BROWN v. PATELAnnotate this Case
BROWN v. PATEL
2007 OK 16
157 P.3d 117
Case Number: 102402
THE SUPREME COURT OF THE STATE OF OKLAHOMA
JOHNNY WELDON BROWN and BETH ANN BROWN, Plaintiffs/Appellants,
APPEAL FROM THE DISTRICT COURT OF PAYNE COUNTY
¶0 An insured brought an action against an alleged tortfeasor. The insured's uninsured motorist carrier/workers' compensation carrier intervened. Insured objected to the intervention and alleged that the non-payment of workers' compensation benefits, non-payment for subrogation, and insurer's assertion of claims also asserted by the alleged tortfeasor showed bad faith conduct on the part of the insurer towards its insured. Intervenor/insurer sought summary judgment on insured's bad-faith claim and the Honorable Donald L. Worthington, District Judge, granted the motion for summary judgment. Subsequent to a defendant's verdict and judgment thereon, the insured appealed the order granting summary judgment to insurer. We granted the insurer's motion to retain the appeal. We hold that an uninsured motorist insurer may, under certain circumstances, intervene in the action brought by its insured against an alleged tortfeasor, and that a judgment for the alleged tortfeasor does not relieve the insurer of all bad-faith claims relating to its handling of the uninsured motorist claim.
JUDGMENT OF DISTRICT COURT REVERSED; AND PROCEEDING IS
REMANDED TO THE DISTRICT COURT
Joe E. White, Jr., Charles C. Weddle III, White Law Firm, Oklahoma City, Oklahoma and William J. Baker, Hert, Baker & Koemel, Stillwater, Oklahoma, for Plaintiff/Appellant.
Loyal J. Roach, Steven V. Buckman and Diane M. Black, Buckman and Roach, Tulsa, Oklahoma, for Intervenors/Appellees.
¶1 The issues in this appeal are (1) whether a UM insurer may, without either denying or granting a UM claim, seek intervention in the action brought by its insured against the alleged tortfeasor and assert both potential subrogation rights and the defenses raised by the tortfeasor; and (2) whether a subsequent judgment for the tortfeasor necessarily relieves the UM carrier of any bad-faith liability arising from its handling of the UM claim. We hold that a UM insurer may, in certain circumstances, intervene in the action brought by its insured against the alleged tortfeasor and assert certain defenses, and that a subsequent judgment for the tortfeasor does not relieve the insurer of all possible bad-faith claims based upon the insurer's handling of the UM claim.
¶2 Brown and Patel were involved in a motor vehicle collision. Brown
¶3 OneBeacon Insurance Group was granted leave to intervene via two different motions, once in the name of OneBeacon and once in the name of Commercial Union Insurance Company. The first in time, Commercial Union's petition to intervene, was based upon the carrier's status as Brown's UM carrier. Approximately four months later, OneBeacon filed a petition to intervene alleging that it had paid $2,841.45 for Brown's medical expenses as a result of a workers' compensation policy. Brown answered and, while admitting that OneBeacon was his workers' compensation insurance carrier and that he had filed a Form 3 seeking workers' compensation benefits, denied that OneBeacon had paid $2,841.45 for his medical expenses. Commercial Union Insurance Company had previously changed its name to OneBeacon and we treat the intervenors as a single entity, OneBeacon, for the purpose of this opinion.
¶4 Brown's allegation of OneBeacon's bad faith centers on one of the petitions to intervene. This petition combined (1) a petition for intervention that adopted allegations from Brown's petition, asserted a potential subrogation interest and sought a determination of the rights of OneBeacon; (2) an answer that denied certain allegations of Brown's petition, adopted Patel's defenses and requested that Brown's petition be dismissed; and (3) a cross-petition that asserted a cross-claim against Patel and requested a judgment against Patel for any amount OneBeacon would be required to pay Brown.
¶5 Brown filed an amended petition that added claims against OneBeacon. Brown alleged that (1) OneBeacon was his uninsured/underinsured carrier; (2) in the year 2000, Brown had put the carrier "on notice of the claim for underinsured motorist benefits and medical pay benefits" and (3) his insurer had breached its duty to deal fairly and in good faith.
¶6 OneBeacon filed a motion for summary judgment, Brown responded and OneBeacon replied. The motion for summary judgment states that OneBeacon did not commit bad faith because (1) An uninsured/underinsured obligation was never "triggered" because Brown's damages were below Patel's (alleged tortfeasor's) $300,000.00 insurance coverage, (2) OneBeacon's employees reasonably questioned the causation of Brown's claim and (3) OneBeacon's employees reasonably questioned the value of Brown's claim.
¶7 Brown responded and stated that OneBeacon did not question the cause of Brown's injuries prior to OneBeacon's intervention. Brown argued that OneBeacon was not sued for bad faith in evaluating the amount of Brown's claims. Instead, he argued that OneBeacon's conduct showed bad faith when it (1) intervened and asserted a subrogation claim against Patel, and thus adopted Brown's allegation's that his injuries were in excess of $300,000 and (2) asserted a subrogation interest while "actively defending Patel." Plaintiffs' Brief at p. 22. Brown's complaint is that OneBeacon never denied or granted the claim, but sought intervention to assert judicial remedies based upon both granting and denying the claim.
¶8 The District Court granted the motion for summary judgment. A verdict was returned for Defendant Patel, judgment entered on that verdict, and then Brown appealed the summary judgment granted to OneBeacon. This Court retained the appeal. OneBeacon filed motions for oral argument and permission to file appellate briefs in addition to those that were before the trial court.
¶9 Generally, an implied duty of an insurer to act in good faith and deal fairly with its insured is imposed by law upon the insurer-insured relationship, and a breach of that duty arises from a breach of the insurance contract where the breach occurs in a manner constituting a lack of good faith; i.e., constituting bad faith. Christian v. American Home Assurance Company,
¶10 Of course, a part of every contract in this state is the law applicable to that contract. Public Service Co. of Oklahoma v. State ex rel. Oklahoma Corp. Com'n,
¶11 The bad-faith action may also be based upon an insurer's failure to perform an act that is derivative or secondary in nature; that is, an insurer's duty that owes its existence to a preexisting implied contractual,
¶12 In our case today, this latter category of derivative or secondary duties is raised by Brown, in that he asserts bad faith is shown by OneBeacon's litigation efforts to both press a subrogation claim while denying that such a claim exists, all without either granting or denying a UM claim. Specifically, Brown asserts that OneBeacon acted in bad faith by intervening in Brown's action against Patel and asserting a subrogation claim against Patel and adopting Plaintiffs' allegations, and secondly, that OneBeacon acted in bad faith by asserting a subrogation interest "as a ruse to actually harm" Brown by OneBeacon's litigation conduct in defending Patel. Brown also asserts in his brief that he has not sued OneBeacon for bad faith in evaluating the amount of his claim. Brown contends questions of disputed fact exist regarding the reasonableness of OneBeacon's litigation conduct in light of its claims file showing a claim and the tortfeasor's liability.
¶13 OneBeacon asserts a right to intervene, and that an exercise of this right cannot be the basis for a breach of a duty owed to Brown. In other words, it argues that the outer limit of the duty to act in good faith and deal fairly cannot expand so as to prohibit OneBeacon's right to intervene. OneBeacon's view of the controversy presents the scope of an insurer's duty, a question of law.
¶14 In Keel v. MFA Ins. Co.,
¶15 The third option in Keel expressly allows the insurance company to intervene in the insured's action against an uninsured motorist. We subsequently relied upon Keel and held that a UM insurer was a proper defendant in an insured's action against an alleged tortfeasor. Tidmore v. Fullman,
¶16 After Keel we adopted a procedure for intervention based upon its federal counterpart.
A. INTERVENTION OF RIGHT. Upon timely application anyone shall be permitted to intervene in an action:
1. When a statute confers an unconditional right to intervene; or
2. When the applicant claims an interest relating to the property or transaction which is the subject of the action and he is so situated that the disposition of the action may as a practical matter impair or impede his ability to protect that interest.
B. PERMISSIVE INTERVENTION. Upon timely application anyone may be permitted to intervene in an action:
1. When a statute confers a conditional right to intervene; or
2. When an applicant's claim or defense and the main action have a question of law or fact in common.
Intervention of right pursuant to § 2024(A)(1) may occur when a statute confers an unconditional right to intervene. OneBeacon pled that it was entitled to intervene pursuant to
¶17 OneBeacon argues for a right of intervention pursuant to § 2024(A)(2) based upon its status as Brown's UM Carrier. Section 2024(A)(2) states that intervention of right occurs when "the applicant claims an interest relating to the property or transaction which is the subject of the action and he is so situated that the disposition of the action may as a practical matter impair or impede his ability to protect that interest." The language of § 2024(A)(2) is also found in its federal counterpart, and we may look to the federal court interpretation when we apply similar language from our pleading code.
¶18 OneBeacon's potential subrogation interest against Patel is of the same nature as Brown's asserted claim against Patel. Generally, intervention as of a right will be denied when a party to a controversy adequately represents the interest of the intervenor.
A putative intervenor does not have an interest not adequately represented by a party to a lawsuit simply because it has a motive to litigate that is different from the motive of an existing party. So long as the party has demonstrated sufficient motivation to litigate vigorously and to present all colorable contentions, a district judge does not exceed the bounds of discretion by concluding that the interests of the intervenor are adequately represented
Natural Resources Defense Council, Inc. v. New York State Dept. of Environmental Conservation
OneBeacon's motion to intervene based upon subrogation was not based upon allegations that Brown's litigation conduct was less than vigorous.
¶19 We also note that an intervenor's interest must be "significantly protectable" or "direct, substantial, [and] legally protectable."
¶20 Conventional (or contractual) subrogation is created by an agreement or contract between parties granting the right to pursue reimbursement from a third party in exchange for payment of a loss. U.S. Fidelity and Guar. Co. v. Federated Rural Elec. Ins. Corp.,
¶21 An insurer's payment on a policy of insurance clearly creates a subrogation interest for the purpose of intervention.
¶22 We arrive at a slightly different conclusion when we examine an insurer's interest to intervene for the purpose of denying coverage of the policy based upon either an element of its insured's cause of action or an element of the alleged tortfeasor's defense. A plaintiff's uninsured motorist insurer may possess an interest that coincides with the defendant. The insurer may want the defendant/uninsured motorist to contest fault and damages.
¶23 Courts in several states have allowed an uninsured motorist carrier to intervene in a tort action between its insured an uninsured tortfeasor. Lima v. Chambers,
¶24 The Lima court next examined whether the insurer's interest would be adequately represented in the particular controversy. The court noted that the uninsured motorist admitted liability, lacked the assistance of counsel, and proposed to litigate the issue of damages pro se. Lima, 657 P.2d at 283. The court also noted that the uninsured motorist did not appear to be concerned with minimizing damages, but "in bringing the whole matter to a close as soon as possible." Id. Although the legal interests of an UM insurer seeking to deny coverage and the tortfeasor appeared on the surface to be identical, they were divergent in practice because of the tortfeasor's litigation conduct. The court concluded that the insurer's interest to deny coverage was not adequately represented. Id. at 284.
¶25 OneBeacon's intervention for the purpose of contesting the cause of Brown's injuries or the amount of his damages was not based upon the inability of, or any lack in, Patel's defense to Brown's claims. Patel admitted liability at trial, but the admission is consistent with OneBeacon's claims file and OneBeacon has not asserted that Patel's admission was inappropriate. Patel successfully litigated his side and a judgment on a defendant's verdict was entered for Patel. OneBeacon did not utilize the four-step analysis of § 2024(A)(2). Nothing in the record on appeal shows that OneBeacon had a right to intervene pursuant to § 2024(A)(2).
¶26 Legitimate disagreements can arise concerning the amount of coverage, cause of loss, and breach of policy conditions, and the tort of bad faith does not prevent the insurer from resisting payment or resorting to a judicial forum to resolve a legitimate dispute. Skinner v. John Deere Ins. Co.,
¶27 In Keel v. MFA Ins. Co.,
¶28 OneBeacon also argues for a UM insurer's right to intervene in an action by its insured against an alleged tortfeasor when the insurer seeks only to monitor the action. Intervention for the purpose of monitoring serves the insurer's purpose of determining whether the alleged torfeasor is appropriately defending the action during the course of the litigation. OneBeacon argues for the right to seek permissive intervention, and if subsequent litigation circumstances would justify an intervention as a matter of right pursuant to the four-step analysis of § 2024(A)(2), then the insurer could present its interests on the tort issues between the insured and the alleged tortfeasor. We agree with OneBeacon that courts favor intervention and joinder of party defendants as a convenient or pragmatic method of settling controversies relating to the same subject matter. We also conclude that § 2024 specifies when intervention is permissible.
¶29 In Landrum v. National Union Insurance Co.,
¶30 A UM insurer has a right to judicially contest the conditions that would give rise to an obligation to pay UM insurance. Skinner v. John Deere Ins. Co., supra. When a UM Insurer does not satisfy the conditions of intervention as a matter of right pursuant to § 2024(A), it may seek § 2024(B) permissive intervention in the cause of action brought by its insured against the alleged torfeasor based upon its assertion of contesting coverage due to an element of the tort cause of action or a defense thereto. If permissive intervention is granted a district court may make the intervention subject to conditions that prevent prejudicing the parties.
¶31 Brown asserts that the bad-faith action against OneBeacon must be adjudicated by a jury. Brown must point to some act or conduct of OneBeacon as the basis for the bad-faith claim. Brown asserts that OneBeacon's intervention is bad faith because it asserted a subrogation right when none existed, it adopted Patel's defenses, and OneBeacon's valuation of Brown's claim was less than the insurance available to Patel.
¶32 The district court granted the motion to intervene. Brown asserts that "OneBeacon set themselves up as an adversary instead of being on Brown's side, all of which is unreasonable and unjustified." Brown's Brief at 10. A UM insurer possesses a right to contest the "insured's side" and doing so, by itself, is not per se unreasonable. This is so because of the insurer's right to contest an insured's clam. Skinner, supra, and Ballinger, supra. Thus, intervention by a UM insurer is not by itself a violation of its duty to act in good faith towards its insured. On the other hand, the fact that an insurer was granted leave to intervene does not insulate that activity from a bad-faith action. An insurer may engage in certain litigation conduct pursuant to a procedural right and yet by that act violate its duty to an insured. Badillo v. Mid Century Insurance Co.,
¶33 A distinguishing characteristic for a bad-faith action is the particular duty owed to its insured that has been breached by the insurer. In the controversy before us, the essence of Brown's bad-faith claim is not merely that OneBeacon filed its petition to intervene without sufficient legal reasons for doing so; but that by maintaining mutually inconsistent subrogation claims and adopting Patel's defenses, OneBeacon was continuing to maintain a fence-sitting position two years after the claimed injury, neither denying or approving a UM claim; in sum, that OneBeacon abrogated a duty to timely investigate and either to pay Brown and seek subrogation or to deny the claim.
¶34 Brown's brief states the issues for the purpose of responding to OneBeacon's summary judgment request:
The issue(s) in this case are (1) OneBeacon asserting a subrogation claim against Patel and adopting Plaintiffs' allegations, essentially admitting Plaintiffs' claims are in excess of $300,000; (2) OneBeacon has falsely and wrongfully asserted such subrogation interest herein as a ruse to actually harm its insureds by actively defending Patel.
Brown's Brief at pg. 22.
In support of this characterization Brown argues that OneBeacon had almost two years to investigate Brown's claim prior to the intervention, and that OneBeacon's claims manager stated that "We filed intervention so we could find out what his injuries were and we could evaluate his claim to determine whether now we have a UM claim or not." Brown's Brief at 21. Brown asserts that OneBeacon never questioned the cause of Brown's injuries prior to the intervention. Id. at 22. Brown asserts that OneBeacon's claims manager and a legal opinion provided to OneBeacon prior to the intervention agreed that OneBeacon had no subrogation rights until it made a payment to Brown. Id. at 3, 11, 33-35. Brown asserts that
Throughout the claims file, OneBeacon noted that Mr. Patel was 100% at fault, never questioning the same. Further, OneBeacon's claims adjusters evaluated Brown's bodily injury, noting his bodily injuries, pain, suffering, and medical bills were causally related. OneBeacon never took statements of its insured, the eyewitnesses, the adverse driver (Mr. Patel), or the police officer. OneBeacon never requested that a medical examination be performed. In over a year and a half, OneBeacon never questioned medical causation in the file.
Brown's Brief at 3.
Brown also asserts that OneBeacon had no written guidelines, claims manual, or training regarding how to evaluate damages. Id. at 8, 38. And again, "It is OneBeacon's responsibility to investigate and evaluate the claims. OneBeacon is abdicating its responsibilities and asking the Court and jury to be part of its claims department . . ." Brown's Brief at 5.
¶35 OneBeacon asserts that it has a right to litigate contested claims, a right to intervene and that the jury's verdict for Patel forecloses, as a matter of law, any bad-faith claim. It argues that an insurer's methods in investigating and litigating a UM claim may be conclusively justified if a court subsequently determines that no UM payment is owed. In other words, it seeks for a "means justified by ends" rule of law for an UM insurer's handling of UM claims. A related complaint is made by Brown concerning OneBeacon's use of information that OneBeacon did not possess until after OneBeacon's intervention. Evidence relating to facts that OneBeacon did not have or rely on until after the time period in question, that is, from the time of OneBeacon's notice of the collision until the intervention, is not relevant to an adjudication of a bad-faith claim concerning the intervention. Newport v. USAA,
¶36 An insured in an action of this nature is required to show that (1) he or she was covered under an automobile liability insurance policy issued by the insurer and that the insurer was required to take reasonable actions in handling the UM claim, (2) the actions of the insurer were unreasonable under the circumstances, (3) the insurer failed to deal fairly and act in good faith toward the insured in handling the UM claim, and (4) the breach or violation of the duty of good faith and fair dealing was the direct cause of any damages sustained by the insured. Badillo v. Mid Century Insurance Co.,
¶37 In two opinions applying Oklahoma law the Tenth Circuit Court has stated that an insurer does not breach the duty of good faith to pay a claim "by litigating a dispute with its insured if there is a 'legitimate dispute' as to coverage or amount of the claim, and the insurer's position is 'reasonable and legitimate.' " Vining on Behalf of Vining v. Enterprise Financial Group, Inc., 148 F.3d 1206, 1213 (10th Cir. 1998), quoting, Oulds v. Principal Mut. Life Ins. Co., 6 F.3d 1431, 1436 (10th Cir.1993). The Oulds opinion relied upon Thompson v. Shelter Mut. Ins., 875 F.2d 1460, 1462 (10th Cir.1989) and Manis v. Hartford Fire Ins. Co.,
¶38 OneBeacon contested Brown's claim when it intervened and asserted Patel's defenses against Brown in Brown's action against Patel. It sought a legal adjudication that Brown's claim was not covered by the policy. OneBeacon, as an insurer, possessed a procedural right to take such action, but for the purpose of the bad-faith action the question remains whether such conduct was legitimate and reasonable.
¶39 Summary judgment is appropriate where it appears there is no substantial controversy as to any material fact and one party is entitled to judgment as a matter of law. Baker v. Saint Francis Hosp.,
¶40 The facts presented by the parties conflict on why OneBeacon filed its petition for intervention. The facts presented by Brown, viewed in a light most favorable to Brown, reveal a claims file showing a value of Brown's UM claim; that his injuries were caused by the motor vehicle collision involving Patel; that no, or least a very minimal, investigation was performed by OneBeacon during the two years before it intervened in Brown's action; that the major concern expressed by OneBeacon in its claims file was whether OneBeacon needed to file an action against Patel to preserve subrogation rights; the amount of reserve OneBeacon needed for the UM claim; and OneBeacon's representative stating that intervention was made to evaluate the UM claim. Brown's asserted facts do not agree with OneBeacon's assertions that it was concerned prior to intervention whether Brown's claim was covered by the policy. A substantial question of material fact exists regarding the reasons for the petition for intervention, or legal action, OneBeacon instituted against Brown. The district court's order granting summary judgment to OneBeacon must thus be reversed.
¶41 EDMONDSON, V.C.J., LAVENDER, OPALA, WATT, AND COLBERT, JJ., Concur.
¶42 KAUGER, J., Concurs in result.
¶43 WINCHESTER, C.J., Concurs in part, dissents in part.
¶44 HARGRAVE, TAYLOR, JJ., Dissent.
1 Beth Ann Brown is listed as a party to the order granting summary adjudication that is before us on appeal. She subsequently filed a dismissal with prejudice in the District Court. The petition in error filed by Johnny Weldon Brown lists himself as the appellant. In the opinion we refer to Brown, or appellant, in the singular.
2 OneBeacon treats both petitions to intervene as filed by itself, although the trial court referred to intervenors in the plural form. The summary judgment briefs, including OneBeacon's, do not distinguish between intervenors for the purpose of the arguments made therein.
3 12 O.S. § 2013(G) provides:
G. CROSS-CLAIMS. A pleading may state as a cross-claim any claim by one party against any party who is not an opposing party arising out of the transaction or occurrence that is the subject matter either of the original action or of a claim therein or relating to any property that is the subject matter of the original action. A cross-claim may assert a claim that the party against whom it is asserted is or may be liable to the cross-claimant for all or part of a claim asserted in the action against the cross-claimant.
4 The trial court's judgment states that it based its adjudication on Intervenors' Brief in Support of Renewed Supplemental Motions for Partial Summary Judgment (filed November 10, 2003), Plaintiffs' Objection and Renewed Supplemental Response (November 24, 2003), and Intervenors' Reply Brief to Plaintiffs' Response (December 29, 2003).
The summary judgment briefs function as the briefs on appeal unless an appellate court orders otherwise. Harkrider v. Posey, 2000 OK 94, n. 50, 24 P.3d 821, 833; Carswell v. Oklahoma State University, 1999 OK 102, n. 2, 995 P.2d 1118, 1121; Simpson v. Farmers Ins. Co., Inc., 1999 OK 51, ¶ 3, 981 P.2d 1262, 1264; Purcell v. Santa Fe Minerals, Inc., 1998 OK 45, n. 2, 961 P.2d 188, 190.
5 The phrase "bad faith" is used here as a shorthand reference to a breach of the duty of good faith and fair dealing. But see, e.g., Timmons v. Royal Globe Ins. Co., 1982 OK 97, 653 P.2d 907, 911 (bad faith breach of contract distinguished from breach of covenant of good faith and fair dealing).
6 See, e.g., Tapp v. Perciful, 2005 OK 49, ¶ 9, 120 P.3d 480, 482-483 (Court has upheld the public policy embodied by the compulsory liability insurance statutes when invalidating clauses in insurance policies that are contrary to the purpose and intent of those statutes); May v. National Union Fire Ins. Co. of Pittsburgh, Pennsylvania, 1996 OK 52, 918 P.2d 43, 44 (UM coverage may be imputed to an insurance contract by operation of law); Brown v. United Services Auto. Ass'n, 1984 OK 55, 684 P.2d 1195, 1198 ("It is settled in Oklahoma that insurance policy provisions and definitions which purport to condition, limit or dilute the provisions of the uninsured motorist statute are void and unenforceable."); Christian v. American Home Assurance Company, 1977 OK 141, 577 P.2d 899, 903 (statutory duty to timely pay certain claims imposed by statute and duty required to be a part of certain insurance contracts); Keel v. MFA Ins. Co., 1976 OK 86, 553 P.2d 153, 157 (a consent to sue clause, which attempted to place the requirement of the insurer's permission as a condition precedent, conditioned and limited the character of coverage mandated by the statute, and was thus void and of no effect).
7 We have explained that an insurer's duty to deal fairly and act in good faith must be based upon either a contractual or statutory relationship. Roach v. Atlas Life Ins. Co., 1989 OK 27, 769 P.2d 158, 161. While we need not address the full scope of an insured/insurer statutory relationship, we note that one example is a statutorily defined interest or status, and an insurer's failure to implement that statute as part of the contract may give rise to a bad-faith action. See, e.g., Conti v. Republic Underwriters Ins. Co., 1989 OK 128, 782 P.2d 1357, 1360 (insurer argued a legitimate dispute existed on the issue of an insurable interest and that a directed verdict should have been granted on a bad-faith claim, and the Court stated that the argument was without merit because insurer failed to apply the statutory definition for an insurable interest).
8 Generally, the rules of construction governing the interpretation of contracts apply when construing obligations created by an insurance contract; and an insurance policy, a contract of adhesion, is construed to give reasonable effect to its provisions. Dodson v. St. Paul Ins. Co., 1991 OK 24, 812 P.2d 372, 376; National Life & Acc. Ins. Co. v. Cudjo, 1956 OK 305, 304 P.2d 322, 325. See also May v. Mid-Century Ins. Co., 2006 OK 100, ¶ 22, 151 P.3d 132, 140 (The rules of construction and analysis applicable to contracts govern equally insurance policies). A contract consists not only of its express language, but also of the obligations that are reasonably implied. Wright v. Fidelity & Deposit Co. of Md., 1935 OK 1215, 54 P.2d 1084, 1087. See 15 O.S. 2001 § 172.
9 McCoy v. Oklahoma Farm Bureau Mut. Ins. Co., 1992 OK 43, 841 P.2d 568, 570 - 571, (Court concluded that evidence supported jury's conclusion that insurer's investigation and handling of insurance claim was conducted in bad faith); Buzzard v. Farmers Ins. Co., Inc., 1991 OK 127, 824 P.2d 1105, 1109 ("To determine the validity of the claim, the insurer must conduct an investigation reasonably appropriate under the circumstances.").
10 Wolf v. Prudential Ins. Co. of America, 50 F.3d 793, 800 (10th Cir. 1995), (ambiguous term in an insurance contract does not create a valid defense to a bad-faith claim based upon nonpayment because familiar rule of judicial interpretation of insurance contracts applies, and words of inclusion are liberally construed in favor of the insured and words of exclusion strictly construed against the insurer).
11 Barnes v. Oklahoma Farm Bureau Mut. Ins., 2000 OK 55, ¶ 21, 11 P.3d 162, 171 (bad faith action was supported by insurer's failure to follow "the law readily available to insurer and its counsel" when handling insured's underinsured motorist claim).
12 Generally, all torts involve a breach of a duty or obligation imposed upon a party by the law itself where the breach is a civil wrong, other than contractual, for which an action for damages may lie. W. Page Keeton et al., Prosser and Keeton on the Law of Torts, 1-4 (5th ed.1984). In negligence actions we have explained that the existence of a duty is a question of law. First Nat. Bank in Durant v. Honey Creek Entertainment Corp., 2002 OK 11, ¶17, 54 P.3d 100, 105; Delbrel v. Doenges Bros. Ford, Inc., 1996 OK 36, 913 P.2d 1318, 1320. The exact location of an insurer's duty on the tort spectrum of negligence to intentional conduct, and all points between, is of no consequence to the principle that an issue on the existence and scope of a duty in tort presents a question of law for this Court.
13 Questions of law adjudicated by summary judgment are reviewed by this Court de novo. Graham v. Travelers Ins. Co., 2002 OK 95, ¶ 8, 61 P.3d 225, 228; Barnes v. Oklahoma Farm Bureau Mut. Ins. Co., 2000 OK 55, ¶ 4, 11 P.3d 162, 166.
14 We have often explained that where the text of the Federal Rules of Civil Procedure has been adopted in the Oklahoma Pleading Code the construction placed on it by federal and state courts should be presumed to have been adopted as well. See, e.g., Watford v. West, 2003 OK 84, n. 4, 78 P.3d 946, 949; Winston v. Stewart & Elder, P.C., 2002 OK 68, n. 27, 55 P.3d 1063, 1071; Campbell v. Campbell, 1994 OK 84, n.7, 878 P.2d 1037, 1042; Gay v. Akin, 1988 OK 150, n. 18, 766 P.2d 985, 990
15 The analysis using four requirements to show a right to intervene was used by federal courts before and after our adoption of the federal rule as part of our pleading code. See, e.g., Travelers Indem. Co. v. Dingwell, 884 F.2d 629, 637 (1st Cir. 1989); Restor-A-Dent Dental Labs., Inc. v. Certified Alloy Prods., Inc., 725 F.2d 871, 874 (2nd Cir. 1984); Newport News Shipbuilding and Drydock Co. v. Peninsula Shipbuilders' Ass'n, 646 F.2d 117, 120 (4th Cir. 1981); Armstrong v. Capshaw, Goss & Bowers, LLP, 404 F.3d 933, 937 (5th Cir.2005); New Orleans Pub. Serv., Inc. v. United Gas Pipe Line Co., 732 F.2d 452, 463 (5th Cir.), cert. denied, 469 U.S. 1019, 105 S. Ct. 434, 83 L. Ed. 2d 360 (1984); Jordan v. Michigan Conference of Teamsters Welfare Fund, 207 F.3d 854, 862 (6th Cir. 2000); Heartwood, Inc. v. U.S. Forest Service, Inc., 316 F.3d 694, 700 (7th Cir. 2003); Commodity Futures Trading Com'n v. Heritage Capital Advisory Services, Ltd., 736 F.2d 384, 386 (7th Cir. 1984); Prete v. Bradbury, 438 F.3d 949, 954 (9th Cir. 2006); San Juan County, UT v. U.S., 420 F.3d 1197, 1207 (10th Cir. 2005); In re Kaiser Steel Corp., 998 F.2d 783, 791 (10th Cir. 1993); Jones v. Prince George's County, Maryland, 358 U.S.App.D.C. 276, 348 F.3d 1014, 1018-1019 (D.C.Cir.2003).
16 In re General Tire and Rubber Co. Securities Litigation, 726 F.2d 1075, 1087 (6th Cir. 1984), cert. denied, Schreiber v. Gencorp, Inc., 469 U.S. 858, 105 S. Ct. 187, 83 L. Ed. 2d 120 (1984); Utahns for Better Transp. v. U.S. Dept. of Transp., 295 F.3d 1111, 1117 (10th Cir. 2002).
17 City of Stilwell, Okl. v. Ozarks Rural Elec. Co-op. Corp., 79 F.3d 1038, 1042 (10th Cir. 1996), quoting, Bottoms v. Dresser Indus., Inc., 797 F.2d 869, 872 (10th Cir.1986), and citing, Kiamichi R.R. Co. v. National Mediation Bd., 986 F.2d 1341, 1345 (10th Cir.1993).
18 Donaldson v. United States, 400 U.S. 517, 531, 91 S. Ct. 534, 542, 27 L. Ed. 2d 580 (1970); Washington Elec. Co-op., Inc. v. Massachusetts Mun. Wholesale Elec. Co., 922 F.2d 92, 97 (2d Cir. 1990); Piambino v. Bailey, 610 F.2d 1306, 1321 (5th Cir.1980), cert. denied, 449 U.S. 1011, 101 S. Ct. 568, 66 L. Ed. 2d 469 (1980); Coalition of Arizona/New Mexico Counties for Stable Economic Growth v. Department of Interior, 100 F.3d 837, 840 (10th Cir.1996).
19 Washington Elec. Co-op., Inc. v. Massachusetts Mun. Wholesale Elec. Co., 922 F.2d 92, 97 ( 2d Cir. 1990), citing, H.L. Hayden Co. v. Siemens Medical Systs., Inc., 797 F.2d 85, 88 (2d Cir.1986); Restor-A-Dent Dental Laboratories, Inc. v. Certified Aloe Prods., Inc., 725 F.2d 871, 874 (2d Cir.1984).
20 U.S. Fidelity and Guar. Co. v. Federated Rural Elec. Ins. Corp., 2001 OK 81, ¶¶ 9-10, 37 P.3d 828, 831; Ohio Casualty Insurance Company v. First National Bank of Nicholasville, 1967 OK 55, 425 P.2d 934, 941; Restor-A-Dent Dental Laboratories, Inc. v. Certified Aloe Prods., Inc., 725 F.2d 871, 875-876 (2d Cir.1984); Black v. Texas Emp. Ins. Ass'n, 326 F.2d 603, 604 (10th Cir. 1964).
21 We are not called upon in this proceeding to discuss the procedure of 36 O.S.2001 § 3636, as amended, or any rights created thereby, and the opinion does not address the scope of that statute.
22 This result is consistent with federal court construction of the four requirements for intervention as a matter of right and the inadequacy of representation by collusion between the party purporting to represent the position of another and those on the other side of the suit. Shump v. Balka, 574 F.2d 1341, 1345 (10th Cir. 1978).
23 Section 2024 (A)(2) does not use "is or may be bound," but rather that the disposition of the action "may as a practical matter impair or impede" the intervenor's ability to protect his or her interest. 12 O.S.Supp.2003 § 2024 (A)(2). The "is or may be bound" language in the Utah rule was amended after Lima and now corresponds to Oklahoma's version of the requirement. Chatterton v. Walker, 938 P.2d 255, 258 (Utah 1997).
24 Some states allow post-judgment litigation of coverage issues in declaratory judgment actions. See, e.g., Mutual Assur., Inc. v. Chancey, 781 So. 2d 172, 175 (Ala. 2000). The parties in our controversy today do not present, and we decline to address sua sponte, the scope of 12 O.S.Supp.2005 § 1651 and the availability, or non-availability, of a declaratory judgment proceeding for construction of an insurance policy. Thus we do not address intervention based upon a declaratory judgment request for adjudication of either tort issues or policy conditions unrelated to tort issues.
25 Similarly, the fact that an insured ultimately prevails on his insurance claim does not make an insurer's previous denial of the claim bad faith per se. Manis v. Hartford Fire Ins. Co., 1984 OK 25, 681 P.2d 760, 762.
26 Because we reverse the summary adjudication we need not address in detail which evidentiary materials submitted by OneBeacon should have been disregarded, or stricken, by the district court as requested by Brown.