the ‘amount recoverable’ in an action for injuries resulting in death,”
because “[n]othing in the statutory language places a limitation on the amount that may be
recovered from the third-party tortfeasor.” Id. at 908. Rather, “[t]he provision only
specifies how that amount is to be allocated between the interested parties.” Id. Thus, the
court concluded that “[t]he [statutory] reimbursement provision . . . is a valid legislative

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enactment that is consistent with both article XVI, section 5 of the Utah Constitution and
with the legislative purpose of the [workers’ compensation statute] itself.” Id. at 911.
The reasoning of the Utah and Arizona courts is convincing. 85A O.S. § 43(A) does
not limit the “amount recoverable” in a wrongful death action; rather, it is merely an
allocative measure, specifying how and to whom the settlement proceeds are distributed.
While Plaintiff has presented judicial dicta that is no doubt broad, this is insufficient to
carry her heavy burden of showing that a statute is unconstitutional. Lacking on-point
Oklahoma authority, but persuaded by out-of-state decisions resolving legal issues like
those at issue here, the Court finds that Plaintiff has not established that 85A O.S. § 43 is
clearly, palpably, and plainly inconsistent with Article 23, Section 7 of the Oklahoma
Constitution, and it therefore denies Plaintiff’s motion for summary judgment.
IV.

Request for Certification
Plaintiff requests, in the alternative, that the Court certify the constitutional question

outlined above to the Oklahoma Supreme Court. See Doc. 52, at 24–27. GMIC objects to
certification. See Doc. 56, at 18. Plaintiff has also filed a stand-alone Motion to Certify,
which GMIC has moved to strike. See Docs. 59–60.
The decision to certify a question of law to the Oklahoma Supreme Court rests in
this Court’s sound discretion. See Kan. Judicial Review v. Stout, 519 F.3d 1107, 1120 (10th
Cir. 2008). However, “[c]ertification is not to be routinely invoked whenever a federal
court is presented with an unsettled question of state law.” Colony Ins. Co. v. Burke, 698
F.3d 1222, 1235–36 (10th Cir. 2012) (brackets original) (internal quotation marks and
citation omitted). Thus, the Tenth Circuit has cautioned against certifying unless the

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question is “both unsettled and dispositive.” Stout, 519 F.3d at 1119 (internal quotation
marks and citation omitted); see also LaFever v. State Farm Mut. Auto. Ins. Co., No. CIV11-270-D, 2011 WL 3300670, at *1 (W.D. Okla. Aug. 1, 2011) (“[T]he decision of whether
to certify a legal question for decision by a state’s highest court requires an assessment of
whether the federal case involves sufficiently novel and determinative questions of state
law that certification is warranted. . . . [and] whether important state policy interests are
implicated.” (internal quotation marks and citations omitted)). “[W]here statutory
interpretation is at issue, the touchstone of our certification inquiry is whether the state
statute is readily susceptible of an interpretation that would avoid or substantially modify
the federal constitutional challenge to the statute.” Stout, 519 F.3d at 1119 (internal
quotation marks and citations omitted).
For the reasons stated in Section III, supra, the Court, in its sound discretion,
declines to certify this question. Accordingly, Plaintiff’s request for certification and
motion to certify (Doc. 59) are denied, and GMIC’s motion to strike (Doc. 60) is denied as
moot.
V.

Conclusion
For the reasons stated above, the Court does not find 85A O.S. § 43 unconstitutional

and so denies Plaintiff’s motion for summary judgment. The Court further declines to
certify this question; thus, Plaintiff’s request and separate motion to certify, along with
Defendant’s motion to strike, are denied.

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IT IS SO ORDERED this 7th day of August, 2019.

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