author: OPALA, V.C.J.

text:
    2003 OK 5
    PITCO PRODUCTION COMPANY, Plaintiff-Appellee, v. CHAPARRAL ENERGY, INC., and Cheyenne Petroleum Company, Defendants-Appellants.
    No. 94,748.
    Supreme Court of Oklahoma.
    Jan. 21, 2003.

      Gregory L. Mahaffey, Oklahoma City, Oklahoma, for appellants.
    James W. Smith, Stigler, Oklahoma, for appellee.

      . Identified herein are only those counsel for the parties whose names appear on the certiorari briefs.

   OPALA, V.C.J.

¶ 1 The dispositive issue presented on cer-tiorari is whether the terms of a joint operating agreement that designates one party as operator of the unit area and whose language refers to the “operator” in singular form permits the election of more than one unit operator in a Corporation Commission-designated spacing and drilling unit. We answer in the negative.

I.

ANATOMY OF THE LITIGATION

¶2 Chaparral and Cheyenne (appellants) and Piteo (appellee) are working interest owners in a Corporation Commission-designated drilling and spacing unit. Two wells have been drilled in the unit area.

¶ 3 At the time the first well (Scott No. 1-23) was drilled in 1980 the working interest owners entered into a Joint Operating Agreement (JOA or contract or agreement), designating Cheyenne as the operator of the unit area. Upon completion of a second well (the Kirkwood No. 1-23) in 1981, Cheyenne assumed operator status of that well in accordance with the provisions of the JOA. In 1998 Cheyenne resigned as operator and sold its interests to Chaparral, invoking the JOA’s “new operator” provisions. Chaparral sought election to be named unit operator of both wells. Balloting resulted in Chaparral receiving 69.547840% vote of the working interest owners in the Scott well but only 46.129760% vote of the owners in the Kirk-wood well. Piteo then offered itself for election as unit operator, and the results of this ballot revealed that it received 51.07738% vote of interests in Kirkwood well.

¶ 4 It is important to note that the resulting vote occurred because of an existing imbalance of ownership interests in the two wells. The imbalance was the consequence of an earlier violation of the Maintenance of Unit Ownership clause of the JOA. In anticipation of the situation in which today’s parties find themselves, the JOA provides that conveyances are to be made so as to maintain the same ratio of ownership throughout the unit area. This provision was breached approximately sixteen (16) years earlier in 1982 when a working interest holder, Samson, conveyed its interest in the Scott well (and not the Kirkwood), thereby creating the imbalance in ownership interests in the two wells.

¶ 5 Piteo requested that Chaparral relinquish operation of the Kirkwood well. Chaparral refused. Pico sought a declaratory decree naming it as operator of the Kirk-wood well. The trial court, after hearing arguments, ruled that the contract did not preclude multiple operators who are elected by a majority vote in interest of the working interest operators. It directed Chaparral to remain as operator of the Scott well and Piteo to serve as operator of the Kirkwood well. Chaparral appealed from this order. The Court of Civil Appeals [COCA], Division II, reasoned that the trial court’s decree construing the contract as not precluding multiple operators was erroneous; only independent, competing operators are prohibited. Because the parties permitted the existence of a condition which led to the election of multiple operators and because the trial court reached a correct result, COCA affirmed the trial court’s decree.

II.

ARGUMENTS ON CERTIORARI

¶ 6 Chaparral contends the JOA requires an election of one operator for the unit area.

The agreement’s language and content do indeed contemplate only one unit operator. COCA’s reasoning — “the parties permitted the existence of a condition which, by its nature, led to the problem of multiple operators” — is not just incorrect, it is also used by COCA as a basis to allow the breach of one contract provision (the earlier violation of the Maintenance of Unit Ownership Clause) to excuse enforcement of another (the election of a sole unit operator).

¶ 7 Piteo argued before COCA simply that the language of the JOA neither precludes more than one unit operator nor an election of operators on a well-by-well basis.

¶ 8 Both sides presented this controversy as a private-law issue. We have no record support for the notion that the controversy may be affected in any way by the Corporation Commission’s regulatory power over production and conservation of oil and gas.

III.

PERTINENT JOA PROVISIONS

¶ 9 The question before us is one of contract construction. The JOA at issue, an A.A.P.L. Form 610 — Model Form Operating Agreement-1956, is a printed form which is altered by certain deletions and modifications of the parties. The term “operator” is not defined in the agreement. A document entitled “Accounting Procedure Joint Operations,” attached as an exhibit and made a part of the JOA, defines “operator” as “the party designated to conduct the Joint Operations.”

¶ 10 Two JOA provisions primarily reference the status of unit operator. The first, is paragraph 5, entitled “Operator of Unit.” At the contract’s inception it was agreed by the parties that Cheyenne would be designated operator of the unit area. Paragraph 5 provides “Cheyenne Petroleum Company shall be the Operator of the Unit Area ...” The second provision whose content primarily addresses the unit operator is one which the contracting parties modified. All of paragraph 19, “Resignation, Removal and Selection of New Operator,” replaced the printed form’s paragraph of the same number. That paragraph deals with selection of a new operator. The modified language of this paragraph uses the term “operator” in singular form and describes selection of “a successor operator’’ in the event of resignation or removal of the existing operator.

¶ 11 All other references to “operator” in the JOA and its exhibits refer to that entity in singular form, often accompanied by singular-form grammatical articles. The JOA contains no specific language which either permits or limits the number of operators in the unit area.

IV.

RULES FOR CONSTRUING THE JOA

¶ 12 The JOA is a contract to be construed like any other agreement. If language of a contract is clear and free of ambiguity the court is to interpret it as a matter of law, giving effect to the mutual intent of the parties at the time of contracting. Whether a contract is ambiguous and hence requires extrinsic evidence to clarify the doubt is a question of law for the courts.

¶ 13 The essence of Pitco’s argument is that the contract’s silence on limiting the number of operators supports a construction that permits multiple operators in this unit area. Pitco’s landman testified that it is not uncommon industry practice for there to be more than one operator per unit area. Chaparral contends the agreement’s language and text permit only one operator for this unit area. Because Piteo introduced testimony of custom of industry, we must determine whether the contract between the parties is ambiguous so as to permit extrinsic evidence.

¶ 14 The parties disagree whether the JOA precludes multiple operators. The mere fact the parties disagree or press for a different construction does not make an agreement ambiguous. A contract is ambiguous if it is reasonably susceptible to at least two different constructions. To decide whether a contract is ambiguous we look to the language • of the entire agreement. A contract must be considered as a whole so as to give effect to all its provisions. The language ima contract is to be given its plain and ordinary meaning unless some technical term is used in a manner intended to convey a specific technical concept. If a contract is complete in itself, and when viewed as a totality, is unambiguous, its language is the only legitimate evidence of what the parties intended. That intention cannot be divined from extrinsic evidence but must be gathered from a four-corners’ examination of the instrument.

V.

THE JOA — WHILE NEITHER EXPLICIT NOR SILENT CONCERNING THE NUMBER OF OPERATORS TO BE PERMITTED IN THE UNIT — IS NOT AMBIGUOUS

¶ 15 The dispositive factor of our analysis must be whether an examination of the entire JOA text reveals more than one operator for this unit is a reasonable interpretation of the contract’s provisions. Our four-corners’ examination of the contractual instrument in question reveals the terms and provisions are neither ambiguous nor susceptible to more than one interpretation.

¶ 16 We note at the outset the singular form of the term “operator” (with corresponding singular articles of grammar modifying the term) is used consistently throughout the document. The JOA is a pre-printed model-form operating agreement where the parties complete the document by filling in the blanks with necessary information. While the document shows the parties made some modifications to the contract’s provisions, nowhere is the singular term “operator” altered to reflect a plural form of the expression.

¶ 17 The word “operator,” while commonly used in the oil and gas industry, conveys no technical significance. One requires no special knowledge to impart meaning to the term “operator” (or passages containing the term “operator”), nor is evidence of industry usage for this term necessary to enhance or otherwise clarify the term’s ten- or. The responsibilities of the operator are delineated by various provisions throughout the agreement and are not contested by today’s parties. Likewise, the term “unit area” conveys no technical information. The JOA defines unit area, and its definition serves to limit those lands, oil and gas leasehold interests and oil and gas interests to be developed under the agreement. Because we hold the JOA’s terms plain and unambiguous, we cannot consider Piteo’s adduced proof that it is common industry practice to allow more than one operator per unit area.

¶ 18 Having decided the contract is unambiguous and a clear reflection of the parties’ intention, we turn next to consider whether, from a four-corners’ examination of the JOA, the parties intended more than one operator in the unit area. The agreement plainly reveals the parties’ intent with regard to the number of unit operators authorized for the unit area.

¶ 19 At its inception, the parties to the JOA designated one party (Cheyenne) to serve as unit operator. The same paragraph (naming Cheyenne operator of the unit area) empowers it “to conduct and direct and have full control of all operations on the unit area.” In the event of the operator’s resignation, a later paragraph of the JOA provides for the selection of a successor operator. We note that the original pre-printed form provision dealing with selection of a new operator was stricken by the parties and new, original language substituted in its place. Even with this alteration, the terminology used in the JOA refers to one operator. These provisions, at the heart of this controversy, create, invest with authority, and allow for the succession of but a single operator. Remaining contractual provisions serve to complement these paragraphs and clothe the operator with specific responsibilities — duties which if undertaken by multiple operators would be ponderous, defeating the enabling terms of paragraph 8. When the JOA is read as a whole, only one construction is reasonable. One operator is to conduct and exercise complete control of all operations on the unit area, regardless of the number of wells.

¶ 20 Lastly we note that Pitco’s argument — nothing in the JOA prohibits multiple operators' — is likened to the logical impossibility of “proving a negative.” To accept Pitco’s view would require that future contracts redundantly restate in the negative every positive statement previously made. We decline to engage in so strained a construction of an agreement to create an ambiguity where none exists.

VI.

SUMMARY

¶ 21 Oklahoma’s extant jurisprudence and her comprehensive statutory scheme governing contractual agreements are well established. Applying the general principles of contract construction, we hold the JOA in contest clearly manifests the parties’ intention to allow but one operator who has full and complete control over operations on the unit area. Our review of the agreement reveals contract terms to be unambiguous and readily understood when read in their plain and ordinary sense. The language and text of the contract, as an entirety, establishes one operator, empowers it with complete control over all operations within the unit area, and, in the event of operator’s resignation, provides for selection of a successor operator. Because we conclude the JOA authorizes but one operator to conduct unit-wide operations, we need not address Pitco’s argument (pressed before COCA) that election of operators is to be made on a well-by-well basis.

¶ 22 On certiorari previously granted on Chaparral’s petition, the Court of Civil Appeals’ opinion and the trial court’s declaratory decree are vacated; the cause is remanded for further proceedings to be consistent with today’s pronouncement.

¶ 23 WATT, C.J., LAVENDER, HARGRAVE, KAUGER, AND WINCHESTER, JJ., CONCUR.

¶ 24 BOUDREAU, J., CONCURS IN RESULT.

¶ 25 HODGES AND SUMMERS, JJ., DISSENT.

      . Appellants also challenged on appeal the district court's ruling that venue was properly laid in Haskell County and its denial of appellant's motion for summary judgment. COCA’s opinion addressed both issues and affirmed the nisi prius decision. Neither petitioner nor respondent raised either of these issues on certiorari. An issue tendered and decided on appeal but not reasserted by petition or counter-petition for cer-tiorari stands abandoned. See the provisions of Rule 1.180(b), Supreme Court Rules, 12 O.S. 2001, Ch. 15, App. 1. Hough v. Leonard, 1993 OK 112, ¶¶ 15-17, 867 P.2d 438, 445-46.

      . The JOA provides for successive unit operators to be selected by “majority vote in interest.” Paragraph 19, Resignation, Removal and Selection of New Operator, of the JOA provides:
      "Should Operator resign from its duties and obligations as Operator or should a sale be made by Operator of over fifty percent (50%) of its rights and interests, the parties shall have the right within sixty (60) days after the date of such resignation or sale, by majority vote in interest, to select a successor Operator ...” (Emphasis supplied.)
      The meaning of the term "majority vote in interest” need not be explored because we reverse the nisi prius decree on other grounds.

      . The parties do not dispute the vote tallies. Chaparral's and Pitco's ballots appear to have been distributed to the working interest owners on a well-by-well basis. Those voting interests in favor of Piteo own a majority interest in the unit area except for the majority interest in the well-bore of the Scott well. (Samson owns no interest in the Scott well following its conveyance of this interest in 1982.) Pitco's majority is comprised of Pitco's 27.659300% cast in favor of itself and Samson's 23.41808%, for a total of 51.07738% majority vote in the Kirkwood well.

      . The pertinent text of the Maintenance of Unit Ownership clause, paragraph 20, of the JOA, states:
      "For the purpose of maintaining uniformity of ownership in the oil and gas leasehold interests covered by this contract, and notwithstanding any other provisions to the contrary, no party shall sell, encumber, transfer or make other disposition of its interest in the leases embraced within the Unit Area and in wells, equipment and production unless such disposition covers either:
      (1) the entire interest of the party in all leases and equipment and production; or
      (2) an equal undivided interest in all leases and equipment and production in the Unit Area.” ⅜ ⅜ ⅞ (Textual alteration supplied.)

      . Declaratory relief is authorized by the provisions of 12 O.S.1991 §§ 1651 et seq. Section 1651 provides:
      District courts may, in cases of actual controversy, determine rights, status, or other legal relations, including but not limited to a determination of tire construction or validity of any foreign judgment or decree, deed, contract, trust, or other instrument or agreement ...

      . Record, pp. 115-116. For the text of the JOA concerning the vote required to elect a successor operator see supra note 3.

      . Because we reverse and remand upon our resolution of the meaning to be ascribed to those contract clauses which call for but one operator, today’s decision malees it unnecessary to deal
      with the appellants' other argument. The latter addresses the contract clause that requires alienation of interests to be in the entirety or be proportionately uniform in order to maintain uniformity of ownership interests. We also note that there is no proof in this record of any waiver by any party of any contractual obligations.

      . Piteo did not respond to our call for supplemental briefs.

      . The record does not inform us with respect to the impact of the Corporation Commission’s regulatory power on the operation of these two wells nor of whether the Commission’s power was ever invoked to affect the operation and production of these two wells.

      . Paragraph 5 of the JOA entitled “Operator of Unit” provides:

        "CHEYENNE PETROLEUM COMPANY shall be the Operator of the Unit Area, and shall conduct and direct and have full control of all operations on the Unit Area as permitted and required by, and within the limits of, this agreement. It shall conduct all such operations in a good and workmanlike manner, but it shall have no liability as Operator to the other parties for losses sustained, or liabilities incurred, except such as may result from gross negligence or from breach of the provisions of this agreement.” (Emphasis added.)

      . For the complete text of paragraph 19 see supra note 3.

      . See supra note 3 for the entire language of paragraph 19.

      . Oxley v. General Atlantic Resources, Inc., 1997 OK 46, ¶ 13, 936 P.2d 943, 945.

      . Lewis v. Sac and Fox Tribe of Oklahoma Housing Authority, 1994 OK 20, ¶¶ 25-27, 896 P.2d 503, 514, cert, denied, 516 U.S. 975, 116 S.Ct. 476, 133 L.Ed.2d 405 (1995)(citing Mercury Inv. Co. v. F.W. Woolworth Co., 1985 OK 38, ¶ 9, 706 P.2d 523, 529).

      . Oklahoma statutes provide a comprehensive scheme which governs contractual agreements. See 15 O.S.1991 §§ 151-178. The text of 15 O.S.1991 § 152 provides:
      A contract must be so interpreted as to give effect to the mutual intention of the parties, as it existed at the time of contracting, so far as the same is ascertainable and lawful.

        Mercury, supra note 15 at ¶ 9 at 529.

      . Lewis, supra note 15 at ¶ 25 at 514.

      . The landman's testimony that the existence of multiple operators in a unit area is not uncommon was in response to a general question that did not specify contract terms or parties' preferences. R. p. 151.

      . Osprey v. Kelly-Moore Paint Co., 1999 OK 50, ¶ 14, 984 P.2d 194, 199 (citing Littlefield v. State Farm Fire & Casualty Co., 1993 OK 102, ¶ 7, 857 P.2d 65, 68). A contract is ambiguous when it is fairly susceptible to two different constructions, so that reasonably intelligent men, on reading the contract would honestly differ as to its meaning. U.S. Fidelity & Guaranty Co. v. Guenther, 281 U.S. 34, 37, 50 S.Ct. 165, 74 L.Ed. 683 (1930).

      . The terms of 15 O.S.1991 § 157 state:
      The whole of a contract is to be taken together, so as to give effect to every part, if reasonably practicable, each clause helping to interpret the others.

        Lewis, supra note 15 at ¶ 27 at 514.

      . The text of 15 O.S.1991 § 160 provides:
      The words of a contract are to be understood in their ordinary and popular sense, rather than according to their strict legal meaning, unless used by the parties in a technical sense, or unless a special meaning is given to them by usage, in which case the latter must be followed.

        Lewis, supra note 15 at ¶ 27 at 514.

      . "A contract is to be interpreted to give effect to the mutual intention of the parties at the time of contracting, and in so doing the language used governs if it is clear and does not involve an absurdity. The meaning of a contract is to be ascertained from the writing alone, if possible, the duty of the court being to declare the meaning of what is written in the instrument, not what was intended to be written.” Hicks v. Mid-Kansas Oil & Gas Co., 1938 OK 84, ¶0, 76 P.2d 269, 269, 182 Old. 61. (Emphasis supplied.)

        Lewis, supra note 15 at ¶ 27 at 514.

      . Lewis, supra note 15 at ¶ 27 at 514.

      . The provisions of 52 O.S.1991 § 86.1 define the term "operator.” The text states:
      " ’ ⅜ *(h) The term "operator” shall mean any producer of oil or gas who has drilled a well or wells into a common source of supply and is engaged in operating such well or wells for the purpose of producing oil or gas therefrom; * ⅞ * •< (Textual alteration supplied.)
      The Oil and Gas Conservation Act, 52 O.S.1991 §§ 86.1 et seq., does not affect the controversy before us because it applies to the regulatory power of the Corporation Commission, and the dispute here is a private-law matter. This general description of an “operator” neither provides nor requires specific, technical knowledge to further illuminate the meaning of the term.

      . A finding of ambiguity must be made before the court can look at the custom of the industry to determine the parties’ obligations. Cook v. Oklahoma Bd. of Public Affairs, 1987 OK 22, ¶ 15, 736 P.2d 140, 147 (citing Jackson Materials Co. v. Grand River Dam Auth., 1945 OK 228, ¶¶ 20-21, 170 P.2d 552, 557, 197 Okl. 353). Evidence of custom and usage may not be used to vary, add to, or contradict the terms of a plain and definite contract, nor may it be used to impose a duty or obligation upon a party to a contract not incorporated therein, where such duty or obligation is expressly or impliedly excluded by the terms of the contract. Bower-Venus Grain Co. v. Norman Milling & Grain Co., 1922 OK 162, ¶ 15, 207 P. 297, 300, 86 Okl. 152.

      . The definition of the term "unit area” as provided in paragraph 1 of the JOA states:
      The term "Unit Area” shall refer to and include all of the lands, oil and gas leasehold interests and oil and gas interests intended to be developed and operated for oil and gas purposes under the agreement.

      . “The written instrument cannot be varied, modified or changed by parol testimony. When proof of an oral promise is essential to one’s claim and the testimonial evidence proffered as to its existence, though unobjected to, is violative of the parol evidence rule, it is entirely proper for the court to rule as a matter of law that the claim is without legal support. This is so because the parol evidence rule is part of the substantive rather than adjective law.” (footnotes omitted) Snow v. Winn, 1980 OK 27, ¶ 12, 607 P.2d 678, 682; Warren v. Pulley, 1943 OK 248, ¶ 12, 141 P.2d 288, 292, 193 Okl. 88; Investors Royalty Co. v. Lewis, 1939 OK 290, ¶ 8, 91 P.2d 764, 766, 185 Okl. 302.

      . "CHEYENNE PETROLEUM COMPANY shall be the Operator of the Unit Area ..." (Emphasis supplied.) For the full text of paragraph 5, Operator of Unit Area, see supra note 11.

      . “Cheyenne ... shall conduct and direct and have full control of all operations on the Unit Area ...” (Textual alteration supplied.) For the complete text of paragraph 5, Operator of Unit Area, see supra note 11.

      . "Should Operator resign ... the parties shall have the right ... to select a successor Operator. ” (Emphasis supplied.) For the entire text of paragraph 19 see supra note 3.

      . Paragraph 8 of the JOA, Costs and Expenses, states:
      “[Ojperator shall promptly pay and discharge all costs and expenses incurred in the development and operation of the Unit Area ... and shall charge each of the parties hereto with their respective proportionate shares upon the cost and expense basis provided in the Accounting Procedure ...” (Textual alteration supplied.)
      Paragraph 6 of the JOA, Employees, provides:
      “The number of employees and their selection, ... shall be determined by the Operator.” (Textual alteration supplied.)

      .Although not applied by the U.S. Supreme Court in Herman & MacLean v. Huddleston, 459 U.S. 375, 387, n. 23, 103 S.Ct. 683, 74 L.Ed.2d 548, the maxim “expressio unius est exclusio alterius ” — the expression of one thing is the exclusion of another — is applicable in this situation. When particular persons or things are specified in a law, contract, or will, an intention to exclude all others may be inferred. Dail v. Adams Bldg. Corp., 1947 OK 309, ¶ 11, 195 P.2d 755, 759, 200 Okl. 451 (Riley, J., dissenting). Other jurisdictions have applied this canon of construction to contracts as well as to statutes. See McAllister v. Century Indemnity Co., 24 NJ.Super. 289, 94 A.2d 345, 347 (1953); Teters v. Montana Eastern Pipe Line Co., 117 Mont. 477, 159 P.2d 515, 517 (1945); Lawrence v. Cooper Independent Theatres, 177 Kan. 125, 276 P.2d 350, 353 (1954); Flyge v. Flynn, 63 Nev. 201, 166 P.2d 539, 558 (1946).

      . A document restating the reverse of each paragraph constitutes an absurdity. Hides, supra note 22 at ¶ 0, at 269.

      . Neither a forced nor strained construction will be indulged, nor will any provision be taken out of context and narrowly focused upon to create and then construe an ambiguity so as to import a more favorable consideration to either party than that expressed in the contract. Dodson v. St. Paul Ins. Co., 1991 OK 24, ¶ 12, 812 P.2d 372, 376-77.


source: Caselaw Access Project

author: TOM COLBERT, Presiding Judge.

license: Public Domain

text:
    2003 OK CIV APP 13
    DOLLAR GENERAL CORPORATION, Own Risk, Petitioner, v. Leah T. MEADOWS, and The Workers’ Compensation Court, Respondents.
    No. 97,322.
    Court of Civil Appeals of Oklahoma, Division No. 2.
    July 16, 2002.
    Certiorari Denied Jan. 28, 2003.

      David B. Custar, J.R. Schneider, Pierce, Couch, Hendrickson, Baysinger & Green, Oklahoma City, for Petitioner.
    Charles Simons, Boettcher, Ryan, Martin & Bisher, Oklahoma City, for Respondent.
   Opinion by

TOM COLBERT, Presiding Judge.

¶ 1 Employer, Dollar General Corporation, seeks this court’s review of an order of the workers’ compensation court awarding benefits to Claimant, Leah T. Meadows. The issues on review are whether the trial court erred in 1) finding that Claimant’s injury arose out of and in the course of her employment and 2) awarding Claimant permanent partial disability. Upon review of the record and applicable law, we conclude that the court did not err and sustain its order.

BACKGROUND

¶ 2 Claimant worked at Dollar General as an assistant manager. On May 29, 2001, she was operating the cash register when Bill Bewley, a customer with whom Claimant had been briefly acquainted, approached her to ring up a sale of motor and transmission oil. Bewley questioned Claimant about a third party and then verbally assaulted her. After Claimant had rang up the sale, Bewley threw the bag containing the oil at her, striking her in the right eye. Claimant did not immediately notice any problems with her vision but gradually began to realize that she could not see out of her right eye. Claimant was diagnosed with a detached retina and underwent surgery on June 12, 2001. Prior to the assault, Claimant’s uncorreeted vision in her right eye was 20/200 and she wore contact lenses in both eyes. After the surgery, Claimant’s uncorrected vision remained 20/200.

¶ 3 Claimant’s physician, John W. Ellis, M.D., opined that, as a result of the accident, Claimant suffered 36% permanent partial disability to the right eye. He indicated that his impairment rating “is over and above any prior impairments.” George R. Cornelius, M.D., opined that Claimant lost 16.4% of the vision and 20% of the visual field in her right eye.

¶ 4 Claimant testified that, as a result of the injury, she has to wear a stronger contact lense in her right eye, has air bubbles in the eye, has problems with depth perception, and has difficulty driving at night. She also testified that she now has to wear reading glasses.

¶ 5 The trial court found that Bewley struck Claimant after she had rang up the sale and that Claimant “did nothing by words or act to initiate the assault.” The court determined that Claimant sustained an accidental personal injury to her right eye arising out of and in the course of her employment. The court awarded Claimant temporary total disability for five weeks and $7,949.76 for a 20% permanent partial disability to her right eye. From the award of permanent partial disability, Employer appeals.

STANDARD OF REVIEW

¶ 6 Generally, the issue of whether an employee’s injury arises out of and in the course of employment presents an issue of fact to be determined by the workers’ compensation court. Lanman v. Okla. County Sheriff’s Office, 1998 OK 37, ¶ 6, 958 P.2d 795, 798. Therefore, the court’s decision on this issue is reviewed under the any-competent-evidence standard. Thomas v. Keith Hensel Optical Labs, 1982 OK 120, ¶ 7, 653 P.2d 201, 203. “Under this standard our responsibility simply is to canvass the facts, not with an object of weighing conflicting proof in order to determine where the preponderance lies but only for the purpose of ascertaining whether the tribunal’s decision is supported by competent evidence.” Parks v. Norman Mun. Hosp., 1984 OK 53, ¶ 12, 684 P.2d 548, 552.

ANALYSIS

¶ 7 To be compensable, a work-related injury must both occur in the course of and arise out of the worker’s employment. Am. Mgmt. Sys., Inc. v. Burns, 1995 OK 58, ¶ 5, 903 P.2d 288, 290-91. “In the course of employment” refers to the “time, place or circumstances under which the injury is sustained.” Id. at ¶ 5 n. 3, 903 P.2d at 290 n. 3. An injury “arises out of employment” if there is a causal relationship between the requirements of the claimant’s employment and the act in which the claimant is engaged when the injury occurs. Thomas, 1982 OK 120, ¶ 5, 653 P.2d at 202.

¶ 8 “Only injuries having as their source a risk not purely personal but one that is causally connected with the conditions of employment shall be deemed to arise out of the employment.” 85 O.S.2001 § 3(12)(a). There are three categories of injury-producing risk that can arise in the course of employment: (1) risks solely connected to employment, which are compensable; (2) purely personal risks, which are not compensable; and (3) neutral risks, which are neither uniquely employment-related, nor purely personal, and which may or may not be compensable. Odyssey/American of Okla. v. Worden, 1997 OK 136, ¶ 6, 948 P.2d 309, 311.

¶ 9 Employer asserts Claimant’s injury did not arise out of her employment because the assault was motivated solely by personal animosity. Employer cites Mullins v. Tanksleary, 1962 OK 239, 376 P.2d 590, and Burrell v. Prewitt, 1968 OK 128, 445 P.2d 279, in support of its assertion that an injury inflicted by a third-party aggressor, motivated purely by personal animosity between the aggressor and a claimant, is not compensable. The claimants’ injuries in Mullins and Burrell were inflicted by third-party aggressors. However, in both cases, the Supreme Court concluded that the claimants’ injuries were compensable.

¶ 10 In Mullins, a third party assaulted the claimant because he thought the claimant had called him “a bad name.” Mullins, 1962 OK 239, ¶ 2, 376 P.2d at 591. The claimant hardly knew the assailant before the incident and there was no animosity between the two. Id. The Court stated, “When a wilful injury is inflicted by a third party, who is the aggressor, upon a workman discharging the tasks he is engaged to perform, and the assault is not motivated solely by personal animosity, wholly disconnected from the employment, the resulting injury is regarded as accidental and as having arisen out of and in the course of employment.” Id. at ¶ 5, 376 P.2d at 592.

¶ 11 In Burrell, a filling station employee was assaulted by a former employee. The Court found that the claimant’s injury was compensable because there was no personal animosity between the assailant and the claimant prior to the incident. Burrell, 1968 OK 128, ¶¶ 12, 14, 445 P.2d at 281. The Court reached this conclusion despite the fact that the men had argued earlier in the day; the claimant had said to the assailant, “All right, if you want to fight let’s get it over with”; and the assailant had left the premises, returned thirty minutes later, and started to hit the claimant. Id. at ¶¶ 6-7, 445 P.2d at 280. A key factor in the Court’s ruling was that the assailant was clearly the aggressor and the claimant did not give the assailant any provocation for striking him. Id. at ¶ 8, 445 P.2d at 280. In both Mullins and Bur-rell, the Supreme Court opined that any reasonable doubt as to whether the accident arose out of and in the course of employment should be resolved in favor of the claimant. Id. at ¶ 14, 445 P.2d at 281; Mullins, 1962 OK 239, ¶ 9, 376 P.2d at 592.

¶ 12 Here, Claimant testified that she was “barely” acquainted with Bewley. There was no evidence that she had ever had a confrontation with Bewley prior to the incident on May 29, 2001, or that there had been animosity between the two. The trial court concluded that Claimant did nothing to provoke the attack. Bewley injured Claimant with products that she rang up for sale to him. Based on the holdings of Mullins and Burrell, we find that the trial court did not err in finding that Claimant’s injury arose out of and in the course of her employment.

¶ 13 Employer next asserts that the trial court erred in awarding Claimant permanent partial disability because she had sustained prior permanent loss of vision. Prior to the assault, Claimant’s uncorrected vision in her right eye was 20/200. Employer contends that, because vision of 20/200 amounts to industrial blindness under Workers’ Compensation Court Rule 33, 85 O.S. 2001, ch. 4, app., Claimant cannot recover.

¶ 14 Rule 33 provides the criteria for measuring and calculating the percentage of eye impairment in a single eye and recognizes that prior case law has defined industrial blindness as 20/200. However, precedent from Oklahoma’s appellate courts supports the trial court’s award of permanent partial disability.

¶ 15 In Standard Testing and Engineering Co. v. Bradshaw, 1968 OK 62, 442 P.2d 337, an employer asserted that, because the claimant was industrially blind prior to his on-the-job accident, he was not entitled to recover for any additional disability to his eye caused by the accident. The Supreme Court rejected the employer’s argument and reiterated its previous holding that where an eye “is lost by injury, and at [the] time there was sufficient vision (in the eye) for satisfactory performance of labor, the award must be based upon loss of eye.” Id. at ¶ 8, 442 P.2d at 339 (citing Forrest E. Gilmore Co. v. Booth, 1932 OK 150, 8 P.2d 717).

¶ 16 The Bradshaw Court concluded:

The question of a man’s permanent disability is not to be determined solely by technical formulas defining percentages of disability but is dependent to a large extent on the ability of the individual to perform continuously some substantially gainful occupation notwithstanding his disability.
Here we have a man technically defined as blind in both eyes but with the aid of corrective lenses performing efficiently the same tasks as a man with normal vision. He had some vision in his left eye without corrective lenses. He could count fingers at a distance of three feet. Without his glasses he could observe objects in a room. He sustained the present accident and the sight of his left eye was industrially destroyed. Without glasses he can see at a distance of only one foot. With the best corrective lenses his vision in the left eye is limited to 20/200.

Id. at ¶¶ 9-10, 442 P.2d at 339 (citations omitted).

¶ 17 In Protein Technologies Intemational/Ralston Purina v. Hammock, 1994 OK CIV APP 21, 876 P.2d 728, the employer contended that the trial court erred in awarding compensation for a detached retina because the claimant had been industrially blind before the on-the-job injury. The Court of Civil Appeals rejected the employer’s argument and reiterated the Supreme Court’s holding in Bradshaw. Id. at ¶ 5, 876 P.2d at 730.

¶ 18 Employer does not argue that Claimant was unable to perform her job duties prior to the on-the-job injury; it simply argues that there was no additional disability over and beyond the preexisting disability. It is clear that Claimant suffered additional injury to her right eye as a result of the accident. She required a stronger prescription for her right contact lens, as well as reading glasses, and had problems with air bubbles on her eye and with depth perception. Dr. Ellis concluded that Claimant suffered 36% permanent partial disability to her right eye over and above any prior impairments. Thus, we cannot say that the trial court erred in awarding permanent partial disability based on the fact that Claimant’s corrected eyesight was affected by the accident. There is competent evidence to support the trial court’s finding that Claimant suffered injury which amounted to a loss of vision greater than her loss of vision prior to the accident.

¶ 19 SUSTAINED.

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


author: BAY MITCHELL, Judge.

text:
    2003 OK CIV APP 10
    Derrick LONDON, Jr., a Minor, by and through his Guardian, Earnestine Looney, Plaintiff/Appellant, v. FARMERS INSURANCE CO., INC., Defendant/Appellee.
    No. 97,566.
    Court of Civil Appeals of Oklahoma, Division No. 3.
    Oct. 11, 2002.

      Rex Travis, Patricia Travis, Oklahoma City, for Plaintiff/Appellant.
    Neil D. Van Dalsem, King, Taylor & Ryan, Tulsa, for Defendant/Appellee.
   Opinion by

BAY MITCHELL, Judge.

¶ 1 Derrick London, Jr., a minor, by and through his guardian, Earnestine Looney, Plaintiff/Appellant, seeks review of an order granting summary judgment in favor of Farmers Insurance Co., Inc., Defendant/Ap-pellee or “Farmers”. The judgment denied uninsured motorist (UM) benefits to Derrick under his maternal grandmother’s (Earnestine Looney) policy with Farmers.

¶2 In 1999, Derrick had lived with his maternal grandmother, Earnestine Looney, for several years. The grandmother had an insurance policy with Farmers which included uninsured motorist (UM) coverage for grandmother and her family members. The policy defined “family member” as a person related to the insured by blood, marriage or adoption, who resides in the insured’s household. Derrick was thus an insured under his grandmother’s policy. During the time Derrick resided with his grandmother, his father was killed when father’s motorcycle collided with an automobile driven by an uninsured motorist. Derrick’s father was not a member of grandmother Earnestine Looney’s household.

¶ 3 On Derrick’s behalf a claim was filed with Farmers by Appellant/grandmother alleging he was entitled to recover UM benefits under grandmother’s policy because his father’s death was caused by an uninsured motorist. She relied upon 36 O.S. Supp.1994 § 3636(B) (since amended, with changes not material here), which provides in pertinent part:

The policy referred to in subsection A of this section shall provide coverage therein or supplemental thereto for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles and hit-and-run motor vehicles because of bodily injury, sickness or disease, including death resulting therefrom.....

(emphasis added).

¶ 4 Farmers denied Appellant’s claim for benefits and relied on the UM portion of Appellant grandmother’s policy which stated that Farmers would pay benefits to:

... an Insured person [who] is legally entitled to recover as damages from the owner or operator of an uninsured motor vehicle because of bodily injury sustained by the Insured person. The bodily injury must be caused by accident and arise out of the ownership, maintenance or use of the uninsured motor vehicle.

(emphasis in original). “Death” is included in the policy’s definition of “bodily injury”.

¶ 5 Appellant/grandmother brought this action seeking recovery of the UM benefits for Derrick. In response, Farmers filed a motion for summary judgment on the grounds that UM benefits for the death of a person who was not an insured under the policy was not permitted by the terms of the policy. Further, the language of 36 O.S. Supp.1994 § 3636(B) did not require an insurer to extend UM coverage to that situation where a non-insured person was killed. Undisputed material facts included that Derrick’s father was not living in the grandmother Earnestine Looney’s household at the time of his death, and grandmother’s car was not involved in the accident. Appellant responded and filed her own motion for partial summary judgment. Appellant did not dispute the facts, but alleged that 36 O.S. Supp. 1994 § 3636(B) allowed recovery.

¶ 6 Summary judgments are reviewed de novo. Carmichael v. Beller, 1996 OK 48, 914 P.2d 1051, 1053. Summary judgment is appropriate only where it appears there is no substantial controversy as to any material fact and that one party is entitled to judgment as a matter of law. Post Oak Oil Company v. Stack & Barnes, 1996 OK 23, 913 P.2d 1311, 1313, citing Daugherty v. Farmers Coop. Ass’n, 1984 OK 72, 689 P.2d 947; Crockett v. McKenzie, 1994 OK 3, 867 P.2d 463; First State Bank v. Diamond Plastics Corp., 1995 OK 21, 891 P.2d 1262. The facts being undisputed, the question is one of law. “Because the issue on review, how to interpret a statute, is one of law, we will examine the trial court’s ruling independently and without deference to the trial court’s ruling.” Fink v. State, ex rel. Dept, of Public Safety, 1992 OK CIV APP 169, 852 P.2d 774, 776, citing Salve Regina College v. Russell, 499 U.S. 225, 111 S.Ct. 1217, 113 L.Ed.2d 190 (1991).

1Í 7 We first examine the UM portion of the policy for ambiguities. “The interpretation of an insurance contract and whether it is ambiguous is a matter of law for the Court to determine and resolve accordingly.” Dodson v. St. Paul Ins. Co., 1991 OK 24, 812 P.2d 372, 376. Unless the insurance contract is ambiguous, it should be construed according to its terms, as is true of any other contract. Frank v. Allstate Ins. Co., 1986 OK 42, 727 P.2d 577. We find no ambiguities in the UM language of this policy set out in paragraph 4 above.

¶ 8 However, even if a policy provision is unambiguous, it may be void and unenforceable if it is contrary to public policy. Appellant contends if the language of the statute were followed, UM benefits would be available under the policy. She argues that the UM language of the policy improperly limits the intent of the UM statute rendering the policy language void as against public policy. Policy language, however, is not automatically void as against public policy simply because it narrows the circumstances under which coverage applies.

¶ 9 UM insurance is purely a creature of statute. By requiring automobile insurance carriers to offer UM coverage, unless specifically signed away by the insured, the legislature expressed a recognizable public policy that UM insurance be available to victims of negligent uninsured or underin-sured drivers. This public policy overrides private agreements that restrict coverage. Since its inception in 1968, attempts to limit the statute by policy exclusions, have been repeatedly rejected as contrary to public policy. See, e.g., Keel v. MFA Ins. Co., 1976 OK 86, 553 P.2d 153 (clauses in policy purporting to exclude stacking of UM coverages in multiple policies are contrary to public policy); Cothren v. Emcasco Ins. Co., 1976 OK 137, 555 P.2d 1037 (provision excluding UM coverage for personal injury sustained while occupying an owned vehicle not listed or described in the policy was void as against public policy); Biggs v. State Farm Mutual Ins. Co., 1977 OK 135, 569 P.2d 430 (automobile policy requiring physical contact with hit-and-run vehicle for UM coverage would defeat purpose of UM statute); Lake v. Wright, 1982 OK 98, 657 P.2d 643 (anti-stacking clause contrary to public policy); Chambers v. Walker, 1982 OK 128, 653 P.2d 931 (policy provisions reducing insurer’s liability under UM coverage by amount paid insured as workers’ compensation benefits were in derogation of legislative purpose contained in UM statute and therefore void); Uptegraft v. Home Ins. Co., 1983 OK 41, 662 P.2d 681 (policy provision barring recovery where statute of limitations had run against tort-feasor was void under statute); State Farm Mut. Auto. Ins. Co. v. Wendt, 1985 OK 75, 708 P.2d 581 (policy provisions excluding named insured, residents of insured’s household and insured motor vehicle from UM coverage conflict with UM statute and are void); State Farm Auto. Ins. Co. v. Greer, 1989 OK 110, 777 P.2d 941 (definition of “uninsured motor vehicle,” which excluded vehicle owned by any government was void as against public policy).

¶ 10 The specific question before us has not been addressed by the Oklahoma Supreme Court. Decisions by courts in other jurisdictions with similar UM statutes are split as to whether UM recovery will be allowed for the wrongful death of a person not considered an insured under the claimant’s policy. The majority of the courts do not allow such recovery and include: e.g., Farmers Ins. Exchange v. Chacon, 939 P.2d 517 (Colo.Ct.App.1997) (no UM coverage for children of mother who was killed in accident where policyholder was former spouse of mother; mother was not an insured under the policy and children were neither involved in nor suffered bodily injury from accident); Livingston v. Omaha Property & Casualty Insurance Co., 927 S.W.2d 444 (Mo.Ct.App.1996) (express language of policy precludes coverage); Gaddis v. Safeco Insurance Co., 58 Wash.App. 537, 794 P.2d 533 (1990) (contracting parties could not have reasonably believed at time of entering into contract that UM coverage would be triggered by death of a person not an insured); Bartning v. State Farm Fire & Casualty, 164 Ariz. 370, 793 P.2d 127 (1990) (no coverage if deceased was not an insured under the policy from which UM benefits were sought); Valiant Insurance Co. v. Webster, 567 So.2d 408 (Fla.1990) (focus should be on whether injured person had UM coverage); Smith v. Royal Insurance Co., 186 Cal.App.3d 239, 230 Cal.Rptr. 495 (1986) (no coverage); Gillespie v. Southern Farm Bureau Casualty Insurance Co., 343 So.2d 467 (Miss.1977) (if accident involves no person or vehicle insured under the policy then UM coverage not available); and State Farm Mutual Insurance Co. v. Wainscott, 439 F.Supp. 840 (D.Alaska 1977).

¶ 11 In contrast, decisions allowing recovery under such circumstances include: Forbes v. Harleysville Mutual Insurance Co., 322 Md. 689, 589 A.2d 944 (1991) (children entitled to recover under father’s policy for death of mother regardless of her status as insured if children are insureds and entitled to recovery under wrongful death statute); Hinners v. Pekin Insurance Co., 431 N.W.2d 345 (Iowa 1988) (bodily injury under

UM statute includes injury to person not an insured which causes damage to an insured); Sexton v. State Farm Mut. Auto. Ins. Co., 69 Ohio St.2d 431, 433 N.E.2d 555 (1982) (father was allowed recovery from his own UM carrier on claim as result of his daughter’s death in automobile accident while she was passenger in car whose driver had no liability insurance and was at fault); State Farm Mutual Automobile Insurance Co. v. Selders, 187 Neb. 342, 190 N.W.2d 789 (1971) (father allowed recovery from his UM carrier for wrongful death of children not residing in his household).

¶ 12 We adopt the reasoning of those courts that deny UM coverage for the wrongful death of a person who is not an insured under a claimant’s policy. We hold survivors are not entitled to recover under their own UM policy for the wrongful death of a person who is not an insured under that policy. We reject Appellant’s argument that this conclusion violates public policy. The policy provision allowing recovery for UM benefits is intended to provide indemnity for damages resulting from an insured’s wrongful death payable to those persons entitled to bring a wrongful death action. If UM coverage were to be extended for a decedent who is not an insured under the claimant’s policy, such coverage would create coverage where none existed under either the terms of the insurance policy or the UM statute. See generally, Farmers Ins. Exchange v. Chacon, supra; and Livingston v. Omaha Property & Casualty Insurance Co., supra.

¶ 13 In the instant ease, if Derrick’s father had lived, father’s UM claim would have been made under his own insurance policy. In that case, any derivative claim which Derrick might have would be included with the father’s claim against father’s insurer. Father clearly could not have made a UM claim for his injuries under the policy of his son’s maternal grandmother. Although 36 O.S. Supp.1994 § 3636(B) specifically requires coverage for insured persons who are legally entitled to recover damages because of “bodily injury, sickness or disease, including death”, it does not require coverage for the death of one who is not an “insured person”. UM coverage is simply not available for the death of a person who is not an insured under the claimant’s policy and this does not violate the public policy underlying 36 O.S. § 3636.

¶ 14 Here, it is undisputed that the father was not an insured under the policy insuring his son, Derrick. Derrick was not involved in the motorcycle accident and' suffered no bodily injury therefrom. Thus, neither Derrick, nor his grandmother on his behalf, was entitled to recover UM proceeds from Farmers. The trial court did not err in granting Farmers’ motion for summary judgment and in denying partial summary judgment for Appellant.

¶ 15 AFFIRMED.

HANSEN, P. J. and ADAMS, J., concur.

      . We note that in both Nebraska and Ohio, subsequent to the above cases, the legislatures amended their UM statutes to disallow recovery in similar circumstances.


author: CAROL M. HANSEN, Presiding Judge.

text:
    2003 OK CIV APP 8
    David HALLMARK and Janet Hallmark, Individually, and as husband and wife, Oklahoma Residents, Plaintiffs/Appellees, and National American Insurance Company, Intervenor/Appellant, v. HALLIBURTON ENERGY SERVICES, INC., a Delaware Corporation, and Buford Q. Burnett, an Oklahoma Resident, Defendants.
    No. 96,249.
    Court of Civil Appeals of Oklahoma, Division No. 3.
    Oct. 25, 2002.
    Certiorari Denied Jan. 13, 2003.

      Maurice G. Woods, II, McAtee & Woods, Oklahoma City, for Intervenor/Appellant.
    John E.Vitali, Hornbeek Krahl Vitali & Braun, Oklahoma City, for Plaintiffs/Appel-lees.
   Opinion by

CAROL M. HANSEN, Presiding Judge.

¶ 1 Intervenor/Appellant, National American Insurance Company (Insurer), brings this appeal from the trial court’s order apportioning proceeds of a settlement agreement between Plaintiffs/Appellees, David Hallmark and Janet Hallmark (collectively Hallmarks), and Defendants, Halliburton Energy Services and Buford Burnett. We find the settlement agreement invalid for failure to comply with 85 O.S. Supp.1998 § 44 and reverse.

¶ 2 David Hallmark was injured in a vehicular accident in February 1999. At the time of the accident he was in the course and scope of his employment with Western Oklahoma Sand and Gravel, Inc (Employer). Insurer provided Employer’s workers’ compensation coverage. The‘parties agree Insurer paid David Hallmark $86,101.09 in total compensation and medical benefits, and that the workers’ compensation claim was finally resolved by a joint petition settlement in January 2000.

¶ 3 In May 2000, the Hallmarks filed this action against Defendants. David Hallmark claimed personal injuries as the result of the February 1999 vehicular accident. Janet Hallmark sought damages for loss of consortium. Insurer moved to intervene in January 2001, claiming a right of subrogation for workers’ compensation benefits paid David Hallmark. Insurer stated in its Motion to Intervene that it did not intend to participate in the trial and requested its name “be bifurcated from the trial pleadings.” The trial court granted Insurer’s motion on February 9, 2001.

¶4 Jury trial began on March 6, 2001. After two days of trial the parties agreed to settle the case for $275,000.00. The Hallmarks determined they would split the settlement proceeds with $200,000.00 going to Janet Hallmark for her consortium claim and $75,000.00 going to David Hallmark for his claims. On March 7, 2001, the trial court, by minute order, approved the Hallmarks oral motion on division of the proceeds. The settlement and the hearing on approval of the division of proceeds were conducted without Insurer’s knowledge or participation.

¶ 5 On March 27, 2001, Insurer filed an application asking the trial court to apportion the settlement proceeds in satisfaction of its workers’ compensation lien under 85 O.S. Supp.1998 § 44 (hereafter § 44). Insurer, in summary, argued the Hallmark’s division of the settlement proceeds was invalid and that the statutory apportionment should be based on the total amount of the settlement. After hearing, the trial court found its prior division of the proceeds between the Hallmarks was proper and based the apportionment between Insurer and David Hallmark on David Hallmark’s $75,000.00 portion. Insurer brings its appeal from this order.

¶ 6 On appeal, Insurer first essentially reiterates the arguments raised before the trial court. We find the settlement between Hallmarks and Defendants invalid for failure to comply with § 44 and return the matter to the trial court for compliance with its requirements.

¶ 7 Section 44, although a part of the Workers’ Compensation Act (the Act), substantively deals with third party claims in district court where the worker “is injured or killed by the negligence or wrong of another not in the same employ.” While § 44 does not affect the injured worker’s common law rights against such a third party, it does provide the procedure for the worker to follow in pursuing the common law remedy. Prettyman v. Halliburton Co., 1992 OK 63, 841 P.2d 573. Where the injured worker does pursue a third party claim in district court, § 44 provides, among other things:

The compromise of any such cause of action by the worker at any amount less than the compensation provided for by the Workers’ Compensation Act shall be made only with the written approval of the Court.

¶ 8 This provision was part of the original enactment of the Act in 1915. Laws 1915, c. 246, art. 2, § 18. Section 44 then provided approval was to be by the “Commission”, defined as the State Industrial Commission, the predecessor to the Workers’ Compensation Court. Through amendments, the original “Commission” has evolved to “the Court.” Thus, within the meaning of § 44 here, approval of compromise settlements for less than compensation provided by the Act, although arising from a district court claim, must be approved by the Workers’ Compensation Court. Prettyman v. Halliburton Co., 841 P.2d at 577.

119 The Prettyman Court, Id., held:

Where injuries are caused by a third party’s negligence, § 44 is designed to protect the subrogation rights of the employer and his insurance carrier to the full extent of the compensation benefits paid the injured employee, and also to guard against the employee receiving double recovery.

¶ 10 In order to effect the primary purpose of protecting the employer or insurance carrier’s subrogation rights for benefits paid under the Act, the Legislature has afforded the Workers’ Compensation Court’s jurisdiction for approval of any third party settlement for less than those benefits. Once so approved, § 44 provides that apportionment of the judgment proceeds is according to the formula set forth in that section, or by the district court having jurisdiction over the employee’s claims, “in such manner as is just and reasonable.”

¶ 11 Contrary to the Hallmarks’ assertion, we find no authority for their contention the Workers’ Compensation Court lost its jurisdiction at the time David Hallmark and Insurer settled the Workers’ Compensation claim by Joint Petition. To the contrary, the Legislature has mandated in § 44 that the Workers’ Compensation Court continue to protect the interests of parties to the action there until the third party action is resolved.

¶ 12 To ensure compliance with this mandate, it has long been the law in this jurisdiction that compromise settlements for less than benefits paid under the Act, made without the written approval of the Workers’ Compensation Court, are invalid. Sinclair Oil & Gas Co. v. State Indus. Com’n, 1931 OK 573, 3 P.2d 438. The Supreme Court again recognized this holding in Prettyman, at 579.

¶ 13 In Sinclair, the Court held the invalid settlement agreement was not binding on the Commission or the claimant, and did not deprive the Commission of jurisdiction to determine the amount of compensation to which the claimant was entitled. While the circumstances are different here, we find it equally important to require compliance with § 44 where the issue is protection of Insurer’s subrogation rights. This is particularly true here because the third party settlement was reached without notice to Insurer.

¶ 14 Because of its statutory hen under § 44, Insurer could intervene in this action as a matter of right, but it had no right to participate in the trial. Landrum v. National Union Ins. Co., 1996 OK 18, 912 P.2d 324. Insurer chose not to participate in the trial, but there is nothing in the record to suggest it waived its right to participate in settlement negotiations to protect its subrogation interests. There is no explanation in the record as to why Insurer was not included. The other parties apparently did not object to Insurer’s intervention, thereby conceding its subrogation rights. The trial court’s failure to assure Insurer was notified of the hearing on the Hallmarks’ oral motion to approve the settlement was error.

¶ 15 Although the Defendants considered the settlement “global”, i.e. one amount for both plaintiffs, the record reveals the Hallmarks had determined how it would be split before they finally approved the settlement. Therefore, we find it was David Hallmark’s intention to settle his third party claims for $75,000.00. That is less than the amount of the Workers’ Compensation benefits paid and accordingly required approval by the Workers’ Compensation Court. In the acknowledged absence of such approval, the third party settlement was invalid. Sinclair, at 443.

¶ 16 The trial court’s order on appeal, which purported to apportion the third party settlement net recovery between the Hallmarks and Insurer, was based on an invalid agreement and is REVERSED. This matter is REMANDED to the trial court with instructions to order David Hallmark’s third party settlement submitted to the Workers’ Compensation Court for its review and approval or disapproval in accordance with § 44.

¶ 17 ADAMS and MITCHELL, JJ., concur.

      . Defendants Halliburton Energy Services and Buford Burnett were dismissed from the action after settlement, with approval of Hallmarks and Insurer, and are not parties to this appeal.


author: KENNETH L. BUETTNER, Judge.

text:
    2003 OK CIV APP 12
    M & W RESTAURANTS, INC. d/b/a Tapwerks Ale House & Cafe, Plaintiff/Appellee, and Oklahoma Malt Beverage Association, Intervenor/Appellee, v. OKLAHOMA ALCOHOLIC BEVERAGE LAWS ENFORCEMENT COMMISSION, Defendant/Appellant.
    No. 96,849.
    Court of Civil Appeals of Oklahoma, Division No. 1.
    Oct. 25, 2002.
    Certiorari Denied Jan. 28, 2003.

      Jeff L. Hartmann, Kerr, Irvine, Rhodes & Abies, Oklahoma City, for Plaintiff/Appellee.
    Ronald E. Stakem, Clark, Stakem, Wood & Patten, P.C., Oklahoma City, OK, for Inter-venor/Appellee.
    W. Kurt Morgan, Commission Counsel, Alcoholic Beverage Laws Enforcement Commission, Oklahoma City, for Defendant/Appellant.
   Opinion by

KENNETH L. BUETTNER, Judge.

¶ 1 The trial court granted a declaratory judgment in favor of M & W Restaurants, Inc. (Tapwerks) and the Oklahoma Malt Beverage Association (OMBA) finding that the Oklahoma Constitution’s authorization to the Alcoholic Beverage Laws Enforcement Commission (the ABLE Commission) did not include or apply to 3.2 beer or cereal malt beverage. It held that 37 O.S. Supp.1997 § 598, and the ABLE Commission’s rule based thereon, which attempted to grant authority to the ABLE Commission to regulate 3.2 (low-point beer), were unconstitutional. We affirm.

¶ 2 The parties stipulated to these facts:
1. Plaintiff is a corporation that owns and operates an establishment known as Tap-werks Ale House and Cafe located in Briektown, Oklahoma City, Oklahoma.
2. Plaintiff holds a license to sell alcoholic beverages by the individual drink for consumption on the premises issued by the Oklahoma Alcoholic Beverage Laws Enforcement Commission (“ABLE”).
3. Plaintiff on its ABLE license application stated that the “main purpose” of Tapwerks Ale House and Cafe was to be a restaurant.
4. ABLE permitted Plaintiff to establish on the licensed premises of the restaurant known as Tapwerks Ale House and Cafe a “designated bar area”, which permits persons under the age of twenty-one (21) years to enter the licensed premises of the restaurant other than the designated bar area.
5. ABLE on August 23, 2000, issued a notice to Plaintiff (Exhibit “1”) that an audit of Tapwerks Ale House and Cafe had been completed and that it had been determined that the total income from the restaurant’s sale of food did not exceed the income derived from the sale of alcoholic beverages and 3.2 beer.
6. Sales of food and 3.2 beer did, however, exceed the sale of alcoholic beverages for the audit period.
7. ABLE’s notice (Exhibit “1”) informed Plaintiff that because the total income from the restaurant’s sale of food did not exceed the income derived from the sale of alcoholic beverages and 3.2 beer, the premises of Tapwerks Ale House and Cafe would be posted “21 only” at the door on September 7, 2000 unless a hearing was requested.
8. Owners of Tapwerks have provided an Affidavit and would testify at trial that Tapwerks Ale House and Cafe is a family restaurant and that denying entry to patrons under twenty-one (21) years of age would destroy the business as it is presently operated.
9. Counsel for Plaintiff on September 6, 2000 sent a letter to ABLE contesting the redesignation and requesting a hearing on the matter. A hearing was set for September 20, 2000. Counsel for Plaintiff on September 18, 2000 filed a Motion for Continuance and a Motion to Dismiss based on the contention that Article 1, Section 32 of the ABLE Commission Rules and Regulations was unconstitutional. The case was continued until November 7, 2000. The ABLE Commission Hearing Officer denied the Motion to Dismiss on November 2, 2000.
10. This declaratory judgment action was commenced by Plaintiff on November 6, 2000 to challenge the constitutionality of ABLE Commission Rule 32; ABLE, on November 28, 2000, filed a Motion to Dismiss for failure to exhaust administrative remedies. The Oklahoma Malt Beverage Association on January 17, 2001 filed a Motion to Intervene and sought to challenge not only ABLE Commission Rule 32, but also 37 O.S. § 598.
11. The trial court on February 15, 2001, granted the Motion to Intervene filed by the Oklahoma Malt Beverage Association. The trial court on that same day denied the Motion to Dismiss filed by ABLE finding:
a. The presence of a constitutional question;
b. That administrative relief was inadequate; and
c. Irreparable injury would occur to Plaintiff without judicial intervention.
12. Thereafter ABLE has filed an Answer and all parties have submitted briefs which identify the legal issue at the center of this controversy to be:
Whether Title 37 O.S. § 598 and Article 1, Section 32, ABLE Rules and Regulations (copies are attached as Exhibits “2” and “3”) are unconstitutional under the provisions of Article XXVIII of the Oklahoma Constitution.
13. All parties stipulate that there is no further need for evidence and the Court can make its legal determination of constitutionality based upon this stipulation, the pleadings, and the legal briefs submitted by the parties.

¶ 3 The Stipulation was dated August 1, 2001 and accepted by the trial court in lieu of a pretrial order.

1Í 4 Based on the Stipulation, the trial court found that declaratory judgment was proper and that the statute, 37 O.S. Supp.1997 § 598, and the ABLE Commission’s implementing rule were unconstitutional to the extent that they include and apply to any beer or cereal malt beverage containing not more than 3.2% of alcohol by weight.

¶ 5 The ABLE Commission contends that the trial court did not have jurisdiction to issue a declaratory judgment because the administrative proceeding was still in progress. It also claims that the statute and rule are constitutional.

¶ 6 With respect to the jurisdiction issue, it is settled that an administrative agency is “... powerless to strike down a statute for constitutional repugnancy.” Dow Jones & Company, Inc. v. State ex rel. Oklahoma Tax Commission, 1990 OK 6, ¶ 6, 787 P.2d 843, 845. Consequently, a challenge to the constitutionality of the law and rule in an administrative proceeding would be futile. If a party believes that the administrative agency lacks authority to make a determination of the matter, then it should seek judicial review of that question. Although generally judicial review should not take place until administrative remedies are exhausted, “... premature judicial review is permissible when administrative remedies are inadequate. Remedies are inadequate when unavailable, ineffective or futile to pursue.” Double “LL” Contractors, Inc. v. State ex rel. Oklahoma Department of Transportation, 1996 OK 30, ¶ 17, 918 P.2d 34, 39. Declaratory judgments may be sought before the issuance of an administrative final order. Conoco, Inc. v. State Department of Health, 1982 OK 94, ¶ 15, 651 P.2d 125, 130. “Such relief [declaratory judgment] is especially useful in a case where a justiciable controversy between the parties exists and the plaintiff would be required to do or refrain from doing some action at his legal peril.” Id. at ¶ 18, p. 131. In this case, the parties were in a legal proceeding but no final order had issued. The facts were not in dispute and absent a declaration of unconstitutionality, there is no reason to believe that the ABLE Commission would not enforce the statute and its rale. Tapwerks contended that the ABLE Commission lacked the power to do what it planned to do, and Tapwerks risked losing its family restaurant status. The trial court properly took jurisdiction over the matter. •

¶ 7 We now address the constitutionality of the law and the ABLE Commission’s rule implementing it.

¶ 8 The Oklahoma Alcoholic Beverage Laws and Enforcement Commission was created by Article XXVIII § 1 of the Oklahoma Constitution. It states that the “... purpose of the Commission shall be to enforce the alcoholic beverage laws of the State, and the Commission shall have such power and authority to enforce such laws, rales and regulations as shall be prescribed by the Legislature.” Tapwerks and OMBA argue that Article XXVIII, § 2 limits the legislature in the authority that may be granted the ABLE Commission. Section 2 states:

The terms and provisions of this Amendment, and laws enacted by the Legislature pursuant hereto, shall not include nor apply to any beer or cereal malt beverage containing not more than three and two-tenths percent (3.2%) of alcohol by weight; provided, however, nothing shall prohibit a person authorized to sell alcoholic beverages by the individual drink for on-premises consumption from also becoming qualified to sell any beer or cereal malt beverage containing not more than three and two-tenths percent (3.2%) of alcohol by weight in the same location. (Emphasis added.)

¶ 9 Section 2 makes it clear that an establishment may be licensed to sell alcohol by the drink and low-point beverages, but that the ABLE Commission can only regulate alcohol sales.

¶ 10 The statute in question, 37 O.S. Supp. 1997 § 598, permits the premises of an ABLE Commission licensee to have a separate or enclosed bar area, the main purpose of which is the sale and consumption of alcohol. Patrons under the age of twenty-one years are not permitted in this area although they are allowed to patronize the other part of the establishment, the main purpose of which is the sale and consumption of anything except alcohol. Patrons of the nonintoxicating beverage area may order alcoholic drinks or low-point beer if they are twenty-one years or older. The critical language of § 598(A) is the following:

For purposes of this section only, the term “alcoholic beverages” shall include low-point beer, as defined in Section 163.2 of this title.

¶ 11 The ABLE Commission then proceeded to write Article I, § 32 of its Rules and Regulations. In order for an establishment to be open to people under the age of twenty-one years, the licensee, to retain a separate or enclosed bar area, must show that the income derived from the area whose main purpose is not the sale of alcohol, exceeds the total income from the sale, mixing or serving of alcoholic beverages. The ABLE rule then states that “alcoholic beverage” shall include nonintoxicating beverages as defined in 37 O.S. § 163.2 (low-point beer).

¶ 12 The ABLE Commission contends that the law and rule are not unconstitutional because they do not attempt to regulate low-point beer. It argues that the law and rule only regulate who may enter a premises. Tapwerks responds that the legislature is enjoined from passing any law or regulation dealing with 3.2 beer or doing anything to prohibit Tapwerks from selling low-point beer in the same way others may sell it. OMBA agrees that the law is unconstitutional because it violates the prohibition. OMBA states that the law purports to give the ABLE Commission power which the constitution directly withholds from that agency.

¶ 13 We hold that 37 O.S. Supp. 1997 § 598 is unconstitutional because it includes low-point beer in the definition of alcoholic beverages which the ABLE Commission sought to regulate by rules implementing § 598. “A legislative act is presumed to be constitutional and will be upheld unless it is clearly, palpably and plainly inconsistent with the Constitution. Statutes should be construed whenever possible so as to uphold their constitutionality.” Kimery v. Public Service Company of Oklahoma, 1980 OK 187, ¶ 6, 622 P.2d 1066, 1069. Section 598 specifically includes low-point beer in its definition of alcoholic beverages which clearly violates Article XXVIII, Section 2. Laws enacted by the Legislature with respect to the authority of the ABLE Commission may not include 3.2 beer. The clear effect of the statute and rule is to regulate conduct of alcoholic beverage licenses by including 3.2 beer in the definition of alcoholic beverages. When the ABLE Commission regulates the hours of operation, the premises, and other details of its licensees, it is regulating pursuant to the authority of Article XXVIII, Section 1. In determining the substance of those regulations, the ABLE Commission may not include 3.2 beer.

¶ 14 The declaratory judgment of the district court is AFFIRMED.

JOPLIN, V.C.J., and MITCHELL, J., sitting by designation, concur.

      . The Honorable Senator Robert Kerr, author of § 598, requested permission to file an amicus curiae brief. None of the parties objected. Senator Kerr’s amicus brief, which consisted of arguments relating to statutory interpretation not legislative history, was considered.

      . The ABLE Commission bolstered its position with two Attorney General Opinions, 98-15 and 00-57 which held that 37 O.S. § 598 was constitutional. The District Court overruled and set those opinions aside to the extent they were inconsistent with its opinion.


author: JOHN F. REIF, Chief Judge.

text:
    2003 OK CIV APP 4
    Jeff EDWARDS, Plaintiff/Appellant, v. GENERAL MOTORS ASSEMBLY DIVISION, General Motors Corporation, Defendant/Appellee.
    No. 96,360.
    Court of Civil Appeals of Oklahoma, Division No. 4.
    Nov. 19, 2002.
    Rehearing Denied Dec. 16, 2002.

      John A. Mantooth, Purcell, for Appellant.
    Tia Jones Bibbs, B. Wayne Dabney, Holloway, Dobson & Bachman, Oklahoma City, for Appellee.
   Opinion by

JOHN F. REIF, Chief Judge.

¶ 1 This case concerns an appeal by plaintiff Jeff Edwards and a counter-appeal by defendant General Motors, following a jury verdict in favor of plaintiff Edwards on his breach of contract claim against General Motors. The jury determined that Mr. Edwards, a paint mixer for General Motors, should be paid 20% of the first $100,000 saved by General Motors from implementing a cost savings suggestion that he submitted, as provided in the General Motors Employee Suggestion Plan. The cost savings suggestion involved “batch” painting of ears, using certain low-demand colors only on a given day or days. Neither Mr. Edwards nor General Motors have briefed any issue concerning the merits of Mr. Edwards’ claim.

¶ 2 The appeal by Mr. Edwards contends the trial court erred in ruling his claim did not involve a contract for labor or service and, in turn, denying him attorney fees under 12 O.S.2001 § 936. In its counter-appeal, General Motors contends that the trial court erred in awarding Mr. Edwards prejudgment interest, specifically arguing that the amount Mr. Edwards was due under the Suggestion Plan could not be determined without trial and determination by the jury. For the reasons that follow, we hold Mr. Edwards was entitled to attorney fees under § 936 and was properly awarded prejudgment interest.

¶ 3 Whether the compensation that an employee can earn under the Employee Suggestion Plan involves a claim for labor or services within 12 O.S.2001 § 936 depends on the meaning of “labor” and “services” as used in § 936. The trial court expressly found that “Jeff Edwards’ suggestion as implemented by General Motors is not labor and services as [used in] Title 12 O.S. § 936.”

¶ 4 Clearly, the trial court resolved the controversy by interpreting the terms “labor” and “services” in § 936. When “[resolution of [a] question ... calls for ascertaining the meaning of certain critical words found in [a] statutory text ... a question of law [is presented].” Arrow Tool & Gauge v. Mead, 2000 OK 86, ¶ 6, 16 P.3d 1120, 1123 (footnote omitted). A lower court’s “ascription of the meaning that is to be attributed to the critical part of the statutory text” is reviewed de novo on appeal; that is, “subject to an appellate court’s plenary, independent and nondeferential reexamination.” Id. (footnotes omitted).

¶ 5 “The goal of any inquiry into the meaning of a legislative enactment is to ascertain and follow legislative intent.” Id. at ¶ 15, 16 P.3d at 1125 (footnote omitted). “It is presumed that (a) legislative intent is expressed in a statute’s text and (b) the lawmaking body intended that which it expressed.” Id. (footnote omitted). “In the process of giving meaning to any statute, the starting point is the plain and ordinary significance of the language employed in the text.” George E. Failing Co. v. Watkins, 2000 OK 76, ¶ 7, 14 P.3d 52, 56 (footnote omitted). The legislature has similarly directed that “[w]ords used in any statute are to be understood in their ordinary sense, except when a contrary intention plainly appears.” 25 O.S.2001 § 1.

¶ 6 In the early case of State v. Smith, 1921 OK CR-, 19 Okla.Crim. 184, 198 P. 879, the Oklahoma Court of Criminal Appeals was called upon to construe the term “servile labor” as used in the “Sabbath breaking” statute. The Court followed the statutory rule of construction cited above and began by considering the meaning of the term “labor.” The Court observed, “Labor, in its usual sense, may be defined as ‘physical or mental toil; bodily or intellectual exertion, done wholly or partly for a purpose other than the pleasure derived from its performance.’ ” Id. at 880 (citation omitted). In a later case, the Oklahoma Supreme Court would observe, “It is well settled that the term ‘labor’ is not confined to physical or manual labor.” Diffenbach v. H.H. Mahler Co., 1934 OK 170, ¶ 4, 30 P.2d 907, 908 (citation omitted).

¶ 7 In a case that interpreted the Kansas oil and gas lien statute, the Kansas Court of Appeals stated that work performed for the “advancement of the ... operation of an oil and gas well” would constitute “lienable labor ... regardless of whether it involves manual or mental toil.” DaMac Drilling, Inc. v. Shoemake, 11 Kan.App.2d 38, 713 P.2d 480, 486 (1986). In the DaMac case, the Kansas Court of Appeals held that the work of a geologist was lienable labor because, “[w]ith the expert knowledge and evaluation of a geologist, costly errors ... can be avoided [and] development costs can be kept to a minimum so that profits are maximized.”

¶ 8 Mr. Edwards’ “batch” painting suggestion clearly involved mental toil and intellectual exertion by using expert knowledge to evaluate General Motors’ painting component of production. The “batch” painting suggestion was formulated and communicated to General Motors wholly or partly for a purpose other than the pleasure derived from its formulation and communication, specifically to earn the compensation promised by General Motors for formulating and communicating better ways that advance General Motors’ operation so that costs can be kept to a minimum and profits maximized. The “batch” painting suggestion was “labor” as that term is commonly understood and as it is commonly used in statutes addressing the subject of “labor.”

¶ 9 “The underlying nature of the action determines the applicability of the § 936 labor-and-services provision [and where] damage arises directly from the rendition of labor or services[,] the provisions of § 936 are applicable.” Cook v. Oklahoma Bd. of Public Affairs, 1987 OK 22, ¶ 43, 736 P.2d 140, 154 (footnotes omitted). Mr. Edwards’ formulation and communication of the “batch” painting suggestion involved the rendition of labor for General Motors. Also, General Motors’ failure to pay for such labor (as provided in the Employee Suggestion Plan) was damage that arose from the I'endition of labor, not unlike failing to pay an outside consultant for evaluating the operation and formulating a similar cost savings plan.

1110 We hold the trial court erred as a matter of law in ruling “Jeff Edwards’ suggestion as implemented by General Motors is not labor and services as [used in] Title 12 O.S. § 936,” and in denying Mr. Edwards an attorney fee under § 936. As the prevailing party on a contract claim for labor or service, Mr. Edwards is entitled to “a reasonable attorney fee to be set by the court, to be taxed and collected as costs” as mandated by § 936. Additionally, “[whenever there is statutory authority to award counsel fees in the trial court, additional fees may also be allowed for services rendered in the appellate court.” Cook, 1987 OK 22, ¶ 46, 736 P.2d at 154 (footnote omitted).

¶ 11 We grant Mr. Edwards’ motion for appellate attorney fees. We reverse the trial court’s denial of an attorney fee to Mr. Edwards for counsel fees incurred in the trial court, and remand with directions to determine and award Mr. Edwards a reasonable attorney fee for (1) the necessary and reasonable services of his attorney before the trial court, and (2) the necessary and reasonable services of his attorney before the appellate courts.

¶ 12 Unlike the error in denying attorney fees under § 936, the trial court did not err in awarding prejudgment interest under 23 O.S.2001 § 6. This statute provides in pertinent part that “[a]ny person who is entitled to recover damages certain, or capable of being made certain by calculation, and the right to recover which is vested in him upon a particular- day, is entitled also to recover interest thereon from that day.”

¶ 13 There is no dispute that the right to be paid 20% of the first $100,000 in cost savings realized from an employee’s suggestion vests upon completion of the first year of implementation. There was also no dispute over when the first year of implementation of “batch” painting was completed. However, General Motors contends that a dispute did exist over how the savings should be calculated as of the last day of implementation. In particular, General Motors points out that there were disputes over the amount of paint being saved, the price of the paint, and the labor cost being saved.

¶ 14 General Motors asserts that the amount of compensation that Mr. Edwards should recover was not certain or capable of being made certain until the jury resolved disputes over the elements used in calculating savings. In this regard, General Motors stresses that the jury was even instructed that “the amount of damages should be determined ... by defining the amount of savings realized by General Motors ... and awarding Plaintiff 20% of the savings, not to exceed $20,000.”

¶ 15 In reviewing the record, there was indeed conflicting testimony about the number of gallons of paint that would be saved, the price per gallon of the paint saved and the labor costs to be saved. However, we do not find these conflicts or resolution of these conflicts to effect the application of § 6. While disputing Mr. Edwards’ right to recover, General Motors admitted that its managers calculated cost savings of $86,092.80 from implementing “batch” painting for three colors. The only problem with this calculation is not in the number of gallons of paint saved, the price per gallon or labor costs, but in its omission of other specific savings that were established by undisputed testimony.

¶ 16 In particular, undisputed testimony established that for every gallon of paint saved, General Motors would save the cost of using and disposing of two gallons of solvent needed to clean the painting equipment. Undisputed testimony established that the combined purchase/disposal cost of solvent was $6 per gallon. Undisputed testimony also established that General Motors would save the cost of purchasing and disposing of 3-4 filters per day from “saving three colors a day of paint four days a week.” General Motors did not deny these savings would be realized nor offer conflicting evidence concerning the quantity or price of these items.

¶ 17 In calculating the $86,092.80 figure for cost savings, General Motors took the number of gallons of paint saved per week and multiplied that figure by 48 weeks and then multiplied that figure by the price of the paint. General Motors determined that it saved 12 gallons of paint per color per week, or 36 total gallons of paint per week. This same data and formula would also apply to calculating the purchase/disposal savings for solvent. Again, the undisputed testimony revealed that two gallons of solvent were saved for every gallon of paint saved, and the combined purchase/disposal cost for solvent was $6 per gallon. If 36 total gallons of paint are saved each week, then 72 total gallons of solvent are also saved each week. Multiplying 72 times 48 weeks yields 3,456 gallons of solvent saved for 48 weeks. Multiplying 3,456 by $6.00 per gallon yields a solvent purchase/disposal savings of $20,736.00. When this figure is added to the savings of $86,092.80, a total undisputed savings of over $100,000 is determined. The only aspect of Mr. Edwards’ recovery of $20,000 that had to be capable of certain computation was a total savings to General Motors that equaled or exceeded $100,000.

¶ 18 Stated another way, General Motors admitted to realizing $86,092.80 in savings during the first year of implementation of “batch” painting, while the undisputed evidence from Mr. Edwards reflected that there was at least another $20,736.00 in savings omitted from the General Motors calculation. This undisputed evidence from both parties revealed that the savings realized by General Motors in the first year of implementation exceeded $100,000. Positive, un-contradicted and unimpeached testimony that is not inherently improbable, nor self-contradictory, cannot be disregarded, and must control the decision of the court or jury. See Spillers v. Colby, 1964 OK 99, ¶ 0, 391 P.2d 895 (syllabus 1).

¶ 19 By awarding Mr. Edwards $20,000 (the maximum amount), it is reasonably clear the jury followed the undisputed evidence to the conclusion that the savings exceeded $100,000 in the first year of implementation. Clearly, “the amount recovered was capable of ascertainment before judgment through calculation by using well-established market values” and, therefore, prejudgment interest was properly awarded. Cook v. Oklahoma Bd. of Public Affairs, 1987 OK 22, ¶39, 736 P.2d at 153 (footnote omitted). Accordingly, we affirm the trial court’s award of prejudgment interest.

¶ 20 THE AWARD OF PREJUDGMENT INTEREST IS AFFIRMED. THE DENIAL OF PLAINTIFF’S REQUEST FOR PREVAILING PARTY ATTORNEY FEES IS REVERSED, AND THIS CASE IS REMANDED FOR THE TRIAL COURT TO DETERMINE AND AWARD A REASONABLE ATTORNEY FEE TO PLAINTIFF (1) FOR PREVAILING ON A CLAIM FOR LABOR, AND (2) FOR THIS APPEAL.

TAYLOR, P.J., and STUBBLEFIELD, J., concur.

      . General Motors did raise issues in its original counter-petition-in-error concerning the merits of the case, but did not support any of the issues on the merits with argument and authority in its briefing. Propositions of error that are raised in a petition-in-error, but not supported by argument and authority in briefing, are deemed abandoned and are not considered on appeal. Perry v. Meek, 1980 OK 151, ¶ 13, 618 P.2d 934, 938.