FIERRO v. LINCOLN GENERAL INSURANCE COMPANY

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FIERRO v. LINCOLN GENERAL INSURANCE COMPANY
2009 OK CIV APP 62
217 P.3d 158
Case Number: 106677
Decided: 05/08/2009
Mandate Issued: 07/10/2009
DIVISION I
THE COURT OF CIVIL APPEALS OF THE STATE OF OKLAHOMA, DIVISION I

ELIAS JOHN FIERRO, Plaintiff/Appellant,
v.
LINCOLN GENERAL INSURANCE COMPANY, Defendant/Appellee,
and
BALJEET S. SANGHA; and GERMAN DIAZ, d.b.a. GD TRANSPORT, INC., Defendants.

APPEAL FROM THE DISTRICT COURT OF CANADIAN COUNTY, OKLAHOMA

HONORABLE EDWARD C. CUNNINGHAM, JUDGE

AFFIRMED

Brent D. Berry, CARR & CARR, Oklahoma City, Oklahoma, for Plaintiff/Appellant,
J.Mark McAlester, FENTON, FENTON, SMITH, RENEAU & MOON, Oklahoma City, Oklahoma, for Defendant/Appellee.

Kenneth L. Buettner, Judge:

¶1 Plaintiff/Appellant Elias John Fierro (Fierro) alleged that a vehicle insured by Defendant/Appellee Lincoln General Insurance Company (Lincoln General) recklessly and negligently collided with his vehicle in Canadian County, Oklahoma, and caused him to suffer damages. The dispositive question is whether the Oklahoma Motor Carrier Act of 1995 permits a direct action against an interstate motor carrier's liability insurer, when the interstate motor carrier is properly registered in its home state. We answer in the negative and affirm the trial court's order granting Lincoln General's motion for summary judgment.1

¶2 Fierro filed his petition June 18, 2007, and alleged that on or about July 11, 2005, in Canadian County, Defendant Sangha recklessly and negligently caused his vehicle to collide with a vehicle driven by Fierro. The vehicle driven by Sangha was owned by Defendant German Diaz, d.b.a GD Transport, Inc. and insured by Lincoln General. Fierro's petition claimed that pursuant to applicable motor carrier regulations, the insurance company was jointly liable for his damages.

¶3 All defendants responded. On September 8, 2008, Lincoln General filed a Motion for Summary Judgment. The undisputed material facts established that GD Transport operated as an interstate motor carrier, registered in the state of its principal place of business, California. Lincoln General stated that acting in accordance with the Interstate Motor Carrier Single State Registration requirements, neither GD Transport nor Lincoln General were subject to the licensing provision of either 47 O.S.2001 §169 or §230.30. In summary, Lincoln General concluded that Oklahoma does not permit a direct action against it, as the liability insurer, absent statutory authority. Fierro countered that single state registration has not changed Oklahoma's long-standing law that insurers are jointly liable.

¶4 Lincoln General stated that GD Transport's USDOT number was 919372 and that GD Transport was insured by Lincoln General. It submitted an affidavit by the owner of GD Transport, as well as copies of the insurance policy in effect at the time of the accident and a Federal Motor Carrier Safety Administration history page for GD Transport.

¶5 Lincoln General first based its legal claim that, as an interstate motor carrier, GD Transport does not operate pursuant to an Oklahoma Motor Carrier License. Hence, neither of the two statutes which might arguably apply, can. We agree. First,

¶6 In 1995, Oklahoma enacted the Motor Carrier Act of 1995,

¶7 We find the rule from Daigle must guide us in this determination. There was a compulsory insurance requirement, but that requirement was satisfied by the submission of the home state's policy. Fierro has not shown an infraction by the insurer sufficient to make it a defendant pursuant to Oklahoma's Motor Carrier Act of 1995. Oklahoma takes part in the single state system,

¶8 We review motions for summary judgment de novo. Carmichael v. Beller,

¶9 AFFIRMED.

BELL, P.J., concurs, and ADAMS, J., concurs in result with separate opinion.

ADAMS, J., concurring in result:

¶1 I concur in the result reached by the majority because the provisions of

¶2 However, I reject the apparent conclusion by the majority that § 230.30 does not authorize a direct action against the insurer where the motor carrier has an Oklahoma license. The language relied upon by the majority for its conclusion, "after judgment against the carrier for any damage, the injured party may maintain an action upon the policy or bond to recover the same, and shall be a proper party to maintain the action,"

¶3 No matter how persuasive this analysis may be, we are bound by Enders v. Longmire,

Had the Legislature intended that a judgment against the carrier must exist before suing the insurance or bonding company, it would have been very simple for the Legislature to have provided in the 1929 or the 1933 amendment, as follows:

"Only if, and after, judgment is secured against the carrier for any such damage, the injured party may maintain an action upon said policy or bond to recover the judgment theretofore secured against the carrier."

No such amendment was adopted, nor anything like it in substance, and from the fact that neither the 1929 nor the 1933 Legislature substantially changed that part of said section upon which this court, in [Temple v. Dugger,

¶4 Where the Legislature has reenacted a statute with the same or similar terms that have previously been construed by a court of last resort, we must presume the Legislature is familiar with the previous construction and intends to adopt that construction as a part of the statute, unless a contrary intent clearly appears. Special Indemnity Fund v. Bedford,

¶5 Until the Oklahoma Supreme Court holds otherwise, I am constrained to conclude that a direct action by the injured party is available against the insurer for a motor carrier required to obtain a license from the Oklahoma Corporation Commission. Therefore, I concur in the majority opinion only in its result.

FOOTNOTES

2 Both parties submitted copies of United States District Court cases from the three districts of Oklahoma, and one 10 th Circuit case, in which the accident occurred in 1994 and applied §169.

3 Section 162.1 was enacted in 1993 and amended in 2006. The 2006 amendments do not affect the outcome in this case.