NESTLE FOOD CO. v. AMERICAN STATES INS. CO.

NESTLE FOOD CO. v. AMERICAN STATES INS. CO.
2000 OK CIV APP 76
8 P.3d 193
71 OBJ 1820
Case Number: 93900
Decided: 05/01/2000
Mandate Issued: 06/14/2000

NESTLE FOOD COMPANY and CONSTITUTION STATE SERVICE COMPANY, Plaintiffs/Appellants
v.
AMERICAN STATES INSURANCE COMPANY, Defendant,
and
PATRICIA L. CREWS, Defendant/Third-Party Plaintiff/Appellee,
v.
JAMES REID, Third-Party Defendant

APPEAL FROM THE DISTRICT COURT OF OKLAHOMA COUNTY, OKLAHOMA

HONORABLE CAROLYN R. RICKS, JUDGE

REVERSED AND REMANDED

Mark T. Koss, McNulty, Koss & Associates, Oklahoma City, Oklahoma, for Plaintiffs/Appellants,
Michael W. Phillips, Boettcher, Ryan & Martin, Oklahoma City, Oklahoma, for Defendant/Third-Party Plaintiff/Appellee.

OPINION

ADAMS, J

¶1 According to the uncontroverted facts shown in this record, on August 25, 1993, Patricia Crews sustained injuries in a motor vehicle accident allegedly caused by the negligence of a driver who was covered by a motor vehicle liability insurance policy issued by American State Insurance Company (Insurer). The accident occurred while Crews was in the course and scope of her employment. Crews received workers' compensation benefits from her employer, Nestle Food Company, which were administered by Constitution State Service Company.

¶2 On August 24, 1995, Crews filed an action for negligence against Insurer's insured, and ultimately settled with Insurer no earlier than April 2, 1998. Although Insurer was on notice of a subrogation interest asserted by Nestle and Constitution (collectively, Employer), the settlement proceeds were payable only to Crews, her husband, and her attorney, James Reid. On February 5, 1999, Employer filed this action against Insurer and Crews seeking its portion of the settlement proceeds under

¶3 The trial court dismissed Employer's action against Insurer, concluding the statute of limitations had expired. Employer appealed, but the trial court's decision was affirmed by another division of this Court in an unpublished opinion.

¶4 In response, Employer contended its action was based on a liability created by statute, namely

¶5 This case presents a question of law, i.e., is Employer's action against Crews controlled by the two-year statute of limitation applicable to her action against the tortfeasor or is it governed by the three-year statute of limitation as an action on a liability created by statute. The Oklahoma Supreme Court directly confronted this issue under similar circumstances in a case decided after the trial court's decision in this case. In ACCOSIF v. American States Insurance Company,

¶6 Applying ACCOSIF to the undisputed facts in this case, we must conclude the statute of limitations has not expired on Employer's claim against Crews. The trial court's judgment is reversed, and the case is remanded for further proceedings consistent with this opinion.

¶7 REVERSED AND REMANDED

¶8 HANSEN, V.C.J., and JOPLIN, J., concur.

FOOTNOTES

1Apparently, in dismissing the action against Insurer, the trial court made the findings required by 12 O.S.Supp.1994 § 994(A) so that its order would be final and appealable.

2Ten days later, Crews dismissed her third-party action against Reid with prejudice and filed this Petition in Error.