United States District Court, W.D. Oklahoma
BYRON SIMPSON, Personal Representative for the Estate of LIONA MAY SIMPSON, Deceased, Plaintiff,
DALJEET SINGH LITT, an individual; and, MOHAMMAD TANVEER DBA TS TRUCKING, a foreign corporation; and, WESCO INSURANCE COMPANY, Defendants.
L.RUSSELL UNITED STATES DISTRICT JUDGE
the Court is Defendant Wesco Insurance Company's Motion
to Dismiss. Doc. 4. The matter is fully briefed. Docs. 6
& 7. Defendant's Motion is GRANTED.
Byron Simpson, personal representative of the Estate of Liona
May Simpson, brings this negligence action against Defendants
after Ms. Simpson sustained fatal injuries in a car crash in
November 2014 on an Oklahoma highway. Doc. 1, at 2. Mr.
Simpson names as a defendant not only the truck driver that
allegedly caused the crash (Defendant Litt) and the
driver's employer (Mohammad Tanveer d/b/a TS Trucking),
but also the trucking company's insurer, Wesco Insurance
Company (Wesco). Doc. 1, at 2. In its Motion to Dismiss,
Wesco argues that Mr. Simpson has no statutory basis for
naming Wesco as a defendant before he has obtained judgment
against TS Trucking.
Federal Rule of Civil Procedure 8(a)(2), a pleading must
contain a ‘short and plain statement of the claim
showing that the pleader is entitled to relief.'”
Ashcroft v. Iqbal, 556 U.S. 662, 677-78 (2009). To
survive a motion to dismiss, a pleading must offer more than
“labels and conclusions” and “a formulaic
recitation of the elements of a cause of action.”
Bell Atlantic Corp v. Twombly, 550 U.S. 544, 555
(2007). There must be “sufficient factual matter,
[which if] accepted as true . . . state[s] a claim to relief
that is plausible on its face.” Iqbal, 556
U.S. at 678 (quoting Twombly, 550 U.S. at 570). The
Court “must accept all the well-pleaded allegations of
the complaint . . . and must construe them in the light most
favorable to the [non-moving party].” Thomas v.
Kaven, 765 F.3d 1183, 1190 (10th Cir. 2014).
sole issue here is whether Wesco may be named as a defendant
prior to judgment being entered against its insured. Mr.
Simpson alleges it may, since “[p]ursuant to 47 O.S.
§ 169, Defendant Wesco is bound to make compensation for
injuries or death of persons resulting from the operations
and conduct of Defendant Mohammad Tanveer [d/b/a] TS Trucking
. . . and/or its agents and employees.” Doc. 1, Ex. 1,
at 2. Under Oklahoma's statutory scheme, however, that is
not the case.
general rule in Oklahoma is that a “defendant's
insurer cannot be directly sued by a plaintiff.”
Hobbs v. Rui Zhao, No. 13-CV-0673-CVE-FHM, 2014 WL
3898408, at *3 (N.D. Okla. Aug. 11, 2014) (citing Daigle
v. Hamilton, 782 P.2d 1379, 1380 & n. 1
(Okla.1989)). The Oklahoma Supreme Court did recognize in
Daigle, however, that injured parties could jointly
sue motor carriers and their insurance companies when the
carrier was required to file proof of a liability insurance
policy with the Oklahoma Corporation Commission (OCC) under
47 Okla. Stat. § 169(A). Id. That statute
forbids the OCC from issuing any certificate to a motor
carrier of household good to operate in Oklahoma until the
carrier has filed with the OCC proof of an insurance policy
covering liability arising out of the motor carrier's
operations. The Daigle court reasoned that
this statute-not the insurance policy itself-created a direct
liability of the insurance company to an injured party and
warranted naming the insurance company as a defendant. 782
P.3d at 1381.
second Oklahoma law, however, also justifies naming an
insurer as a party. When Oklahoma enacted the Motor Carrier
Act of 1995 (MCA) Okla. Stat. 47 § 230.21, et
seq., it simply adopted the idea behind § 169. The
MCA makes it unlawful for “any motor carrier to operate
or furnish service within [Oklahoma] without first having
obtained from the [Oklahoma Corporation Commission] a
license, ” id. § 230.28, and requires
that the carrier have an approved insurance policy or bond
requirement before the OCC grant it a license, id.
§ 230.30. The MCA, however, did not entirely supersede
§ 169, since the MCA applies only “to the
transportation of passengers or property by motor carriers
and private carriers, except motor carriers of household
goods and used emigrant movables, over public highways
of this state.” Okla. Stat. 47 § 230.22(C). In
contrast, § 169, now part of Oklahoma's Household
Goods Act of 2009, applies to “intrastate
transportation by motor carriers of household goods, ”
with motor carriers of household goods limited to
“person[s] transporting household goods . . . with an
origin and destination within [Oklahoma].” Okla. Stat.
47, § 161A
“[section] 169 applies by its very terms only to . . .
household goods and used emigrant movables or other
intrastate motor carriers.” Mason v. Dunn, No.
CIV-14-282-KEW, 2016 WL 1178058, at *2 (E.D. Okla. Mar. 23,
2016); see also White v. Lewis, No. CIV-13-862-C,
2014 WL 7272464, *1 (W.D. Okla. Dec. 18, 2014) (“The
clear language of § 169 establishes that it applies only
to those motor carriers whose principal place of business in
is Oklahoma); Irvan v. Golodnykh, No. CIV-16-075,
2016 WL 3562057, *1 (E.D. Okla. June 24, 2016) (granting
summary judgment on identical grounds). So for our purposes,
Mr. Simpson has failed to state a claim against Wesco under
Okla. Stat. § 169. There has been no allegation TS
Trucking is a carrier of household goods, and is appears that
TS Trucking is not an intrastate carrier given Mr.
Simpson's allegation that the company is a California
corporation. Doc. 1, Ex. 1, at 2. The Court therefore
dismisses Wesco from this case.
conceding that § 169 provides no basis for naming Wesco
as a defendant, Mr. Simpson requests leave to amend. Pursuant
to Fed.R.Civ.P. 15(a)(2), a plaintiff may amend his complaint
after the defendant has answered only with leave of court.
“The Court has the discretion whether to grant a motion
seeking leave to amend, and leave should be freely granted
where justice so requires.” Midcities Metro. Dist.
No. 1 v. U.S. Bank Nat'l Ass'n, 44 F.Supp.3d
1062, 1065 (D. Colo. 2014). That said, a Court may deny leave
to amend where doing so would be futile. Frank v. U.S.
West, Inc., 3 F.3d 1357, 1365 (10th Cir. 1993).
might be. As explained, the only other statute under which
Wesco could be named as a defendant is Okla. Stat. 47, §
230.30. From the facts as pled, it is not clear whether
§ 230.30 would apply to TS Trucking. So the Court will
grant Mr. Simpson leave to amend, but in hopes of not having
to revisit the issue of whether Wesco is a proper defendant,
the Court will inform Mr. Simpson of its understanding of
when § 230.30 applies.
Oklahoma Supreme Court in Daigle seemed to lay a
blanket rule that a plaintiff could maintain a joint, direct
action against the carrier and the insurer by virtue of the
carrier's obligation to maintain insurance under the
statute. 782 P.2d 1379, 1381 (Okla. 1989). Under that
reasoning, § 230.30 would seem to allow Mr. Simpson to
state a claim here. Unfortunately for him, the Oklahoma Court
of Civil Appeals carved out an exception to this rule in
Fierro v. Lincoln Gen. Ins. Co.: because neither
§ 169 nor § 230.30 applies to interstate
motor carriers, the interstate carrier's insurance
company cannot be named as a defendant prior to judgment
being entered against the carrier. 217 P.3d 158, 160
that TS Trucking appears to be an interstate carrier,
Fierro suggests that Wesco is not a proper defendant
here. This conclusion appears to be in line with the federal
courts that have taken up the issue, none of which accept Mr.
Simpson's argument that Daigle never
distinguished between foreign and domestic interstate
carriers. His implicit argument appears to be that
Oklahoma's participation in the federal government's
Unified Carrier Registration (UCR) System means that
interstate carriers operating within Oklahoma, such as TS
Trucking, are still insured and their insurance companies may
therefore be named as joint defendants under Oklahoma law.
background, under the UCR system a motor carrier may operate
in several states, including Oklahoma, simply by filing proof
of insurance in its home state. Mason, 2016 WL
1178058, at * 2 (citing 49 C.F.R. § 367.4; 49 U.S.C.
§ 14504a; Okla. Stat. 47, § 162.1). Thus, “a
for-hire motor carrier engaged in interstate commerce that
complies with the Federal Motor Carrier Safety Regulations
and registers its liability insurance policy or bond in its
base state need not register in any other state participating
in the UCR agreement”-such as Oklahoma. Beebe,
2012 WL 137780, at *1 n.1 (citing 49 U.S.C. §§
13908, 14504a). And because (1) these interstate carriers
need not register in Oklahoma and (2) § 230.30 applies
only to motor carriers required to obtain a license
from the OCC, interstate carriers who have registered proof
of insurance in their home state rather than Oklahoma are not
subject to § 230.30. See e.g., White, 2014 WL
7272464, *1 (W.D. Okla. Dec. 18, 2014) (citing
Fierro, 217 P.3d at 159 (Adams, J. concurring)).
§ 230.30 is inapplicable to these interstate carriers,
federal courts have been unanimous in holding that the
insurance companies for interstate carriers who have not
filed proof of insurance in Oklahoma may not be named as
joint defendants. See Mason, 2016 WL 1178058, at *2
(E.D. Okla. Mar. 23, 2016) (“The terms of Section
230.30 clearly apply in the limited circumstances where the
motor carrier obtains a license from the Oklahoma Corporation
Commission as defined by Okla. Stat. tit. 47 §
230.23(3).”); White, 2014 WL 7272464*1 (W.D.
Okla. Dec. 18, 2014) (finding that because the insured was a
foreign corporation and therefore not required under the UCR
System to file a certificate with the Oklahoma Corporation
Commission, its insurance company was not a proper defendant
under Okla. Stat. tit. 47, § 230.30); Beebe v.
Flores, No. CIV-11-1381-HE, 2012 WL 137780, *1 (W.D.
Okla. Jan. 28, 2012) (declining to accept legal conclusion
that insurance company was a proper party under § 230.30
and therefore dismissing it because “this court, other
federal courts, and a panel of the Oklahoma Court of Civil
Appeals, have held that§ 230.30(A) does not authorize a
direct action against the insurer of an out-of-state motor
carrier that has registered in its ‘home' or
‘base' state and not with the Oklahoma Corporation
Commission”); Hubbard v. Liberty Mutual Fire Ins.
Co., No. CIV-06-356, 2007 WL 1299270 (E.D. Okla. May 1,
2007) (granting summary judgment to insurer because motor
carrier did not obtain license from or file insurance with
Oklahoma Corporation Commission); but see Mize v. Liberty
Mutual Ins. Co., 393 F.Supp.2d 1223, 1226 (W.D. Okla.
2005) (refusing to dismiss insurance company ...