Brashier v. Farmers Insurance Co., Inc.,

Annotate this Case

Brashier v. Farmers Insurance Co., Inc.,
1996 OK 86
925 P.2d 20
67 OBJ 2338
Case Number: 82512
Decided: 07/16/1996
Supreme Court of Oklahoma

Earnest BRASHIER, Plaintiff-Appellee,
and Farmers Insurance Exchange, Defendants-Appellants.

[925 P.2d 22]
On Certiorari to the Court of Appeals, Div. 4.

¶0 Insured brought an action against his uninsured motorist [UM] carrier for bad-faith refusal to pay a claim. After a jury verdict for the insured, the District Court, Oklahoma County, Leamon Freemon, trial judge, awarded to the insured counsel fee, prejudgment interest and costs. The Court of Appeals affirmed the judgment on jury verdict, but reversed the allowance of counsel fee, prejudgment interest and costs. Both parties then sought this court's certiorari review. On certiorari previously granted solely on the insured's petition, THE COURT OF APPEALS' OPINION IS VACATED ONLY PREJUDGMENT INTEREST AND COSTS, AND THE TRIAL COURT'S JUDGMENT IS AFFIRMED IN PART AND REVERSED IN PART WITH THE CAUSE REMANDED FOR FURTHER PROCEEDINGS NOT INCONSISTENT WITH TODAY'S PRONOUNCEMENT.

Greg D. Givens, Robert D. Ramage, Edmonds, Cole, Hargrave, Givens & Witzke, Oklahoma City, for Appellants.

Bradley C. West, Terry W. West, Shawnee, for Appellee.

OPALA, Justice.

¶1 Certiorari was granted on insured's petition to determine whether - qua victor in a tort claim against his UM insurer for bad-faith refusal to pay an insurance loss - the insured was entitled to counsel fee, prejudgment interest and costs. Tendered are three issues: [1] Does the exclusion of UM coverage from the terms of 36 O.S. 1991 § 3629 (B)

¶2 We answer the first question in the negative and the second and third in the affirmative.



¶3 Earnest Brashier [Brashier or insured] was injured on July 2, 1990 while riding in a pickup that was hit by a vehicle owned by C & L Trucking. The latter carried an insurance policy with $100,000 liability limits per person. Brashier had UM coverage with Farmers Insurance Co., Inc. and Farmers Insurance Exchange [UM insurer or Farmers], limited to $10,000 per person. C & L Trucking's insurer tendered its policy's limits and Farmers waived subrogation but refused to make any UM payment to Brashier because its adjuster believed the value of Brashier's claim did not exceed $100,000.

¶4 Brashier sued his UM carrier, alleging breach of its implied-in-law duty of good faith and fair dealing. The jury returned a verdict for Brashier, awarding him $25,000 in compensatory damages and $25,000 in punitive damages. The trial court allowed Brashier (a) counsel fee of $26,387.50, rested on the terms of 36 O.S. 1991 § 3629 (B)



¶5 Brashier argues that because he was the prevailing party in a bad-faith claim against his UM insurer for failure to pay under the terms of an insurance policy, he is entitled to a counsel-fee award under the teachings of Christian, as well as under the terms of § 3629 (B), which sources, when combined, serve to support the allowance of counsel fee and prejudgment interest in all insurance litigation other than that for ex contractu recovery of UM coverage. The exclusion of UM coverage, Brashier urges, applies only to actions brought directly against the insurer for recovery of UM proceeds. He argues that because the terms of § 3629 (B) have been used as a basis for awarding counsel fees, costs and interest in other insurance bad-faith actions,8 it should [925 P.2d 24] also apply to his case. The insurer counters that § 3629 (B) excludes not only ex contractu claims under the UM coverage but also ex delicto bad-faith claims for refusal to pay the UM policy limits.


The Teachings of Christian and its Progeny

¶6 Bad-faith refusal to settle a claim was first recognized as a distinct tort in Christian.9 The claim rests on the insurer's implied-in-law duty to act in good faith and deal fairly with the insured to ensure that the policy benefits are received.10 Christian, which shaped our common law of tort, made counsel fees an element of the insured's damage recovery for insurer's bad-faith refusal to pay the claim.11 A Christian counsel-fee plea is a part of the claim; it does not depend on an insured's prevailing party status.

¶7 There can be no doubt that Brashier is entitled to a counsel-fee award under the bad-faith tort rubric of Christian. What remains to be determined is the effect of § 3629 (B) upon the viability of his common-law Christian counsel-fee award.


Statutorily-based Counsel-Fee Award

¶8 By statutory mandate the common law remains in full force unless a statute explicitly provide to the contrary.12 Legislative abrogation of the common law may not be effected by implication.13 Statutory alteration must be clearly and plainly expressed.14 An intent to change the common law will not be presumed from an ambiguous, doubtful or inconclusive text.15 A revered presumption favors the preservation of common-law rights.16 Where the common law gives a remedy, and another is provided by statute, the latter is merely cumulative, unless the statute declares it to be exclusive.17

[925 P.2d 25] ¶9 Section 3629, first enacted in 1957, required (by its original version) that the insurer furnish proof of loss forms to any person claiming a loss under an insurance contract. On June 3, 1977, before Christian was handed down, subsection B was approved (to be effective Oct. 1, 1977).


The Teachings of Oliver

¶10 Brashier argued below and on certiorari that the Oliver "litigation risk factor" (the risk of non-recovery)

¶11 Oliver incorporates the State ex rel. Burk v. City of Oklahoma City

¶12 Attached to Brashier's nisi prius counsel-fee application is a detailed list of the hours spent in the prosecution of the litigation. According to counsel for the insured, 258 hours had been expended by four lawyers, each charging different hourly rates, which totaled $32,262.50. Brashier's trial brief pressed for an amount to be added to the sum total of hourly compensation as an Oliver risk-litigation premium. We hold that the trial court's basic counsel-fee award to Brashier of $26,387.50 and an additional allowance of $5,000 for the Oliver factor rest on competent evidence. Gauged by the applicable common-law standards of review, the amount awarded is not excessive.

[925 P.2d 26] III


¶13 Brashier argues he is entitled to prejudgment interest authorized by the terms of § 3629 (B) or, in the alternative, by the general statute, 12 O.S. 1991 § 727 (A)(2).

¶14 The applicable statute, 12 O.S. 1991 § 727 (A)(2), provides for prejudgment interest upon a verdict "by reason of personal injuries".

¶15 Brashier's failure to press for prejudgment interest due under § 727 (A)(2) is no bar to its recovery. A legally correct judgment will not be reversed because of the judge's faulty reasoning, erroneous fact finding or consideration of an immaterial issue.



¶16 Nisi prius taxable costs fall into two categories: (a) ordinary court costs - items that the clerk may tax de cursu

¶17 The insurer concedes that Brashier, qua prevailing party on the jury verdict, is entitled to the statutorily recoverable costs. Brashier attached to his counsel-fee application below a breakdown of costs totaling $1,591.67. We hold that these costs were correctly taxed de cursu against the insurer.



¶18 The language of § 3629


¶20 ALMA WILSON, C.J., KAUGER, V.C.J., and HODGES, OPALA and WATT, JJ., concur.

¶21 SIMMS and SUMMERS, JJ., concur in part and dissent in part.

¶22 LAVENDER, J., dissents.

¶23 HARGRAVE, J., disqualified.


1 For the pertinent terms of 36 O.S. 1991 § 3629 (B), see infra note 4.

2 Okl., 577 P.2d 899 (1978).

3 For the pertinent terms of 12 O.S. 1991 § 727 , see infra note 26.

4 The terms of 36 O.S. 1991 § 3629 (B) provide:

"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 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 a 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 verdict. This provision shall not apply to uninsured motorist coverage." (Emphasis added.)

5 Christian, supra note 2.

6 Okl., 615 P.2d 291 (1980).

7 Both Brashier and insurer sought certiorari review. The Insurer's petition was denied by this court's January 8, 1996 order.

8 In support of his position, insured cites Alsobrook v. National Travelers Life Insurance Co., Okl.App., 852 P.2d 768 (1992)(health insurance); City National Bank v. Jackson National Life Ins., Okl.App., 804 P.2d 463 (1990)(life insurance); Oliver, supra note 6 (fire insurance); Thompson v. Shelter Mutual Ins., 875 F.2d 1460 (10th Cir. 1989)(fire insurance). We note that McCorkle v. Great Atlantic Ins. Co., Okl., 637 P.2d 583 (1981)(a bad-faith fire insurance action) also relies on § 3629 (B) for awarding a counsel fee.

9 Christian, supra note 2 at 904, adopts the California view and characterizes the bad-faith breach of an insurer's duty to pay as sounding "`in both contract and tort'". A tort will be deemed to arise out of a contractual relationship if the delictual duty breached and the contract are so intertwined that one cannot be viewed in isolation from the other because the detriment sought to be vindicated arose directly from performance or nonperformance of the contract. Christian, supra note 2 at 904. For the California view, see Gruenberg v. Aetna Insurance Company, 9 Cal. 3d 566, 108 Cal. Rptr. 480, 484, 510 P.2d 1032, 1036 (1973).

10 Christian, supra note 2 at 901. Our current remedial regime gives the insured a choice between two alternative theories of recovery - one founded on promise-generated liability and the other on insurer's duty of good faith implied from his status or derived from public policy considerations. State ex rel. Burk v. City of Oklahoma City, Okl., 598 P.2d 659, 661 (1979).

11 While numerous items of damage may result from one injurious occurrence, the party who seeks to recover for one insured loss has but a single cause of action, although the claim may be advanced concurrently on ex contractu and ex delicto theories. Mann v. State Farm Mut. Auto. Ins. Co., Okl., 669 P.2d 768, 772 (1983).

12 12 O.S. 1991 § 2 . Its relevant terms provide:

"The common law, as modified by constitutional
and statutory law, judicial decisions and
the condition and wants of the people, shall
remain in force in aid of the general statutes of
Oklahoma; . . .".

13 Tate v. Browning-Ferris, Okl., 833 P.2d 1218, 1225-1226 (1992); Silver v. Slusher, Okl., 770 P.2d 878, 884 (1989); Ricks Exploration v. Okl. Water Resources Bd., Okl., 695 P.2d 498, 504 (1984); Roxana Petroleum Co. v. Cope, 132 Okl. 152, 269 P. 1084, 1085 (syl. 3) (1928); Reaves v. Reaves, 15 Okl. 240, 82 P. 490, 495 (1905); State Mut. Life Assur. Co. of Amer. v. Hampton, Okl., 696 P.2d 1027, 1036 (1985) (Opala, J., concurring).

14 Tate, supra note 13 at 1225-1226; Fuller v. Odom, Okl., 741 P.2d 449, 451 (1987); McCormack v. Oklahoma Pub. Co., Okl., 613 P.2d 737, 740 (1980); Reaves, supra note 13 82 P. at 495; Hampton, supra note 13 at 1036 (Opala, J., concurring).

15 Reaves, supra note 13 82 P. at 495; Hampton, supra note 13 at 1036 (Opala, J., concurring).

16 Reaves, supra note 13 82 P. at 495.

17 Bowles v. Neely, 28 Okl. 556, 115 P. 344, 346 (1911). Instances in which the common-law system of remedies continues side by side with a statute that evinces no legislative intent to supplant it are not uncommon in Oklahoma jurisprudence. See, e.g., Hood v. Hagler, Okl., 606 P.2d 548, 552-553 (1980); In re Adoption of Graves, Okl., 481 P.2d 136, 138 (1971); Hampton, supra note 13 at 1036 (Opala, J., concurring).

18 Subsection B of § 3629 was approved June 3, 1977 to become effective October 1, 1977 (Okl. Sess.L. 1977, Ch. 133, § 1). Christian, supra note 2, was adopted July 12, 1977; rehearing was denied April 26, 1978.

19 Okl.Sess.L. 1985, Ch. 79, § 1 , eff. November 1, 1985. For the text of 36 O.S. 1991 § 3629 (B), see supra note 4.

20 Oliver, supra note 6 at 294 n. 4.

21 Burk, supra note 10 at 661.

22 The court notes that where a lawyer's compensation is contingent, the trial court must adjust upward the basic hourly rate by allowing a risk-litigation premium based on the likelihood of success at the outset of the representation. Oliver, supra note 6 at 294.

23 Christian, supra note 2, at 904.

24 Burk, supra note 10 at 661.

25 Whenever in a common-law action triable to a jury, counsel fee is awarded as an additional element of recoverable damage, the amount of the fee to be allowed is reviewable on appeal by the common-law standard of "any competent evidence". See Holland Banking Co. v. Dicks, 67 Okl. 228, 170 P. 253, 256 (1918), adopting this principle, first announced by the Kansas court in Missouri Pac. Ry. Co. v. Merrill, 40 Kan. 404, 19 P. 793 (1888).

26 The pertinent terms of 12 O.S. 1991 § 727 (A)(2) are:

"When a verdict for damages by reason of
personal injuries . . . is accepted by the trial
court, the court in rendering judgment shall
add interest on said verdict at a rate prescribed
pursuant to subsection B of this section
from the date the suit was commenced to the
date of verdict. . . ." (Emphasis added.)

27 Timmons v. Royal Globe Ins. Co., Okl., 713 P.2d 589, 590 (1986), teaches that when a verdict covers more than purely personal injury, § 727 applies to those severed (or severable) elements of recovery in the verdict which represent an identifiable personal injury element.

28 Uptegraft v. Home Ins. Co., Okl., 662 P.2d 681, 685 (1983). See also the provisions of 36 O.S. 1991 § 3636 (A) and (B), which require that UM coverage be offered on demand as part of the cluster of rights intended to protect the motoring public from consequences of bodily injury inflicted by resourceless drivers.

29 Carney v. State Farm Mut. Auto. Ins. Co., Okl., 877 P.2d 1113, 1119 (1994); Torres v. Kansas City Fire and Marine Ins. Co., Okl., 849 P.2d 407, 414 (1993).

30 See Estate of Maheras, Okl., 897 P.2d 268, 272 (1995); Matter of Estate of Pope, Okl., 808 P.2d 640, 646 (1990); Willis v. Nowata Land and Cattle Co., Okl., 789 P.2d 1282, 1286-87 (1989) Davidson v. Gregory, Okl., 780 P.2d 679, 685 n. 23 (1989); Matter of Estate of Bartlett, Okl., 680 P.2d 369, 374 (1984); Carpenter v. Carpenter, Okl., 645 P.2d 476, 480 (1982); Utica Nat'l Bank and Trust v. Assoc. Prod., Okl., 622 P.2d 1061, 1066 (1981); Holloway v. Ward, 84 Okl. 247, 203 P. 217, 219 (1922).

31 Our costs regime allows costs to be taxed "of course", as provided in 12 O.S. 1991 §§ 927 and 928 . For definition of costs taxable de cursu, see Chamberlin v. Chamberlin, Okl., 720 P.2d 721, 726 n. 25 (1986); Fleet v. Sanguine Okl., 854 P.2d 892, 902 (1993). The terms of 12 O.S. 1991 § 928 are:

Where it is not otherwise provided by this and
other statutes, costs shall be allowed of course
to the plaintiff, upon a judgment in his favor,
in actions for the recovery of money only, or
for the recovery of specific, real or personal

32 Equitable litigation expenses (as opposed to ordinary costs taxable de cursu) are explained in Rand v. Nash, 174 Okl, 525, 51 P.2d 296, 297-298 (1935).

33 Dulan v. Johnston, Okl., 687 P.2d 1045, 1048 (1984).

34 For the pertinent terms of 36 O.S. 1991 § 3629 , see supra note 4.

35 For the pertinent terms of 12 O.S. 1991 § 727 (A)(2), see supra note 26.

36 For the pertinent terms of 12 O.S. 1991 § 928 see supra note 31.

[925 P.2d 27] SIMMS, Justice, concurring in part, dissenting in part:

¶1 I respectfully dissent in part from the majority decision. In my opinion the Court of Appeals was correct in reversing the trial court's award of attorney fees to plaintiff. His claim for bad faith damages was grounded on the uninsured motorist clause and was therefore excluded from coverage under 36 O.S. 1991 § 3629 (B), as determined by the Court of Appeals.

¶2 Additionally, Christian v. American Home Assur.Co., Okl., 577 P.2d 899 (1977), does not support awarding attorney fees to plaintiff here. Contrary to the majority's assertions, Christian does not stand for the rule that attorney fees are always available in bad faith cases. In Christian there was a clear showing of willful, malicious and oppressive conduct by the insurer. In deciding Christian, this Court recognized the rule that ordinarily attorney fees may not be recovered in the absence of an agreement or statutory authority. We remanded the matter to the trial court, however, to determine whether under those particular facts, appellant came with the exception to that rule established in City Nation Bank v. Owens, Okl., 565 P.2d 4 (1977), allowing recovery of attorney fees upon a showing of misconduct during litigation. The facts here are clearly distinguishable.

¶3 The majority exaggerates Christian beyond recognition in stating it made attorney fees an "element of the insured's damage recovery" for a bad faith refusal to pay a [925 P.2d 28] claim and a part of the plaintiffs claim not dependent on an insured's prevailing party status.