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Association of County Commissioners of Oklahoma v. National American Insurance Co.6/1/2005
even two years after ACCO-SIG filed suit against NAICO, ACCO-SIG still had not determined whether the claims against its members would exceed the self-insured amount.
The Oklahoma Supreme Court has explained that under Section 3629, the insurer is a prevailing party where the judgment is for less than any settlement offer made by the insurer or where the insured rejects the claim and no judgment is awarded, while the plain language of the statute provides that "in all other judgments the insured shall be the prevailing party." Shinault v. Mid-Century Ins. Co., 1982 OK 136, 654 P.2d 618, 619. Shinault states that the insured is the prevailing party when the insurer has rejected the claim and the insured recovers judgment. Id. And the statute provides for an award of fees to the prevailing party.
In this case, ACCO-SIG gave notice that claims had been filed against its members, but ACCO-SIG failed to give notice of a covered loss in any form, because the record indicates no loss covered by excess insurance had been determined at the time ACCO-SIG filed suit. Under Section 3629(B), the insured must give notice of a loss to the insurer: "(i)t shall be the duty of the insurer, receiving a proof of loss, to submit a written offer of settlement or rejection of the claim . . . . Upon a judgment rendered to either party, costs and attorney fees shall be allowable to the prevailing party." The prior opinion of the Court of Civil Appeals remanded the matter to the trial court to determine whether ACCO-SIG had so notified NAICO. Competent evidence supports the District Court's findings on the fact issue of whether ACCO-SIG had submitted proof of a loss sufficient to give rise to NAICO's statutory duty to make a settlement offer or risk paying prevailing party attorney fees. ACCO-SIG's notice that claims were pending against ACCO-SIG, while required to trigger coverage, was not sufficient to allow NAICO to comply with its Section 3629 duty to settle or reject the loss. Accordingly, Section 3629 was not triggered and the trial court properly denied ACCO-SIG's Application for Attorney Fees and Motion to Reconsider.
AFFIRMED.
JOPLIN, P.J., and HANSEN, J., concur.
Page 1 2 3 4 5 6 Oklahoma Personal Injury Attorneys
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