RSS 10th Circuit

  • Mid-Continent v. True Oil Company
    Docket#: 13-8006United States District Court for the District of Wyoming - CasperDate Issued: 09/18/2014Published Opinion
  • Antelope Coal Co. v. Goddard
    Docket#: 14-9506Benefits Review BoardDate Issued: 09/18/2014Unpublished Order and Judgment
  • United States v. Riggins
    Docket#: 14-3060United States District Court for the District of Kansas - WichitaDate Issued: 09/18/2014Unpublished Order and Judgment

Jordan.v.Election Board.2014.OK.74

In Jordan, the OK Supreme Court granted the writ of prohibition against further district court proceedings to challenge the qualifications of Sen. Fred Jordan to stand for election as district attorney of Tulsa County.  Candidate Steve Kunzweiler had challenged Sen. Jordan’s qualifications due to Jordan’s service in the State Legislature which voted to increase compensation for the office of district attorney.

The Supreme Court held that OKConst.5.23 prohibits a legislator from “taking public office” during the term of a Legislature which has voted to increase the compensation for that office, but found the prohibition inapplicable to a district attorney term of office commencing January 5, 2015, when the Senator’s legislative term ends on November 19, 2014.

Justice Taylor dissented, finding the Senator’s term would effectively begin when he is “appointed or elected” under the constitutional language, which would happen if the Senator wins the Republican primary on August 26, 2014, because the Republican nominee has no Democratic opponent in the general election.

Taylor argued the constitution prohibits appointment or election to the office, not “taking” or assuming the duties of the office. Because the Senator’s election to that office would occur before the end of his legislative term, the constitution disqualifies him from election to that office.

The constitutional question was effectively mooted here when Kunzweiler won the Republican primary on August 26, 2014.

Wood.v.Mercedes-Benz OKC.2014.OK.68

In Wood, the OK Supreme Court reversed the trial court’s grant of summary judgment on plaintiff’s slip and fall claim against defendant car dealership.  Plaintiff was a caterer injured after slipping on ice caused when defendant’s sprinkler system activated in cold weather.

Appeal from a grant of summary judgment calls for de novo review.  When examining an order sustaining summary judgment, this Court must determine whether the record reveals disputed material facts. Summary judgment should be denied, if reasonable persons might reach different conclusions from the evidence on the question of liability, viewed in a light most favorable to the party opposing summary judgment.

Premises liability law obligate landowners to exercise reasonable care to keep premises in a reasonably safe condition and to warn invitees of hidden dangers, traps, snares or pitfalls.  The Court has rejected the open and obvious hazard limitation for accumulations of ice caused or enhanced by a landowner, and determined that such hazards impose a duty on the owner to protect third parties.

The Court found Mercedes-Benz owed a duty to protect plaintiff from accumulation caused by the dealership’s sprinkler system during freezing temperatures; had notice of the icy conditions at the building; and knew that catering employees were entering to cater a scheduled event.

Plaintiff has shown a question of fact whether Mercedes-Benz breached this duty requiring submission of this question to a jury. The grant of summary judgment is reversed and the case remanded for trial.


In Pack, the Supreme Court assumed original jurisdiction and determined that HB 3399, the bill that repealed the “Common Core” educational standards in Oklahoma, does not violate OKConst.13.5 by abridging the constitutional authority of the state board of education, or OKConst.4.1, providing for the separation of legislative, executive, and judicial powers in state government.


In Peoplelink, the OK Supreme Court clarified the applicable standard of appellate review in worker’s compensation awards.  Separate divisions of the OK Court of Civil Appeals had reached conflicting conclusions about whether to apply the “any competent evidence” standard or the less deferential “against the clear weight of the evidence,” standard, the latter allowing the court to review the evidence in the course of the appeal.

The OK Court of Civil Appeals, Division 4, had applied the any-competent-evidence standard of review set forth in Parks.v. Norman Municipal Hospital, 1984.OK.53, to a March 4, 2011 injury, when 85.OSUP2010.3.6 authorized appellate courts to modify or reverse an order or award that “was against the clear weight of the evidence.”  

Though Williams Cos.v. Dunkelgod, 2012.OK.96 held workers’ compensation awards were to be reviewed by the standard of review in effect on the date of injury, Division 4 followed Westoak.v.DeLeon, 2013.OKAP.32, which had held that legislative standards of review for appellate courts violated the separation of powers.  Division 4 found the only judicial standard of review in effect at the time of injury was the any-competent-evidence standard.  Division 1 of the Court of Civil Appeals had reached the opposite conclusion from Westoak in Harvey.v.Auto Plus, 2012.OKAP.92.  

In KFC.v.Snell, 2014.OK.35, the OK Supreme Court had overruled Westoak and held that a legislative standard of review did not violate the separation of powers.  Nevertheless, the new standard of review seems to conflict with 85.OSUP2010.26, providing the decision of the Workers’ Compensation Court shall be final as to all questions of fact, a provision that is tantamount to the “any-competent-evidence test.”

The Supreme Court found the amendment to section 3.6 shows a clear intent by the Legislature to no longer limit appellate review in workers’ compensation cases to a search for competent evidence.  Under the “against the clear weight of the evidence” standard, identical to the standard of review for courts in equity, the appellate court should not lightly displace the judgment of the trial court, which heard the witnesses. The record will be examined and the evidence weighed, but the judgment will be affirmed unless it is clearly against the weight of the evidence.” The party seeking review must state clearly why the ruling is against the clear weight of the evidence, identify the evidence improperly weighed, and provide cogent argument why the “clear weight” of evidence supports a different finding.

The against-the-clear-weight-of-the-evidence standard of review applies to all injuries that occur during its effective period, including the injury here.  Reviewing appellate courts must show the same deference to the weighing of the evidence as the would show a court of equity.  The case is remanded for proceedings consistent with this opinion.

Carbajal.v.Precision Builders.2014.OK.62

In Carbajal, the OK Supreme Court reversed the findings of the Worker’s Compensation Court and Court of Civil Appeals that the compensation claimant was not an employee covered by worker’s compensation insurance.

Carbajal filed a claim for Workers’ Compensation Court alleging that he was an employee of Precision Builders when he fell from scaffolding on a job site. Lower courts determined claimant was an independent contractor and not an employee.

The Supreme Court held that whether claimant was an employee or an independent contractor is a jurisdictional issue which requires de novo review of the record without deference to the findings of fact or legal conclusions of lower tribunals.

 An independent contractor is one who agrees to perform work without control, supervision, or direction of his employer in all matters connected with the performance of the service except the result or product of the work. The evidence presented here does not sustain employer’s claim that the claimant worked entirely outside the control, supervision, or direction of Precision.

A workers’ compensation claimant has an initial burden of proving an injury occurred in the course of employment.  Claimant met his burden to show that he was an employee of Precision, and the lower courts contrary findings are erroneous.


In Chandler, the OK Supreme Court held that an insurer’s cancellation of a “claims made” policy violates the prohibition on retroactive annulment of a policy after an injury, death, or damage for which the insured may be liable, codified at 36.OS2011.3625.

After revocation of his medical license as a result of a surgically related death, the insured doctor cancelled his “claims made” malpractice policy and sought a refund of paid up premiums for the remaining year of the policy.  Insurer PLICO cancelled the policy, aware that the insured had been disciplined in connection with operating while under the influence.

After plaintiff’s personal representative settled a negligence claim with the doctor, she garnished PLICO for the unpaid portion of her claim.  PLICO denied coverage based on cancellation of the policy prior to the claim.  The trial court granted summary judgement to plaintiff’s estate, finding cancellation of the “claims made” policy violated the prohibition against retroactive cancellation of insurance following injury.

The Supreme Court affirmed.  A “claims made” policy provides coverage only triggered when an insured becomes aware of and notifies the insurer of either claims or occurrences that might give rise to such a claim during the policy period.  Occurrence liability policies, on the other hand, can cover claims made after the term of the contract, so long as the covered event occurred during the term.

Section 3625 prohibits retroactive annulment of an insurance contract “after the occurrence of injury, death, or damage for which the insured may be liable.”  The summary judgment materials show the insured offered, and PLICO accepted, an offer of cancellation with actual knowledge of events that would generate a wrongful death action against the insured. The agreement to cancel violated the statutory prohibition and was void.

At best, PLICO’s conduct indicates ignorance of the statutory prohibition; at worst, it suggests collusion with its insured to deprive the estate of coverage. The trial court properly granted summary judgment to the estate.


In Fisch, the OK Supreme Court granted a writ of prohibition and held that when a party is subject to a physical or mental examination requested by an adverse party, in connection with a claim or defense, the party is entitled under 12.OS20111.3235, to have a representative present and to videotape the physical or mental examination requested by the defendant.

Plaintiff sued Circle K for damages after an assault of their premises.  Circle K sought a neuropsychological exam of the plaintiff by its expert and to video/audio tape the exam.  Circle K objected, arguing it would invalidate the testing.  The trial court agreed and prohibited the representative from attending, and taping of the exam.

The OK Supreme Court held the above statute and its previous opinion in Boswell.v.Schultz.2007 OK 94, allow both a representative to be present and the right to video tape the examination, and apply to physical or mental exams under section 3235.  The trial court erred in denying plaintiff’s request to have his representative present and tape the exam, and the writ reversing its order is granted.

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