Holt v. Bell

392 P.2d 361

• Court: Supreme Court of Oklahoma
• Decided: May 19, 1964
• Docket: 40599
• Status: Published

Opinions

JOHNSON, Justice.

This application for writ of prohibition seeks to prohibit the District Court of Pitts-burg County, Oklahoma, from trying an action against two allegedly misjoined defendant's and seeks the dismissal as to one of such defendants.

The facts are that-Robert Trueblood and his wife, Betty Trueblood, commenced two separate actions in the District Court of Pittsburg County to recover damages growing out of an automobile collision between plaintiffs’ car and the defendant Tom Holt’s car. The two actions have been consolidated for trial and will hereafter be referred to as one. The defendants named were Tom Holt, the owner and operator of the motor vehicle involved in the collision, and the Plains Insurance Company.

The petitions allege that the plaintiffs were the insureds under an automobile policy issued by the defendant Plains Insurance Company, under which policy the company agreed to pay all sums which plaintiffs should become “legally entitled to recover” as damages from the owner-operator of an uninsured automobile because of bodily injury sustained by the insured. The petitions allege that the defendant operator, Tom Holt, was an uninsured motorist, and that by reason of his negligence causing the accident plaintiffs are entitled to recover against the defendant operator and plaintiffs’ insurer.

In Boughton v. Farmers Insurance Exchange, Okl., 354 P.2d 1085, 79 A.L.R.2d 1245, the insured brought an action against its insurer to recover for the damages insured sustained as a result of an accident with an uninsured motorist. In that case we held:

“Where an automobile insurance policy provides that insurer shall pay insured all sums insured shall be legally entitled to recover as damages from an uninsured motorist and insured suffers damages as a result of a collision with an uninsured motorist, institutes an action after notice to the insurer and obtains a judgment against the uninsured motorist; a petition alleging, inter alia, the judgment against the uninsured motorist states a cause of action against the insurer and a trial court oi'der sustaining a demurrer to such petition is error.”

We are now confronted with the question of whether the insurer can be joined in one suit with the tort-feasor — a contention diametrically opposite to the contention in the Boughton case, supra. It was the contention of the insurance company in the Boughton case that the judgment against the uninsured motorist was not binding on it for the reason that it was not a party to that action.

We have consistently held in tort actions when liability insurance is involved that the insurer cannot be joined with the tort-feasor unless it is a policy required by statute, as in the case of a motor carrier. Subscribers at Casualty Reciprocal Exchange v. Sims, Okl., 293 P.2d 578 and Eckels v. Traverse, et al., Okl., 362 P.2d 683.

To a limited extent, the reasoning of those cases is applicable in a case such as the one at bar. The presence of an insurer as a party defendant might have the same effect upon a jury as in a liability policy. The jury might conclude that inasmuch as insurance was involved that the size of the verdict should be increased.

In addition to this phase, we are impressed with the following:

1. Tort liability for personal injuries is an unliquidated claim, and until the amount thereof is ascertained the plaintiff is “not legally entitled to recover.” Under the provisions of the policy, this amount may be determined by agreement between the insured and insurer or by judgment of a court, obtained by the insured against the tort-feasor after notice given to the insurer according to the terms of the policy. ' These two provisions are as follows:

“ * * * and if so the amount thereof, shall be made by agreement between the insured or such representative and the company * *

“ * * * If, before the company makes payment of loss under the Uninsured Motorists Coverage, the insured or his legal representative shall institute any legal action for bodily injury against any person or organization legally responsible for the use of an automobile involved in the accident, a copy of the summons and complaint or other process served in connection with such legal action shall be forwarded immediately to the company by the insured or his legal representative.”

2. When the parties are placed in a position where the interest of an insurer is to defeat the claim of its own insured, the position of the parties is such that the court cannot countenance the situation. The placing of the parties thusly virtually makes the plaintiffs’ insurer the liability insurer of the defendant and interested in defeating plaintiffs’ claim. Such being the case, under the holdings of this court, the insurer cannot be joined as a party defendant.

The writ is therefore granted with instructions to strike the insurer as a party defendant in both cases.

BLACKBIRD, C. J., HALLEY, V. C. J., and DAVISON, WILLIAMS and BERRY, JJ-, concur. JACKSON and IRWIN, JJ., dissent.