United States District Court, E.D. Oklahoma
A. WHITE UNITED STATES DISTRICT JUDGE
the court is the motion of certain defendants for summary
judgment. Plaintiff filed this action seeking a declaratory
judgment that coverage on a Safeco policy had terminated at
the time of the pertinent accident, that therefore Safeco had
no duty to defend or indemnify Portra McAlister (who was
driving the pertinent vehicle - a 1995 Buick LeSabre -- and
was involved in the accident), and that Robert and Georgine
Dagenet did not have an insurable interest in the relevant
automobile at the time of the accident.
standard for the granting of a summary judgment motion is set
forth in Rule 56(a) F.R.Cv.P., i.e., that “there is no
genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” A dispute is
genuine when the evidence is such that a reasonable jury
could return a verdict for the nonmoving party, and a fact is
material when it might affect the outcome of the suit under
the governing substantive law. Bird v. West Valley
City, 832 F.3d 1188, 1199 (10th Cir.2016).
The court views the evidence and draws reasonable inferences
in the light most favorable to the nonmoving party.
Brecek & Young Advisors, Inc. v. Lloyds of London
Syndicate 2003, 715 F.3d 1231, 1237 (10th
Cir.2013). The parties have waived jury trial (#91) but that
does not affect the applicable standard, as “disputed
facts in a nonjury case are determined by trial and not on
summary judgment motion.” Taggart v.
Wadleigh-Maurice, Ltd., 489 F.2d 434, 439
(3rd Cir.1973); see also Roth v. American
Hosp. Supply Corp., 965 F.2d 862, 865 (10th
accident took place on October 17, 2010, involving the
vehicle McAlister was driving, a vehicle driven by Brigitte
Smith-Thomason (defendant in the case at bar) and another
vehicle driven by Ike Lee. Carol Cerniglia was a passenger in
the car driven by Lee. Both Cerniglia and Lee are also named
defendants in this case. The Dagenets are also named
defendants. McAlister has since passed away, and the personal
representative of her estate is a defendant in this action.
The personal representative has filed an answer (#33) but is
represented by separate counsel from the other defendants and
has not joined the present motion.
about October 10, 2010, the Dagenets had “given”
the automobile to McAlister, at least in the sense that she
was a permissive driver. Title to the vehicle was still in
the name of Robert Dagenet at the time of the accident.
Plaintiff argues that nevertheless the transfer of the
vehicle constituted a gift to Portra McAlister before the
accident and therefore the Dagenets no longer had an
insurable interest in the vehicle. Accordingly, the argument
continues, coverage for the vehicle under the Safeco policy
terminated at the same time. This appears to be an issue of
first impression under Oklahoma law. Therefore, this court
must attempt to predict how the state's highest court
would resolve the issue. See Belnap v. Iasis
Heathcare, 844 F.3d 1272, 1295 (10th
Cir.2017). The court may seek guidance from decisions
rendered by lower courts in the relevant state, appellate
decisions in other states with similar legal principles,
district court decisions interpreting the law of the state in
question, and the general weight and trend of authority in
the relevant area of law. Wade v. EMCASCO Ins. Co.,
483 F.3d 657, 666 (10th Cir.2007).
constitute a valid inter vivos gift under Oklahoma
law, the donor must be competent to make a gift. Estate
of Davenport v. C.I.R., 184 F.3d 1176, 1181
(10thCir.1999)(citations omitted). In addition,
there must be donative intent, delivery of the gift, and the
donor must strip himself of all ownership and dominion over
the subject matter. Id. (citations omitted). The
deposition testimony of the Dagenets (at the pages referenced
after Defendants' Statement of Uncontroverted Facts,
¶¶2 & 3, #73 at page 6 of 28 in CM/ECF
pagination) is clear that, in the Dagenets' view,
McAlister was driving the vehicle in what might be described
as (these are the court's words, not the Dagenets')
an extended test drive. That is, McAlister was driving the
car to see if McAlister liked it. The gift would take place
(and title transferred) if McAlister decided that
McAlister wanted the car.
response, plaintiff points to a post-accident recorded
statement by McAlister (#79-2). McAlister states that the
Dagenets “gave” her the car, (Id. at
page 2 of 4), but it is far from clear that McAlister was
answering with knowledge of the distinction between
permissive use vs. gift. Moreover, McAlister evidently was at
Southcrest Hospital at the time of the statement and she also
stated “My mind's not working very good.”
(Id. at page 3 of 4). The court gives this statement
little weight. Plaintiff also notes the deposition testimony
of Marsha Hansen, an adjuster for Cornerstone National
Insurance Company, which insured McAlister's other
vehicle. Hansen testified that she was told by Mr. Dagenet
that the Dagenets let McAlister have the vehicle “to
use.” (#79-3 at page 2 of 18). Further, that Mr.
Dagenet “was going to sign the title over to
[McAlister] whenever he could find it.” (Id.).
This is ambiguous, in that Mr. Dagenet may have been saying
he would sign over the title when and if McAlister
indicated she wanted the vehicle. This interpretation matches
the unequivocal testimony of the Dagenets contained in their
own depositions, i.e., any donative intent was contingent.
Still, in the present context, the court interprets the
testimony in the light most favorable to plaintiff.
reply, defendants point to Oklahoma statutes. In 47 O.S.
§1103, it is stated that it is the “intent of the
Legislature” that a vehicle owner possess a certificate
of title “as proof of ownership.” To the same
effect is the first sentence of 47 O.S. §1105(B). In 47
O.S. §1-141, the term “owner” is defined as
“[a] person who holds the legal title of a vehicle. . .
.” Plaintiff, however, has noted the statement in
Green v. Harris, 70 P.3d 866 (Okla.2003) that
“[m]otor vehicle certificates of title in Oklahoma are
documents of convenience and are not necessarily controlling
of ownership of an automobile.” Id. at 871.
Defendants contend this statement is dicta and does not
comport with statutory language; however, the Tenth Circuit
relied on the statement (in a different context) in
Universal Underwriters Ins. Co. v. Winton, 818 F.3d
1103, 1110 (10th Cir.2016). In any event, it is
not disputed that, at the time of the accident, Robert
Dagenet held the legal title of the vehicle. The issue
remains what is the legal effect of this fact.
Mendenhall v. Mountain West Farm Bureau Mut. Ins.
Co., 274 P.3d 407 (Wyo.2012), the Supreme Court of
Wyoming expressly stated “[t]he elements of an
inter vivos gift do not contain a special element
requiring the transfer of title if an automobile is at
issue.” Id. at 410. The court then turned to
the Restatement (Third) of Property: Wills & Other
Donative Transfers §6.2 cmt. i (2003). Under that
guidance, and citing approvingly to Brackin v.
Brackin, 894 N.E.2d 206 (Ind.Ct.App.2008), the court
concluded “while there is a presumption that the person
named on the certificate of title is the owner, that
presumption may be overcome by clear and convincing evidence
of the donor's intent to gift the vehicle.”
Id. at 411. In the absence of controlling Oklahoma
authority, this court predicts the Supreme Court of Oklahoma
would follow this ruling. Even viewing McAlister's
recorded statement and Hansen's testimony in the light
most favorable to plaintiff, the presumption of ownership has
not been overcome by clear and convincing evidence. The court
finds summary judgment is appropriate in defendants'
favor as to the purported gift of the vehicle.
October 10, 2010 (i.e., when the Dagenets allowed McAlister
to begin driving the vehicle) the Dagenets had an automobile
insurance policy with plaintiff Safeco which listed the Buick
and other vehicles. The policy was still in effect a week
later at the time of the accident. Plaintiff next contends
that, under the terms of the Safeco policy, coverage for the
vehicle was automatically terminated when Cornerstone
National Insurance Company added the vehicle to
McAlister's existing Cornerstone policy (as a
“newly acquired vehicle”) effective October 10,
2010. Again, the accident took place on October 17, 2010. In
response, defendants present evidence that Cornerstone did
not add coverage for the vehicle until October 22, 2010,
(after the accident) and made the coverage retroactively
effective to October 10, 2010. (See #73-13, page 2
of 2; #78, pages 33-34 of 49). Moreover, the Cornerstone
policy provides that coverage for a newly acquired vehicle
“begins on the date you become the owner.”
court rejects this argument of plaintiff as well. Safeco did
not delete the Buick from coverage until the effective date
of October 19, 2010 (two days after the accident).
See #73-11, page 2 of 3; #79-5. Safeco (via its
adjuster, Bob Brewster) first contacted McAlister (i.e.,
learning of the “gift” to McAlister) on October
21, 2010, which is two days after Safeco's effective
termination date. The Dagenets had not cancelled coverage for
the Buick at the time of the accident. The policy provided
coverage on the Buick from October 14, 2010 until April 14,
2011. Moreover, the court is not persuaded that the
unilateral conduct of Cornerstone (an insurer for a
permissive driver) was legally effective to
“automatically” negate Safeco's policy of the
vehicle's owner. Cf. American Express Ins. Co. v. AIG
Ins., 1998 WL 470637, *4 (Conn.Super.Ct.1998).
A contrary ruling would give license to potential tortious
interference with an existing contract. As stated, the
parties have agreed to a bench trial, but this case seems
largely governed by legal principles, and in the court's
view there are no genuine disputes of material fact or issues
of witness credibility such that this action should proceed
the order of the court that the motion for summary judgment
(#73) is hereby granted. Although defendant Rod Wiemer,
personal representative of the estate of Portra Ann
McAlister, did not join the summary judgment motion, he is
also terminated as a party defendant under the same
reasoning. The case is administratively closed.