Tapp v. Perciful

2005 OK 49, 120 P.3d 480, 76 O.B.A.J. 1498, 2005 Okla. LEXIS 50, 2005 WL 1514647
CourtSupreme Court of Oklahoma
DecidedJune 28, 2005
Docket99,779
StatusPublished
Cited by13 cases

This text of 2005 OK 49 (Tapp v. Perciful) is published on Counsel Stack Legal Research, covering Supreme Court of Oklahoma primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Tapp v. Perciful, 2005 OK 49, 120 P.3d 480, 76 O.B.A.J. 1498, 2005 Okla. LEXIS 50, 2005 WL 1514647 (Okla. 2005).

Opinion

HARGRAVE, J.

11 There is no dispute about the basic facts. Tonya Harman, a State Farm insured, *481 took her vehicle to Auto Tech in Ponea City for a tune-up, brake repair and valve job. Auto Tech is owned by Wayne Perciful. Two days later, Mr. Perciful was moving the vehicle while repairing it. The vehicle lurched forward and struck the plaintiff, Karen Tapp, who was standing nearby. 1 The vehicle also hit a truck owned by Karen Tapp and/or her husband, James Tapp.

T2 The Tapps sued Tonya Harman, Wayne Perciful and Auto Tech. The trial court entered judgment in favor of the plaintiffs against Defendant Wayne Perciful in the amount of $100,000.00, after he confessed judgment pursuant to 12 0.S$.2001 § 941. The Tapps then served a garnishment affidavit on State Farm Mutual Automobile Insurance Company (State Farm), the insurer of Tonya Harman, claiming that they were entitled to $10,000 in liability coverage. State Farm answered that the insurance policy issued by State Farm to Tonya Harman did not provide liability coverage for Wayne Per-cifal d/b/a Auto Tech.

13 State Farm alleged that the "automobile business" exelusion in Mrs. Harmon's policy excluded Perciful and Auto Tech from coverage. They relied on a previous opinion of this Court, Karner v. Maynor, 1966 OK 62, 415 P.2d 998, which upheld an automobile business exclusion. The Tapps argued that the automobile business exelusion is contrary to public policy in light of Oklahoma's compulsory liability insurance law and should therefore be held null and void. They rely on cases of this Court, adopted subsequent to Oklahoma's compulsory liability insurance law, holding that clauses in liability insurance policies that attempt to deny coverage to an innocent third party are null and void to the extent of the minimum amount of Hability coverage required by statute.

T4 The trial court ordered the garnishment, finding that the automobile business exclusionary language did not apply. The Court of Civil Appeals affirmed. We granted certiorari to determine whether Oklahoma's compulsory liability insurance scheme, 47 O.S.2001 § 7-600, et. seq. Laws 1982, ch. 855 § 1, operative Jan. 1, 1983, rendered void as a matter of public policy the automobile business exclusion clause in Harmon's automobile liability insurance policy, to the extent of the minimum amount of liability coverage required by the statute. We find that the exclusion is contrary to public policy in Oklahoma.

15 The insurance policy is not included in the record presented. State Farm's briefin-chief states that the insurance policy in ef-feet for Mrs. Harmon's vehicle has what is commonly referred to as an "automobile business" exclusion, which excludes lability coverage while an insured vehicle is being "repaired, serviced or used by any person employed or engaged in any way in a car business." They define "car business" as a business or job where the purpose is to sell, lease, repair, service, transport, store or park land motor vehicles.

16 Karner v. Maynor, 1966 OK 62, 415 P.2d 998, which upheld the validity of an automobile business exclusion clause, was decided several years before the compulsive liability insurance statutes were adopted. That case upheld the exclusion on the basis that the driver had no control over who would be driving the car after it was turned over to the automobile business.

T7 Oklahoma's Compulsory Liability Insurance Act appears at 47 O.S. § 7-600 et seq. Section 7-601(B) provides that:

"On and after January 1, 1988, every owner of a motor vehicle registered in this state ... shall, at all times, maintain in force ... security for the payment of loss resulting from the liability imposed by law for bodily injury, death and property damage sustained by any person arising out of the ownership, maintenance, operation, or use of the vehicle ..." 2 (emphasis added)

18 The section also provides that every person operating or using a motor vehicle that is not owned by him shall maintain in force security for the payment of loss result *482 ing from the liability imposed by law for bodily injury, death or property damage sustained by any person arising out of the operation or use of the vehicle, unless such security has been provided by the owner in accordance with the section, unless the person has been excluded from coverage.

1 9 Cases of this Court decided subsequent to the compulsory insurance law make clear that the legislative intent of the compulsory liability insurance statutes is that innocent victims of the negligent operation of motor vehicles should be compensated for their injuries. See, for example Young v. Mid-Continent Cas. Co., 1987 OK 88 ¶ 16, 743 P.2d 1084, 1087. We have upheld the public policy embodied by the compulsory liability insurance statutes by invalidating clauses in insurance policies that would have denied coverage to innocent third parties.

11 10 In Equity Mutual Ins. Co. v. Spring Valley Wholesale Nursery, Inc., 1987 OK 121, 747 P.2d 947, in answer to a question of law certified from a federal court, we held that it was a violation of public policy in Oklahoma for the insurer and insured to agree that liability insurance coverage of a commercial vehicle would not apply beyond a 200-mile radius. We held that such provision contravened the underlying statutory purpose of 47 O.S. § 7-600 et. seq. and was void insofar as it limited the minimum coverage required by the statute.

{11 In Young v. Mid-Continent Cas. Co., 1987 OK 88, 743 P.2d 1084, the offending exclusionary clause in an automobile liability insurance policy excluded coverage for operation of the insured vehicle if operated by any person under the age of twenty-five years.

112 In Nation v. State Farm Ins. Co., 1994 OK 54, 880 P.2d 877 we invalidated, to the extent of the minimum coverage required by statute, an exclusion that omitted from coverage all resident members of a household.

{ 13 In Harkrider v. Posey, 2000 OK 94, 24 P.3d 821, we would not permit an insurance company to cancel a voidable insurance policy, as to an innocent third-party victim, where the insured had misrepresented on her application that there was no other resident in her home of fourteen years of age or older, when in fact Posey, the co-habi-tant/driver, had a revoked driver's license.

T 14 In Hartline v. Hartline, 2001 OK 15, 39 P.3d 765, we said the insured residing in same household would not be excluded from coverage where there was no uninsured motorist coverage. We stated:

"The principal purpose of law-mandated liability insurance is the protection of the public from the financial hardship which may result from the use of automobiles by financially irresponsible persons. (Fn.Omitted) To effectuate this policy, any vehicle operating on the roads of this state must be secured against liability to innocent victims in the event harm occurs from its negligent operation (fn.omitted). This clearly articulated public policy overrides contrary private agreements that restrict coverage where the contractual strictures do not comport with the purpose of the Act." (fn.omitted) 2001 OK 15 ¶ 16, 39 P.3d 765, 771-72.

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Cite This Page — Counsel Stack

Bluebook (online)
2005 OK 49, 120 P.3d 480, 76 O.B.A.J. 1498, 2005 Okla. LEXIS 50, 2005 WL 1514647, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tapp-v-perciful-okla-2005.