holding that “in a situation where the liability of a tortfeasor is limited by the Political Subdivisions Tort Claims Act, to an amount which will not compensate an insured for all his proven losses suffered in an automobile accident, that insured may recover from his insurer through the uninsured/underinsured motorist provisions of his automobile liability insurance, according to the terms thereof”
How later courts described this case
- holding that “in a situation where the liability of a tortfeasor is limited by the Political Subdivisions Tort Claims Act, to an amount which will not compensate an insured for all his proven losses suffered in an automobile accident, that insured may recover from his insurer through the uninsured/underinsured motorist provisions of his automobile liability insurance, according to the terms thereof”
- stating that when the construction of an insurance contract is “in doubt,” the contract should be construed more strongly against the insurer and in favor of the insured
- holding insured could recover under UM/UIM policy when tortfeasor’s liability was capped below “an amount which will [] compensate an insured for all his proven losses suffered in an automobile accident”
- UM coverage was extended to insured for excess damages where city's liability was limited by Oklahoma law; the court held that "legally entitled to recover" means that insured must establish only fault of tortfeasor giving rise to damages and extent of those damages
Written by the judges who cited it.
The opinion
OPALA, Justice,
with whom HODGES, Justice, joins, dissenting.
The precise, first impression question posed for decision is whether — to the extent shown to exceed the recovery limits set in the Political Subdivision Tort Claims Act, 51 O.S.1981 §§ 151 et seq. 1 — damages from bodily injury or death, 2 sustained as a result of negligence in the municipal operation of an automobile, fall within the protection of UM (uninsured/underinsured motorist) coverage. This coverage provides indemnity for the uninsured/underinsured liability of one from whom the insured is “legally entitled to recover ”. The court’s answer is in the affirmative. Because mine is in the negative, I must dissent from today’s pronouncement.
UM coverage affords first-party protection against uninsured/underinsured loss. 3 The indemnity provided by its terms is for legally recoverable liability, i.e. liability which is cognizable by the norms of substantive law applicable to the insured’s claim against the legally responsible, third party. 4 The obligation so insured clearly is coextensive with tortfeasor’s liability — not one iota broader.
*76 Municipal liability is to be measured by the statutory limits prescribed in 51 O.S. 1981 § 154. If a city does satisfy this limit, the injured party has received from it all that one is “legally entitled to recover”. An insured’s legal claim against his UM carrier cannot be for more than the maximum legal recovery against the uninsured/underinsured tortfeasor. By the terms of 51 O.S.1981 § 154 a city is not merely immune from tort suit; rather, it stands relieved from all excess liability. 5 Because it can have no legal responsibility above the statutory recovery limits, 6 neither does the injured party’s UM carrier. 7 Neither the provisions of the controlling statute, 36 O.S.1981 § 3636(B), nor the policy issued to the insured obligated this UM insurer to provide indemnity for every tort loss nonrecoverable by law. The protection afforded by the coverage under consideration here clearly is both legislatively and contractually confined to damages the insured is “legally entitled to recover ... from owners or operators of uninsured motor vehicles”. 8
I. would hold that a municipal tortfeasor with limited liability may not be legally characterized as an uninsured/underin-sured motorist for imposition of suprasta-tutory recovery against a UM carrier; I would hence affirm the summary judgment 9 rendered below for the insurer.
. In an extensively amended version the Political Subdivision Tort Claims Act will become The Governmental Tort Claims Act. 51 O.S. Supp.1984 §§ 151 et seq.
. In litigation here are four tort claims against Oklahoma City — some for death and some for bodily injuries. All of these claims arose August 10, 1982. It is not contested that the plaintiffs below may be regarded as being "insured” under the terms of UM coverage procured by their car owner-host.
. Uptegraft v. Home Insurance Co., Okl., 662 P.2d 681, 684 [1983].
. The existence of uninsured tortfeasor’s legally cognizable liability is a sine qua non of the UM carrier's obligation. Markham v. State Farm Insurance, 464 F.2d 703 [10th Cir.1972].
. The preamble to 51 O.S.1981 § 154 provides:
"The liability of a political subdivision ... on claims within the scope of this act shall not exceed: * * * " [emphasis supplied]
. For a legal distinction between mere immunity from suit and immunity from legal responsibility (liability), see comments in Prosser, The Law of Torts, § 116 [1964], quoted in Hooper v. Clements Food Company, Okl., 694 P.2d 943, 946 [1985]. For a discussion of different classes of tort immunity enjoyed by a motorist, see Widiss, A Guide to Uninsured Motorist Coverage, § 2.27, p. 55 [1969].
. See in this connection, Williams v. Country Mutual Insurance Co., 28 Ill.App.3d 274 , 328 N.E.2d 117, 119 [1975]; Noland v. Farmers Insurance Exchange, 413 S.W.2d 530 [Mo.App.1967] and Markham v. State Farm Insurance Co., supra note 4.
. The provisions of 36 O.S.1981 § 3636(B) are:
"The policy ... shall provide coverage ... for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles and hit-and-run motor vehicles ..." [emphasis supplied]
The quoted provisions make it textually demonstrable that within the contemplation and meaning of § 3636(B) nonrecoverable tort losses, for which the motorist-actor bears no legal responsibility and is not answerable in damages, do not constitute that motorist’s uninsured/underin-sured liability indemnifiable under an injured party's UM coverage. By today’s pronouncement in this appeal a far broader UM protection is mandated than (a) is presently required by statute, 36 O.S.1981 § 3636, and (b) was provided by the UM endorsement in suit.
.This case, though mistakenly brought here by a petition for certiorari to review a certified interlocutory order, calls for our review of an appealable decision — a summary judgment for the insurer. Because it was filed within the time limit provided for an appeal, it may be treated as a proceeding-in-error. Amarex, Inc. v. Baker, Okl., 655 P.2d 1040, 1043 [1982] and Prock v. District Court of Pittsburg County, Okl., 630 P.2d 772, 775 [1981].