Salus Populi Suprema Lex Esto

About MoreLaw
Contact MoreLaw

Please E-mail suggested additions, comments and/or corrections to Kent@MoreLaw.Com.

Help support the publication of case reports on MoreLaw

Date: 12-06-2017

Case Style:



Case Number: 2017 OK 95

Judge: Patrick R. Wyrick


Plaintiff's Attorney: Thomas G. Ferguson, Jr.
Clay G. Ferguson

Brian P. Kershaw

Defendant's Attorney: Sheila R. Benson
Greg D. Givens

Description: When describing an insurer's subrogation claim, we say that the subrogated insurer "steps into the shoes of the plaintiff."1 Here, the original plaintiff, Tori Ukpaka, brought a timely lawsuit against the Defendant/Appellee, Nicholas Payne, for injuries arising out of an automobile accident that happened in 2012. Ukpaka then voluntarily dismissed that lawsuit in 2015--after the statute of limitations for such actions had run. No one questions that if Ukpaka wanted to refile her claim, the savings statute at 12 O.S. 100 would allow her up to one year from the date of the dismissal to do so.2 The question in this case is whether Ukpaka's subrogated insurer, State Farm, enjoys the same one-year grace period in which to revive Ukpaka's claim. We hold that it does, and thus that when a subrogated insurer "steps into the shoes of the plaintiff," that includes being treated like the plaintiff for purposes of the savings statute.
2 The automobile accident giving rise to this case happened on January 23, 2012. On January 3, 2014, just within the applicable two-year statute of limitations,3 Ukpaka filed a negligence claim against the other driver in the accident, Payne, alleging damages "in excess of $10,000."
3 Ukpaka, meanwhile, was going through the claims process with her insurance provider, State Farm. State Farm assessed Ukpaka's damages, and shortly after Ukpaka commenced the lawsuit against Payne, State Farm paid Ukpaka a total of $38,500 in insurance benefits pursuant to her policy for uninsured/underinsured motorist coverage. Ukpaka then decided not to pursue her claim against Payne and moved to voluntarily dismiss that lawsuit. The cause was dismissed without prejudice on January 14, 2015- -approximately one year after the statute of limitations had run.
4 Roughly two months later, on March 20, 2015, State Farm filed this lawsuit raising the same negligence claim as Ukpaka, only this time the named plaintiff was "State Farm Mutual Automobile Insurance Company a[s]/s[ubrogee]/o[f] Tori Harvey Ukpaka," rather than Ukpaka herself. State Farm argued in its petition that this action was timely in light of 12 O.S. 100. Payne countered in a motion for summary judgment that State Farm cannot avail itself of 12 O.S. 100 because it was not a plaintiff in the original action, and that its claim is thus time-barred. The district court granted Payne's motion, and the Court of Civil Appeals affirmed. We granted certiorari and now reverse.
5 Title 12, section 100 states:
If any action is commenced within due time, and a judgment thereon for the plaintiff is reversed, or if the plaintiff fail in such action otherwise than upon the merits, the plaintiff, or, if he should die, and the cause of action survive, his representatives may commence a new action within one (1) year after the reversal or failure although the time limit for commencing the action shall have expired before the new action is filed.
To avail itself of this statute, State Farm must demonstrate four things: (1) that the original action was timely, (2) that the action terminated for some reason other than its merits, (3) that State Farm qualifies as one of the parties entitled to revive the action, and (4) that the new action is substantially the same as the original.4 Ukpaka's original action was timely and its voluntary dismissal was a termination for reasons other than the merits,5 which leaves only two questions. First, does State Farm qualify as one of the parties entitled to revive the action? And, second, is the action State Farm asserts substantially the same as Ukpaka's? We answer both in the affirmative.
6 Under the plain text, there are two classes of person entitled to the benefit of the savings statute: "the plaintiff" and "his representatives" as survivors of the plaintiff.6 State Farm does not claim to be a representative survivor of Ukpaka; thus, the only way it can proceed under the savings statute is if it can qualify as "the plaintiff." Payne argues that we should narrowly construe that term and limit it to only those that participated as plaintiffs in the original action. Our cases say otherwise.
7 We have consistently held that Oklahoma's savings statute is "remedial" in nature, and thus "should be liberally construed."7 Accordingly, our test for whether a subsequent plaintiff qualifies as "the plaintiff" for purposes of 12 O.S. 100 focuses not on whether the subsequent plaintiff is identical to the one before, but on whether the two entities are "substantially the same."8 To determine that, we ask whether the parties are "suing in the same right."9
8 For example, in Midland Valley Railroad Co. v. Townes, we held that a personal representative to a decedent's estate could avail itself of the savings statute to revive a wrongful death claim originally brought by the decedent's widow.10 We said in that case that "the present action is the same as the former. The change is merely a substitution of parties . . . . The change is in form rather than in substance."11
9 Likewise, in Haught v. Continental Oil Co., we held that the savings statute applied to revive a claim for damages to real property where the original plaintiff's wife, a co-tenant of the property at issue, was added as a plaintiff in the subsequent action after the first was dismissed for failure to join her as a necessary party.12 We said there that "[s]ince both actions contemplated recovery in full of all damage sustained to the common property and complete adjudication of the rights of the joint owners thereof, we conclude that the cause of action is the same in both cases, that the parties are substantially the same and that the present action is one within the intendment of the saving provisions of Section 100."13
10 But perhaps the most helpful example comes from Garrett v. Downing, where we held that the parties lacked the requisite relationship.14 In that case, an individual shareholder of a corporation brought an action to foreclose on a "mechanic's" lien that had been filed in connection with services the corporation had provided to the defendant.15 After the relevant statute of limitations had run, the shareholder dismissed that action without prejudice and, on the very next day, filed a subsequent action naming both himself and the corporation as plaintiffs.16 We ultimately determined that the shareholder was not a proper party to that action; thus, the corporation's right to collect on the lien hinged on whether it was qualified to revive the claim under the savings statute.17 In holding that it was not qualified, we emphasized the "general rule" that "a shareholder cannot maintain a suit to redress wrongs done to the corporation."18 And "[s]ince an individual cannot maintain a suit in his own name to redress wrongs done to the corporation," we explained, "it cannot logically be said that a suit instituted by the shareholder . . . can toll the statutory time requirements for filing a lien and commencing an action for enforcement thereof by the corporation."19 The fact that the parties did not and could not represent the same interests was dispositive.
11 The "general rule" in subrogation, however, is just the opposite. When an insurer establishes a claim as subrogee, we say that the subrogated insurer "steps into the shoes of the plaintiff."20 The insurer "takes the claim" of the plaintiff/insured "subject to all legal and equitable defenses which the tortfeasor may have against the plaintiff" and "acquires no rights greater than those of the [plaintiff]."21 The subrogated insurer brings the same cause of action as the plaintiff/insured,22 to recover damages arising from the same injuries as the plaintiff/insured.23 In short, the subrogated insurer maintains a suit in its own name to redress wrongs done to its insured; and for that reason, we hold that a subrogated insurer is "substantially the same, suing in the same right" as its plaintiff/insured for purposes of 12 O.S. 100.24
12 This conclusion is also consistent with our treatment of subrogees for purposes of statutes of limitations generally. In Employers Mutual Casualty Co. v. Mosby, we held that even though a subrogated insurer doesn't gain its right to sue until the date it pays on the loss, it nevertheless shares the same accrual date as the insured for purposes of the statute of limitations.25 Thus, in a case like this, where State Farm did not establish its right to sue until 2014, the statute of limitations still began to run against it from the date of the accident in 2012. If subrogated insurers should be bound to the same temporal fate as their insureds under the statute of limitations, they should also benefit from the same graces under the savings statute.26
13 Having found that State Farm is the same as "the plaintiff" under 12 O.S. 100, we turn our attention to whether the claim it seeks to revive is the same as that in the original action. Where the parties are nominally different, the analysis on this question should significantly overlap with the analysis for whether the parties are substantially the same. This is so because whether a subsequent plaintiff is "suing in the same right" as the former also informs whether they are raising the same claim. In terms of this case, if State Farm is truly suing as a subrogee of Ukpaka (i.e., suing in the same right as Ukpaka), then the claim it raises should be the same. The petition confirms that it is.
14 State Farm's petition names the same defendant, Nicholas Payne. It alleges the same January 23, 2012, accident as the factual basis for the action. It again cites Payne's negligence as the legal basis for the action. Finally, it asks for redress of the same property and bodily-injury damages incurred by its insured, Tori Ukpaka. As we said in Midland Valley Railroad Co.: "[T]he same facts prove or disprove all of the issues . . . , the same defenses exist, the merits of the action are in all substantial respects the same."27 If Payne was sufficiently on notice of the need to defend this action when it was first brought and the purpose behind the statute of limitations was satisfied in the event Ukpaka refiled, Payne suffers no prejudice in the event State Farm does the same.

Outcome: In light of the relationship created through subrogation, we hold that a subrogated insurer is "substantially the same" as its insured for purposes of the savings statute at 12 O.S. 100, and is thus permitted the same one-year grace period in which to revive a claim originally brought by its insured. Accordingly, we conclude that State Farm's action against Payne, filed within one year after its insured voluntarily dismissed the same, is timely. The judgment of the trial court is reversed, and the case is remanded with instructions to proceed in a manner consistent with this opinion.

Plaintiff's Experts:

Defendant's Experts:


Home | Add Attorney | Add Expert | Add Court Reporter | Sign In
Find-A-Lawyer By City | Find-A-Lawyer By State and City | Articles | Recent Lawyer Listings
Verdict Corrections | Link Errors | Advertising | Editor | Privacy Statement
© 1996-2018 MoreLaw, Inc. - All rights reserved.