author: BOUDREAU, Justice: OP ALA, J.,

text:
    2002 OK 74
    In the Matter of the Application of the OKLAHOMA DEPARTMENT OF TRANSPORTATION FOR APPROVAL OF NOT TO EXCEED $100 MILLION OKLAHOMA DEPARTMENT OF TRANSPORTATION GRANT ANTICIPATION NOTES, SERIES 2002.
    No. 97,419.
    Supreme Court of Oklahoma.
    Sept. 24, 2002.
    As Corrected Dec. 11, 2002.
    Rehearing Denied Dec. 10, 2002.

      Thomas G. Hilborne, Jr., Tulsa, Gary M. Bush, Douglas F. Price, Assistant Attorney General, and Norman N. Hill, General Counsel, Oklahoma Department of Transportation, Oklahoma City, OK, for Oklahoma Department of Transportation, Applicant.
    Jerry R. Fent, Oklahoma City, OK, pro se Respondent.
   BOUDREAU, Justice:

¶ 1 The Oklahoma Department of Transportation (ODOT) seeks pre-issuance approval of Grant Anticipation Notes, Series 2002, in an amount not to exceed One Hundred Million Dollars. The notes are a funding source for an ambitious highway improvement and expansion plan adopted by the Legislature in 1997 and amended in 2000. 69 O.S. Supp.1997 and 2000, §§ 2001 et. seq. The ODOT is authorized to issue the notes in 69 O.S.2001, § 2001(E)(2).

¶ 2 Title 20 O.S.2001, § 14.2 confers exclusive, original jurisdiction upon this Court to hear and determine ODOT’s application to approve the obligations to be issued. The statute requires this Court to determine if the obligations have been properly authorized in accordance with law and that, when issued, they will constitute valid obligations in accordance with their terms. Therefore, the repeal became effective ninety days after the Legislature adjourned sine die on may 23, 2002. Okla.Const., art. 5, §§ 58.

I. Background

¶ 3 On February 1, 2002, the voting members of the Contingency Review Board (CRB), the Governor, the President Pro Tempore of the Senate and the Speaker of the House of Representatives, unanimously approved the Pro Tempore’s motion to approve the issuance of grant anticipation notes by the ODOT. The authorization language in § 2001(E)(2), supra., requires the CRB’s unanimous approval before issuance of the grant anticipation notes.

¶ 4 On February 4, 2002, the Transportation Commission authorized ODOT to issue grant anticipation notes in an amount not to exceed One Hundred Million Dollars. The Transportation Commission is the governing and policymaking body for ODOT. The Transportation Commission resolved that the proposed obligations would be paid with anticipated federal highway funds.

¶ 5 On February 28, 2002, both the Executive Bond Oversight Commission (EBOC) and the Legislative Bond Oversight Commission (LBOC) unanimously approved ODOT’s proposal to issue the grant anticipation notes, subject to specified conditions being satisfied prior to issuance. Under the Oklahoma Bond Oversight and Reform Act, 62 O.S. 2001, §§ 695.1 et seq., the proposed grant anticipation notes must be approved by both the EBOC and the LBOC.

¶ 6 On March 6, 2002, ODOT filed an application with this Court seeking a determination that the proposed obligations, Oklahoma Department of Transportation Grant Anticipation Notes, Series 2002, have been authorized in accordance with law and, if issued, are valid. Jerry Fent, a citizen and resident taxpayer and voter of the State of Oklahoma, timely filed his protest to ODOT’s application.

¶ 7 Fent contends that the statutory scheme for authorizing the issuance of the proposed obligations is constitutionally flawed. He argues that the statutorily-required approval of the proposed obligations by either the CRB or the LBOC violates the state constitutional separation of powers provision. Fent also urges that the legislators sitting on the CRB and the LBOC are serving in the executive as well as legislative departments of government and are in violation of the prohibition against holding dual state offices. Fent requests this Court to deny pre-issuance approval of the notes.

II. Separation of Powers

¶ 8 The Oklahoma Constitution recognizes three separate departments of government and demands each of those branches remain separate and distinct. The Oklahoma Constitution, art. 4, § 1, states:

The powers of the government of the State of Oklahoma shall be divided into three separate departments: The Legislative, Executive, and Judicial; and except as provided in this Constitution, the Legislative, Executive, and Judicial departments of government shall be separate and distinct, and neither shall exercise the powers properly belonging to either of the others.

This separation of powers provision mandates that each department of the government shall be kept independent in the sense that the acts of each shall never be controlled by or subjected, directly or indirectly, to the coercive influences of either of the other departments. York v. Turpen, 1984 OK 26, ¶ 9, 681 P.2d 763, 767.

¶ 9 Historically, Oklahoma analyzed separation of powers issues by formalisticly classifying the governmental function as either legislative, executive or judicial in nature and assigning plenary control accordingly. In Tweedy v. State, ex rel. Oklahoma Bar Ass’n, 1981 OK 12, ¶¶ 9-11, 624 P.2d 1049, 1054, the Court distinguished executive and legislative duties:

¶ 9 Legislative, as distinguished from executive, power is the authority to make law, but not to execute it or to appoint agents charged with the duty of enforcement. The latter is purely an executive function.
¶ 11 While as a legislator in the arena of bar ethics, this Court can and does fashion, by rules, the necessary prosecutorial machinery, it cannot itself exercise enforcement powers for, or on behalf of, the instrumentality it has created.

Similarly, City of Sand Springs v. Dept. of Public Welfare, 1980 OK 36, ¶ 12, 608 P.2d 1139, 1146, said:

¶ 12 This Court has committed itself to the proposition that the essence of the legislative function is the determination of policy; indeed, the dichotomy between administrative acts and legislative acts hinges upon the declaration of policy, which is a legislative function, and the implementation of that policy, which is traditionally an administrative function.

¶ 10 However, the Court has also recognized that there can be blending of the three powers of government and that it is not always possible to contain the three branches of government into “water tight compartments”. See Bailey v. State Bd. of Public Affairs, 1944 OK 301, 194 Okla. 495, 153 P.2d 235, 239 (quoting Springer v. Govt. of the Philippine Islands, 277 U.S. 189, 48 S.Ct. 480, 485, 72 L.Ed. 845 (1928)). This blending of powers is especially prevalent in the area of administrative law where administrative agencies and officials, in exercising the powers delegated to them, typically exercise all three types of powers and are responsive to some degree of control by each of the constitutional departments. Burgeoning administrative bureaucracies, both state and federal, now make it more difficult to neatly classify the function and make the application of the formalistic approach to separation of powers issues more problematic. See John Devlin, Toward a State Constitutional Analysis of Allocation of Powers: Legislators and Legislative Appointees Performing Administrative Functions, 66 Temple L.Rev. 1205 (1993).

¶ 11 A more practical and potentially fruitful approach to separation of powers issues was set out by the Kansas Supreme Court in Schneider v. Bennett, 219 Kan. 285, 547 P.2d 786 (1976). In Bennett, the Kansas court considered a constitutional challenge based on separation of powers to statutory powers vested in a state finance council comprised of the governor and eight members of the legislature. In an opinion holding some of the statutory powers vested in the council as constitutional and others as unconstitutional, the Kansas court stressed that the separation of powers doctrine does not in all cases prevent individual members of the legislature from serving on administrative boards or commissions created by statute.

¶ 12 Rather than focusing exclusively on how a function might be conceptually classified, the Bennett court considered specific facts of the case to determine whether a challenged arrangement constituted a “usurpation by one department of the powers of another department”. Id. at 792. Bennett held that such a usurpation occurs when one department is being “subjected directly or indirectly to the coercive influences of’ another, and when there is “a significant interference by one department with the operations of another department.” Id. at 792. If such a usurpation by one department of the powers of another occurs, it marks a breach in the separation of power between distinct branches of government.

¶ 13 The Bennett court considered a nonexclusive set of four criteria in deciding separation of powers issues. The first eriterium required the court to consider the “essential nature of the power being exercised. Is the power exclusively executive or legislative or is it a blend of the two?” Id. The second eriterium asked what degree of control is the legislature trying to exercise. Is the influence coercive or cooperative? Id. The third eriterium sought to discover the legislature’s objective. “Is the intent of the legislature to cooperate with the executive by furnishing some special expertise of one or more of its members or is the objective of the legislature obviously one of establishing its superiority over the executive department in an area essentially executive in nature?” Id. The fourth eriterium asked what is the “practical result of the blending of powers as shown by actual experience over a period of time where such evidence is available.” Id. The Bennett court acknowledged that other factors may prove relevant in different cases and encouraged consideration of specific facts which may show that a usurpation of power has occurred. Id. at 792-93.

III. The Legislative Bond Oversight Commission

¶ 14 In 1987, our Legislature determined there was a need to reform current procedures regarding the issuance and sale of bonds or other obligations by state entities which are essential to the state’s economic well-being and enacted the Oklahoma Bond Oversight and Reform Act. 62 O.S.2001, §§ 695.1, et seq. Since enactment of the bond oversight legislation, no state governmental entity may issue any obligations unless such obligations have been approved by the EBOC and the LBOC. 62 O.S.2001, § 695.9. Although not specifically referenced in the highway improvement and expansion plan, LBOC approval of the proposed ODOT grant anticipation notes is required.

¶ 15 The composition of the LBOC is outlined in 62 O.S.2001, § 695.4. The statute simply provides that the Speaker of the House of Representatives and the President Pro Tempore of the Senate shall appoint three members each to the six-member LBOC. The original version of the statute required the appointment of specific committee chairpersons from the Oklahoma Senate and House of Representatives. While the current version of the statute does not require the Speaker and Pro Tempore to appoint legislators to the LBOC, all current members appointed to the commission are legislators.

¶ 16 In examining whether LBOC approval of obligations to be issued by a state entity violates the separation of powers doctrine, we turn to the factors enunciated in Bennett. In the instant controversy, the LBOC approved grant anticipation notes after the Transportation Commission authorized the ODOT to issue the notes. In approving the notes, the LBOC exercised a power that cannot be classified as purely legislative, because it is beyond the Legislature’s fundamental role to make the law. While the power may be tangentially related to the Legislature’s control over fiscal matters, its dominant aspect involves carrying out legislative policy and applying it to varying conditions. J. Brotton Corp. v. Oklahoma Alcoholic Beverage Laws Enforcement Comm’n, 1991 OK 126, 822 P.2d 683, 685-6. In other words, the LBOC consists of individual legislators exercising powers that are primarily executive or administrative.

¶ 17 In evaluating the degree of control exercised by the commission, we note that it consists entirely of sitting legislators. No executive officer sits on the LBOC to control the power or effect that the six legislators have on this vital phase of the approval process. These six legislators can halt the entire issuance of the grant anticipation notes even if the executive branch desires to move their approval. 62 O.S.2001, § 695.9. Accordingly, the LBOC is a vehicle by which the executive department is being subjected to the coercive influence of the legislative department.

¶ 18 The question of legislative intent is closely linked to the issue of legislative control, but looks more closely at the Legislature’s actual motives. In evaluating the motive of the Kansas Legislature in creating a state finance council, the Bennett court considered whether there was some legislative intent to cooperate, such as providing “some special expertise of one or more of its members” or if the legislature’s efforts seemed to be more a matter of “establishing superiority”. Id. at 798. Section 695.4, creating the LBOC, contains no requirement that its appointees possess any expertise, knowledge or skill valuable in evaluating bonds or anticipation notes. In contrast, the “Oklahoma State Bond Advisor”, who is jointly engaged by the EBOC and the LBOC, must be “knowledgeable in the current state of the art of national and international standards for the issuance of obligations by governmental entities!.]” 62 O.S.2001, § 695.7(A).

¶ 19 The absence of any statutory language addressing the qualifications of those appointed to serve on the LBOC combined with the exclusive legislative make-up of the LBOC, results in a situation ideal for implementing legislative superiority and control over the approval process itself. While we cannot be certain this was the Legislature’s motive, it is the effect achieved. Although the statute allows the Legislature the flexibility to appoint non-legislators to the LBOC, it has appointed a commission composed exclusively of legislators. This evinces a motive to retain legislative control over the note-approval process.

¶20 Bennett suggests that the reviewing court also examine the “practical effect of the blending of powers as shown by actual experience over a period of time where such evidence is available.” The record before us does not reveal the historical experience of this blending of powers over time and accordingly this factor is not significant in our analysis.

II21 Our analysis leads us to conclude that the power wielded by the six legislative members of the LBOC is potentially coercive and may constitute a significant interference with the executive branch in the note-approval process. The LBOC, as composed, is effectively a mini-legislature implanted in the note-approval process. We find that the challenged arrangement, the approval of the LBOC in the note-approval process, constitutes a usurpation by the Legislature of the powers of the executive branch and violates Oklahoma’s constitutional separation of powers provision.

IV. The Contingency Review Board

¶ 22 The CRB consists of three voting members, the Governor, the President Pro Tempore of the Senate and the Speaker of the House of Representatives and one nonvoting member, the Director of State Finance. 74 O.S.2001, § 3605(A). The Legislature created the CRB as a mechanism to deal with agency needs regarding increases in personnel or expenditures in emergency situations, “which could not have been foreseen during the preceding Legislative Session.” 74 O.S.2001, § 3603(A)-(C). Subsequently, it injected the CRB in the process for approving bonds and notes to fund the highway improvement and expansion plan. The specific statutory language at issue is-the last sentence of 69 O.S.2001, § 2001(E)(2): “Such bond issue or issues shall be subject to the unanimous approval of the Contingency Review Board.”

¶23 While our analysis in deciding the separation of powers issue regarding the CRB is in many respects similar to our analysis with respect to the LBOC, there are some significant differences. The degree of control sought by the Legislature in injecting the CRB in the note-approval process is not quite as clear as that sought by requiring approval of the LBOC. Because the Governor sits on the CRB, he can exercise some control over the decisions of the CRB, especially since the board’s approval must be unanimous. However, the President Pro Tempore of the Senate and the Speaker of the House of Representatives can exercise an equal amount of control over the Governor, because their votes carry the same weight as his due to the unanimity requirement. In terms of blocking the approval of the notes, the unanimity requirement allows the Governor to defeat obligations he does not want approved. At the same time the unanimity requirement may prevent the Governor from securing obligations he would like approved, because the Pro Tempore or the Speaker can veto as well. While the legislative members of the CRB do not have the absolute control over the approval process as do the members of the LBOC, they still possess a significant degree of control over an executive function.

¶24 The motive of the Legislature in injecting the CRB into the approval process might be viewed as suspect. The Legislature has gone beyond the justifications and original policy declarations underlying the creation of the CRB. 74 O.S.2001, §§ 3603 & 3605. The CRB was created to provide a stop-gap measure to deal with unexpected personnel and expenditure needs of various agencies when the Legislature was not in session. Implanting the CRB in the midst of the execution of the highway improvement and expansion plan goes far beyond the Legislature’s original policy declarations for the CRB. It suggests that the Legislature injected the CRB in the note-approval process in an attempt to assert more legislative control in that process. By injecting the CRB in the approval process, the Legislature has in effect placed two potential legislative obstacles, namely the Pro Tempore and the Speaker, in the path of the note-approval process.

¶25 While the Legislature included the Governor as a member of the CRB, his inclusion on the board is redundant, because the Governor’s participation in the approval process is already provided for by virtue of his presence on the EBOC. 62 O.S.2001, § 695.5(A)(1). As a result, the only practical effect of the CRB’s participation in the highway improvement statute is the addition of the Pro Tempore and the Speaker. This redundancy would further support the argument that the CRB is but an effort to maintain more legislative control of the process.

¶ 26 Our analysis leads us to conclude that the power wielded by the President Pro Tempore of the Senate and the Speaker of the House of Representatives is potentially coercive and may constitute a significant interference with the executive branch in the approval of grant anticipation notes. We find that the challenged arrangement, the approval of the CRB in the note-approval process, constitutes a usurpation by the Legislature of the powers of the executive branch and violates Oklahoma’s constitutional separation of powers provision.

Y. Severability

¶27 Because the approval mechanisms of the LBOC and CRB, as they were implemented in this approval process in February 2002, violated our constitutional separation of powers provision, this Court must consider whether the offending portions are severable and the remainder of the statutes can be preserved. The cardinal principle of statutory construction is to save and not destroy. NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 30, 57 S.Ct. 615, 81 L.Ed. 893 (1937); Coyle v. Smith, 1911 OK 64, 28 Okla. 121, 113 P. 944, 971. In keeping with this goal, our statutory construction jurisprudence also requires that we examine whether the legislative purpose or object in passing the act is significantly undercut or altered by the elimination of the invalid portions of the statute. See Tulsa Exposition & Fair Corp. v. Board of Co. Comm’rs of Tulsa Co., 1970 OK 67, 468 P.2d 501, 507. Therefore, we must determine if the Legislature would have enacted the remainder of the statute without the offending or unconstitutional language and whether .the remaining, non-offending language is capable of standing alone. Ethics Comm’n v. Cullison, 1993 OK 37, 850 P.2d 1069, 1077; and 75 O.S.2001, § 11a.

¶28 In our view, the Legislature would have, in the event that the LBOC was found unconstitutional, enacted the remainder of the Bond Oversight and Reform Act without the LBOC and clearly intended the remaining, non-offending language of the Bond Oversight and Reform Act to stand alone. The 1987 enactment of bond oversight specifically provided for severability. Subsequently, the Legislature amended the bond oversight statutes, adding 62 O.S.2001, § 695.11A. Section 695.11A contains language that is, in effect, a severability provision: “In the event either the Executive or Legislative Bond Oversight Commission is found unconstitutional by a final, unappeased order of a court of competent jurisdiction, all of the powers, duties and responsibilities of the Commissions shall devolve upon the Council of Bond Oversight.” Section 695.11A clearly demonstrates that the Legislature foresaw possible constitutional problems with the LBOC and desired, in the event a court determined the LBOC to be unconstitutional, that the bond and note approval process continue without the LBOC. Accordingly, we find the required approval of the LBOC, set forth in 62 O.S.2001, § 695.9 is severable from the remainder of the Oklahoma Bond Oversight and Reform Act.

¶ 29 Likewise, we view the CRB’s role in 69 O.S.2001, § 2001(E)(2) as severable from the remainder of the statute. Our view is consistent with the statutory presumption created in 75 O.S.2001, § 11a providing that if any provision of an act enacted after July 1, 1989, is found to be unconstitutional the remaining provisions shall remain valid, unless there is a judicial determination that a) the valid provisions are dependent upon and inseparably connected to the invalid provision or b) the valid provisions standing alone are incomplete and incapable of being executed.

¶ 30 In 2000, the Legislature amended its highway improvement and expansion plan of 1995 to authorize the ODOT to issue grant anticipation notes for highway projects of economic significance. Grant anticipation notes are a financing mechanism for state highway projects whereby future federal highway funds are dedicated to repay principal, interest, and other costs associated with the notes as authorized in 23 U.S.C. § 122(b)(1995). The obvious legislative purpose of the amendment to § 2001(E)(2) is to allow the state to utilize this financing mechanism. The amendment subjected the issuance of grant anticipation notes to the unanimous approval of the CRB. In our view, the Legislature would have authorized ODOT to participate in the financing of highway projects through grant anticipation notes to be repaid from future federal highway funds with or without the CRB approval provision.

¶31 The invalid provision in § 2001(E)(2) relating to the CRB is presumed to be sever-able and Fent has failed to overcome this statutory presumption. Accordingly, we find the required approval of the CRB set forth in 69 O.S.2001, § 2001(E)(2) is severable from the remainder of the statute.

VI. The Notes in Controversy Have Not Been Properly Authorized in Accordance With Law

¶ 32 Fent contends that if the LBOC approval is unconstitutional then the grant anticipation notes cannot be authorized in accordance with law. Fent relies on State ex rel Tharel v. Board of Comm’rs of Creek County, 1940 OK 468, 188 Okla. 184, 107 P.2d 542, for the proposition that an unconstitutional statute imposes no duties and confers no power. On the other hand, ODOT contends that if the LBOC is unconstitutional then LBOC approval for the issuance of the grant anticipation notes is not required and the notes may be issued without such approval.

¶ 33 The Bond Oversight and Reform Act provides for oversight and approval through the EBOC and the LBOC. 62 O.S.2001, §§ 695.4 & 695.5. Section 695.11A provides that if the LBOC is found to be unconstitutional then the powers, duties and responsibilities of both the EBOC and the LBOC devolve upon the Council of Bond Oversight. In enacting § 695.11A, the Legislature clearly intended that some mechanism for oversight be in place in the bond and note approval process even if the LBOC is found to be unconstitutional. It is clear that the language of § 695.11A does not allow us to dispense with any oversight at all as suggested by ODOT.

¶34 The language of § 695.11A requires the proposed grant anticipation notes to be presented to the Council of Bond Oversight for consideration. Because the notes in controversy have not been presented to the Council of Bond Oversight, the approval process is not yet complete. Accordingly, until the note-approval process is complete, we cannot conclude the notes have been approved in accordance with law.

VII. Conclusion

¶35 In summary, the power wielded by the six legislative members of the LBOC is potentially coercive and constitutes a significant interference with the executive branch in the note-approval process. The LBOC constitutes a usurpation by the Legislature of the powers of the executive branch in violation of Oklahoma’s constitutional separation of powers provision.

¶ 36 The power wielded by the President Pro Tempore of the Senate and the Speaker of the House of Representatives as members of the CRB is potentially coercive and constitutes a significant interference with the executive branch in the issuance of grant anticipation notes. The approval of the CRB in the note-approval process constitutes a usurpation by the Legislature of the powers of the executive branch in violation of Oklahoma’s constitutional separation of powers provision.

¶ 37 The required approval of the LBOC, set forth in 62 O.S.2001, § 695.9 is severed from the remainder of the Oklahoma Bond Oversight and Reform Act. The required approval of the CRB set forth in 69 O.S.2001, § 2001(E)(2) is severed and stricken from the statute.

¶ 38 Today’s decision that the LBOC violates the Oklahoma Constitution, art. IV, § 1, causes, by operation of 62 O.S.2001, § 695.11A, the powers, duties and responsibilities of both the EBOC and the LBOC to devolve upon the Council of Bond Oversight. The proposed grant anticipation notes have not been presented to the Council of Bond Oversight, making the process as yet incomplete. Having not completed the approval process, this Court cannot determine these notes have been properly authorized in accordance with law. Title 20 O.S.2001, § 14.2 does not permit this Court to approve the grant anticipation notes if they are not authorized in accordance with the law.

APPLICATION FOR APPROVAL OF NOT TO EXCEED $100 MILLION OKLAHOMA DEPARTMENT OF TRANSPORTATION GRANT ANTICIPATION NOTES, SERIES 2002, IS DENIED.

WATT, V.C.J., HODGES, LAVENDER, KAUGER, SUMMERS and WINCHESTER, JJ., Concur.

OP ALA, J.,

Coneuring in Result.

Although I concur in today’s denial of the application, I do not join in the text of the court’s pronouncement. My views may be found in Application of Oklahoma Capitol Imp. Auth., 1998 OK 25, 958 P.2d 759, 779 (Opala, J., dissenting).

HARGRAVE, C.J., Dissents.

      . 1997 Okla.Sess.Laws, ch. 329, §§ 1 et seq. and 2000 Okla.Sess.Laws, ch. 401, §§ 1 et seq.

      . In 2000, the Legislature added two sentences at the end of § 2001(E)(2) to authorize ODOT to issue grant anticipation notes. The first sentence permits the issuance of the notes and the second sentence requires "such bonds” be approved by the Contingency Review Board. Apparently, the Legislature used the terms "notes" and "bonds” interchangeably. The two sentences added to § 2001(E)(2) read:
      E.
      2....The Department of Transportation may issue Grant Anticipation Notes for projects of economic significance. Such bond issue or issues shall be subject to the unanimous approval of the Contingency Review Board.

      . The pertinent parts of 20 O.S.2001, § 14.2 provide:
      Any department, institution, board, bureau, division, commission, agency, trusteeship or authority of state government authorized to issue bonds, notes or other evidences of indebtedness ("obligations”) is authorized in its discretion to file an application with the Supreme Court of Oklahoma for the approval of any obligations to be issued by it, and exclusive original jurisdiction is hereby conferred upon the Supreme Court to hear and determine each such application.... The decision of the Supreme Court shall be a judicial determination of the validity of the obligations, shall be conclusive as to the applicant, its officers and agents, and thereafter the obligations so approved and the revenues pledged to their payment shall be incontestable in any court in the State of Oklahoma.
      We note the Legislature repealed 20 O.S.2001, § 14.2, in 2002 Okla. Sess. Laws, ch. 481, § 4. That act had no emergency clause. Therefore, the repeal became effective ninety days after the Legislature adjourned sine die on May 23, 2001. Okla. Const., art. 5, § 58.

      . On February 1, 2002, the Contingency Review Board was comprised of Governor Frank Keating, as chairman, President Pro Tempore Strat-ton Taylor and Speaker Larry Adair.

      . See footnote 2, supra., for the statutory text.

      . Grant anticipation notes are a financing mechanism for state highway projects whereby future federal highway funds are dedicated to repay principal, interest, and other costs associated with the notes as authorized in 23 U.S.C. § 122(b)(1995).

      . 69 O.S.2001, § 4006.

      . The Transportation Commission’s Resolution, Form Note and Master Trust Indenture are included in the filings in this Court.

      . A letter from the State Bond Advisor dated February 28, 2002, states both the Executive and Legislative Bond Oversight Commissions approved the issuance of the proposed notes. A draft of the minutes of the LBOC indicate a voice vote of "aye” was cast by all the members, to-wit: Senators Larry Dickerson, Kevin Easley and Ted Fisher, and Representatives Larry Rice, Ron Langmacher and Opio Toure.

      .Because we find the approval scheme for state obligations violates the separation of powers doctrine, we do not consider the dual office holding argument.

      . 1987 Okla.Sess.Laws, ch. 222, §§ 91-101.

      . 1987 Okla.Sess.Laws, ch. 222, § 94.

      . This Court notes that any questions concerning the validity or constitutionality of the CRB with regard to any power it exercises outside of 69 O.S.2001, § 2001(E)(2) is not before the Court. This opinion is not to be viewed in any manner as a statement regarding the validity of the CRB or its duties outside of the specific discussion above.

      . 1987 Okla.Sess.Laws, ch. 222, § 125 provided:
      The provisions of this act are severable and if any part or provision shall be held void the decision of the court so holding shall not affect or impair any of the remaining parts or provisions of this act, except that, should either the Legislative Bond Oversight Commission created by Section 94 of this act or the Executive Bond Oversight Commission created by Section 95 of this act be held void, neither shall be operative.

      .62 O.S.2001, § 695.11A was added in 1989 Okla.Sess.Laws, ch. 374, § 14.

      . 75 O.S.2001, § 11a was added in 1989 Okla. Sess.Laws, ch. 154, § 1.

      . See, footnote 2, supra.

      .The severability clause in the measure enacting the Bond Oversight and Reform Act provides that if the LBOC is declared unconstitutional then both the EBOC and the LBOC are inoperable. See footnote 14, supra.

      . Although we express no opinion on whether the make-up of the Council of Bond Oversight might present the same constitutional difficulties relating to separation of powers as does the Legislative Bond Oversight Commission, we note that unlike the LBOC, the Council of Bond Oversight is not made up of a majority of legislators, nor could the members appointed by either the President Pro Tempore of the Senate or the Speaker of the House of Representatives effectively block bond approval. Title 62 O.S.2001, § 695.11A(B) provides:
      B. The Council shall consist of five (5) non-legislative members. One member shall be appointed by the Speaker of the House of Representatives, one member shall be appointed by the President Pro Tempore of the Senate, two members shall be appointed by the Governor with the advice and consent of the Senate and one member shall be the Director of State Finance. Three members of the Council shall constitute a quorum. The affirmative vote of three members present and voting shall be necessary for any action taken by the Council. Appointed members shall serve a term of two (2) years and may be removed for cause by the appointing authority. Members may be appointed for additional terms.


source: Caselaw Access Project

license: Public Domain

text:
    2003 OK CR 3
    The STATE of Oklahoma, ex rel., C. Wesley LANE II, District Attorney for the Seventh Prosecutorial District, Petitioner, v. The Honorable Jerry D. BASS, District Judge, District Court of Oklahoma County, State of Oklahoma, Respondent.
    No. PR-2002-1378.
    Court of Criminal Appeals of Oklahoma.
    Feb. 14, 2003.
   ORDER GRANTING RELIEF AND LIFTING STAY OF DISTRICT COURT PROCEEDINGS

¶ 1 Petitioner filed an application requesting this Court to assume jurisdiction and issue an extraordinary writ of prohibition in Oklahoma County District Court Case No. CF-01-6674, prohibiting Respondent from sentencing Defendant Reece according to the provisions of 22 O.S.2001, § 996 et seq.

¶ 2 On August 21, 2002, Defendant Reece entered blind pleas of guilty to Count I, Robbery with a Dangerous Weapon, Count II, Grand Larceny, Count III, Conspiracy to Commit a Felony, i.e., Robbery, Count TV, Kidnapping, and Count V, Larceny of a Motor Vehicle. Defendant Reece was scheduled to be sentenced by Respondent on October 11, 2002.

¶3 At sentencing, counsel for Defendant asked the trial court to sentence Defendant Reece under the provisions of the Delayed Sentencing Program for Young Adults (“DSPYA”). Petitioner objected, arguing Reece was not an “offender” as defined under DSPYA, and therefore not eligible to be sentenced under the Act. Specifically, Petitioner argued that having entered a plea of guilty, Reece is now “convicted” of the charged offenses in CF-01-6674, two of which are enumerated in the DSPYA as crimes for which a conviction disqualifies a person as an “offender”.

¶ 4 Respondent entertained argument from both counsel, announced an intention to sentence Defendant Reece under the DSPYA, but continued the sentencing to allow Petitioner to file this application for extraordinary relief. On November 19, 2002, this Court stayed the District Court proceedings in this matter and directed a Response from Respondent, or a designated representative. On December 20, 2002, Respondent filed the Response.

¶ 5 After a review of the record, we find Petitioner has met its burden of establishing Respondent is about to exercise judicial power that is unauthorized by law, a requirement for a writ of prohibition to issue. Rule 10.6(A), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, Ap'p. (2002). We find that the pleas of guilty entered by Defendant Reece in Case No. CF-01-6674 constitute “convictions” under the Act and therefore disqualify him from being considered an “offender” under the DSPYA. The term “conviction” under the Act is interpreted as meaning “committed” any of the following enumerated offenses that disqualify a person from being sentenced under the Act.

¶ 6 In this case, Defendant Reece has entered pleas of guilty to the aforementioned charges. Those pleas are admissions he committed those offenses and render him convicted of the charged offenses; all that awaits now is sentencing. An offender’s eligibility for sentencing under the DSPYA is wholly dependent upon the offense(s) committed by the offender. See 22 O.S.2001, § 996.1. Having now admitted he committed the offenses, and been convicted of Robbery with a Dangerous Weapon and Kidnapping, Defendant Reece cannot be considered an “offender” as defined by the DSPYA, and is therefore not eligible to be sentenced under the Act.

¶ 7 Petitioner’s request for a writ of prohibition is GRANTED. The stay of proceedings previously entered by this Court in Oklahoma County District Court Case No. CF-01-6674 is hereby lifted and this matter is remanded to the District Court for further proceedings consistent with this Order.

¶ 8 IT IS SO ORDERED.

¶ 9 WITNESS OUR HANDS AND THE SEAL OF THIS COURT this 14th day of February, 2003.

/s/ Charles A. Johnson

CHARLES A. JOHNSON, Presiding Judge

/s/ Steve Lile, Specially Concurs

STEVE-LILE, Presiding Judge

/s/ Gary L. Lumpkin

GARY L. LUMPKIN, Judge

/s/ Charles S. Chapel

CHARLES S. CHAPEL, Judge

/s/ Reta M. Strubhar

RETA M. STRUBHAR, Judge

LILE, Vice Presiding Judge

specially concurs.

¶ 1 “The word ‘conviction’ is of equivocal meaning, and its use and meaning may vary depending on the particular circumstances.” 24 C.J.S., § 1468. Conviction may mean that guilt has been established by plea or trial. Conviction may mean judgment and sentence. As used in 22 O.S.2001, § 1077, conviction means establishment of guilt. Zaritz v. State, 1990 OK CR 3, 785 P.2d 1043; Milligan v. Beekman, 1991 OK CR 47, 809 P.2d 693. As used in 21 O.S.2001, § 51.1, conviction means judgment and sentence.

¶ 2 In the statute interpreted today “convicted” is used with both meanings in one sentence: “... who has not previously been convicted of two or more felonies, and who has not been convicted of assault and battery with a dangerous weapon, ... or arson in the first degree.” 22 O.S.2001, § 996.1.

¶ 3 When first used in this section, convicted means previous judgments and sentences. When subsequently used, convictions refers to the crimes before the court and means a determination of guilt, i.e. by plea or trial. The meaning is derived from the history and purpose of the statutory enactment. Therefore, I concur in the Court’s order.

      . The same rationale would apply had a jury found Defendant Reece guilty.

      . The DSPYA is the successor to the Nonviolent Intermediate Offender Act. 22 O.S.1981, § 995 et seq. Eligibility for sentencing under that Act was predicated on the commission of nonviolent felony offenses. See § 995.1. This interpretation is consistent with the application of the previous Act and our application of the DSPYA in Lozoya v. State, 1996 OK CR 55, 932 P.2d 22, 28.


author: LARRY JOPLIN, Vice-Chief Judge:

text:
    2003 OK CIV APP 17
    Jill RITTER and Tom Ritter, Plaintiffs/Appellants, v. The BITUMINOUS CASUALTY COMPANY, Defendant/Appellee.
    No. 97,332.
    Court of Civil Appeals of Oklahoma, Division No. 1.
    Oct. 31, 2002.
    Rehearing Denied Dec. 5, 2002.
    Certiorari Denied Feb. 11, 2003.
    Charles F. Alden, III, H. David Hanes, Hudson & Alden, Oklahoma City, OK, for Appellants.
    Robert N. Naifeh, Jr., Derryberry, Quig-ley, Solomon & Naifeh, Oklahoma City, OK, for Appellee.
   LARRY JOPLIN, Vice-Chief Judge:

¶ 1 Plaintiffs/Appellants Jill and Tom Rit-ter (the Ritters or Plaintiffs) seek review of the trial court’s order granting the motion for summary judgment of Defendant/Appel-lee The Bituminous Casualty Company (Bituminous or Defendant) on the Ritters’ negligence claim. Finding Bituminous neither owed nor breached any duty to the Plaintiffs, we hold the order of the trial court should be affirmed.

¶2 Wittwer Construction Company hired Gene Lile Devine in November 1999, and— pursuant to its policies and procedures— transmitted Devine’s name and driver’s license number to its insurance agent in order to determine Devine’s insurability. Witt-wer’s insurance agent transmitted Devine’s name and driver’s license number to Bituminous, and Bituminous — through an agency providing that service — obtained Devine’s Motor Vehicle Record (MVR), reflecting no driving offenses for the previous three years.

¶ 3 In May 2000, while operating an insured Wittwer vehicle, Devine collided with the vehicle driven by Mrs. Ritter, who suffered serious injury. The Ritters subsequently commenced the present action against Devine, Wittwer, and Bituminous, alleging negligence on the part of all three. As against Bituminous, they alleged negligence for “authorizing” and “allowing” De-vine to drive for Wittwer after conducting an MVR covering only the preceding three years and failing to explore Devine’s employment history.

¶ 4 Bituminous filed a motion for summary judgment, asserting no duty to the Ritters. Bituminous further asserted no breach of duty, if any there was, having obtained De-vine’s MVR for three years previous, the maximum permitted or available by statute. See, 36 O.S.1991 § 942; 47 O.S. Supp.1999 § 6-117(H).,

¶ 6 The Ritters responded, presenting evi-dentiary materials argued to show that Witt-wer delegated to Bituminous the duty to inquire into the driving record of prospective employees, and to decide which of Wittwer’s prospective employees would be permitted to drive company vehicles, i.e., the duty to select reasonably competent drivers of company vehicles. See, Hudgens v. Cook Industries, Inc., 1973 OK 145, ¶ 18, 521 P.2d 813, 816; Holland v. Dolese Co., 1982 OK 43, ¶ 10, 643 P.2d 317, 321. The Ritters further argued the evidentiary materials demonstrated that Bituminous breached its duty by failing to inquire into Devine’s more remote driving record which would have shown his history of two prior alcohol-related offenses in 1989 and 1994, and that Bituminous’ breach of duty caused or contributed to the Ritter’s injuries.

¶ 6 On consideration of the submitted authorities and materials, the trial court granted summary judgment to Bituminous. The Ritters appeal, and the matter stands submitted to this Court for accelerated review on the trial court record.

¶ 7 Even if we accept as given the duty of Wittwer, as employer, to select reasonably competent drivers, and Wittwer’s potential liability to third persons for breach of that duty, we find no evidence that Wittwer delegated, or Bituminous undertook, any duty other than to determine whether Wittwer’s potential employees possessed a satisfactory driving record for insurance purposes only, and the fact that Bituminious may have agreed to insure “key” or “critical” Wittwer employees with less than a stellar driving record does not, in our opinion, broaden that duty as the Ritters aver. In this respect, Bituminous could not, by force of statute, base its decision whether to insure potential Wittwer employees on a driving record older than three years. 36 O.S. § 942(A). Indeed, if Bituminous based its decision otherwise, it faced the potential loss of its certifícate of authority to transact business in this state. 36 O.S. § 942(B). Under these facts and circumstances, we cannot say the trial court erred in granting Bituminous’ motion for summary judgment.

¶ 8 The order of the trial court is therefore AFFIRMED.

JONES and BUETTNER, JJ., concur.

      . Daniel Wittwer testified:
      If we are going to employ someone that will drive a company vehicle for us, their driving record is checked by our insurance carrier to see how safe a driver they are, as to whether or not our insurance company will ensure [sic] them.

      . All other causes of action pursued below have been disposed of and are not a part of this appeal.

      . That section provided:
      A. Any insurance carrier that issues motor vehicle liability or collision insurance policies in this state shall not establish or apply premium rates, increase premium rates, cancel a policy, or refuse to issue or renew a policy, based on any traffic record maintained by the Department of Public Safety which covers a period of time more than three (3) years prior to the date the insurance carrier makes a determination to take any such action. B. The Insurance Commissioner may suspend or revoke, after notice and hearing, the certificate of authority to transact insurance business in this state of any insurance carrier violating the provisions of this section or may censure the insurer or impose a fine.

      . That section provided in pertinent part: The Department of Public Safety or any motor license agent upon request shall prepare and furnish a summary to any person of the traffic record of any person subject to the provisions of the motor vehicle laws of this state. Said summary shall include the enumeration of any motor vehicle collisions, reference to convictions for violations of motor vehicle laws, and any action taken against the person's privilege to operate a motor vehicle, as shown by the files of the Department for the three (3) years preceding the date of the request.

      . Now see, 47 O.S. Supp.2000 § 6 — 117(D).

      . "Where there is foreseeable risk of harm to others unless precautions are taken, it is the duty of one who is regularly engaged in a commercial enterprise which involves selection of motor carriers as an integral part of the business, to exercise reasonable care to select a competent carrier. Failure to exercise such care may create liability on the part of the employer for the negligence of that carrier. If there is competent evidence tending to show that such employer knew, or in the exercise of reasonable care should have known, that the independent contractor was not such a driver, and reasonable men might draw conflicting conclusions on the matter, then whether or not the employer was negligent in the discharge of his duty to select a competent contractor becomes a question to be determined by the trier of the fact.” (Citations omitted.)

      . Absent evidence that the independent conlractor/motor carrier "was an incompetent contractor or that [the motor carrier’s employee] was an incompetent driverf,] ..., defendants’ care or lack of it in selecting [the motor carrier] as a contractor and in accepting [carrier's employee] as the driver could not be the proximate cause of the accident and resultant injuries[, and] [u]nless such failure to select a competent contractor has a causal connection with the injuiy, such failure is not actionable.”

      . Rule 13(h), Rules for District Courts, 12 O.S. Supp.1993, Ch. 2, App., and Rule 1.36, Oklahoma Supreme Court Rules, 12 O.S. Supp.1997, Ch. 15, App.


author: ADAMS, Judge:

text:
    2003 OK CIV APP 11
    Deborah HANEBUTT, Plaintiff/Appellee, v. Mark HANEBUTT, Defendant/Appellant.
    No. 95,335.
    Court of Civil Appeals of Oklahoma, Division No. 3.
    Nov. 8, 2002.
    Certiorari Denied Jan. 28, 2003.
    Rees T. Evans, Oklahoma City, OK, for Plaintiff/Appellee.
    Philip J. Tucker, Noel K. Tucker, Roxane Gautreaux-Carte, The -Tucker Law Firm, Edmond, OK, For Defendant/Appellant.
   OPINION

ADAMS, Judge:

¶ 1 Mark Hanebutt (Husband) appeals the trial court’s judgment in this divorce case, contending (1) the trial court erred in awarding Deborah Hanebutt (Wife) restitutionary alimony under Hubbard v. Hubbard, 1979 OK 154, 603 P.2d 747, and (2) even if such alimony was appropriate, it was excessive. We conclude the trial court’s decision awarding Wife restitutionary alimony is clearly against the weight of the evidence and therefore modify the trial court’s order to eliminate that obligation.

¶2 Husband and Wife had been married for almost 26 years when the trial court granted the divorce. They married shortly after Husband completed his bachelor’s degree in journalism and lived in Florida until 1981 while Husband worked as a journalist. The record contains no testimony concerning either parties’ earnings during this period, but does indicate Wife completed her nursing degree during this period. In 1981, they moved to Oklahoma, where Wife was initially employed by her father, and Husband, with Wife’s agreement, spent most of his time working on a novel. Between 1981 and 1987, Husband was employed only part-time and also completed most of the course work for a master’s degree in English at what is now the University of Central Oklahoma (then Central State University). He completed requirements for that degree, including his thesis, in 1990. During those seven years, Wife’s employment provided approximately 97 percent of the family income.

¶3 Beginning in 1988, Husband began teaching full time at UCO and was still on the faculty at the time of trial. After that date, Husband’s employment provided approximately 61 percent of the family income. Beginning in 1994, Husband attended law school at Oklahoma City University. He received his Juris Doctor degree in 1998 and was admitted to the Oklahoma Bar two weeks before the trial in this case. Both parties agreed that the expenses for Husband’s education were paid using funds received as a result of employment by Wife, Husband, or both during the marriage. Although the trial court received no evidence concerning the cost of obtaining Husband’s master’s degree, Wife’s expert testified the law school expenses, adjusted for inflation and with interest, totaled $58,525.

¶4 The record supports the conclusion that the trial court evenly divided a net marital estate of approximately $120,000, not including tangible personal property divided in kind. The bulk of that estate was made up of the equity in the parties’ home and in their respective retirement and profit-sharing accounts maintained by employers. Neither party attempted to place a value on the unpublished manuscript of the novel written by Husband. The trial court awarded Husband all rights to that work, which was completed in its present form prior to the time Husband started his legal education.

¶ 5 According to Wife’s expert, her financial contribution to Husband’s graduate education, adjusted for inflation and interest, equaled $275,654.00. He arrived at that figure by calculating, for each year from 1981 through 1996, Husband and Wife’s relative contributions to the total family income. In every year in which Wife provided more income than Husband, 1981 through 1987, he gave wife a credit, adjusted for inflation and interest from that year, for the amount her income exceeded one half of the total family income. In every year in which Husband provided more income than Wife, 1988 through 1996, he reduced the total amount of Wife’s credits by the amount Husband’s income exceeded one half of the total family income. The trial court heard no evidence that the parties’ incomes changed in any appreciable sense in the two years following the data used by Wife’s expert.

¶ 6 In addition to dividing the property, setting child support, and awarding Wife support alimony, the trial court ordered Husband to pay Wife restitutionary alimony of $58,000.00, payable at $400.00 per month. In doing so, the trial court found Wife was not entitled to a Hubbard award for her contributions to Husband’s education which led to his master’s degree because the family had enjoyed the increased level of income enabled by that education during the latter years of the marriage. The Hubbard award was specifically for Wife’s contributions to Husband’s legal education. Wife did not file a counter-appeal and does not dispute the trial court’s finding that she had already received a “return on her investment” in Husband’s master’s level education. In his appeal, Husband contends Wife was not entitled to a Hubbard award and, alternatively, the amount awarded was excessive.

¶ 7 The Hubbard Court created the concept of restitutionary alimony because it determined that the right to pursue a profession, even one with substantial income potential, could not be perceived as “property” for purposes of making an equitable property division in a divorce action. The Court perceived a significant inequity in allowing one spouse to retain the benefits of a professional education and license and the substantially increased earning potential attributed to such an education and license where the other spouse had contributed financially beyond the level the parties’ might have expected had the education not been pursued and the contributing spouse had no opportunity to enjoy the benefits of his or her sacrifice in the form of increased income.

¶ 8 To avoid that inequity, the Court directed a cash award in lieu of property division. In setting that award, the Court directed the trial court to determine “Mrs. Hubbard’s contributions to Dr. Hubbard’s direct support and school and professional training expenses, plus reasonable interest and adjustments for inflation.” 1979 OK 154, ¶ 27, 603 P.2d at 752.

¶ 9 Moreover, Hubbard very carefully limited its application, and the remedy recognized there has been characterized as an “extraordinary equitable remedy.” Jackson v. Jackson, 1999 OK 99, ¶ 15, 995 P.2d 1109, 1112-1113. Accordingly, we begin our analysis with the recognition that restitutionary alimony is the exception and not the rule.

¶ 10 The undisputed evidence indicates that during the period Husband was obtaining his legal education and his license to practice law, his employment provided more than half of the family’s support, therefore it cannot be fairly concluded that Wife, in any financial sense, contributed to his “direct support,” as that term is used in Hubbard. The parties expended approximately $44,000 in expenses for Husband’s legal education and professional legal training. During that same period Husband contributed approximately $44,000 more to the family income than did Wife.

¶ 11 In addition, the trial court heard undisputed evidence that the parties’ purpose in Husband’s obtaining a law degree was not for him to practice law but for Husband to obtain the terminal degree required for him to remain a member of the faculty at UCO. Hubbard recognized that the contributing spouse’s motivation, at least in part, for making the financial -sacrifices necessary to allow the other spouse to obtain a professional degree was the expectation of increased financial reward once the degree was obtained. With regard to the Husband’s legal education, Wife had no such expectation.

¶ 12 Considering the limited application of the extraordinary equitable remedy created in Hubbard, Husband’s contribution to the family income during the time he was obtaining his legal education, and the parties’ undisputed purpose in obtaining Husband’s legal education, any award of restitutionary alimony is clearly against the weight of the evidence and an abuse of discretion. The trial court’s order is modified to delete the Hubbard award and is affirmed as modified.

AFFIRMED AS MODIFIED.

HANSEN, P.J., and MITCHELL, J., concur.

      . Husband did not present any expert testimony and did not otherwise challenge the expert's adjustments. Accordingly, we express no opinion on whether the expert adopted a correct approach in making those adjustments. For reasons which are not stated in the opinion, the Hubbard Court seems to have required the application of both inflation and interest, although generally those might be considered alternative adjustments under these circumstances.

      . 1996 was the last year for which the expert believed he had reliable income figures.

      . We arrive at this income figure by using the same income for 1997 and 1998 as that earned in 1996, the last year used by Wife’s expert.


text:
    2003 OK CIV APP 16
    Robin Lee MOORE, Petitioner, v. PESP/TSI GROUP, Legion Insurance Co., and The Workers’ Compensation Court, Respondents.
    No. 97,606.
    Court of Civil Appeals of Oklahoma, Division No. 3.
    Nov. 15, 2002.
    Certiorari Denied Feb. 3, 2003.

      Randall P. Robinson, Bryan and Robinson, Oklahoma City, OK, for Petitioner.
    Jay L. Jones, McClure Law Office, Oklahoma City, OK, for Respondents PESP/TSI Group and Legion Insurance Co.

      . In Christian, the claimant, who had missed the transportation provided by his employer, was injured while driving his car to work pursuant to the foreman’s order. The Austin claimant, a member of an oil well drilling crew, was driving his own car to and from work when he was injured in an automobile accident on a public road. Unlike this case, the Austin claimant was paid $11.00 per day as "travel pay,” which the evidence established was "for his transportation expenses and time consumed in traveling to and from work.”

   OPINION

ADAMS, Judge:

¶ 1 Claimant Robin Moore asks us to vacate an order of a three-judge panel of the Workers’ Compensation Court affirming a trial judge’s denial of compensation based on a finding that Claimant’s injury did not arise out of and in the course of his employment with PESP/TSI Group (Employer, collectively with its insurance carrier, Legion Insurance Co.). We conclude the order is supported by competent evidence and sustain it.

¶ 2 Claimant, an iron worker for Employer, filed a Form 3 for multiple injuries he received on Thursday, April 26, 2000, in a car accident that occurred two hours after he and a co-worker, Robert Weese, left work in Texas driving to Oklahoma City where they planned to pick up their per diem checks from Employer’s office mailbox before going home. Employer filed an answer, denying Claimant’s injuries “occurred in the course of and scope of his employment,” and moved for a trial on that issue. At the hearing, counsel for Employer stipulated that Claimant was an employee covered by the Workers’ Compensation Act and had sustained an injury on April 26, 2000, but denied that incident “arose out of and in the course and scope of his employment.”

¶3 Claimant testified that the different construction sites where he worked for Employer for the past year were all located in Oklahoma City or Oklahoma County, except for the post office in Wichita Falls, Texas (the Texas project). For the latter job only, Claimant was paid his regular hourly wage, $16.00 per hour, and an additional $4.05 per hour, which the parties variously referred to as a “per diem bonus” or “per diem check.”

¶4 Although Employer introduced evidence that the “per diem” money was paid in order to allow workers to stay in the area so that they would be available to report to work, Claimant testified he and Weese decided to commute daily to the Texas project because they believed they would spend less of the “per diem” money by doing so. On the day of the accident, they left Oklahoma City at 4 a.m. and drove to the Texas project via the H.E. Bailey Turnpike, their usual drive both ways. From Employer’s on-site office, they called Employer’s office personnel in the Oklahoma City office “ahead of time,” requesting them to put their per diem checks in the company mailbox located out in front of the office.

¶ 5 After an 8½ hour workday, Claimant and Weese left the Texas project around 4:30 p.m. Before leaving, Weese placed an opened 50 pound box of welding rods into Claimant’s car. They drove back on the turnpike until they ran out of money for the tollbooths to make it all the way to Oklahoma City. The accident occurred on a highway near Chicka-sha, Oklahoma when Claimant fell asleep at the wheel, causing his car to go left of center and to collide with other cars, injuring both him and Weese.

¶ 6 When Claimant’s questioning was completed, his counsel sought admission of his hospital records and other documents, on some of which the trial judge reserved ruling until making the final order. Employer then presented the testimony of Bob Young, one of Employer’s job foremen at the Texas project, and offered into evidence additional medical reports, which were admitted over Claimant’s probative value objection.

¶ 7 In his order, the trial judge found that Claimant did not sustain an accidental personal injury arising out of and in the course of his employment and denied his claim for compensation. In addition thereto, the trial judge specifically found that: (1) Claimant’s accident “did not arise out of his employment” with Employer; (2) Claimant’s transportation of equipment was without the consent of Employer, who had made other arrangements for the protection of the equipment from the elements, and that he was neither expected or required to place any company equipment in his personal vehicle for safe-keeping; (3) Claimant’s decision to travel back and forth each day to his residence was a personal one and that Employer was offering local accommodations and per diem in lieu of such a long trip; and that (4) Under the circumstances of this case, Claimant was not engaged in a special task for Employer, nor was he engaged in a dual purpose mission. Claimant filed an en banc appeal from the trial court’s denial of compensation, which the three-judge panel affirmed. This review proceeding followed.

¶ 8 In this review proceeding Claimant argues the trial court’s decision was not supported by the evidence, and also argues the trial judge should have consolidated this case with the trial’ in Weese’s claim. In addition, he argues we should abandon’ the “any competent evidence” standard of review established in Parks v. Norman Municipal Hospital, 1984 OK 53, 684 P.2d 548. Because it affects our review of the other arguments, we address this argument first.

¶ 9 If we understand Claimant’s argument correctly, he contends the 1986 amendments to the Workers’ Compensation Act, 85 O.S. § 1 et seq., necessitate a reexamination of the “any competent evidence” standard of review established in Parks. His argument is couched as a public policy argument. Parks was based on the Court’s interpretation of 85 O.S.1981 § 3.6, and Claimant has cited us to no 1986 amendment to that section which would alter the conclusion reached in Parks. Therefore, we are not free to reexamine the rule established in Parks and will follow that standard of review in this case. Under that standard of review, our task is to review the evidence in the record, without weighing the evidence, to determine whether the record contains any competent evidence which reasonably supports the order. If the record contains such evidence and the order is otherwise free of legal error, we must sustain the order.

¶ 10 Whether an employee’s injury “arises out of’ or “occurs in the course of’ employment presents a non-jurisdictional issue of fact which is to be determined by the trial judge and must be affirmed by the reviewing court if supported by competent evidence. Lanman v. Oklahoma County Sheriff’s Office, 1998 OK 37, 958 P.2d 795. The burden of proof is on the claimant to show the disability for which compensation is sought was caused by an accident arising out of and in the course of employment. Barnhill v. Smithway Motor Express, 1999 OK 82, 991 P.2d 527.

¶ 11 To be compensable, an injury must both occur (1) in the course of and (2) arise out of the worker’s employment; these are distinct elements and are not to be understood as synonymous. American Management Systems, Inc. v. Burns, 1995 OK 58, 903 P.2d 288. The latter phrase contemplates the causal connection between the injury and the risks incident to employment, whereas the former phrase relates to the time, place or circumstances under which the injury is sustained. Thomas v. Keith Hensel Optical Labs, 1982 OK 120, 653 P.2d 201.

¶ 12 As a general rule, injuries sustained by a worker while going to and coming from the workplace do not arise out of and in the course of employment within the meaning of the Workers’ Compensation Act. Stroud Municipal Hospital v. Mooney, 1996 OK 127, 933 P.2d 872. As noted in Barnhill, this rule grows out of the fact that going to and coming from work is a product of the employee’s own choice concerning where he or she desires to live, a choice normally of no interest to the employer, and that ordinarily a person’s employment does not begin until he or she reaches the place of employment.

¶ 13 Oklahoma Courts have recognized several exceptions to the going and coming rule for off premises injuries. The exceptions raised by Claimant’s arguments include: (1) where the employee is charged with a special task or duty, or is engaged in a dual purpose trip, and (2) where the employer furnishes the transportation, pays for the transportation, or the work creates the necessity for travel. See Mooney, supra; Christian v. Nicor Drilling Company, 1982 OK 76, 653 P.2d 185; F.W.A. Drilling Company v. Ulery, 1973 OK 82, 512 P.2d 192. The evidence in this record supports the trial court’s conclusion that none of those exceptions apply-

¶ 14 In this connection, Claimant contends that the out-of-state assignment itself constitutes a “special mission,” because it created the necessity of out-of-state travel and represented a departure in terms of the employment which he normally performed for Employer. He further contends that the payment of per diem allowance “was in recognition of the unusual, out-of-the ordinary, or ‘special mission’ which [he] was called upon to perform out of state.” In support of these arguments, Claimant cites Christian v. Nicor Drilling Co., 1982 OK 76, 653 P.2d 185, Austin Drilling Company v. Rice, 1980 OK CIV APP 28, 616 P.2d 446, and Oklahoma Natural Gas Company v. Williams, 1981 OK 147, 639 P.2d 1222.

¶ 15 The applicability of the special task exception is ordinarily a question of fact, however, where the facts necessary to establish the special task exception are undisputed, a question of law is presented. Lucas v. Triad Drilling Company, 1998 OK 98, 969 P.2d 363. According to Mooney, the special task exception is applicable when the accidental injury is sustained while the employee is going to perform, or leaving after performing, a special task outside of his or her regular working hours and at the employer’s request.

¶ 16 Claimant has not cited any Oklahoma authority holding that commuting to a different city or state to do the same work the worker routinely performs constitutes a special task or mission, and the three cases he cites as authority do not support any of his argument. In Williams, the claimant was injured in a car accident after attending the employer’s Christmas party and while driving to a babysitter’s house. After finding record support for implied compulsion and employer benefit for employee’s attendance at that social/recreational event, the Williams Court considered the employer’s deviation argument and held that the special task exception to the going and coming rule governed the case, explaining “[the claimant] undertook to attend the Christmas party in furtherance of his master’s business, and as an incident of his employment. The travel bears all the indicia of special duty mission that lies outside the work routine — an off-premises mission with the attendant extra risk.” (Emphasis added.) Williams, 1981 OK 147, ¶ 23, 639 P.2d at 1227.

¶ 17 For the special task or mission exception to apply, one must be performing extra work outside of regular ivorking hours that is different from or unrelated to the work required in the usual and ordinary course of employment. See Harris v. LaQuinta, 1997 OK 50, 937 P.2d 89; Richardson v. Pitts, 1965 OK 174, 408 P.2d 327; Dawson v. Oklahoma City Casket Company, 1958 OK 29, 322 P.2d 642. When addressing the existence of an employer-employee relationship, the Court in Fluor Engineers & Contractors v. Kessler, 1977 OK 37, 561 P.2d 72, discussed the going and coming rule and some of its exceptions and concluded none applied in that case, stating “[njeither can driving from [a worker’s] home to another job in a different city be held to be a ‘special task.’” (Emphasis added.) We can find no evidence in this record establishing that Claimant was performing any different work at the Texas project than he did at any other construction sites, and his decision to drive to the Texas project does not make that job a special task.

¶ 18 Further, in Austin Drilling and Christian, the Courts did not apply the special task exception, but found the claimants’ injuries compensable under another exception to the going and coming rule — where an employer pays travel time and travel expenses or furnishes transportation, respectively. It is undisputed in this case that Employer did not provide transportation to and from the Texas project, did not pay for travel time, mileage, upkeep or maintenance on Claimant’s personal vehicle, and intended that the per diem check be used for lodging and meals while working more than 100 miles from its office.

¶ 19 Claimant also argues that the trial court erred because at the time of the accident, he and Weese were directly in route to Employer’s premises where, by prior arrangements made with Employer, they were to retrieve their per diem checks which had been left there as a special accommodation. After citing Novak v. McAlister, 1956 OK 205, 301 P.2d 234, for the special task exception, Claimant relies on two Oklahoma workers’ compensation cases, Solo Cup v. Pate, 1974 OK 131, 528 P.2d 300, and St. Anthony Hospital v. James, 1994 OK CIV APP 176, 889 P.2d 1279, as support for the compensa-bility of injuries sustained by employees while collecting pay.

¶ 20 However, such reliance is misplaced. In Novak, the Court considered an exception to the going and coming rule clearly not applicable to this case, i.e., where the only way of access to the employer’s premises presents a danger to which the employee is peculiarly subjected and thus constitutes an added risk incidental to the employment. The Court concluded that the claimant’s after-lunch fall on loose gravel in the public street in front of her employer’s business was not an added risk incidental to her employment because she could have reached the premises without walking through the gravel. As in Novak, there is no evidence in this record of a employer-created, work-related risk. It is undisputed that Claimant and his co-worker decided to commute for the Texas project for personal economic reasons, instead of using their per diem checks as the Employer intended.

¶ 21 Further, in Pate and James, the injuries occurred on the employers’ premises, and the courts’ analyses in both cases clearly limits application of this exception to the going and coming rule to “on-premises injuries.” In this case, Claimant’s injuries undis-putedly occurred off of Employer’s premises, and there is no evidence that Claimant’s trip to Employer’s premises was required by Employer, as occurred in Pate, or that employees were in the habit of receiving pay in this manner, as considered in James. Moreover, Claimant testified that Weese requested Employer to place his and Claimant’s per diem checks in the company mailbox in Oklahoma City for pick up after work and that Employer normally delivered these checks along with their weekly paycheck on Friday via Fed-Ex or mail.

¶ 22 Finally, in this connection, Claimant argues he was on a dual purpose trip, because (1) his out-of-state job assignment created the necessity for travel and due to its greater traveling distance, his risk of injury exceeded the ordinary hazards to which the general public is exposed; and (2) his decision to safeguard the welding rods, even in the absence of any specific instruction to do so, conferred a “sufficiently direct benefit” to Employer. To support his argument, Claimant primarily relies on Justice Cardozo’s “dual purpose test” from Marks Dependents v. Gray, 251 N.Y. 90, 167 N.E. 181 (1929), American Management Systems, Inc. v. Burns, 1995 OK 58, 903 P.2d 288, and Haco Drilling Co. v. Burchette, 1961 OK 145, 364 P.2d 674.

¶ 23 The Marks test, as quoted and applied by the Oklahoma Supreme Court in Cochran v. Maassen Tool & Supply Co., 1951 OK 10, ¶ 15, 226 P.2d 953, 956, provides:

We do not say that service to the employer must be the sole cause of the journey, but at least it must be a concurrent cause. To establish liability, the inference must be permissible that the trip would have been made though the private errand had been cancelled... .The test in brief is this: If the work of the employee creates the necessity for travel, he is in the course of his employment, though he is serving at the same time some purpose of this own.... If, however, the work had no part in creating the necessity for travel, if the journey would have gone forward though the business errand had been dropped, and would have been canceled upon failure of the private purpose, though the business errand was undone, the travel is then personal, and personal the risk.

¶ 24 As established previously, the travel between Oklahoma City and the Texas Project is not considered a business errand. The evidence supports the trial court’s conclusion that the trip was a personal errand for Claimant and Weese, motivated by their desire to spend less of the “per diem” money. The record also supports the conclusion that the trip would have been performed whether there was any need to obtain additional welding rods, pick up the “per diem” checks, or secure the welding rods. Under the test cited by Claimant, the trial court correctly treated the trip as a personal errand with the attendant personal risk.

¶ 25 Haco Drilling Co. offers no more support for Claimant. It involved an employer’s liability for an employee’s negligent acts, wherein incidental benefit to an employer may be considered to impose liability on the employer under respondeat superior, and has no application in a workers’ compensation context. Bums is even worse for the Claimant as the record is devoid of any evidence that Claimant and Weese were subjected to any risk beyond that faced by the ordinary traveling public.

¶ 26 Claimant’s remaining argument is that the trial court should have consolidated the trial of his case with that of Weese. Other than the risk of inconsistent decisions in two cases that is inherent in our system which allows each party their day in court, he identifies no prejudice from the decision not to try the cases together. Moreover, he did not raise this error in his era banc appeal and has waived any such error. Red Rock Mental Health v. Roberts, 1997 OK 133, 940 P.2d 486.

¶ 27 Based upon this record, we cannot conclude that the trial court’s order is contrary to law or unsupported by any competent evidence. The order is sustained.

SUSTAINED.

HANSEN, P.J., dissents, and MITCHELL, J., concurs.

      . Employer introduced evidence that the checks normally were delivered by Federal Express to the job site on payday. Technically, according to Employer, if Claimant and Weese had successfully completed their journey, they would have received their checks a day early.

      . Prior to submitting his case to the trial judge, Claimant's counsel offered into evidence a copy of the trial transcript from Weese's workers' compensation case. Employer's counsel objected to the trial transcript because of stipulations made therein to which Employer was not willing to stipulate in Claimant's case. Several options were discussed by the parties and’ the trial judge reserved ruling on the transcript's admissibility upon the parties’ agreement that, if determined to be admissible, only the testimony of the lay witnesses would be considered. Employer made the same objection to Claimant’s subsequent offer of both parties’ briefs in Weese's appeal, to which the trial judge responded, "[wjell, as far as the law, at least with regard to the travel back and forth, it may be of aid to the Court, so I will permit that.”

      . As part of its review of the evidence, the trial court took "judicial notice of briefs and trial transcript (other than the stipulations which [Claimant] would not agree to in this claim) filed in the case of ROBERT WEESE, Case N0.2000-09578X, the co-worker who was a passenger in [Claimant’s] vehicle.”

      . In Weese's case, which was tried before this case to a different trial judge and was based on
        stipulations to a great extent and included no testimony from Employer's foreman, the trial court awarded benefits. In No. 96,716, decided today as well, we vacate that decision, concluding it was not supported by any competent evidence.


text:
    2003 OK CIV APP 15
    PESP/TSI STAFFING and Legion Insurance Co., Petitioners, v. Robert WEESE and The Workers’ Compensation Court, Respondents.
    No. 96,716.
    Court of Civil Appeals of Oklahoma, Division No. 3.
    Nov. 15, 2002.
    Certiorari Denied Feb. 3, 2003.

      David B. Windham, McClure Law Office, Oklahoma City, OK, for Petitioners.
    Randall P. Robinson, Bryan and Robinson, Oklahoma City, OK, for Respondent Robert Weese.
   OPINION

ADAMS, Judge:

¶ 1 PESP/TSI, Inc. and its insurance carrier, Legion Insurance Co. (collectively, Employer), seek review of a workers’ compensation order which found Claimant Robert Weese had sustained an accidental personal injury arising out of and in the course of his employment and was temporarily totally disabled and entitled to workers’ compensation benefits. We agree with Employer that the trial court’s order is not supported by any competent evidence and vacate the order.

¶2 Claimant, an iron worker/welder for Employer, filed a Form 3 for multiple injuries he received on Thursday, April 26, 2000, in a car accident that occurred two hours after he and a co-worker left work in Texas. They were on the way to Oklahoma City where they planned to pick up their per diem checks from Employer’s office mailbox and then go home. Employer filed an answer, denying Claimant’s injuries “occurred in the course of and scope of his employment,” and later moved for a trial on the issue of jurisdiction.

¶ 3 At the hearing, counsel for Claimant announced he was seeking determinations on jurisdiction and compensability “as one of the recognized exceptions to the going and coming rule.” Counsel for Employer stipulated that Claimant was an employee covered by the Workers’ Compensation Act and had sustained an injury on April 26, 2000, but denied that incident “arose out of and in the course and scope of his employment.” In lieu of presenting the testimony of two witnesses, counsel for Claimant and Employer further stipulated to the following facts:

Claimant completed work at about 4:30 p.m.... [H]e was a passenger in a personal automobile driven by Mr. Robin Moore, [a co-worker], that ... was involved in a motor vehicle accident five miles east of Chickasha on U.S. Highway 62 at approximately 6:15 p.m.... Claimant’s route home was on U.S. Highway 62, and ... they made no stops before the accident. ... Claimant had a box of company welding rods in the car to keep them from being exposed to the elements.... Claimant had requested [Employer] to place his per diem check in the company mailbox in Oklahoma City so he could pick it up after work.... [Employer] did place the per diem checks in the company mailbox as requested by Claimant instead of FedEx-ing them to the jobsite, which was normally done.... Claimant was not required by [Employer] to protect any welding rods left out on the job site.

¶ 4 Claimant, the sole witness at the hearing, testified that he resided in Oklahoma City and that during the three years prior to his accident the different construction sites upon which he worked for Employer were all located in Oklahoma City or Oklahoma County, except for two projects, a hospital in Durant, Oklahoma, and the post office in Wichita Falls, Texas (the Texas project). Claimant testified that he did not work the entire 3 weeks in Durant, but “for the period of time” he worked there, he rode with the foreman and was paid his regular- hourly wage, $17.00 per hour, and an additional $4.05 per hour, which he identified as a “subsistence per diem.”

¶ 5 Claimant testified that he and Moore decided to commute daily to the Texas project rather than use the per diem payments to cover lodging expenses. On the day of the accident, they left Oklahoma City at 4 a.m. and drove to the Texas project via the H.E. Bailey Turnpike, their usual drive both ways. From Employer’s on-site office, they called Employer’s office personnel in the Oklahoma City office “ahead of time” requesting them to put their per diem checks in the company mailbox located out in front of the office. After an 8½ hour workday, Claimant and Moore were “dismissed from the job site” around 4:30 p.m. Before leaving, Claimant placed an opened 50 pound box of welding rods into Moore’s ear so he “would have something to work with and they wouldn’t get ruined” by the weather. They drove back on the turnpike until they “ran out of money for the tollbooths to make it all the way to Oklahoma City.” Claimant was asleep at the time of the accident, which occurred when Moore fell asleep at the wheel.

¶ 6 After the hearing, the trial judge found, in pertinent part, that “on APRIL 26, 2000, ... claimant sustained accidental personal injury to the MULTIPLE BODY PARTS, including but not necessarily limited to, HEAD, PELVIS, FEMUR, RIBS and SPLEEN, arising out of and in the course of claimant’s employment,” but reserved issues regarding temporary total disability and permanent disability. A three-judge panel affirmed that ruling, but Employer’s first review proceeding was dismissed by the Oklahoma Supreme Court because without an award or denial of benefits there was no reviewable order. After remand, the trial judge filed an order repeating its earlier finding and also finding Claimant temporarily totally disabled and awarding Claimant a lump sum for those benefits.

¶ 7 Employer then filed this review proceeding, alleging “there was no causal relationship between the act engaged in at the time the injury occurred and the requirements of the claimant’s employment.” Under a single proposition of error, Employer argues there is no competent evidence that Claimant’s injuries occurred “in the course of his employment” because: (1) he had completed his job and was on a personal mission to drive back to the office to pick up his per diem check, (2) it was his sole decision to drive back and forth to the job site and he was not exposed to any greater risk on that day than any other day he had driven back and forth, and (3) he was not performing a duty pursuant to his job by transporting the welding rods.

¶8 Whether an employee’s injury “arises out of’ or “occurs in the course of’ employment presents a non-jurisdictional issue of fact which is to be determined by the trial judge and must be affirmed by the reviewing court if supported by competent evidence. Lanman v. Oklahoma County Sheriff’s Office, 1998 OK 37, 958 P.2d 795. The burden of proof is on the claimant to show the disability for which compensation is sought was caused by an accident arising out of and in the course of employment. Barnhill v. Smithway Motor Express, 1999 OK 82, 991 P.2d 527.

¶ 9 To be compensable, an injury must both occur (1) in the course of and (2) arise out of the worker’s employment; these are distinct elements and are not to be understood as synonymous. American Management Systems, Inc. v. Burns, 1995 OK 58, 903 P.2d 288. The latter phrase contemplates the causal connection between the injury and the risks incident to employment, whereas the former phrase relates to the time, place or circumstances under which the injury is sustained. Thomas v. Keith Hensel Optical Labs, 1982 OK 120, 653 P.2d 201.

¶ 10 As a general rule, injuries sustained by a worker while going to and coming from the workplace do not arise out of and in the course of employment within the meaning of the Workers’ Compensation Act. Stroud Municipal Hospital v. Mooney, 1996 OK 127, 933 P.2d 872. This rule primarily results from the fact that going to and coming from work is the product of the employee’s own decision of where he desires to live, a matter ordinarily of no interest to the employer, and that ordinarily a person’s employment does not begin until he or she reaches the place of employment. Barnhill v. Smithway Motor Express, 1999 OK 82, 991 P.2d 527.

¶ 11 Oklahoma Courts have recognized several exceptions to the going and coming rule for off premises injuries, among them the “special task” exception referred to in Mooney. After acknowledging the general rule and agreeing with Employer that the facts of this case are undisputed, Claimant identifies the question of law presented for our review, “did the trial court ... correctly hold, as a matter of law, that [Claimant’s] injury arose out of and in the course of his employment under the special task exception to the coming and going rule.” (Emphasis added.) Therefore, we examine the facts in the light of that exception to the general rule and need not explore others not argued here or in the Workers’ Compensation Court.

¶ 12 The applicability of the special task exception is ordinarily a question of fact. However, where the facts necessary to establish the special task exception are undisputed, a question of law is presented. Lucas v. Triad Drilling Company, 1998 OK 98, 969 P.2d 363. According to Mooney, the special task exception is applicable when the accidental injury is sustained while the employee is going to perform, or leaving after performing, a special task outside of his or her regular working hours and at the employer’s request.

¶ 13 Claimant first argues that the out-of-state assignment itself constitutes a “special mission” because there had only been one other occasion during his three years of employment where he was requested to work out of town. He claims that “[t]he trip to Wichita Falls, then, represented an out-of-the-ordinary special mission or task which he performed for the benefit of his employer.” Claimant cites Austin Drilling Company v. Rice, 1980 OK CIV APP 28, 616 P.2d 446, and Oklahoma Natural Gas Company v. Williams, 1981 OK 147, 639 P.2d 1222, as support for the proposition that “when the type of work makes it necessary to drive and driving is viewed as a risk reasonably incident to the work, use of a vehicle owned by the employee or co-employee does not preclude compensation.”

¶ 14 Claimant has not cited any Oklahoma authority holding that traveling to a different city or state to do the same work the worker routinely performs, by itself, constitutes a special task or mission, and the two cases he cites as authority do not support his argument. In Austin, the payment of travel and travel expenses exception was determinative, and the special task exception was not even considered. In Williams, the claimant was injured in a car accident after attending the employer’s Christmas party and while driving to a babysitter’s house. After finding record support for implied compulsion and employer benefit for employee’s attendance at that social/recreational event, the Williams Court considered the employer’s deviation argument and held that the special task exception to the going and coming rule governed the case, explaining “[the claimant] undertook to attend the Christmas party in furtherance of his master’s business, and as an incident of his employment. The travel bears all the indicia of special duty mission that lies outside the work routine-an off-premises mission with the attendant extra risk.” (Emphasis added.) Williams, 1981 OK 147, ¶ 23, 639 P.2d at 1227.

¶ 15 For the special task or mission exception to apply, one must be performing extra work outside of regular working hours that is different from or unrelated to the work required in the usual and ordinary course of employment. See Harris v. LaQuinta, 1997 OK 50, 937 P.2d 89; Richardson v. Pitts, 1965 OK 174, 408 P.2d 327; Dawson v. Oklahoma City Casket Company, 1958 OK 29, 322 P.2d 642. When addressing the existence of an employer-employee relationship, the Court in Fluor Engineers & Contractors v. Kessler, 1977 OK 37, 561 P.2d 72, discussed the going and coming rule and some of its exceptions and concluded none applied in that case, stating “[njeither can driving from [a 'worker’s] home to another job in a different city be held to be a ‘special task.’” (Emphasis added.) We can find no evidence in this record establishing that Claimant was performing any different work at the Texas project than he did at any other construction sites, and his decision to drive to the Texas project does not make that job a special task.

¶ 16 Claimant further argues that when the accident occurred, he and Moore were “charged with the task of retrieving their per diem checks, which were necessary for their daily commute back and forth between their home and the distant job site.” (Emphasis added.) Considering the parties’ stipulation that Claimant requested Employer to place his per diem check in the company mailbox in Oklahoma City so he could pick it up after work and that Employer normally sent these checks via Fed-Ex or mail, Claimant’s argument must fail.

¶ 17 Claimant’s final argument is that even in the absence of any specific instruction to do so, his decision to safeguard the welding rods conferred a direct benefit to Employer. However, the cases Claimant cites to support this argument, Skinner v. Braum’s Ice Cream Store, 1995 OK 11, 890 P.2d 922, and Haco Drilling Co. v. Burchette, 1961 OK 145, 364 P.2d 674, involve an employer’s liability for an employee’s negligent acts, wherein incidental benefit to an employer may be considered to impose liability on the employer under respondeat superior. They have no application in a workers’ compensation context.

¶ 18 The record contains no competent evidence to support the application of the special task exception. Therefore, the trial court order is not supported by any competent evidence and is vacated.

VACATED.

HANSEN, P.J., dissents, and MITCHELL, J., concurs.

      . The Form 3 listed "TSI Staffing c/o Interstate Builders” as Claimant's employer, and at the hearing on his claim, Claimant testified that he was employed by "Interstate Builders.” The entry of appearance refers to "TSI Group Inc.,” other instruments in the record refer to "TSI Staffing” and "PESP/TSI Inc.,” and the order on appeal uses "PESP/TSI Staffing.” We assume for purposes of this appeal that these variously named entities are one and the same.

      . The Austin claimant, a member of an oil well drilling crew, was driving his own car to and from work when he was injured in an automobile accident on a public road. Unlike this case, the Austin claimant was' paid $11.00 per day as "travel pay,” which the evidence established was "for his transportation expenses and time consumed in traveling to and from work.” In this case, Claimant admitted he was not paid for his travel to and from the job.


author: Opinion by CAROL M. HANSEN, Judge:

text:
    2003 OK CIV APP 18
    ROSE GROUP, L.L.C., an Oklahoma Limited Liability Company, Plaintiff/Appellant, v. Brian R. MILLER, individually; Julie Miller, individually; Taurcanus Oil & Gas Corp., an Oklahoma Corporation; Belisarius, Ltd., an Oklahoma Corporation; Dennis Blakemore, individually; Lakeland Petroleum Corporation, an Oklahoma Corporation; Business Accounting Systems, Inc., an Oklahoma Corporation; and, Main Street, Inc., an Oklahoma Corporation, Defendants/Appellees.
    No. 98,381.
    Court of Civil Appeals of Oklahoma, Division No. 1.
    Jan. 24, 2003.

      Clifford A. Wright, Brian L. Peterson, Oklahoma City, OK, for Plaintiff/Appellant.
    Brian R. Miller, Grove, OK, Pro se.
    Steven M. Harris, Douglas R. Haughey, Doyle, Harris, Davis & Haughey, Tulsa, OK, for Defendants/Appellees, Julie Miller, Beli-sarius, Taurcanus Oil & Gas and Business Accounting Systems.
    Stratton Taylor, Bradley H. Mallett, Taylor, Burrage, Foster, Mallett, Downs & Ramsey, Claremore, OK, for Defendants/Ap-pellees, Dennis Blakemore, Lakeland Petroleum, and Mainstreet.
   Opinion by CAROL M. HANSEN, Judge:

¶ 1 Plaintiff/Appellant, Rose Group, L.L.C. (Assignee), assignee of a tort judgment, sued Defendants/Appellees, the judgment debtor, and his alleged insiders and affiliates (collectively Debtor), to recover for fraud, fraudulent conveyances, conspiracy to commit fraud, and constructive trust arising from the judgment creditor’s attempts to collect the judgment. Debtor moved to dismiss the petition on the ground Assignee’s claims did not arise out of contract and therefore were not assignable pursuant to 12 O.S.1991 § 2017(D). The trial court granted the motion to dismiss and Assignee seeks review of that order. We affirm to the extent the trial court dismissed Assignee’s tprt claims for fraud, conspiracy to commit fraud, and constructive trust because those claims are not assignable. We reverse to the extent the trial court dismissed Assignee’s fraudulent conveyance claim because the original tort judgment was an assignable debt, and when Assignee acquired the judgment by assignment, Assignee became a creditor entitled to statutory creditors’ remedies in its own right. We remand for further proceedings consistent with this opinion.

¶ 2 Assignee alleged the original judgment, based on a jury verdict for common law fraud, breach of fiduciary duty, and other claims, was entered against judgment debtor Brian R. Miller on April 2, 1993. It was in the amount of $355,803.21 plus post-judgment interest for plaintiffs Mike and Michele Ireland, $101,444.39 plus post-judgment interest for plaintiff The Ireland Company, and $270,510.14 plus post-judgment interest for plaintiff Shamrock Drilling Fluids, Inc. As-signee alleged that during the judgment creditors’ attempts to collect the judgments, Miller and others engaged in a series of transactions and misrepresentations to protect and conceal Miller’s assets and to hinder, delay, and defraud the Irelands. Assignee said it acquired all three judgments on December 6,2001, by assignment.

¶ 3 Assignee asserted causes of action against Debtor for fraud, fraudulent conveyances, conspiracy, and constructive trust. In his motion to dismiss, Debtor argued these causes of action do not arise out of contract and therefore pursuant to 12 O.S.1991 § 2017(D), the Irelands could not assign those claims to Assignee. In response, As-signee argued (1) the original tort claim, once it was reduced to judgment, was assignable, (2) its claims are assignable because they survive the victim and arise out of contract between Miller and the insiders and affiliates, (3) the purpose of requiring that actions be prosecuted by the real party in interest is to protect the defendant from being sued by another upon the same demand, and that purpose has been satisfied here, (4) it may join its claims and remedies in the same action pursuant to 12 O.S.1991 § 2018(B), and (5) it is entitled to pursue creditors’ remedies provided by 24 O.S.1991 § 119 and 12 O.S.1991 § 850. The trial court granted the motion to dismiss without specifying its reasoning.

¶ 4 Section 2017(D) prohibits the assignment of claims not arising from contract. This section embodies the common law rule that a chose in action arising out of a pure tort is not assignable. Kansas City M. & O. Ry. Co. v. Shutt, 1909 OK 110, 24 Okla. 96, 104 P. 51, 53. However, the common law prohibition on assignment applied only to tort claims before judgment. The statute does not in any way modify the common law allowance of assignment of civil judgments. Once a claim is reduced to judgment, it is an assignable property right. Therefore, the Irelands’ assignment of their judgment to Assignee was valid.

¶ 5 The Irelands’ claims arising from Debtor’s conduct after the judgment do not arise out of contract and are not assignable. 12 O.S.1991 § 2017(D). Therefore, As-signee acquired no right of action against Debtor by virtue of the assignment. However, when Assignee acquired the judgment by assignment, it became a creditor entitled to statutory creditors’ remedies in its own right. It is entitled to pursue in its own name such remedies as those provided by the Uniform Fraudulent Transfer Act, 24 O.S.1991 § 112 et seq., and by 12 O.S.1991 § 850.

¶ 6 For the foregoing reasons, we AFFIRM to the extent the trial court dismissed Assignee’s tort claims for fraud, conspiracy to commit fraud, and constructive trust, and REVERSE to the extent the trial court dismissed Assignee’s fraudulent conveyance claim. We REMAND for further proceedings consistent with this opinion.

JONES, J., and MITCHELL, P.J., concur.

      . 12 O.S.1991 § 2017(D) provides,
      ASSIGNMENT AND SUBROGATION OF CLAIMS. The assignment of claims not arising out of contract is prohibited. However, nothing in this section shall be construed to affect the law in this state as relates to the transfer of claims through subrogation.

      . Eg., Gamble v. Central R. & Banking Co., 80 Ga. 595, 7 S.E. 315, (1888) ("A judgment recovered in an action for a tort is not assignable before it comes into being.”), and Hunt v. Conrad, 47 Minn. 557, 50 N.W. 614 (1891) ("A right to recover damages for a personal tort (false imprisonment) is a mere personal right, and not assignable even after verdict, but before judgment."). See also Portillo v. Farmers Ins. Exchange, 238 Cal.App.2d 58, 47 Cal.Rptr. 450, 453 (1965) ("A cause of action for a tort is not assignable, but 'such a claim, when merged in a judgment, becomes a debt and may be assigned.' ”).

      . The Oklahoma Legislature has modified this rule as to workers’ compensation claims by prohibiting assignment of claims and benefits. 85 O.S.Supp.1994 § 48, and Gaunce v. State ex rel. Dept. of Human Services, 1994 OK CIV APP 98, 885 P.2d 688.