Oklahoma Bar Journal

The Unique Problems of a Tort Within a Tort

Charting a Way Forward for an Uncertain Area of Oklahoma Law

By Mbilike M. Mwafulirwa

#136148054 | © designer491 | fotolia.com

This article examines an important question of tort law – specifically, it asks who within our system of Oklahoma jurisprudence has the power to determine the value of a tort claim with personal injury undertones. For the run-of-the-mill meritorious civil case on the jury trial docket, the answer is straightforward – the jury.1

The same question, however, becomes more complicated and nuanced in legal malpractice tort claims. Legal malpractice claims are unique torts in that they present the dilemma of the “case within a case,”2 where the measure of damages is determined by the value of the underlying claim lost due to attorney error.3 To put that into perspective, if an attorney, for instance, misses the statute of limitations on a client’s workers’ compensation claim, in the subsequent malpractice suit, the measure of damages is the value of the lost recovery proximately caused by the malpractice.4

What is the rule when, for example, an attorney misses the statute of limitations in a motor vehicle personal injury action in which the tortfeasor’s liability policy limit is only $25,000 but the client’s bills and damages exceed the policy amounts? Can the defendant attorney simply tender the policy limits and then ask the court5 to limit the plaintiff’s damages to that amount? Or is there a requirement in Oklahoma that a plaintiff prove first that he would have collected more than the policy limits before the attorney is required to pay damages in excess of the liability limits? Finally, who should determine these questions? The judge or
the jury?

Thus far, Oklahoma does not have published cases addressing these issues in this specific context. What follows is a survey of the general corpus of relevant law and the competing policy concerns in an attempt to chart a way forward on these issues.

Recall our operative hypothetical for this analysis: client is involved in a vehicle collision in which a third-party is at fault. To prosecute his tort claim, client retains an attorney. After failing to resolve the claim with the third-party’s insurer through negotiations, the attorney should ordinarily file a lawsuit, but through neglect he misses the statute of limitations. Meanwhile, the client’s bills and damages have exceeded the third-party liability policy limits ($25,000). After discovering the attorney’s negligence and despite his active and malicious concealment of the error, the client files suit. To add to the twist, the third-party is no longer traceable; as such, it is unclear what, if any, assets the third-party has available to pay a judgment. Still, the client demands damages in excess of the third-party’s policy limits from the attorney because, in his view, the measure of damages is the value of the lost recovery caused by the malpractice. Among the attorney’s defenses is that under the circumstances – where it is unclear that more than the policy limits would have been recovered in the underlying suit – the client is not entitled to more than $25,000 unless he proves he would have been able to collect more.

A legal malpractice claim is a tort subject to all the usual negligence rules.6 Like every other negligence claim, the existence of duty is the threshold requirement in a legal malpractice case; without it, there can be no claim.7 Duty in a legal malpractice case is imposed, as a matter of law, when there is an attorney-client relationship.8 In addition to the existence of duty, a plaintiff must also prove a breach of that duty (with facts clearly depicting the negligence alleged), a causal link between the attorney’s negligence and the damages suffered, and finally, it must be shown that but for the lawyer’s negligent conduct, the underlying claim/defense would have succeeded.9

From the factual controversy presented in the hypothetical, client feels entitled to demand compensation in excess of the third-party’s policy limits from attorney because, in his view, the measure of damages is the value of the lost recovery caused by the malpractice.10 In fact, the client’s damages claim in this case is not only for medical bills paid11 but also for pain and suffering and possibly punitive damages.12 Indeed, from the previous recitation of the elements of a legal malpractice tort claim in Oklahoma,13 the client would appear to stand on solid ground in asking for all damages proximately caused by his former attorney’s legal malpractice because the Oklahoma Supreme Court has never expressly adopted a collectibility rule – i.e., a requirement that the amount of damages in a legal malpractice case be limited to those that could have been collected after judgment.14 Against this background and in the absence of a specific legal rule from the Legislature or the Oklahoma Supreme Court to the contrary, it would be entirely reasonable for the client to expect the default rule for negligence claims to apply: that the jury would determine the value of his claim, especially one (such as his) where pain and suffering are principally at issue.15

As expected, the defendant lawyer would counter the client’s position in favor of a collectibility rule. The usual starting point for any party contesting the amount of tort damages is the rule that an award may not be based on speculation or conjecture.16 Defendant lawyer would likely further support his position by arguing that the Oklahoma Supreme Court has held that a plaintiff must prove the damages that he would have recovered but for the negligence.17 However, is this the same as having to prove the amounts the client would have collected from a subsequent judgment? Defendant attorney would most likely argue so, citing a number of jurisdictions that have taken that position.18 Those jurisdictions hold that a plaintiff must not be permitted to recover a windfall from the defendant attorney.19 In those jurisdictions, proving collectibility is part of proximate cause and damages.20

However, not all jurisdictions agree. Some of the cases cut the other way in favor of the plaintiff’s position.21 Those jurisdictions initially hold that their prima facie requirements for legal malpractice do not contain a collectibility requirement.22 In turn, those jurisdictions place the burden of proving collectibility on a defendant, in part, because the legal malpractice action is often brought years after the original tort due to the attorney’s wrongdoing.23 This lapse of time, those jurisdictions reason, presents unique problems for the prospective plaintiff: 1) the passage of time militates against a collectibility burden because – as the hypothetical in this case shows – the original tortfeasor’s solvency might change to insolvency during the pendency of the litigation;24 2) in today’s litigation landscape where settlement is the norm, the attorney defendant’s error costs the plaintiff the possibility of an early compromise;25 and 3) the defendant attorney’s fault often means that subsequent trial counsel has to seek after stale evidence.26 Finally, those courts also recognize the intrinsic value of a judgment for assignment and marketability purposes.27 Yet still, other courts, in addition to these factors, consider collectibility as an avoidance defense that a defendant bears the burden of proof.28

We begin with the established principles. The “case within a case”29 analytical model ensures that generally no party in a subsequent legal malpractice lawsuit may gain an advantage it would not have had in the original suit.30 In Bloustine v. Fagan, for example, an attorney missed the deadline for perfecting an appeal with the Oklahoma Supreme Court in a divorce proceeding.31 During the subsequent malpractice action, the trial court, in place of the jury, determined that the appellant’s appeal would not have been successful.32 The Oklahoma Court of Appeals affirmed because 1) both factual and legal issues in a divorce proceeding are decided exclusively by a judge, not a jury; 2) any appeal from those issues is decided by an appellate court; and 3) as such, it would have been legal error for a lay jury to decide those appellate issues in a subsequent malpractice action.33 Indeed, as that court noted:

We see no reason why a malpractice plaintiff should be able to bootstrap his way into having a lay jury decide the merits of the underlying `suit within a suit’ when, by statute or other rule of law, only an expert judge could have made the underlying decision. It is illogical, in effect, to make a change in the law’s allocation of responsibility between judge and jury in the underlying action when that action is revisited in legal malpractice actions and thereby distort the `suit within a suit’ analytic model.34

In the same way, it could be argued that it is illogical to upset the “suit within a suit” model in favor of a collectibility rule under these circumstances. In the underlying tort claim, if the client presented evidence of pain and suffering (which on these facts he would be able to as his condition was medically catalogued in the medical records), the quantum of those damages would not be subject to mathematical exactitude nor be limited by the defendant’s solvency; rather the jury would have exclusive discretion in fixing the appropriate amount.35 As such, the same model of trial – where the jury ultimately determines the value of a tort claim without regard to the defendant’s solvency – should carry through in a legal malpractice suit; otherwise it would be unfair and impermissible to “make a change in the law’s allocation of responsibility between judge and jury in the underlying action when that action is revisited in legal malpractice actions and thereby distort the `suit within a suit’ analytic model.”36 Furthermore, in the underlying action, the jury would have assessed the value of plaintiff’s personal injury action without regard to the $25,000 policy limits because in Oklahoma injecting the existence or terms of a policy of insurance is generally grounds for a mistrial.37

Likewise in the malpractice action, the jury should determine the value of the claim without regard to any policy of insurance or its limits.38 Additionally, if the amount of damages had exceeded the policy limits, the plaintiff would have had an opportunity to pursue the deficit from the tortfeasor.39 When a tort claim against a third-party tortfeasor is lost due to an attorney’s negligence, the client loses the opportunity to collect the full measure of his damages.40 In the subsequent malpractice action, the client’s claim should be pursued and evaluated on the same terms as it would have been if the underlying action had been properly filed and prosecuted.41 That, in turn, brings us to the all-important question: what is the value of the client’s lost opportunity?

From the preceding analysis, this should be a question for the fact finder. In this state, the jury ordinarily determines the value of a claim and its various incidents.42 The jury is well suited to make this valuation because, historically, ascertaining uncertain factual questions is what juries do.43 For example, what’s one person’s pain and suffering worth? What about the value of a wrongfully ended life? What is that worth? As noted, historically, juries have routinely placed values on these uncertain variables.44 Moreover, like other jury damages evaluations, the courts retain the power to evaluate the jury’s damages award for excessiveness.45

Could this question ever become one for the judge? It can, depending on the procedural posture of the case. Suppose a jury trial case is in its pretrial posture, could this question – of the value of the lost opportunity to recover from the original tortfeasor – ever become one for the judge? Probably yes. In Oklahoma, summary judgment (partial or full) settles only questions of law.46 A question becomes one of law when there are no disputed material factual questions47 or if the undisputed facts invite only a single inference.48 Only then should the question be presented to the judge at the pretrial stage.49 In the specific context of this problem, the undisputed facts would have to show the client could not have possibly collected against the original tortfeasor in the underlying tort claim for the issue to be decided at summary judgment.50

Who should have the burden of proof? Neither Oklahoma statutes nor case law address this issue. As noted, the Oklahoma prima facie elements of a legal malpractice claim do not expressly contain a collectibility element, nor do they address the burden of proof on the issue.51 The default rule under the Oklahoma Pleading Code is that a party asserting an “avoidance” must raise it as an affirmative defense.52 An “avoidance” under the Oklahoma Pleading Code means an assertion that, if proven, defeats a claim even if all the allegations in the petition are true.53 In other words, if, for example, a party asserts that regardless of whether liability was established against him, he should not have to pay (some or all) the damages because plaintiff failed to mitigate his losses, that is an avoidance that must be pled and proved affirmatively.54 In similar fashion, when a defendant raises the collectibility issue, he in essence asserts that, notwithstanding his legal error, plaintiff is not entitled to (some or all) the damages claimed because he could not have collected in the underlying claim.55 In doing so, the defendant is understood as seeking a reduction or elimination of damages.56 Under those circumstances, Oklahoma law generally places the burden of pleading and proving the reduction or elimination of damages on the party claiming it.57

Public policy and fairness also play a part in determining the burden of proof.58 An important aspect of fairness and policy requires a court to ensure that a plaintiff will not be unfairly surprised by a later assertion of a defense.59 If a matter is already set out within the four corners of a petition, there is generally no need for that issue to be affirmatively pleaded again by a defendant,60 but if a matter is not embraced within the petition and a defendant wants it addressed, he must raise it as an issue and prove it.61 As previously noted, in Oklahoma, the prima facie elements of a legal malpractice action do not contain a collectibility element.62 So it follows, likewise, if a defendant wants to raise collectibility, he should raise and prove it.63

Against this background, a judge could not categorically summarily determine noncollectibility. As the hypothetical shows, there would likely be factual questions regarding the third-party tortfeasor’s ability to pay because; 1) the third-party tortfeasor is no longer available and even then, it is not clear that he does not have assets and 2) nor is it beyond contention that he has no ability to pay any portion of a judgment. Viewing the facts in the light most favorable to client – the party resisting summary judgment64 – the record does not unequivocally support a single inference of noncollectibility; it is possible to also infer collectibility. Thus, it follows, that probably summary judgment could not be granted on this record.65

Under Okla. Const. Art. 2 §19, the right to trial by jury is inviolate.66 That right “cannot be annulled, obstructed, impaired, or restricted by legislative or judicial action.67 Based on this constitutional imperative, juries decide factual questions while those of law are for the court.68 Viewed in this vein, in addition to what was noted before, the measure of damages in a personal injury action is generally exclusively within the province of the jury.69 To the extent that a court were to withdraw that question from the jury and determine it itself, especially if there were disputed factual questions, that would be an impermissible exercise of judicial power.70

The fact that other jurisdictions possibly permit judges to withdraw this determination from the jury is unavailing. Our constitutional traditions are different. As the Oklahoma Supreme Court has stated: “[T]he Oklahoma constitution is a unique document…[s]ome of its provisions are unlike those in the constitutions of any state, and some are more detailed and restrictive than those of other states.”71 Thus, to unwittingly import other jurisdictions’ practices here would surely run afoul of our constitution, especially in the specific context outlined in this essay.72

Because Oklahoma law permits judges (without juries) to fix the amount of financial responsibility in certain actions without offending the right to a jury trial does not carry the day here. In family proceedings and workers’ compensation claims, for example, judges (without juries) can fix the amount of financial recovery.73 The comparison of those instances to the situation at hand here is inept. The right to a jury trial under Okla. Const. Art. 2 §19 is understood and applied as it existed at common law in the several American territories.74 Against that backdrop, the domestic relations cases should be considered; those proceedings are equitable in nature,75 such that there is generally no right to a jury trial, so the judge is the fact finder.76 The flaw of the comparison between a domestic relations case to the situation at hand should be readily apparent. The comparison to workers’ compensation claims is likewise wrong. Workers’ compensation claims must be understood within the context of the grand bargain between employers and employees under which the Legislature, in exercise of its police powers, took away an injured worker’s tort claim and the employer’s common law tort defenses and merged them into a single “statutory indemnity fixed and certain.” 77 It is the combination of the police powers and the existence of the grand bargain that ensures that the Legislature’s handiwork passes constitutional muster.78 No such similar considerations apply here.

The tort-within-a-tort case model invites complexity. A single case is challenging enough and the added layer of the prior case adds to the challenge, especially when the mode of trial itself in the subsequent case is at issue, as well as the appropriate measure of damages. A run-of-the-mill personal injury malpractice claim with no collectibility concerns is more straightforward: the jury simply decides the damages. Not so in a personal injury claim where the right to collect is questionable. The law is unclear. Unless a different rule is promulgated, the fallback answer should be as it is in most civil cases – the jury should decide.

Mbilike M. Mwafulirwa is an attorney at Brewster & DeAngelis PLLC. Mr. Mwafulirwa’s practice focuses on general litigation, civil rights and appellate law. He is a 2012 graduate of the TU College of Law.

1. See Okla. Const. art. 2 §19 (there is a right to a jury trial in civil cases over $1,500); Okla. Stat. Tit. 12 §590 (When “either party is entitled to recover money of the adverse party the jury, in their verdict, must assess the amount of recovery.”) (emphasis added); Y&Y Cab Co. v. Smith, 1955 OK 319, ¶21, 289 P.2d 964, 967 (“There can be no absolute standard to measure damages for personal injuries and a wide latitude of discretion is necessarily left to the good sense and discretion of the jury which fixes the award.”).
2. Nicholas v. Morgan, 2002 OK 88, ¶14, 58 P.3d 775, 781.
3. Id. (citing Allred v. Rabon, 1977 OK 216, 572 P.2d 979).
4. See id.
5. Possibly through the mechanism of offer of judgment and partial summary judgment, Rule 13 Rules of Oklahoma District Court Rules, the attorney could request the trial court to limit damages. See, e.g., Reams v. Tulsa Cable Television, Inc., 1979 OK 171, ¶3, 604 P.2d 373, 374 (“partial summary judgment is explicitly authorized by Rule 13.”); Okla. Stat. Tit. 12 §1101 (Oklahoma law for written offer(s) of judgment).
6. Collins v. Wanner, 1963 OK 127, ¶18, 382 P.2d 105, 108 (citations omitted).
7. Norton v. Hughes, 2000 OK 32, ¶11, 5 P.3d 588, 591; Trinity Baptist Church v. Brotherhood Mut. Ins. Servs., LLC, 2014 OK 106, ¶21, 341 P.3d 75, 82.
8. See Funnell v. Jones, 1985 OK 73, ¶6, 737 P.2d 105, 108.
9. Manley v. Brown, 1999 OK 79, ¶8, 989 P.2d 448, 452.
10. See Nicholas, 2002 OK 88, ¶14, 58 P.3d at 781; Denco Bus Lines v. Hargis, 1951 OK 11, ¶26, 229 P.2d 560, 564 (“[U]pon commission of a tort it is the duty of the wrongdoer to answer for the damages wrought by his wrongful act and that is measured by the whole loss so caused.”) (emphasis added).
11. Under Okla. Stat. Tit. 12 §3009.1 actual damages for medical bills in personal injury claims are limited to the amounts paid, not incurred. See Lee v. Bueno, 2016 OK 97, ¶1, 381 P.3d 736, 739.
12. See discussion of claimed damages in hypothetical, supra.
13. Manley, 1999 OK 79, ¶8, 989 P.2d at 452.
14. See id.
15. When pain and suffering at issue in a personal injury lawsuit, the jury usually takes center stage as the final arbiters of the value of these claims. See, e.g.Smith, 1955 OK 319, ¶21, 289 P.2d at 967 (“There can be no absolute standard to measure damages for personal injuries and a wide latitude of discretion is necessarily left to the good sense and discretion of the jury which fixes the award.”).
16. Cities Service Co. v. Gulf Oil Corp., 1999 OK 14, ¶38, 980 P.2d 116, 134.
17. See Nicholas, 2002 OK 88, ¶14, 58 P.3d at 781.
18. See Michael P. Cross, et al., “Your Place or Mine?: The Burden of Proving Collectibility of an Underlying Judgment in a Legal Malpractice Action, 91 Denv. U. L. Rev. 53, 57 (2014) (collecting cases).
19. Id.
20. Id. (citing McKenna v. Forsyth & Forsyth, 720 N.Y.S.2d 654, 658 (N.Y. App. Div. 2001)). Interestingly, in Oklahoma, proximate cause in negligence actions “is generally a fact question for the jury.” Fargo v. Hays-Kuehn, 2015 OK 56, ¶16, 352 P.3d 1223, 1228.
21. Michael P. Cross, et al., “Your Place or Mine?”, supra note 18, at 58 (collecting cases).
22. Id.
23. Smith v. Haden, 868 F.Supp. 1, 2 (D.D.C. 1994); Hoppe v. Ranzini, 385 A.2d 913, 919 (N.J. App. Div. 1978).
24. See Hoppe, 385 A.2d at 919.
25. Smith, 868 F.Supp. at 2.
26. Michael P. Cross, et al., “Your Place or Mine?”, supra note 18, at 59 n. 40 (quoting Jenkins v. St. Paul Fire & Marine Ins. Co., 422 So.2d 1109, n.2 (La. 1982)).
27. Id. at 59 n. 42 (citations omitted); see also Hoppe, 385 A.2d at 919.
28. See Jourdain v. Dineen, 527 A.2d 1304, 1306 (Me. 1987).
29. Nicholas, 2002 OK 88, ¶14, 58 P.3d at 781.
30. See Bloustine v. Fagin, 1996 OK CIV APP 122, ¶¶3-5, 928 P.2d 964, 965. But see Carbis Sales, Inc. v. Eisenberg, 935 A.2d 1236, 1249 (N.J. App. Div. 2007) (noting that a flexible approach is needed for cases in which the malpractice plaintiff was the defendant in the initial case because to require him to fully act like a plaintiff when he was originally a defendant is “awkward and impracticable.”).
31. Bloustine, 1996 OK CIV APP 122, ¶¶1-3, 928 P.2d at 965.
32. Id.
33. Id.
34. Id. ¶5, 928 P.2d at 965 (emphasis added) (quoting Harline v. Barker, 912 P.2d 433, 440 (Utah 1996)).
35. Smith, 1955 OK 319, ¶21, 289 P.2d at 967; Yellow Cab Op. Co. v. Spelce, 1936 OK 597, ¶0, Syllabus by the Court, 61 P.2d 672, 672 (“There can be no absolute standard to measure damages for personal injuries and a wide latitude of discretion is necessarily left to the good sense and discretion of the jury which fixes the award.”).
36. Bloustine, 1996 OK CIV APP 122, ¶5, 928 P.2d at 965 (emphasis added).
37. Redman v. McDaniel, 1958 OK 276, ¶16, 333 P.2d 500, 503.
38. Cf. Bloustine, 1996 OK CIV APP 122, ¶5, 928 P.2d at 965 (quoting Harline, 912 P.2d at 440).
39. See Okla. Stat. Tit. 47 §7-103(3); Okla. Stat. Tit. 23 §3 (“Any person who suffers detriment from the unlawful act or omission of another, may recover from the person in fault a compensation therefor in money, which is called damages.”); see also id. §§61, 61.1, 68.1.
40. Nicholas, 2002 OK 88, ¶14, 58 P.3d at 781.
41. Cf. Bloustine, 1996 OK CIV APP 122, ¶5, 928 P.2d at 965 (quoting Harline, 912 P.2d at 440).
42. See Okla. Stat. Tit. 12 §590 (When “either party is entitled to recover money of the adverse party the jury, in their verdict, must assess the amount of recovery.”) (emphasis added).
43. Pearson v. Hope Lumber & Supply Co., 1991 OK 112, ¶4, 820 P.2d 443, 444 (questions of law are for the court, while those of fact are for the jury).
44. See, e.g.Smith, 1955 OK 319, ¶21, 289 P.2d at 967; Yellow Cab Op. Co. v. Spelce, 1936 OK 597, ¶0, Syllabus by the Court, 61 P.2d at 672 (“There can be no absolute standard to measure damages for personal injuries and a wide latitude of discretion is necessarily left to the good sense and discretion of the jury which fixes the award.”).
45. Estrada v. Port City Prop., Inc., 2011 OK 30, ¶35, 258 P.3d 495, 508.
46. Horton v. Norton, 2015 OK 6, ¶8, 345 P.3d 357, 360 (“Summary judgment settles only questions of law.”).
47. See In re King, 1970 OK 181, ¶15, 476 P.2d 72, 74; see also Miller v. Bourne, 1953 OK ¶0, 256 P.2d 431, 431 (“If there is no controversy over the facts, or if the facts are conceded, then it becomes a pure question of law for the court…”).
48. See Jackson v. Jones, 1995 OK 131, ¶5, 907 P.2d 1067, 1071.
49. See, e.g., Horton, 2015 OK 6, ¶8, 345 P.3d at 360 (“Summary judgment settles only questions of law.”).
50. See, e.g., id.
51. See Manley, 1999 OK 79, ¶8, 989 P.2d at 452.
52. See Okla. Stat. Tit. 12 §2008(c)(20) (a party asserting an “avoidance” must raise it as an affirmative defense).
53. Craft v. Bates, 1962 OK 122, ¶5, 372 P.2d 10, 12 (citations omitted) (“The general rule of pleading is that defenses which assume or admit the original cause of action alleged but are based upon subsequent facts or transactions which go to qualify or defeat it, must be pleaded.”); see also Black’s Law Dictionary 482 (9th ed. 2009) (An affirmative defense is a “[d]efendant’s facts and arguments that, if true, will defeat the plaintiff’s or prosecution’s claim, even if all the allegations in the complaint are true.) (emphasis added).
54. Cons. Cut Stone Co. v. Seidenbach, 1937 OK 701, ¶32, 75 P.2d 442, 451.
55. See Michael P. Cross, et al., “Your Place or Mine?”, supra note 18, at 58-59.
56. Id.
57. Cities Servs. Co. v. Gulf Oil Corp., 1999 OK 14, ¶38, 980 P.2d 116, 134 (“Inherent in the delineated probative process is the requirement that a defendant ascribe value to the matters offered in reduction.”); Pine v. Bradley, 1940 OK 174, ¶6, 101 P.2d 799, 801 (“The duty of pleading and the proof necessary on each is the same substantially.”).
58. Because §2008 (c) is “identical” to Fed. R. Civ. P. 8(c), federal law is very instructive. See Okla. Adv. Cmt. Notes to §2008 (c). In that regard, federal cases make clear that public policy and fairness are important considerations. See 5 Wright & Miller Fed. Prac. & Proc. Civ. §1271 (April 2017 Update) (“[R]esort often must be had to considerations of policy, fairness and in some cases probability.”).
59. In re Zagg Inc. Shareholder Deriv. Act., 826 F.3d 1222, 1231 (10th Cir. 2016).
60. 5 Wright & Miller Fed. Prac. & Proc. Civ. §1271 n. 78; In re Zagg, 826 F.3d at 1231.
61. 5 Wright & Miller Fed. Prac. & Proc. Civ. §1271; Colton v. Huntleigh USA Corp., 2005 OK 46, ¶10, 121 P.3d 1070, 1073 (“The burden of proof as to any particular facts rests upon the party asserting such fact.”).
62. See Manley, 1999 OK 79, ¶8, 989 P.2d at 452.
63. 5 Wright & Miller Fed. Prac. & Proc. Civ. §1271; Colton, 2005 OK 46, ¶10, 121 P.3d at 1073 (“The burden of proof as to any particular facts rests upon the party asserting such fact.”).
64. Fargo, 2015 OK 56, ¶12, 352 P.3d at 1227.
65. Iglehart v. Bd. of Cnty. Comm’rs of Rogers Cnty., 2002 OK 76, ¶9, 60 P.3d 497, 501 (“[T]o avoid trial for negligence, defendants must establish through unchallenged evidentiary materials that, even when viewed in a light most favorable to plaintiffs, no disputed fact exist as to any material issues and that the law favors defendants.”) (emphasis added).
66. Seymour v. Swart, 1985 OK 9, ¶5, 695 P.2d 509, 511.
67. Id. (emphasis added).
68. Pearson, 1991 OK 112, ¶4, 820 P.2d at 444.
69. See Okla. Stat. Tit. 12 §590; Smith, 1955 OK 319, ¶21, 289 P.2d at 967.
70. Seymour, 1985 OK 9, ¶5, 695 P.2d at 511.
71. Wall v. Marouk, 2013 OK 36, ¶4, 302 P.3d 775, 779.
72. Seymour, 1985 OK 9, ¶5, 695 P.2d at 511(a court cannot intrude on the jury’s fact-finding role).
73. See, e.g., Okla. Stat. Tit. 43 §§114-120;129 (child support); Henley v. Henley, 1967 OK 115, ¶7, 428 P.2d 258, 260 (alimony); Okla. Stat. Tit. 85A §§45-46 (workers’ compensation).
74. Hamil v. Walker, 1979 OK 172, 3, 604 P.2d 377, 378.
75. See Harvey D. Ellis, Jr., Clyde A. Muchmore, 5 Okla. Prac. App. Prac. §15:110 (December 2017 update) (“Domestic relations cases are of equitable cognizance…”) (citations omitted).
76. In re Bank of Earlsboro, 1964 OK 97, ¶4, 391 P.2d 887, 888.
77. Gibby v. Hobby Lobby Stores, Inc., 2017 OK 78, ¶9, 404 P.3d 44, 47.
78. Id. This essay does not discuss any limitations placed on damages by the Legislature because the collectibility rule is not statutorily enacted, so that discussion is beside the point here.


Originally published in the Oklahoma Bar Journal -- OBJ 89 pg. 10 (November 2018)