Why We are All Insurance Lawyers

By Paul Kouri

Some have said that insurance law should be a required course in law school because it touches so many areas of legal practice. This article aims to convey that point: every attorney – no matter their preferred practice area – should also understand how insurance affects their practice.

This article focuses primarily on the intersection of insurance law with a personal injury practice, because that intersection vividly illustrates the point, but insurance law is equally important to other practice areas. After surveying personal injury law and its connection to insurance law, the article briefly outlines some of the more obvious intersections with other practice areas – to show the current law student, newly licensed attorney, or seasoned lawyer seeking to change practice areas that each year’s bar journal insurance issue is a valuable resource and an invitation for you to join us “insurance lawyers” at the next insurance CLE.

PERSONAL INJURY AND INSURANCE – LIKE PEAS AND CARROTS

Personal injury and insurance law go together so well because an uninsured tort claim is generally an uncollectible tort claim. The well-rounded personal injury lawyer therefore learns how to submit and collect an insurance claim as well as how to plead – and practice into insurance coverage when litigating.

The basic premise of pleading into coverage is that a petition should be drafted to trigger the duty of the defendant’s liability insurer to defend the defendant and, more importantly (for the injured party), to pay the loss. The simplest way to plead into coverage is to plead negligence as opposed to intentional acts. Such negligence may be on the part of the party who directly caused the injury, or you may need to add claims of negligence on the part of some other party or entity who should have prevented the harm. The reason we generally plead negligence is that intentional acts are (for the most part) not insurable acts. So while it can look sexy to the client when we allege that their motor vehicle accident was an aggressive act of road rage, that sounds very much like an uninsurable intentional act.[1] Usually the better practice will be to plead negligence – even gross negligence – as such conduct is insurable conduct.[2] The devastating consequences of drunk driving, by contrast to the road rage cases, are usually considered accidental (or gross negligence) such that allegations and proof of drunk driving will not prevent insurance coverage.[3] But these are the subtle distinctions learned along the way of your personal injury practice as that practice rubs against the realities of insurance law.

But what about claiming that the consequences of an intentional act were unintended and thus were insurable acts? While it used to be that the concept of transferred intent from criminal law had no place in Oklahoma insurance law,[4] the modern rule is that the natural and foreseeable consequences of an intentional act cannot generally be considered “accidental” for purposes of determining insurance coverage.[5] So again, the better practice is to couch your claims in terms of negligence.

All of the above is premised on the longstanding rule that insurance only covers “accidental” or “fortuitous” events – as those events are viewed from the perspective of the insured person.[6] Because of the requirement of a fortuitous event, for instance, attorneys who sue for intentional acts of nursing home abuse or school or counselor abuse, for instance, always find a way to join the employer or some other person or entity that may potentially be held liable either vicariously (assuming the bad acts fall within the scope of employment) or for negligently failing directly in some manner to prevent the harmful incident. This is because a claim that is uncollectible against the intentional actor may nonetheless be collectible against his or her employer (or any other person or entity who owed a legal duty yet failed to act reasonably to protect the public from such misconduct).

Having done your best to plead into coverage at the outset, it is then important to obtain a copy of all available insurance policies as soon as possible to review for a need to amend the pleadings, ensuring that you really have pled into the specific coverage. Consider a case where the policy has separate coverage sections and separate policy limits for sexual assault and ordinary nursing home abuse (e.g., failure to protect against ordinary harms associated with such care such as falls, bed sores, or malnutrition). After a review of such a policy, the attorney may need to amend the petition to make clear that the claims involve both sexual assault and failures to provide good care, thereby gaining potential access to two separate coverage limits – which can make the difference in achieving a decent settlement on a difficult case.

Sometimes the opposite problem is present. For instance, the petition may have focused on sexual misconduct but the insurance policy obtained in discovery shows a broad exclusion for all claims “related to” or “arising from” sexual or other acts of intentional abuse. Such “arising from” language will broadly apply to all claims for such misconduct including even the claims against the employer directly for negligent hiring and retention. It may be possible though to amend to focus on allegations of nonsexual touching and public humiliation (which are at least arguably covered under persuasive legal authority); this may also require adding additional detail regarding legitimate but more “mundane” violations of state and federal statutes or general negligence rules concerning nursing home care because such claims should be covered despite the broad exclusion. Again, such pleading subtleties may permit the resolution of a claim that is otherwise an uninsured claim that may ultimately be bankrupted or otherwise uncollectible from the defendant or defendants.

Another area where careful pleading can be important is with dog bite cases. While it sounds delightfully alarming to allege that the plaintiff was mauled by a vicious pitbull terrier, many homeowners’ insurance policies now exclude bites by certain breeds; pitbulls always make such lists, sometimes alongside Rottweilers, Akitas, and other specified breeds).[7] For this reason, it is probably best to avoid naming breeds to let the insurance company attempt to nail down its own exclusion. Similar pleading concerns arise with premises liability and motor vehicle claims (which will be covered in greater detail below).

Beyond just pleading into coverage at the outset, evaluating available coverage as early as possible is also useful for obtaining best outcomes. Consider a claim involving two similar policies written on a single business defendant where it appears that both policies apply to the subject wreck (perhaps on a prorata basis as opposed to one policy being truly “excess” coverage). If damages justify a demand for both limits, a detailed demand letter showing that the attorney understands the coverage subtleties may result in the tendering of policy limits in a case that could easily have been litigated for another year or more (and resolved with further compromise, such as under only one of the policies) had that early demand letter not been sent.

The above raises a parallel topic: every personal injury attorney should understand the importance of sending an effective “policy limits demand” to the liability insurers. With any claim that could exceed policy limits, that is key to setting the insurer up to ultimately pay a potential verdict against its insured “in excess” of the policy limits. That threat alone is a powerful impetus driving liability insurers to resolve a claim for policy limits; if the insurer refuses to pay, that policy limits demand is an important step in ultimately forcing the insurer to pay any excess verdict (one that exceeds the policy limits). But now we will return briefly to the question of “intent” as it pertains to insurance coverage.

MOTOR VEHICLE ACCIDENTS

Uninsured/underinsured motorists coverage (UM) is a slightly different beast from liability coverage when it comes to the rules regarding intent. An insured may at times obtain UM coverage for injury caused by an intentional act. That is because, as noted earlier, the question of whether an act is or is not intentional is determined not from the perspective of the tortfeasor, but from the perspective of the insured.[8] Thus an intentional act will usually be covered by insurance if the pertinent actor is not also the insured; that analysis applies to make UM coverage (as opposed to liability coverage) generally apply to intentional acts because the UM insured will not generally be said to have intended the injurious acts of the uninsured motorist who caused the insured’s injuries. Willard v. Kelley[9] is a good example of this concept. Officer Willard was in hot pursuit of a suspected armed robber who crashed and then shot at Officer Willard. Officer Willard drew his weapon and knelt next to his patrol car and was shot in the arm. He ultimately sued his UM carrier for coverage. One of the defenses raised by the insurer was that the shooting could not be characterized as an “accident” for purposes of insurance coverage. Because the evidence was disputed as to whether Officer Willard expected or should have expected to have been fired upon, the question of the insured’s intention was for the jury. That was a rather unusual case; in most instances there will be no basis to determine that the UM insured somehow intended their own injuries and so intent will not generally be a concern in UM coverage.

Willard is interesting for the above, but also for its illustration of at least two other useful UM rules. One rule is that a UM insured need not be occupying or using any vehicle for coverage to apply. If the at-fault party was “using” a vehicle, the UM insured has access to the insured’s own UM coverage. The leading Oklahoma case on this rule adopts the Louisiana perspective: “[UM] covers the insured and the [insured’s resident] family members [both called ‘Class 1’ insureds] while riding in uninsured vehicles, while riding in commercial vehicles, while pedestrians or while rocking on the front porch”[10] (Class 2 insureds, by contrast, are those who are UM insureds solely by virtue of occupancy of an insured vehicle). Willard illustrates this rule because Officer Willard was not in his squad car when he was shot but was standing next to it taking cover behind the door.

Another useful rule from Willard pertains to what acts on the part of another driver count towards UM coverage. Thus there is definitional leeway allowing one to argue that the UM insured’s injuries were caused by an uninsured (or underinsured[11]) motorist. Indeed, the uninsured driver in Willard was not driving his car when he caused Willard’s injuries, nor were the acts that caused Willard’s injuries related to an obvious driving purpose (notably, UM coverage applies to injuries arising out of the “ownership, maintenance, or use” of an uninsured vehicle). The court noted, however: 1) the bad guy was resting his gun on the car’s “windowsill,” 2) he never left his vehicle, 3) the vehicle remained running during the altercation, and 4) the perpetrator drove away in the vehicle after the incident. That was sufficient to raise a jury question as to whether the shooting was related to the perpetrator’s “use” of his car. Notably, Willard holds that a “UM-covered use” is not limited to the car’s “driving operation nor to [a] lawful[] … use,” (Emphasis original.) Though Willard is still good and useful law, later cases focus on finding a “transportation use” of the tortfeasor vehicle as a UM trigger.[12] At least one (very good) attorney applied the above rules to access his client’s UM when the client hit a shredded tire on a roadway.[13]

Additionally, most UM policies define Class 2 occupant UM coverage to apply to anyone “in, on, getting in, or getting on” an insured vehicle. Relevant case law interprets that clause as meaning something like “somewhat close to the insured car.” For instance, in Wickham v. Equity Fire & Cas. Co.,[14] a passing motorist stopped to assist a stranded driver with a flat tire. The good Samaritan helped  search the trunk of the stranded vehicle for tools, putting his knees on the bumper of the car to do so, and was then later hit by an uninsured motorist while kneeling next to the car to tighten lug nuts. That was sufficient “occupancy” of the stranded motorist’s car for the good Samaritan to access the stranded driver’s UM. That’s good lawyering and great creativity with UM.

As a result of the various cases and rules pertaining to insurance coverage for MVAs, the personal injury attorney should check for and evaluate all the following potential sources of insurance coverage:

• Liability coverage on the at-fault vehicle(s) (including coverage on the vehicle occupied by any injured passengers if his or her driver shares any blame)
• Separate liability coverage on the at-fault driver(s)
• Liability coverage on the driver’s employer (if there is any way to place the driver within the course and scope of employment at the time of the MVA)
• Liability coverage on any other potentially liable party (for instance a highway maintenance company that helped to cause the occurrence of the wreck)
• The client’s UM coverage
• UM coverage on the car in which the client was an occupant (to include the employer’s UM coverage, if any, if the client was in a work vehicle at the time)
• UM coverage on any family members resident in the same household as the client

In addition to all the above, Russell v. American States Ins. Co.[15] suggests an unusual source for passenger UM coverage. In Russell, a passenger was killed in a wreck. The driver, unrelated to the deceased, was using someone else’s car at the time of the wreck. The family of the deceased passenger collected liability money from the carpolicy and from the driver’s policy and collected UM as a Class 1 insured (named insured or resident relative) from his dad’s policy (on a different car). This injury attorney is doing a very good job thus far – and it gets better.

The owner of the car also had UM on the policy on the car and the driver (who was not the owner of the car) had UM on his own, separate policy with UM (in addition to the liability coverage). We would normally expect the policy on the car to provide UM for the passenger as a Class 2 insured (insured by virtue of “occupying” the insured car), which it did. More interesting, though, was the UM on the driver’s policy. Remember, the driver did not own the involved car and so his policy was on a noninvolved auto, such that the passenger would not be a typical class 2 “occupant” insured for purposes of that coverage. That policy, though, defined the insured vehicle to include any car “being operated by” the insured. The deceased passenger thus became a Class 2 insured by virtue of occupancy of an “insured vehicle.” Are your heads spinning yet? Again, very good lawyering produced a bountiful recovery. Roughly 50% of automobile policies contain this language.

One should also always check for stacking UM limits on policies insuring multiple vehicles (though most policies will no longer stack under an amendment to the UM statute). Also, 1) never accept anything less than the liability limits if you have access to any UM and 2) always comply with the UM statute’s requirements for giving the UM carrier the option to “substitute” for the liability offer (and retain subrogation rights) or to instead waive subrogation and allow the insured to accept the liability money (which will require releasing the UM insurer’s subrogation rights). A failure in these two areas will prevent your client from recovering any UM (and may “buy” the attorney a malpractice claim).

Hopefully the above has convinced you of our original thesis. Space constraints and the author’s knowledge base do not permit such in-depth study of the following practice areas so we will touch only briefly on some additional examples of the intersection of insurance law with a small sampling of other practice areas.

WE MUST ALL UNDERSTAND OUR MALPRACTICE COVERAGE

Before we turn to other practice areas, it will be useful to consider every attorney’s need to understand malpractice insurance. For one, the typical commercial liability policy will not protect against “professional liability” – i.e., malpractice coverage. That is because such policies typically cover accidental physical harm (to person or property); they also expressly exclude claims of “professional” negligence. Thus, all lawyers should have malpractice insurance (though many may also need commercial liability coverage as well, if they operate a law business).

But there is more you should know about malpractice insurance than just that you need it. For instance, most insurance policies are “occurrence”-based while malpractice coverage is “claims-made” coverage. With occurrence-based coverage, a claim is covered if it accrued while the policy was in force – even if it was not reported until after the policy canceled. By contrast, claims-made coverage applies 1) if the claim accrued after the policy inception date and 2) was reported while the policy remains active. This can cause problems for attorneys who let their malpractice coverage lapse or change insurance companies. It is crucial in such cases to have purchased “tail” or extended reporting period (ERP) coverage.

It is additionally important for attorneys to understand their duty to report potential claims against their malpractice insurance. Indeed, one of the things we certify each year when we purchase our coverage is that we do not know about any potential malpractice concerns. A failure to report a potential for a claim against the coverage can give the insurer a basis to deny coverage.[16]

CRIMINAL DEFENSE AND FAMILY LAW INSURANCE CONCERNS

One potential “intersection” pertinent to the criminal defense attorney is the connection between insurance coverage and restitution. For instance, one federal statute requires the convicted person to pay restitution to an insurer that has paid a loss; another federal statute reduces restitution by any amount the victim has recovered in a civil proceeding (which usually means an insurance payment).[17] The state of Oklahoma has similar statutes affecting the interplay between restitution and insurance coverage.

Oklahoma also has a “slayer statute,” 84 O.S. §231, that prevents a murderer from benefiting from the victim’s death. This statute includes within its broad scope: taking as a beneficiary under a life insurance policy. Notably, this statute does not require a conviction.[18] While this statute won’t help you defend a murderer, it might help you talk a client out of murder. More seriously, knowledge of §231 could be important to the criminal defense attorney who expects to be paid from insurance proceeds running from the decedent to the alleged killer.

What about the family law attorney? As all such practitioners discover, they will be required to advise how certain insurance proceeds may or may not be divided in a divorce decree. All such practitioners must be conversant in insurance coverages such as life, health and disability and how such coverages may be impacted by divorce. Additionally, there are QDRO orders redirecting the payment of proceeds from various assets and accounts which can have at least an indirect effect on certain insurance coverages (such as life insurance and retiree health insurance benefits). There will also be the occasion to advise the client regarding COBRA continuation coverage for health insurance benefits lost in the divorce.

Family law attorneys should also know about 15 O.S. §178, which revokes the beneficiary status of a spouse in life insurance contracts, annuities, retirement accounts, and a number of similar arrangements in the event of a divorce or annulment of the marriage (though the former marital partners have the option of renaming the ex as their beneficiary). Not all divorce attorneys know about §178 or that it does not apply to policies governed by federal law such as the various life insurance coverages provided to members of the armed services.[19] In one such situation, the parties disputed whether the beneficiary designation was revoked by §178 (or whether a constructive trust was imposed for the benefit of the new spouse) versus whether §178 did not affect the former beneficiary designation such that it was still the ex who was entitled to the proceeds. The insured’s failure to formally designate his true choice of beneficiary after the divorce resulted in the former wife and the current wife splitting up the proceeds after paying two sets of attorneys to litigate the dispute. And now we briefly segue to estate planning.

ESTATE PLANNING AND PROBATE LAWYERS ALSO FACE INSURANCE CONCERNS

            Life insurance is crucial to estate planning and probate. It is thus important for such attorneys to be conversant in products such as Irrevocable Life Insurance Trusts (ILITs) for removing proceeds from the taxable estate and for avoiding probate by passing proceeds directly to named beneficiaries. Mistakes with such products can trigger unintended taxes, disputes or delay in probate, none of which benefit the practitioner’s business model.

BUSINESS LAW AND RELATED INSURANCE COVERAGE

            Similarly, the business law attorney may be called upon to assist the client with evaluating and/or accessing a variety of insurance coverages. For instance, your clients need to understand that their own faulty work is not ordinarily insurable[20] (that is more the purpose of performance and maintenance bonds). The exception is where the faulty work causes damage to other property or causes physical injury to a person.[21] So if your contractor client is sued for installing a bad roof, the contractor’s liability insurer will not defend that claim or pay a settlement or judgment unless as a result of the faulty work some other damages are alleged such as water damage inside the home or the roof collapsing and injuring the family dog. Many business owners are surprised at this result because they thought they were buying coverage to bail them out if they happen to be sued for alleged faulty workmanship. We do not want their lawyer to also be surprised.

It is also important that such clients understand “completed operations” coverage which extends coverage to otherwise covered damage occurring after the project’s completion (again, this does not refer to repair of the faulty work but only to payment for additional damage resulting from the defective work).[22] If completed operations are excluded from the coverage, then only claims arising while the contractor is still performing the work will be covered. Obviously, that timeframe covers only a small portion of the contractor’s risk.

Business law practitioners (all practitioners, really) should also be aware of the possibility of suing the insurance agent for failing to procure coverage as requested or even suing the insurer for reformation if the agent has misled the insured into thinking that business risks (or some other risks) were covered by the policy. Additionally, such practitioners should be conversant in topics such as certificates of insurance, additional insured status, indemnification and risk transfer through insurance products, as all these insurance concepts, and many more will affect your business clients.

EMPLOYMENT LAWYERS AS INSURANCE LAWYERS

            Workers’ compensation coverage is mandatory in Oklahoma for most employers.[23] The employment lawyer is aware of that requirement and so advises the client. Likewise, ERISA governs many employer-sponsored programs for life, health, and disability insurance coverages. As every employment lawyer well knows, ERISA law is a complex specialty area. ERISA occasionally also affects other practice areas (it often comes up in the context of a subrogation claim in a personal injury matter) so it can be useful to at least know an ERISA specialist with whom to confer. This is but a small fraction covered by this particular “intersection,” but again, space and knowledge constraints dictate that we move on.

REAL ESTATE ALSO RELIES HEAVILY UPON INSURANCE LAW

            The real estate lawyer must be familiar with the intricacies of title insurance to protect against unknown defects, liens and encumbrances as well as with the basics of property insurance, builders’ risk, and rental interruption coverages. They must also be aware of how such coverage interacts with closing documents, leases and other contracts, and land development projects.[24] We could devote an entire article to this practice area as well, but must keep moving.

TAX LAW TOO

            Some insurance proceeds that replace income (such as business interruption coverage) may be taxable while most insurance proceeds that make the insured whole for an actual loss are not taxable. This second category includes life insurance benefits, property damage coverage, and even personal injury damages (even the income replacement component of an insurance payment for personal injury is typically nontaxable[25]) so hopefully we will see all of you tax lawyers at our next insurance law seminar as well.

LET’S NOT FORGET OUR OIL AND GAS LAWYERS

            Insurance coverage problems are always at the forefront of oil and gas injury disputes. Indeed, as seen in the case law, the insurance carriers writing coverage for oil operations seem to have mastered the art of writing coverage (for oilfield personal injury or pollution damage, for instance) that just barely exceeds the minimum for avoiding the label “illusory coverage.”[26] Attorneys advising energy clients on insurance coverages should scrutinize such policies carefully to make sure they sufficiently cover the risks inherent in such operations. Concomitantly, everything said about business law and real estate law will apply in the oil and gas context as well. So, oil and gas lawyers, we welcome you to our CLEs as well.

CONCLUSION

            As noted, the foregoing survey is not exhaustive but hopefully proves that every lawyer needs a basic understanding of the way insurance coverage and insurance law impacts every law practice. That being so, each year’s insurance issue of the bar journal – and the next insurance law CLE – are well worth the time of every Oklahoma attorney.

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ABOUT THE AUTHOR

Paul Kouri has practiced plaintiffs' personal injury and insurance law for 20 years; he now works primarily as an insurance bad faith consultant and freelance writer (appellate and trial court level).

 

 

 

 

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ENDNOTES

[1] E.g., Sullivan v. Equity Fire & Cas. Co., 1995 OK CIV APP 2, 889 P.2d 1285; Equity Ins. Co. v. Garrett, 2008 OK CIV APP 23, ¶16, 178 P.3d 201, 205.

[2] Dayton Hudson Corp. v. Am. Mut. Liab. Ins. Co., 1980 OK 193, 621 P.2d 1155, impliedly recognizes this distinction but holds that punitive damages are not insurable by the actor, even when the actor is only grossly negligent (but a principal’s respondeat superior liability for punitive damages is insurable if the principal did not know of a bad “propensity”).

[3] See e.g., Morgan v. State Farm Mut. Auto. Ins. Co., 2021 OK 27, 488 P.3d 743.

[4] Kan. City Life Ins. Co. v. Nipper, 1935 OK 1127, 51 P.2d 741.

[5] Shelter Mut. Ins. Co. v. Wheat, 313 F. App'x 76, 82 (10th Cir. 2008) (gunshot injury caused by firing gun with intent to scare is not covered “accident” under shooter’s homeowners policy because such injury is natural and foreseeable consequence of firing the gun); but see Penley v. Gulf Ins. Co., 1966 OK 84, 414 P.2d 305 (damage caused by employee’s intentional but mistaken act of putting regular gasoline in a diesel vehicle was still considered an “accident” for insurance coverage purposes – Penley is still good law).

[6] See United States Fid. & Guar. Co. v. Briscoe, 1951 OK 386, 239 P.2d 754.

[7] Some homeowners’ policies exclude all dog bite liability or attacks by known vicious dogs.

[8] Briscoe, 1951 OK 386, ¶7, 239 P.2d 754, 756 (“Whether an injury is accidental is to be determined from the standpoint of the person injured. If the injury comes to him through external force, not of his choice or provocation, then, as to him, the injury is accidental.”).

[9] 1990 OK 127, 803 P.2d 1124.

[10] Cothren v. Emcasco Ins. Co., 1976 OK 137, ¶10, 555 P.2d 1037, 1039.

[11] Oklahoma’s uninsured motorists’ statute, 36 O.S. §3636(C), defines an uninsured vehicle to also include an underinsured vehicle.

[12] Cases are all over the map as to what is or is not a transportation use. Murrah bombing – no (Mayer v. State Farm Ins. Co., 1997 OK 67, 944 P.2d 288); Burned in trunk – no (Safeco v Sanders, 1990 OK 129, 803 P.2d 688); Drive-by-shooting – maybe – if can show shooter exercised “control” of vehicle (Byus v. Mid-Century Ins. Co., 1996 OK 25, 912 P.2d 845); Drive-by-shooting can also be covered by hit and run coverage (Hulsey v. Mid-America Preferred, 1989 OK 107, 777 P.2d 932).

[13] Per Ply v. National Union Fire Ins. Co., 2003 OK 97, 81 P.3d 643, bad maintenance need not be contemporaneous with the wreck.

[14] 1994 OK CIV APP 148, ¶6, 889 P.2d 1258, 1260.

[15] 813 F.2d 306 (10th Cir. 1987).

[16] Though not an “insurance” concern, it may also be a good idea, though counteractive, to notify the client of their potential to make a claim so as to start the running of the limitations clock.

[17] See e.g., United States v. Whittley, No. CR-19-78-G, 2021 U.S. Dist. LEXIS 234914, at *3, 2021 WL 5830029 (W.D. Okla. Dec. 8, 2021).

[18] State Mut. Life Assurance Co. of Am. v. Hampton, 1985 OK 19, ¶21, 696 P.2d 1027, 1032.

[19] E.g., Iron Workers Mid-South Pension Fund v. Stoll, 771 F. Supp. 781, 786 (E.D. La. 1991) (Section 178 is preempted by ERISA); Maretta v. Hillman, 722 S.E.2d 32 (Va. 2012) (recognizing federal life insurance not subject to state statutes terminating beneficiary status upon divorce).

[20] See e.g., Dodson v. St. Paul Ins. Co., 1991 OK 24, 812 P.2d 372.

[21] Id. at ¶16, 378.

[22] Orthopedic Res., Inc. v. Nautilus Ins. Co., 654 F. Supp. 2d 1307, 1312 (N.D. Okla. 2009).

[23] 85A O.S. §3.

[24] See e.g., First Fed. Sav. & Loan Ass'n v. Transamerica Title Ins. Co., 19 F.3d 528 (10th Cir. 1994) (“Title insurance does not insure the value of the subject property; it insures only that the title to such property is unencumbered by unknown liens, easements, and the like which might affect the property's value.”).

[25] See e.g., Atwood v. Union P. R. Co., No. 90-4076, 1991 U.S. App. LEXIS 11123, at *10 (10th Cir. May 20, 1991).

[26] See e.g., Crown Energy Co. v. Mid-Continent Cas. Co., 2022 OK 60, 511 P.3d 1064.

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Originally published in the Oklahoma Bar Journal – OBJ 97 No. 6 (August 2026)

Statements or opinions expressed in the Oklahoma Bar Journal are those of the authors and do not necessarily reflect those of the Oklahoma Bar Association, its officers, Board of Governors, Board of Editors or staff.