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Association of County Commissioners of Oklahoma v. National American Insurance Co.6/1/2005
n part, and remanded the matter to the District Court.
In Case No. 97,466, the court first held that the fact the parties entered a settlement agreement did not bar application of Section 3629. The court noted that ACCO-SIG's argument was that Section 3629 applied because ACCO-SIG gave notice of its claims, NAICO refused to pay, and the settlement included an agreement that ACCO-SIG was the prevailing party. The court further recognized NAICO's response, that Section 3629 did not apply because NAICO was a reinsurer of ACCO-SIG and Section 3629 is not applicable to reinsurance. The court determined that the NAICO policy at issue here was an excess insurance policy. NAICO's remaining argument against application of Section 3629 was that ACCO-SIG never submitted a formal proof of loss form, yet ACCO-SIG contended that the policy did not require formal proofs of loss, because the Lloyd's policy provided that liability claims would be paid when reported during the policy. ACCO-SIG argued that by adopting the coverage provided by Lloyd's, the notice which was acceptable to Lloyd's must be deemed acceptable to NAICO. NAICO had responded that the Lloyd's policy expressly prohibited ACCO-SIG from suing until 90 days after a proof of loss was submitted, and NAICO urged that a proof of loss was required but that ACCO-SIG failed to submit formal proofs of loss and also failed to make requests for payment of some claims before it filed suit.
In its opinion in Case No. 97,466, the Court held that Section 3629(A) is not triggered by the submission of a proof of loss. The Court explained that Section 3629(A) is triggered by the "written request of any insured claiming to have a loss under an insurance contract issued by such insurer." The Court further explained that under the statute, once an insured makes a demand, the insurer is required to furnish a proof of loss form. Once the insured completes the form, the insurer has 90 days in which to make a written offer of settlement or rejection. If the insurer fails to act within 90 days, it has breached Section 3629(B) and has waived its right to attorney fees. The Court concluded that likewise, an insured may waive its right to attorney fees if it fails to submit a demand.
The Court of Civil Appeals held that it was unclear whether ACCO-SIG had submitted notice of its claims to NAICO. The matter was remanded to the District Court to make the factual determination whether ACCO-SIG had given notice of its claims to NAICO. The Court held that if the District Court found ACCO-SIG did give notice, then Section 3629 would apply and the District Court was then directed to determine the appropriate fee.
Upon remand, the District Court again denied ACCO-SIG's Application for Attorney Fees. The District Court later denied ACCO-SIG's Motion to Reconsider. On appeal, ACCO-SIG argues the District Court erred in finding ACCO-SIG did not give NAICO proper notice of its claims sufficient to trigger the application of Section 3629.
The prior opinion of the Court of Civil Appeals is considered law of the case. The appellate court remanded the matter with specific instructions for the District Court to determine the fact issue of whether ACCO-SIG gave proper notice of a loss to trigger application of Section 3629. We review the trial court's decision on a question of fact to determine if it is supported by competent evidence.
As previously noted, partial summary judgment determined that the parties intended for the NAICO policy to be identical to the previous Lloyd's of London policy. The Lloyd's policy required ACCO-SIG to notify third-party administrator Willis Corroon Administrative Services Corporation whenever
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