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GEICO General Insurance Co. v. Northwestern Pacific Indemnity Co.6/14/2005
Chubbucks was "required" by NPIC's excess policy is an unresolved fact issue, reserved for determination by the federal court. We disagree.
Under Oklahoma law, "If language of a contract is clear and free of ambiguity the court is to interpret it as a matter of law . . . . Whether a contract is ambiguous and hence requires extrinsic evidence to clarify the doubt is a question of law for the courts." Pitco Production Company v. Chaparral Energy, Inc., 2003 OK 5, 12, 63 P.3d 541, 545. [Footnotes omitted.] Further, "The mere fact that the parties disagree or press for a different construction does not make an agreement ambiguous." Pitco at 14.
NPIC's excess contract provides:
Regardless of whether other primary underlying insurance may be available in the event of a claim or loss, it is a condition of this part of your policy that you and your family members must maintain in full effect primary underlying liability insurance of the types and in at least the amounts set forth below . . .
Uninsured motorists protection in the minimum amount of $250,000/$500,000 bodily injury or $300,000 single limit each occurrence.
[Emphasis added.] The policy's language is unambiguous. Thus, its meaning is a matter of law: the UM coverage contained in GEICO's automobile policy was part of the primary coverage and NPIC's policy was secondary to it. Further, in order to fully answer the question certified to us here it was necessary to first determine whether NPIC's policy required that UM coverage would be part of the primary coverage to which the NPIC policy was excess. Finally, GEICO's contention that whether the UM coverage was part of the primary coverage was an issue of fact is not supported by the language of NPIC's policy, which is clear and unambiguous, nor by applicable Oklahoma law.
II. Title 36 O.S. 2001 § 3636 does not contemplate that excess liability policies of the sort issued by NPIC are to be included in determining the "liability limits" of "an insured motor vehicle," as those terms are used in § 3636.
We held in Moser v. Liberty Mutual Ins. Co., 1986 OK 78, 5, n.8, 731 P.2d 406, that 36 O.S. 2001 § 3636 applies only to "primary liability policies insuring against liability arising from ownership, maintenance, or operation of an automobile. . . ." We also held, "We find the legislative intent to be clear in this case. The uninsured motorist provisions apply to all automobile liability insurance policies (or motor vehicle liability policies as defined in 47 O.S. § 7-324) but not to 'umbrella' policies. . . ." Moser at 8. [Footnote omitted, emphasis added.] The "umbrella" policy we considered in Moser was an excess liability policy similar to NPIC's policy. The facts in Moser differed from those presented here - in Moser the issue was whether the requirement of § 3636 that UM coverage must be expressly rejected in writing applied to excess liability policies. We held that umbrella policies are not covered by § 3636 because such policies are "at most tangentially related to automobile liability." Moser at 10, n.16. Despite its differences from the situation presented here, in Moser we clearly stated there that § 3636 does not apply to excess liability policies of the sort at issue here. Thus, we find the Moser opinion instructive and hold that § 3636(C) does not apply to excess liability policies.
GEICO also relies on Boyer v. Oklahoma Farm Bureau Mut. Ins. Co., 1995 OK CIV APP 102, 902 P.2d 83; Gates v. Eller, 2001 OK 38, 22 P.3d 1215; and Burch v. Allstate Ins. Co., 1998 OK 129, 977 P.2d 1057. Our analysis of these opinions demonstrates that each addressed an issue other than the priority of payment
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