(dissenting) :
I respectfully dissent.
The trial court’s opinion treats all the principal issues raised on this appeal. That opinion addresses specifically the issue on which the majority opinion here is based — whether the plaintiff is “legally entitled to recover” within the meaning of the Oklahoma Uninsured Motorists Act and the insurance policies in question in view of the parent-child immunity doctrine under Oklahoma tort law. The trial court reasons that to be legally entitled to recover the plaintiff need prove only negligence of the uninsured motorist and resulting damages,1 and that the plaintiff’s claims are based on contracts and “should be and [are] treated differently than the cause of action the insured has against the uninsured motorist,” 326 F.Supp. at 42, citing Sahloff v. Western Casualty & Surety Co., 171 N.W.2d 914 (Wis.). Therefore, the trial court holds that the parent-child immunity under Oklahoma tort law, if available at all in the contract action, would be personal to the child here, and does not apply in the suit against the insurer on the uninsured motorist endorsement.2
In rejecting other contentions of the defendant based on policy exclusions from uninsured motorist coverage, the trial court holds that the exclusions are in conflict with the Oklahoma Uninsured Motorists Act, saying that the policy provisions conflicting with the statute are invalid and that such provisions should be construed against the insurer. It is pointed out that the Oklahoma Supreme Court has not had occasion to pass on the uninsured motorist coverage questions involved, but the court states that it believes that the reasoning of authorities cited are in line with the intended policy of the Oklahoma Uninsured Motorists Act and that the Oklahoma Supreme Court will accept these views when the questions are presented. 326 F.Supp. 44-45.
These are proper circumstances, it seems to me, where we should accept the trial court’s interpretation of State law unless it is clearly in error. See Parsons v. Amerada Hess Corp., 422 F.2d 610, 614 (10th Cir.); Douglas-Guardian Warehouse Corp. v. Jones, 405 F.2d 427, 428 (10th Cir.); Sta-Rite Industries, Inc. v. Johnson, 453 F.2d 1192, 1195 (10th Cir.), cert. denied, 406 U.S. 958, 92 S.Ct. 2062, 32 L.Ed.2d 344. To me the trial court’s opinion is a reasonable disposition of the undecided questions of State law involved. I feel we cannot say it is clearly erroneous and, despite the persuasive reasoning also presented by the majority opinion, I would affirm.
. See Booth v. Fireman’s Fund Insurance Co., 197 So.2d 352, 355 (La.App.), cited by the trial court, which says that proof is needed only of negligence, freedom from contributory negligence and damages, in such actions on uninsured motorist provisions.
. This case illustrates the tort-contract distinction, being a direct action against the insurer, instead of a liability claim against a tort defendant whose defense is handled by the insurer that is not a party to the suit.