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ALSO INSIDE: Oklahoma Lawyers for America’s Heroes
Sign Up for 2019 Committees • Mona Salyer Lambird Spotlight Award Recipients
Volume 89 — No. 29 — November 2018
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contents
November 2018 • Vol. 89 • No. 29
THEME: Torts
Editor: Erin Means DeWalt
FEATURES PLUS
6 Dilly, Dilly and Liability, Really: 44 Heroes Program Volunteers Donate
The Expansion of Dram-Shop Liability Over $3 Million in Free Legal Services
to Off-Premises Consumption By Carol Manning
By Jake Pipinich
46 Mona Salyer Lambird Spotlight Award
10 The Unique Problems of a Tort Within Recipients Honored
a Tort: Charting a Way Forward for an
49 2019 Committee Sign-up Form
Uncertain Area of Oklahoma Law
By Mbilike M. Mwafulirwa
18 Statutory Contribution in the Era
of Several Liability
By R andall E. Long
24 Civil Liability of Parking Valets and
Their Employers Under Oklahoma Law
By Kyle Persaud
28 Is the GTCA’S Cap on Inverse
Condemnation Awards Constitutional?
By T.P. “Lynn” Howell
32 Tort Litigation for the Rising
Prison Population
By Andrew M. Casey
38 Protecting the Settlement Recovery:
PAGE 44 – Heroes Program
Planning Options for Settlement
Recipients and Their Attorneys
By John M. Wylie, Joseph W. Tombs
and Greg Maxwell
DEPARTMENTS
4 From the President
50 From the Executive Director
52 Law Practice Tips
54 Ethics & Professional Responsibility
56 Board of Governors Actions
59 Oklahoma Bar Foundation News
62 Young Lawyers Division
64 Bench and Bar Briefs
66 In Memoriam
68 Editorial Calendar PAGE 46 – Spotlight Award Winners
69 What’s Online
72 The Back Page
From The President
Make Yourself a Priority
T HE PRACTICE OF LAW CAN BE ENERGIZING, chal-
lenging and stressful. Each day in the office we are faced
with deadlines, managing client emotions and interacting
The service is strictly confidential. For
help with stress, depression or addic-
tion, call the 24/7 Lawyers Helping
with opposing counsel. At the same time we are seeking Lawyers hotline at 800-364-7886 to be
balance for our family time, outside interests and attempting referred to a counselor in your area.
to maintain our own physical and mental health. We are teth- If an attorney cannot afford the
ered to our phones and laptops 24/7. That can increase our needed treatment, he or she may
stress and lead to a feeling of never getting off the “ham- qualify for a grant from the Lawyers
ster wheel” of the practice of law. We accept the high-stress Helping Lawyers Foundation to help
atmosphere as a cost of doing business in the legal profession. pay for treatment or medication.
Attorneys need a reminder to stop and take care of our- An attorney can be referred to a
selves. How can we perform our best on behalf of our clients peer mentor who can work with
if we are not at our personal best? A good example of the you on specific issues.
importance of prioritizing yourself in order to help others Information regarding a lawyer
can be heard during the flight safety instructions before is often received from the lawyer
aircraft takeoff. The flight attendants share with us the very personally or from family, friends,
important life lesson – take care of yourself first so you are partners or even clients. If you fear
then able to help the people around you who depend on you. another lawyer has become impaired
The speech is recited each time before takeoff. “If the and you want to get confidential help
airplane loses pressure, an oxygen mask will drop from to determine whether a problem exists
the ceiling. Always put your mask on first before helping and/or to get help for that problem,
others.” The act of putting your mask on first can take call the LHL hotline or confidentially
many different forms for attorneys, such as turning off the email onelife@plexusgroupe.com.
electronic devices in the evening, exercising or reaching All calls to the LHL hotline are confiden-
out for help in dealing with a mental health concern. tial and are handled by a counseling/
It is an unfortunate reality that our chosen profession mental health service, which reports
has a high occurrence of depression, substance abuse and anxi- numbers of those utilizing services
ety. “Lawyers are 3.6 times as likely to be depressed as people in but no names.
other jobs, while the landmark 2016 American Bar Association LHL hosts a monthly meeting led by
and Hazelden Betty Ford Foundation study found that 28 percent a LHL Committee member. The small
of licensed, employed lawyers suffer with group discussions are intended to give
depression. The study also showed that group leaders and participants the
19 percent have symptoms of anxiety and opportunity to ask questions, provide
21 percent are problem drinkers.”1 support and share information with
The OBA Lawyers Helping Lawyers fellow bar members to improve their
Assistance Program (LHL) assists OBA lives – professionally and personally.
members who are having difficulties
that adversely affect their practice. To see more information about what
Difficulties can be from a variety of LHL offers, visit www.okbar.org/LHL.
sources – not just drugs and alcohol. The OBA LHL program offers lawyers
LHL provides CONFIDENTIAL help the tools to “put on their own oxygen masks
to an impaired lawyer. first.” A special thank you to the hard-
Important LHL facts that may be working attorney members of the Lawyers
new information to you: Helping Lawyers Assistance Program.
President Hays practices in Tulsa. The OBA offers all bar members up
ENDNOTE
kimberlyhayslaw@aol.com to six hours of free short-term, 1. Dina Roth Port, “Lawyers weigh in: Why is there a depression
918-592-2800
problem-focused or crisis counseling. epidemic in the profession?” ABA Journal, May 11, 2018.
4 | NOVEMBER 2018 THE OKLAHOMA BAR JOURNAL
THE OKLAHOMA BAR JOURNAL is a
publication of the Oklahoma Bar Association.
All rights reserved. Copyright© 2018 Oklahoma
Bar Association. Statements or opinions
expressed herein are those of the authors and
do not necessarily reflect those of the Oklahoma
Bar Association, its officers, Board of Governors, Volume 89 — No. 29 — November 2018
Board of Editors or staff. Although advertising
copy is reviewed, no endorsement of any
product or service offered by any advertisement
is intended or implied by publication.
JOURNAL STAFF BOARD OF EDITORS
Advertisers are solely responsible for the JOHN MORRIS WILLIAMS MELISSA DELACERDA, Stillwater, Chair
content of their ads, and the OBA reserves Editor-in-Chief
the right to edit or reject any advertising copy johnw@okbar.org LUKE ADAMS, Clinton
for any reason. Legal articles carried in THE
OKLAHOMA BAR JOURNAL are selected CAROL A. MANNING, Editor CLAYTON BAKER, Vinita
carolm@okbar.org
by the Board of Editors. Information about
AARON BUNDY, Tulsa
submissions can be found at www.okbar.org. MACKENZIE SCHEER
Advertising Manager PATRICIA A. FLANAGAN, Yukon
BAR CENTER STAFF advertising@okbar.org
John Morris Williams, Executive Director; AMANDA GRANT, Spiro
Gina L. Hendryx, General Counsel; Joe LACEY PLAUDIS
Balkenbush, Ethics Counsel; Jim Calloway, Communications Specialist C. SCOTT JONES, Oklahoma City
laceyp@okbar.org
Director of Management Assistance Program;
ERIN MEANS DEWALT, Moore
Craig D. Combs, Director of Administration; LAURA STONE
Susan Damron, Director of Educational Communications Specialist SHANNON L. PRESCOTT, Okmulgee
Programs; Beverly Petry Lewis, Administrator lauras@okbar.org
MCLE Commission; Carol A. Manning, LESLIE TAYLOR, Ada
Director of Communications; Robbin Watson,
Director of Information Technology; Loraine
Dillinder Farabow, Peter Haddock, Tracy
Pierce Nester, Katherine Ogden, Steve
Sullins, Assistant General Counsels OFFICERS &
Jessica Anderson, Les Arnold, Gary Berger,
BOARD OF GOVERNORS
Debbie Brink, Melody Claridge, Cheryl
KIMBERLY HAYS, President, Tulsa; RICHARD
Corey, Ben Douglas, Dieadra Florence,
Johnny Marie Floyd, Matt Gayle, Suzi STEVENS, Vice President, Norman; CHARLES W. CHESNUT,
Hendrix, Debra Jenkins, Rhonda Langley, President-Elect, Miami; LINDA S. THOMAS, Immediate Past
Jamie Lane, Durrel Lattimore, Renee President, Bartlesville; MATTHEW C. BEESE, Muskogee; JOHN W.
Montgomery, Whitney Mosby, Lacey COYLE III, Oklahoma City; MARK E. FIELDS, McAlester; KALEB K.
Plaudis, Tracy Sanders, Mackenzie Scheer, HENNIGH, Enid; BRIAN T. HERMANSON, Ponca City; JAMES R.
Mark Schneidewent, Laura Stone, Margaret HICKS, Tulsa; ALISSA HUTTER, Norman; JAMES L. KEE, Duncan;
Travis, Krystal Willis, Laura Willis, Jennifer BRIAN K. MORTON, Oklahoma City; JIMMY D. OLIVER, Stillwater;
Wynne & Roberta Yarbrough
BRYON J. WILL, Yukon; D. KENYON WILLIAMS JR., Tulsa;
Oklahoma Bar Association 405-416-7000 NATHAN D. RICHTER, Mustang, Chairperson, OBA Young Lawyers Division
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THE OKLAHOMA BAR JOURNAL NOVEMBER 2018 | 5
Torts
Dilly, Dilly and Liability, Really
The Expansion of Dram-Shop Liability
to Off-Premises Consumption
By Jake Pipinich
O N OCT. 24, 2017, THE OKLAHOMA SUPREME COURT decided Boyle v. ASAP
Energy, Inc.1 and held that “Oklahoma recognizes a cause of action when a commer-
cial vendor of alcohol sells alcohol to a noticeably intoxicated person for consumption off
the premises…”2 This decision significantly broadened the traditional rule for dram-shop
liability first established in Brigance v. Velvet Dove Restaurant 3 which held that “one
who sells intoxicating beverages for on the premises consumption has a duty to exercise
reasonable care not to sell liquor to a noticeably intoxicated person.”4
This change in the law could Such rule is principally based of a tavern owner’s nonliability
have far reaching and significant upon concepts of causation in today’s automotive society is
implications for owners or oper- that, as a matter of law, it is not unrealistic, inconstant with mod-
ators of businesses that sell alco- the sale of liquor by the tav- ern tort theories and is a complete
holic beverages for off-premises ern owner, but the voluntary anachronism within today’s soci-
consumption. Such businesses are consumption by the intoxicated ety.”12 In combining the general
now potentially liable for injuries/ person, which is the proximate duty of reasonable care and the
damages to third persons who are cause of resulting injuries, so criminal statute, the Oklahoma
injured post-sale. Alternatively, that the tavern owner is there- Supreme Court abrogated the tra-
even absent liability for such inju- fore not liable for negligence in ditional rule and created a cause
ries, dispositive motions, such as selling liquor.6 of action for dram-shop liability
motions for summary judgment, against a vendor for on-premises
will be less likely to be successful, In 1959, the Oklahoma Legislature consumption.
causing such vendors significant enacted the Oklahoma Alcoholic After Brigance, the Oklahoma
additional exposure to litigation Beverage Control Act,7 which Supreme Court decided Tomlinson v.
expense for claims that previously repealed earlier provisions per- Love’s Country Stores, Inc.,13 where
would have been resolved via either taining to dram-shop liability8 liability was allowed to potentially
a motion for summary judgment or and laws, or parts of laws, that attach to off-premises sales where
motion to dismiss. conflicted with the act.9 The new the sale was to a person under 21
statute10 made it illegal to “[s] years old in violation of Oklahoma
DRAM-SHOP LIABILITY ell, deliver or knowingly fur- law.14 Important to the Tomlinson
BEFORE BOYLE V. ASAP ENERGY nish alcoholic beverages to an case was the fact that the petition
“At common law a tavern owner intoxicated person.”11 In Brigance, alleged defendant “knew that the
who furnishes alcoholic beverages to the Oklahoma Supreme Court minors intended to drink the
another is not civilly liable for a third determined that, in light of the beer while driving or riding in a
person’s injuries that are caused by language of §537, “the applica- motor vehicle.”15 Approximately
the acts of an intoxicated patron.”5 tion of the old common law rule one year later, the Oklahoma
THE OKLAHOMA BAR JOURNAL NOVEMBER 2018 | 7
Supreme Court decided Mansfield v. credit card bought a 9-pack of The Oklahoma Supreme Court
Circle K. Corp.16 In Mansfield, low-point Miller Lite beer.”19 Then began its analysis of the issue
the court held “[t]he statutory at “approximately 11:00 p.m. and presented – namely whether to
proscription against the sale of five to six hours after the Fast Lane extend dram-shop liability to ven-
beer to a minor is not limited to sale, [defendant] was driving his dors of alcohol for off-premises
on-the-premises consumption.”17 vehicle, a pickup truck, and ran consumption for customers
Thus, the issue of sales to minors a four-way stop at a high rate of over the age of majority – with
for off-premises consumption speed and collided with another a review of a case from outside
appeared to be settled law by vehicle resulting in the death of Oklahoma. In Flores v. Exprezit!
1994. However, the question Pamela Crain and allegedly per- Stores 98-Georgia, LLC., the
remained undecided whether manently injuring Ashley Haas Georgia Supreme Court deter-
liability could attach to sales to an and Shannon Keeves.”20 “Empty mined “[i]f a convenience store
allegedly visibly intoxicated adult beer cans, allegedly Miller Lite sells alcohol to such a customer,
for off-premises consumption. cans, were observed on the it is foreseeable that the customer
In Boyle v. ASAP Energy, Inc., the roadway near [defendant’s] truck will drive while intoxicated
Oklahoma Supreme Court appears at the scene of the collision.”21 and injure an innocent third
to have provided the response to “[Defendant’s] blood was drawn party.”24 With that interpretation,
that question. at approximately 11:45 p.m., and the Oklahoma Supreme Court
he had a blood alcohol content of went through the analysis it had
HOW BOYLE CHANGED 0.29g% (0.29 gm/100 ml).”22 applied in previous cases and
THE LAW There was some ambiguity determined that “vendor liability
In Boyle, it was alleged that the as to whether proper training or for selling alcohol to minors and
defendant “consumed alcohol implementation of training had intoxicated persons was derived
and caused a vehicular homi- been provided to employees of from the statutory duties placed
cide and permanent injuries to Fast Lane relating to the sale of on vendors of alcohol and the
two additional people [having] alcohol. “Plaintiffs’ expert wit- sale of alcoholic beverages for
started drinking alcohol in the ness, a toxicologist, concluded profit.”25 In reversing the trial
morning, and between 8:30 a.m. 1) [Defendant’s] blood alcohol con- court’s grant of summary judg-
and 5:00 p.m. [having] consumed tent was 0.33g% (0.33 gm/100 ml) ment, the Oklahoma Supreme
18-21 beers, 3-4 shots of vodka, at the time of the sale and 2) Court reasoned, “[w]e do not
and 2 ‘sips of moonshine.’”18 [Defendant] showed gross [visible] view a Brigance action against
Apparently the defendant had signs of intoxication at the time of Fast Lane as establishing a com-
drank much of the day at a golf the sale.”23 The clerk who sold the pletely new liability in Oklahoma
tournament and later “drove beer to the defendant at Fast Lane as argued by defendant. Again,
himself to a Fast Lane conve- did not have an independent recol- Fast Lane had a statutory duty
nience store in Clinton at approx- lection of the transaction. not to sell low-point beer to an
imately 5:17 p.m., and with a intoxicated person pursuant to
a statute.”26 “[T]aken together
[these statutes and cases] serve as
guides for a commercial vendor
of alcohol easily predicting this
Court’s holding that a statutory
The Oklahoma Supreme Court began its analysis duty prohibiting sale to an intox-
icated adult with its similar asso-
of the issue presented – namely whether to
ciated common law duty would be
applied to an off-premises consump-
tion.”27 “Thus, [w]e hold that
extend dram-shop liability to vendors of alcohol Oklahoma recognizes a cause
of action when a commercial
for off-premises consumption for customers over vendor of alcohol sells alcohol to
a noticeably intoxicated person for
the age of majority – with a review of a case from consumption off the premises.”28
outside Oklahoma.
8 | NOVEMBER 2018 THE OKLAHOMA BAR JOURNALCONCLUSION somewhat uncharted territory for ENDNOTES
1. 2017 OK 82, 408 P.3d 183.
While it is true that previous vendors and businesses on the 2. Id. at 194-95 (¶33).
cases had allowed the potential for business end of these transactions 3. 1986 OK 41, 725 P.2d 300.
4. Id. at 304 (¶17).
tort liability for the illegal sale of – especially in light of the recent 5. Id. at 301 (¶8).
alcohol to a minor, the Boyle v. proliferation of curbside delivery, 6. Id. (emphasis in original).
7. 37 O.S. §501, et seq.
ASAP Energy, Inc. case is cer- self-checkout and home delivery 8. 37 O.S. §§1-7 and 9-131.
tainly an expansion of dram-shop services, all of which might be sub- 9. Brigance, 725 P.2d at 301 (¶5).
10. 37 O.S. §537.
type liability into sales to adults ject to this new rule and its poten- 11. Id. at 304 (¶18).
for off-premises consumption. tial consequences. Practitioners in 12. Id. at 304 (¶15).
Naturally, issues will emerge not this area should carefully familiar- 13. 1993 OK 83, 854 P.2d 910.
14. Id. at 912 (¶23).
only with the typical question of ize themselves with this opinion 15. Id. at 911.
the appearance and demeanor and advise their clients (on either 16. 1994 OK 80, 877 P.2d 1130.
17. Id. at 1131 (¶16).
of the patron – but now with the side of the case) about the holding 18. Boyle, 408 P. 3d at ¶8.
added question of whether the in Boyle, its extension of the doc- 19. Id. at ¶10.
20. Id. at ¶13.
purchased alcohol was consumed, trine of dram-shop liability and 21. Id. at ¶14.
when it was consumed and its its likely effect on current and 22. Id.
23. Id. at ¶18.
effect (if any) on the intoxication anticipated lawsuits. 24. Flores v. Exprezit! Stores 98-Georgia,
that caused the alleged accident. LLC., 713 S.E.2d 368, 371 (Ga. 2011).
25. Boyle 408 P.2d at ¶28.
It is of note that Justice Wyrick’s 26. Id. at ¶32.
dissenting opinion also indicates ABOUT THE AUTHOR 27. Id.
28. Id. at ¶33.
that the relevant statutes at issue29 Jake Pipinich is an attorney 29. 37 O.S. §§247 and 537.
“only prohibit ‘knowingly’ or with Pierce Couch Hendrickson 30. Boyle, Wyrick, J., dissenting opinion at ¶7.
‘knowingly, willfully and wan- Baysinger & Green LLP. Mr.
tonly’ selling to an intoxicated Pipinich’s practice centers on
person, a far narrower duty than defending companies and busi-
the duty not to sell to those who nesses against various tort or
are noticeably intoxicated.”30 negligence type of claims.
In any event, this is at least
THE OKLAHOMA BAR JOURNAL NOVEMBER 2018 | 9Torts The Unique Problems of a Tort Within a Tort Charting a Way Forward for an Uncertain Area of Oklahoma Law By Mbilike M. Mwafulirwa 10 | NOVEMBER 2018 THE OKLAHOMA BAR JOURNAL
T HIS ARTICLE EXAMINES AN IMPORTANT QUESTION OF TORT LAW – specifically,
it asks who within our system of Oklahoma jurisprudence has the power to determine
the value of a tort claim with personal injury undertones. For the run-of-the-mill meritori-
ous civil case on the jury trial docket, the answer is straightforward – the jury.1
The same question, however, damages to that amount? Or is third-party’s insurer through
becomes more complicated and there a requirement in Oklahoma negotiations, the attorney should
nuanced in legal malpractice tort that a plaintiff prove first that he ordinarily file a lawsuit, but
claims. Legal malpractice claims would have collected more than through neglect he misses the
are unique torts in that they present the policy limits before the attor- statute of limitations. Meanwhile,
the dilemma of the “case within ney is required to pay damages the client’s bills and damages
a case,”2 where the measure of in excess of the liability limits? have exceeded the third-party
damages is determined by the value Finally, who should determine liability policy limits ($25,000).
of the underlying claim lost due to these questions? The judge or After discovering the attorney’s
attorney error.3 To put that into per- the jury? negligence and despite his active
spective, if an attorney, for instance, Thus far, Oklahoma does not and malicious concealment of
misses the statute of limitations on have published cases addressing the error, the client files suit. To
a client’s workers’ compensation these issues in this specific context. add to the twist, the third-party
claim, in the subsequent malpractice What follows is a survey of the is no longer traceable; as such,
suit, the measure of damages is the general corpus of relevant law and it is unclear what, if any, assets
value of the lost recovery proxi- the competing policy concerns in the third-party has available to
mately caused by the malpractice.4 an attempt to chart a way forward pay a judgment. Still, the client
What is the rule when, for on these issues. demands damages in excess of
example, an attorney misses the the third-party’s policy limits
statute of limitations in a motor SETTING THE STAGE – from the attorney because, in his
vehicle personal injury action in A TORT WITHIN A TORT view, the measure of damages
which the tortfeasor’s liability Recall our operative hypo- is the value of the lost recov-
policy limit is only $25,000 but the thetical for this analysis: client is ery caused by the malpractice.
client’s bills and damages exceed involved in a vehicle collision in Among the attorney’s defenses is
the policy amounts? Can the which a third-party is at fault. To that under the circumstances –
defendant attorney simply tender prosecute his tort claim, client where it is unclear that more
the policy limits and then ask retains an attorney. After fail- than the policy limits would
the court5 to limit the plaintiff’s ing to resolve the claim with the have been recovered in the
THE OKLAHOMA BAR JOURNAL NOVEMBER 2018 | 11underlying suit – the client is adopted a collectibility rule – i.e., in part, because the legal mal-
not entitled to more than $25,000 a requirement that the amount practice action is often brought
unless he proves he would have of damages in a legal malprac- years after the original tort due to
been able to collect more. tice case be limited to those the attorney’s wrongdoing.23 This
that could have been collected lapse of time, those jurisdictions
THE LEGAL LANDSCAPE after judgment.14 Against this reason, presents unique problems
OF THE LEGAL background and in the absence for the prospective plaintiff: 1) the
MALPRACTICE TORT of a specific legal rule from the passage of time militates against
A legal malpractice claim is a Legislature or the Oklahoma a collectibility burden because –
tort subject to all the usual neg- Supreme Court to the contrary, it as the hypothetical in this case
ligence rules.6 Like every other would be entirely reasonable for shows – the original tortfeasor’s
negligence claim, the existence of the client to expect the default rule solvency might change to insol-
duty is the threshold requirement for negligence claims to apply: vency during the pendency of the
in a legal malpractice case; without that the jury would determine the litigation;24 2) in today’s litigation
it, there can be no claim.7 Duty in a value of his claim, especially one landscape where settlement is the
legal malpractice case is imposed, (such as his) where pain and suf- norm, the attorney defendant’s
as a matter of law, when there is fering are principally at issue.15 error costs the plaintiff the pos-
an attorney-client relationship.8 In As expected, the defendant law- sibility of an early compromise;25
addition to the existence of duty, a yer would counter the client’s posi- and 3) the defendant attorney’s
plaintiff must also prove a breach tion in favor of a collectibility rule. fault often means that subsequent
of that duty (with facts clearly The usual starting point for any trial counsel has to seek after stale
depicting the negligence alleged), a party contesting the amount of tort evidence.26 Finally, those courts
causal link between the attorney’s damages is the rule that an award also recognize the intrinsic value
negligence and the damages suf- may not be based on speculation of a judgment for assignment and
fered, and finally, it must be shown or conjecture.16 Defendant law- marketability purposes.27 Yet still,
that but for the lawyer’s negligent yer would likely further support other courts, in addition to these
conduct, the underlying claim/ his position by arguing that the factors, consider collectibility as an
defense would have succeeded.9 Oklahoma Supreme Court has held avoidance defense that a defen-
that a plaintiff must prove the dam- dant bears the burden of proof.28
COMPETING VISIONS OF ages that he would have recovered
THE LEGAL MALPRACTICE but for the negligence.17 However, WHICH WAY SHOULD
DAMAGES MODEL is this the same as having to prove OKLAHOMA COME OUT
From the factual controversy the amounts the client would have AND WHY?
presented in the hypothetical, collected from a subsequent judg- We begin with the established
client feels entitled to demand ment? Defendant attorney would principles. The “case within a
compensation in excess of the most likely argue so, citing a num- case”29 analytical model ensures
third-party’s policy limits from ber of jurisdictions that have taken that generally no party in a sub-
attorney because, in his view, the that position.18 Those jurisdictions sequent legal malpractice lawsuit
measure of damages is the value hold that a plaintiff must not be may gain an advantage it would
of the lost recovery caused by the permitted to recover a windfall not have had in the original suit.30
malpractice.10 In fact, the client’s from the defendant attorney.19 In In Bloustine v. Fagan, for example,
damages claim in this case is those jurisdictions, proving collect- an attorney missed the deadline
not only for medical bills paid11 ibility is part of proximate cause for perfecting an appeal with the
but also for pain and suffering and damages.20 Oklahoma Supreme Court in a
and possibly punitive damages.12 However, not all jurisdictions divorce proceeding.31 During the
Indeed, from the previous recita- agree. Some of the cases cut the subsequent malpractice action,
tion of the elements of a legal mal- other way in favor of the plaintiff’s the trial court, in place of the jury,
practice tort claim in Oklahoma,13 position.21 Those jurisdictions determined that the appellant’s
the client would appear to stand initially hold that their prima facie appeal would not have been suc-
on solid ground in asking for all requirements for legal malprac- cessful.32 The Oklahoma Court
damages proximately caused by tice do not contain a collectibility of Appeals affirmed because
his former attorney’s legal mal- requirement.22 In turn, those juris- 1) both factual and legal issues in
practice because the Oklahoma dictions place the burden of prov- a divorce proceeding are decided
Supreme Court has never expressly ing collectibility on a defendant, exclusively by a judge, not a jury;
12 | NOVEMBER 2018 THE OKLAHOMA BAR JOURNALAs such, the same model of trial – where the jury ultimately
determines the value of a tort claim without regard to
the defendant’s solvency – should carry through in a
legal malpractice suit; otherwise it would be unfair and
impermissible to “make a change in the law’s allocation of
responsibility between judge and jury in the underlying action
when that action is revisited in legal malpractice actions and
thereby distort the `suit within a suit’ analytic model.”
2) any appeal from those issues presented evidence of pain and Oklahoma injecting the existence
is decided by an appellate court; suffering (which on these facts he or terms of a policy of insurance is
and 3) as such, it would have been would be able to as his condition generally grounds for a mistrial.37
legal error for a lay jury to decide was medically catalogued in the Likewise in the malpractice
those appellate issues in a subse- medical records), the quantum action, the jury should determine
quent malpractice action.33 Indeed, of those damages would not be the value of the claim without
as that court noted: subject to mathematical exactitude regard to any policy of insurance
nor be limited by the defendant’s or its limits.38 Additionally, if the
We see no reason why a malprac- solvency; rather the jury would amount of damages had exceeded
tice plaintiff should be able to have exclusive discretion in fixing the policy limits, the plaintiff
bootstrap his way into having a the appropriate amount.35 As such, would have had an opportunity to
lay jury decide the merits of the the same model of trial – where pursue the deficit from the tortfea-
underlying `suit within a suit’ the jury ultimately determines sor.39 When a tort claim against a
when, by statute or other rule of the value of a tort claim without third-party tortfeasor is lost due to
law, only an expert judge could have regard to the defendant’s solvency – an attorney’s negligence, the client
made the underlying decision. It is should carry through in a legal loses the opportunity to collect the
illogical, in effect, to make a change malpractice suit; otherwise it full measure of his damages.40 In
in the law’s allocation of responsi- would be unfair and impermis- the subsequent malpractice action,
bility between judge and jury in the sible to “make a change in the the client’s claim should be pur-
underlying action when that action law’s allocation of responsibil- sued and evaluated on the same
is revisited in legal malpractice ity between judge and jury in terms as it would have been if the
actions and thereby distort the `suit the underlying action when that underlying action had been prop-
within a suit’ analytic model.34 action is revisited in legal malpractice erly filed and prosecuted.41 That, in
actions and thereby distort the `suit turn, brings us to the all-important
In the same way, it could be within a suit’ analytic model.”36 question: what is the value of the
argued that it is illogical to upset Furthermore, in the underlying client’s lost opportunity?
the “suit within a suit” model action, the jury would have assessed From the preceding analysis,
in favor of a collectibility rule the value of plaintiff’s personal this should be a question for the
under these circumstances. In the injury action without regard to the fact finder. In this state, the jury
underlying tort claim, if the client $25,000 policy limits because in ordinarily determines the value
THE OKLAHOMA BAR JOURNAL NOVEMBER 2018 | 13of a claim and its various inci- In the specific context of this prob- raises the collectibility issue, he
dents.42 The jury is well suited lem, the undisputed facts would in essence asserts that, notwith-
to make this valuation because, have to show the client could not standing his legal error, plaintiff
historically, ascertaining uncer- have possibly collected against the is not entitled to (some or all) the
tain factual questions is what original tortfeasor in the under- damages claimed because he could
juries do.43 For example, what’s lying tort claim for the issue to be not have collected in the underly-
one person’s pain and suffering decided at summary judgment.50 ing claim.55 In doing so, the defen-
worth? What about the value of Who should have the burden of dant is understood as seeking a
a wrongfully ended life? What is proof? Neither Oklahoma statutes reduction or elimination of dam-
that worth? As noted, historically, nor case law address this issue. ages.56 Under those circumstances,
juries have routinely placed values As noted, the Oklahoma prima facie Oklahoma law generally places the
on these uncertain variables.44 elements of a legal malpractice burden of pleading and proving
Moreover, like other jury damages claim do not expressly contain a the reduction or elimination of
evaluations, the courts retain the collectibility element, nor do they damages on the party claiming it.57
power to evaluate the jury’s dam- address the burden of proof on the Public policy and fairness also
ages award for excessiveness.45 issue.51 The default rule under the play a part in determining the
Could this question ever become Oklahoma Pleading Code is that burden of proof.58 An import-
one for the judge? It can, depend- a party asserting an “avoidance” ant aspect of fairness and policy
ing on the procedural posture of must raise it as an affirmative requires a court to ensure that
the case. Suppose a jury trial case defense.52 An “avoidance” under a plaintiff will not be unfairly
is in its pretrial posture, could this the Oklahoma Pleading Code surprised by a later assertion of a
question – of the value of the lost means an assertion that, if proven, defense.59 If a matter is already set
opportunity to recover from the defeats a claim even if all the out within the four corners of a
petition, there is generally no need
for that issue to be affirmatively
pleaded again by a defendant,60
but if a matter is not embraced
within the petition and a defen-
dant wants it addressed, he must
raise it as an issue and prove it.61
As previously noted, in Oklahoma,
the prima facie elements of a legal
malpractice action do not contain
a collectibility element.62 So it
follows, likewise, if a defendant
wants to raise collectibility, he
should raise and prove it.63
Against this background, a
judge could not categorically sum-
marily determine noncollectibility.
As the hypothetical shows, there
would likely be factual questions
regarding the third-party tortfea-
original tortfeasor – ever become allegations in the petition are sor’s ability to pay because; 1) the
one for the judge? Probably yes. In true.53 In other words, if, for third-party tortfeasor is no longer
Oklahoma, summary judgment example, a party asserts that available and even then, it is not
(partial or full) settles only ques- regardless of whether liability clear that he does not have assets
tions of law.46 A question becomes was established against him, he and 2) nor is it beyond contention
one of law when there are no dis- should not have to pay (some or that he has no ability to pay any
puted material factual questions47 all) the damages because plaintiff portion of a judgment. Viewing
or if the undisputed facts invite failed to mitigate his losses, that the facts in the light most favorable
only a single inference.48 Only then is an avoidance that must be pled to client – the party resisting sum-
should the question be presented and proved affirmatively.54 In mary judgment64 – the record does
to the judge at the pretrial stage.49 similar fashion, when a defendant not unequivocally support a single
14 | NOVEMBER 2018 THE OKLAHOMA BAR JOURNALinference of noncollectibility; it is judges (without juries) can fix the claim where the right to collect is
possible to also infer collectibil- amount of financial recovery.73 The questionable. The law is unclear.
ity. Thus, it follows, that probably comparison of those instances to Unless a different rule is promul-
summary judgment could not be the situation at hand here is inept. gated, the fallback answer should
granted on this record.65 The right to a jury trial under be as it is in most civil cases – the
Okla. Const. Art. 2 §19 is under- jury should decide.
FACTUAL QUESTIONS ON stood and applied as it existed
COLLECTIBILITY SHOULD at common law in the several
BE LEFT TO THE JURY American territories.74 Against ABOUT THE AUTHOR
Under Okla. Const. Art. 2 that backdrop, the domestic rela- Mbilike M. Mwafulirwa is an
§19, the right to trial by jury is tions cases should be considered; attorney at Brewster & DeAngelis
inviolate.66 That right “cannot be those proceedings are equitable in PLLC. Mr. Mwafulirwa’s practice
annulled, obstructed, impaired, or nature,75 such that there is gen- focuses on general litigation, civil
restricted by legislative or judicial erally no right to a jury trial, so rights and appellate law. He is a 2012
action.”67 Based on this constitu- the judge is the fact finder.76 The graduate of the TU College of Law.
tional imperative, juries decide flaw of the comparison between
factual questions while those of a domestic relations case to the ENDNOTES
law are for the court.68 Viewed in situation at hand should be readily 1. See Okla. Const. art. 2 §19 (there is a
right to a jury trial in civil cases over $1,500);
this vein, in addition to what was apparent. The comparison to Okla. Stat. Tit. 12 §590 (When “either party is
noted before, the measure of dam- workers’ compensation claims entitled to recover money of the adverse party
the jury, in their verdict, must assess the amount
ages in a personal injury action is is likewise wrong. Workers’ of recovery.”) (emphasis added); Y&Y Cab Co.
generally exclusively within the compensation claims must be v. Smith, 1955 OK 319, ¶21, 289 P.2d 964, 967
(“There can be no absolute standard to measure
province of the jury.69 To the extent understood within the context damages for personal injuries and a wide latitude
that a court were to withdraw that of the grand bargain between of discretion is necessarily left to the good sense
and discretion of the jury which fixes the award.”).
question from the jury and deter- employers and employees under 2. Nicholas v. Morgan, 2002 OK 88, ¶14, 58
mine it itself, especially if there which the Legislature, in exercise P.3d 775, 781.
3. Id. (citing Allred v. Rabon, 1977 OK 216, 572
were disputed factual questions, of its police powers, took away an P.2d 979).
that would be an impermissible injured worker’s tort claim and 4. See id.
5. Possibly through the mechanism of offer
exercise of judicial power.70 the employer’s common law tort of judgment and partial summary judgment,
The fact that other jurisdictions defenses and merged them into a Rule 13 Rules of Oklahoma District Court Rules,
the attorney could request the trial court to
possibly permit judges to with- single “statutory indemnity fixed limit damages. See, e.g., Reams v. Tulsa Cable
draw this determination from the and certain.” 77 It is the combina- Television, Inc., 1979 OK 171, ¶3, 604 P.2d 373,
374 (“partial summary judgment is explicitly
jury is unavailing. Our constitu- tion of the police powers and the authorized by Rule 13.”); Okla. Stat. Tit. 12 §1101
tional traditions are different. As existence of the grand bargain (Oklahoma law for written offer(s) of judgment).
6. Collins v. Wanner, 1963 OK 127, ¶18, 382
the Oklahoma Supreme Court has that ensures that the Legislature’s P.2d 105, 108 (citations omitted).
stated: “[T]he Oklahoma constitu- handiwork passes constitutional 7. Norton v. Hughes, 2000 OK 32, ¶11, 5 P.3d
588, 591; Trinity Baptist Church v. Brotherhood
tion is a unique document…[s]ome of muster.78 No such similar consid- Mut. Ins. Servs., LLC, 2014 OK 106, ¶21, 341 P.3d
its provisions are unlike those in the erations apply here. 75, 82.
constitutions of any state, and some 8. See Funnell v. Jones, 1985 OK 73, ¶6, 737
P.2d 105, 108.
are more detailed and restric- CONCLUSION 9. Manley v. Brown, 1999 OK 79, ¶8, 989 P.2d
tive than those of other states.”71 The tort-within-a-tort case 448, 452.
10. See Nicholas, 2002 OK 88, ¶14, 58 P.3d
Thus, to unwittingly import other model invites complexity. A single at 781; Denco Bus Lines v. Hargis, 1951 OK 11,
jurisdictions’ practices here would case is challenging enough and ¶26, 229 P.2d 560, 564 (“[U]pon commission of
a tort it is the duty of the wrongdoer to answer
surely run afoul of our constitution, the added layer of the prior case for the damages wrought by his wrongful act and
especially in the specific context adds to the challenge, especially that is measured by the whole loss so caused.”)
(emphasis added).
outlined in this essay.72 when the mode of trial itself in 11. Under Okla. Stat. Tit. 12 §3009.1 actual
Because Oklahoma law permits the subsequent case is at issue, as damages for medical bills in personal injury
claims are limited to the amounts paid, not
judges (without juries) to fix the well as the appropriate measure incurred. See Lee v. Bueno, 2016 OK 97, ¶1, 381
amount of financial responsibility of damages. A run-of-the-mill P.3d 736, 739.
12. See discussion of claimed damages in
in certain actions without offend- personal injury malpractice claim hypothetical, supra.
ing the right to a jury trial does with no collectibility concerns 13. Manley, 1999 OK 79, ¶8, 989 P.2d at 452.
14. See id.
not carry the day here. In family is more straightforward: the 15. When pain and suffering at issue in a
proceedings and workers’ com- jury simply decides the dam- personal injury lawsuit, the jury usually takes
center stage as the final arbiters of the value
pensation claims, for example, ages. Not so in a personal injury of these claims. See, e.g., Smith, 1955 OK 319,
THE OKLAHOMA BAR JOURNAL NOVEMBER 2018 | 15¶21, 289 P.2d at 967 (“There can be no absolute 43. Pearson v. Hope Lumber & Supply Co., 64. Fargo, 2015 OK 56, ¶12, 352 P.3d at 1227.
standard to measure damages for personal 1991 OK 112, ¶4, 820 P.2d 443, 444 (questions of 65. Iglehart v. Bd. of Cnty. Comm’rs of Rogers
injuries and a wide latitude of discretion is law are for the court, while those of fact are for Cnty., 2002 OK 76, ¶9, 60 P.3d 497, 501 (“[T]
necessarily left to the good sense and discretion the jury). o avoid trial for negligence, defendants must
of the jury which fixes the award.”). 44. See, e.g., Smith, 1955 OK 319, ¶21, 289 establish through unchallenged evidentiary
16. Cities Service Co. v. Gulf Oil Corp., 1999 P.2d at 967; Yellow Cab Op. Co. v. Spelce, 1936 materials that, even when viewed in a light most
OK 14, ¶38, 980 P.2d 116, 134. OK 597, ¶0, Syllabus by the Court, 61 P.2d at 672 favorable to plaintiffs, no disputed fact exist as
17. See Nicholas, 2002 OK 88, ¶14, 58 P.3d (“There can be no absolute standard to measure to any material issues and that the law favors
at 781. damages for personal injuries and a wide latitude defendants.”) (emphasis added).
18. See Michael P. Cross, et al., “Your Place of discretion is necessarily left to the good sense 66. Seymour v. Swart, 1985 OK 9, ¶5, 695
or Mine?: The Burden of Proving Collectibility of and discretion of the jury which fixes the award.”). P.2d 509, 511.
an Underlying Judgment in a Legal Malpractice 45. Estrada v. Port City Prop., Inc., 2011 OK 67. Id. (emphasis added).
Action”, 91 Denv. U. L. Rev. 53, 57 (2014) 30, ¶35, 258 P.3d 495, 508. 68. Pearson, 1991 OK 112, ¶4, 820 P.2d at 444.
(collecting cases). 46. Horton v. Norton, 2015 OK 6, ¶8, 345 69. See Okla. Stat. Tit. 12 §590; Smith, 1955
19. Id. P.3d 357, 360 (“Summary judgment settles only OK 319, ¶21, 289 P.2d at 967.
20. Id. (citing McKenna v. Forsyth & Forsyth, questions of law.”). 70. Seymour, 1985 OK 9, ¶5, 695 P.2d at 511.
720 N.Y.S.2d 654, 658 (N.Y. App. Div. 2001)). 47. See In re King, 1970 OK 181, ¶15, 476 71. Wall v. Marouk, 2013 OK 36, ¶4, 302 P.3d
Interestingly, in Oklahoma, proximate cause in P.2d 72, 74; see also Miller v. Bourne, 1953 OK 775, 779.
negligence actions “is generally a fact question ¶0, 256 P.2d 431, 431 (“If there is no controversy 72. Seymour, 1985 OK 9, ¶5, 695 P.2d at 511(a
for the jury.” Fargo v. Hays-Kuehn, 2015 OK 56, over the facts, or if the facts are conceded, then it court cannot intrude on the jury’s fact-finding role).
¶16, 352 P.3d 1223, 1228. becomes a pure question of law for the court…”). 73. See, e.g., Okla. Stat. Tit. 43 §§114-120;129
21. Michael P. Cross, et al., “Your Place or 48. See Jackson v. Jones, 1995 OK 131, ¶5, (child support); Henley v. Henley, 1967 OK 115,
Mine?”, supra note 18, at 58 (collecting cases). 907 P.2d 1067, 1071. ¶7, 428 P.2d 258, 260 (alimony); Okla. Stat. Tit.
22. Id. 49. See, e.g., Horton, 2015 OK 6, ¶8, 345 85A §§45-46 (workers’ compensation).
23. Smith v. Haden, 868 F.Supp. 1, 2 (D.D.C. P.3d at 360 (“Summary judgment settles only 74. Hamil v. Walker, 1979 OK 172, ¶3, 604 P.2d
1994); Hoppe v. Ranzini, 385 A.2d 913, 919 (N.J. questions of law.”). 377, 378.
App. Div. 1978). 50. See, e.g., id. 75. See Harvey D. Ellis, Jr., Clyde A.
24. See Hoppe, 385 A.2d at 919. 51. See Manley, 1999 OK 79, ¶8, 989 P.2d at 452. Muchmore, 5 Okla. Prac. App. Prac. §15:110
25. Smith, 868 F.Supp. at 2. 52. See Okla. Stat. Tit. 12 §2008(c)(20) (a (December 2017 update) (“Domestic relations
26. Michael P. Cross, et al., “Your Place or party asserting an “avoidance” must raise it cases are of equitable cognizance…”) (citations
Mine?”, supra note 18, at 59 n. 40 (quoting Jenkins as an affirmative defense). omitted).
v. St. Paul Fire & Marine Ins. Co., 422 So.2d 1109, 53. Craft v. Bates, 1962 OK 122, ¶5, 372 P.2d 76. In re Bank of Earlsboro, 1964 OK 97, ¶4,
n.2 (La. 1982)). 10, 12 (citations omitted) (“The general rule of 391 P.2d 887, 888.
27. Id. at 59 n. 42 (citations omitted); see also pleading is that defenses which assume or admit 77. Gibby v. Hobby Lobby Stores, Inc., 2017
Hoppe, 385 A.2d at 919. the original cause of action alleged but are based OK 78, ¶9, 404 P.3d 44, 47.
28. See Jourdain v. Dineen, 527 A.2d 1304, upon subsequent facts or transactions which go 78. Id. This essay does not discuss any
1306 (Me. 1987). to qualify or defeat it, must be pleaded.”); see limitations placed on damages by the Legislature
29. Nicholas, 2002 OK 88, ¶14, 58 P.3d at 781. also Black’s Law Dictionary 482 (9th ed. 2009) (An because the collectibility rule is not statutorily
30. See Bloustine v. Fagin, 1996 OK CIV APP affirmative defense is a “[d]efendant’s facts and enacted, so that discussion is beside the point here.
122, ¶¶3-5, 928 P.2d 964, 965. But see Carbis Sales, arguments that, if true, will defeat the plaintiff’s or
Inc. v. Eisenberg, 935 A.2d 1236, 1249 (N.J. App. prosecution’s claim, even if all the allegations in
Div. 2007) (noting that a flexible approach is needed the complaint are true.”) (emphasis added).
for cases in which the malpractice plaintiff was the 54. Cons. Cut Stone Co. v. Seidenbach, 1937
defendant in the initial case because to require him OK 701, ¶32, 75 P.2d 442, 451.
to fully act like a plaintiff when he was originally a 55. See Michael P. Cross, et al., “Your Place
defendant is “awkward and impracticable.”). or Mine?”, supra note 18, at 58-59.
31. Bloustine, 1996 OK CIV APP 122, ¶¶1-3, 56. Id.
928 P.2d at 965. 57. Cities Servs. Co. v. Gulf Oil Corp., 1999
32. Id. OK 14, ¶38, 980 P.2d 116, 134 (“Inherent in the
33. Id. delineated probative process is the requirement
34. Id. ¶5, 928 P.2d at 965 (emphasis added) that a defendant ascribe value to the matters
(quoting Harline v. Barker, 912 P.2d 433, 440 offered in reduction.”); Pine v. Bradley, 1940 OK
(Utah 1996)). 174, ¶6, 101 P.2d 799, 801 (“The duty of pleading
35. Smith, 1955 OK 319, ¶21, 289 P.2d at and the proof necessary on each is the same
967; Yellow Cab Op. Co. v. Spelce, 1936 OK substantially.”).
597, ¶0, Syllabus by the Court, 61 P.2d 672, 672 58. Because §2008 (c) is “identical” to Fed.
(“There can be no absolute standard to measure R. Civ. P. 8(c), federal law is very instructive. See
damages for personal injuries and a wide latitude Okla. Adv. Cmt. Notes to §2008 (c). In that regard,
of discretion is necessarily left to the good sense federal cases make clear that public policy and
and discretion of the jury which fixes the award.”). fairness are important considerations. See 5
36. Bloustine, 1996 OK CIV APP 122, ¶5, 928 Wright & Miller Fed. Prac. & Proc. Civ. §1271
P.2d at 965 (emphasis added). (April 2017 Update) (“[R]esort often must be had
37. Redman v. McDaniel, 1958 OK 276, ¶16, to considerations of policy, fairness and in some
333 P.2d 500, 503. cases probability.”).
38. Cf. Bloustine, 1996 OK CIV APP 122, ¶5, 59. In re Zagg Inc. Shareholder Deriv. Act.,
928 P.2d at 965 (quoting Harline, 912 P.2d at 440). 826 F.3d 1222, 1231 (10th Cir. 2016).
39. See Okla. Stat. Tit. 47 §7-103(3); Okla. 60. 5 Wright & Miller Fed. Prac. & Proc. Civ.
Stat. Tit. 23 §3 (“Any person who suffers §1271 n. 78; In re Zagg, 826 F.3d at 1231.
detriment from the unlawful act or omission of 61. 5 Wright & Miller Fed. Prac. & Proc. Civ.
another, may recover from the person in fault a §1271; Colton v. Huntleigh USA Corp., 2005 OK
compensation therefor in money, which is called 46, ¶10, 121 P.3d 1070, 1073 (“The burden of
damages.”); see also id. §§61, 61.1, 68.1. proof as to any particular facts rests upon the
40. Nicholas, 2002 OK 88, ¶14, 58 P.3d at 781. party asserting such fact.”).
41. Cf. Bloustine, 1996 OK CIV APP 122, ¶5, 62. See Manley, 1999 OK 79, ¶8, 989 P.2d
928 P.2d at 965 (quoting Harline, 912 P.2d at 440). at 452.
42. See Okla. Stat. Tit. 12 §590 (When “either 63. 5 Wright & Miller Fed. Prac. & Proc. Civ.
party is entitled to recover money of the adverse §1271; Colton, 2005 OK 46, ¶10, 121 P.3d at 1073
party the jury, in their verdict, must assess the (“The burden of proof as to any particular facts
amount of recovery.”) (emphasis added). rests upon the party asserting such fact.”).
16 | NOVEMBER 2018 THE OKLAHOMA BAR JOURNALMCLE CREDIT
DAY ONE - 6/0
12/1
DAY TWO - 6/1
Program Planner/Moderator:
The Honorable Janice D. Loyd, United
33RD ANNUAL States Bankruptcy Court for the Western
ADVANCED
District of Oklahoma
This two-day seminar will focus on a broad
b range
of cutting-edge business and consumer
bankruptcy-related legal topics.
BANKRUPTCY
DAY ONE
• Current Developments with Bill Rochelle
• Channeling Punitive Damage Awards Under 362(k)
• Bankruptcy Appellate Panel Appeals
SEMINAR
• Teaching How to Value a Business to Bankruptcy
Lawyers and Other Unnatural Acts
• Dealing with Confusing and Inconsistent Precedent
• US Trustee Panel Discussion
DAY TWO
• The Sid and Sam Show
• Substantial Consolidation: What it is and What it is Not
• Chapter 7 Panel Trustee Discussion
• The Good, The Bad, The Unethical: Current Issues
DECEMBER 6 & 7 in Bankruptcy Ethics
• Involuntaries
• Judges’ Panel
9 a.m. - 2:50 p.m. $225 (both days) Early-Bird - November 29, 2018
Oklahoma Bar Center - LIVE WEBCAST AVAILABLE $150 (one day) Early-Bird - November 29, 2018.
$250 (both days) Nov 30 - Dec 5, 2018
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$275 (both days) walk-in; $200 (one day) walk-in
FOR details and TO REGISTER, GO TO WWW.OKBAR.ORG/CLE $200 webcast per day or $300 webcast bundle both days
$75 licensed 2 years or less each day (late fees apply)
Stay up-to-date and follow us on $100 licensed 2 years or less for the webcastTorts
Statutory Contribution in the
Era of Several Liability
By Randall E. Long
T HE LEGISLATURE’S ABOLITION OF JOINT AND SEVERAL LIABILITY for
fault-based actions has been one of the most significant “tort reform” measures in
Oklahoma.1 Prior to the 2011 amendment of Title 23, Section 15, a tortfeasor remained
jointly and severally liable for all damages caused by multiple tortfeasors where the plain-
tiff was fault-free, the tortfeasor’s percentage of fault exceeded 50 percent, the tortfeasor
was guilty of reckless or willful and wanton misconduct or the plaintiff sued on the state’s
behalf.2 The 2011 amendment3 makes at-fault tortfeasors liable for the amount of harm they
cause, and only that amount, regardless of the fault of others. Gone are the days where a
negligent tortfeasor can be forced to pay for the damages caused by another whose concur-
rent negligence also harmed the victim.4
Right or wrong, the 2011 abo- existed no right of contribution of joint and several liability in
lition of joint and several liabil- among them to share the loss in the absence of contribution, the
ity was a sea change in the law. the event of payment.6 This seem- Laubach court saw two options:
However, some members of the ingly harsh rule was mitigated by 1) allow comparative contribution
bench and bar see an additional the doctrine of contributory neg- or 2) abolish joint and several lia-
consequence: the end of statutory ligence, which allowed tortfeasors bility. The court chose the latter.
contribution among tortfeasors. to evade liability altogether by Even after Laubach’s abolition
This article explores the potential proving that the plaintiff was also of joint and several liability and
viability of contribution under negligent, even if only slightly.7 its pronouncement that “there will
Title 12, Section 832 in the wake of The equitable balance began to be no need for added litigation by
joint and several liability’s demise. shift in 1973 when the Legislature defendants seeking contribution,”10
enacted statutes that replaced the the Legislature enacted Title 12,
THE HISTORY OF JOINT contributory negligence doctrine Section 832, which provides that
AND SEVERAL LIABILITY with a codified system of modi- “[w]hen two or more persons
AND CONTRIBUTION fied comparative negligence.8 But become jointly or severally liable in
IN OKLAHOMA Oklahoma remained silent on con- tort for the same injury … there is a
At common law, if the negli- tribution even as other states had right of contribution among them,”
gence of concurrent tortfeasors begun to adopt some version of and that the right of contribution
caused a “single and indivisi- the Uniform Contribution Among exists for a tortfeasor “who was paid
ble injury,” each was said to be Tortfeasors Act (UCATA). In 1978, more than [its] pro rata share of the
“jointly and severally liable,” i.e., the Oklahoma Supreme Court in common liability,” with recovery
individually liable for the total Laubach v. Morgan questioned the being limited to the amount in
amount of damages, regardless soundness of joint and several lia- excess of that pro rata share.11
of percentage of fault.5 To make bility under the new comparative Two years later, the Oklahoma
matters worse for tortfeasors, there fault scheme.9 Noting the inequity Supreme Court clarified that
18 | NOVEMBER 2018 THE OKLAHOMA BAR JOURNALYou can also read
