concurring specially:
1 I agree with the majority that 36 O.S. 2001 § 36361 extends coverage to insured individuals entitled to recover damages from either owners or operators of uninsured or underinsured motor vehicles. I also agree that an employer's non-contemporaneous negligent maintenance of an employer-owned vehicle may be sufficient to establish an employee's potential entitlement to uninsured motorist benefits.
12 I write separately to emphasize that the facts of this cause differ significantly from an instance in which an owner who is also an operator attempts to recover uninsured or underinsured benefits from an insurer. In that instance, the insured owner and operator will have no coverage unless, as the owner and operator, the party regulates and controls the actual operation of the vehicle at the time of the accident.2
T3 Here, the employer, not the employes, is the owner of the vehicle. Nevertheless, an employer who is an owner or operator may be at fault within the meaning of 86 0.8.2001 § 3636,3 where a supervisor's instructions are so straightforward and clear on the faulty or negligent operation of a vehicle as to leave the employee with the impression that only such operation is appropriate. In such a situation, the employer may be considered to be responsible for the personal physical management of the vehicle.
WINCHESTER, J., dissenting, with whom OPALA, V.C.J., and HARGRAVE, J., join:
T1 Sometimes legal reasoning becomes so convoluted when applying marginally applicable cases in the construction of statutes that the end result bears no resemblance to the apparent intent of the statute. I believe that is true in this case. Uptegraft v. Home Ins. Co., 1983 OK 41, ¶ 6, 662 P.2d 681, 683-684 states: "The purpose of an uninsured motorist provision in an insurance contract is to protect the insured from the effects of personal injury resulting from an accident with another motorist who carries no insurance or is underinsured." At the risk of oversimplifying, who is the uninsured/under-insured motorist? The plaintiff had been the only motorist, and at the time of his accident, he was not a motorist.
12 The truck was parked and the plaintiff was working alone in a raised bucket mounted on the back of the truck when he received severe electrical shock because the bucket contacted a live electrical line. The plaintiff properly recovered workers compensation benefits. But he now sues for uninsured motorist benefits. Clearly the truck did not contribute to his injuries. It was his operation of the bucket that caused his injury, independent of the truck it was mounted on.
T3 I would answer, "No," to both the federal certified questions.
. Title 36 0.$.2001 § 3636 provides in pertinent part:
"A. No policy insuring against loss resulting from liability imposed by law for bodily injury or death suffered by any person arising out of the ownership, maintenance or use of a motor vehicle shall be issued, delivered, renewed, or extended in this state with respect to a motor vehicle registered or principally garaged in this state unless the policy includes the coverage described in subsection B of this section. B. The policy referred to in subsection A of this section shall provide coverage therein or supplemental thereto for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles and hit-and-run motor vehicles because of bodily injury, sickness or disease, including death resulting therefrom...."
. Safeco Ins. Co. of America v. Sanders, 1990 OK 129, 115, 803 P.2d 688. [The Legislature's use of the phrase, "uninsured motorist" implies an intent that the injury be connected to a motorist's use of a vehicle.].
. Title 36 0.$.2001 § 3636, see note 1, supra.