Allstate Insurance v. Brown

920 F.2d 664
CourtCourt of Appeals for the Tenth Circuit
DecidedNovember 29, 1990
DocketNos. 89-6312, 89-6326
StatusPublished
Cited by1 cases

This text of 920 F.2d 664 (Allstate Insurance v. Brown) is published on Counsel Stack Legal Research, covering Court of Appeals for the Tenth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Allstate Insurance v. Brown, 920 F.2d 664 (10th Cir. 1990).

Opinion

PER CURIAM.

This declaratory judgment action was brought in the District Court for the Western District of Oklahoma by Allstate Insurance Company (Allstate) against its named insured, Alfred Lee Brown, and Alfred’s two sons, William Chase Brown, and Kendall Brown (the Brown appellants), and against parties who were allegedly injured by a car driven by William Chase Brown (the Niroumand appellants). Allstate’s complaint prayed for a declaration that it had no duty to defend, indemnify or pay the claims of any of the defendants. Vol. I, Doc. 1 at 3.

Alfred Lee Brown was the named insured under an automobile liability policy issued by Allstate. The Allstate policy specifically covered Alfred Brown’s 1981 Ford Mustang and his 1975 Ford LTD. Alfred Brown’s son, Kendall, who was stationed with the military in Korea, had left his 1974 Mercury Cougar with his father for storage. The Allstate policy did not specifically cover Kendall’s car as a “described vehicle.” Alfred’s other son, William, a minor, used the Cougar belonging to his brother and was involved in an accident in which the Niroumand appellants were allegedly injured. The Niroumand appellants sued the Brown appellants in the District Court of Oklahoma County for person[667]*667al injuries and property damage. The Brown appellants gave notice of a claim and requested that Allstate defend and indemnify them. After agreeing to defend the state court action, Allstate instituted this declaratory judgment action in federal court.

The federal district court granted Allstate’s motion for summary judgment finding that “Allstate is not obligated to indemnify Alfred Brown for any claims resulting from William Brown’s March 7, 1988, accident and is not obligated to pay the other defendants’ claims against him arising from the accident.”1 Order of August 29, 1989 at 4. In an earlier order, the district court denied the Niroumand appellants’ motion to certify questions of law to the Oklahoma Supreme Court. Allstate Insurance Co. v. Brown, No. CIV-88-1499-T, order at 5 (May 4, 1989).

On appeal, the Niroumand appellants argue (1) that the district court erred in refusing to certify certain questions as requested, (2) that it erred in deciding what they contend are questions of fact which were the subject matter of a pending Oklahoma state court action, and (3) that because a material question of fact exists as to whether William Brown had his brother’s implied permission to use the car, summary judgment was inappropriate.

The Brown appellants argue in turn (1) that it was not necessary for Alfred Brown to be driving the vehicle in order to have coverage; (2) that Okla. Stat. tit. 23, § 10 (1981 & Supp.1986) imputes the negligence of William Brown to his father, thus requiring that Allstate defend and indemnify the father; (3) that the policy requires Allstate to defend its named insured if he is sued as a result of an auto accident, even if the suit is groundless and false and that it requires Allstate to pay all damages the insured is legally obligated to pay; (4) that Alfred Brown is entitled to attorney’s fees for defense of the declaratory judgment action; (5) that a question of fact exists regarding negligent entrustment; (6) that the district court erred in deciding questions of fact and in hearing a declaratory judgment action, given the pendency of the Oklahoma state court action; and (7) that a guardian ad litem should have been appointed for William Brown and that service of process on him was inadequate. We address these issues in order and apply a de novo standard of review. See Ewing v. Amoco Oil Co., 823 F.2d 1432, 1437 (10th Cir.1987).

THE NIROUMAND APPELLANTS

Certification to Oklahoma Supreme Court

In denying the Niroumand appellants’ request to certify, the district court stated that “certification is not appropriate on any of the questions presented by this case.” Vol. I, Doc. 81 at 5. The decision to certify rests in the sound discretion of the federal district court. Lehman Bros. v. Schein, 416 U.S. 386, 391, 94 S.Ct. 1741, 1744, 40 L.Ed.2d 215 (1974). Certification is particularly appropriate where the legal question at issue is novel and the applicable state law is unsettled. Id. The appellants point to no issues raised in this case which implicate either unsettled or novel aspects of Oklahoma law. The district court, therefore, was well within its discretion to refuse defendants’ request, and their motion to certify filed in this court is hereby denied.

Need for Stay of Federal Action

The Niroumand appellants argue that the district court should have stayed the federal court action pending the outcome of the state court trial because the issue of permissive use of the automobile by William Brown was an issue in both courts. Niroumand Brief at 7. However, the appellants never filed a motion to stay the federal action with the district court. The closest appellants came to requesting this type of relief is in their brief objecting to Allstate’s motion for summary judgment, where they argue that the permis[668]*668sion issue is a question of fact which should be decided in state court. Vol. I, Doc. 35 at 4. Even if the motion had been properly made, however, the district court would have been fully justified in rejecting it. The decision of whether to stay an action, like the decision regarding certification, rests in the sound discretion of the district court. State Farm Mut. Auto. Ins. Co. v. Scholes, 601 F.2d 1151, 1154 (10th Cir.1979) (quoting Will v. Calvert Fire Ins. Co., 437 U.S. 655, 662-63, 98 S.Ct. 2552, 2557-58, 57 L.Ed.2d 504 (1978)). One of the factors to be considered in exercising this discretion is “whether the claims of all parties in interest can satisfactorily be adjudicated in [the state court] proceeding.” Id. at 1155 (quoting Brillhart v. Excess Ins. Co., 316 U.S. 491, 495, 62 S.Ct. 1173, 1176, 86 L.Ed. 1620 (1942). The federal action here seeks a declaratory judgment regarding rights and duties under a liability insurance policy. By statute, however, the Oklahoma courts are prevented from rendering a declaratory judgment “concerning obligations alleged to arise under policies of insurance covering liability or indemnity against liability for [tortious injuries to persons or to property].” Okla. Stat. tit. 12, § 1651 (1981 & Supp.1986). The claim of Allstate, therefore, regarding its obligations under its policy with Alfred Brown could not be satisfactorily adjudicated in the Oklahoma state court, thus making the relief requested by the Nirou-mand appellants inappropriate.

Issue of Fact Regarding Implied Permission

Finally, the Niroumand appellants argue that because there is an issue of fact as to whether William Brown had implied permission to use his brother’s automobile at the time of the collision, the district court erred in granting summary judgment.

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