ON
APPEAL FROM THE DISTRICT COURT OF POTTAWATOMIE COUNTY, STATE
OF OKLAHOMA; HONORABLE JOHN G. CANAVAN, DISTRICT JUDGE
Anthony F. Gorospe, Gorospe Law Group, PLLC, Tulsa, Oklahoma,
for Plaintiff/Appellant.
Brad
L. Roberson and Lauren N. Watson, Pignato, Cooper, Kolker
& Roberson, P.C., Oklahoma City, OK, for
Defendant/Appellee
COMBS,
J.
I.
FACTS AND PROCEDURAL HISTORY
¶0
Appellant, Lee McIntosh, was involved in a hit-and-run
accident caused by the appellee, Jake Watkins. Appellant
sought treble damages against the appellee based upon the
damage to his vehicle. The district court held 47 O.S. 2011,
§ 10-103 did not allow treble damages because the
appellant also sustained injuries and granted summary
judgment in favor of the appellee. We hold the treble damage
provision in 47 O.S. 2011, §10-103 applies even if a
victim sustains an injury.
¶1
On October 29, 2017, the defendant/appellee, Jake Watkins,
was driving under the influence of alcohol and rear-ended a
vehicle owned and operated by the plaintiff/appellant, Lee
McIntosh. Mr. McIntosh's vehicle was damaged and he and
the former co-plaintiff, Anthony McIntosh, were injured.
[1]
Both vehicles pulled over to the shoulder of the road and the
parties exited their vehicles to discuss the accident and to
inspect the damage. At some point Mr. McIntosh stated he
needed to call the police to report the accident. When Mr.
Watkins heard this he returned to his vehicle and fled the
scene without providing Mr. McIntosh the information required
under 47 O.S. 2011, §10-104 (name, address, vehicle
registration number and, upon request, show a driver license
and security verification form). Mr. Watkins was later
arrested and charged with two counts: 1) driving a motor
vehicle while under the influence of alcohol; and 2) leaving
the scene of an accident involving damage in violation of 47
O.S. 2011, § 10-103. He pled no contest to the two
counts and received a deferred judgment and sentence on March
9, 2018, in Case No. CM-2017-902, Pottawatomie County, State
of Oklahoma.
¶2
On June 15, 2018, Mr. McIntosh signed a settlement agreement
which settled all of his bodily injury claims for the sum of
$25, 000.00. Mr. McIntosh was also paid $17, 545.66 to fully
repair his vehicle and an additional $7, 000.00 for the
diminution of value claim. The only remaining issue left to
be decided by the trial court was whether Mr. McIntosh was
entitled to receive treble damages for the damage sustained
to his vehicle. Mr. Watkins filed a motion for partial
summary judgment which was later converted to a motion for
summary judgment considering there was only one remaining
issue to be decided. On August 16, 2018, a hearing was held
and the trial court ruled Mr. McIntosh was not entitled to
treble damages pursuant to 47 O.S. 2011, § 10-103, due
to the fact he had incurred not only property damage to his
vehicle but he also sustained a nonfatal injury. Mr. McIntosh
appeals the trial court's ruling on this final issue.
II.
STANDARD OF REVIEW
¶3
The standard for appellate review of a summary judgment is
de novo and an appellate court makes an independent
and nondeferential review. Nelson v. Enid Med. Assocs.,
Inc., 2016 OK 69, ¶7, 376 P.3d 212; Carmichael
v. Beller, 1996 OK 48, ¶2, 914 P.2d 1051. That
review requires examination of the pleadings and evidentiary
materials submitted by the parties to determine whether there
exists a genuine issue of material fact. Carmichael,
1996 OK 48, ¶2. When genuine issues of material fact
exist, summary judgment should be denied and the question
becomes one for determination by the trier of fact. Brown
v. Okla. State Bank & Trust Co., 1993 OK 117,
¶7, 860 P.2d 230.
¶4
Legal questions involving the district court's statutory
interpretation of law are also subject to de novo
review. Fulsom v. Fulsom, 2003 OK 96, ¶2, 81
P.3d 652. The primary goal of statutory construction is to
ascertain and to apply the intent of the Legislature that
enacted the statute. Samman v. Multiple Injury Trust
Fund, 2001 OK 71, ¶13, 33 P.3d 302. If the
legislative intent cannot be ascertained from the language of
a statute, as in the cases of ambiguity, we must apply rules
of statutory construction. YDF, Inc. v. Schlumar,
Inc., 2006 OK 32, ¶6, 136 P.3d 656. The test for
ambiguity in a statute is whether the statutory language is
susceptible to more than one reasonable interpretation.
In Matter of J. L. M., 2005 OK 15, ¶5, 109 P.3d
336. Where a statute is ambiguous or its meaning uncertain it
is to be given a reasonable construction, one that will avoid
absurd consequences if this can be done without violating
legislative intent. Wylie v. Chesser, 2007 OK 81,
¶19, 173 P.3d 64. In ascertaining legislative intent,
the language of an entire act should be construed with a
reasonable and sensible construction. Udall v.
Udall, 1980 OK 99, ¶11, 613 P.3d 742. Statutory
construction that would lead to an absurdity must be avoided
and a rational construction should be given to a statute if
the language fairly permits. Ledbetter v. Oklahoma
Alcoholic Beverage Laws Enforcement Comm'n., 1988 OK
117, ¶7, 764 P.2d 172. The legislative intent will be
ascertained from the whole act in light of its general
purpose and objective considering relevant provisions
together to give full force and effect to each. Keating
v. Edmondson, 2001 OK 110, ¶8, 37 P.3d 882. Any
doubt as to the purpose or intent of a statute may be
resolved by resort to other statutes relating to the same
subject matter. Naylor v. Petuskey, 1992 OK 88,
¶4, 834 P.2d 439. This Court will not limit
consideration to one word or phrase but will consider the
various provisions of the relevant legislative scheme to
ascertain and give effect to the legislative intent and the
public policy underlying the intent. YDF, Inc., 2006
OK 32, ¶6. Legislative purpose and intent may also be
ascertained from the language in the title to a legislative
enactment. Naylor, 1992 OK 88 ¶4;
Independent School District No. 89 of Oklahoma County v.
Oklahoma City Federation of Teachers, Local 2309 of American
Federation of Teachers, 1980 OK 89, ¶17, 612 P.2d
719.
III.
ANALYSIS
¶5
The parties do not dispute that Mr. Watkins collided into and
damaged Mr. McIntosh's vehicle while it was operated by
Mr. McIntosh. The parties do not dispute Mr. Watkins left the
scene of the accident prior to fulfilling the requirements of
47 O.S. 2011, § 10-104. In Mr. McIntosh's response
to the motion for summary judgment he denied Mr. Watkin's
statement of undisputed material facts that Mr. McIntosh had
sustained and was treated for bodily injury. However, he
limited this denial only as to the relevancy of that fact to
the issue presented. Both his petition and amended petition
clearly stated the automobile accident caused him bodily
injury. There remain no genuine issues of material fact in
dispute that would prohibit summary judgment. The issue
before this Court is purely a question of law concerning what
damages a plaintiff is entitled to receive when he or she is
involved in a hit-and-run accident involving both property
damage and bodily injury.
¶6
Mr. McIntosh seeks treble property damage. Mr. Watkins was
charged and pled no contest to violating 47 O.S. 2011, §
10-103 in the criminal matter regarding the subject accident.
Under this statute, a person who leaves the scene of an
accident where an attended vehicle is damaged and without
providing requisite information shall be guilty of a
misdemeanor and can also be liable in a civil action for
treble damages caused by the accident. Title 47 O.S. 2011,
§ 10-103 provides:
The driver of any vehicle involved in an accident resulting
only in damage to a vehicle which is driven or attended by
any person shall immediately stop such vehicle at the scene
of such accident or as close thereto as possible but shall
forthwith return to and in every event shall remain at the
scene of such accident until he has fulfilled the
requirements of Section 47-10-104 of this title. Every such
stop shall be made without obstructing traffic more than is
necessary. Any person failing to stop or comply with said
requirements under such circumstances shall be guilty of a
misdemeanor and upon conviction thereof shall be punished by
a fine not to exceed Five Hundred Dollars ($500.00) or by
imprisonment in the county jail for not more than one (1)
year, or by both such fine and imprisonment. In addition to
the criminal penalties imposed by this section, any person
violating the provisions of this section shall be subject to
liability for damages in an amount equal to three times the
value of the damage caused by the accident. Said damages
shall be recoverable in a civil action. Nothing in this
section shall prevent a judge from ordering restitution for
any damage caused by a driver involved in an accident
provided for in this section. (Emphasis added).
Title
47 O.S. 2011, §10-104 provides in pertinent part:
A. The driver of any vehicle involved in an accident
resulting in injury to or death of any person or damage to
any vehicle which is driven or attended by any person shall
give his correct name, address and registration number of the
vehicle he is driving, and shall upon request exhibit his
driver license and his security verification form, as defined
in Section 7-600 of this title, to the person struck or the
driver or occupant of or person attending any vehicle
collided with, and shall render to any person injured in such
accident reasonable assistance, including the carrying, or
the making of arrangements for the carrying, of such person
to a physician, surgeon or hospital for medical or surgical
treatment if it is apparent that such treatment is necessary
or if such carrying is requested by the injured person. Any
driver who provides information required by this section
which is intentionally inaccurate shall be subject to the
provisions of Section 10-103 of this title. (Emphasis added).
¶7
Mr. Watkins asserts 47 O.S. 2011, § 10-102
[2]
(accidents involving nonfatal injuries) is the only statute
applicable to the present case. This section does not provide
for treble damages. In fact, the only statute that allows for
an award of treble damages is 47 O.S. 2011, § 10-103,
which Mr. Watkins argues applies when the hit-and-run
accident results only in vehicle damage; here there was both
vehicle damage and bodily injury and therefore he asserts 47
O.S. 2011, § 10-103 is not applicable. He believes the
first sentence of 47 O.S. 2011, § 10-103 limits the kind
of victims of hit-and-run drivers who may recover treble
damages to those who only have vehicle damage and no bodily
injuries.
¶8
Mr. McIntosh argues the word "only" in the first
sentence of 47 O.S. 2011, § 10-103 creates ambiguity and
under his interpretation the legislative intent was to place
a limit on the type of treble damages (vehicle damage instead
of damage related to a bodily injury) and not a limit on who
can recover as long as the victim sustained vehicle damage in
a vehicle he or she occupied. He also asserts Mr. Watkins
pled no contest to violating 47 O.S. 2011, §10-103 and
is currently on misdemeanor probation for that crime. All the
elements in the statute have been met for treble damages.
Therefore, under the plain language of the statute, Mr.
McIntosh argues he is entitled to treble damages based upon
the damage to his vehicle.
¶9
Title 47 O.S. 2011, §10-103 is susceptible to more than
one reasonable interpretation and is therefore ambiguous and
requires this Court to resort to rules of statutory
construction to determine its intent. In determining
legislative intent, we shall give the statute a reasonable
and sensible construction that will avoid absurd consequences
if the language fairly permits. Here, the statutory language,
its history, and the act as a whole, allows for a reasonable
and sensible construction.
¶10
In 1949, Senate Bill 3 was enacted and Section 2 of the bill
was the precursor to 47 O.S. §§ 10-102, 10-102.1,
10-103, 10-104 and 10-105. 1949 Okla. Sess. Laws, p. 502,
§ 2. Section 2 of the bill was codified in Section 121.2
of Title 47 of the Oklahoma Statutes. This section provided:
(a) The driver of any vehicle involved in an accident
resulting in injury to, or death of, any person shall
immediately stop such vehicle at the scene of such accident,
or as close thereto as possible and shall then forthwith
return to, and in every event shall remain at the scene of
the accident until he has fulfilled the requirements of
paragraph (d). Every such stop shall be made without
obstructing traffic more than is necessary.
(b) Any person wilfully, maliciously, or feloniously failing
to stop, or to comply with said requirements under such
circumstances, shall be guilty of a felony, upon conviction
thereof, be punished by imprisonment for not less than ten
(10) days nor more than one (1) year, and by a fine of not
less than fifty dollars ($50.00) nor more than one thousand
dollars ($1, 000.00) or by both such fine and imprisonment.
(c) The driver of any vehicle involved in an accident
resulting only in damage to a vehicle, which is driven or
attended by any person, shall immediately stop such vehicle
at the scene of such accident, or as close thereto as
possible, and shall forthwith return to, and in every event
shall remain at the scene of such accident, until he has
fulfilled the requirements of paragraph (d). Every such stop
shall be made without obstructing traffic more than is
necessary.
(d) The driver of any vehicle involved in an accident shall
give his correct name and address, and the registration
number of the vehicle he is driving; and shall exhibit his
operator's or chauffeur's license to the person
struck, or the driver, or occupant of, or person attending
any vehicle collided with and shall render to any person
injured in such accident reasonable assistance. If the driver
does not have an operator's or chauffeur's license in
his possession he shall exhibit other valid evidence of
identification to the occupants of a vehicle, or to the
person collided with.
(e) The driver of any vehicle which collides with any vehicle
which is unattended shall immediately stop, and shall then
and there either locate and notify the operator or owner of
such vehicle of the correct name and address of the driver
and the owner of the vehicle striking the unattended vehicle,
or shall leave in a conspicuous place in or on the vehicle
struck a written notice giving the correct name and address
of the driver and of the owner of the vehicle doing the
striking, and shall provide the same information to an
officer having jurisdiction.
(f) The driver of any vehicle involved in an accident
resulting in damages to fixtures legally upon or adjacent to
a highway shall take reasonable steps to locate and notify
the owner or person in charge of such property, of such fact,
and of his name and address, and of the registration number
of the vehicle he is driving, and shall exhibit his
operator's or chauffeurs license, or if said
operator's or chauffeur's license is not in his
possession at that time, said driver shall exhibit other
valid evidence of identification, and shall make report of
such accident when and as required by law.
(g) The driver of a vehicle involved in an accident resulting
in injury to or death of any person shall immediately, by the
quickest means of communication, give notice of such accident
to the local police department, if such accident occurs
within a municipality, or to the office of the county sheriff
or the nearest office of the State Highway Patrol, after
complying with the requirements of paragraph (d).
Provided the provisions of this Section shall not apply to
any person who is himself injured in such accident to the
extent that he cannot safely and reasonably comply therewith.
It shall be deemed a misdemeanor and punishable by fine of
not more than fifty dollars ($50.00) for the conviction of
any person for failure to comply with the requirements of
paragraphs (c), (e), (f) or (g).
The
bill's title referred to this section as
"establishing the requirements for drivers involved in
an accident." Subsections (a) & (b) of § 121.2
provided a driver who causes an accident where there is a
nonfatal injury shall stop and provide the information and
assistance required in subsection (d) or they shall be guilty
of a felony. Subsection (c) & (g) provided a driver who
causes an accident where there is "only" vehicle
damage shall stop and provide the information required in
subsection (d), no assistance is required because there are
no injuries, and a person who fails to do so shall be guilty
of a misdemeanor. The purpose of § 121.2 was to provide
requirements for drivers involved in accidents. It provided
different duties based upon the type of accident as well as
providing different criminal degrees of guilt for failure to
provide information and/or assistance when necessary. The use
of the word "only" in subsection (c) clearly
limited the criminal charges to a misdemeanor if an accident
only involved vehicle damage. At this time, there existed no
provision for treble damages like those currently found in 47
O.S. 2011, §10-103.
¶11
In 1961, House Bill 556 created the Highway Safety Code for
the State of Oklahoma. 1961 Okla. Sess. Laws, p. 315. This
bill re-codified many statutes relating to public safety and
created 47 O.S. §§ 10-102, 10-102.1, 10-103, 10-104
and 10-105 in a new chapter, "Chapter 10. Accidents And
Accident Reports." Title 47 O.S. 1961, § 10-103
provided:
The driver of any vehicle involved in an accident resulting
only in damage to a vehicle which is driven or attended by
any person shall immediately stop such vehicle at the scene
of such accident or as close thereto as possible but shall
forthwith return to and in every event shall remain at the
scene of such accident until he has fulfilled the
requirements of section 10-104. Every such stop shall be made
without obstructing traffic more than is necessary. Any
person failing to stop or comply with said requirements under
such circumstances shall be guilty of a misdemeanor.
The
bill titled this section "Accidents Involving Damage to
Vehicle." The re-codification left the pertinent
language, formerly found in subsections (c) and (g) of §
121.2, relatively intact. The focus remained on establishing
the duties of a driver who collides with an attended vehicle.
It provided such person who fails to perform those duties
will be guilty of a misdemeanor where there was only vehicle
damage. The apparent purpose of the "accident resulting
only in damage to a vehicle" language was to limit the
degree of crime to a misdemeanor and to distinguish this
crime from the felony crimes for hit-and-run accidents
causing a nonfatal injury or death.
¶12
Title 47 O.S. 1961, § 10-103 has only been amended once
since its enactment. HB 1458 (1987) amended § 10-103 to
add a specific punishment provision, to provide the current
scheme for treble damages and to authorize a court to order
restitution. 1987 Okla. Sess. Laws, c. 224, § 15. The
amendment is current law and provided in part, "[i]n
addition to the criminal penalties imposed by this section,
any person violating the provisions of this section shall be
subject to liability for damages in the ...