# Holt v. Bell > Supreme Court of Oklahoma · May 19, 1964 · 392 P.2d 361 URL: https://www.frixlaw.com/law-library/cases/9848766 ## Case - **Full name:** Tom HOLT and Plains Insurance Company, a Foreign Corporation, Petitioners, v. Robert J. BELL, Judge of the District Court of Pittsburg County, State of Oklahoma, Respondent - **Court:** Supreme Court of Oklahoma - **Decided:** May 19, 1964 - **Citations:** 392 P.2d 361 - **Precedential status:** Published - **Opinion:** Dissent by Jackson - **Judges:** Johnson, Blackbird, Halley, Davison, Williams, Berry, Jj-, Jackson, Irwin - **Cited by:** 18 later opinions in the Frix Law Library ## Citator (automated) - **Red flag:** Overruled by Keel v. MFA Insurance Company, 1976 Okla. LEXIS 514 (1976). - Negative treatments: 1 - Distinguished by: 0 - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9848766 ## How later opinions describe it (automated extraction) - discussing reason why insured should not be required to first sue uninsured motorist before suing insurance carrier ## Opinion text JACKSON, Justice (dissenting). The plaintiff in the trial court has an insurance policy wherein the insurance company contracted in substance, as follows: “The Company will pay all sums which the insured (plaintiff herein) shall be legally entitled to recover, * * * from the owner * * * of an uninsured automobile, because of bodily injury * * The insurance contract also provided: “ * * * provided, for the purpose of this coverage, determination as to whether the insured or such representative is legally entitled to recover such damages, and if so the amount thereof; shall be made by agreement between the insured or such representative and the company or, if they fail to agree, by arbitration.” The provision for arbitration was'held void in Boughton v. Farmers Insurance Exchange, Okl., 354 P.2d 1085 , 79 A.L.R.2d 1245 , annotated 79 A.L.R.2d at page 1252 , and supplemented in 1964 (Vol. 4) A.L.R.2d Supp. Service, page 1762. In the Boughton case the plaintiff first brought an action against the uninsured motorist and obtained judgment. Plaintiff then brought an action against the insurance company and we held “under the facts in this (Boughton) case” that the insurance company may not now say that it is entitled to relitigate the issues of uninsured’s legal liability and the amount thereof. *364 This is the first time that this court has been called upon to direct the trial court procedurally where plaintiff brings a direct action against the insurance company to determine uninsured’s legal liability. It must be noticed that the insurance contract contemplated that insured would bring a direct action against the insurance company before a board of arbitration to establish uninsured’s liability and the amount thereof. This provision being voided, and the insurance contract making no other procedural requirements to meet such a contingency, it seems to me that insured may bring a direct action against his insurance company. Company’s obligation to insured is a direct obligation, as much so as if the policy had related to fire insurance coverage. In Travelers Indemnity Company v. DeBose, Sup., 226 N.Y.S.2d 16 , insured’s cause of action against the uninsured motorist was barred by limitations. Insured filed a direct action against his insurance carrier under uninsured motorist coverage. The company contended that since insured had not proceeded first against the uninsured motorist he was barred as against the company. That court disagreed and held that insured was legally entitled to proceed directly against the insurance company, in the following language: “That clause (legally entitled to recover as damages’) has been construed to mean damages as a result of liability imposed by law, to-wit, the issues of causative negligence and contributory negligence, and the resulting question of damages. * * * The court does not construe that clause to mean, as petitioner’s argument would seem to indicate, legal liability for damages as determined by a court of law in an action brought by the insureds against the uninsured motorist. The contract specifically specified the manner of making such determination: first, by agreement, and secondly, failing in this by arbitration.” In editorial syllabi in the New York case it was said: “1. Automobile insurer may assert, as defenses, to claim under uninsured motorist coverage, the non-negligence of the uninsured, insured’s contributory negligence, and lack of damage, but does not succeed to uninsured motorist's procedural defense of statute of limitations. “2. Insured under uninsured motorist coverage did not breach trust clause of policy by not bringing suit against allegedly uninsured motorist. “3. Insureds’ bringing suit against allegedly uninsured motorist was not condition precedent to insurer’s liability under uninsured motorist coverage, which entitled insured to recover what they were entitled to recover as damages from uninsured motorist.” For all practical purposes insured’s legal entitlement to recover from an uninsured motorist, and the amount thereof, can be determined as readily and efficiently in a direct action against the insurance company as in an action against the uninsured motorist. A requirement that insured must first proceed to judgment against the uninsured motorist will present multiple problems. Where the uninsured motorist was killed in the accident insured will be required to have an administrator appointed to represent the uninsured motorist; if the uninsured motorist is a “hit and run” driver additional problems will be presented; and if uninsured refuses to let the insurance company defend or participate in the action, questions of due process will arise. Such a procedure will require vexatious and fruitless actions against indigent and bankrupt motorists; it will encourage insurance companies and their attorneys to solicit the defense of uninsured motorists; and will put the insured plaintiff to the expense and delay of trying two law suits in order to collect one judgment. *365 I am of the view that a direct action maybe maintained against the insurance company. Is it permissible to join the uninsured motorist in an action against the insurance company? I am of the view that it is. Uninsured motorist coverage is not liability insurance. In 12 O.S.1963 Supp. § 323, it is provided: “All claims which arise out of the transaction or occurrence that is the foundation of the plaintiff’s claim and which contain common questions of fact, may be joined in one action, and any person who is liable on such a claim may be joined as a party to the action. The court may order a separate trial of any claim or of any issue in the furtherance of a just and prompt determination of the controversy and to avoid delay or prejudice. Nothing herein permits the joinder of liability insurers or creates any right of contribution or indemnity which has not heretofore existed.” (Separate trials may be ordered to prevent prejudice — ■ 12 C.S.1961 § 265.) (Emphasis and parenthesis supplied.) I am conscious of the rule that a plaintiff may not tell the jury that the defendant is protected by liability insurance, Redman v. McDaniel, Okl., 333 P.2d 500 , and the rule that a defendant may not tell the jury that he is not protected by liability insurance, Bacon v. Wass, 200 Okl. 581 , 198 P.2d 423 . The reasons for those rules are not present in this case. Here the plaintiff has elected to join the uninsured motorist in the action against the insurance company. In doing so I think he has waived the rule in Bacon v. Wass, supra, if he insists upon trying the two cases together. If the uninsured defendant may not tell the jury that he is not protected by insurance the jury would undoubtedly get the impression that the Company would pay the judgment; whereas, in truth the uninsured motorist is the insurance carrier for Company under subrogation provisions of the insurance policy. In view of the foregoing considerations, I am of the view that the plaintiffs may proceed against their insurance company without first obtaining a judgment against the uninsured motorist. In 12 O.S.1961 § 231, it is provided that any person may be made a defendant who claims an interest in the controversy adverse to the plaintiff, or who is a necessary party to a complete determination of the question involved. The uninsured motorist is not a necessary party to a complete determination of plaintiffs’ rights against their insurance carrier. While I am of the view that in an action against the insurance company the uninsured motorist may be joined as a party defendant, the trial court in the furtherance of justice and to avoid prejudice, may order separate trials. I see no occasion for issuing the writ of prohibition. The trial court undoubtedly has carefully considered, or will carefully consider, the question of whether the actions against the defendants may be jointly tried without prejudice. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9848766. Public record. Not legal advice.