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Badillo v. Mid Century Insurance Co.6/21/2005
at their acts or omissions could only be imputed to MCIC, not FIE. In Smith v. Hall, 1966 OK 103, 418 P.2d 665, 666 (Fourth Syllabus by the Court), it was stated:
The controlling factor in determining whether a regular employee of one master has become the special or loaned servant of another is: Has the general employer released for the time required to perform some particular work, all authority to control or direct the manner and method of the work to be done and surrendered such direction and control to the special master?
As the Court recognized in Smith, " he determination of whether the servant of the general employer has become the loaned or hired servant of another is not always a question of fact to be determined by the jury." Id. at 670. Basically, where the evidence at trial is such that reasonable persons cannot differ as to the result concerning the loaned servant question, it is proper for a trial court to rule as a matter of law on the issue in favor of the party entitled to prevail on that specific question and to not submit that issue to the jury. See id. Our review of the trial record convinces us there was no evidence submitted at trial that would support a reasonable inference that the FIE employees involved in the handling of the Smith claim were placed under the control of MCIC or MCIC employees such that the above test articulated in Smith would have required either a directed verdict for FIE on the point or submission to the jury for its consideration of some factual issue concerning the matter. Simply, the trial court did not err by refusing to submit any question to the jury concerning the loaned servant doctrine or in ruling as a matter of law that MCIC and FIE should be treated together concerning their potential liability to insured for any breach of the duty of good faith and fair dealing.
PART VI. NO REVERSIBLE ERROR OCCURRED BY VIRTUE OF THE ADMISSION OF TESTIMONY FROM DAVID HARDING
Insurers argue that David Harding, an employee of FIE and the branch claims manager of insurers' office handling Smith's claim in the February-April 2000 period, should not have been allowed to testify as to whether Smith's claim was properly handled.
Insurers argue, as a lay witness, he lacked personal knowledge of the facts and circumstances of the adjustor's actions in the handling of the claim. They also assert that some of the questions posed to him during his deposition, some of the answers to which were admitted at trial and used to impeach his trial testimony because he changed his answers thereto, were improper as calling for speculative opinions that were based on hypothetical questions that did not completely and accurately represent certain material facts. Insurers place reliance for their argument(s) on 12 O. S. §§ 2602 and 2701, two provisions contained in the Oklahoma Evidence Code, 12 O. S. 2001, § 2101 et seq., as amended.
Harding, although not the immediate supervisor of the adjuster in the February-April 2000 period, was, apparently, as branch claims manager, two levels above the adjuster. In other words, the adjuster had an immediate supervisor and then Harding was the head manager of the branch claims office, superior to both the adjuster and the adjuster's immediate supervisor. At the time of trial, Harding had been employed by "Farmers" for about thirty-three and a half (33 & 1/2) years and he held the position of Oklahoma litigation manager, having been promoted to that job .
Harding was called by insured to testify about the handling of Smith's claim based upon his review of the claims file and his knowledge of insurers' claims practices. At his deposition, he gave certain testimony
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