BARNES v. OKLAHOMA FARM BUREAU MUTUAL INS. CO.

BARNES v. OKLAHOMA FARM BUREAU MUTUAL INS. CO.
2000 OK 55
11 P.3d 162
71 OBJ 3219
Case Number: 89745
Decided: 07/18/2000
Modified: 01/16/2001
Mandate Issued: 10/25/2000
As Corrected: January 16, 2001 (72 OBJ 353)
Supreme Court of Oklahoma

JULIE BARNES, Plaintiff/Appellee, and MICHAEL BARNES, by and through his mother and next friend, JULIE BARNES, Plaintiff,
v.
OKLAHOMA FARM BUREAU MUTUAL INSURANCE COMPANY, Defendant/Appellant.

CERTIORARI TO THE COURT OF CIVIL APPEALS, DIVISION III
APPEAL FROM THE DISTRICT COURT OF OKLAHOMA COUNTY, STATE OF OKLAHOMA
HONORABLE BRYAN DIXON, TRIAL JUDGE

¶0 Insured sued insurer for underinsured (UIM) motorist benefits and breach of the implied duty of good faith and fair dealing. She was awarded the $15,000 UIM policy limits by summary judgment; a jury verdict awarded her $10,000 actual and $1.5 million punitive damages on her tort theory of liability; and the trial judge awarded her $300,000 in attorney fees. In this appeal insurer asserts errors relating to the tort theory of liability and attorney fee award. The Court of Civil Appeals affirmed in all respects. We affirm the judgment entered on the jury verdict, but reverse the attorney fee award and remand that matter to the trial court for further proceedings.

CERTIORARI PREVIOUSLY GRANTED;
COURT OF CIVIL APPEALS' OPINION VACATED;
TRIAL COURT JUDGMENT ON JURY VERDICT AFFIRMED;
TRIAL COURT JUDGMENT ON ATTORNEY FEES REVERSED AND
REMANDED TO TRIAL COURT FOR FURTHER PROCEEDINGS.

James A, Scimeca of Miller, Dollarhide, Dawson & Shaw and Joe E. White, Jr. of the White Law Firm, Oklahoma City, Oklahoma for Appellee.
Robert B. Mills, Stefan K. Doughty and Margaret K. Myers of Mills & Associates, P. C., Oklahoma City, Oklahoma for Appellant.

LAVENDER, J.

¶1 Appellee, Julie Barnes (Barnes or insured) sued appellant, Oklahoma Farm Bureau Mutual Insurance Company (insurer) in contract to recover underinsured motorist (UIM) benefits and in tort for breach of the implied duty to act in good faith and to deal fairly with her as its insured. The trial judge granted partial summary judgment to Barnes for the $15,000 UIM policy limits and that, by its actions, insurer had waived any claim to subrogation from the tortfeasor. A jury additionally awarded her $10,000 actual and $1.5 million punitive damages on the tort theory of liability, and the trial judge granted her $300,000 in attorney fees. In a prior appeal, the Court of Civil Appeals (COCA) affirmed the partial summary judgment. Barnes v. Oklahoma Farm Bureau Mut. Ins. Co. (Barnes I), 1993 OK CIV APP 168, 869 P.2d 852.1 In this appeal insurer asserts errors relating to the tort theory of liability and the attorney fee award. The COCA affirmed in all respects. We previously granted certiorari review.

¶2 We hold: 1) the jury was presented sufficient evidence to find insurer breached the implied duty of good faith and fair dealing; 2) the trial judge did not err by submitting the issue of punitive damages to the jury or in lifting the statutory cap on such damages; 3) the punitive damage award is not excessive; and 4) adherence to the American Rule regarding the recovery of attorney fees requires reversal of the trial judge's attorney fee award and remand of that issue to the trial court for further consideration. Accordingly, we affirm the judgment based on the jury verdict, but reverse the attorney fee award and remand that matter back to the trial court for further proceedings.

PART I. STANDARD OF REVIEW ON APPEAL.

¶3 The review standard regarding legal actions tried to a jury is:

In an action at law, a jury verdict is conclusive as to all disputed facts and all conflicting statements, and where there is any competent evidence reasonably tending to support the verdict of the jury, [an appellate court] will not disturb the jury's verdict or the trial court's judgment based thereon. Where such competent evidence exists, and no prejudicial errors are shown in the trial court's instructions to the jury or rulings on legal questions presented during trial, the verdict will not be disturbed on appeal. In an appeal from a case tried and decided by a jury an appellate court's duty is not to weigh the evidence and determine which side produced evidence of greater weight, i.e. it is not an appellate court's function to decide where the preponderance of the evidence lies - that job in our system of justice has been reposed in the jury. In a jury-tried case, it is the jury that acts as the exclusive arbiter of the credibility of the witnesses. Finally, the sufficiency of the evidence to sustain a judgment in an action of legal cognizance is determined by an appellate court in light of the evidence tending to support it, together with every reasonable inference deducible therefrom, rejecting all evidence adduced by the adverse party which conflicts with it. (citations omitted)2

 

Florafax Intern., Inc. v. GTE Market Resources, Inc.

¶4 Unlike the review standard as to factual questions, issues of law are reviewed de novo and an appellate court has plenary, independent and non-deferential authority to reexamine a trial court's legal rulings. State ex. rel. Jones v. Baggett,

PART II. FACTUAL AND PROCEDURAL BACKGROUND.

 

¶5 Barnes was injured in a head-on collision with another motorist in January 1991 [Barnes I,

¶6 By the end of August 1991 Barnes had incurred about $15,000 in medical bills. She also had lost wages over $10,000. A claim was made to recover UIM benefits from insurer and State Farm. In August she also sued Donaldson in tort and the two UIM insurers to recover under both policies. Believing its handling of her claim over the next several months was unreasonable, Barnes supplemented her petition to sue insurer for breach of the implied duty of good faith and fair dealing in March 1992.

¶7 In mid-1992 the trial judge granted partial summary judgment to Barnes for the $15,000 UIM policy limit and ruled insurer, by its actions, had waived its subrogation rights under 36 O. S. 1991, § 3636(E). However, she did not receive the $15,000 nor was she finally able to accept a $10,000 liability limit settlement offer from Donaldson and his liability carrier until Barnes I became final in 1994, i.e. until all avenues of appellate review concerning the partial summary judgment were exhausted by insurer. Barnes I was decided in October 1993 and certiorari review denied by this Court in February 1994.

¶8 That part of the suit for breach of the implied duty of good faith and fair dealing had been stayed pending resolution of the appeal in Barnes I. 869 P.2d at 853. After Barnes I, the case returned to the trial court and the tort theory of liability was tried to a jury in 1997. A main defense of insurer was: its handling of the UIM claim was reasonably based on its counsel's advice concerning the proper interpretation of § 3636(E) and, thus, its behavior in seeking a judicial forum to resolve what it supposedly considered a legitimate dispute as to the meaning of § 3636(E) could not be found tortious. Before jury submission, the trial judge lifted the cap on punitive damages, permissively allowing the jury to award punitive damages in an amount exceeding that awarded for actual damages. He also ruled the issue of whether Barnes was entitled to attorney fees, and the amount thereof, was subject to his post-verdict consideration and was not an issue for jury resolution and ascertainment as an item of damage recoverable as part of her tort theory of liability, as argued by insurer.

PART IIA. INSURER'S TREATMENT OF BARNES' UIM CLAIM.

¶9 Initially, Barnes' husband apparently attempted to deal with any insurance claim. Within weeks of the accident, however, she retained counsel to represent her. An adjustor with insurer understood by the end of February 1991 the matter might turn into an UIM claim and in August 1991, he concluded Donaldson's liability seemed clear, i.e. his negligence caused the accident. As set out in Barnes I [869 P.2d at 853], the collision occurred while Donaldson was driving left of the center-line. Further, though insurer itself failed to evaluate her claim to determine the complete extent of her injuries or damages and it never placed a total monetary value on the claim, insurer's counsel either conceded to Barnes' counsel, or agreed with him there was no serious question, her damages were, at least, $50,000 (i.e. at least the amount of all available insurance coverage) prior to the time Barnes supplemented her petition to sue for bad faith.

 

¶10 Instead of evaluating her claim to determine the complete extent of her injuries or damages or placing some reasonable value on the claim, insurer essentially took the following stance concerning Barnes' claim. In November 1991 insurer's counsel informed it Donaldson's liability carrier would offer Barnes his liability limits of $10,000 to settle the case on his behalf. Also, although in November insurer did inform Barnes' counsel it would tender the $15,000 UIM limit to Barnes, no check for $15,000 was actually issued until February 1992 and the check was never sent to Barnes or her attorney, but was retained by insurer's counsel. At least in part, the reason(s) the check was never actually sent to Barnes was because of the parties' "dispute" regarding who would be entitled to Donaldson's liability coverage if Barnes accepted the check and because, prior to the check's issuance, Barnes had given notice to insurer under § 3636(E) of a tentative settlement with Donaldson for his $10,000 liability limits. The "dispute" arose over insurer's contention, based on its counsel's advice, that once it paid $15,000 to Barnes, it, rather than her would be entitled to Donaldson's $10,000 in liability coverage via a right of subrogation.

¶11 Though multiple specific shortcomings were presented to support Barnes' position that insurer breached its duty of good faith and fair dealing (e.g. failure to properly investigate the UIM claim, failure to make swift/prompt payment and failure to pay undisputed amounts), a central focus of her claim was insurer's response to the § 3636(E) notice of a tentative settlement with Donaldson for his liability policy limits sent to both UIM insurers in December 1991. Subsection 3636(E)(2) requires that, within sixty (60) days of the notice's receipt a UIM carrier must either substitute its own payment for the tentative settlement amount - i.e. it must pay its insured the amount of the tentative settlement - or, be deemed to have waived any subrogation rights against the tortfeasor for any amount paid under the UIM coverage. Of course, if the UIM carrier substitutes, the insured would not finally accept the tentative settlement because the UIM carrier would have substituted its payment for that offered by the tortfeasor and his liability carrier. Further, upon proper substitution, in addition to protecting its subrogation rights for any benefits paid under the UIM coverage, § 3636(E)(2) expressly provides that the UIM carrier is also entitled to any ultimate recovery (by settlement or judgment) from the tortfeasor, to the extent of the payment made in substitution of the tentative settlement.

¶12 Again, based on its counsel's advice, instead of making a true substitution for the tentative settlement as intended by § 3636(E)(2), insurer did actually send to Barnes' counsel a draft for $10,000, but maintained said check was both a part of the $15,000 UIM coverage and a proper substitution for the tentative liability limits settlement, which it would be entitled to recover back from any of Donaldson's assets, including his liability policy. It further insisted it now owed her only $5,000 under the UIM coverage. The $10,000 draft was accompanied by a receipt and partial release Barnes was supposed to execute before negotiating the draft. This document released insurer from $10,000 of its UIM obligation and, in effect, prohibited her from settling with Donaldson. In other words, insurer clung to the position that once it paid Barnes either $15,000 or $10,000, it, rather than her, would reap the benefit of or have a rightful claim of entitlement to the $10,000 liability coverage and, in effect, its ultimate or actual UIM responsibility to her was only $5,000.

¶13 Barnes, with her counsel's advice, refused to execute the receipt and partial release given that her signature on it would basically acknowledge agreement with insurer's position. The $10,000 draft was also returned and her counsel demanded insurer pay the $15,000 in UIM coverage to her, and either substitute its own $10,000 payment for the tentative liability limits settlement with Donaldson or waive its subrogation rights - the latter which would have allowed Barnes to finally accept the $10,000 tentative settlement with Donaldson and his liability carrier.

¶14 Insurer would not waive its subrogation rights or alter its position that the $10,000 was both a proper substitution under § 3636(E) and a part of the $15,000 in UIM benefits it owed to Barnes, which $10,000 it, rather than her would be entitled to recover back from Donaldson's $10,000 in liability coverage. It also never actually tendered to Barnes the additional $5,000 in UIM benefits. In effect, insurer's stance prevented settlement with Donaldson for his liability limits - in fact, the evidence was unquestionably sufficient to show insurer's express purpose was to block Barnes' attempt to settle with Donaldson for his liability limits because insurer claimed entitlement to the liability coverage once it paid either $10,000 or $15,000 to her. Insurer's stance also prevented any final resolution of the UIM claim and required the "dispute" between it and Barnes to be litigated.

 

¶15 Insurer insisted on litigating its purported "dispute" with Barnes even though the evidence was plainly sufficient to show any reasonable evaluation of her claim would have been, at least, $50,000 - i.e. the combined limits of Donaldson's liability policy and the two UIM policies, and that insurer and/or its counsel either knew this or would have known it had a reasonable evaluation been made of her claim. Further, insurer's claim of entitlement to Donaldson's liability coverage was taken even though it knew Barnes' special damages alone equaled or exceeded $25,000 (i.e. Donaldson's liability limit plus insurer's UIM limit) and insurer did not claim entitlement to any credit or reduction as to its UIM liability by virtue of the coverage provided by the other UIM insurer, State Farm.

¶16 The response of State Farm - the other UIM carrier - to the § 3636(E) notice was unlike insurer's response. Having evaluated her claim to be, at least, $50,000, State Farm merely paid its UIM limit of $25,000, without claiming entitlement to recover part of the payment back from Donaldson's $10,000 in liability coverage. Further, concluding Donaldson had no assets other than the liability policy, State Farm decided not to substitute its own $10,000 payment for the tentative settlement - instead waiving any subrogation rights as to its $25,000 UIM payment to Barnes.

¶17 As explained in more detail in PART III, infra, the advice insurer received from its counsel as to how to handle Barnes' UIM claim was patently unreasonable; it was contrary to the dictates of § 3636; it conflicted with then existing jurisprudential authority; and directly conflicted with an express provision of the insurance policy insurer issued to Barnes and her husband. Further, evidence was submitted sufficient to support a finding no attorneys that represented insurer in UM/UIM matters other than the counsel that represented it in the Barnes' case gave the same advice to it concerning the "interpretation" of § 3636 it adopted in the Barnes' case and, in fact, all other lawyers representing insurer in UM/UIM matters disagreed with the "interpretation" so adopted. The evidence was also sufficient to show any reasonable insurer would have understood that underinsurance under Oklahoma law provides coverage to an insured when the tortfeasor's liability coverage is insufficient to compensate the insured for injuries suffered and that Barnes was entitled to both the $15,000 in UIM coverage and the $10,000 from Donaldson's liability coverage [or its substituted equivalent from insurer under § 3636(E)].

¶18 The evidence also warranted findings insurer was merely using a baseless argument concerning "interpretation" of § 3636(E) in an attempt to gain a tactical advantage in settlement negotiations with Barnes concerning her UIM claim and that one or more officials with insurer understood it was not making a true substitution under § 3636(E), but attempting to argue it could retain its subrogation rights anyway. The evidence also sufficiently showed that no reasonable insurer could have understood the $10,000 draft sent to Barnes could be considered both a true substitution under § 3636(E) for the tentative settlement and a part of the UIM coverage it owed to Barnes; but that any reasonable insurer would have understood the advice of its counsel was nothing other than a feigned/artificial attempt to reduce or take a credit against its UIM limit of liability based upon the liability coverage of the tortfeasor, Donaldson.

¶19 With Barnes the attempt to gain a tactical advantage in settlement negotiations was ultimately unsuccessful; although, as previously noted, she did not actually receive the $15,000 in UIM benefits nor was she allowed to finally settle with Donaldson for his $10,000 in liability coverage until 1994, i.e. until insurer had exhausted all avenues of appeal concerning Barnes I. However, evidence was submitted sufficient to show that insurer's treatment of Barnes was not an isolated incident, but that insurer, by and through its counsel, had used the same or similar unreasonable tactic with other UIM insureds repeatedly, i.e. relying on an unfounded claim to the tortfeasor's liability coverage in an attempt to settle disputes with its UIM insureds for less than they were rightfully owed under their UIM coverage.

 

PART III. THE ADVICE INSURER RECEIVED FROM ITS COUNSEL WAS UNTENABLE AND THE JURY WAS ENTITLED TO FIND INSURER DID NOT HAVE A REASONABLE/GOOD FAITH BELIEF IN THAT ADVICE.

¶20 As already stated, a main defense of insurer was: it allegedly reasonably relied on its counsel's advice concerning the proper interpretation of § 3636(E) and, thus, its behavior in seeking a judicial forum to resolve, what it supposedly considered, a legitimate dispute could not be considered bad faith. The legitimate dispute defense is grounded in the following passage from Christian v. American Home Assur. Co., 1977 OK 141, 577 P.2d 899, 904-905:8

 

We do not hold that an insurer who resists and litigates a claim made by its insured does so at its peril that if it loses the suit or suffers a judgment against it for a larger amount than it had offered in payment, it will be held to have breached its duty to act fairly and in good faith and thus be liable in tort.

We recognize that there can be disagreements between insurer and insured on a variety of matters such as insurable interest, extent of coverage, cause of loss, amount of loss, or breach of policy conditions. Resort to a judicial forum is not per se bad faith or unfair dealing on the part of the insurer regardless of the outcome of the suit. Rather, tort liability may be imposed only where there is a clear showing that the insurer unreasonably, and in bad faith, withholds payment of the claim of its insured.

Insurer claims a reasonable basis for its actions and, under Oklahoma law, bad faith cannot exist if an insurer's conduct was reasonable under the circumstances. See Manis v. Hartford Fire Ins. Co.,

¶21 Although we agree a decision to withhold or delay payment, if based on a legitimate dispute or reasonable justification (legal or factual) cannot form the basis of bad faith tort liability - and in such a situation an insurer does not act at its peril in seeking judicial resolution of the dispute - the corollary of this recognition is that, a claim must be promptly paid unless the insurer has a reasonable belief the claim is either legally or factually insufficient. Buzzard, supra,

 

¶22 Title 36 O. S. 1991, § 3636 mandates uninsured motorist coverage be offered in every insurance policy insuring a vehicle unless waived by the insured. Buzzard, supra,

For the purposes of this coverage the term "uninsured motor vehicle" shall also 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.

¶23 Eighteen (18) months before Barnes' accident this Court expressed the meaning of § 3636(C) in the following language: "[a]n insured must be allowed to look to [her UIM] insurer when the liability limits of the negligent motorist prevent the insured from recovering fully [for] the injuries suffered." State Farm Auto. Ins. Co. v. Greer,

 

¶24 A review of § 3636(E) also reveals the patent unreasonableness of counsel's advice. That provision - in plain, explicit and unambiguous language - forecloses an UIM insurer from doing what insurer attempted to do to Barnes. It provides:

E. In the event of payment to any person under the coverage required by this section and subject to the terms and conditions of such coverage, the insurer making such payment shall, to the extent thereof, be entitled to the proceeds of any settlement or judgment resulting from the exercise of any rights of recovery of such person against any person or organization legally responsible for the bodily injury for which such payment is made, including the proceeds recoverable from the assets of the insolvent insurer. Provided, however, with respect to payments made by reason of the coverage described in subsection C of this section, the insurer making such payment shall not be entitled to any right of recovery against such tort-feasor in excess of the proceeds recovered from the assets of the insolvent insurer of said tort-feasor. Provided further, that any payment made by the insured tort-feasor shall not reduce or be a credit against the total liability limits as provided in the insured's own uninsured motorist coverage. Provided further, that if a tentative agreement to settle for liability limits has been reached with an insured tort-feasor, written notice shall be given by certified mail to the uninsured motorist coverage insurer by its insured. Such written notice shall include:

1. Written documentation of pecuniary losses incurred, including copies of all medical bills; and

2. Written authorization or a court order to obtain reports from all employers and medical providers. Within sixty (60) days of receipt of this written notice, the uninsured motorist coverage insurer may substitute its payment to the insured for the tentative settlement amount. The uninsured motorist coverage insurer shall then be entitled to the insured's right of recovery to the extent of such payment and any settlement under the uninsured motorist coverage. If the uninsured motorist coverage insurer fails to pay the insured the amount of the tentative tort settlement within sixty (60) days, the uninsured motorist coverage insurer has no right to the proceeds of any settlement or judgment, as provided herein, for any amount paid under the uninsured motorist coverage. (emphasis added)

Although never really set forth in any of its briefs in this appeal, in essence, insurer argued below that because the first sentence of § 3636(E) provides that: "[i]n the event of payment to any person [of UIM] coverage . . . [an] insurer making such payment shall . . . be entitled to the proceeds of any settlement or judgment resulting from the exercise of any rights of recovery of such person against any person or organization legally responsible for the bodily injury for which such payment is made []", there was a reasonable argument that upon its payment of either $15,000 or $10,000 to Barnes, it was entitled to or had some rightful claim to Donaldson's $10,000 liability limits. This argument is manifestly untenable.

¶25 The goal of statutory interpretation is to discern legislative intent. Neer v. Oklahoma Tax Com'n,

¶26 To understand § 3636(E) one cannot merely take out of context one sentence or part of a sentence, but the provision must be read in its entirety, including the other portions of § 3636(E) we have highlighted. When one does this it is unmistakable the highlighted portion of the first sentence of § 3636(E) cannot provide a basis, in this case, for insurer's claim to Donaldson's liability coverage.

¶27 Firstly, we note that Barnes could not merely accept the settlement offer made by Donaldson and his liability carrier for his $10,000 liability limits and give a general release therefor, because if she had she would have run the risk of forfeiting her own UIM coverage with insurer. This is so because this Court ruled in Porter v. MFA Mut. Ins. Co.,

¶28 To protect its subrogation right(s) once notified of a tentative liability limits settlement, a UIM carrier must "substitute its payment to the insured for the tentative settlement amount" and "then [it will] be entitled to the insured's right of recovery to the extent of such payment and any settlement under the [UIM] coverage." § 3636(E)(2)(emphasis added). If no substitution is made the UIM "insurer has no right to the proceeds of any settlement or judgment, as provided herein, for any amount paid under the [UIM] coverage." § 3636(E)(2).

¶29 It is unmistakable from reading § 3636(E)(2) that a substituted payment for the tentative settlement being offered by Donaldson could not conceivably also be considered as a payment under the UIM coverage, the position taken by insurer. It is also unmistakable that a substitution for a tentative liability limits settlement offer, in order to protect the UIM carrier's subrogation rights, does not relieve the UIM carrier of its responsibility to pay to its insured the full amount of underinsurance coverage when a reasonable evaluation of the insured's injuries/damages equal or exceed the limits of both the tortfeasor's liability coverage and the UIM coverage. As the COCA correctly noted in Barnes I, "[a]lthough [insurer's] 'exposure' in this case is $25,000 if it had properly substituted Donaldson's [tentative] settlement, insurer would have been subrogated to Barnes' right to $10,000 and would only pay out the amount that it had contracted with Barnes to provide[,]" i.e. $15,000 - the latter amount also subject to potential recoupment by the UIM insurer from any available assets of the tortfeasor.

¶30 Not only was counsel's "interpretation" at odds with the unambiguous language of § 3636(E)(2), it was contrary to the proviso immediately preceding the substitution provisions of § 3636(E): "that any payment made by the insured tort-feasor shall not reduce or be a credit against the total liability limits as provided in the insured's own [UIM] coverage[]" and a provision of the policy it issued to Barnes stating: "[a]ny payment made by or on behalf of [an underinsured motorist] shall not reduce or be a credit against our [UIM] limit of liability." (emphasis added).

¶31 In a tort case against an insurer for breach of the implied duty of good faith and fair dealing (i.e. for bad faith) it is the unreasonableness of the insurer's actions that is the essence of the tort. Conti v. Republic Underwriters Ins. Co.,

[I]t is simply not enough for the carrier to say it relied on advice of counsel, however unfounded, and then expect that valid claims for coverage can be denied with impunity pursuant to such advice. The advice of counsel is but one factor to be considered in deciding whether the carrier's reason for denying a claim was arguably reasonable. We believe that where, through verbal sleight of hand, the advising attorney concocts an imagined loophole in a policy whose plain language extends coverage, such advice is heeded at the carrier's risk.

Szumigala v. Nationwide Mutual Ins. Co.

¶32 The ultimate question is whether sufficient evidence was presented to show insurer's purported reliance on its attorney's advice was unreasonable. We think so. The evidence warranted findings counsel's advice was wholly unfounded; it was contrary to the unmistakable meaning of the relevant provision(s) of § 3636; it was at odds with existing case law recognizing the legislative intent behind underinsurance coverage; it was inconsistent with a provision of the insurance policy issued to Barnes; and was nothing other than verbal sleight of hand. Sufficient evidence was presented to show insurer could not have had a good faith/reasonable belief that its counsel's advice was reasonable or provided a legitimate basis for its treatment of Barnes' UIM claim. Instead, the jury was entitled to conclude insurer was unreasonably attempting to reduce or take a credit against its own UIM responsibility for the amount Donaldson was offering to pay to Barnes, while at the same time arguing it could protect its subrogation rights against him without compliance with the unambiguous relevant terms of § 3636(E).

¶33 In effect, insurer never really offered to pay Barnes any more than $5,000 in UIM coverage. As stated in Barnes I [869 P.2d at 855]:

The tendered $10,000.00 was not a "substitution" of Donaldson's insurer's settlement [offer] but a tender of only a portion of the [UIM] benefits which Barnes was due. Under [insurer's] rationale, [it] would tender $15,000.00 to Barnes and [] would receive Donaldson's $10,000.00 in liability benefits, making [its] net payment [only] $5,000.00. Or [insurer] could tender $10,000.00 to Barnes in "substitution" of Donaldson's $10,000.00 settlement [offer], and [it] would have full subrogation against Donaldson for $10,000.00. Under this last scenario, [insurer] would tender only $5,000.00 which would be its UIM limit after the $10,000.00 "substitution". In either case, all [insurer] really offered Barnes was $5,000.00 of her contracted coverage, $15,000.00.

Insurer's actions forced Barnes into approximately two years of unnecessary litigation concerning her UIM claim, even though any reasonable evaluation of her injuries/damages would have shown her entitlement to the full amount of UIM coverage from insurer and the $10,000 from Donaldson's liability limits settlement offer [or its equivalent from insurer under § 3636(E)] . The bottom line here is: the jury had before it sufficient evidence to find insurer's treatment of Barnes' UIM claim was patently unreasonable; at a minimum, insurer acted in reckless disregard of its duty of good faith and fair dealing toward her; and its actions were taken in a bad faith attempt to delay or withhold the rightful insurance benefits to which she was entitled.

PART IV. WE CAN FIND NO ERROR IN THE TRIAL JUDGE'S DECISIONS TO SUBMIT THE ISSUE OF PUNITIVE DAMAGES TO THE JURY OR TO LIFT THE CAP ON SUCH DAMAGES.

¶34 This Court has recognized the availability of punitive damages in a bad faith case is not automatic, but is governed by the standard applicable in other tort cases. Buzzard, supra,

A. In any action for the breach of an obligation not arising from contract, where the defendant has been guilty of conduct evincing a wanton or reckless disregard for the rights of another, oppression, fraud or malice, actual or presumed, the jury, in addition to the actual damages, may give damages for the sake of example, and by way of punishing the defendant, in an amount not exceeding the amount of actual damages awarded. Provided, however, if at the conclusion of the evidence and prior to the submission of the case to the jury, the court shall find, on the record and out of the presence of the jury, that there is clear and convincing evidence that the defendant is guilty of conduct evincing a wanton or reckless disregard for the rights of another, oppression, fraud or malice, actual or presumed, then the jury may give damages for the sake of example, and by way of punishing the defendant, and the percentage limitation on such damages set forth in this section shall not apply.

B. The provisions of this section shall be strictly construed.

Section 9 provides two levels for an award of punitive damages. Sides v. John Cordes, Inc.,

¶35 Insurer challenges both the trial judge's decision to submit the punitive damage issue to the jury at all and to allow the jury to award such damages in an uncapped amount based on his determination there was clear and convincing evidence of, at least, one of the enumerated factors specified in § 9. We have already set out much of the evidence supporting the trial court's determination to submit the issue of punitive damages to the jury in PART II, supra. In PART III, supra, we have explained why the advice insurer was receiving from its counsel was utterly untenable and could not have been reasonably relied on by insurer. No purpose would be served by repeating these matters here.

¶36 It is quite clear from our recitation and analysis above, the trial judge had before him evidence that warranted findings insurer had no actual defense to Barnes' UIM claim; its assertion of a rightful claim to Donaldson's liability coverage was not based on any reasonable or legitimate ground, but was merely a feigned or contrived attempt to gain some advantage in regard to settling Barnes' UIM claim; and insurer's unreasonable treatment of Barnes was not an isolated incident, but the same or similar tactic was used by insurer repeatedly with other insureds. Our review of the record convinces us there was clear and convincing evidence supporting a determination, at a minimum, insurer acted in reckless disregard for the rights of Barnes and a finding of a complete indifference to its duty to treat her UIM claim fairly.

PART V. THE PUNITIVE DAMAGE AWARD IS NOT EXCESSIVE.

¶37 Insurer also challenges on appeal the purported excessiveness of the $1.5 million punitive damage award assessed by the jury. The COCA did not reach the issue on the ostensible bases insurer failed to raise the issue below and it was, therefore, not preserved for appellate review. In effect, the COCA determined insurer failed to preserve the excessiveness issue for appellate review because insurer could have, and should have, raised the excessiveness issue by virtue of a motion for new trial under 12 O. S. 1991, § 651(Fourth)(excessive damages appearing to have been given under the influence of passion or prejudice) or by virtue of a motion for remittitur.

¶38 Title 12 O. S. 1991, § 991(a) provides in pertinent part that "[t]he right of a party to perfect an appeal from a judgment, order or decree of the trial court to the Supreme Court shall not be conditioned upon his having filed in the trial court a motion for new trial . . ." Before passage of § 991(a) in 1968 [1968 Okla. Sess. Law, Ch. 395, § 1], in order for a party to preserve for appellate review an issue relating to a judgment or final order, the party was required to file a motion for new trial in the trial court. See Stokes v. State,

¶39 Here, insurer's excessiveness issue essentially challenges the sufficiency of the evidence to support a $1.5 million punitive damage verdict and, in our view, such challenge was preserved because insurer at all appropriate times challenged the propriety of submitting, for the jury's consideration, the issue of punitive damages. Insurer demurred to Barnes' evidence on the issue of punitive damages at the close of her case in chief and the trial judge overruled the demurrer. Insurer also asked for a directed verdict and objected to lifting the cap on punitive damages at the close of all the evidence. The trial judge denied the directed verdict quest and, as discussed in PART IV in the text, the trial judge lifted the cap on punitive damages. Finally, insurer objected to submitting the issue of punitive damages to the jury by virtue of its objection to Trial Court Jury Instruction No. 18, the punitive damage instruction, which permissively allowed the jury to award punitive damages in an amount exceeding actual damages.

¶40 Even though we determine the issue was properly preserved and is subject to appellate review, in our opinion, no valid reason has been put forward by insurer to reverse or modify downward the amount of punitive damages awarded by the jury. Punitive damages are allowed for the benefit of society as punishment. Chandler v. Denton,

¶41 As to the amount of punitive damages - if any was allowed by the jury - Instruction No. 18 guided the jury's discretion by setting out the factors specified in Oklahoma Uniform Jury Instructions (OUJI), Civil, Instruction No. 5.5. The factors were: the harm caused or likely to be caused by insurer's conduct; the degree of wrongfulness of the conduct; how long the conduct lasted and whether it was likely to continue; whether insurer engaged in other similar conduct and, if so, how often; insurer's awareness of its conduct and its consequences, and whether it attempted to conceal the conduct; whether insurer benefitted from the conduct and, if so, whether the benefit should be taken away; the need to discourage others from similar conduct; and the financial resources of insurer. Insurer does not challenge on appeal the substantive correctness of Instruction No. 18 in regard to such factors. Nor, in our view, has insurer shown that the jury was motivated in its assessment of the proper amount of punitive damages by passion, prejudice or improper sympathy.

¶42 As we have already detailed in previous parts of this opinion, insurer's handling of Barnes' UIM claim was patently unreasonable and the jury was entitled to find insurer had absolutely no valid defense to her claim. It was proper for the jury to conclude insurer's handling of her claim was wholly reckless and exhibited a complete indifference to its duty to treat the UIM claim fairly. The evidence sufficiently showed any reasonable insurer would have understood that Barnes was entitled to both the $15,000 in UIM coverage and the $10,000 from Donaldson's liability coverage [or its substituted equivalent from insurer under § 3636(E)]. Yet, insurer unreasonably deprived Barnes of these benefits for an extended period of time and it forced her to litigate her entitlement to the full $25,000 based on an untenable argument insurer had some valid claim to Donaldson's liability coverage.

¶43 The jury was also entitled to find insurer was merely using a purported "interpretation" of § 3636(E) as a ploy to gain a tactical advantage in settlement negotiations with Barnes concerning her UIM claim and that one or more officials with insurer understood it was not making a true substitution under § 3636(E). The evidence also supported a finding any reasonable insurer would have understood the advice of its counsel was nothing other than a feigned/artificial attempt to reduce or take a credit against its UIM limit of liability based upon the liability coverage of the tortfeasor, Donaldson. The jury was also entitled to find that insurer's treatment of Barnes was not an isolated incident, but that insurer, by and through its counsel, had used the same or similar unreasonable tactic with other UIM insureds repeatedly, i.e. relying on an unfounded claim to the tortfeasor's liability coverage in an attempt to settle disputes with its UIM insureds for less than they were rightfully owed under their UIM coverage. There was also evidence presented concerning the financial wealth/resources of insurer.

¶44 In light of the evidence presented in this record, we simply cannot say a $1.5 million punitive damage award is somehow grossly excessive or the result of passion, prejudice or improper sympathy. To rule otherwise would merely be an improper replacement of our verdict for that given by the jury, something we are not willing or warranted in doing. Accordingly, we uphold the punitive damage award and determine insurer's claim of excessiveness is without merit.

PART VI. ADHERENCE TO THE AMERICAN RULE REGARDING THE RECOVERY OF ATTORNEY FEES REQUIRES REVERSAL OF THE TRIAL JUDGE'S ATTORNEY FEE AWARD AND REMAND OF THAT ISSUE TO THE TRIAL COURT FOR FURTHER CONSIDERATION.

¶45 As set out in PART II, supra, the trial judge ruled the issue of whether Barnes was entitled to attorney fees, and the amount thereof, was subject to his post-verdict consideration and was not an issue for jury resolution and ascertainment as an item of damage recoverable as part of her tort theory of liability. After the jury trial was concluded Barnes moved for the recovery of attorney fees and the trial judge, after considering the parties' legal arguments and holding an evidentiary hearing, determined she was entitled to attorney fees in the amount of $300,000. Relying on Brashier v. Farmers Ins. Co., Inc.

¶46 In Oklahoma, the right of a litigant to recover attorney fees is governed by the American Rule. TRW/Reda Pump v. Brewington,

¶47 Brashier, like the present case, involved a suit by an insured against his UM carrier for breach of the implied duty of good faith and fair dealing. 925 P.2d at 23. One of the issues in Brashier was whether, as victor against his UM carrier for bad faith refusal to pay an insurance loss, the insured was entitled to recover a counsel fee. Id. at 22. This Court held even though a statute [36 O. S. 1991, § 3629(B)] expressly disallows recovery of counsel fees by the prevailing party in an action to enforce UM coverage, such disallowance did not foreclose an insured from the recovery of counsel fees as an element of the insured's damage recovery for insurer's bad faith refusal to pay the claim. 925 P.2d at 23-25, 27. Section 3629(B) allows for the recovery of attorney fees in insurance-related litigation in the following language:

B. It shall be the duty of the insurer, receiving a proof of loss, to submit a written offer of settlement or rejection of the claim to the insured within ninety (90) days of receipt of that proof of loss. Upon a judgment rendered to either party, costs and attorney fees shall be allowable to the prevailing party. For purposes of this section, the prevailing party is the insurer in those cases where judgment does not exceed written offer of settlement. In all other judgments the insured shall be the prevailing party. If the insured is the prevailing party, the court in rendering judgment shall add interest on the verdict at the rate of fifteen percent (15%) per year from the date the loss was payable pursuant to the provisions of the contract to the date of the verdict. This provision shall not apply to uninsured motorist coverage. (emphasis added)

As can be readily seen by the bolded language, § 3629(B) excludes uninsured motorist litigation from its ambit.

¶48 Notwithstanding the exclusion, Brashier relied on Christian, supra to hold that attorney fees were a part of the common law damages an insured was entitled to recover when such fees were incurred or caused by the insurer's bad faith withholding of the policy benefits. See Brashier, 925 P.2d at 24. Brashier misinterpreted and misapplied Christian. In Christian the insured was a participant in a group disability policy. 577 P.2d at 900. He sustained an injury leaving him permanently and totally disabled. Id. He made claim under the disability policy with the insurer, but the insurer refused to pay him any benefits under the policy. Id. Insured sued the insurer in contract to recover the maximum amount of benefits due under the policy in the District Court of Garvin County. Id. Although insurer refused to pay the disability claim and fully litigated the contract action, it became apparent during trial that insurer did not have, and had never had, a defense to its insured's claim. Id. The insured won a judgment for the maximum policy benefits, plus interest. Id. The insured then sued insurer in the District Court of Oklahoma County seeking to impose liability on insurer for its bad faith refusal to pay his valid disability claim. Id. Part of the damages he sought in the Oklahoma County case were the attorney fees he expended in prosecuting the Garvin County action. Id. In other words, the attorney fees purportedly caused by the insurer's bad faith refusal to pay his disability claim.

¶49 Although in Christian the attorney fees expended in prosecuting the Garvin County action were sought by the insured as part of the damages purportedly caused by the insurer's bad faith refusal to pay his disability claim, this Court did not approve their recovery as an element of damage caused by the refusal to pay the disability claim. What Christian held was that the attorney fees the insured expended in prosecuting the Garvin County action were potentially recoverable from the insurance company - as a recognized equitable exception to the American Rule - if the trial court in the second action brought on a tort theory of recovery found the insurance company had engaged in litigation misconduct in the Garvin County action. Christian, supra,

¶50 Christian cited to City National Bank & Trust Co. v. Owens,

 

¶51 To the extent Brashier held attorney fees were recoverable by a UM/UIM insured against his/her insurance company as an element of the insured's damage recovery for a bad faith refusal to pay a claim, it is quite plain that Brashier misinterpreted Christian and went beyond the explicit holding of the Christian court. Brashier so held without mentioning or discussing the firm establishment of the American Rule in Oklahoma. If we were to follow Brashier here we would be led to the conclusion that, as a common law element of the damages caused by the tort, the determination of the recoverable fees must be made by the trier of fact, i.e. by the jury, unless the parties stipulate otherwise. Such is the case because 12 O. S. 1991, § 556 provides:

Issues of law must be tried by the court, unless referred. Issues of fact arising in actions for the recovery of money, or of specific real or personal property, shall be tried by a jury, unless a jury trial is waived, or a reference be ordered, as hereinafter provided. (emphasis added)

Obviously, the instant matter was a law action for the recovery of money. However, we cannot continue to follow Brashier because, as we have explained above, Brashier failed to follow the holding of Christian as to the potentiality for the recovery of attorney fees - i.e. an inherent equitable exception to the American Rule for bad faith, vexatious, wanton or oppressive litigation misconduct. Further, Brashier mistakenly interpreted the import of Christian to allow the recovery of attorney fees as part of the common law damages an insured was entitled to recover on the basis such fees were incurred or caused by the insurer's bad faith withholding of the policy benefits. Instead, we decide that Brashier should be and is overruled to the extent it improperly deviated from the American Rule.

¶52 Although there are situations where a plaintiff may be able to recover attorney fees as part of his/her damages in either a contract or tort claim, neither the situation existent in Brashier nor the instant matter is one of them. The easiest understood example of when attorney fees are recoverable as damages is where an attorney sues his client to recover a reasonable attorney fee for services rendered when the client refuses to pay. See Wolfe v. Campbell,

¶53 Yet another example is where the wrongful acts of the defendant have involved the plaintiff in litigation with others, or have placed him in such relation with others as to make it necessary for him to incur attorney fees to protect his interests, attorney fees being recoverable in such cases as one of the elements of damages flowing from the original wrongful act of the defendant. Griffin v. Bredouw,

¶54 The situation in Brashier - as the situation in the present Barnes' matter - is unlike that dealt with by this Court in Wolfe, Timmons and Griffin. Obviously, Wolfe is distinguishable. Neither Brashier nor the instant matter involve a suit by an attorney to recover fees from a client for services rendered. Timmons is inapplicable because there a contractual duty existed to provide a defense to suits brought against the insured for the insured's liability to third parties, which was wrongfully withheld by the insurance company - i.e. the insurance company had a contractual duty to provide its insured with legal counsel when the insured was sued by his passengers. In Brashier and in the present case we are not dealing with the wrongful or tortious withholding of legal counsel in violation of contractual duty, but with the wrongful withholding of the monetary policy benefits. Finally, Griffin is distinguishable because neither in Brashier nor Barnes is there any claim that the conduct of the insurer involved the insured in litigation with others, or placed either in such relation with others as to make it necessary to incur attorney fees to protect their interests.

¶55 In our view, to continue along the path seemingly charted by Brashier would be to undermine the firm establishment of the American Rule in Oklahoma without a solid rationale or stable foundation. It would also improperly expand those damages historically recognized as recoverable in both contract and tort cases. In short, we can no longer sanction the teaching of Brashier and remain true to the American Rule principle that attorney fees, with certain limited exceptions, are not recoverable in the absence of contractual provision or specific statutory authority allowing their recovery. If attorney fees are to be recoverable in UM/UIM litigation brought by an insured against his/her insurer, like that brought here by Barnes, in our view, it is the Legislature that must authorize such a course, as it has done for other types of insurer/insured litigation in § 3629(B).

 

¶56 In that we have decided to no longer follow Brashier because it represents an incorrect exposition of Oklahoma law as to the recovery of attorney fees in this type of case and Brashier does support insurer's claim that error occurred by virtue of the trial judge deciding the attorney fee question, rather than submitting the issue to the jury as a recoverable item of damage under insured's claim for bad faith, we must reverse the attorney fee award of the trial judge. However, because Barnes did not have the benefit of our ruling in this case when fashioning her attorney fee quest in the trial court, we remand to the trial court to give her an opportunity to apply for fees under a recognized exception to the American Rule. As both Christian and Owens recognized, one such exception is, where an opponent engages in bad faith, wanton or oppressive litigation misconduct, a trial court, in the exercise of its inherent equitable power, may award attorney fees. Whether Barnes can prove herself entitled to such fees under the Owens exception will be a question for the trial court upon proper presentation of pleadings and proof. See Christian, supra, 577 P.2d at 906.

 

PART VII. CONCLUSION.

¶57 In summary, the jury was presented sufficient evidence to find insurer breached the implied duty of good faith and fair dealing. Further, the trial judge did not err by submitting the issue of punitive damages to the jury or in lifting the statutory cap on such damages. Insurer's appellate assertion the punitive damage award is excessive was preserved for appellate review; however, insurer has failed to show the punitive damage award of the jury is excessive. Finally, the award of attorney fees to Barnes must be reversed and remanded to the trial court to afford Barnes the opportunity to apply for fees under a recognized exception to the American Rule.

¶58 Accordingly, the Court of Civil Appeals' Opinion is VACATED; the trial court judgment on jury verdict is AFFIRMED; and the trial court judgment on attorney fees

is REVERSED and REMANDED to the trial court for further proceedings.

¶59 SUMMERS, C.J., HODGES, LAVENDER, KAUGER, WATT, BOUDREAU and WINCHESTER, JJ., concur.

¶60 OPALA, J., dissents.

¶61 HARGRAVE, V.C.J., disqualified.

FOOTNOTES

1We note that the partial summary judgment ruling of the trial court was certified as a final judgment for immediate appeal pursuant to 12 O. S. 1991, § 1006. See now 12 O. S. Supp. 1999, § 994.

2Evidence may be direct or circumstantial. Direct evidence is that which may persuade the fact finder of the existence of a fact without the necessity of drawing any inferences therefrom. Sides v. John Cordes, Inc., 1999 OK 36, ¶ 14 f. n. 14, 981 P.2d 301. Circumstantial evidence is that from which inferences must be drawn in determining the existence of a disputed fact. Id.

3The factual matters in our discussion (unless otherwise indicated) are based on evidence submitted at trial. As set out in PART I, STANDARD OF REVIEW, an appellate court in a law action decides whether there is sufficient evidence to sustain a judgment in light of the evidence tending to support it, together with all reasonable inferences deducible therefrom, rejecting evidence of the adverse party which conflicts with it. Park v. Security Bank and Trust Company, 1973 OK 72, 512 P.2d 113, 118. Our evidentiary recitation conforms to this standard. Further, to the extent Oklahoma Farm Bureau Mutual Insurance Company (insurer) questions in its appellate submissions the credibility of certain witnesses, these credibility questions were for the jury to unravel, not this Court, as PART I makes clear.

4Julie Barnes' (Barnes or insured) minor son was also injured in the collision. Any claim regarding him was apparently settled [Barnes v. Oklahoma Farm Bureau Mut. Ins. Co. (Barnes I), 1993 OK CIV APP 168, 869 P.2d 852, 853 f. n. 2], and although a party to the suit in the trial court, no claim of his is involved in this appeal.

5As will become apparent, to a large extent insurer acted through its counsel in handling the underinsured motorist (UIM) claim and, as noted in the text, a main defense was reliance on counsel's advice. Thus, sometimes when we refer to insurer we are referring either to insurer directly or as acting by and through its counsel. Even if breach of the implied duty of good faith and fair dealing was, in part, due to actions of its counsel, rather than acts or omissions on its part directly, insurer would still be subject to liability. We ruled over seventeen (17) years ago that an insurer could not avoid liability for breach of the duty of good faith and fair dealing by delegating its responsibility to an independent contractor. Timmons v. Royal Globe Ins. Co., 1982 OK 97, 653 P.2d 907, 914. In short, the duty owed to the insured is nondelegable.

6In its appellate submissions insurer repeatedly asserts the inappropriateness of holding it in bad faith because it offered to pay Barnes $15,000 in UIM coverage, which she refused to accept. Although insurer tried to show and argue before the jury that such was the case, the jury obviously rejected its arguments in such regard. As we view the record, competent evidence (or reasonable inference deducible therefrom) was submitted to show insurer's initial offer to pay $15,000 was tied to its assertion that once Barnes accepted, insurer would be entitled to the tortfeasor's liability coverage. Furthermore, as set out in the text, insurer never sent a $15,000 check to Barnes or her counsel and the evidence supports a finding part of the reason it did not was because of its unreasonable position in response to the 36 O. S. 1991, § 3636(E) notice that a $10,000 payment by it to Barnes could be considered both a substitution for the tentative settlement offer from the tortfeasor and as a payment of part of the UIM coverage it owed to Barnes. We also note the record supports findings the $15,000 check (apparently retained by insurer's counsel) was only issued February 7, 1992; the $10,000 check actually sent to Barnes' counsel was issued February 10, 1992; the $15,000 check was voided by insurer by February 13, 1992; and insurer never offered to both substitute $10,000 for the tentative settlement with the tortfeasor and pay its $15,000 in UIM coverage to Barnes. We also note that insurer's attempt - which was refused by the trial court - to pay into court $15,000 after Barnes had already requested the trial judge to allow her to supplement her petition to sue for bad faith, was not required to be deemed by the jury a viable defense to the bad faith claim. Otherwise, every insurer, after being sued for bad faith withholding of payment, could merely pay the money into court and be protected from a bad faith claim, no matter how egregious, unfounded or unreasonable its earlier conduct of withholding payment.

7Evidence was submitted that in one such other case insurer was successful in convincing its insured to settle for a substantial amount less than what should have been paid in UIM benefits.

8Christian v. American Home Assur. Co., 1977 OK 141, 577 P.2d 899 is a leading case recognizing the implied duty of good faith and fair dealing owed by insurers to their insureds. The duty extends to all types of insurance companies [McCorkle v. Great Atlantic Ins. Co., 1981 OK 128, 637 P.2d 583, 588], and applies to companies providing UIM coverage. See Buzzard v. Farmers Ins. Co., Inc., 1991 OK 127, 824 P.2d 1105.

9Insurer's argument - that its actions based on its counsel's "interpretation" of § 3636(E) - cannot be deemed unreasonable because one Court of Civil Appeals' (COCA) judge dissented to the majority opinion in Barnes I and one Justice of this Court dissented to our February 15, 1994 denial of certiorari review in Barnes I (i.e. the denial of certiorari was by an 8 to 1 vote) is unavailing. The COCA judge dissented without opinion and there is no fit way to gauge the exact rationale behind the dissent. Likewise, the dissent to certiorari denial was unaccompanied by a published explanation. These unamplified dissents do not provide any real support that the claimed "dispute" put forward by insurer was a legitimate or reasonable basis for the manner in which it handled Barnes' UIM claim. Certainly, they provide no conclusive indicia of same.

10Although not cited in its appellate submissions, insurer relied in the trial court, in part, on Roberts v. Mid-Continent Cas. Co., 1989 OK CIV APP 92, 790 P.2d 1121 to support its stance that once it paid UIM benefits to Barnes it could lay claim to Donaldson's liability coverage based on its subrogation rights. Roberts does not support insurer's stance. In Roberts, the UIM coverage was sufficient to provide full recovery for the reasonable value of all of the insured's injuries. In such a situation the UIM carrier would, indeed, become entitled to its insured's rights of recovery against the tortfeasor and the tortfeasor's liability carrier, when the UIM carrier pays to its insured the full amount of his/her damages, a situation unlike the present one.

11The provision is found in the policy at PART C-UNINSURED MOTORIST COVERAGE, E(2), OUR LIMIT OF LIABILITY.

1223 O. S. 1991, § 9 was repealed by 1995 Okla. Sess. Laws, Ch. 287, § 4 and replaced by 23 O. S. Supp. 1995, § 9.1. Sides v. John Cordes, Inc., note 2 supra, 1999 OK 36 at ¶ 10 f. n. 6, 981 P.2d at 304. The instant case, however, was tried under § 9 because § 9.1(G) provides that "[§ 9.1] shall apply to all civil actions filed after [August 25, 1995]." Barnes initially filed suit in 1991 and supplemented in 1992 to sue for breach of the implied duty of good faith and fair dealing.

13Although some of the evidence supporting lifting the cap on punitive damages may be categorized as circumstantial, such acknowledgment does not doom the trial judge's decision. The § 9 cap may properly be lifted based on circumstantial evidence. Rodebush By and Through Rodebush v. Oklahoma Nursing Homes, Ltd., 1993 OK 160, 867 P.2d 1241, 1248-1249.

14We cite to the 1991 version of § 651 because it was in effect at the time this matter was tried and when the trial judge entered judgment on the jury verdict. We note, however, § 651 was amended slightly in 1999, but the amendments have no effect on our decision in this case. See 12 O. S. Supp. 1999, § 651 and 1999 Okla. Sess. Laws, Ch. 293, § 3.

15The instruction given was a slightly modified version of that found at Oklahoma Uniform Jury Instructions (OUJI), Civil, Instruction No. 5.5, one modification being deletion of the last sentence of Instruction 5.5, which provides, "[i]n no event should the punitive damages exceed the amount of actual damages awarded." The only other modification was that fraud was not listed as an enumerated factor, obviously because the trial court determined fraudulent conduct was not engaged in by insurer. Oklahoma Uniform Jury Instructions, Civil, Instruction 5.5, Notes on Use, provides that a trial court should include in a punitive damage instruction only the type of conduct shown to have been engaged in by a defendant.

16In later cases discussing the Owens pronouncement that trial courts have the equitable power to award attorney fees in proper cases, this Court has stressed that the Owens declaration was not one of a broad, all-encompassing theory of equity. Smith v. State ex rel. Dept. of Human Services, 1990 OK 19, 788 P.2d 959, 962. The Owens exception is a narrow one, and it should be applied with a degree of caution and restraint. Smith, 788 P.2d at 962; Wallace v. Halliburton Co., 1993 OK 24, 850 P.2d 1056, 1060-1061, quoting Smith, supra.

17We note our decision in this case is limited to UM/UIM lawsuits by insureds against their insurance companies, i.e. a situation where no statute or contractual provision allows for the recovery of attorney fees. Compare Taylor v. State Farm, 1999 OK 44, 981 P.2d 1253 [non-UM/UIM bad faith insurance case falling under 36 O. S. 1991, § 3629(B) - where under tort-related theory of liability the core element of the damages sought and awarded is composed of the insured loss (i.e. the policy benefits) the reasonable attorney fees incurred for time spent preparing and prosecuting a bad faith claim are recoverable].

18In that we reverse the trial court's attorney fee judgment and remand for further proceedings on the attorney fee issue, we need not rule on insurer's argument that the amount of attorney fees granted was excessive and unreasonable. For the same reason, we need not decide whether the COCA erred by failing to address the excessiveness/unreasonableness issue on the basis the attorney fee hearing transcript and Barnes' attorneys' time records were not included in the appellate record. We also note that a statute exists allowing for attorney fees in certain situations for litigation misconduct, 23 O. S. 1991, § 103. See Gorst v. Wagner, 1993 OK 50, 865 P.2d 1227. The impact of § 103, if any, on the recoverability of attorney fees in this matter is not today reached by the Court.

OPALA, J.

¶1 The court vacates today the Court of Civil Appeals' opinion, affirms judgment on jury verdict for the insureds, but snuffs out the life of its common law declared in Brashier1 and invalidates the counsel fee awarded in this cause. I dissent from the death warrant for Brashier and from the retrospective effect given its execution. Brashier's retrospective demise violates constitutionally anchored restrictions on the exercise of judicial power.2 While there are other points of today's pronouncement to which I do not accede, my message of dissent targets solely Part VI.

I
THE COURT'S CONDEMNATION OF BRASHIER
AS DISHARMONIOUS WITH CHRISTIAN
RESTS ON A FLAWED ANALYSIS

¶2 Christian v. American Assur. Co.3 settled but one issue. It adopted the California view that a cause of action in tort will lie against an insurer for its bad-faith refusal to settle an insured's claim.4 The actionable quality of the described insurer's conduct is the sole Christian's ratio decidendi.5

¶3 The insured in Christian pressed for an attorney's fee as a common-law element of recovery.6 There, this court had two opportunities to decide whether an attorney's fee is recoverable as an item of damage or as a cost-shifting allowance7 first on the appeal's submission and then again on rehearing.8 The court instead left the issue unresolved until Brashier. Christian merely suggested that the trial judge should on remand explore the possibility of counsel-fee allowance as costs.9 Its statement on the subject is enigmatic at best. It does not settle the issue. Brashier initially declares Oklahoma's common law on counsel-fee recovery in a Christian claim.10

 

A.
Christian's Suggestion For Postremand Exploration of Attorney's Fee
Recovery Does Not Make Christian A Precedent Ignored By Brashier

¶4 Christian's invitation that the nisi prius court explore on remand for an applicable exception to the American Rule11 was not necessary to the declared actionability of the insured's claim. Because the court's statement in Christian did not decide the tendered counsel-fee issue, it can neither be deemed a part of the court's ratio decidendi12 nor carry any precedential force.13 The Christian hint about postremand inquiry is at most obiter dictum.14 As one textwriter observes, when a court "wishes to avoid the hard labor of law creation, it may take the easy route of applying a dictum as if it were an authoritative, governing rule."15

 

B.
Brashier's Teachings

¶5 Brashier resolved the issue tendered (but left undecided) in Christian by sanctioning counsel-fee recovery as an element of plaintiff's damage in a UM (uninsured motorist) coverage bad-faith dispute. The court observed that "Christian, which shaped our common law of [bad-faith] tort,16 made counsel fees an element of the insured's damage recovery for insurer's bad_faith refusal to pay the claim."17 Brashier's quoted reference was in recognition of Christian's unequivocal reliance on California jurisprudence as a model for the new Oklahoma claim in tort.18 Brashier is entirely consistent with and obediently follows the California cases on the subject. According to California caselaw, when a bad-faith breach occurs, the insurer is "liable for any damages which are the proximate result of that breach."19 California's Brandt v. Superior Court20 clearly teaches that counsel fee is an element of insured's common-law damages in an action for vindication of an insurer's bad-faith refusal to settle. There, the court unequivocally held:

When an insurer's tortious conduct reasonably compels the insured to retain an attorney to obtain the benefits due under a policy, it follows that the insurer should be liable in a tort action for that expense. The attorney's fees are an economic loss _ damages _ proximately caused by the tort. . . . These fees must be distinguished from recovery of attorney's fees qua attorney's fees, such as those attributable to the bringing of the bad faith action itself.21

(emphasis added).

¶6 Brashier has stayed true to the course charted by California jurisprudence and hence followed the Christian's ratio decidendi. That state's teachings, which authorize an attorney's fee in a claim for bad-faith refusal to settle, are based on the notion that an attorney's fee is a common-law element of loss to the plaintiff and should hence be part of the plaintiff's recoverable damages. The Brashier dissent by a justice who authored Christian was no more than that justice's untimely personal disapprobation of the later jurisprudential development.22 Today's opinion, which appears to begin and end its analysis with Christian, utterly ignores Christian's genesis in California's common-law jurisprudence and the subsequent growth of that state's common law in absolute consistency with the teachings of Brashier.

¶7 Brashier should not be condemned for failure to follow Christian. The latter did not resolve the-there tendered issue of whether an attorney's fee is recoverable as damages. Christian's theory, patterned after California's jurisprudence, logically led to Brashier's adoption of the notion that an attorney's fee element of the plaintiff's demand may be submitted to the triers as an issue of damages on the merits of the insured's claim. There is hence absolutely no jurisprudential warrant for condemning today Brashier's "departure" from Christian.

II
THE COURT'S CONDEMNATION OF BRASHIER AS
VIOLATIVE OF THE AMERICAN RULE RESTS ON ITS
DISTORTED VIEW OF THE RULE

¶8 The quintessence of the American Rule, expressed in Alyeska Pipeline Service Co. v. Wilderness Society,23 is that, in the absence of contract or statute, the victor cannot recover against the vanquished party a post-judgment allowance of incurred legal fees.24 The American Rule strikes at the English concept of shifting terminated litigation's costs from the victorious party-bearer to that party's vanquished opponent.25 It neither deals with nor affects recovery of counsel fee as an element of damage to the plaintiff an issue on the merits of the aggrieved party's claim. Rather, the American Rule targets postjudgment issues, not issues on the merits i.e., those which affect one or more elements of the claim for relief (or of the defense).26

 

¶9 Brashier does not authorize postjudgment assessment of costs against the vanquished party. It merely views the expenses of an attorney's fee as a necessary element of damage in the process of vindicating the insurer's breach of an implied-in-law covenant to settle the insured's claim in good faith.

¶10 Today's flawed result stems from the court's crude analysis which in turn leads to its conclusion that in no UM/UIM tort litigation a counsel-fee may be recovered without violating the American Rule. In light of Alyeska's teachings, Brashier reaches a result that stays clear of running on a collision course with the American Rule.

Today's Pronouncement Singles Out One Subclass of Tort For
Uneven Application of the American Rule

¶11 The court's approach to its jurisprudential change creates caselaw that is not evenhanded. Its pronouncement violates the law's symmetry because Oklahoma recognizes tort cases i.e., malicious prosecution

III
THE PLAINTIFFS ARE WITHIN THE RANGE OF PROTECTIONS
AFFORDED BY ART. 5 §§ 52, 54, OKL. CONST.

A.
The Mandate of Art. 5 §§52, 54, Okl.Const.

¶12 Substantive rights may not be changed for application to a claim or defense in a pending judicial proceeding. Art. 5 § 52, Okl.Const.

B.
The Teachings of Thomas v. Cumberland Operating Co.

 

¶13 Thomas teaches that a statutory increase in the quantum of damage recoverable in contract fashions "a new element of damages as distinguished from [creating] a new remedy. . . ." Legislative increases (or decreases) in the common_law measure of damage are changes in substantive rights which should be applied prospectively only.

Brashier Had Full Retrospective Sweep

¶14 Brashier, as the court concedes, is the ruling common-law declaration on the issue of attorney's fee as an element of damages in an action to recover upon a Christian tort. It is the governing common law for both parties the Christian plaintiff in this cause as well as the defending insurer.

¶15 Because Brashier applied retrospectively to the date this cause of action arose and was the law that governed tort liability for UM coverage at the time the claim was reached for trial, the insured, under the teachings of Thomas, is clearly entitled to the application of that pre-existing norm of substantive law. Today's retrospective death warrant for Brashier violates the constitutionally anchored restrictions on the exercise of lawmaking activity by both legislative and judicial organs of government.

IV
SUMMARY

¶16 Brashier is consistent with Christian's ratio decidendi and hence with its precedential force. It is also in harmony with the Christian tort's model in California's common-law jurisprudence. Recovery of attorney's fee as an element of damages is a legitimate consequence of the insurer's harm-dealing process. It is an economic detriment to the insured proximately occasioned by the insurer's refusal to enter into good-faith settlement.

¶17 The court stretches the American Rule far beyond the outer limits of its common-law boundary and, without any warrant, elevates that norm of unwritten law to a constitutional fetish.

¶18 Aside from distorting the American Rule, today's pronouncement magically transmogrifies the lifeless ashes of one justice's post-Christian dissent from his mere afterthought into a viable core ingredient of Christian's ratio decidendi. A remarkable display of judicial prestidigitation!

¶19 An Ode to the Short Life of Brashier:

May it Rest in Peace!

¶20 Changed minds not flawed jurisprudence deal Brashier the lethal blow that ends its life today. The rejected authority's doctrinal soundness will not save it from extinction. The core message of Brashier plainly apparent but conveniently ignored until now lacks appeal to those legal minds that remain stubbornly averse to letting lay triers set the value of lawyer services. Brashier's demise is driven by this passion. Because I do not share it, I would remain faithful to stare decisis and remand this cause for jury assessment of the attorney's fee that one may recover as an element of legal damages in an action for an insurer's Christian tort.

FOOTNOTES

1Brashier v. Farmers Ins. Co., Inc., 1996 OK 86, 925 P.2d 20.

2Aside from the constitutional infirmity in the court's retrospective abandonment of Brashier, supra note , today's overruling of that pronouncement is both unforeshadowed and sua sponte. Unforeshadowed, because the court had given no earlier indication of its disenchantment; sua sponte, because the insurer-appellant neither argued for Brashier's decapitation nor even pressed that its authority be revisited. Unforeshadowed changes in jurisprudence have met with the U.S. Supreme Court's disapprobation. See Chevron Oil Co. v. Huson, 404 U.S. 97, 106, 92 S. Ct. 349, 355, 30 L. Ed. 2d 296 (1971). There, the Court isolated three factors for ascertaining when retroactivity of a new pronouncement could be restricted. The threshold factor is that the decision must establish a new principle of law, whether by overruling clear past precedent on which litigants may have relied, or on an issue of first impression whose decision is not clearly foreshadowed. Sua sponte changes in decisional law, when effected without giving the parties an opportunity to submit advocacy instruments, have met with widespread condemnation in academic literature. Martin H. Redish, Carter G. Phillips, Erie and the Rules of Decision Act: In Search of the Appropriate Dilemma, 91 Harv. L. Rev. 356, 357 (1977). See in this connection the dissenting view of a state appellate court judge in State v. Worrall, 976 P.2d 968, 979-84 (Mont. 1999)(Gray, J., concurring in part and dissenting in part). In the current U.S. Supreme Court practice, issues not urged in the petition for certiorari will not be considered even if they were later briefed and argued. South Central Bell Tele. Co. v. Alabama, 526 U.S. , , 119 S. Ct. 1180, 1186, 143 L. Ed. 2d 258 (1999); Roberts v. Galen of Virginia, Inc., 525 U.S. , , 119 S. Ct. 685, 686-87, 142 L. Ed. 2d 648 (1999). The litigants in this cause had not been afforded the opportunity to brief Brashier's continued vitality.

31977 OK 141, 577 P.2d 899, 901.

4For the conceptual underpinnings of the insurer's bad-faith liability, Christian drew heavily, if not exclusively, from California jurisprudence. See Gruenberg v. Aetna Insurance Co., Co., 9 Cal. 3d 566, 510 P.2d 1032, 1036 (1973), cited as the anchor of the Christian pronouncement. Christian, supra note at 904.

5For the definition of ratio decidendi, see infra note . The new tort's elements of recovery were neither discussed nor settled in Christian. They were saved for explication by later-developed jurisprudence.

6The appellate briefs in Christian reveal that the insured sought recovery of attorney's fee as an element of damages. The insured/plaintiff states in his (21 December 1977) brief in chief (at page 3) that the insurer's refusal to pay the benefits "was a violation of [its] duty to deal fairly and in good faith" thereby causing him "great expense for additional medical expense, court costs, and attorney's fees." The insurer's (9 January 1976) answer and (25 August 1977) rehearing briefs state that plaintiff claims as an item of damage . . . the attorney fee expended in [the] Garvin County case." (emphasis added).

7The court in Christian could have either rejected or adopted the sought counsel-fee recovery by distinguishing the allowance of an attorney's fee as an element of damages from its award as costs. This distinction has been known to Oklahoma jurisprudence since at least 1917. In United States Supply Co. v. Gillespie, 1917 OK 249, 166 P. 139, 140, the court notes that because a counsel fee was awarded for the "prosecution of the present action" (for unlawful conversion of property), it was not additionally recoverable as "compensation for money properly expended in pursuit of the property." The court observes that the statute in contest there did not "contemplate recovery of attorney's fees as compensatory damages, or as costs." (emphasis supplied). See also Oliver's Sports Center, Inc. v. Nat'l Standard Ins. Co., 1980 OK 120, 615 P.2d 291, 296( Opala, J. concurring)(whenever in a common_law action triable to a jury counsel fee is sought as damages, the quantum to be allowed is a question of fact for the trier) (citing Kansas jurisprudence, Missouri Pac. Ry. Co. v. Merrill, 40 Kan. 404, 19 P. 793 (1888)).

8The insurer's (27 August 1977) rehearing brief argues at page 28 that the court has "erroneously held that plaintiff's attorney fee expended in Garvin County . . . may be recovered in the instant case." Another rehearing brief that of an amicus curiae successfully pressed for clarification of some other aspects of the opinion.

9The sole text in Christian, supra note at 906, that addresses itself directly to the insured's attorney's fee quest, is:

Appellant seeks recovery of the attorney fees he was forced to expend in the prosecution of his Garvin County action. Ordinarily, attorney fees may not be recovered in the absence of an agreement or statutory authority. Globe & Republic Ins. Co. v. Independent Trucking Co., Okl., 387 P.2d 644 (1963). One exception to this rule is that where a litigant has acted in bad faith, wantonly or for an oppressive reason, the trial court, in exercise of its equitable power, may award attorney fees. City National Bank & Trust Co. v. Owens, Okl., 565 P.2d 4 (1977). Whether appellant comes within the exception of City National Bank, supra, will be a question for the trial court upon proper presentation of pleadings and proof.

10For a discussion of the "declaratory theory" of common-law jurisprudence, see infra note and the accompanying text.

11The Court's opinion in Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 247, 95 S. Ct. 1612, 1616, 44 L. Ed. 2d 141, 153-159 (1975), describes the American Rule in these words:

In the United States, the prevailing litigant is ordinarily not entitled to collect a reasonable attorneys' fee from the loser. We are asked to fashion a far_reaching exception to this 'American Rule'; but having considered its origin and development, we are convinced that it would be inappropriate for the Judiciary, without legislative guidance, to reallocate the burdens of litigation. . . .

In contrast to the American Rule, the English Rule calls for an across-the-board postdecisional cost- and counsel-fee shifting in favor of the victorious party. Alyeska, supra, 421 U.S. at 247, 95 S. Ct. at 1616.

12A decision on an issue that is not before the court, much like arcane judicial observations on an issue twice-pressed but left unsettled by the court's opinion, cannot be paraded under the banner of ratio decidendi. See Burch v. Allstate Insurance Co., 1998 OK 129, ¶12, 977 P.2d 1057, 1062-63 (where the court refused to recognize as ratio decidendi a gratuitous comment in an earlier opinion on an issue that was not before the deciding court). In both of the described instances missing is the critical component of a binding pronouncement. That sine qua non component is supplied in the common-law tradition by a judicially settled issue of law that the case at bar presented for required resolution. "[T]he only part of a previous case which is binding is the ratio decidendi (reason for deciding)." Rupert Cross, Precedent in English Law 33, 34, 35, 37-38, 61-62, 77 (1961).

13See Cohens v. Virginia, 19 U.S. (6 Wheat) 264, 399, 5 L. Ed. 257 (1821), for Chief Justice Marshall's admonition about the weakness of dicta produced by inadequate efforts in its formulation:

"It is a maxim not to be disregarded that general expression, in every opinion, are to be taken in connection with the case in which those expressions are used . . . . The reason of this maxim is obvious. The question actually before the court is investigated with care, and considered in its full extent. Other principles which may serve to illustrate it . . . [are] seldom completely investigated."

14In The American Common Law Method [1997] §2.18 at page 19, Processor Richard B. Cappalli, describes the nonbinding nature of dicta:

First year texts describe dicta as comprising a legal proposition stated in an opinion but involving facts not before the court; such pronouncements have only "persuasive force according to an imprecise scale of weightiness. Because the precedent-issuing court has stepped beyond the bounds of its authority when it speaks law not essential to resolving the parties' dispute, its successor courts are free to dismiss such talk as nonbinding. This implies that some other talk within the opinion is binding, but we already know that all verbiage in the precedent can be freely ignored by the precedent's users."

(emphasis in text; citations omitted).

15Cappalli, supra note , § 3.05(g) at 26.

16By statutory mandate this court is authorized to craft the norms of common law. 12 O.S. 1991 § 2.

17Brashier, supra note at 24.

18See supra note .

19Neal v. Farmers Ins. Exchange, 582 P.2d 980, 988 (Cal. 1978).

20693 P.2d 796, 798 (Cal. 1985). See also Helfand v. National Union Fire Ins. Co. of Pittsburgh, Pa., 10 Cal. App. 4th 869, 907, 13 Cal. Rptr. 2d 295, 317 (1992);White v. Western Title Ins. Co., 221 Cal. Rptr. 509, 520, 40 Cal. 3d 870, 890, 710 P.2d 309, 320 (1986); Filasky v. Preferred Risk Mut. Ins. Co., 734 P.2d 76, 82-83 (Ariz. 1987) (the court affirmed a jury award of compensatory damages for emotional distress and attorney's fee caused by insurer's bad faith, holding that "[d]amages for pain, humiliation, or inconvenience, as well as pecuniary losses for expenses such as attorney's fees, trigger an invasion of protected property rights" (emphasis supplied)); Motorists Mut. Ins. Co. v. Brandenburg, 648 N.E.2d 488, 489 (Ohio 1995) ("an insured may be entitled to attorney fees when an insurer wrongfully refuses to defend an insured in a negligence action"); DeChant v. Monarch Life Ins. Co., 547 N.W.2d 592, 599 (Wis. 1996) ("attorney's fees ... are recoverable by a prevailing party in a first-party bad faith action as ... compensatory damages resulting from the insurer's bad faith").

21Brandt, supra note at 798 (citations omitted).

22See Brashier, supra note at 27-28 (Simms, J., concurring in part, dissenting in part).

23Alyeska, supra note , 421 U.S. at 247, 95 S. Ct. at 1621-1622, 1627 (the Court explains the historical antecedents of the American Rule). Since Arcambel v. Wiseman 3 U.S. (3Dall.) 306, 1 L. Ed. 613 (1796) the Court has recognized that, unless authorized by statute or contract, "the prevailing litigant is ordinarily not entitled to collect a reasonable attorneys' fee from the loser." Alyeska, 421 U.S. at 247, 95 S. Ct. at 1616. See Nussbaum, Attorney's Fees in Public Interest Litigation, 48 N.Y.U.L. Rev. 301, 312-13 (1973).

24Alyeska, supra note , 421 U.S. at 257, 95 S. Ct. 1621. There, the Court reaffirmed its commitment to certain narrowly_defined common-law exceptions to the rule. Those recognized exceptions are: (1) when the litigant preserves or recovers a fund for the benefit of others; (2) when a losing party acts in bad faith, vexatiously, wantonly, or for oppressive reasons; or (3) when a defendant wilfully disobeys a court order. Alyeska supra note , 421 U.S. at 247-54, 95 S. Ct. at 1616-20. See also Moses v. Hoebel, 1982 OK 26, 646 P.2d 601, 603.

25Alyeska, supra note , 421 U.S. at 247-54, 95 S. Ct. at 1616-20. The English practice of awarding fees after judgment dates for some actions to before the Statute of Gloucester in 1275. Charles T. McCormick, Counsel Fees and Other Expenses of Litigation as an Element of Damages, 15 Minn. L. Rev. 619, 619 (1931).

26What is on or dehors the merits depends on whether the issue at hand affects one or more elements of the claim for relief or any elements of the defense that stand interposed against the claim. Hadnot v. Shaw, 1992 OK 21, 826 P.2d 978, 985 n. 25. The word "merits" has a well_defined meaning in law. See, e.g., Shamblin v. Beasley, 1998 OK 88, 967 P.2d 1200, 1206; Ellison v. Ellison, 1996 OK 64, P 5, 919 P.2d 1, 2; Pierson v. Canupp, 1988 OK 47, 754 P.2d 548, 552 n. 8; Pryse Monument Company v. District Court of Kay County, 1979 OK 71, 595 P.2d 435, 437_38.

27Brashier, supra note at 24.

28See in this connection the court's rationale in Security State Bank of Comanche v. W.R. Johnston & Co., 1951 OK 40, 228 P.2d 169, 173, for making an attorney's fee expense an element of damages in a malicious prosecution case. Quoting with approval from McGaw v. Acker, etc., Co., 111 Md. 153, 73 A. 731, 734), the court stated:

[W]here the wrongful acts of the defendant have involved the plaintiff in litigation with others, or placed him in such relations with others as make it necessary to incur expense to protect his interest, such costs and expense should be treated as legal consequences of the original wrongful act.

(emphasis added).

29See Security State Bank, supra note at 173; First Nat. Bank of Taloga v. Salisbury, 1930 OK 10, 292 P. 1113); Hertzel v. Weber, 1926 OK 318, 246 P. 839, 841.

30The terms of Art. 5, § 52, Okl.Const. are:

The Legislature shall have no power to revive any right or remedy which may have become barred by lapse of time, or by any statute of this State. After suit has been commenced on any cause of action, the Legislature shall have no power to take away such cause of action, or destroy any existing defense to such suit.

(emphasis added).

31The terms of Art. 5 § 54, Okl.Const., are:

The repeal of a statute shall not revive a statute previously repealed by such statute, nor shall such repeal affect any accrued right, or penalty incurred, or proceedings begun by virtue of such repealed statute.

(emphasis added).

32In re Ross, 1949 OK 132 ¶8, 207 P.2d 254, 256; Barry v. Board of County Com'rs of Tulsa County, 1935 OK 701, 49 P.2d 548, 550; Morley v. Hurst, 1935 OK 712, 49 P.2d 546, 546.

33Smith v. Smith, 1982 OK 115, ¶1, 652 P.2d 297, 299 n. 1 (Opala, J., concurring); Oklahoma Water Resources Bd. v. Central Okl. M.C. Dist., 1968 OK 73, ¶23, 464 P.2d 748, 755. The repeal of a statute shall not affect any right accrued by virtue of the repealed statute. Baker v. Tulsa Building & Loan Ass'n, 1936 OK 568, 66 P.2d 45, 49.

34The protection of Art. 5, §§ 52 and 54, Okl.Const., supra notes and , must extend with equal vigor to accrued rights derived from the common law. Common-law rights cannot be singled out under Art. 5, § 46, Okl.Const., for a treatment different from that which is accorded other rights. The Constitution provides no authority for distinguishing one accrued right from another by the source of law from which it is derived.

351977 OK 164, 569 P.2d 974. For Thomas' progeny see Roach v. Jimmy D. Enterprises, Ltd., 1996 OK 26, 912 P.2d 852; Majors v. Good, 1992 OK 76, 832 P.2d 420 (statutory increases or restrictions on recoverable damages are changes in substantive rights that must be applied prospectively only).

36The issue in Thomas was whether the statutory increase in wrongful death benefits should be applied retroactively. This court held that "[s]tatutory increases in damage limitations are changes in substantive rights and not mere remedial changes." Thomas, supra note at 976.

37Art. 5, § 54, Okl.Const., supra note . Rights are established in the states by their constitution, statutes or the common law. Oklahoma Water Res. Bd., supra note at 755; Smith, supra note at 299 n.1 (Opala, J., concurring). "[A] vested cause of action, whether emanating from contract or common_law principles, may constitute property beyond the power of the legislature to take away...." de Rodulfa v. United States, 461 F.2d 1240, 1257 n. 96 (D.C.Cir.1972), cert. denied, 409 U.S. 949, 93 S. Ct. 270, 34 L. Ed. 2d 220 (1972).

38Brashier has fully retrospective force. That impact is ascribed to every common-law decision unless a different effect is explicitly stated in its text.

39See Linkletter v. Walker, 381 U.S. 618, 623, 85 S. Ct. 1731, 1733-34, 14 L. Ed. 2d 601 (1965) (under the declaratory theory, "rather than being the creator of the law [the judge] was but its discoverer"); James B. Beam Distilling Co. v. Georgia, 501 U.S. 529, 549, 111 S. Ct. 2439, 2451, 115 L. Ed. 2d 481 (1991) (Scalia, J., concurring) (judges make law "as though they were 'finding' it discerning what the law is, rather than decreeing what it is today changed to, or what it will tomorrow be"). The declaratory theory is described in Blackstone's maxim to mean that the duty of the court is not to "pronounce a new law, but to maintain and expound the old one." 1 Blackstone, Commentaries 69 (15th ed. 1809). Linkletter, supra, 381 U.S. at 622-23, 85 S. Ct. at 1734. "Although the view that judges discover rather than create the law is generally attributed to Blackstone, a similar view was expressed by Sir Matthew Hale 13 years before Blackstone was born." Jill E. Fisch, The Vanishing Precedent: Eduardo Meets Vacatur, 70 Notre Dame L. Rev. 325, 367 n.44 (1994). See Matthew Hale, The History of the Common Law of England 45 (The University of Chicago Press 1971) (1713); Harold J. Berman, Charles J. Reid, Jr., The Transformation of English Legal Science: From Hale to Blackstone," 45 Emory Law Journal 437, 448 (1996); Cross, supra note at 21-30 (Ch. 1, subdiv. 7, The declaratory theory of precedent).

40". . .[W]hen there is a precedent, orthodox theory has ceased to maintain that the precedent is no more than evidence of the moral fitness, public convenience, or conformity to usage of a rule derived from a previous decision or series of decisions. Such a rule is law 'properly so called' and law because it was made by the judges, not because it originated in common usage, or the judges' idea of justice and public convenience. Holdsworth once wrote in a manner suggesting that the views of Hale and Blackstone [on the retrospective effect of common-law jurisprudence] represent twentieth-century judicial doctrine. . . ." Cross, supra note at 22 (emphasis supplied).

41The retrospective application of decisions is grounded on the view that "the function of the courts [is] to decide cases before them based upon their best current understanding of the law", a view that in turn reflects the declaratory theory of the law, according to which the courts are understood only to find the law, not to make it. Beam, supra note , 501 U.S. at 535-36, 111 S. Ct. at 2443.

42The "American Rule" does not have a constitutional dimension in the state-court systems. It is but a self-imposed restraint on the exercise of judicial power in shifting litigation costs. See Reynolds v. First Alabama Bank of Montgomery, 471 So. 2d 1238, 1241 (Ala. 1985); Fleming v. Garnett, 646 A.2d 1308, 1317 (Conn. 1994); Goodrich v. E.F. Hutton Group, Inc., Del.Supr., 681 A.2d 1039, 1043_44 (1996); Dalo v. Kivitz, 596 A.2d 35, 37, 39 (D.C.1991);Oliver T. Carr Co. v. United Techs. Communications Co., 604 A.2d 881, 883 (D.C.1992); Sheridan v. Greenberg, 391 So. 2d 234, 236 (Fla. App.1980) ("The fundamental rule in Florida is that attorneys' fees are in derogation of the common law and will only be granted pursuant to a contractual agreement or statutory authority"); State Farm Fire & Casualty Co. v. Miller Electric Co., 231 Ill.App.3d 355, 359, (1992); Board of Comm'rs v. Wyant, 672 N.E.2d 77, 79 (Ind.Ct.App.1996); Dodge v. United Services Auto. Ass'n, 417 A.2d 969, 975 (Me.1980); Waldman v. American Honda Motor Co., 413 Mass. 320, 322, 597 NE.2d 404, 406 (1992); Popma v. Auto Club Ins. Ass'n, 446 Mich. 460, 474, 521 N.W.2d 831, 837 (1994).

43See Sniadach v. Family Finance Corp., 395 U.S. 337, 340, 89 S. Ct. 1820, 1822, 23 L. Ed. 2d 349 (1969) (where the Court says, "The fact that a procedure would pass muster under a feudal regime does not mean it gives necessary protection to all property in its modern forms"); Shaffer v. Heitner, 433 U.S. 186, 212, 97 S. Ct. 2569, 2584, 53 L. Ed. 2d 683 (1977) (where it is said, "'[T]raditional notions of fair play and substantial justice' can be as readily offended by the perpetuation of ancient forms that are no longer justified as by the adoption of new procedures that are inconsistent with the basic values of our constitutional heritage" (emphasis mine)).