Filed: Jun. 09, 2000
Latest Update: Feb. 21, 2020
Summary: UNITED STATES COURT OF APPEALS Tenth Circuit Byron White United States Courthouse 1823 Stout Street Denver, Colorado 80294 (303) 844-3157 Patrick J. Fisher, Jr. Elisabeth A. Shumaker Clerk Chief Deputy Clerk June 13, 2000 TO: ALL RECIPIENTS OF THE ORDER AND JUDGMENT RE: 99-6215, 99-6247 & 99-6367, National Fire Ins. Co. v. Yellow Cab of Oklahoma, et al. Filed on June 9, 2000 The order and judgment filed in these matters contains a clerical error on page 6, in the 12th line down from the top. The
Summary: UNITED STATES COURT OF APPEALS Tenth Circuit Byron White United States Courthouse 1823 Stout Street Denver, Colorado 80294 (303) 844-3157 Patrick J. Fisher, Jr. Elisabeth A. Shumaker Clerk Chief Deputy Clerk June 13, 2000 TO: ALL RECIPIENTS OF THE ORDER AND JUDGMENT RE: 99-6215, 99-6247 & 99-6367, National Fire Ins. Co. v. Yellow Cab of Oklahoma, et al. Filed on June 9, 2000 The order and judgment filed in these matters contains a clerical error on page 6, in the 12th line down from the top. The ..
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UNITED STATES COURT OF APPEALS
Tenth Circuit
Byron White United States Courthouse
1823 Stout Street
Denver, Colorado 80294
(303) 844-3157
Patrick J. Fisher, Jr. Elisabeth A. Shumaker
Clerk Chief Deputy Clerk
June 13, 2000
TO: ALL RECIPIENTS OF THE ORDER AND JUDGMENT
RE: 99-6215, 99-6247 & 99-6367,
National Fire Ins. Co. v. Yellow Cab of Oklahoma, et al.
Filed on June 9, 2000
The order and judgment filed in these matters contains a clerical error on
page 6, in the 12th line down from the top. The word “covered” is corrected to
read “completed.”
A corrected copy of the order and judgment is attached.
Sincerely,
Patrick Fisher, Clerk of Court
By: Keith Nelson
Deputy Clerk
encl.
F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JUN 9 2000
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
NATIONAL FIRE INSURANCE
COMPANY OF HARTFORD,
Plaintiff-Appellant,
v. Nos. 99-6215, 99-6247, & 99-6367
(D.C. No. 97-CV-1639-M)
YELLOW CAB OF OKLAHOMA, (W.D. Okla.)
INC.; LINDELL TALLEY,
Defendants,
and
BOB LAWRENCE,
Defendant-Appellee.
ORDER AND JUDGMENT *
Before KELLY , McKAY , and HENRY , Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). These cases are
therefore ordered submitted without oral argument.
In appeal No. 99-6215, National Fire Insurance Company of Hartford
(National) appeals from summary judgment granted April 28, 1999 in favor of
Bob Lawrence. The issue in that appeal is whether an insurance policy National
issued to Yellow Cab of Oklahoma, Inc. (Yellow Cab) provides coverage for
injuries Mr. Lawrence suffered in an accident with a taxicab owned by Yellow
Cab and driven by Lindell Talley. In appeal No. 99-6247, Mr. Lawrence
cross-appeals from an order in the same judgment limiting his recovery to
$100,000. He also appeals from an order dated June 8, 1999 denying his motion
to amend that judgment, and from a second order dated June 8, 1999 denying
his motion for attorney fees made pursuant to 28 U.S.C. § 2202. In appeal
No. 99-6367, Mr. Lawrence again appeals from the same orders and judgments
referenced in No. 99-6247 (in the event that this court determined it had no
jurisdiction over Nos. 99-6215 and 99-6247) and also appeals from an August 26,
1999 order that adjudicated all remaining claims among all parties to the original
cause of action. 2
We consolidate these appeals, and with jurisdiction arising
2
When the appeal in No. 99-6215 was filed, we issued a show cause order
directing counsel to secure from the district court either a Fed. R. Civ. P. 54(b)
certification order or an order explicitly adjudicating the remaining claims.
See Lewis v. B.F. Goodrich Co. , 850 F.2d 641, 645-46 (10th Cir. 1988). The
(continued...)
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under 28 U.S.C. § 1291, we reverse and remand for entry of judgment in favor
of National.
The relevant facts are undisputed, thus we review de novo the district
court’s interpretation of the insurance policy, as well as its other legal
conclusions made on summary judgment. See MGA Ins. Co. v. Fisher-Roundtree ,
159 F.3d 1293, 1294 (10th Cir. 1998).
In 1997, Mr. Lawrence was seriously injured at Will Rogers Airport
(Airport) in Oklahoma City, Oklahoma, when Mr. Talley accidently pinned him
between the cab he was driving and the cab Mr. Lawrence had been driving.
Mr. Lawrence obtained a judgment of over one million dollars against Yellow
Cab and Mr. Talley in state court. Mr. Lawrence did not sue the Airport.
Yellow Cab was self-insured for automobile liability purposes, posting
a property bond in the amount of $60,000 as required by the Oklahoma Financial
Responsibility laws. In order to park taxicabs at the Airport and wait for
potential customers (as opposed to dropping off or picking up customers without
parking and waiting), the Airport required Yellow Cab to execute a Ground
Services Agreement (Agreement) created pursuant to regulations promulgated
by the Oklahoma City Airport Trust Authority (Trust). Under the Agreement,
2
(...continued)
district court entered an order on August 26, 1999 disposing of all claims, and
the notice of appeal and our jurisdiction thus ripened on that date.
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Yellow Cab was required to obtain “General Public Liability Insurance” for
“taxicab services” that expressly included Oklahoma City and the Trust as
insureds in the amount of at least $1,000,000 for each occurrence or accident and
“with a limit of $100,000 to any claimant for his claim for any other loss arising
out of a single accident or occurrence.” 3
Appellant’s App. at 293 & n.2 (April 28,
1999 Order). Pursuant to this requirement, Yellow Cab purchased a commercial
general liability policy from National expressly naming itself, the Trust, and the
Central Oklahoma Transportation Parking Authority as insureds. See id. at 139.
The policy provided for coverage for bodily injury and property damage liability
for “sums that the insured becomes legally obligated to pay as damages because
of ‘bodily injury’ or ‘property damage’ to which this insurance applies.”
Id. at 140.
The National policy contained many exclusions. The one at issue in this
case expressly excluded coverage for:
g. Aircraft, Auto or Watercraft
“Bodily injury” or “property damage” arising out of the ownership,
maintenance, use or entrustment to others of any aircraft, “auto” or
watercraft owned or operated by or rented or loaned to any insured.
Use includes operation and “loading or unloading.”
3
As noted by the district court, these requirements mirrored the limits of
liability of political subdivisions of the state of Oklahoma under the Oklahoma
Governmental Tort Claims Act. See Appellant’s App. at 294 n.3; Okla. Stat. tit.
51, § 154(A).
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Id. at 170. The policy defined “auto” as “a land motor vehicle . . . designed for
travel on public roads . . . not includ[ing] ‘mobile equipment.’”
Id. at 171.
Mr. Lawrence conceded that the policy did not provide for automobile liability
insurance coverage and that Yellow Cab did not pay a premium for such
coverage in this policy. See
id.
Mr. Lawrence asserted, and the district court agreed, that, despite the
express exclusion for automobile accidents, coverage for Mr. Lawrence’s injuries
had to be written into the National policy as a matter of law under the principles
set forth in MGA Insurance Co. v. Fisher-Roundtree ,
159 F.3d 1293 (10th Cir.
1998). See Appellant’s App. at 294. The district court also held that the amount
of coverage to be read into the policy should be the minimum coverage of
$100,000 required by the Agreement rather than the $1,000,000 coverage
provided for covered injuries under the terms of the policy. See
id. at 383. The
district court denied Mr. Lawrence’s motion for attorney’s fees under 28 U.S.C.
§ 2202 as the prevailing party, see
id. at 385, and then issued its final order
holding that Yellow Cab and Mr. Talley were “subject to the same determination
made by the Court as to [National and Mr. Lawrence],”
id. at 388.
In MGA Insurance Co. this court was presented with a very different
factual situation. There, for the protection and benefit of those exposed to
liquified petroleum (LP) gas, the Oklahoma LP Gas Act and its corresponding
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insurance regulations promulgated by the LP Gas Board required vendors of LP
gas to maintain various insurance coverages, specifically including coverage for
completed operations. 159 F.3d at 1295-96. MGA, the insurer, issued two
certificates of commercial general liability insurance to the LP Gas Administrator
for the defendant LP vendor’s business in response to that requirement, see
id.
at 1296, but the policy expressly excluded coverage for completed operations,
see
id. at 1295. After the plaintiff was injured in an LP gas explosion involving
the defendant vendor, MGA denied any responsibility to defend the vendor or
to provide coverage, relying on the completed operations exclusion. See
id.
Recognizing that Oklahoma imputes statutorily-required insurance provisions into
compulsory policies required for the benefit of the public, see
id. at 1296, we
extended that doctrine to include specific insurance requirements promulgated by
an administrative body expressly charged with implementing a permit statute
generally mandating insurance coverage,
id. at 1297-98. Therefore, we held that
“coverage for completed operations must be written into the policy as a matter of
law.”
Id. at 1298.
In the case before us, in contrast, the Trust was created pursuant to an
Oklahoma statute that authorizes municipalities to establish and regulate airports,
see Okla. Stat. tit. 3, § 65.2, and another that authorizes the establishment of
public trusts to carry out any authorized and proper public function, see
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Okla. Stat. tit. 60, § 176. Neither statute involves any permit requirements or
delegates to the Trust the regulation of taxicab or motor vehicle operations on
Airport property in the same manner in which the state LP Gas Board was
entrusted with regulation of the LP gas retailing business through the permit
scheme specified in the LP Gas Act. Mr. Lawrence has not cited, and we have
not found, any Oklahoma statute that mandates that airports protect the public
from harm arising from accidents involving taxicabs by requiring general liability
insurance that includes automobile liability insurance in excess of any amount
already required by the state motor vehicle liability insurance laws. Thus, the
insurance requirements imposed by the Trust through the Agreement were not
created in response to a statute or regulations imposed by its correlative
administrative body, and the doctrine of imputing statutory compulsory
insurance requirements into an insurance contract does not apply. We decline
Mr. Lawrence’s invitation to extend the statutory imputation rule to insurance
requirements not mandated by either the Oklahoma legislature or an
administrative body specifically delegated to regulate a particular business.
Finally, it seems clear that a goal of the insurance requirement in the
Agreement was to indemnify and protect the Airport and the City against any
potential liability that may arise from inviting taxicab companies to use the city
facilities to obtain business. This would include unsafe premise conditions in the
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licensed taxicab loading or holding areas that could give rise to a lawsuit against
the Airport. Therefore, Mr. Lawrence’s argument that automobile liability
coverage should be read into the policy because otherwise, the insurance policy
is worthless, is unavailing.
We conclude that neither the regulations nor the public policies that
compelled this court to conclude that coverage should be written into the contract
in MGA Insurance Co. are present in this case. The express terms of the
insurance contract therefore control National’s obligations under the policy,
and the parties agree that the automobile exclusion otherwise precludes
Mr. Lawrence’s recovery from National. Our holding moots the issues
presented in appeals Nos. 99-6247 and 99-6367.
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The judgment of the United States District Court for the Western District
of Oklahoma is REVERSED and the case is REMANDED for entry of judgment
in favor of National.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
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