March, 1996
By
Schachter v. Pacificare of Oklahoma, Inc., 923 Fed.Supp. 1448 (N.D. Ok. 1996). Judge Mike Burrage held that ERISA does not preempt state law tort claim brought against an HMO premised upon vicarious liability and/or ostensible agency. Judge Burrage did find, however, that the plaintiff's state law fraud claim was preempted by ERISA but his loss of consortium claim was not.
Byus v. Mid-Century Insurance Company, Case No. 81,340, 67 O.B.J. 794 (Okla. 03/02/96). Reversed summary judgment for Plaintiff on a claim against the Defendant for the death of a car killed in a drive-by-shooting holding that there was a fact question regarding the causal chain between the use of the car and the death of Plaintiff's decedent.
Double "LL" Contractors, Inc. v. State of Oklahoma, ex rel. Oklahoma Department of Transportation, Case No. 81,149, 67 O.B.J. 790 (Okla. 03/02/96). Held that a contractor decertified from the Minority Business Enterprise program by the Department of Transportation failed to exhaust its administrative remedy before filing sue in the District Court of Muskogee County challenging its decertification and, therefore, the District Court lacked jurisdiction over the matter.
Barton v. Independent School District No. I-99 of Custer County, Oklahoma, Case No. 85,197, 67 O.B.J. 1047 (Okla. 03/23/96). If a teaching position held by a career teacher is eliminated pursuant to a reduction-if-force plan and the tenured teacher is qualified for another position occupied by a nontenured teacher, reasonable accommodations must be made to give priority to contract renewal to qualified tenured personnel over nontenured teachers.
Globe Life and Accident Insurance Company v. Oklahoma Tax Commission, Case No. 83,426, 67 O.B.J. 1043 (Okla. 03/23/96). Held that names on magnetic tape purchased by Globe were not tangible personal property subject to use tax imposed on the purchase of tangible personal property purchase outside Oklahoma and brought into the state.
Union Oil Company of California v. Board of Equalization of Beckham County, Case No. 83,372, 67 O.B.J. 1037 (Okla. 03/23/96). Held that summary judgment against Beckham Count19y by District Court on claimed tax liability was res judicata on similar tax claim by the county in subsequent years where the record reflects that the earlier judgment was clearly on the merits.
Johnson v. Board of Governors of Registered Dentists of the State of Oklahoma, Case No. 82,371, 67 O.B.J. 1027 (Okla. 03/23/96). Held that: (1) district courts have jurisdiction to hear challenges to administrative agency wrongdoing; (2) administrative boards are not required to establish guidelines for the imposition of discipline; (3) the proper standard of proof in disciplinary proceedings against a person holding a professional license is clear and convincing evidence; and (4) district court have the power to order administrative boards members disqualified from hearing proceedings under certain circumstances.
Crownover v. State Farm Mutual Automobile Insurance Company, Case No. 84,475, 67 O.B.J. 957 (Ok.App. 03/16/96). Household exclusion clause in uninsured motorist policy excluded coverage under the policy, because plaintiff was residing in his parents' household but owned his own automobile, violated public policy and was void.
Johnny Delbrel v. Doenges Bros. Ford, Inc., Case No. 83,096, 67 O.B.J. 953 (Okla. 03/16/96). Reversed the summary judgment in favor of Doenges Brothers Ford holding that it was possible for Delbrel to state a cause of action against Doenges for negligently causing or contributing to injuries sustained by him when struck by a car while he was pushing a vehicle recently repaired by Doenges off of the street after it stalled.
Walkey v. Triad Drilling Company, Case No. 85,716, 67 O.B.J. 883 (Ok.App. 03/09/96) Drilling company employee injured in a single vehicle accident while travelling via car pooling arrangement to the drill rig was not injured out or and in the course of his employment and was not entitled to workers' compensation benefits for his injuries.
Leonard Walker v. William Alonzo Reynolds, et al., Case No. 84,743, 67 O.B.J. 882 (Ok.App. 03/09/96). Indian tribes in Oklahoma are vested with the power to define their own membership for tribal purposes but State District Courts have the power to determine the heirs of such tribal members.
Eddie Leroy Trice v. State of Oklahoma, PC-94-1268, 67 O.B.J. 877 (Ok.Cr.App. 03/09/96). The Oklahoma Court of Criminal Appeals rejected the petition of Eddie Leroy Trice's application for post-conviction relief from a death sentence imposed upon him by an Oklahoma County jury for First Degree Malice Aforethough Murder, First Degree Rape, First Degree Burglary and Assault and Battery with a Dangerous Weapon. Trice claimed, among other things, that the Oklahoma County District Court committed error when it refused to allow testimony from a defense witness who planned to inform the jury how many years a convict serving several consecutive life sentences would actually spend in prison.
Elizabeth M. Schmidt v. United States of America, Case No. 85,545, 67 O.B.J. 873 (Okla. 03/09/96). Under Oklahoma law, a contractual exculpatory clause for personal injury is valid and enforceable. Also, an exculpatory provision contained in a Rental Riding agreement at a stable is valid and enforceable and will bar a plaintiff's negligence and negligent entrustment claims if: (1) the exculpatory clause's language clearly, definitely and unambiguously displays an intent to insulate the stable operator from the type of liability the plaintiff seeks to impose; (2) no disparity of bargaining power existed between the two parties to the agreement containing the clause at the time it was executed; and (3) its effect would not violate public policy. Such clauses cannot be used to relieve one from liability for fraud, willful injury, gross negligence or violation of law.
First National Bank in Altus v. Kiowa, Comanche and Apache Intertribal Land Use Committee, Case No. 84,301, 67 O.B.J. 871 (Okla. 03/09/96). A contract between a tribal enterprise engaged in commercial activities outside Indian country and a non-Indian may be enforced in state court. The Court's recent decision in Hoover v. Kiowa Tribe of Oklahoma, 909 P.2d 59 (Okla. 1995), was dispositive of the issue.
Quail Creek Golf and Country Club v. Oklahoma Tax Commission, Case No. 83,516, 67 O.B.J. 869 (Okla. 03/09/96). Oklahoma's unclaimed property laws apply to an unredeemed bonds where no sinking fund or other money account was created to redeem the bonds.
Continental Casualty Company v. Leslie C. Hunt, Case No. 79,410, 67 O.B.J. 864 (Okla. 03/09/96), vacated the opinion of the Court of Appeals and affirmed the trial court's grant of summary judgment for a disabled social security beneficiary who was sued by his disability insurance carrier for a portion of a lump sum social security payment. The Court held that the insurance company had the right to offset its disability benefits being paid to a beneficiary by funds received from social security benefits, but is prohibited by federal law from threatening a lawsuit, filing a lawsuit, or receiving a judgment in an attempt to collect against the lump sum received by the beneficiary.