concluding that it would be manifestly unjust to permit an insurer to avoid contractual and statutorily defined duties by asserting third-party tort immunity as a defense to payment of uninsured motorist benefits
How later courts described this case
- concluding that it would be manifestly unjust to permit an insurer to avoid contractual and statutorily defined duties by asserting third-party tort immunity as a defense to payment of uninsured motorist benefits
- confirming Barfield applies to both Class 1 and Class 2 insureds
- finding breach of UM/UIM contract even though benefits also paid under workers’ compensation statute, which included exclusivity provision
- “Protection under an uninsured motorist policy is a contractual right resting in the insured and thus may be coexistent with the protection under the Workers’ Compensation Act. An uninsured motorist carrier does not stand in the tortfeasor’s shoes and the conditions for recovery under an uninsured motorist policy can be satisfied even if the insured cannot prove all the elements of the tort against the insured.” (Citations omitted.)
Written by the judges who cited it.
The opinion
OPALA, Justice,
with whom HARGRAVE, Vice Chief Justice, and HODGES and LAVENDER, Justices, join, dissenting.
The court holds that the risk carrier of uninsured/underinsured motorist [UM] coverage must answer in damages for the death of its insured even though the tort-feasor-motorist stands shielded from liability by the immunity conferred in the Workers’ Compensation Act. 1 I cannot join in today’s pronouncement.
The purpose of the statutory mandate for UM coverage, 36 O.S. 1981 § 3636, is to afford first-party protection for bodily injury or death occasioned to an insured who is "... legally entitled to recover damages from owners or operators of uninsured motor vehicles_” [Emphasis added.] The insurer’s liability clearly is gauged by that of another — the uninsured/underin-sured tortfeasor. Although the carrier’s ex contractu obligation may be enforced under a longer statute of limitations than that which governs the ex delicto claim against an uninsured tortfeasor, 2 the insured must nonetheless show, as a condition of recovery, that the uninsured/underinsured motorist bears liability for the harmful event. The coverage extends only to situations in which the offending motorist lacks insurance or is inadequately insured; it does not apply when the owner or operator is cloaked with immunity from liability. In the latter event the insured cannot be regarded as one who, within the meaning of § 3636, stands "... legally entitled to recover damages from ...” the uninsured tortfeasor. 3
*1114 I would hold that the plaintiff-administra-trix does not have an actionable claim against her decedent’s UM carrier. The demand she presses here is not for a tort loss that is legally recoverable from the co-employee-driver. I would hence affirm the trial court’s summary judgment for the insurer.
. 85 O.S.Supp.1984 § 12 and 85 O.S.1981 § 122; see in this connection, Harter Concrete Products, Inc. v. Harris, Okl., 592 P.2d 526 [1979] and Carroll v. District Ct. of Fifteenth Jud. Dist., Cherokee County, Okl., 579 P.2d 828 [1978].
. See, Uptegraft v. Home Insurance Co., Okl., 662 P.2d 681, 684 [1983].
. Williams v. Country Mutual Insurance Company, 28 Ill.App.3d 274 , 328 N.E.2d 117 [1975] (workers’ compensation immunity) (the later case of Allstate Ins. Co. v. Elkins, 77 Ill.2d 384 , 33 Ill.Dec. 139 , 396 N.E.2d 528 [1979] neither overrules, nor is its rationale in discord with, Williams, supra); Gray v. Margot Inc., 408 So.2d 436, 438 [La.App.1981] (workers' compensation immunity); Hopkins v. Auto-Owners Insurance Company, 41 Mich.App. 635, 638 , 200 N.W.2d 784, 786 [1972] (workers’ compensation immunity); Hubbel v. Western Fire Ins. Co., 706 P.2d 111, 112-113 [Mont.1985] (workers’ compensation immunity); York v. State Farm Fire & Cas. Co., 64 Ohio St.2d 199 , 414 N.E.2d 423 [1980] (governmental immunity) and Sayan v. United Services Auto. Ass’n, 43 Wash.App. 148 , 716 P.2d 895, 897 [1986] (workers’ compensation immunity); see also Karlson v. City of Oklahoma City, Okl., 711 P.2d 72, 75 [1985] (Opala, J., dissenting) (limited governmental liability); see also, Annot., Actual Notice or Knowledge by Governmental Body or Officer of Injury or Incident Resulting in Injury as Constituting Required Claim or Notice of Claim for Injury — Modern Status, 7 ALR4th 1063 [1981]. In Hopkins v. Auto-Owners Insurance Company, supra, the court concluded that ”[b]ecause of *1114 the exclusiveness of the workman’s compensation coverage, plaintiff never had a remedy against the tortfeasor" and to allow the plaintiff to recover “would be to grant ...a windfall not contemplated by the parties ... and not intended by the Legislature_" [Emphasis supplied.]