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Walton v. Colonial Penn Insurance Co.9/28/1993
CERTIORARI PREVIOUSLY GRANTED, COURT OF APPEALS OPINION VACATED, AND TRIAL COURT JUDGMENT AFFIRMED.
The opinion of the court was delivered by: WATT, Justice.
Walton's home was destroyed by fire, on March 23, 1987, while it was covered by a fire insurance policy issued by Colonial. Walton sued to recover on the policy less than one year after the fire, on October 23, 1987. On November 4, 1988, Walton obtained an order from the trial court dismissing his suit without prejudice. Walton refiled his suit on November 27, 1990. The second suit was filed more than one year after the first was dismissed and came more than two years after the fire loss occurred. Walton's suit did not fall within the protection of 12 O.S. 1981 § 100 , which gives a litigant one year following the dismissal of an earlier action that failed otherwise than on its merits. Thus, Walton's refiled action was timely only if the five-year statute of limitations governing contracts, 12 O.S. 1981 § 95.First , applies. The District Court of Oklahoma County, James L. Gullett, trial judge, dismissed Walton's petition on the ground that this cause of action was barred by the one year statute of limitations for suits on fire insurance policies, § 4803.G. The Court of Appeals affirmed, but held in its opinion that 36 O.S. 1981 § 4803.G was unconstitutional. We granted certiorari on May 17, 1993.
ISSUE
Walton's sole proposition of error is that the five-year statute of limitations governing contracts in writing, 12 O.S. 1981 § 95.First , applies here because the one year statute of limitations, 36 O.S. 1981 § 4803.G , specifying limitation periods for insurance contracts, is unconstitutional. Section 4803.G, according to Walton, violates Art. 5, §§ 46 and 59, Okla. Const. because § 4803.G is a "special or local" act for limitation of a civil action. We disagree.
DISCUSSION
Walton cites Uptegraft v. Home Ins. Co., 662 P.2d 681 (Okla. 1983) in which we held that the applicable statute of limitations for a suit under the uninsured motorist coverage provision of an automobile policy is the five-year period provided for in § 95.First. In Uptegraft, we applied Art. 23, § 9 , Okla. Const. and declared void a contractual provision limiting an insured's right to sue. Uptegraft, however, does not apply in this appeal because Art. 23 § 9 does not prevent the legislature from mandating statutes of limitations relating to contracts. Here, the statute of limitations governing suits on fire insurance policies is 36 O.S. § 4803.G . Section 4803.G is a statute in the form of a fire insurance policy. Thus, the one year limitation period specified in the policy is a statutory period of limitations, and not a contractual one. The legislature also authorized a contractual one year statute of limitations for fire insurance policies in 36 O.S. § 3617 .
Walton claims that Art. 5, §§ 46 and 59, Okla. Const. prohibit the legislature from passing legislation setting periods of limitations for insurance contracts different in length from the five-year period for contracts in writing provided for in 12 O.S. 1991 § 95.First . His contention is based on his conclusion that any statute of limitations different from five years on a written contract is a special or local law and unconstitutional. Walton relies on Reynolds v. Porter, 760 P.2d 816 (Okla. 1988). We held there that special laws, which single out less than an entire class of persons or things, are unconstitutional under § 46. Walton's analysis misinterprets Reynolds and the purpose and operation of §§ 46 and 59.
In Reynolds, we examined a statutory provision, 76 O.S. 198
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