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Brune v. Crawford and Co.

Court of Appeals of Oklahoma, Division II

February 7, 2017

KENNETH L. BRUNE, P.C., Plaintiff/Appellee,
v.
CRAWFORD AND COMPANY, a foreign corporation registered in Oklahoma, Defendant/Appellant, and AMERICAN TRANSPORT INSURANCE COMPANY, a foreign corporation; AMERICAN TRANSPORT INSURANCE CORPORATION, a foreign corporation; RUSSELL WILSON, an individual; DAN PRITCHARD, an individual; and DON PHILLIPS, an individual, Defendants.

          Mandate Issued: 06/20/2017

         APPEAL FROM THE DISTRICT COURT OF TULSA COUNTY, OKLAHOMA HONORABLE E. MARK BARCUS, TRIAL JUDGE

          Daniel E. Smolen, SMOLEN, SMOLEN & ROYTMAN, PLLC, Tulsa, Oklahoma, for Plaintiff/Appellee

          Larry D. Ottaway, Amy Sherry Fischer, Andrew M. Bowman, FOLIART, HUFF, OTTAWAY & BOTTOM, Oklahoma City, Oklahoma, for Defendant/Appellant

          JOHN F. FISCHER, PRESIDING JUDGE

         ¶1 Crawford and Company appeals a judgment entered on a jury verdict in favor of Kenneth L. Brune. Brune was hired to defend an insured in a personal injury action pursuant to an insurance policy issued by American Transport Insurance Company. Brune was contacted by Crawford as the agent and third-party administrator for American. When American failed to pay for his services, Brune sued American and Crawford and individual employees of each company. Brune obtained a judgment against American for breach of contract. The district court then granted Brune's motion for partial summary judgment, finding that Crawford was a party to the contract between Brune and American and was liable for American's breach of that contract. Although the case was also tried on other liability issues and damages, the jury was instructed that, as a matter of law, Crawford was liable to Brune for American's breach of its contract with Brune. We find dispositive Crawford's appeal of that portion of the judgment entered on the jury's verdict awarding damages to Brune against Crawford for American's breach of contract. Because Brune's motion for partial summary judgment was granted in error, the entire judgment against Crawford must be vacated and this case remanded for further proceedings.

         BACKGROUND

         ¶2 In August of 2006, James Golden was injured when he was struck by a vehicle driven by Michael Joe Pruitt, an employee of Tulsa Airport Taxi. The vehicle Pruitt was driving at the time of the accident was operated by Tulsa Airport Taxi and covered by an insurance policy issued by American. Golden sued the taxi company and Brune was hired to defend that action. He did so successfully, obtaining a judgment in his client's favor on October 23, 2008. When American failed to pay for his services, Brune sued American for breach of contract and open account. He obtained service on American by certified mail and a judgment by default when American failed to appear. Brune then amended his petition to add Crawford and three individuals as defendants: Russell Wilson, American's president, and two Crawford employees, Dan Pritchard and Don Phillips. Brune sued these defendants for breach of contract, open account, actual and constructive fraud, civil conspiracy, promissory estoppel, unjust enrichment and tortious misrepresentation. He also sought punitive damages.

         ¶3 Prior to trial, Brune filed a motion for partial summary judgment, which the district court granted, in part. The district court found that Crawford was a party to the contract between American and Brune and, therefore, liable to Brune for American's failure to pay Brune the reasonable amount of his attorney fees for defending Tulsa Airport Taxi. Brune dismissed his contract and open account theories against Pritchard and Phillips, and the case proceeded to trial. [1] At the conclusion of the trial, the jury was instructed that the district court had previously found that Crawford was liable to Brune for American's breach of contract. The jury returned a verdict against Crawford on Brune's contract theory in the amount of $46, 986.77, and, as interpreted by the district court after questioning the jury, on at least one of Brune's tort claims in the amount of $212, 750. After some confusion about the jury's intent regarding its verdict, the jury retired again and returned an additional verdict against Crawford for $100, 000 in punitive damages. The jury also returned a verdict against Brune and in favor of Pritchard and Phillips on his claims against them. Brune has not appealed the adverse judgments in favor of Pritchard and Phillips, and those judgments are unaffected by this Opinion.

         ¶4 Crawford appeals the judgment entered against it, challenging the partial summary judgment ruling and Brune's evidence of non-attorney fee damages. Crawford also challenges the verdict forms and claims that the jury's verdicts are inconsistent insofar as concerns the jury's findings in favor of the individual defendants and the finding against Crawford on the issue of respondeat superior. Because we find the summary judgment issue dispositive, we will not address the remaining issues raised by Crawford in this appeal. [2]

         STANDARD OF REVIEW

         ¶5 Title 12 O.S.2011 § 2056 governs the procedure for summary judgment in this case. A motion for summary judgment "should be rendered if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Id. The de novo standard controls an appellate court's review of a district court order granting summary judgment. Carmichael v. Beller, 1996 OK 48, ¶ 2, 914 P.2d 1051. De novo review involves a plenary, independent and non-deferential examination of the trial court's rulings of law. In re Estate of Bell-Levine, 2012 OK 112, ¶ 5, 293 P.3d 964.

         ANALYSIS

         ¶6 From the summary judgment record, the following ...


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