Alice Alline Newberry v. Allstate Insurance

Alice Alline Newberry v. Allstate Insurance
1998 OK CIV APP 139
963 P.2d 632
69 OBJ 3402
Case Number: 90808
Decided: 05/22/1998
Mandate Issued: 10/01/1998

ALICE ALLINE NEWBERRY, as Personal Representative of the ESTATE OF RAYMOND RAY NEWBERRY, Plaintiff/Appellant,
v.
ALLSTATE INSURANCE COMPANY, Defendant/Appellee.

APPEAL FROM THE DISTRICT COURT OF OKLAHOMA COUNTY, OKLAHOMA

HONORABLE EUGENE H. MATHEWS, DISTRICT JUDGE

AFFIRMED

Rex K. Travis, Oklahoma City, Oklahoma, For Plaintiff/Appellant,
George D. Davis, Richard J. Harris, Oklahoma City, Oklahoma, For Defendant/Appellee.

OPINION

CARL B. JONES, Vice-Chief Judge

¶1 The question presented in this uninsured motorist coverage case is whether a city-owned vehicle was an "uninsured motor vehicle" within the meaning of our UM statute,

¶2 Raymond Newberry was injured in August, 1995, when the car he was driving collided with one owned by the City of Oklahoma City [City] and driven by a City employee. His personal representative [hereafter Appellant] commenced an action against City to recover for property damage to Raymond's vehicle. That case was settled. Appellant then commenced this action against Defendant/Appellee Allstate Insurance Company [Allstate] to recover under the UM coverage in Allstate's policy. Allstate answered that the amount of Raymond's damages did not exceed the self-insured limit of City's liability.

¶3 The parties stipulated to the following facts: (1) City was a legally self-insured entity; (2) City waived sovereign immunity up to the limit imposed by Governmental Tort Claims Act,

¶4 Allstate argued that the City employee was not an uninsured motorist and the City-owned vehicle was not an uninsured motor vehicle under either the policy terms or state law. As stipulated, City is "lawfully self-insured" and that phrase is used in the policy as a limitation on the definition of what is an uninsured motor vehicle. The UM statute defines "uninsured motor vehicle" to include an insured motor vehicle, the liability limits of which are less than the amount of the claim of the person or persons making such claim, regardless of the amount of coverage of either of the parties in relation to each other." Allstate placed particular reliance on the recent decision by Division 4 of this Court inCarlos v. State Farm Mut. Auto. Ins. Co., 1996 OK CIV APP 158, 935 P.2d 1182. In that case, the question was whether the plaintiff could assert a claim against her UM coverage after a collision with a state-owned vehicle operated by an employee of the Oklahoma Department of Transportation. The court held she could not, because the amount of her claim was "undisputably less than the liability limits of section 154." Id., 1996 OK CIV APP 158 at ¶ -, 935 P.2d at 1185.

¶5 Appellant in her cross-motion relied onState Farm Auto. Ins. Co. v. Greer, 1989 OK 110, 777 P.2d 941. InGreer, the insurer brought an action for declaratory relief that a motor vehicle owned by Oklahoma State University was not an uninsured motor vehicle. The state Supreme Court, answering a certified question, held that language in a State Farm policy which excluded a vehicle owned by the government or one of its political subdivisions or agencies from the definition of uninsured motor vehicle was void and unenforceable as contrary to public policy. The court's reasoning is summed up in its concluding paragraph:

An insured must be allowed to look to the insurer when the liability limits of a negligent motorist prevent the insured from recovering fully from the injuries suffered. Allowing a provision such as the one before us to thwart that objective would be a major deviation from the 

Greer

¶6 Appellant also relied on a somewhat simplistic linguistic argument, that "uninsured" literally means "no insurance policy," and that, since City did not have an actual insurance policy, its vehicles were consequently uninsured. We reject that argument as unpersuasive, in light of the statutory provisions in the GTCA authorizing self-insurance by municipalities and providing a method for payment of judgments imposed upon self-insured governmental subdivisions. See

¶7 The pivotal undisputed fact in this case, just as it was inCarlos, is that the personal injury claim pressed against City was stipulated to be less than City's limit of liability. That fact distinguishes this case fromGreer, in which the court perceived the policy limitation as a barrier preventing the injured claimant from being fully compensated for her injuries. There is no like consideration here, because the parties have stipulated that Raymond's personal injury claim was worth only $15,000, and City's self-insured limit of liability under the GTCA was $100,000.

¶8 We therefore hold that Appellant was not entitled to recover from Allstate on the uninsured motorist coverage in the Allstate policy. The trial court judgment is affirmed.

¶9 AFFIRMED.

¶10 JOPLIN, P.J., and GARRETT, J., concur.