# Hulsey v. Mid-America Preferred Insurance Co. > Supreme Court of Oklahoma · July 11, 1989 · 777 P.2d 932 URL: https://www.frixlaw.com/law-library/cases/9844285 ## Case - **Full name:** Judy Kay HULSEY, Administratrix of the Estate of Robert Lee Hulsey, Deceased, Plaintiff-Appellant, v. MID-AMERICA PREFERRED INSURANCE COMPANY, Defendant-Appellee - **Court:** Supreme Court of Oklahoma - **Decided:** July 11, 1989 - **Citations:** 777 P.2d 932; 1989 OK 107; 1989 Okla. LEXIS 138; 1989 WL 78284 - **Precedential status:** Published - **Opinion:** Dissent by Wilson - **Judges:** Ala, Hargrave, Hodges, Lavender, Doolin, Kauger, Simms, Wilson, Summers - **Cited by:** 94 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9844285 ## Opinion text ALMA WILSON, Justice, dissenting: The majority has misdefined the foundation issue in this case as purely contractual. However, an insurance contract involving uninsured motorist coverage cannot be construed independently of or adversely to the unequivocal, mandatory uninsured motorists policy stated at 36 O.S.1981 § 3636: § 3636 Uninsured motorist coverage (A) No policy insuring against loss resulting from liability imposed by law for bodily injury or death suffered by any person arising out of the ownership, maintenance or use of a motor vehicle shall be issued, delivered, renewed, or extended in this state with respect to a motor vehicle registered or principally garaged in this state unless the policy includes the coverage described in subsection (B) of this section. (B) The policy referred to in subsection (A) of this section shall provide coverage therein or supplemental thereto 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 vehicles because of bodily injury, sickness or disease, including death resulting therefrom.... The statutory language, above, clearly mandates UM protection for an insured and such protection is not conditioned upon a wrongdoer’s state of mind. The sole statutory condition of coverage is that an insured’s bodily injury or death, to be com-pensable, must arise out of the ownership, maintenance or use of a motor vehicle. Thus, the threshold issue which must first be addressed in the present case is the propriety of the insurer’s attempt to limit the scope of protection mandated by § 3636 by way of clauses inserted in UM insurance policies. Here, the insurer has inserted a clause which makes UM protection contingent upon an accidental occurrence. I am of the opinion that this contingency impermis-sibly dilutes the statutorily mandated protection. Where, for example, a hit and run injury or death is involved, the state of mind of the unknown assailant is not only unknown, but bears zero relevance to the insured’s expectation of protection pursuant to 36 O.S.1981 § 3636. The heavy burden which the majority lays upon an individual’s right to recover under the mandatory provisions of § 3636 defeats the very policy espoused by the public law statute. This Court has previously examined with critical scrutiny policy provisions which purport to dilute the legislatively mandated uninsured motorist coverage. Keel v. MFA Insurance Co., 553 P.2d 153 (Okla.1976); Biggs v. State Farm Mutual Automobile Insurance Co., 569 P.2d 430 (Okla.1977); Porter v. MFA Mutual Insurance Co. 643 P.2d 302 (Okla.1982); Lake v. Wright, 657 P.2d 643 (Okla.1982); Chambers v. Walker, 653 P.2d 931 (Okla.1982); Uptegraft v. Home Insurance Co., 662 P.2d 681 (Okla.1983); Heavner v. Farmers Insurance Company, 663 P.2d 730 (Okla.1983); State Farm Mutual Auto Insurance Co. v. Wendt, 708 P.2d 581 (Okla.1985). Under the majority’s conviction, however, a no-fault victim’s statutorily based right of recovery may be thwarted by an impossible burden to prove the state of mind of some phantom tortfeasor. I cannot countenance such stance. *939 This is to no wise infer that an insurer is ;prima facie liable to provide coverage for “cold-blooded murder”. The distinction, however, is not dependent upon an oblique state of mind maintained by an identified or unidentified third party tortfeasor; but rather, whether or not an independent intervening act has broken the chain of causation between the insured’s injury and the use of an automobile. Accordingly, not all intentional acts are excluded from coverage, nor are all accidental occurrences inclusively covered. It is for the trier of fact to decide the causative factor, for there is no hard and fast rule which can encompass all eventualities. Each determination should be decided on a case by case basis dependent on the facts of each. See, e.g., Georgia Farm Bureau Mutual Insurance Co. v. Burnett, 167 Ga.App. 480 , 306 S.E.2d 734 (1983); Hicks v. Walker County School District, 172 Ga.App. 428 , 323 S.E.2d 231 (1984); Also, see, Home Indemnity Company v. Lively, 353 F.Supp. 1191 (W.D.Okla.1972), wherein the appropriate test was deemed to be the broader requirement of causal relationship or connection. Today the majority errs in attempting to pigeon-hole coverable and uncoverable events according to an illusive state of mind concept. I dissent. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9844285. Public record. Not legal advice.