exclusion defense in Oklahoma

2006See also Wisdom v. State, 1996 OK CR 22, ¶ 44 , 918 P.2d 384, 396 ; Morgan v. District Court of Woodward County, 1992 OK CR 29, ¶ 8 , 831 P.2d 1001, 1005 .

2006See also Wisdom v. State, 1996 OK CR 22, ¶ 44 , 918 P.2d 384, 396 ; Morgan v. District Court of Woodward County, 1992 OK CR 29, ¶ 8 , 831 P.2d 1001, 1005 .

2006Although the criminal discovery code provides for exclusion of evidence as a sanction for non-compliance, this Court has found in several capital cases that the exclusion of a defense witness was “too severe a sanction.” See Allen v. State, 1997 OK CR 44, ¶ 11 , 944 P.2d 934, 937 .

2006Although the criminal discovery code provides for exclusion of evidence as a sanction for non-compliance, this Court has found in several capital cases that the exclusion of a defense witness was “too severe a sanction.” See Allen v. State, 1997 OK CR 44, ¶ 11 , 944 P.2d 934, 937 .

2004In reversing, the Court quoted with approval a Florida case involving a similar clause: “the exclusion clause here is an invalid restriction because it is not the intent of the statute to limit coverage to an insured by specifying his location or the particular vehicle he is occupying at the time of injury.” Id. at ¶ 9 (quoting Travelers Indemnity Co. v. Powell, 206 So.2d 244 (Fla.App.1968)). ¶ 10 On the other hand, the Court held the exclusionary language under consideration in Shepard v. Farmers Ins.

2004Co., Inc., 1983 OK 103 , 678 P.2d 250 , did not violate § 3636.

2004Co., Inc., 1983 OK 103 , 678 P.2d 250 , did not violate § 3636.

1976The court said: “The Powells contend, and we agree, that the exclusion clause here is an invalid restriction because it is not the intent of the statute to limit coverage to an insured by specifying his location or the particular vehicle he is occupying at the time of injury.” (Emphasis original) The Louisiana Supreme Court in Elledge v. Warren, 263 So.2d 912 (La.App.1972), held a similar exclusionary clause void and stated: “There is no requirement in the statute that the insured have any relation, at the time of the accident, with any vehicle he owns and that is insured with the insurer.

1974“Thus, in accordance with the rules of law set out herein, the language of the exclusion clause and the stipulations of record, we are compelled to hold that the claim filed by appellee clearly comes within the exclusion ‘as the result of an accidental bodily injury which does not arise out of or in the course of employment.’ . . .” In Kosick v. Hospital Service Corp., supra, the subject policy contained the following provision: “ ‘Hospital service’ does not include the following: “Care of injuries or diseases for which the Member is entitled to hospital care, or for which he receives any awar

1969The exclusion clause was even more restrictive than in McDaniel, supra. The court found insured’s death did not result from injuries sustained while in or on, falling with or from, or while operating or handling an airplane, and the exclusion clause did not bar liability.

1969The exclusion clause of the policy does not apply to this case.” The same result was reached in Eschweiler v. General Acc. Fire & Life Assurance Corp. (CCA7) 241 F.2d 101 , wherein the insurer appealed from a judgment for beneficiary in an action for death benefits.

1966See extensive Notes 71 A.L.R.2d 959 ; 47 A.L.R.2d 550 ; 7 Amer.Juris. 2d, § 125, “Automobile Insurance”, pp. 444, 5.

1966The second case is McCree v. Jennings, 55 Wash.2d 725 , 349 P.2d 1071 , wherein the facts are as follows : Miller, whose primary occupation was that of barber was also engaged in the business of repairing automobiles at his home in spare time.

1966The second case is McCree v. Jennings, 55 Wash.2d 725 , 349 P.2d 1071 , wherein the facts are as follows : Miller, whose primary occupation was that of barber was also engaged in the business of repairing automobiles at his home in spare time.

1966The first is La-Felt v. Nasarow, 71 N.J.Super. 538 , 177 A.2d 315 , wherein the court held that one who was regularly employed as a truck driver and mechanic but outside of working hours repaired automobiles for parties other than his employer was not engaged in the automobile business within the exclusion clause of an insurance policy, excluding covering to one engaged in the automobile business.

1966The first is La-Felt v. Nasarow, 71 N.J.Super. 538 , 177 A.2d 315 , wherein the court held that one who was regularly employed as a truck driver and mechanic but outside of working hours repaired automobiles for parties other than his employer was not engaged in the automobile business within the exclusion clause of an insurance policy, excluding covering to one engaged in the automobile business.

1961Co. [7 Cir.] (C.C.A.) 83 F.2d 45 .” The rule to be applied is that even though the contract of insurance does not contain the exclusion clause as to disability or disease it is still the duty of the plaintiff to prove that the insured has suffered the injury directly and independently of all other causes solely through external, violent and accidental means.

1960The trial court erred in denying the motion for judgment notwithstanding the verdict.” More authority for such construction is to be found in the case of Pacific Indemnity Co. v. Harrison, Tex.Civ.App., 277 S.W.2d 256 .

1957Co., etc., v. Farmers’ Union Co-op Gin Co., 181 Okl. 370 , 73 P.2d 1155, 1156 , holds: “In an accident policy wherein the risk assumed by the insurer is limited to disabilities resulting solely from accidental means, directly or independently of all other causes, and excluding disabilities caused directly or indirectly, wholly or partly, from disease, the contract is the measure of 'the liability; such a provision is binding, and in an action on the policy wherein the uncontradicted evidence is that the disability was the concurrent result of accident and pre-existing disease, verdict and judg

1957Co., etc., v. Farmers’ Union Co-op Gin Co., 181 Okl. 370 , 73 P.2d 1155, 1156 , holds: “In an accident policy wherein the risk assumed by the insurer is limited to disabilities resulting solely from accidental means, directly or independently of all other causes, and excluding disabilities caused directly or indirectly, wholly or partly, from disease, the contract is the measure of 'the liability; such a provision is binding, and in an action on the policy wherein the uncontradicted evidence is that the disability was the concurrent result of accident and pre-existing disease, verdict and judg

1957Such occurrences are not accidental and, therefore, not covered by the Workmen’s Compensation Law, [85 O.S.1951 § 1 et seq.], Oklahoma Leader Co. v. Wells, 147 Okl. 294, 296 , P. 751; National Biscuit Co. v. Lout, 179 Okl. 259 , 65 P.2d 497 . * * * Under the claimant’s testimony — * * the finding that an accident occurred was based on conjecture. * * *713 If the evidence' had been sufficient in the present case to justify a finding that the insured suffered a bodily injury through accidental means the plaintiff still would not be entitled to recover under the policy and the evidence, because t

1957Such occurrences are not accidental and, therefore, not covered by the Workmen’s Compensation Law, [85 O.S.1951 § 1 et seq.], Oklahoma Leader Co. v. Wells, 147 Okl. 294, 296 , P. 751; National Biscuit Co. v. Lout, 179 Okl. 259 , 65 P.2d 497 . * * * Under the claimant’s testimony — * * the finding that an accident occurred was based on conjecture. * * *713 If the evidence' had been sufficient in the present case to justify a finding that the insured suffered a bodily injury through accidental means the plaintiff still would not be entitled to recover under the policy and the evidence, because t

1957Such occurrences are not accidental and, therefore, not covered by the Workmen’s Compensation Law, [85 O.S.1951 § 1 et seq.], Oklahoma Leader Co. v. Wells, 147 Okl. 294, 296 , P. 751; National Biscuit Co. v. Lout, 179 Okl. 259 , 65 P.2d 497 . * * * Under the claimant’s testimony — * * the finding that an accident occurred was based on conjecture. * * *713 If the evidence' had been sufficient in the present case to justify a finding that the insured suffered a bodily injury through accidental means the plaintiff still would not be entitled to recover under the policy and the evidence, because t

1952As supporting this proposition he also cites Leonora National Bank v. Ragland, 128 Ky. 548 , 108 S. W. 854 ; Brown v. First National Bank of Douglas County, 49 Colo. 393 , 113 P. 483 , and other cases from other jurisdictions.

1952As supporting this proposition he also cites Leonora National Bank v. Ragland, 128 Ky. 548 , 108 S. W. 854 ; Brown v. First National Bank of Douglas County, 49 Colo. 393 , 113 P. 483 , and other cases from other jurisdictions.

1952As supporting this proposition he also cites Leonora National Bank v. Ragland, 128 Ky. 548 , 108 S. W. 854 ; Brown v. First National Bank of Douglas County, 49 Colo. 393 , 113 P. 483 , and other cases from other jurisdictions.

1952As supporting this proposition he also cites Leonora National Bank v. Ragland, 128 Ky. 548 , 108 S. W. 854 ; Brown v. First National Bank of Douglas County, 49 Colo. 393 , 113 P. 483 , and other cases from other jurisdictions.

1952The defendant, however, calls attention to the fact that this court held in Knox and Shouse v. Knox, 120 Okla. 45 , 250 P. 783 , that “a partner may be considered to be an employee”, although it makes no effort to show wherein said-cited case is applicable to the facts presented here.

1952The defendant, however, calls attention to the fact that this court held in Knox and Shouse v. Knox, 120 Okla. 45 , 250 P. 783 , that “a partner may be considered to be an employee”, although it makes no effort to show wherein said-cited case is applicable to the facts presented here.