Mann v. State Farm Mutual Automobile Insurance Co.

OP ALA, Justice,

dissenting:

The court holds that: (1) in an action to recover for the insurer’s bad faith refusal to pay a claim an appealable disposition is effected once the insurer’s liability for the loss in suit has been decided and its amount ascertained by application of ex contractu standards, even though the wrongful character of the insurer’s breach and damages from it, if any, were issues expressly left pending for determination at a later time; and (2) the trial court cannot try the remaining issues in the case until the insurer’s appeal on the liability-for-loss question has been decided. Because I regard the court’s holding as a substantial and unwise departure from precedent, I must recede from today’s aberrational pronouncement.

One who brings an action to recover for an insured loss has but a single cause of action, if the loss, whatever its nature or extent, stems from one occurrence or episode. Although numerous items of damage may be claimed from one loss, a single fire, flood or theft will give rise to but one cause of action. This much is axiomatic in our law.1 The principle, as I view it, remains unchanged by the introduction of a new theory which now allows recovery for the insurer’s bad faith refusal to pay a claim.2

One who seeks to recover for a single insured loss may now allege his one cause of action under at least two alternative theories of liability3 — one based on a breach of policy obligation and the other on a bad faith breach of duty to pay a claim. Each of these separate theories will, of course, support a different category of damages. But these separate theories cannot be treated as distinct causes of action.4

*774The plaintiff in this case sued for a single loss by theft. He had but one cause of action which should be treated as having been plead under two different theories of recovery. The trial court decided only the issues tendered by one of two alternative theories. The other theory remains unexplored and undetermined.

When the court disposes of but a portion of the issues raised by a petition which declares one’s claim upon a single cause of action, there can be no judgment in the case. A judgment must resolve all the issues in the action and leave nothing further to be done except to carry it into execution.5 A decision made in advance of a judgment may not be appealed unless it falls within a class of interlocutory orders declared by the legislature to be appealable by right6 or unless it is certified by the trial court for immediate review because it “affects a substantial part of the merits of the controversy”.7 A different rule applies when the trial court’s action determines all of the parties’ rights in one or more but not all of several causes of action separately stated. From that class of decisions an appeal may be brought at once and the aggrieved litigant need not wait until final disposition is effected of all the causes of action in litigation.8

The decision before us is neither a judgment nor a final order.9 It does not fall within that class of interlocutory orders which are appealable by right. Nor has it been certified to us for an early review that would, in the opinion of the trial judge, “advance the ultimate termination of the litigation”.

This appeal, brought here from a partial adjudication of the alternative theories tendered below, is premature.10 I would dismiss it and deny the insurer’s plea for a writ of prohibition. This would set the trial court free to terminate the litigation by deciding the unresolved issues under the alternative theory of a bad faith breach of insurer’s, duty to pay.

I am authorized to state that IRWIN and WILSON, JJ., concur in these views.

. Retherford v. Halliburton Co., Okl., 572 P.2d 966, 969 [1978]; Aetna Casualty & S. Co. v. Associates Transports Inc., Okl., 512 P.2d 137, 142 [1973]; Stone v. Case, 34 Okl. 5, 124 P. 960 [1912].

. Christian v. American Home Assurance Company, Okl., 577 P.2d 899, 905 [1978],

. See Underside v. Lathrop, Okl., 645 P.2d 514 [1982].

. The terms of 12 O.S.1981 § 264.1 provide in pertinent part:

“A party may rely on two or more legal theories for relief ... in the alternative regardless of consistency ... and he shall not be required to elect the theory on which he will rely. Where a party relies on two or more theories ... he may state the facts which support his theories in one count ... or in separate counts ...” [Emphasis added].
For an explanation of the distinction between pleading separate causes of action and stating alternative theories of recovery in support of a single claim having its foundation in one occurrence or transaction see Fraser, One Form of Action: Pleading Alternative Facts, Theories and Remedies, 14 Okla.L.Rev. 125 [1961],

. 12 O.S.1971 § 681; Hurley v. Hurley, 191 Okl. 194, 127 P.2d 147 [1942]; Foreman v. Riley, 88 Okl. 75, 211 P. 495 [1923]; Loy v. McDowell, 85 Okl. 286, 205 P. 1089 [1922]; Wells v. Shriver, 81 Okl. 108, 197 P. 460 [1921].

. 12 O.S.1971 §§ 952(b)2 and 993; Part 11(a) and Part 11(c), Rules on Perfecting a Civil Appeal, 12 O.S.1971 Ch. 15, App. 2.

. 12- O.S.1971 § 952(b); Part 11(b), Rules on Perfecting a Civil Appeal, 12 O.S.1971 Ch. 15, App. 2.

. Oklahomans for Life, Inc. v. State Fair of Oklahoma, Okl., 634 P.2d 704, 706 [1981]; Cox v. Butts, 48 Okl. 147, 149 P. 1090 [1915]; but see cautionary note in Fraser, Judgment Where Facts Not Controverted, 36 OBJ 723, 730, footnote 67 [1965],

. Final order is defined in 12 O.S.1971 § 953.

. A partial adjudication does not trigger an appealable event. Reams v. Tulsa Cable Tele., Inc., Okl., 604 P.2d 373 [1979].