The Willis decision concerns an issue of first impression in the state of Oklahoma.  Brad Roberson provides annual legal training to Progressive employees.  Counsel for Willis issued a subpoena duces tecum and deposition subpoena to Roberson & Kolker for its billing invoices related to training, training dates, and Roberson & Kolker's PowerPoint presentations shown during training sessions.  Roberson & Kolker objected, asserting the information was protected by the attorney-client privilege, among other reasons.  After extensive briefing and nearly 2 hours of oral argument, Judge Scott Palk, in a thorough and well-reasoned opinion, quashed the subpoena duces tecum and deposition subpoena.  

Willis concerns allegations of breach of contract and bad faith claims handling for an Oklahoma underinsured motorist claim.  Willis compelled the Court to require more thorough written discovery responses by Progressive.  Specifically, Willis requested the Court to compel Progressive to identify all UIM/UM bad faith lawsuits filed against Progressive in the last five years.  Further, Willis demanded the court to force Progressive to provide five years of correspondence between Progressive and other insureds in order to demonstrate Progressive engaged in a pervasive, consistent pattern to deny bad faith claims. After extensive briefing, the Court performed a proportionality analysis, and determined that the discovery was not proportional to the needs of the case.  As a result Willis' Motion to Compel was denied.  

In Shook v. Gleue Harvesting, LLC, et.al., Blake and his team obtained a first of its kind ruling in Oklahoma (both state and federal). The case dealt with a Kansas motor carrier engaged in custom harvesting operations in Kansas. The motor carrier was involved in an accident in Kansas with Oklahoma plaintiffs. The plaintiffs filed suit in Oklahoma state court, which was immediately removed to the United States District Court for the Northern District of Oklahoma.

Plaintiff’s jurisdictional argument was that the FMCSA “blanket of coverage” form (commonly called BOC-3), filed by the motor carrier in all 50 states subjected the motor carrier to personal jurisdiction in each state in which a service agent was designated – including Oklahoma. There was a severe circuit split on this issue, and the 10th Circuit Court of Appeals had never ruled on this specific jurisdiction issue.

After extensive briefing, the Honorable Jane A. Restani ruled that “no language in the Motor Carrier Act requires those in compliance [with the Act] to consent to jurisdiction” and that “designation of an agent alone, does not create consent to the jurisdiction of a forum.” This ruling set the stage for other motor carriers and provided legal footwork for all motor carriers in the 10th Circuit to dispute personal jurisdiction under the Motor Carrier Act.

“The Lost Inheritance

The minute Dirk and Duff Snow walked into RK, attorney Paul Kolker knew he had to take the case.  Dirk and Duff’s step-father filed for divorce while the boys’ mother (Jacquelyn K. Johnson) was dying from organ failure. After the divorce was filed, an injunction was issued. The injunction prevented Ms. Johnson from changing beneficiary designations on her bank accounts and 401k.  With her assets effectively “frozen,” Ms. Johnson’s life savings legally belonged to her former husband. But Ms. Johnson had a different plan. She changed her beneficiary designations.  She made her wishes clear – her kids would receive her inheritance, not the spouse divorcing her. The trial judge disagreed.  He ruled the beneficiary designations could NOT be changed.  As a consequence, Ms. Johnson’s life savings belonged to the man who divorced her. Ms. Johnson’s boys felt wronged; they hired RK.

RK’s trial team took the case. RK appealed to the State’s highest court. Fifteen months later, the Oklahoma Supreme Court found in favor of RK’s clients. The Supreme Court reversed the lower court’s decision and instructed the trial judge to award Ms. Johnson’s life savings to her kids, as she wished.  

In a companion decision to the McIntosh v. Watkins opinion, the Oklahoma Supreme Court held that the Progressive policy of insurance excluded treble damages arising from a “hit and run” accident.  In Pope, Progressive filed a declaratory judgment action seeking the trial court’s permission to exclude statutory treble damages pursuant to 47 O.S. Sec. 10-103 because of an exclusionary clause for punitive damages in the policy.  The trial court held that treble damages were punitive in nature and excluded by the policy.  The Oklahoma Supreme Court affirmed concluding that these types of statutory treble damages are for the purpose of controlling conduct of drivers and are punitive in nature, thereby excluded by the policy of insurance. 

The McKinney case arises from an appeal of Judge Joe Heaton’s Order granting summary judgment to Plaintiff on the coverage issue present.  The Tenth Circuit affirmed Judge Heaton’s Order based upon the Oklahoma Supreme Court’s recent opinion in Lane v. Progressive Northern Insurance Company. 

Plaintiffs filed suit against Progressive asserting breach of contract and bad faith theories of liability and also added their insurance agent as a Defendant.  Progressive removed the matter to the United States District Court for the Northern District of Oklahoma alleging the insurance agency was fraudulently joined to the lawsuit in order defeat diversity.  Plaintiffs filed a Motion to Remand.  Judge Claire Eagan denied Plaintiffs’ Motion to Remand and terminated the insurance agency as a defendant. 

The Lane case arises from an appeal of Judge Stephen Friot’s Order granting Progressive’s Motion for Judgment on the Pleadings on Plaintiff’s allegations of bad faith and breach of contract.  The Tenth Circuit, in accordance with the Oklahoma Supreme Court’s answer to a certified question, reversed Judge Friot’s Order on the contract claim but upheld Judge Friot’s Order on the bad faith claim.  In affirming in part Judge Friot’s Order, the Tenth Circuit correctly pointed out that the Tenth Circuit and the Oklahoma Supreme Court agreed that the law was unsettled as to whether Class II insured’s could recover more than Class I insured’s in a single vehicle accident.  As a result, the Tenth Circuit held that as a matter of law Progressive could not be held liable for extracontractual damages. 

In Hudgins, Progressive filed a declaratory judgment action seeking a judicial determination that its policy affords Hudgins neither indemnity coverage or defense to any tort litigation; no medical payments coverage to any party; and no coverage for punitive damages sought by the injured parties.  On February 26, 2020, Hudgins was operating a vehicle insured by Progressive while fleeing from the authorities.  While traveling 85 mph at times, running traffic stops, and driving in the opposite lane of travel after having allegedly committed a crime, Hudgins caused multiple incidents injuring others.  Judge Gregory Frizzell held that Hudgins actions could be considered an accident and that the Criminal Acts exclusion was invalid up to the minimum limits.  Judge Frizzell also held that Progressive had no duty to defend Hudgins in the tort litigation, that no medical payments coverage was owed based upon the Criminal Acts exclusion, and that Progressive had no obligation to indemnify for any award of punitive damages.   

This decision arose from a certified question by the Tenth Circuit: Does Progressive’s UM Exclusion – which operates to deny uninsured motorist coverage to insureds who recover at least the statutorily mandated minimum in the form of liability coverage – contravene Oklahoma’s Uninsured Motorist Statute, codified at 36 O.S. Sec. 3636?  The Oklahoma Supreme Court answered “yes” in a 5-3 decision.   Progressive filed a Petition for Rehearing, arguing the decision would create an irreconcilable conflict in that Class 1 insureds could recover less than Class II insureds for the same accident.  The Oklahoma Supreme Court, in a 5-4 decision, denied the Petition for Rehearing.

The Stewart decision involved a legal issue of first impression for the state’s appellate courts. RKC won the case.  The Stewart case stems from a motor vehicle accident that occurred in Tulsa, Oklahoma.  Prior to trial, RKC’s trial team offered to “confess” judgment (on behalf of RKC’s clients) under a “cost-shifting statute,” 12 O.S. § 1101.   By invoking this statute, RKC’s trial team converted the underlying litigation into a high stakes game of poker. The person suing RKC’s clients made the tactical decision to try the case, but ultimately failed to best RKC’s early settlement offer. As a consequence, RKC’s clients were awarded certain defense costs that would not have otherwise been recoverable.  After the favorable verdict, the assigned trial judge ruled that it would be unfair and/or unlawful to require the party who filed the lawsuit to pay any portion of the costs incurred by the parties who defended the case.  RKC’s trial team appealed the judge’s decision and won (again).  The sole issue on appeal was whether litigants who use the jury system to “gamble” should be penalized when they “lose the bet.”  More specifically, the issue of first impression was whether Section 1101 authorizes multiple Defendants to jointly file an offer to confess judgment to a single plaintiff.  The appellate court decided the issue in RKC’s favor. Accordingly, the trial judge’s decision was overturned, in favor of RKC’s clients.  RKC anticipates this ruling will impact a large number of civil cases throughout the state.  

Plaintiff asserted claims against Progressive on the grounds Progressive’s use of the Mitchell International WorkCenter Total Loss program to determine the “total loss value” of Plaintiff’s vehicles allegedly breached the insurance contract and the duty of good faith and fair dealing.  Plaintiff sought class certification, arguing that this was appropriate despite the fact that every vehicle property damage claim submitted to Progressive by its insureds, necessarily, includes issues of fact concerning the vehicles’ condition and value that are far from common.  Judge Patrick Wyrick of the United States District Court for the Western District of Oklahoma denied Plaintiff’s request for class certification, noting that Plaintiff had “offered little to no support” for her claim that Progressive’s use of this system “categorically violate[d] Oklahoma law[.]”  

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Plaintiff has filed a Rule 23(f) petition with the Tenth Circuit seeking review of Judge Wyrick’s denial of her request for certification, to which Progressive has objected.
 

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Two cases which present the same question of law have recently been decided by the United States District Court for the Western District of Oklahoma.  At issue in both matters is the question of whether Progressive may properly exclude uninsured motorist (“UM”) coverage under its policy when an insured has already recovered at least the minimum amounts of liability coverage provided by that same policy. Three Plaintiffs, all represented by the same counsel, filed three suits involving extremely similar factual scenarios and an identical UM coverage exclusion.  All three Plaintiffs asserted breach of contract and bad faith claims against Progressive.  Two of the cases were consolidated into the Lane case, and McKinney proceeded separately.  In all cases, the plaintiffs were “Class Two” insureds under the insurance policies, which means they were all considered insureds because they were occupying an insured vehicle, not because they were the named insured who purchased the policy or a resident relative of the named insured. 

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Two judges of the Western District of Oklahoma decided the issue differently.  Judge Joe Heaton, in the case of McKinney v. Progressive, held that though “the issue is not free from doubt,” the exclusion at issue violates Oklahoma UM public policy.  On the other hand, Judge Stephen Friot held Progressive had carried its burden of demonstrating the exclusion, as applied to the facts of the claims at issue, is permitted under Oklahoma law.  Judge Heaton, therefore, denied Progressive’s request for summary judgment on Plaintiff’s breach of contract claim. Judge Friot, however, granted Progressive’s motion for judgment on the pleadings.  Both judges found in Progressive’s favor on Plaintiffs’ bad faith claims, finding Progressive’s position regarding coverage was not unreasonable.  

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Both cases are currently on appeal.  The Tenth Circuit heard argument in the McKinney v. Progressive matter, and then issued a certified question to the Oklahoma Supreme Court, which was accepted by that court on March 13, 2020.  The appeal in Lane v. Progressive was stayed by the Tenth Circuit pending the Oklahoma Supreme Court’s determination of the certified question regarding the validity of the UM exclusion.
 

Lee McIntosh was involved in a hit and run accident caused by Jake Watkins. He sought treble damages against Watkins based upon the damage done to his vehicle. The District Court of Pottawatomie County held that 47 O.S. 2011 § 10-103 did not allow for treble damages because McIntosh also sustained injuries. Judgment was granted for Watkins. McIntosh appealed. In a 5-4 verdict the Oklahoma Supreme Court reversed the District Court's ruling saying that its interpretation "maintains the public policy behind 47 O.S. 2011 § 10-103 and avoids an absurd result." 

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The minority judges wrote a scathing rebuke of the majority's parsing of the legislative intent of 47 O.S. 2011 § 10-103. They noted that the majority had failed to appreciate the plain language of the statute and blasted the the decision as a "three-card-monte-like application of ambiguity, absurdity, and intentionalism" that resulted in "treble damages for everyone. The minority judges concluded that the case "demonstrates that it is all too easy to craft perfectly logical and sound policies from the isolation of judicial chambers" that fail to consider "the legislative compromises essential to a law's passage."

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Richard Whitham filed suit against Progressive Northern Insurance Company for breach of contract due to its alleged failure to pay owed underinsured motorist benefits. The suit was originally filed in Tulsa County District Court, but because Whitham's Petition alleged damages in excess of $75,000, Progressive removed the case to the United States District Court Northern District of Oklahoma on the basis of party diversity and the amount of damages sought.  Whitham subsequently said he was seeking only the underinsured motorist policy limits of $50,000, so he filed a motion to have the suit remanded to Tulsa County. Whitham's motion was denied. In denying the motion the Northern District noted that the law was clearly established that a "plaintiff may not defeat removal based on diversity of citizenship by reducing the amount in controversy after removal."