United States District Court, N.D. Oklahoma
OPINION AND ORDER
H. Payne United States District Judge.
the Court is Defendant's Motion for Summary Judgment
(Dkt. 41). After consideration of the briefs, and for the
reasons stated below, the Motion is GRANTED.
material facts regarding the underlying incident are
undisputed. In August 2009, Timothy Roe test drove a
commercial truck owned by Frontier International Trucks.
Shelby Roe (“Plaintiff”), Timothy Roe's minor
daughter, was a passenger. During the test drive, another
motorist struck Timothy Roe's vehicle, causing injuries
to both Timothy and Plaintiff. The commercial truck was
covered by an automobile policy (“Policy”) with
uninsured/underinsured motorist coverage
(“UM/UIM”) issued by Defendant Harco National
Insurance Company (“Harco”). (Dkt. 41-1
(Policy)). The Policy indicates that the UM/UIM coverage
amounted to a combined single limit of $500, 000.00 on each
accident, and that Plaintiff and Timothy Roe qualified as
“insureds” under the Policy. (Policy, at Garage
Declarations (p. 150 of 246); id. at Oklahoma
Uninsured Motorists Coverage (B) (p. 183 of 246); Dkt. 41, at
2 (Harco's Undisputed Material Fact Nos. 2-5)).
October 30, 2009, Plaintiff's counsel (who also
represented Timothy Roe) notified Harco of the accident and
filed a claim for UM/UIM benefits on behalf of Timothy Roe.
(Dkt. 58-1 (Harco Claims File Notes), at 1; Dkt. 58, at 3
(Plaintiff's Controverted [sic] Fact No. 1)). On May 4,
2011, Plaintiff's counsel sent Harco a claim letter
seeking UIM coverage on Plaintiff's behalf. (Dkt. 58-3
(Letter to Harco dated May 4, 2011)). Harco's
investigator, Kathy Van Ryn, evaluated Plaintiff's claim
and determined it was not worth more than $25, 000, the
liability limit of the tort feasor's insurance. (Dkt.
65-3 (Kathy Van Ryn Deposition), 90:11-15). Harco paid $500,
000 to Timothy Roe in three installments, making the final
payment in May 2013. (Dkt. 41-5 (Release)).
October 9, 2014, Plaintiff's counsel sent Harco a letter
regarding Shelby Roe's claim arising out of the August
2009 accident, seeking $31, 303.39 in medical damages. (Dkt.
41-6 (Letter)). Harco has not tendered any payment on
Plaintiff's claim, asserting the UM/UIM policy limit was
exhausted by payment to Timothy Roe. (Dkt. 58, at 7
(Plaintiff's Controverted Fact No. 42)).
filed an Amended Complaint in this case on October 24, 2016,
asserting claims for breach of contract and bad faith. (Dkt.
30). The parties have since stipulated to dismissal with
prejudice of the breach of contract claim. (Dkt. 92). With
respect to the bad faith claim, Plaintiff alleges Hacro acted
in bad faith in failing to apportion benefits to Plaintiff
and to investigate and evaluate Plaintiff's claims. (Dkt.
30, ¶¶ 10-12). Harco has now filed a Motion for
Summary Judgment with respect to the sole remaining claim of
bad faith. (Dkt. 41). Plaintiff filed a Response in
opposition (Dkt. 58), and Harco filed a Reply (Dkt. 65).
Harco's Motion is now fully briefed and ripe for review.
judgment is appropriate when “there is no genuine
dispute as to any material fact and the movant is entitled to
a judgment as a matter of law.” Fed.R.Civ.P. 56(a). A
dispute is genuine if the evidence is such that “a
reasonable jury could return a verdict for the nonmoving
party.” Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986). A fact is material if it “might
affect the outcome of the suit under the governing
law.” Id. In making this determination,
“[t]he evidence of the non-movant is to be believed,
and all justifiable inferences are to be drawn in his
favor.” Id. at 255.
a party opposing a motion for summary judgment may not simply
allege there are disputed issues of fact; rather, the party
must support its assertions by citing to the record or by
showing the moving party cannot produce admissible evidence
to support the fact. Fed.R.Civ.P. 56(c). See Cone v.
Longmont United Hosp. Ass'n, 14 F.3d 526, 530 (10th
Cir. 1994) (“Even though all doubts must be resolved in
[the nonmovant's] favor, allegations alone will not
defeat summary judgment.”) (citing Celotex Corp. v.
Catrett, 477 U.S. 317, 322-23 (1986)). Moreover,
“[i]n a response to a motion for summary judgment, a
party cannot rely on ignorance of facts, on speculation, or
on suspicion and may not escape summary judgment in the mere
hope that something will turn up at trial.” Conaway
v. Smith, 853 F.2d 789, 794 (10th Cir. 1988) (citations
omitted). Thus, the inquiry for this Court is “whether
the evidence presents a sufficient disagreement to require
submission to a jury or whether it is so one-sided that one
party must prevail as a matter of law.”
Anderson, 477 U.S. At 251-52.
Bad Faith - Failure to Apportion
asserts in the Amended Complaint that Harco breached its duty
to apportion payment to Plaintiff, which raises a claim for
bad faith. In its Motion, Harco argues that no such duty of
apportionment exists in Oklahoma, pointing out that the
Supreme Court of Oklahoma has never held or even spoken on
the issue of apportionment of coverage in this context. In
the absence of authority from the Oklahoma Supreme Court,
Harco contends it did not breach any obligations under the
Oklahoma, insurers owe their insureds an implied duty to act
fairly and in good faith. Willis v. Midland Risk Ins.
Co., 42 F.3d 607, 611 (10th Cir. 1994). A party alleging
bad faith must prove that (1) the claimant was entitled to
coverage under the insurance policy; (2) the insurer had no
reasonable basis for withholding payment; (3) the insurer did
not deal fairly and in good faith with the claimant; and (4)
the insurer's violation of its duty of good faith and
fair dealing was the direct cause of the claimant's
injury. Ball v. Wilshire Ins. Co., 221 P.3d 717, 724
(Okla. 2009). “The absence of any one of these elements
defeats a bad faith claim.” Id. The key
question in a bad faith tort claim is “whether the
insurer had a good faith belief, at the time its performance
was requested, that it had a justifiable reason for
withholding . . . payment under the policy.”
Id. at 725 (quotation omitted).
the insurer's obligation under the duty of good faith and
fair dealing is unresolved by conclusive, precedential legal
authority, the elements of unreasonableness and bad faith are
necessarily absent as a matter of law. Id.
(“If there is a legitimate dispute concerning coverage
or no conclusive precedential legal authority requiring
coverage, withholding or delaying payment is not unreasonable
or in bad faith.”) (citing Skinner v. John Deere
Ins. Co., 998 P.2d 1219, 1223 (Okla. 2000)). If an