author: KENNETH L. BUETTNER, J.

text:
    2002 OK CIV APP 101
    Francisco GONZALEZ, by and through his mother and next friend Sanjuana Gonzalez; and Remberto Gonzalez, Plaintiffs/Appellees, v. COMBINED INSURANCE COMPANY OF AMERICA, Defendant/Appellant.
    No. 96,666.
    Court of Civil Appeals of Oklahoma, Division No. 1.
    April 12, 2002.
    Rehearing Denied May 17, 2002.
    Certiorari Denied Sept. 24, 2002.

      Jon K. Parsley, David K. Petty, P.C., Guy-mon, for Plaintiffs/Appellees.
    David B. Donchin, E. Edd Pritchett, Jr., Durbin, Larimore & B.ialick, Oklahoma City, E.W, “Bill” Shaw, F.L.P. DeVaughn, Mitchell & Declerck, P.L.L.C., Enid, for Defendant/Appellant.
   KENNETH L. BUETTNER, J.

¶ 1 Defendant/Appellant Combined Insurance Company of America (Insurance Company) appeals from orders binding Insurance Company to a default judgment entered against its co-defendant David Hop-wood, and granting summary judgment to Plaintiffs/Appellees Sanjuana Gonzalez and Remberto Gonzalez (collectively, the Gonza-lezes). Following an automobile accident, the Gonzalezes filed a negligence petition against the other driver, Hopwood, and against Hopwood’s alleged employer, Insurance Company, under the theory of respon-deat superior. After discovering that the Gonzalezes had obtained a default judgment against Hopwood, Insurance Company sought to vacate that judgment. The trial court granted partial summary judgment finding that Insurance Company was bound by the default judgment entered against Hopwood. The remaining issue was whether Hopwood was acting as Insurance Company’s agent at the time of the accident so' that Insurance Company was liable under the theory of respondeat superior. After Insurance Company responded to requests for admissions two days out of time, the trial court ruled the responses were both insufficient and deemed admitted. The trial court denied Insurance Company’s motion to withdraw and amend its responses and granted summary judgment to the Gonzalezes on the agency issue. Judgment was entered in favor of Francisco Gonzales for $310,000 and Remberto Gonzales for $150,000, plus interest. Insurance Company appeals the court’s orders. Because we find the trial court abused its discretion in denying the petition to vacate the default judgment and in holding that Insurance Company was bound by the default judgment entered against Hopwood, we reverse and remand.

¶ 2 Summary judgment proceedings are governed by Rule 13, Rules for District Courts, 12 O.S.Supp.1993, Ch. 2, App.l. Summary judgment is appropriate where the record establishes no substantial controversy of material fact and the prevailing party is entitled to judgment as a matter of law. Brown v. Alliance Real Estate Group, 1999 OK 7, 976 P.2d 1043, 1045. Summary judgment is not proper where reasonable minds could draw different inferences or conclusions from the undisputed facts. Id. Further, we must review the evidence in the light most favorable to the party opposing summary judgment. Vance v. Fed. Natl. Mortg. Assn., 1999 OK 73, 988 P.2d 1275.

¶ 3 The undisputed evidence establishes that Hopwood was involved in an auto accident with Remberto and Francisco Gonzales October 25, 1997. The Gonzalezes filed their petition against Hopwood and Insurance Company March 30, 1999. In their petition, the Gonzalezes alleged that at the time of the accident, Remberto Gonzales was driving with passenger Francisco Gonzales, then fourteen years old, in his car when Hopwood, an employee or agent of Insurance Company, lost control of his vehicle and crossed the centerline and hit the Gonzalezes’ car. The Gonzalezes alleged that Insurance Company was liable for the negligence of its employee who was acting within the scope of his employment at the time of the collision. The Gonzalezes alleged that as a result of Hop-wood’s negligent acts, Remberto and Francisco were entitled to damages for serious injuries, pain and suffering, lost wages, and lost earning capacity, as well as reimbursement of medical expenses resulting from the accident and in the future. The Gonzalezes also alleged they suffered property damage in the accident.

¶4 An alias summons was issued to Insurance Company April 2, 1999 and served upon Carroll Fisher, Oklahoma Insurance Commissioner. Counsel for Insurance Company filed its entry of appearance April 23, 1999. Insurance Company served the Gon-zalezes with interrogatories and requests for documents May 3,1999.

¶ 5 Insurance Company filed its answer to the Gonzalezes’ petition May 14, 1999. Insurance Company denied that Hopwood was its agent or employee and denied that he was acting within the scope of such employment at the time of the accident. Insurance Company also denied that the accident was due to Hopwood’s negligence. Insurance Company asserted the defenses of comparative negligence, sudden emergency, and assumption of the risk.

¶ 6 Default judgment was entered against Hopwood October 20, 1999, based on a finding that Hopwood had been served with the amended petition and summons and had failed to answer or enter an appearance. The court noted that the Gonzalezes had made several attempts to serve Hopwood and that the second alias summons was served on him personally. The court concluded that service on Hopwood complied with Oklahoma law. The default judgment in favor of Francisco Gonzales awarded $310,000 in damages, as well as $16,196.86 in prejudgment interest and $199.12 in costs. The default judgment in favor of Remberto Gonzales awarded $150,000 in damages, $7,837.19 in prejudgment interest and $199.12 in costs. Rember-to Gonzales also was awarded $750 as attorney fee for the property damage portion of the suit.

¶ 7 Insurance Company first argues that it was not given notice of the default judgment entered against Hopwood and that the trial court therefore erred in denying Insurance Company’s petition to vacate the default judgment. Regarding the entry of the default judgment, the court docket states, in part:

10/20/99 Minute
Matter comes on for hearing specially at request of Pltfs. Matter as to default judgment against Def Hopwood. Pltfs present & w/ atty Jon Parsley. Service on Def Hopwood approved. No entry of appearance or pleading by Def Hopwood in file. None known. Def Hopwood adj. In default. Pltf proceeds w/ evid. presentation as to damages, personal injuries, property damages, pain & suffering and past & future medical past & future....

The docket entry reveals that the default judgment hearing was in the nature of an ex parte proceeding without notice to either Hopwood or Insurance Company. The journal entry of judgment was filed the same day. The journal entry does not reflect any notice to an appearance at the hearing by Insurance Company.

¶ 8 On January 10, 2001, Insurance Company filed its petition to vacate the default judgment entered against Hopwood. Insurance Company asserted that it received no notice of the hearing to obtain default judgment, even though Insurance Company had already entered an appearance and filed an answer. Insurance Company alleged that it first learned of the default judgment June 8, 2000. Insurance Company argued that due process requires that all interested parties be afforded notice of the taking of a default judgment and that it was not given such notice, despite having filed an answer in the case.

¶ 9 Insurance Company also argued that the lack of notice required vacating the default judgment because it was obtained through irregularity, fraud, or unavoidable casualty or misfortune which prevented Insurance Company from defending the matter. Among the exhibits attached to the petition to vacate is a letter from the Go-zaleses’ counsel to counsel for Insurance Company dated November 30, 2000, in which the Gonzalezes first asserted that they would be seeking summary judgment against Insurance Company on the issues of liability and damages because they believed those issues had been determined in the default judgment entered against Hopwood.

¶ 10 The Gonzalezes responded to the petition to vacate default judgment with a motion to dismiss the petition to vacate because Insurance Company had failed to assert a defense in the petition to vacate and had failed to issue and serve summons on the petition to vacate, both in violation of 12 O.S.Supp.1999 § 1033. The Gonzalezes also argued that Insurance Company did not have standing to seek to vacate the default judgment entered against Hopwood because Insurance Company continued to deny that Hopwood was its agent or employee at the time of the accident and because Insurance Company did not purport to represent Hop-wood, nor did Insurance Company’s counsel enter an appearance for Hopwood.

¶ 11 The Gonzalezes also asserted that counsel for Insurance Company had stated earlier in the litigation that Insurance Company would not be representing Hopwood and “would instead be defending on the fact that they believed he was not an employee or agent of the Company at the time of the wreck.” The Gonzalezes’ argument in essence was that because Insurance Company chose not to represent Hopwood, it could not seek to vacate the default judgment on the issue of Hopwood’s liability. The Gonzalezes asserted that Insurance Company “is still free to claim the defense that they have been claiming all along-that he was not an employee or agent at the time of the wreck.” This argument ignores the fact that in its answer to the Gonzalezes’ petition, Insurance Company denied Hopwood’s negligence and asserted the defenses of comparative negligence, assumption of risk and sudden emergency.

¶ 12 The Gonzalezes also argued that Insurance Company failed to comply with the statutory requirements for a petition to vacate a judgment because Insurance Company failed to allege a defense to the original action in its petition to vacate. In response to Insurance Company’s assertion that it did not receive notice of the taking of the default judgment, the Gonzalezes stated that the district court rules state that notice of taking a default judgment is not required where the defaulting party has not made an appearance. The Gonzalezes argued that only the party against whom default is sought would be entitled to notice and that Hopwood was not entitled to that notice because he failed to appear or answer. While arguing that Insurance Company was not entitled to notice of the default judgment, the Gonzalezes conceded that “the default judgment against Hopwood establishes . ceHain issues as against (Insurance Company) ” but averred that such event “does not deprive them of their main and primary defense that he was not their employee or agent at the time of the wreck.”

¶ 13 The Gonzalezes filed their motion for partial summary judgment February 6, 2001, in which they alleged that the undisputed facts showed that the default judgment had established Hopwood’s liability for the Gon-zalezes’ injuries and the amount of their damages. The Gonzalezes asked for summary judgment against Insurance Company on those issues and asserted that the only remaining issue for trial was whether Hop-wood was acting as Insurance Company’s agent or employee at the time of the accident.

¶ 14 Insurance Company replied to the Gonzalezes’ motion to dismiss the petition to vacate default judgment February 9, 2001. The reply was on behalf of Insurance Company as well as Hopwood. Insurance Company asserted that the default judgment was not a final order because it did not dispose of all the issues in the case and was accordingly amendable at any time, without requirement of compliance with 12 O.S.Supp.1999 § 1033. Insurance Company also reasserted its argument that it was entitled to notice of taking a default judgment.

¶ 15 The trial court denied Insurance Company’s petition to vacate default judgment April 11, 2001. On the same date, the trial court granted partial summary judgment to the Gonzalezes, holding that Insurance Company was bound by the default judgment finding of liability and determination of damages. The summary judgment order indicated that the only issue remaining for trial was whether Insurance Company was liable for Hopwood’s negligence under the doctrine of respondeat superior.

¶ 16 The Gonzalezes filed a motion for summary judgment on the remaining issue May 14, 2001. The Gonzalezes argued that they had served Insurance Company with requests for admissions on April 11, 2001, in which they asked Insurance Company to admit that Hopwood was the agent or employee of Insurance Company at the time of the accident and that Hopwood was acting within the scope of such agency or employment at the time of the accident. The Gonzalezes argued that Insurance Company had failed to respond to its requests for admissions within thirty days and that the requests were therefore deemed admitted under 12 O.S.1991 § 3236(A). The Gonzalezes asserted that the deemed admissions left no issue of fact remaining and that the Gonzalezes were entitled to judgment as a matter of law against Insurance Company under the doctrine of respondeat superior.

¶ 17 Insurance Company responded by requesting that the trial court allow it to withdraw its answers and amend them so that the matter could be considered on the merits. Insurance Company noted that the Gonzalezes sought summary judgment on the deemed admissions one business day after the responses were due and that Insurance Company filed its answers two business days after they were due. The trial court granted summary judgment to the Gonzalezes based on its findings that the requests for admissions were deemed admitted both because they were answered after the thirty day time limit and because the court found the answers were insufficient.

¶ 18 We find the instant matter requires reversal for two reasons. First, the trial court abused its discretion in denying the petition to vacate the default judgment because there was no notice given to Insurance Company, despite the fact that Insurance Company was an interested party, and had filed an answer. Second, we find that the trial court erred in holding that Insurance Company was bound by the result of a default judgment entered against another party, when such default judgment was merely an interlocutory order and was not final, particularly in light of the fact Insurance Company was not given an opportunity to be heard before entry of the judgment which purported to bind Insurance Company.

¶ 19 District Court Rule 10 provides that notice of taking default judgment is not required where the defaulting party has not made an appearance. 12 O.S.1991, Ch. 2, App. 1. The Gonzalezes relied on this rule to support their claim that Insurance Company was not entitled to notice of taking the default judgment, arguing that District Court Rule 10 requires notice only to the party in default. However, Insurance Company was named as a co-defendant in the amended petition, and Insurance Company had entered an appearance and filed an answer in which it contested the issues decided in the default judgment. Additionally, the Gonza-lezes argued that the default judgment precluded Insurance Company from disputing Hopwood’s negligence, which necessarily would impact Insurance Company in the event that Hopwood was found to have been acting within the scope of employment with Insurance Company at the time of the accident. Accordingly, under the Gonzalezes’ argument, Insurance Company was an interested party. Due process commands that interested parties be afforded notice and an opportunity to be heard before the entry of a decision affecting their rights. Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 70 S.Ct. 652, 656-657, 94 L.Ed. 865 (1950). Additionally, this court has held that due process requires that notice of taking a default judgment be given to all interested parties. B & C Investments, Inc. v. F & M National Bank & Trust, 1995 OK CIV APP 106, 903 P.2d 339, 343.

¶ 20 In B & C Investments, Inc., supra, the plaintiff filed a forcible entry and detain-er action against the defendants and obtained a default judgment. The plaintiff then filed garnishment proceedings against the bank. The bank filed its answer 11 days later-the same date on which default judgment was entered against the bank for not filing an answer to the garnishment proceedings. Five years later, the bank sought to have the default judgment against it vacated, arguing it was void for lack of notice. The plaintiff appealed, arguing that the bank’s answer was filed one day late under the garnishment statutes and also arguing that notice was not required in garnishment proceedings according to District Court Rule 10. This court held that despite the provisions of District Court Rule 10, the due process clauses of the United States and Oklahoma Constitutions require notice be given to interested parties who have filed an answer prior to the time default is entered. Id.

¶21 Likewise, in the instant case, despite the fact that District Court Rule 10 refers to notice of taking default being given only to the party against whom default judgment is to be entered, it is undisputed that the default judgment, at least according to the trial court’s interpretation, affected Insurance Company and limited its opportunities to defend its interests. Additionally, Insurance Company had appeared and filed an answer in which it denied Hopwood’s negligence well before the default judgment was sought. Accordingly, entering the default judgment without any notice to Insurance Company, and attempting to bind Insurance Company by the default judgment, deprived Insurance Company of its constitutionally-guaranteed right to due process. The default judgment is therefore void for lack of proper notice to an interested party. See B & C Investments, Inc., supra., 903 P.2d at 343. The default judgment was consequently subject to attack at any time and the trial court abused its discretion in refusing to vacate the default judgment.

¶ 22 Additionally, the trial court erred in holding that Insurance Company was bound by the default judgment determining Hopwood’s liability for negligence. The determination of whether a default judgment entered against one party binds a co-defendant is a question of law. Drill South, Inc. v. International Fidelity Ins. Co., 234 F.3d 1232, 1235 (11th Cir.2000) (held: a surety is bound by a default judgment entered against its principal where the surety received notice and an opportunity to defend the action). Undoubtedly Insurance Company cannot be bound by a judgment which is void. Furthermore, a party to an action is bound by and entitled to the benefits of res judicata and issue preclusion only as to those matters on which fair notice has been given. See Restatement (Second) of Judgments, § 34, Comments. Section 57 of the Restatement (Second) of Judgments provides that where a default judgment is entered against an indemnitee, the indemnitor is not bound if the indemnitor was not afforded notice of the proceedings. In addition, the Gonzalezes failed to present any authority for applying the doctrines of res judicata or collateral estoppel so that a co-defendant would be bound by adjudicative facts established in an interlocutory default judgment against another defendant. The trial court erred as a matter of law in holding that Insurance Company was bound by the default judgment entered against Hopwood under the circumstances of the instant case.

¶ 23 Finally, we find the trial court abused its discretion in considering the matters in the requests for admissions deemed admitted and then denying Insurance Company’s application to withdraw and amend its answers. The responses to the requests for admissions were filed two days after the statutory time limit. See 12 O.S.1991 § 3236(A). However, § 3236(A) expressly provides that the thirty-day period for responding may be shorter or longer than that, as the court may decide. On April 11, 2001 Insurance Company learned that the trial court held that Insurance Company was bound by the default judgment of liability and awarding damages. On that same date the Gonzalezes served their requests for admissions on Insurance Company. Insurance Company filed answers, but only two days late. We find no prejudice to the Gonzalezes would have resulted if the trial court either had accepted the answers as timely or granted Insurance Company’s application to withdraw and amend the responses. Instead, on the basis of those deemed admissions, the trial court granted summary judgment to the Gonzalezes on the only remaining issue in a case where Insurance Company was not afforded notice of an essential proceeding in the case.

¶24 For these reasons, the trial court’s decisions denying the petition to vacate the default judgment, and granting partial summary judgments in favor of the Gonzalezes, first on the issues of Hopwood’s negligence and the amount of damages, and then on the remaining issue of Insurance Company’s liability under respondeat superior, are REVERSED AND REMANDED for proceedings consistent with this opinion.

JOPLIN, V.C.J., and JONES, J., concur.

      . The Gonzales' son, Francisco, was injured in the accident, along with Remberto, who was driving their car.

      . The second alias summons and petition were served on Hopwood personally at his place of employment September 23, 1999.

      . On August 3, 2000, Insurance Company filed its application for waiver of physician-patient privilege in which it asserted it needed to obtain the Gonzalezes’ medical records in order to defend the case against it. Also on that date, Insurance Company filed a motion to compel answers to interrogatories. Insurance Company asserted that the Gonzalezes’ responses to the interrogatories were filed a year late and that the responses were inadequate. These procedural moves indicate Insurance Company was unaware that the default judgment might bind Insurance Company on the issue of Hopwood’s negligence and the amount of damages.

      . The trial court’s decision on a motion to vacate a judgment is reviewed for an abuse of discretion. Ferguson Enterprises, Inc., v. H. Webb Enterprises, Inc., 2000 OK 78, 13 P.3d 480, 482.

      . Title 12 O.S.1991 § 2005(A) provides, in part:
      “Except as otherwise provided in this title, ... every written motion other than one which may be heard ex parte, and every written notice, appearance, demand, offer of judgment, and similar paper shall be served upon each of the parties. No service need be made on parties in default for failure to appear....”

      . While the Gonzalezes raise several issues regarding compliance with 12 O.S.1991 § 1031.1 et seq., we are not convinced of the applicability of those statutes to an interlocutory order. It appears that the vacation statutes apply to final judgments, decrees, or appealable orders. Section 1031.1(B) refers to judgments prepared in conformance with 12 O.S.1991 § 696.3 which describes appealable judgments, decrees, and orders. Section 696.3(B) requires a file-stamped copy of such judgment to be mailed to all parties, not in default, promptly, and no later than 3 days after it is filed.


source: Caselaw Access Project

author: KEITH RAPP, J.

license: Public Domain

text:
    2002 OK CIV APP 102
    Charlene DICKERSON, Petitioner/Appellant, v. OKLAHOMA SECRETARY OF STATE, and Compsource Oklahoma, and the Workers’ Compensation Court, Respondents/Appellees.
    No. 96,796.
    Court of Civil Appeals of Oklahoma, Division No. 2.
    April 23, 2002.
    Rehearing Denied July 5, 2002.
    Certiorari Denied Oct. 8, 2002.

      Ronald “Skip” Kelly, Oklahoma City, for Petitioner/Appellant.
    Ron Frangione, Oklahoma City, for Respondents/Appellees.
   KEITH RAPP, J.

¶ 1 Charlene Dickerson (Claimant) appeals the Worker’s Compensation Court decision in favor of the Oklahoma Secretary of State (Secretary) and its insurer, which denied her claim for worker’s compensation benefits.

BACKGROUND

¶ 2 The trial court denied the claim, finding Claimant failed to establish that her injury arose out of or in the course of her employment. The material facts are not disputed.

¶ 3 Claimant, is a long-time receptionist employed by the Secretary, whose office is one of the offices within the State Capitol Building. Her stated hours of regular employment were from 8:00 o’clock A.M. to 5:00 o’clock P.M. The Secretary’s written policy for employees stated the work hours were from 8-5 and a sign-in sheet is provided for all employees to sign as their time of arrival 8:00 o’clock A.M. They are not to sign in earlier, apparently without regard to their actual arrival at the office.

¶4 On January 10, 2001, Claimant arrived at work at about 7:40 o’clock A.M. She proceeded to the Secretary’s office, entered, opened her computer, and prepared for work. On occasion, in the past, Claimant had voluntarily performed some work activities when she arrived early, which were considered “comp time,” but other than the ordinary preparations necessary to perform work, she had not done so on this day.

¶ 5 Claimant, at about 7:50 o’clock A.M., left the office to go to the Capitol Building snack bar. On the way she negotiated the Capitol stairs, slipped on something, fell and suffered a broken leg. The snack bar is not operated by the Secretary, but is apparently operated for the convenience of all offices within the Capitol Complex.

¶ 6 The trial court filed its order which in pertinent part is as follows:

-1.-

THAT claimant failed to establish that she sustained an accidental personal injury arising out of and in the course of her employment to her LEFT FOOT, RIGHT LEG AND LEFT ARM on or about JANUARY 10, 2001.

-2.-

THAT it is therefore ordered that claimant’s claim for compensation be and the same hereby is denied.

-3.-

THAT pursuant to Title 85 O.S. Section 93, a filing fee of seventy-five dollars ($75.00) is taxed as a cost in this matter, and shall be paid by claimant to the Court Administrator, within twenty (20) days from the date this order becomes final.

¶ 7 Claimant appeals.

STANDARD OF REVIEW

¶ 8 . The Workers’ Compensation Court has a duty to set out specific findings of fact and conclusions of law. The appellate courts will review, vacate and remand when the Workers’ Compensation Court fails to do so and the order is indefinite. See Gleason v. State Industrial Court, 1965 OK 210, ¶ 14, 413 P.2d 536, 538.

¶ 9 Whether an injury arises out of and in the course of employment generally presents an issue of fact. Thomas v. Keith Hensel Optical Labs, 1982 OK 120, ¶ 7, 653 P.2d 201, 203. Although the material facts here are not disputed, whenever conflicting or inconsistent inferences may be drawn from undisputed facts, the issue is not of law but rather of fact. Id. When this Court reviews the Workers’ Compensation Court’s factual resolutions, the any-competent-evidence standard applies. Parks v. Norman Mun. Hosp., 1984 OK 53, 684 P.2d 548.

ANALYSIS AND REVIEW

¶ 10 It is first noted that the trial court, after hearing only the Claimant and no other witness, entered the order set out above. The appellate court will not weigh the evidence but will examine the record only to ascertain if the Workers’ Compensation Court decision is supported by Claimant’s evidence. Sooner Const. Co. v. Brown, 1975 OK 171, 544 P.2d 500; Meadow Gold Dairy v. Oliver, 1975 OK 67, 535 P.2d 290; Goombi v. Trent, 1975 OK 16, 531 P.2d 1363. Here, the order is, at best, vague and in conflict with the evidence adduced at trial.

¶ 11 However, it is incumbent upon the reviewing court to examine the record as a whole where the trial court fails to provide a reviewable order.

¶ 12 The two-part test for entitlement to worker’s compensation is stated in Turner v. B Sew Inn, 2000 OK 97, ¶ 14, 18 P.3d 1070, 1073:

A compensable work-related injury must occur in the course of and arise out of the worker’s employment. The “in the course of’ prong relates to the time, place or circumstances under which the injury occurs. To be considered in the course of employment, an accidental injury must occur within the period of employment at a place where the worker reasonably may be and while reasonably fulfilling a duty of employment, or engaged in doing something incidental thereto. It tests whether, at the critical moment, the claimant was on a mission for the employer. The “arise out of’ prong contemplates a causal connection between the act engaged in at the time the injury occurs and the requirements of employment. To meet the “arising out of’ test, it must appear to the rational mind, upon considering all the circumstances, that a causal connection exists between the conditions under which the work is to be performed and the resulting injury.

¶ 13 Claimant here had already arrived at work, so the classic going to and from work situation also is distinguishable. For example, in Harris v. La Quinta, 1997 OK 50, 937 P.2d 89, the claimant was driving home after work. Here, the Claimant was not engaged in a special task for Employer, but she was operating within the Secretary’s “comp time” practice and was also within the Secretary’s zone of business, the same being the State Office Complex, so the exception without the course of employment does not apply.

¶ 14 Next, the facts here are not distinguishable from eases involving injuries occurring during authorized break periods, as in Richey v. Commander Mills, Inc., 1974 OK 47, 521 P.2d 805, where the Court recognized that injuries which “occurred during non-work activity permitted for comfort and convenience of employees, could arise out of and in course of employment.” Richey, 1974 OK 47 at ¶ 10, 521 P.2d at 807. Here, Claimant clearly was on a pre-office opening refreshment activity in preparation for work. Even though the Secretary’s “policy” did not officially recognize the pre-opening period, employees were “comp’d” for such early work. Finally, Claimant was physically within the Secretary’s office “premises,” because the Secretary’s State Office and Claimant’s workplace is but a single element within the State Capitol and, when injured, she was on a stairway in the State Capitol Building. Thus, the factual situation here presents a hybrid case.

¶ 15 First, this Court finds that the fact that Claimant was in an area required for egress and ingress to that part of the State Capitol Building adjacent to and not physically segregated from the use of the Secretary of State’s office is controlling. Injury in a parking lot not owned or controlled by an employer can still be compensated as occurring on employer’s premises even though employer does not own or control the area but acquiesces in its use. Turner v. B Sew Inn, 2000 OK 97 at ¶¶ 10-11, 18 P.3d at 1072-73; Max E. Landry, Inc. v. Treadway, 1966 OK 259, 421 P.2d 829 syl. 1. The stairway, the snack bar, and the hallways, and other common areas of the State Capitol Building required to access and exit from various offices within the complex may likewise be workplace premises for employees of agencies of the State of Oklahoma who maintain offices in the Capitol Building.

¶ 16 However, the fact that the Claimant’s injury occurred on Employer’s workplace premises does not in itself dispose of the case. It is necessary to examine whether Claimant’s presence on the stairway satisfied the two components of the employment-related purpose. Claimant’s presence on Employer’s workplace premises here satisfies the “in the course of’ component. Turner v. B Sew Inn, 2000 OK 97 at ¶¶ 23-24, 18 P.3d at 1075-76; Corbett v. Express Personnel, 1997 OK 40, ¶ 10, 936 P.2d 932, 935.

¶ 17 This Court holds that Claimant’s trip to the snack bar prior to work is in the course of employment, based on the undisputed evidence of the Secretary’s usage of “comp time” for work performed prior to the “official” sign in time. The Secretary presented no evidence to dispute this practice. Thus, the trial court’s decision is not based

on competent evidence required under Parks and will be reversed and remanded for judgment consistent with this Opinion.

¶ 18 REVERSED AND REMANDED.

COLBERT, P.J., and GOODMAN, J., concur.

      . Someone has to arrive prior to 8:00 o’clock A.M. to unlock the door at the stated time. Such event is obviously done on a daily basis as there was no testimony of a daily queue of employees outside the Secretary’s office waiting to go in. Indeed, the undisputed testimony was that preparations were made before 8:00 o'clock A.M. by employees to ensure a smooth office opening at 8:00 o’clock A.M.

      . It is noted the trial court order merely states there is no injury arising out of or in the course of employment. The order states no other pertinent facts for review.


author: TOM COLBERT, Presiding J.

text:
    2002 OK CIV APP 95
    Larry D. CLEVELAND and Brenda K. Cleveland, Plaintiffs/Appellees, v. DYN-A-MITE PEST CONTROL, INC., d/b/a Brewer-Russell Exterminating Co., Defendant/Appellant.
    No. 95,680.
    Court of Civil Appeals of Oklahoma, Division No. 2.
    April 30, 2002.
    Rehearing Denied June 7, 2002.
    Certiorari Denied Oct. 3, 2002.

      Mike Barkley, David G. Graves, Barkley, Titus, Hillis & Reynolds, PLLC, Tulsa, for Plaintiffs/Appellees.

      Lawrence D. Taylor, Tulsa, for Defendant/Appellant.
   TOM COLBERT, Presiding J.

¶ 1 Dyn-A-Mite Pest Control, Inc., d/b/a Brewer-Russell Exterminating Company (Brewer-Russell), appeals a judgment entered upon a jury verdict in favor of Larry D. Cleveland and Brenda K. Cleveland. The issue on appeal in this action for negligence and deceit is whether the trial court erred in denying Brewer-Russell’s motions for directed verdict and judgment notwithstanding the verdict. Based upon our review of the record and applicable law, we find that the trial court did not err and affirm the judgment.

BACKGROUND

¶2 In October 1991, Larry and Brenda Cleveland purchased a home located at 2508 W. Greely in Broken Arrow, Oklahoma. They bought the home from Larry and Edith Eggemeyer, who purchased it from John and Linda Dowd. When the Eggemeyers sold the home to the Clevelands, they provided the Clevelands with a “Wood Destroying Insect Information” report, a visual inspection report prepared by Brewer-Russell. The Brewer-Russell service manager who prepared the report placed an “x” next to item number 8(B), which reads, “No visible evidence of infestation from wood destroying insects was observed.” Item number 10 of the report provides a space Tor additional comments by the inspector. In this space, the service manager wrote, “previously treated by Brewer-Russell.” No additional information was given.

¶ 3 The Clevelands moved into the home in the first week of November 1991. Within two weeks, they noticed a wet spot along the outside of the shower door in their master bathroom. Shortly thereafter, Larry Cleveland noticed a dust trail under the baseboard in the bathroom. He removed the baseboard and found “thousands of live termites.” He later removed the shower to assess the damage. Larry contacted Brewer-Russell, and Dennis Forehand, the company’s vice president, went to the home within a day or two to treat the affected area. Larry also made a report to the Department of Agriculture.

¶ 4 In January 1992, Forehand revisited the Clevelands and agreed to pay a portion of the cost for the repair of their bathroom. In February 1992, Larry Cleveland and Charles Forehand (Forehand’s father) entered into an- oral “settlement agreement,” which was memorialized on February 5, 1992. The written release, drafted by Brewer-Russell, provided that Brewer-Russell would pay Larry $250 and treat the property as needed.

¶ 5 In March 1992, the Clevelands experienced a swarm of termites in their kitchen and called Brewer-Russell. An agent of Brewer-Russell went to the home and applied a topical treatment. In September 1992, the Clevelands experienced another swarm of termites in their living room and on their patio. Brewer-Russell again responded and treated the areas. In Spring 1993, the Clevelands experienced a third swarm in their attic, which Brewer-Russell then treated. In August or September 1993, the Clevelands experienced another swarm of termites on their back patio. When they contacted Brewer-Russell, Forehand refused to go back to their home, stating that the Clevelands had not paid their annual $60 inspection fee. Larry Cleveland purchased the treatment and applied it himself.

¶ 6 The $60 annual inspection fee was part of the consideration for an August 1989 contract between Brewer-Russell and John Hausam Realtors, the realtor for the Dowds. The contract was prepared at the time the Dowds were selling the home to the Eggem-eyers and provided, “The contractor [Brewer-Russell] agrees to make a thorough inspection annually, and take the necessary measures to eradicate any termites should re-infestation be found for annual fee of $60 payable when re-inspections and re-treatments are made for 10 years.” When the Clevelands purchased the home from the Eg-gemeyers, Larry Cleveland’s name was substituted for that of John Hausam on the contract.

¶ 7 When Brewer-Russell refused to go out to the Clevelands’ home after the last incident in 1993, the Clevelands treated the refusal as a breach of the February 1992 release. In September 1994, they sued Brewer-Russell for breach of contract, negligence, and negligent/wilful damage to property. During discovery, the Clevelands learned that, while the Eggemeyers owned the home, they had experienced live infestation of termites on several occasions, and Brewer-Russell had previously treated the home five times. In October 1996, the Cleve-lands filed a second amended petition, arguing that Brewer-Russell had a duty to disclose the history of previous treatments. The Clevelands added a claim of deceit.

¶8 A jury trial was held on May 1-4, 2000. On May 3, Brewer-Russell demurred to the evidence. The trial court overruled the demurrer. At the close of evidence on May 4, Brewer-Russell moved for a directed verdict, which was also denied. On May 5, 2000, the jury rendered a verdict in favor of the Clevelands, awarding them $10,000 in punitive damages, $10,000 in damages for the deceit claim, and $73,000 in damages for the negligence claim. Although the jury found in favor of the Clevelands on the breach of contract claim, it did not award damages. The jury found in favor of Brewer-Russell on a breach of oral contract claim. The trial court journalized the verdict in its June 6, 2000, order.

¶ 9 Brewer-Russell subsequently filed a motion for j.n.o.v. and a motion for a new trial. In an order filed November 29, 2000, the trial court denied both motions. This order also reflects that, on November 21, 2000, the trial court issued a nunc •pro tunc order, modifying the June 6, 2000, journal entry to show that, because the jury awarded no damages for breach of contract, judgment was granted in favor of Brewer-Russell on that issue. Brewer-Russell now appeals the trial court’s denial of its motions for directed verdict and j.n.o.v.

STANDARDS OF REVIEW

¶ 10 Brewer-Russell’s arguments on appeal are addressed to the trial court’s denial of its motions for directed verdict and j.n.o.v. When reviewing a trial court’s ruling on a motion for j.n.o.v. and a motion for directed verdict, the reviewing court applies the same test. McInturff v. Okla. Natural Gas Transmission Co., 1970 OK 169, ¶ 9, 475 P.2d 160, 162. Conflicting evidence favorable to the movant is disregarded, and, unless there is an entire absence of proof showing the plaintiffs right to recover, the motion should be denied. Sadler v. T.J. Hughes Lumber Co., 1975 OK CIV APP 30, ¶ 4, 537 P.2d 454, 456 (citing Austin v. Wilkerson, Inc., 1974 OK 23, 519 P.2d 899).

¶ 11 Although Brewer-Russell’s arguments on appeal are addressed only to the trial court’s denial of its motions for directed verdict and j.n.o.v., we will briefly discuss the court’s denial of Brewer-Russell’s motion for new trial. “A trial court is vested with broad legal discretion in granting or denying a new trial, and unless it clearly appears that the trial court erred in some pure simple question of law or acted arbitrarily, its judgment will not be disturbed on appeal.” Dominion Bank of Middle Tenn. v. Masterson, 1996 OK 99, ¶ 16, 928 P.2d 291, 294.

DISCUSSION

I.

¶ 12 Brewer-Russell’s primary argument on appeal is that the trial court erred in denying its motions for directed verdict and j.n.o.v. because the company had no duty to disclose the termite history of the Cleve-lands’ home when it prepared the visual inspection report in 1991. Brewer-Russell reasons that the inspection report required only a visual inspection of the property and stated that it was not a warranty against the presence of termites or termite damage. Brewer-Russell objects to the way in which the standard negligence instructions were given to the jury and argues that it was the trial court’s duty, and not that of the jury, to first determine whether it had a duty to disclose the history of termite treatment to the Clevelands’ home. Brewer-Russell further argues that the instructions as given effectively required the jury to determine whether a duty existed.

¶ 13 The trial court instructed the jury as to the definition of negligence and direct cause, and the requirements for proving damages. See Oklahoma Uniform Jury Instructions (OUJI) 9.1, 9.2, and 9.6. The trial court’s journal entry reflects that Brewer-Russell did not object to the instructions before they were presented to the jury. The failure to object to instructions or to request alternate instructions waives the issue on appeal. See Holloway v. State, 1986 OK CR 1, ¶4, 712 P.2d 68, 69. Moreover, when a trial court gives a general instruction on an issue, the party opposing the instruction has the duty to request that a more specific instruction be given. See Timmons v. Royal Globe Ins. Co., 1982 OK 97, ¶ 26, 653 P.2d 907, 915. There is nothing in the record which indicates that Brewer-Russell requested that the trial court specifically instruct the jury that Brewer-Russell had a duty to disclose the history of termite treatments to the Clevelands’ home. Thus, Brewer-Russell cannot object to the instructions, or the absence of any specific instruction, on appeal. For purposes of clarification, however, we will discuss the issue of duty in more detail.

¶ 14 Section 552 of the Second Restatement of Torts provides:

(1) One who, in the course of his business, profession or employment, or in any other transaction in which he has a pecuniary interest, supplies false information for the guidance of others in their business transactions, is subject to liability for pecuniary loss caused to them by their justifiable reliance upon the information, if he fails to exercise reasonable care or competence in obtaining or communicating the information.
(2) Except as stated in Subsection (3), the liability stated in Subsection (1) is limited to loss suffered (a) by the person or one of a limited group of persons for whose benefit and guidance he intends to supply the information or knows that the recipient intends to supply it; and (b) through reliance upon it in a transaction that he intends the information to influence or knows that the recipient so intends or in a substantially similar transaction.

Restatement (Second) of Torts § 552 (1977). In Chicago, Rock Island & Pacific R.R. v. Hawes, 1967 OK 26, ¶ 10, 424 P.2d 6, 10, the Oklahoma Supreme Court explained that “where the standard of human conduct by which the parties’ negligence, or their lack of it, is not prescribed by law, the determination of the matter must be left to the jury.” Thus, it was within the province of the jury to determine whether Brewer-Russell’s duty of ordinary or reasonable care encompassed the duty to report the termite history of the Clevelands’ home on the inspection report.

¶ 15 There is evidence in the record to support a finding that such a duty existed. Dr. Kevin Mussett, an entomologist who owns a pest control company in Stillwater, 'Oklahoma, testified that, when his company prepares a wood infestation report, it makes a determination as to whether the home has been previously treated and notes that fact on the report. He further testified that wood infestation reports are prepared for the benefit of the buyer, and that Brewer-Russell’s report, which lacked the dates and times of previous treatment, was inadequate and inaccurate. He stated that it is “critical” to state the areas which have been re-treated. Mussett, Forehand, and Larry Legg, a program administrator with the Department of Agriculture, testified that the Department of Agriculture has not addressed the issue of whether the termite history should be reported on a wood infestation report.

¶ 16 On the other hand, Forehand testified that the Department of Agriculture requires pest control companies performing re-treatments to list prior treatments on the service order. Although Brewer-Russell presented testimony to the effect that providing purchasers with a termite history is not common in the pest control industry, we must disregard conflicting evidence favorable to the movant. See Sadler, 1975 OK CIV APP 30, ¶ 4, 537 P.2d at 456 (citing Austin v. Wilkerson, Inc., 1974 OK 23, 519 P.2d 899).

¶ 17 We agree that Brewer-Russell had a duty to disclose the termite treatment history of the Clevelands’ home. The most important consideration in determining whether a duty exists is forseeability. Generally, a “defendant owes a duty of care to all persons who are forseeably endangered by his conduct with respect to all risks which make the conduct unreasonably dangerous.” Wofford v. Eastern State Hosp., 1990 OK 77, ¶ 11, 795 P.2d 516, 519 (quoting Tarasoff v. Regents of Univ. of Cal., 17 Cal.3d 425, 131 Cal.Rptr. 14, 551 P.2d 334, 342 (1976)). Brewer-Russell owed a duty to the Cleve-lands to disclose the previous termite history in the inspection report because the company knew the certificate was for the benefit of the Clevelands. Moreover, Forehand testified that most termite damage occurs behind the walls of a home and is not visible. Thus, it was forseeable that the Clevelands could be harmed by Brewer-Russell’s failure to disclose pertinent information.

¶ 18 Case law from other jurisdictions confronting similar situations supports our conclusion. In Remeikis v. Boss & Phelps, Inc., 419 A.2d 986 (D.C.1980), an inspection company suppressed a previous written report which revealed the full extent of termite damage and substituted a more favorably worded report which was given to the buyers at closing. The buyers discovered after closing that their home had extensive termite damage and sued the inspection company for negligence and fraud. The trial court found that the termite company owed no duty to the buyers because the company contracted with the seller, and there was no privity of contract between the company and the buyers.

¶ 19 The Court of Appeals stated, “It has long been settled that privity of contract is no prerequisite to a buyer’s recovery against an expert who misevaluates an object, where the expert knows a potential buyer will rely on the expert evaluation.” Id. at 991. The Court also explained, “A jury could conclude that [the real estate agent and inspection company] owed a duty to [the purchasers] to see that they received correct information on termite damage.” Id. The Court further explained, “The jury could find that [the termite company] breached its duty to [the buyers] to exercise that care and competence in obtaining and communicating the information which its recipient is justified in expecting.” Id.

¶ 20 In Pietramale v. Dugay, 714 S.W.2d 281 (Tenn.1986), an inspector reported both the finding of no infestation and of existing damage. However, the inspection company did not report these findings in a single letter. Rather, the company sent three pages stapled together. The top page stated only that there was no active infestation. The third page stated there was damage to the home. At the closing, the parties assumed that the third page was simply a copy of the first. The court stated that, because the inspection company knew the buyers would rely upon the certificate, it “had a duty to [the buyers] to refrain from fraud or negligence in furnishing the certificate.” Id. at 283-84.

¶21 In Barrie v. V.P. Exterminators, Inc., 625 So.2d 1007 (La.1993), the inspector issued a report which indicated there was no physical evidence of active and/or old infestation from subterranean termites. Relying upon the report, the buyers purchased the home. They later found extensive damage and claimed the inspector’was negligent in misrepresenting the condition of the premises.

¶22 The Court explained, “The scope of the duty that [the inspection company] owed to the [buyers] was to use reasonable care and competence in obtaining or ascertaining facts for and/or in communicating the facts or opinion iri the wood destroying insect report.” Id. at 1016. The Court further explained that the duty was owed to the buyers because they were known to the inspection company and were the intended users of the report. The Court also stated that the buyers’ expected use of the report made their loss a forseeable probability. Id.

¶23 In Doskey v. Hebert, 645 So.2d 674 (La.Ct.App.1994), a pest control company misrepresented to the buyers of a home that their home was termite free. The Court stated that the company had a duty “to provide accurate information to plaintiffs regarding the presence of termite activity, either current or past, in the home.” Id. at 681.

¶24 Other courts have also imposed a duty of reasonable care upon pest control companies in communicating facts in termite inspection reports. See Ex parte Hill, 730 So.2d 214, 217 (Ala.1998); Osborne v. Ladner, 691 So.2d 1245, 1255 (La.Ct.App.1997); Williams v. Jackson Co., 359 So.2d 798, 801 (Ala.Civ.App.1978); Johnson v. Wall, 38 N.C.App. 406, 248 S.E.2d 571, 575 (1978).

¶ 25 Brewer-Russell argues that, because it owed no duty to the Eggemeyers to recite the termite history of the home, it owed no duty to the Clevelands. In support of this argument, Brewer-Russell cites several cases involving negligence and third-party beneficiary theory. Although the cases are unpersuasive, one case in particular, Copeland v. Admiral Pest Control, 1996 OK CIV APP 119, 933 P.2d 937, warrants discussion.

¶ 26 In Copeland, the plaintiff was bitten by a spider in a motel and sued the motel’s pest control company, arguing that the company took it upon itself to exterminate the premises and keep it free of spiders and other dangerous insects. The company argued that it owed no duty to the plaintiff to eliminate pests from the motel or the warn of the danger of pests. The company further argued that the plaintiff was not a forseeable person to whom it owed a duty because it was not the owner-operator of the motel and had no contractual relationship with the plaintiff.

¶27 A division of this Court first found that the pest control company was not liable under a third-party beneficiary theory because there was no evidence that the motel or the pest control company intended to benefit motel guests to the extent that guests could enforce the contract. Id. at ¶ 6, 933 P.2d at 939. The Court then found that the pest control company could not be held liable in negligence because it did not have a duty to eliminate every spider from the motel. Id. at ¶ 13, 933 P.2d at 940.

¶28 Copeland is clearly distinguishable. In the instant case, Brewer-Russell knew the wood infestation report was for the benefit of the Clevelands and the Clevelands relied upon the report to their detriment. Brewer-Russell’s knowledge placed the Clevelands within the ambit of foreseeability of harm. We conclude that Brewer-Russell had a duty to disclose the treatment history of the home. We further conclude that the trial court properly instructed the jury on the duty of ordinary care, and the court did not err in denying Brewer-Russell’s motions for directed verdict and j.n.o.v. on the issue of duty to disclose the termite treatment history of the Clevelands’ home.

II.

¶ 29 Brewer-Russell next contends that the trial court erred in denying its motions for directed verdict and j.n.o.v. because the statute of limitations barred the Clevelands’ claims for negligence and deceit. The trial court instructed the jury that the statute of limitations began to run two years from the time the Clevelands knew or should have known about the material termite history of their home. See 12 O.S.2001 § 95. Brewer-Russell argues that the statute of limitations began to run on the date the Clevelands moved into their home. Brewer-Russell further argues that, to the extent the statute of limitations was tolled until the Clevelands knew or should have known of the alleged negligence and deceit, it began to run on December 26,1991, the date Larry Cleveland removed the baseboard in the master bathroom and discovered active infestation.

¶ 30 Between August 1989 and the time the Clevelands purchased their home, Brewer-Russell treated the home for termites on five occasions. It is clear that the Clevelands had knowledge of the August 1989 treatment. Larry Cleveland testified that, when he and Brenda purchased their home, they received a copy of the August 1989 contract, which contained a graph showing treatment to a utility closet located outside of the home in the garage. He also testified that the language, “previously treated by Brewer-Russell,” contained in the 1991 inspection report, could have meant treatment for any type of insect and that he assumed that Brewer-Russell had taken care of the problem. Larry further testified that he and Brenda did not find out about the remaining four treatments until 1995, during discovery.

¶ 31 Although witnesses for Brewer-Russell testified that the Clevelands had been told of the other four treatments prior to 1995, “it is within the province of the jury to determine the credibility of the witnesses and to decide the effect or weight to be given their testimony.” Walker v. St. Louis-San Francisco Ry., 1982 OK 25, ¶ 10, 646 P.2d 593, 597. The testimony by Larry Cleveland supports the jury’s finding that the Cleve-lands did not know of the full treatment history until 1995. Because the Clevelands filed their last amended petition on October 3, 1996, it was filed within the two-year time frame.

¶ 32 Brewer-Russell argues that, because the Clevelands knew of the treatment to the closet in the garage in 1989 and because they discovered active infestation shortly after moving into the home, they were put on inquiry notice and would have known about the previous treatments if they had inquired. In support of this argument, Brewer-Russell cites Bankers’ Mortgage Co. v. Leisure, 1935 OK 342, 42 P.2d 863; Knudson v. Weeks, 394 F.Supp. 963 (W.D.Okla.1975); and Reynolds v. Fowler Pest Control and Insulation, Inc., 479 So.2d 1185 (Ala.1985). Each of these cases, however, is distinguishable.

¶ 33 In Leisure, a suit for rescission based upon fraud, the plaintiffs purchased a bond without examining it closely. The Supreme Court held that the statute of limitations began to run when the plaintiffs received their bond. Leisure, 1935 OK 342, ¶ 10, 42 P.2d at 865. The Court reasoned that the plaintiffs had in their hands the means for discovering the fraud. Id. Unlike Brewer-Russell, however, the defendant in Leisure did not fail to disclose material information.

¶ 34 In Knudson, a homebuyer, whose home encroached upon an adjacent tract and into a utilities easement,'sued the surveyor, who failed to disclose the encroachment. The Court determined that the homebuyer had constructive notice of the encroachment into the easement by the recorded plat and because she knew of the encroachment onto the adjacent tract when she bought the home. Knudson, 394 F.Supp. at 972. Brewer-Russell cites no authority requiring home-buyers to search the records of governmental agencies to obtain a home’s termite treatment history.

¶ 35 In Reynolds, the plaintiffs sued a pest control company for fraud, arguing that at the time of the closing, the company represented in writing that the property was free of termite damage, when there was significant damage to the house. The Court held that, because the inspection form contained the language, “This is not a structural damage report. Neither is this a warranty as to the absence of wood- destroying insects,” the plaintiffs were not victims of misrepresentation. Reynolds, 479 So.2d at 1187.

¶ 36 Brewer-Russell argues that, because the inspection report here contained a disclaimer identical to the one in Reynolds, the Clevelands were placed on inquiry notice of the treatment history of their home. However, it is critical to note that, in Reynolds, the inspection report noted, “Visible evidence of infestation was noted; proper control measures were performed.” Id. Here, however, the 1991 inspection report noted, “No visible evidence of infestation from wood destroying insects was observed.” Unlike the situation here, there was no allegation by the plaintiffs in Reynolds that the pest control company failed to disclose the full treatment history of the home. Moreover, although the Cleve-lands received a copy of the 1989 graph, the graph showed damage only to an outside utility closet. That would not have placed the Clevelands on notice of possible extensive damage inside the house. We find that the trial court did not err in denying Brewer-Rusell’s motions for directed verdict and j.n.o.v. on the issue of the statute of limitations.

III.

¶ 37 Brewer-Russell next contends that Larry Cleveland’s causes of action for negligence and deceit were barred by the 1992 release entered between Larry and Brewer-Russell. The agreement, drafted by Brewer-Russell, provided:

Brewer Russell, Exterminators did nothing wrong in our inspection and has been found blameless by the Department of agriculture [sic ].
As a sign of good will and because we have a reputation for going the extra mile to be fair in our business dealings. We will issue a check in the amount of $250.00 (two hundred-fifty dollars) and retreat the property. We also will place this property on our yearly maintenance program for needed retreats only, no repairs are included.
This will release Brewer Russell, Exterminators from futher [sic] responsibility and litigation.

Brewer-Russell argues that the language of the release is broad enough to cover all of the Clevelands’ claims. The Clevelands, on the other hand, argue that the language of the release is vague and does not address the negligent omissions and misrepresentation which form the basis of this law suit.

¶ 38 A release intends a present abandonment of a known right or claim. Medtronic Ave., Inc. v. Advanced Cardiovascular Sys., Inc., 247 F.3d 44, 56 n. 4 (3rd Cir.2001). A covenant not to sue, on the other hand, applies to future claims. Id. See also Lisle v. Anderson, 1916 OK 92, 159 P. 278, 282 (explaining that language promising a forbearance from asserting future claims constitutes a covenant not to sue, rather than a release). “Generally, rights of action originating after a release are not settled or barred by it, unless they are expressly embraced therein or fall within the fair import of the terms therein employed.” Haco Drilling Co. v. Hammer, 1967 OK 71, ¶ 0, 426 P.2d 689, 690 (syl. no. 3 by the Court). See also Antco, Inc. v. Dodge Fuel Corp., 209 W.Va. 644, 550 S.E.2d 622, 630 (2001); Clark v. Columbia/HCA Info. Servs., Inc., 117 Nev. 468, 25 P.3d 215, 223-24 (2001); Loberg v. Hallwood Realty Partners, L.P., 323 Ill. App.3d 936, 257 Ill.Dec. 394, 753 N.E.2d 1020, 1025 (2001); Medtronic, 247 F.3d at 58; Capocy v. Kirtadze, 183 F.3d 629, 632 (7th Cir.1999) (all explaining that a release will not be construed to include claims not contemplated or known by the parties at the time of its execution).

¶ 39 As we have discussed above, there is evidence in the record to support the jury’s finding that^the Clevelands did not know of the complete termite treatment history of their home until 1995. Therefore, the causes of action for negligence and deceit in failing to disclose the treatment history could not have been within Larry Cleveland’s contemplation at the time he signed the release.

¶ 40 There are other contract principles which we must consider: intention of the parties and consideration. In Kay Pharmacal Co. v. Dalious Construction Co., 1954 OK 306, ¶7, 276 P.2d 756, 758, the Supreme Court explained that, generally, “a release must be construed in the light of the circumstances surrounding the parties at the time the release was entered into.” The Court further explained that “release provisions are contractual, and the language of a contract (release) is to govern its interpretation, if the language is clear and explicit and does not involve an absurdity.” Id.

¶41 Here, it is not clear from the language of the release that the parties intended to include all possible future claims against Brewer-Russell. Because the release was drafted shortly after the first incident with termites in December 1991, the jury could have reasonably concluded' that the language, “This will release Brewer-Russell, Exterminators from futher [sic ] responsibility and litigation,” meant that .the release covered only a potential lawsuit arising from the December 1991 incident.

¶ 42 Moreover, the language of the release is ambiguous. Although the contract provided, “We will also place this property on our yearly maintenance program for needed retreats only,...” it did not state that the Clevelands’ annual remittance of $60 would be a condition precedent to future performance by Brewer-Russell under the release. “If terms in the contract are ambiguous, it must be construed against the drafter of the contract.” McMinn v. City of Oklahoma City, 1997 OK 154, ¶ 14, 952 P.2d 517, 522 (citing Dismuke v. Cseh, 1992 OK 50, ¶ 8, 830 P.2d 188,190).

¶ 43 The Supreme Court addressed the issue of consideration in Haco Drilling:

[W]hile the plaintiffs are not permitted to vary the terms of a written agreement such as is here involved, the question of consideration is always an open one, and whether the consideration paid in the instant case was for damages already sustained or to exempt defendant from any future damages is not clear, and we are inclined to the opinion that before a contract such as is here relied upon can be upheld that it must be clearly shown that the question of future damages, and the specific character and extent of such damages Siust have entered into the consideration and been within the contemplation of the parties at the .time the contract was entered into, and that the consideration passing be adequate to cover such damages as may have been within the contemplation of the parties.

Haco Drilling, 1967 OK 71, ¶ 10, 426 P.2d at 694 (quoting Gulf, C. & S.F. Ry. v. Anderson, 1926 OK 315, ¶ 14, 250 P. 500, 502). The amount of consideration in the release in question does not reflect that the character and extent of future damages entered into the consideration and was within the contemplation of the parties at the time they executed the release. We will not reverse the trial court’s denial of Brewer-Russell’s motions for directed verdict and j.n.o.v. on this basis.

IV.

¶ 44 Brewer-Russell next contends that the treatment history of the Clevelands’ home was not material because the Cleve-lands’ real estate contract provided that they would purchase the home regardless of any termite infestation or damage. During the arguments on the motion for directed verdict, the trial court explained, “The issue is not that he [Larry Cleveland] wouldn’t have bought the house. The issue today is that he wouldn’t have had a house that needs to be bulldozed.” ' The court further explained that the case involved causes of action against Brewer-Russell only; it did not involve causes of action related to the Clevelands’ contract with the Eggemeyers.

¶ 45 We are in agreement with the trial court. The fact that the Clevelands may have been required to complete their real estate contract with the Eggemeyers even if they had known the full treatment history of the home is not relevant to the issue of whether they could sue Brewer-Russell for damages when it failed td disclose the full treatment history. The trial court instructed the jury, “A fact is material if a reasonably careful person under the circumstances would attach importance to it in determining his or her course of action.” See OUJI 18.4. The termite treatment history was indeed material because a reasonably careful person would attach importance to the termite history of a prospective home. Forehand’s own testimony, in addition to that of Thomas Brown, the Brewer-Russell agent who inspected the Clevelands’ home, acknowledged the importance of such information. We conclude that the trial court did not err in denying Brewer-Russell’s motions for directed verdict and j.n.o.v. on the issue of failure of the element of materiality.

V.

¶ 46 Brewer-Russell next contends that its motion for directed verdict should have been granted because the Clevelands failed to prove compensable property damages. Citing Orkin Exterminating Co. v. Durden, 189 Ga.App. 479, 376 S.E.2d 376 (1988), Brewer-Russell argues that the Clevelands should have submitted evidence of damages that existed in October 1991, when the “alleged” breach occurred, rather than submitting evidence of damages which existed in May 2000. We disagree and find Orkin unpersuasive because that case involved recovery of costs to repair, whereas, in this case, the Clevelands sought permanent damages, which are assessed differently-

¶ 47 In a negligence action, plaintiffs are entitled to recover those damages which are forseeable and naturally flow from the defendant’s negligent acts. Stroud v. Arthur Andersen & Co., 2001 OK 76, ¶ 14, 37 P.3d 783, 789. When damages to real property are “permanent in nature, the measure of damage is the difference between the actual value immediately before and immediately after the damage is sustained.” Keck v. Bruster, 1962 OK 35, ¶ 7, 368 P.2d 1003, 1005 (quoting ABC Constr. Co. of Okla. v. Thomas, 1959 OK 231, ¶ 4, 347 P.2d 649, 651).

¶ 48 The Clevelands’ damages expert, Daniel Simon, testified that the Clevelands’ home has no value, due to extensive termite damage. Simon also testified that he believed the house could not be sold and that it would not be cost effective to repair it. He further testified that, absent the extensive termite damage, the Clevelands’ home would have a fair market value of $98,000 and that the home has a salvage value of $25,000 (a residual value of $31,900 — which includes the lot, swimming pool, and possibly the slab— minus the cost to tear the home down). The jury awarded the Clevelands’ $73,000. It was within the jury’s province to determine the value of the home. Ins. Co. of State of Pa. v. Smith, 435 F.2d 1029, 1031 (10th Cir.1971); Poteete v. MFA Mut. Ins. Co., 1974 OK 110, ¶ 18, 527 P.2d 18, 21.

¶49 The fact that the Clevelands did not provide evidence of damages existing in 1991 does not make the jury’s award erroneous. It appears from the record that the jury determined that the Clevelands knew or should have known of the complete termite history of their home beginning in 1995. The Clevelands amended their petition for a second time in 1996 and alleged negligence on the part of Brewer-Russell in failing to disclose the complete termite treatment history. Their home sustained loss from termite damage up to the point of trial. Given the extensive structural damage caused by termites, the jury could have concluded that most of the damage occurred after Brewer-Russell submitted the wood infestation report. We note, as did the Supreme Court in Keck and Thomas, that Brewer-Russell did not provide any evidence to contradict that of the Clevelands on the issue of damages. See Keck, 1962 OK 35, ¶ 8, 368 P.2d at 1005; Thomas, 1959 OK 231, ¶ 8, 347 P.2d at 652.

¶ 50 We also find guidance in Horsch v. Terminix Int’l Co., 19 Kan.App.2d 134, 865 P.2d 1044 (1993), which involved an action against a termite company for negligent inspection. The Kansas court explained:

The rules for measuring damages are subordinate to the aim of making good the injury done. The determination of damages rests in good sense rather than in a mechanical application of a single formula. The purpose of awarding damages is to make the injured party whole by restoring that party to the position he or she was in prior to the injury.

Id. at 1049 (citations omitted). We find no error on the part of the trial court in denying the motion for directed verdict on the issue of damages.

VI.

¶ 51 Brewer-Russell next contends that the trial court erred in allowing the jury to consider testimony by Brenda Cleveland that she experienced emotional distress as a result of her experiences with the termites in her home. Brewer-Russell argues that, without evidence of physical injury, Brenda’s emotional distress claim was not compensa-ble.

¶ 52 Brenda’s emotional distress claim was a part of the Clevelands’ action for deceit. However, the majority of the cases cited by Brewer-Russell address emotional distress which is negligently inflicted. Thus, the cases are inapposite. This Court has explained that “[ejmotional distress as a consequence of an intentional tort is distinguishable from distress resulting from breach of contract or negligence, which requires a showing of physical injury.” Coble v. Bowers, 1990 OK CIV APP 109, ¶ 19, 809 P.2d 69, 73 (citing Ellington v. Coca Cola Bottling Co., 1986 OK 11, 717 P.2d 109; Seidenbach’s, Inc. v. Williams, 1961 OK 77, 361 P.2d 185). We also explained in Coble that “emotional distress caused by a willful, actionable tort is recoverable, even absent physical injury, if it is the natural and probable consequence of the tortious act.” Id.

¶ 53 Emotional distress is undoubtedly a natural and probable consequence of purchasing and living in a home which, unbeknownst to the purchaser, has been extensively damaged by termites and has extensive live infestation of termites. Brenda’s testimony concerning her experiences with the termites in the home and the way in which that has affected her, was sufficient to allow the issue of emotional distress to go to the jury. We, therefore, find no error on the part of the trial court in denying Brewer-Russell’s motions for directed verdict and j.n.o.v. on this issue.

VII.

¶ 54 Finally, Brewer-Russell argues that, pursuant to 12 O.S.2001 § 936, it was entitled to attorney fees because the trial court rendered judgment in favor of Brewer-Russell on the Clevelands’ breach of contract and breach of oral contract claims. Thus, Brewer-Russell argues the trial court erred in not awarding it attorney fees as a prevailing party on two issues.

¶ 55 In Quapaw Co. v. Varnell, 1977 OK CIV APP 19, 566 P.2d 164, only the plaintiff received a money judgment. This Court explained that “there can be only one prevailing party, and one attorney’s fee.” Id. at ¶ 21, 566 P.2d at 167. Although each party may win some of the issues, the prevailing party is the party in whose favor the verdict compels the judgment. Id. at ¶ 17, 566 P.2d at 167 (quoting Ozias v. Haley, 141 Mo.App. 637, 125 S.W. 556 (1910)).

¶ 56 A division of this Court disagreed with the application of Quapaw in Stites v. Duit Construction Co., 1999 OK CIV APP 113, 992 P.2d 913. There, both the plaintiff and defendant received money judgments in the trial court. The trial court offset the defendant’s recovery for restitution against the judgment which the plaintiff received against the defendant. The plaintiff argued on appeal that, because the trial court offset the defendant’s recovery, the defendant was not a prevailing party and was not entitled to costs. The Court of Civil Appeals concluded that, because the defendant obtained an affirmative judgment, he was a prevailing party. The Court reasoned, “The action of the trial court in allowing [the plaintiff] to offset his liability on [the defendant’s] judgment against [the defendant’s] liability to him on his judgment did not alter the reality of [the defendant’s] judgment.” Id. at ¶ 16, 992 P.2d at 917.

¶ 57 The Court in Stites relied upon Midwest Livestock Systems v. Lashley, 1998 OK 68, 967 P.2d 1197, and Welling v. American Roofing & Sheet Metal Co., 1980 OK 131, 617 P.2d 206. In each of those cases, the plaintiffs and defendants both received money judgments, and the Supreme Court held that both were prevailing parties. See Lashley, 1998 OK 68, ¶ 9, 967 P.2d at 1199; Welling, 1980 OK 131, ¶ 17, 617 P.2d at 210. It is critical to note that, in Lashley, the Court pointed out that Quapaw was not applicable because in that case, only the plaintiff recovered a money judgment. Lashley, 1998 OK 68, ¶ 6, 967 P.2d at 1199. In this case, only the Clevelands received a money judgment. Therefore, they were the only prevailing party, and Brewer-Russell is not entitled to attorney fees.

CONCLUSION

¶ 58 We conclude that the trial court did not err in denying Brewer-Russell’s motions for directed verdict and j.n.o.v. We further conclude that the trial court did not abuse its discretion in denying Brewer-Russell’s motion for new trial.

¶ 59 AFFIRMED.

RAPP, J., and GOODMAN, J., concur.

      . Most significantly, instructions 9.2 and 9.6 provide, respectively:
      “Negligence” is the failure to exercise ordinary care to avoid injury to another's person or property. “Ordinary care” is the care which a reasonably careful person would use under the same or similar circumstances. The law does not say how a reasonably careful person would act under those circumstances. That is for you to decide. Thus, under the facts in evidence in this case, if a party failed to do something which a reasonably careful person would do, or did something which a reasonably careful person would not do, such party would be negligent.

      Direct cause means a cause which, in a natural and continuous sequence, produces injury and without which the injury would not have happened. For negligence to be a direct cause it is necessary that some injury to the property of a person in Plaintiffs situation must have been a reasonably forseeable result of negligence.

      . Each of the aforementioned cases relied upon section 552 of the Second Restatement of Torts.

      . Whitehead v. Rainey, Ross, Rice & Binns, 2000 OK CIV APP 5, 997 P.2d 177; Keel v. Titan Constr. Corp., 1981 OK 148, 639 P.2d 1228; Hesser v. Cent. Nat'l Bank & Trust Co. of Enid, 1998 OK 15, 956 P.2d 864; Bradford Sec. Processing Servs., Inc., v. Plaza Bank & Trust, 1982 OK 96, 653 P.2d 188; Boren v. Thompson & Assocs., 2000 OK 3, 999 P.2d 438.

      .We note that, although Brewer-Russell effectively argues it would be tedious to search company records and ask company staff about the termite history of the home, Forehand admitted that the inspector had in his possession a file which contained the treatment history of the Clevelands’ home. Therefore, it would not have required any great effort on the part of Brewer-Russell to disclose the treatment history.

      . Brewer-Russell does not argue that Brenda Cleveland’s claims were barred by the release because Brenda did not sign the agreement.

      . One of the cases cited by Brewer-Russell on this point is Kay Pharmacal Co. v. Dalious Construction Co., 1954 OK 306, 276 P.2d 756, which involved a suit for damages resulting from faulty construction of a building. After the parties executed a written release, further damage occurred to the building. The Supreme Court determined that the language of the release was very broad and contemplated possible future claims in addition to those discussed by the parties. Id. at ¶ 6, 276 P.2d at 758. We decline to follow Kay because the language in the release in that case was much more broad in scope than the language in the release in this case. Moreover, Kay is distinguishable in that it did not involve a claim that the building contractor had failed to disclose pertinent history pertaining to the building.

      . The Clevelands presented evidence that their home had no value due to termite damage and that they paid $73, 000 for the home; thus, the juiy’s damage award placed them in the position they were in prior to the injury.

      . See Kraszewski v. Baptist Med. Ctr., 1996 OK 141, 916 P.2d 241; Ellington v. Coca Cola Bottling Co., 1986 OK 11, 717 P.2d 109; Van Hoy v. Okla. Coca-Cola Bottling Co., 1951 OK 231, 235 P.2d 948; Richardson v. J.C. Penney Co., 1982 OK CIV APP 35, 649 P.2d 565; McMeakin v. Roofing & Sheet Metal Supply Co., 1990 OK CIV APP 101, 807 P.2d 288.


text:
    2002 OK CIV APP 99
    William E. WILLOUGHBY, Petitioner, v. TIDELANDS GEOPHYSICAL CO., INC., CGU Insurance, and the Workers’ Compensation Court, Respondents.
    No. 96,553.
    Court of Civil Appeals of Oklahoma, Division No. 2.
    May 14, 2002.
    Certiorari Denied Sept. 9, 2002.

      Joe Parnan, Purcell, for Petitioner.
    R. Dale Kimsey, Fenton, Fenton, Smith, Reneau & Moon, Oklahoma City, for Respondents.
   TOM COLBERT, Presiding J.

¶ 1 Claimant, William E. Willoughby, seeks this court’s review of an order of the workers’ compensation trial court granting him temporary total disability benefits. The issue on review is whether the court erred in setting Claimant’s compensation rate. We conclude that it did err, vacate the order, and remand for the entry of an order in accord with this opinion.

¶ 2 Claimant was injured on December 21, 2000, while working for Employer, Tidelands Geophysical Co., Inc. On June 22, 2001, the workers’ compensation trial court determined that Claimant was temporarily totally disabled [TTD], Although Claimant introduced evidence to support a weekly compensation rate of $441, the court awarded a weekly rate of $334.41. Claimant seeks this court’s review.

STANDARD OF REVIEW

¶ 3 The only issue presented for our review is whether the trial court correctly applied 85 O.S. Supp.2000 § 21(1) to calculate Claimant’s weekly wage rate. This presents a question of law which we review de novo. Dep’t of Human Servs. v. Rogers, 1998 OK CIV APP 46, ¶ 1, 958 P.2d 806, 807.

DISCUSSION

¶ 4 There is no dispute that the trial court properly determined Claimant to be TTD due to a back injury he suffered while working for Employer. Moreover, there is no dispute as to Claimant’s hourly wage or the total wages he received during the months before and after his injury. The issue in dispute is the proper way to apply those figures to the calculation of Claimant’s compensation rate. The compensation rate for TTD is 70% of an employee’s average weekly wages. 85 O.S. Supp.2000 § 22(2)(b). Under these circumstances, the average weekly wages are calculated by multiplying the average daily wage by 260 and dividing the result by 52. 85 O.S. Supp.2000 § 21.

¶ 5 Claimant worked as a driller for Employer, a seismograph company. He testified he was paid $9.00 per hour and worked an eight-hour day, when there was work to be done and weather permitted. He also testified that, if he met the production goal for the shift, he was paid for an additional four hours at time and a half, or $13.50 per hour. Claimant testified that, when he worked, he always made his goal. This resulted in average daily pay of $126, average weekly pay of $630, and a weekly compensation rate of $441.

¶ 6 Claimant also testified, however, that there were days when he did not work and was not paid because of inclement weather or lack of projects. In particular, he testified that he was laid off for approximately five weeks during the fall. He sought no other work or unemployment benefits because Employer continued to. tell him he would be back to work within a few days. When he reported, but could not actually work due to weather conditions or lack of projects, Claimant was paid two hours of “show-up” pay. Claimant admitted he did not receive overtime incentive when he and the other workers were moving the rigs from one drilling location to another and when he received “show-up” pay only.

¶ 7 Employer introduced biweekly pay records for Claimant’s period of employment from April 2000 to December 2000. These records reflected, in two week periods, Claimant’s total regular and overtime hours and his gross pay. They did not identify the days when Claimant was not allowed to work due to weather or lack of projects. Claimant’s attorney did not dispute that the pay records were an accurate reflection of Claimant’s actual earnings, but stated:

I do have a problem with them in that I don’t'think they’re very probative of the issue because they don’t show what the average daily [wage] is. They just show two week periods at a time.

¶ 8 The trial court, relying on the pay records, averaged Claimant’s total gross pay of $17,676 over a period of 37 weeks, to reach an average weekly wage of $477.73. The court used that figure to calculate Claimant’s compensation rate of $334.41 (70% of $477.73). Claimant contends the trial court should have relied upon his testimony to reach a weekly compensation rate of $441 (70% of $630).

¶ 9 Section 21 provides that a claimant’s compensation rate should be calculated based on his wages “earned in such employment during the days when so employed.” § 21(1) (emphasis added). “[T]he purpose of the [Workers’ Compensation] Act is to compensate injured workers for loss of earning power and disability to work.” Wal-Mart Stores, Inc. v. Switch, 1994 OK 59, ¶ 7, 878 P.2d 357, 359 (emphasis added). In Switch, the Oklahoma Supreme Court held that the workers’ compensation court must calculate a claimant’s average weekly wages based on his or her daily wages at the time of injury, not on the average of the claimant’s daily wages over the year preceding the injury. Id. at ¶ 2, 878 P.2d at 358. The Court explained:

[T]he “average weekly wage” of the worker must be based upon the usual and ordinary wage that the worker was earning at the time of her injury. To base the compensation rate on some other figure would contravene the purpose of the Workers’ Compensation Act and deny injured employees the benefit of merit or longevity raises, increases in federal minimum wage laws, or any other contingency that enhances a worker’s earning ability.

Id. at ¶ 11, 878 P.2d at 360 (footnote omitted) (emphasis added). “Rather than using Claimant’s actual past earnings as the basis from which to determine his ‘average weekly wages’ the trial court must use his actual wage or salary.” Dep’t of Human Servs. v. Rogers, 1998 OK CIV APP 46, ¶ 6, 958 P.2d 806, 808. In Rogers, the trial court could not rely on the claimant’s actual past earnings because he missed work during the previous year for three surgeries unrelated to his employment. This is not unlike the time missed by Claimant here due to weather and lack of projects. Employer’s evidence, then, was not directly probative of Claimant’s average daily wage, because it reflected, but did not identify, periods of inactivity when Claimant was paid little or nothing.

¶ 10 Employer asserts, nevertheless, that its biweekly payroll records impeached Claimant’s testimony, because they show several two-week periods where Claimant was paid for 80 hours of regular time, but was not paid for 40 hours of overtime. Employer’s argument is flawed for several reasons. First, it assumes that Claimant worked a regular five-day work-week, which would result, under normal conditions, in 80 hours of regular time every two weeks. Claimant testified, however, without contradiction, that “[o]ur weeks run seven day weeks. We don’t have just a basic five day week.” Therefore, an 80-hour pay period does not necessarily represent two weeks of five days per week and eight hours per day. Second, Claimant testified that there were times when he was not paid overtime, such as when they were moving rigs or when Employer paid for “show-up” time on rainy days. Employer, however, did not introduce any evidence to establish how much of this kind of time was included in its payroll records.

¶ 11 Third, Employer’s biweekly payroll records more than demonstrate the essential truth of Claimant’s description of his pay arrangement. In the ten pay periods where Claimant was paid for 80 regular hours, he was paid overtime ranging from 28 to 85 hours; for the total 800 hours of regular time (accrued during 80-hour periods), Claimant was paid for 509.5 overtime hours. Moreover, for the entire period, Claimant was paid for 1388 regular hours and 739.5 overtime hours, well more than half of his regular hours.

¶ 12 In short, Claimant’s testimony was the only evidence presented to the trial court from which it could compute his average daily wage for the days he actually worked. While his actual daily rate may have been less, taking into account the days spent moving the rigs, Employer introduced no evidence to correct Claimant’s testimony on that issue. The evidence it did present was not probative of the issue, because it reflects periods of inactivity which cannot be taken into account in calculating Claimant’s compensation rate.

¶ 13 This is one of those rare circumstances where the trial court could not disregard a witness’s testimony. A court cannot “arbitrarily discredit and disregard unimpeached competent and relevant testimony that is uncontradicted.” C.f. Wright & Edwards v. Okla. Employment Sec. Comm’n, 1997 OK 163, 934 P.2d 1088, 1092. Contrary to Employer’s assertion, Claimant’s testimony was not impeached or contradicted by any evidence; it contained no inherent probabilities or contradictions. See Bittman v. Boardman Co., 1977 OK 32, ¶ 4, 560 P.2d 967, 969. While the workers’ compensation court “is the sole arbiter of credibility of witnesses and the weight accorded their testimony,” Mitchell v. LePak Trucking Co., 1977 OK 44, ¶ 3, 561 P.2d 967, 969, when such testimony is “unimpeached by other direct or circumstantial evidence, is consistent within itself and is not inherently improbable ... it is impermissible for the fact finder to ignore it.” Chester v. Okla. Natural Gas Co., 1980 OK CIV APP 5, ¶ 4, 619 P.2d 1266, 1267. Claimant’s testimony provided the only competent evidence of his average daily wage and the trial court impermissibly ignored that evidence.

¶ 14 The workers’ compensation trial court erred in setting Claimant’s TTD compensation rate at $334.41 per week. On remand, the court shall enter an order setting Claimant’s TTD compensation rate at $441.

¶ 15 VACATED AND REMANDED.

RAPP, J.,.and GOODMAN, J., concur.

      . The pertinent portion of section 21 reads:
      1. If the injured employee shall have worked in the employment in which he was working at the time of the accident whether for the same employer or not, during substantially the whole of the year immediately preceding his injury, his average annual earnings shall consist of two hundred sixty times the average daily wage or salary which he shall have earned in such employment during the days when so employed.
      * * *
      4. The average weekly wages of an employee shall be one fifty-second (fe) part of his average annual earnings.
      85 O.S. Supp.2000 § 21. Although section 21 provides alternative methods for calculating average weekly wages, both parties agree that these are Ure applicable subsections. Sections 21 and 22(2)(b) remain the same. See 85 O.S.2001 §§21 22(2)(b)