Fowler v. American Family Mutual Insurance Co., (10th Cir. 2000)

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UNITED

STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

TRACI FOWLER, Administratrix of

the Estate of Levy Abla, a deceased

minor, and Traci Fowler, individually,

Plaintiff-Appellant,

v.

AMERICAN FAMILY MUTUAL

INSURANCE COMPANY, d/b/a

American Family Insurance,

Defendant-Appellee.

No.
name="1">99-6292

(D.C. No. 98-CV-1388)

(W.D. Okla.)

ORDER AND JUDGMENT
name="txt*">(*)

Before KELLY, McKAY, and

HENRY, Circuit Judges.

After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties' request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore

ordered submitted without oral argument.

This appeal involves a case based on diversity of citizenship in which

plaintiff disputes the treatment of her claim for uninsured/underinsured motorist

(UM) coverage. The district court granted summary judgment in favor of

defendant, finding that UM coverage was not available under the terms of the

policy and that, consequently, defendant did not breach its duty of good faith and

fair dealing. We review the grant of summary judgment de novo to determine

whether there is a genuine issue of material fact and if defendant is entitled to

judgment as a matter of law. See Anderson v. Coors Brewing Co., 181 F.3d 1171,

1175 (10th Cir. 1999). In so doing, we view the evidence in the light most

favorable to plaintiff. See id. Guided by this standard, we affirm.

Levy Abla, an Oklahoma resident, was killed in a one-car accident in

Oklahoma. He was a passenger in a car driven by April Abla, who is the daughter

of the car's owner, Ronald Abla. The car was registered and garaged in Kansas,

and it was insured by defendant pursuant to an insurance contract between Ronald

Abla, a Kansas resident, and defendant. The contract was entered into in Kansas.

Plaintiff, Levy Abla's mother and the administratrix of his estate, resides in

Oklahoma, as do all the other beneficiaries of the estate.

The district court applied Oklahoma's choice of law principles and

determined that Oklahoma law governed the outcome of this case. Even though

the contract was entered into in Kansas, the district court found that Oklahoma

law applied because Oklahoma has the most significant relationship with the

subject matter and the parties. See Bohannan v. Allstate Ins. Co., 820 P.2d 787,

797 (Okla. 1991). We review the district court's choice of law and state law

determinations de novo. See Wood v. Eli Lilly & Co., 38 F.3d

510, 512 (10th Cir.

1994). Although defendant suggests that the "significant relationship test" does

not require application of Oklahoma law, it does agree with the district court's

finding that Oklahoma law does not dictate that plaintiff was entitled to UM

coverage. The district court was correct in applying Oklahoma law in this case

because that state has the most significant relationship to the subject matter and

the parties.

We agree with the district court that Okla. Stat. tit. 36, § 3636(A) and the

public policy embedded therein do not dictate that plaintiff is entitled to UM

coverage in this case, because the insured vehicle was neither registered nor

garaged in Oklahoma.(1) The district court

was correct in finding that the statute,

by its terms, applies only in situations where the insured vehicle is "registered or

principally garaged in [Oklahoma]." Okla. Stat. tit. 36, § 3636(A).

Consequently, Oklahoma public policy does not prohibit interpreting the

policy according to its express provisions.

The insurance policy defines "underinsured motor vehicle" as a vehicle

insured by a policy which "provides bodily injury liability limits less than the

limits of liability of this Underinsured Motorist Protection." Appellee's Supp.

App. at 56. Because the policy provides bodily injury liability limits of

$25,000/$50,000 and underinsured motorist coverage of $25,000/$50,000, the

underinsured motorist coverage was not available. Further, the policy excepts

from the definitions of both underinsured and uninsured motor vehicles a vehicle

"[o]wned by or furnished or available for the regular use of you or a relative." Id.

Because the vehicle was owned by the insured, Ronald Abla, neither underinsured

nor uninsured motorist coverage is available to plaintiff.

Finally, we hold that plaintiff's claim that defendant was guilty of bad faith

in connection with tendering payment under the liability coverage of the policy

must fail. The district court was correct in finding that plaintiff has no cause of

action for bad faith arising from the liability coverage because she has no

contractual or statutory relationship with defendant. See Allstate Ins. Co. v.

Amick, 680 P.2d 362, 364 (Okla. 1984).

AFFIRMED.

Entered for the Court

Robert H. Henry

Circuit Judge

FOOTNOTES

Click footnote number to return to corresponding location in the text.

*. This order and judgment is not binding

precedent, except under the

doctrines of law of the case, res judicata, and collateral estoppel. The court

generally disfavors the citation of orders and judgments; nevertheless, an order

and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.

1. The statute also specifically applies

only where the insurance policy is

"issued, delivered, renewed, or extended" in Oklahoma. Okla. Stat. tit. 36,

§ 3636(A). The district court did not address this requirement, but chose instead

to rely on the fact that the vehicle was neither registered nor garaged in

Oklahoma. That basis is sufficient grounds for our affirmance, but we note that

the record contains no indication that the policy was issued, delivered, renewed,

or extended in Oklahoma and, therefore, the statute and its policy would be

equally inapplicable for that reason, as well.

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