Graham v. Travelers Insurance Company12/17/2002
Modified December 30, 2002.
WINFRED NIMROD GRAHAM, PLAINTIFF/APPELLANT,
v.
TRAVELERS INSURANCE COMPANY, DEFENDANT/APPELLEE.
SYLLABUS BY THE COURT
The Court of Civil Appeals, Division II, reversed the trial court's grant of summary judgment to defendant/appellee and remanded the cause upon its determination that plaintiff/appellant Graham is insured under the liability provision of his employer's insurance policy, and therefore 36 O.S.2001, § 3636 requires Graham to be insured under the uninsured/underinsured motorist provision of his employer's insurance policy.
Rex K. Travis, Patricia Travis and C. Ronald Britton, Oklahoma City, Oklahoma, for appellant Winfred Nimrod Graham.
Mark. E. Bialick, Rodney D. Stewart, Durbin, Larimore & Bialick, Oklahoma City, Oklahoma, for appellee Travelers Insurance Company.
Chris Harper, Phillip P. Owens II, Chris Harper, Inc., Oklahoma City, Oklahoma, for amicus curiae GuideOne Mutual Insurance Company.
Chris L. Rhodes, William D. Perrine, Kerry R. Lewis, Tulsa, Oklahoma, for amicus curiae Carroll Fisher, Insurance Commissioner of the State of Oklahoma.
The opinion of the court was delivered by: Winchester, J.
__ P.3d __
ON CERTIORARI TO THE COURT OF CIVIL APPEALS, DIVISION II
CERTIORARI PREVIOUSLY GRANTED; COURT OF CIVIL APPEALS OPINION VACATED; JUDGMENT OF THE DISTRICT COURT AFFIRMED.
The issue before us is whether in a commercial insurance policy, uninsured/underinsured (UM/UIM) coverage that is provided for vehicles owned by the named insured, must also be provided to employees using their own vehicles, which are limited by an endorsement to liability coverage.
FACTS AND PROCEDURAL HISTORY
Winfred Nimrod Graham, the plaintiff/appellant, was stopped at a red traffic light in Oklahoma City, Oklahoma, when his car was struck from behind by a second car. Graham's vehicle was struck again when a third car collided with the second car. The record reveals that as a result of this accident, Graham sustained significant injuries, including a fractured neck.
According to the record, at the time of the accident, Graham was driving his personal vehicle while on business for his employer, CKE Restaurants. CKE had an automobile insurance policy that included UM/UIM coverage with Travelers Indemnity Company of Illinois , the defendant/appellee. Graham sought UIM benefits, but Travelers denied his claim.
Graham sued the two drivers, their principals, and the owners of one of the vehicles for personal injury , property damage and lost wages. He also sought punitive damages. In his Second Amended Petition, Graham added "Travelers Insurance Company" as a defendant, praying for compensatory and punitive damages.
Travelers moved for summary judgment on the basis that no UM/UIM motorist coverage exists under the Travelers' policy for CKE employees operating a vehicle CKE does not own. In his response, Graham moved for an interlocutory order arguing he was entitled to UM/UIM motorist coverage under the policy Travelers issued to CKE because that policy provides liability coverage for employees while using their own automobiles, and those covered for liability must also be covered for UM/UIM under Oklahoma's UM statute, 36 O.S.2001, § 3636. The trial court granted Travelers' motion.
In its September 26, 2000, Journal Entry of Judgment, the trial court found there was no UM/UIM coverage for Graham under the insurance p
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