PUBLISH
UNITED STATES COURT OF APPEALS
Filed 9/26/96TENTH CIRCUIT
LIBERTY MUTUAL INSURANCE CO.,
Plaintiff-Appellee.
v.
No. 95-5185
EAST CENTRAL OKLAHOMA
ELECTRIC COOPERATIVE,
Defendant-Appellant,
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OKLAHOMA
(D.C. No. 93-C-1007-K)
Richard D. Wagner and I. Michele Drummond, Wagner, Stuart & Cannon, Tulsa,
Oklahoma, for Defendant-Appellant.
Galen L. Brittingham and Marthanda J. Beckworth, Atkinson, Haskins, Nellis,
Boudreaux, Holeman, Phipps & Brittingham, Tulsa, Oklahoma, for Plaintiff-Appellee.
Before EBEL, KELLY, and HENRY, Circuit Judges.
HENRY, Circuit Judge.
East Central Oklahoma Electric Cooperative (“East Central”) obtained a judgment
for over $4,000,000 against Creek County Well Service, based on a district court’s
determination that Creek County Well Service was responsible for 75 % of a wrongful
death, state-court judgment that the family of one of Creek County Well Service’s
employees had previously obtained against East Central. Subsequently, plaintiff Liberty
Mutual Insurance Co. (“Liberty”) brought a diversity action against East Central, seeking
a declaratory judgment that only the $500,000 Employers Liability Insurance Policy that
Liberty had issued to Creek County Well Service applied to East Central’s $4,000,000
judgment against Creek County Well Service.
The district court granted Liberty’s motion for summary judgment on its claim.
East Central then filed a motion for new trial, asking the district court to reconsider its
decision that the Comprehensive General Liability (“CGL”) Policy that Liberty also had
issued to Creek County Well Service did not provide additional coverage for its claim.
The district court denied East Central’s motion, and East Central now appeals. We
exercise jurisdiction pursuant to 28 U.S.C. § 1291 and affirm.
I. BACKGROUND
The relevant facts in the part of this matter now before us are undisputed. On
February 24, 1986, three employees of Creek County Well Service were injured, one of
whom died as a result of his injuries, when the oil well servicing rig which they were
using came into contact with high voltage electrical lines that East Central owned and
operated. As a result of this accident, two actions were brought against East Central in
state district court in Oklahoma: One of the injured Creek County Well Service
2
employees brought a personal injury action, and the family of the employee who died
brought a wrongful death action. In response, East Central filed in the state court actions
a third-party petition against Creek County Well Service, seeking payment under
Oklahoma’s “Six-Foot Rule,” see Okla. Stat. tit. 63, § 984, for any liability it would incur
as a result of the power line accident. The Six-Foot Rule makes “[a] person, firm,
corporation or association . . . [that comes] within six (6) feet of any high voltage
overhead electrical line . . ., or . . . [that causes] any part of any tool, equipment,
machinery or material to be brought within six (6) feet of any such overhead high voltage
line,” Okla. Stat. tit. 63, § 981, “liable to the owner or operator of such high voltage line .
. . for all liability incurred by such owner or operator as a result of any accidental
[physical or electrical] contact [with the high voltage line],” id. § 984.
Creek County Well Service filed a motion to dismiss the third-party petition which
East Central had filed against it, claiming that the provision of the Oklahoma Workers
Compensation Act that makes an employer’s liability under the Act exclusive, Okla. Stat.
tit. 85, § 12, barred East Central’s effort to recover from it. Although the state court
judge refused to rule on this motion until after the trial in the state actions was completed,
he ordered that Creek County Well Service not be mentioned at trial. Additionally, he
entered a pretrial order prohibiting Creek County Well Service from participating at trial.1
Creek County Well Service subsequently filed Chapter 11 bankruptcy.
1
Although the state judge’s actions seem questionable, see infra note 5, they are not
before us.
3
After the family of the Creek County Well Service employee who was killed by the
power line incident secured a judgment for over $2,500,000, plus interest, against East
Central in state court, East Central proceeded in bankruptcy court with its claims against
Creek County Well Service. The parties filed a stipulation in the bankruptcy court, under
which they agreed that East Central could recover from Creek County Well Service only
to the extent of any insurance that Creek County Well Service held that covered East
Central’s claim. At the time of the accident, Creek County Well Service held insurance
policies with Liberty and with Stonewall Surplus Lines Insurance Co. (“Stonewall”). Its
policies with Liberty included a Workers Compensation and Employers Liability
Insurance Policy, which had a liability limit of $500,000, and a Comprehensive General
Liability (“CGL”) Policy, which had a liability limit of $1,000,000. Creek County Well
Service had an umbrella policy with Stonewall, which had a liability limit of $1,000,000.
Because Creek County Well Service had not participated in the state court trial in
which its degree of fault for the power line accident had been determined, it sought and
acquired a withdrawal of the certification for bankruptcy of East Central’s claims against
it, and a jury trial was held in the United States District Court for the Northern District of
Oklahoma to determine the parties’ respective percentages of fault for the injuries to the
Creek County Well Service employees. The jury found that Creek County Well Service
was 75 % negligent in causing the injuries to its employees. Accordingly, the district
court entered a judgment holding Creek County Well Service liable to East Central for 75
4
% of the state-court judgment against East Central, amounting to over $4,000,000.
In partial satisfaction of this judgment, Liberty paid East Central $500,000 under
the Employers Liability Insurance Policy it had issued to Creek County. It asserted that
this was the only policy under which it was liable to East Central. East Central, however,
claimed that it was also entitled to the liability limits of the CGL Policy that Creek
County Well Service had with Liberty. Stonewall has paid East Central the $1,000,000
liability limit under its umbrella policy in partial satisfaction of East Central’s judgment
against Creek County Well Service.
As a result of the dispute between Liberty and East Central regarding coverage
under the CGL Policy, Liberty filed a declaratory judgment action, seeking a
determination that “the only insurance policy issued by Liberty . . . to Creek County [Well
Service] . . . which covers the loss of East Central . . . is the Employers Liability Policy
with limits of $500,000.” Aplt’s App., vol. I, Ex. A at 9. Liberty later filed a motion for
summary judgment, which the district court granted. East Central then filed a motion for
new trial, asking the district court to reconsider its decision that the CGL Policy did not
provide coverage for its claim. The district court denied this motion, and East Central
now appeals.
II. DISCUSSION
We review de novo the district court’s order granting summary judgment to
Liberty, applying the same standard as did the district court. See Fed. R. Civ. P. 56(c);
5
Regional Bank v. St. Paul Fire & Marine Ins. Co., 35 F.3d 494, 496 (10th Cir. 1994). The
parties do not dispute the facts in this case, so our inquiry focuses solely on whether
Liberty is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(c). Because this
is an action in diversity, we must follow Oklahoma law and interpret the CGL Policy at
issue as would an Oklahoma court. Regional Bank, 35 F.3d at 496.
The CGL Policy issued by Liberty to Creek County Well Service covers, among
other things, personal injuries and bodily injuries as defined by the policy. On appeal,
East Central argues that the district court erred in holding that its claim falls under Part I
of the CGL Policy, which defines the policy’s coverage for “bodily injuries,” because it is
not seeking coverage under this part of the policy. Instead, it maintains that its claim is
one for “personal injury” under Part II of the Broad Form Comprehensive General
Liability Endorsement to the CGL Policy.
This characterization by East Central of its claim as one for “personal injury” is
inconsistent with its earlier acceptance of payment for its claim under Creek County Well
Service’s Employers Liability Insurance Policy: East Central previously accepted from
Liberty $500,000 under Creek County Well Service’s Employers Liability Insurance
Policy, pursuant to which Liberty agrees to “pay all sums [Creek County Well Service]
legally must pay as damages because of bodily injury to [its] employees, provided the
bodily injury is covered by this Employers Liability Insurance.” Aplt’s App., vol. II, Ex.
F at 430 (emphasis added). Despite this inconsistency, Liberty makes no argument on
6
appeal that East Central’s acceptance of payment under the Employers Liability Insurance
Policy, based on the “bodily injuries” of Creek County Well Service’s employees, estops
or prevents it from now recharacterizing its claim based on the same set of underlying
facts as one for “personal injury.”
In any event, East Central’s characterization of its claim as a personal injury under
the CGL Policy is irrelevant to our determination of whether its claim is covered. Instead,
we must examine the factual basis for East Central’s claim and then determine whether it
constitutes a type of injury defined in the policy. We begin by noting that the factual
basis for East Central’s claim is the injuries to and death of Creek County Well Service’s
employees resulting from their contact with East Central’s power lines on February 24,
1986. Under Oklahoma’s Six-Foot Rule, Okla. Stat. tit. 63, § 984, East Central seeks
payment from Creek County Well Service for its liability to the injured Creek County
Well Service employees. First, we examine whether East Central’s claim under the CGL
Policy is one for bodily injury. We conclude that it is; however, because we also
conclude that East Central’s claim is one for indemnification or contribution, it is
excluded from coverage pursuant to an amendatory endorsement to Part I of the CGL
Policy. We next examine whether East Central’s claim is also one for personal injury.
We hold that it is not, and therefore, East Central is not entitled to payment under Part II
of the Broad Form Comprehensive General Liability Endorsement to the CGL Policy.
A. Bodily Injury
7
Part I(A) of the CGL Policy defines its coverage of bodily injuries as follows:
“The company will pay on behalf of the insured all sums which the insured shall become
legally obligated to pay as damages because of . . . bodily injury . . . to which this policy
applies, caused by an occurrence . . . .” Aplt’s App., vol. II, Ex. F at 370. It defines
bodily injury as “bodily injury, sickness or disease sustained by any person which occurs
during the policy period, including death at any time resulting therefrom.” Id. at 372.
Specifically excluded from coverage are certain claims for indemnification or
contribution based on bodily injuries, as expressed by an amendatory endorsement to the
policy added in 1984.2 The endorsement states, in relevant part,
This insurance does not apply:
(i) to bodily injury to any employee of the insured arising out of and
in the course of his employment by the insured for which the insured may
be held liable as an employer or in any other capacity; [or]
(ii) to any obligation of the insured to indemnify or contribute with
another because of damages arising out of the bodily injury[.]
Id. at 378 (emphasis added).
2
Although the amendatory endorsement fails to state when it was added or became
effective, see Aplt’s App., vol. II, Ex. F at 378 (leaving the space next to the category “Effective
Date” blank), East Central does not dispute Liberty’s statement that it was added in 1984, see
Aple’s Br. at 15. Therefore, the amendatory endorsement was in effect in 1986 when the
accident involving East Central’s power lines and Creek County Well Service’s employees
occurred.
Exclusion(j) of the CGL Policy, which was replaced by the amendatory endorsement at
issue, stated that the policy does not apply “to bodily injury to any employee of the insured
arising out of and in the course of his employment by the insured or to any obligation of the
insured to indemnify another because of damages arising out of such injury.” Aplt’s App., vol.
II, Ex. F at 370.
8
1. Neither the bodily injury provision nor the amendatory endorsement is
ambiguous.
To determine whether the damages that East Central paid to the Creek County
Well Service employees arose out of a bodily injury as defined by the CGL Policy, and if
so, whether East Central’s claim against Creek County Well Service is one for
indemnification or contribution for such damages and therefore is excluded from
coverage, we must first determine whether the relevant policy provisions are ambiguous.
See, e.g., Phillips v. Estate of Greenfield, 859 P.2d 1101, 1104 (Okla. 1993). A contract
provision is ambiguous only if it can be interpreted as having two different meanings.
E.g., Littlefield v. State Farm Fire & Casualty Co., 857 P.2d 65, 69 (Okla. 1993). If it is
not ambiguous, it is construed in its plain and ordinary sense. E.g., Phillips, 859 P.2d at
1104. If it is ambiguous, it is construed in favor of the insured. E.g., Littlefield, 857 P.2d
at 69.
The bodily injury provision of the policy and its accompanying amendatory
endorsement excluding coverage for indemnification or contribution claims based on
bodily injuries are not ambiguous because they are capable of only one interpretation. Cf.
Pearson Servs., Inc. v. INA Ins. Co., 937 F.2d 401, 402, 403 (8th Cir. 1991) (holding as
unambiguous under Iowa law the insurance policy’s exclusion of coverage “to any
obligation of the insured to indemnify another because of damages arising out of . . . [a
bodily] injury” “to any employee of the insured arising out of and in the course of his
9
employment by the insured”); National Union Fire Ins. Co. v. Kasler Corp., 906 F.2d 196,
199 (5th Cir. 1990) (same, applying Texas law). Therefore, we interpret them according
to their plain and ordinary meaning.
2. East Central’s claim is excluded by the amendatory endorsement.
Under Part I(A) of the CGL Policy, the injuries and death of the Creek County
Well Service employees constitute “bodily injuries.” East Central’s claim against Creek
County Well Service is based on Creek County Well Service’s obligation under the Six-
Foot Rule to indemnify3 East Central for over $4,000,000 for East Central’s liability to
Creek County Well Service’s employees and their families as a result of the employees’
bodily injuries. See East Central Elec. Coop. v. Robert Gordon Equip., Inc., 772 F.2d
662, 663-64 (10th Cir. 1985) (holding that under Okla. Stat. tit. 63, § 984, the power line
company can recover from the employer of an employee injured by the power line the
3
We construe Creek County Well Service’s liability under the federal district court
judgment to pay East Central over $4,000,000 pursuant to the Six-Foot Rule as an obligation to
indemnify, rather than contribute to, East Central. Our construction is based on the fact that the
state-court, wrongful death judgment was against only East Central, who had sued Creek County
Well Service in the same action for payment under the Six-Foot Rule for any liability it would
incur as a result of the power line incident, rather than against both East Central and Creek
County Well Service. See Okla. Stat. tit. 12, § 832(A) & (F) (explaining the difference between
actions between tortfeasors for contribution and for indemnification); see also East Central Elec.
Coop. v. Robert Gordon Equip., Inc., 772 F.2d 662, 663 (10th Cir. 1985)(describing an action
under the Six-Foot Rule as one for indemnification). However, even if we are incorrect, and the
action provided to East Central by the Six-Foot Rule is one for contribution instead of
indemnification, it does not change the result in this case because the amendatory endorsement
here excludes coverage of “any obligation of the insured to indemnify or contribute with another
because of damages arising out of the bodily injury,” Aplt’s App., vol. II, Ex. F at 378 (emphasis
added).
10
percentage of the employer’s negligence as determined by a jury). Thus, the amendatory
endorsement excluding coverage for indemnification claims against the insured arising
out of bodily injuries excludes coverage for East Central’s claim against Creek County
Well Service. Cf. Pearson Servs., Inc., 937 F.2d at 403-04 (holding that the policy’s
exclusion of coverage for “any obligation of the insured to indemnify another because of
damages arising out of such [bodily] injury” “operates where ‘the genesis of the action is
an employee’s work-related bodily injury.’” (quoting National Union Fire Ins. Co., 906
F.2d at 200)).
If we were instead to accept East Central’s argument that its claim against Creek
County Well Service, which arises from injuries fitting the definition of “bodily injury”
under the policy, was covered under the personal injury provision of the policy, it would
render the amendatory endorsement to the bodily injury provision which excludes
coverage of this claim meaningless. See County of Columbia v. Continental Ins. Co., 595
N.Y.S.2d 988, 991 (N.Y. App. Div. 1993) (“[T]o extend the personal injury coverage to
occurrences which fall squarely within the property damage coverage would have the
effect of rendering the pollution exclusion meaningless.”), aff’d, 634 N.E.2d 946 (N.Y.
1994). Such a strained reading of the CGL Policy would contradict the rule of
interpretation that under Oklahoma law an insurance policy is to be construed so as to
give effect to all of its provisions if possible. See Dodson v. St. Paul Ins. Co., 812 P.2d
372, 376 (Okla. 1991); United States Fidelity & Guar. Co. v. Walker, 329 P.2d 852, 856
11
(Okla. 1958).
B. Personal Injury
Presumably in an effort to avoid the bar to its recovery under Part I of the CGL
Policy, East Central argues that its claim is covered as a “personal injury” under Part II of
the Broad Form Comprehensive General Liability Endorsement to the CGL Policy. Part
II of this endorsement, which deals with the coverage of personal injuries, explains that
Liberty
will pay on behalf of the insured all sums which the insured shall become
legally obligated to pay as damages because of personal injury or
advertising injury to which this insurance applies, sustained by any person
or organization and arising out of the conduct of the named insured’s
business, within the policy territory.
Aplt’s App., vol. II, Ex. F at 388 (emphasis added). The endorsement defines a personal
injury as an
injury arising out of one or more of the following offenses committed
during the policy period:
(1) false arrest, detention, imprisonment, or malicious prosecution;
(2) wrongful entry or eviction or other invasion of the right of private
occupancy;
(3) a publication or utterance
(a) of a libel or slander or other defamatory or disparaging material, or
(b) in violation of an individual’s right of privacy.
Id. at 389 (emphasis added).
East Central claims that it has suffered a personal injury as defined by paragraph
(2) above, entitling it to coverage under Creek County Well Service’s CGL Policy with
12
Liberty. Specifically, it argues that Creek County Well Service invaded its “right of
private occupancy to maintain its electrical system on its easement without third-party
interference,” see Aplt’s Br. at 10, when Creek County Well Service’s employees and
equipment came within six feet of its power lines. East Central maintains that this “right
of private occupancy” was created by its “right-of-way easement,” which extends fifteen
feet on either side of its power lines, see Aplt’s App., vol. II, Ex. G at 646, and by
Oklahoma’s Six-Foot Rule, Okla. Stat. tit. 63, § 981, which prohibits anyone from
causing himself or his equipment to come within six feet of a power line.4
The definition in an insurance contract of a personal injury as an “invasion of the
right of private occupancy” has not previously been interpreted under Oklahoma law.
Therefore, in predicting how the Oklahoma Supreme Court would interpret this provision,
we must, as would the Oklahoma Supreme Court, determine the best-reasoned
4
Section 981 provides,
No person, firm, corporation or association shall, individually or through an agent
or employee and no person as an agent or employee of any person, firm,
corporation or association, shall perform or permit any agent or employee to
perform any function or activity upon any land, building, highway, or other
premises, when it is possible during the performance of such activity for any
person or employee engaged in performing work connected with or related to such
function or activity to move to or to be placed in a position within six (6) feet or
any high voltage overhead electrical line or conductor, or when it is possible for
any part of any tool, equipment, machinery or material to be used by any such
person or employee to be brought within six (6) feet of any such overhead high
voltage line or conductor through any lateral, vertical or swinging motion during
the performance of such function or activity.
Okla. Stat. tit. 63, § 981.
13
interpretation and then apply it to the present case. See Caribou Four Corners, Inc. v.
Truck Ins. Exch., 443 F.2d 796, 801 (10th Cir. 1971). In this effort, we are guided by
other states’ interpretations of the identical personal injury definition in an insurance
policy. Cf. Walker, 329 P.2d at 856 (concluding that a New Mexico case “furnishes no
answer to the questions or the propositions here involved” because it “does not discuss
the specific provisions . . . of the [insurance] policy”); Hartford Accident & Indem. Co. v.
Pacific Mut. Life Ins. Co., 861 F.2d 250, 252 (10th Cir. 1988) (holding that cases
construing policy coverage are authoritative only if they “involve the same language or
the same version of the standard form embodied in the policy under consideration”).
1. The definition of “personal injury” at issue is not ambiguous.
We must first determine whether the phrase “other invasion of the right of private
occupancy” is ambiguous. See, e.g., Phillips, 859 P.2d at 1104. Based on the plain
language of the policy, we conclude, as have other courts, that it is not. See Martin v.
Brunzelle, 699 F. Supp. 167, 171 (N.D. Ill. 1988) (applying Illinois law); Harbor Ins. Co.
v. Anderson Leasing, Inc., No. CIV. A. 87C-DE-18, 1989 WL 112532, at *1 (Del. Super.
Ct. Sept. 27, 1989) (applying Delaware law); Larson v. Continental Casualty Co., 377
N.W.2d 148, 150 (S.D. 1985) (applying South Dakota law). But see Titan Holdings
Syndicate v. City of Keene, 898 F.2d 265, 272 (1st Cir. 1990) (holding that under New
Hampshire law, this definition of personal injury is ambiguous).
The rule of ejusdem generis, a rule of contract interpretation, supports this
14
conclusion. See State ex rel. Comm’rs of the Land Office v. Butler, 753 P.2d 1334, 1336
(Okla. 1987) (“The rules of interpretation of contract, . . . such [as] ejusdem generis, are
for use by the court to determine whether an ambiguity exists.”), cert. denied, 488 U.S.
993 (1988). The principle of ejusdem generis suggests that when interpreting a general
word that follows a series of specific words, “those specific words restrict the meaning of
the general.” Id. In the policy provision at issue, paragraph (2) lists as personal injuries
“wrongful entry or eviction or other invasion of the right of private occupancy.” Aplt’s
App., vol. II, Ex. F at 389 (emphasis added). Thus, the specific personal injuries of
“wrongful entry or eviction” are followed by a more general personal injury, “other
invasion of the right of private occupancy.” Under the principle of ejusdem generis, the
words “‘other invasion of the right of private occupancy’ are intended to encompass
actions of the same general type as, though not specifically embraced within, ‘wrongful
entry or eviction.’” Martin, 699 F. Supp. at 170 (applying Illinois law).
Actions for “wrongful entry or eviction” deal with violations of one’s real property
rights. See Okla. Stat. tit. 41, § 123 (providing a tenant with an action for wrongful
eviction), interpreted in Wagoner v. Bennett, 814 P.2d 476, 481 (Okla. 1991); Okla. Stat.
tit. 41, § 124 (providing a tenant with an action when a landlord makes an unlawful
entry). Therefore, any “other invasion of the right of private occupancy” is appropriately
interpreted as also requiring an invasion of a real property right.
The clear weight of authority in other courts defines this term precisely as we have
15
suggested. See Red Ball Leasing, Inc. v. Hartford Accident & Indem. Co., 915 F.2d 306,
312 (7th Cir. 1990) (applying the rule of ejusdem generis to the personal injury definition
of “other invasion of the right of private occupancy” to determine that under Indiana law,
it “precludes coverage for anything other than invasions of real property”); Martin, 699 F.
Supp. at 170 (applying the principle of ejusdem generis to the personal injury definition
of “other invasion of the right of private occupancy” to determine that under Illinois law,
it “provides coverage only if there exists a landlord-tenant relationship or if the plaintiff
has a ‘vested property right’”); County of Columbia, 595 N.Y.S.2d at 991 (applying the
principle of ejusdem generis to the personal injury definition of “other invasion of the
right of private occupancy” to determine that under New York law, it is “limited to
liability for purposeful acts aimed at dispossession of real property by someone asserting
an interest therein”); Waranch v. Gulf Ins. Co., 266 Cal. Rptr. 827, 829 (Cal. Ct. App.
1990) (holding that under California law, “policy language referring to wrongful entry,
eviction and invasions of the right of private occupancy pertains to torts against the real
property of another); Nichols v. Great Am. Ins. Cos., 215 Cal. Rptr. 416, 421-22 (Cal. Ct.
App. 1985) (same); Harbor Ins. Co., 1989 WL 112532, at *1 (holding that under
Delaware law, the policy’s definition of personal injury as “wrongful entry or eviction or
other invasion of the right of private occupancy” applies “only to damages incurred as a
result of an invasion of an interest in real property”).
Instead of creating an ambiguity, the term “invasion of the right of private
16
occupancy” is included in insurance policies simply to provide a “catch-all” category of
offenses of the same general type as “wrongful entry or eviction.” As explained by the
court in Martin,
Absent a catch-all phrase such as “or other invasion of the right of private
occupancy,” an insurer could resist coverage for actions that did not fit
within th[e] precise meanings [of the terms “wrongful entry or eviction”],
yet would clearly seem within the same class of conduct intended to be
insured against. Then a court confronted with such resistance would be
forced to choose between denying coverage or bending the “wrongful entry
or eviction” language out of shape to provide the insured with coverage.
Martin, 699 F. Supp. at 170 (emphasis added).
2. East Central has not established a claim for “personal injury” under the CGL
Policy.
To avoid summary judgment, East Central must have alleged facts that support a
claim that Creek County Well Service committed the offense of invading East Central’s
private right of occupancy. See Liberty Bank v. Travelers Indem. Co., 870 F.2d 1504,
1508 (9th Cir. 1989) (holding that to apply the personal injury endorsement, Montana law
requires the complaint to allege facts establishing the elements of one of the enumerated
torts listed under the insurance policy’s definition of personal injury). To determine
whether East Central has succeeded in doing this, we must look to the facts alleged in
East Central’s answer to Liberty’s complaint, irrespective of how East Central legally
characterizes those facts. See Pearson Servs., Inc., 937 F.2d at 403 (holding that the
plaintiff’s asserted legal basis for coverage “is irrelevant to the determination of whether
17
[the insurance] policy provides coverage,” and instead looking to the facts underlying the
claim for coverage); County of Columbia, 595 N.Y.S.2d at 990 (“[T]he issue is not
whether a nuisance or trespass claim may possibly fit within the policies’ personal injury
coverage but whether the facts alleged in [the] complaint do.”).
East Central has not alleged that Creek County Well Service interfered with a real
property right that it holds, as is required by the definition of personal injury that it seeks
to utilize. Instead, it has claimed that its easement in combination with the Six-Foot Rule
gave it a right “to maintain its electrical system on its easement without third party
interference.” See Aplt’s Br. at 10. Neither its easement nor the Six-Foot Rule creates in
East Central the kind of real property right contemplated by the policy.
An easement does not vest title in its possessor. Lindhorst v. Wright, 616 P.2d
450, 454 Okla. Ct. App. 1980); City of Elk City v. Coffey, 562 P.2d 160, 163 (Okla. Ct.
App. 1977). Instead, it “is a right to make use of another’s land for some definite and
limited purpose.” Bonner v. Oklahoma Rock Corp., 863 P.2d 1176, 1181 (Okla. 1993);
accord Story v. Hefner, 540 P.2d 562, 566 (Okla. 1975); Lindhorst, 616 P.2d at 454.
Here, East Central was granted an easement for a “definite and limited purpose,” Bonner,
863 P.2d at 1181:
to place, construct, operate, repair, maintain, relocate, and replace thereon
poles, fixtures, wires, cables, guys, transformers and other necessary
appurtenances for the overhead distribution of electrical and communication
services, and to cut and trim trees and shrubbery to the extent necessary to
keep them clear of said electric line or system and to cut down from time to
time all dead, weak, leaning or dangerous trees as determined by the
18
Cooperative that are tall enough to strike the wire in falling.
Aplt’s App., vol. II, Ex. G at 646. This limited right “to make use of another’s land,” see
Bonner, 863 P.2d at 1181, does not vest East Central with the right of private occupancy
in that land. Thus, any interference with this easement by Creek County Well Service
does not constitute an “invasion of [a] right of private occupancy” under the personal
injury definition of Creek County Well Service’s CGL Policy. See Aplt’s App., vol. II,
Ex. F at 389.
Although the Six-Foot Rule has not previously been interpreted in this context,5 we
do not believe that the Oklahoma Supreme Court would determine that the Rule’s
prohibition of any activity within six feet of an owner or operator’s power line creates in
that owner or operator a real property right in the six feet surrounding its power line. The
Six-Foot Rule clearly does not grant East Central title to the airspace within six feet of its
lines, but instead is designed to penalize those who come within that airspace, see Okla.
Stat. tit. 63, § 984 (making violation of the law a misdemeanor); Trett v. Oklahoma Gas
& Elec., 775 P.2d 275, 279 (Okla. 1989) (citing Okla. Stat. tit. 63, § 984), and to
5
The Oklahoma Supreme Court has interpreted only the statute’s constitutionality, see
Kimery v. Public Serv. Co., 622 P.2d 1066, 1070-71 (Okla. 1980) (holding that the Six-Foot
Rule, Okla. Stat. tit. 63, § 981, is constitutional), and its interaction with Oklahoma’s Workers
Compensation Act, Okla. Stat. tit. 85, § 12, see Ring v. Public Serv. Co., 775 P.2d 1356, 1357
(Okla. 1989) (holding that the immunity afforded an employer under the Workers’ Compensation
Act, Okla. Stat. tit. 85, § 12, does not shield it from liability to a power company for a loss paid
by the employer because of a violation of the Six-Foot Rule, Okla. Stat. tit. 63, § 981); Travelers
Ins. Co. v. L.V. French Truck Serv., 770 P.2d 551, 553 (Okla. 1988) (same).
19
indemnify power companies for “all liability” that they incur as a result of violations of
the Rule, see Okla. Stat. tit. 63, § 984 (making violators of the law liable to the owner or
operator of the power line “for all damage to [the owner’s or operator’s] facilities and for
all liability incurred by [the] owner or operator as a result of any . . . accidental contact”).
III. CONCLUSION
Through its claim that the personal injury provision in Part II of the Broad Form
Comprehensive General Liability Endorsement to the CGL Policy provides coverage for
its loss, East Central has attempted to expand the coverage of Creek County Well
Service’s CGL Policy in an effort to secure payment of a greater portion of its $4,000,000
judgment against Creek County Well Service. However, under the CGL Policy between
Creek County Well Service and Liberty, Creek County Well Service paid premiums to
cover a defined set of risks, and Liberty cannot now be forced to expand that set. Cf.
Martin, 699 F. Supp. at 171 (refusing to expand coverage beyond the categories of
coverage specified in the policy for which the insured paid a premium). Because East
Central’s claim is one for indemnification for bodily injuries, specifically excluded under
the CGL Policy, we AFFIRM the district court’s grant of summary judgment to Liberty
on its declaratory judgment claim.
20
Liberty Mutual Insurance v. East Central Oklahoma Electric Cooperative
Court: Court of Appeals for the Tenth Circuit
Date filed: 1996-09-26
Citations: 97 F.3d 383
Copy CitationsCombined Opinion