JANE P. WISEMAN, Judge.
¶ 1 GuideOne America Insurance Company, Inc., (GuideOne) appeals from the trial court's order granting summary judgment in favor of Shore Insurance Agency, Inc. (Agency).
¶ 2 On May 26, 2003, GuideOne's insured, Christi Roberts, was involved in a motor vehicle accident. According to Roberts, she notified her agent, Nancy Shore, on or about June 24, 2003, stating she had been injured in an automobile accident. Nancy Shore testified she did not notify GuideOne after this conversation because Roberts asked her not to turn in a claim "because she was afraid that her insurance could be canceled if she turned in another claim because of prior claim history."
¶ 3 Carol Curtis, an adjuster employed by GuideOne, testified that she first became involved in September 2003 when Roberts' claim was received, set up, and assigned to her for handling. Curtis had a conversation with Roberts on September 18, 2003, which was recorded and transcribed. In this conversation Roberts tells Curtis that her agent Nancy Shore told her that GuideOne would not pay until "Farmers Union was finished and if there wasn't enough money to pay the bills, then my insurance would pick up." Despite the fact Curtis testified that she knew this advice to be wrong, Curtis could not explain why she failed to correct Nancy Shore's statement:
In the fall of 2003, the tortfeasor's insurer tendered its coverage to Roberts.
¶ 4 Roberts filed a federal lawsuit against GuideOne in February 2004 for breach of contract and bad faith in its handling of her claim. GuideOne tendered its policy limits to Roberts on December 8, 2004, and later settled the federal lawsuit with Roberts. Nancy Shore testified that she attended the settlement conference on behalf of Agency and provided settlement authority. However,
¶ 5 Agency filed a motion for summary judgment contending GuideOne cannot succeed on any indemnity or contribution theories. In response, GuideOne argued disputed material facts existed precluding summary judgment and that summary judgment was not warranted as a matter of law.
¶ 6 The trial court granted Agency's motion for summary judgment finding no substantial controversy as to any material fact existed and that Agency should be granted judgment as a matter of law on GuideOne's claims.
¶ 7 GuideOne appeals.
¶ 8 We review a trial court's grant of summary judgment de novo. Carmichael v. Beller, 1996 OK 48, & 2, 914 P.2d 1051, 1053. On review, we examine the pleadings and evidentiary materials submitted by the parties to determine whether there exists a genuine issue of material fact. Id. This Court bears an "affirmative duty ... to test for legal sufficiency all evidentiary material received in summary process in support of the relief sought by the movant." Reeds v. Walker, 2006 OK 43, ¶ 9, 157 P.3d 100, 106. Further, the evidentiary materials and the inferences to be drawn therefrom must be viewed in the light most favorable to the party opposing the motion. Hargrave v. Canadian Valley Elec. Coop., Inc., 1990 OK 43, ¶ 14, 792 P.2d 50, 55.
¶ 9 Agency entered into a written Independent Agent Contract with GuideOne in January 1999 which governed their relationship as independent contractor and insurance companies.
(Emphasis added.)
¶ 10 This provision clearly states that GuideOne has agreed to indemnify and hold Agency harmless against liability for damage arising out of any act or omission committed by GuideOne, unless the Agent caused the error. There is no reverse provision by which Agency agreed to indemnify GuideOne. This is GuideOne's independent agent contract, and GuideOne did not include language imposing a duty on Agency to indemnify it under circumstances such as the ones in question here. As a result, under a plain reading of the contract, GuideOne is not entitled to recover from Agency based on a contractual indemnity theory.
¶ 11 We next address whether GuideOne has a non-contractual or implied right of indemnification. "The general rule of indemnity is that one without fault, who is forced to pay on behalf of another, is entitled to indemnification." National Union Fire Ins. Co. v. A.A.R. W. Skyways, Inc., 1989 OK 157, ¶ 7, 784 P.2d 52, 54. "`Noncontractual or equitable indemnity is similar to common-law contribution; one who is only constructively or vicariously obligated to pay damages because of another's tortious conduct may recover the sum paid from the tortfeasor.'" Id. at ¶ 8, 784 P.2d at 54 (quoting Travelers Ins. Co. v. L.V. French Truck Serv., Inc., 1988 OK 76, n. 16, 770 P.2d 551). "Noncontractual indemnity is sometimes referred to as `implied indemnity' and `may arise out of a contractual or special relationship between parties and from equitable considerations.'" Noble Steel, Inc. v. Williams Bros. Concrete Const. Co., 2002 OK CIV APP 66, ¶ 12, 49 P.3d 766, 770 (quoting Central Nat'l Bank of Poteau v. McDaniel, 1986 OK CIV APP 34, ¶ 9, 734 P.2d 1314, 1316).
¶ 12 No right of indemnity exists between joint tortfeasors, however. Caterpillar Inc. v. Trinity Indus., Inc., 2006 OK CIV APP 48, ¶ 17, 134 P.3d 881, 886. If concurrent or joint tortfeasors with no legal relationship to each other but owing the same duty to an injured party are involved in the same injury-causing occurrence, no right of indemnity exists in favor of one joint tortfeasor against the other. Thomas v. E-Z Mart Stores, Inc., 2004 OK 82, ¶ 22, 102 P.3d 133, 140. "The right exists when one who is only constructively liable to the injured party and is in no manner responsible for the harm is compelled to pay damages for the tortious act of another." Caterpillar, 2006 OK CIV APP 48 at ¶ 17, 134 P.3d at 886.
¶ 13 We must review the appellate record to determine if there is any evidence from which one could conclude that GuideOne was fault-free with regard to the liability for which it seeks indemnification. If there is, then summary judgment on GuideOne's implied indemnity claim is not appropriate. On the other hand, if the evidence establishes without contradiction that GuideOne was not fault-free, then summary judgment is appropriate.
¶ 14 GuideOne seeks indemnification from Agency for "their acts or omissions upon which the [federal] Litigation was premised." GuideOne asserts that it was sued by Christi Roberts who "specifically alleged it was the error of Nancy Shore which started the chain of events leading to alleged breach of contract and bad faith conduct of [GuideOne]." Agency, on the other hand, argues that GuideOne cannot recover on the basis of implied indemnity because (1) it has admitted it is at fault, and (2) its expert testified that GuideOne "acted in bad faith in connection with Roberts' uninsured motorist claim."
¶ 15 Donald Samuel Waters, Jr., GuideOne's counsel, testified in his deposition that Nancy Shore did nothing to delay GuideOne's payment of benefits to Roberts from
¶ 16 GuideOne's expert, Ron Crain, testified that GuideOne committed bad faith:
Crain later describes GuideOne's bad-faith conduct in handling the claim:
Crain further testified that Carol Curtis had an obligation to correct Shore's statement to Roberts and to advise Roberts of the current law:
¶ 17 Agency identifies the following three undisputed material facts in support of its argument that GuideOne is not entitled to implied indemnity:
Although GuideOne disputes the first fact as being immaterial, it admits the second and third facts. We find the undisputed evidence establishes that Roberts' injuries or damages in her federal lawsuit were caused by GuideOne's own acts or omissions in handling Roberts' claim, conduct separate and apart from any alleged acts or omissions of Agency. It is not disputed that GuideOne was at fault, and no recovery under an implied indemnity theory will therefore lie in GuideOne's favor.
¶ 18 We next determine whether GuideOne can recover pursuant to a right of contribution. Although Roberts sued GuideOne in the federal lawsuit for breach of contract and bad faith, she brought no action against Agency. Agency's joinder as a party defendant in the previous lawsuit is not a prerequisite to GuideOne's claim for contribution against Agency to recover that portion of the settlement amount GuideOne paid to
¶ 19 At the hearing on the motion for summary judgment, GuideOne's counsel argued that Agency's delay in contacting GuideOne about Roberts' claim was negligent and contributed to Roberts' damages:
¶ 20 "However, an alleged tortfeasor defending against a contribution claim is not without defenses. It may assert, among any other available defenses, that it was not a tortfeasor (i.e., that it had no liability to plaintiff)...." Barringer, 2001 OK 29 at ¶ 9, 22 P.3d at 698. That is the position asserted by Agency—it denied it was a tortfeasor or liable to Roberts under any claim. During the summary judgment hearing, Agency's counsel asserted:
¶ 21 In determining the existence of a right to recover for contribution, the critical question is whether Agency is a tortfeasor who contributed to or caused the same injury/damages sustained by Roberts. 12 O.S. 2001 § 832(A) (stating that "[w]hen two or more persons become jointly or severally liable in tort for the same injury to [a] person... there is a right of contribution among them even though judgment has not been recovered against all or any of them except as provided in this section").
¶ 22 Agency argues GuideOne "has not paid a legal obligation owed by Shore." Agency asserts that because the duty of good faith and fair dealing an insurer owes to its insured is non-delegable, it cannot be held liable for bad faith as a matter of law. Agency argues that because Agency cannot be liable under this theory, any duty owed to Roberts could only arise in negligence, if at all.
¶ 23 GuideOne's counsel seems to assert that Agency's complained-of conduct sounds in negligence, not in bad faith.
¶ 24 "A `special relationship' exists between an insurer and its insured stemming from the quasi-public nature of insurance, the unequal bargaining power between the insurer and insured, and the potential for an insurer to unscrupulously exert that power at a time when the insured is particularly vulnerable." Wathor v. Mutual Assurance Adm'rs, Inc., 2004 OK 2, ¶ 6, 87 P.3d 559, 561-62. "The special relationship creates a nondelegable duty of good faith and fair dealing on the part of the insurer." Id. at ¶ 6, 87 P.3d at 562. This duty is nondelegable so that insurers cannot escape liability by delegating tasks to third parties. Barnes v.
¶ 25 We next address whether Agency violated any other duty owed to Roberts. Agency contends nothing in the 1999 contract gives it the authority to adjust claims, but rather, Nancy Shore was only a soliciting agent as defined by 36 O.S. Supp.2009 § 110 with no authority to bind GuideOne. Agency points out that GuideOne's expert, Crain, was not critical of Nancy Shore for being unaware of Oklahoma law and stated that GuideOne's adjuster, Carol Curtis, should have corrected Shore's previous misstatement of UM law. Agency thus concludes that because no contractual or "at-law duty [was] owed to Roberts, there can be no negligence and no debt assumed by [GuideOne]."
¶ 26 Although GuideOne admits Nancy Shore had no contractual duty or authority to adjust claims, it asserts that she did have a contractual duty to "assist policyholders and cooperate with adjustors in reporting and handling claims and render such other services to policyholders as may properly and reasonably be provided by an Agent." GuideOne argues Agency owed a duty to Roberts to timely report the claim.
¶ 27 We conclude that GuideOne has no right of contribution against Agency. Agency has no liability to Roberts on any breach of contract or bad faith theory; only GuideOne can be liable to Roberts on these theories. Joint tortfeasor contribution does not lie for joint breach of contract liability,
¶ 28 We reject GuideOne's argument that a claim of simple negligence under these circumstances gives rise to a right to contribution. Clearly, GuideOne could not be liable to its insured for bad faith based only on negligent conduct in its handling of an insured's claim. In Badillo v. Mid Century Insurance Co., 2005 OK 48, ¶ 28, 121 P.3d 1080, 1094, the Supreme Court stated:
(Footnote omitted.)
¶ 29 To hold that Agency, on the basis of alleged negligence only, could be subject to
¶ 30 GuideOne has presented no evidence to sustain the allegation that Agency breached any duty owed to Roberts or that Agency is a tortfeasor contributing to the same injuries or damages of the insured. Weeks v. Wedgewood Vill., Inc., 1976 OK 72, ¶ 14, 554 P.2d 780, 785 (upholding the grant of summary judgment in favor of the defendant because "[n]o evidence was presented to sustain the allegation [defendant] breached any duty"). GuideOne is not entitled to contribution from Agency, and the trial court properly granted summary judgment.
¶ 31 We have reviewed the record de novo and conclude the trial court correctly granted summary judgment in favor of Agency.
¶ 32
BARNES, P.J., and FISCHER, J., concur.