text:
    2003 OK CIV APP 81
    Donna JULIAN and Lawrence Julian, Plaintiffs/Appellants/Counter-Appellees, v. SECURED INVESTMENT ADVISORS d/b/a Vintage on Yale Apartments, Vintage on Yale, Ltd., and Vintage on Yale Limited Partnership, Defendants/Appellees/Counter-Appellants.
    No. 98,891.
    Court of Civil Appeals of Oklahoma, Division No. 2.
    May 20, 2003.
    Certiorari Denied Sept. 22, 2003.
    Chris Knight, Chris Knight, P.C., Tulsa, OK, for Plaintiffs/Appellants/Counter-Appel-lees.
    Bruce A. McKenna, G. Diane Lee, Holden & Mckenna, Tulsa, OK, for Defendants/Ap-pellees/Counter-Appellants.
   Opinion by

RONALD J. STUBBLEFIELD, Judge.

{1 This is the appeal by tenants from district court order granting summary judgment in favor of apartment owners in an action seeking damages for personal injuries sustained as a result of a fall in a common area of the apartment complex. The appeal has been assigned to the accelerated docket pursuant to Oklahoma Supreme Court Rule 1.36, 12 0.9.2001, ch. 15, app. 1. Based on our review of the record on appeal and applicable law, we reverse and remand.

BACKGROUND FACTS

T2 Donna and Lawrence Julian (hereafter Plaintiffs) were residents of the Vintage on Yale Apartments, which were owned and/or managed by Secured Investment Advisors d/b/a Vintage on Yale Apartments, Vintage on Yale Ltd., and Vintage on Yale Limited Partnership (hereafter Defendants or Owners). On January 12, 2000, between 7:00 and 7:15 a.m., Donna Julian was walking on the sidewalk toward her parked car preparing to go to work. As she approached her car she stepped on or tripped over a "chunk of rock-like debris" twisting her ankle and causing her to fall forward into her car, striking her head on the car bumper then striking the curb and the pavement. Plaintiffs filed this action against Defendants seeking damages for injuries sustained by Donna Julian as a result of Defendants' negligence in allowing debris to accumulate on the walkways of the apartment complex. Plaintiffs specifically alleged that Defendants' agents, servants, employees, or contractors created large amounts of debris in the apartment complex and failed to adequately clean it up. Lawrence Julian stated a claim for loss of consortium.

13 Defendants admitted that Plaintiffs were tenants of the Vintage on Yale Apartments but denied all other allegations. Defendants asserted as "affirmative defenses:" (1) comparative and/or contributory negli-genee; (2) assumption of risk; (3) failure to join indispensable party; (4) negligence of independent contractor or other third party over which Defendants had no control; (5) statute of limitations; (6) open and obvious condition; and (7) no duty to warn.

T4 After deposing Plaintiffs, Defendants sought summary judgment on their claims. They asserted that they were entitled to judgment as a matter of law based on what they labeled as an "undisputed fact"-that the debris which caused Donna Julian's fall was open and obvious. They claimed that during her deposition she expressly and unequivocally admitted there was nothing to prevent her from seeing the debris which caused her fall.

T5 According to Defendants, the record was also devoid of any proof that they placed the debris on the sidewalk or should have known of the presence of the debris. Furthermore, they asserted that the premises were appropriately lighted at the time of the incident, they had no duty to warn of or remove the debris and, under the cireum-stances, Donna Julian's voluntary use of the premises resulted in her assumption of risks related to the undisputedly open and obvious debris. Making a "condition versus cause" argument, they called Donna Julian's accident a "self-inflicted misfortune."

T 6 Defendants also sought summary judgment on the claim of Lawrence Julian. The basis for the motion was that his claim was entirely derivative of his wife's claim.

T7 In response to Defendants' motions, Plaintiffs set forth their own statement of "undisputed facts" and specifically identified the facts in Defendants' statement which they claimed remained in dispute and precluded the grant of summary judgment. First, Plaintiffs disputed Defendants' assertion that the area where Donna Julian fell was adequately lit. They submitted eviden-tiary materials which they claimed showed that, although there were photocell lights in various locations in the parking lot and along the walkways, none directly illuminated the curve in the sidewalk where Donna Julian fell.

T8 Next, Plaintiffs disputed Defendants' assertion that there was no proof Defendants placed the debris on the sidewalk or allowed it to remain there. Plaintiffs pointed out that although their apartment was located in a building that had been completed, when they moved into their unit in October 1999, construction and landscaping were ongoing with regard to other buildings in the 15-building hillside complex. They submitted excerpts from Lawrence Julian's deposition wherein he testified that he observed construction dump trucks constantly driving past the parking area for their building "dropping clumps of clay or debris off the back ... [which] would just hit the ground and bounce and go everywhere." Lawrence Julian also testified that landscape workers actually drove bobeats up and down the sloping sidewalk by their building, using it as a ramp, dropping mud, gravel and debris in the process. According to Lawrence Julian's testimony, employees of the apartment complex would usually sweep debris in the evenings. ‘

T9 Lawrence Julian also testified that on one occasion prior to his wife's fall he observed a new tenant having difficulty negotiating the sidewalk up to the building. The man was attempting to move a piece of furniture on a dolly, but according to Lawrence Julian there "was so much gravel and debris on the sidewalk that you could hardly see the sidewalk," and the wheels on the dolly would not turn because the man "kept running into this gravel." Lawrence Julian asserted that he reported this to the complex office, and afterwards "[they got some guys up there with shovels and brooms and they cleaned up the area."

{10 Finally, Plaintiffs disputed Defendants' assertion that the rock/debris was open and obvious. Citing Spirgis v. Circle K Stores, Inc., 1987 OK CIV APP 45, 748 P.2d 682 (approved for publication by the Oklahoma Supreme Court), they argued that the fact Donna Julian had acknowledged that a chunk of concrete is something that you could ordinarily see, and that she was not carrying anything in her arms such as a brief case which would have obstructed her vision, does not mean that the debris constituted an open and obvious condition. They submitted additional excerpts of their deposition testimony describing how Donna Julian stepped on, or tripped over, a piece of concrete debris and fell while rounding a curve on the downward sloping sidewalk which was bordered by a retaining wall approximately five feet in height at the point where the accident occurred. Plaintiffs submitted color photographs showing the descending sidewalk, the height of the wall at the curve and debris that was purportedly similar in size, color and appearance to the piece of debris which Donna Julian claimed caused her to fall.

111 After Plaintiffs filed their response, Defendants sought leave to file a reply brief and also filed a motion to strike from the record (1) certain purportedly uncontrovert-ed facts that Plaintiffs asserted precluded summary judgment; and, (2) portions of Plaintiffs' depositions appended to Plaintiffs' objection to summary judgment.. Defendants claimed that the evidentiary materials submitted by Plaintiffs were insufficient to raise disputed issues of material fact and defeat their motion for summary judgment. They attacked Plaintiffs' evidentiary submissions for failing to "rise to the level of admissible evidence" describing them as "speculation," "not the best evidence" and "ambiguous."

{12 The Trial Court denied Defendants' motion to strike, but did grant summary judgment in their favor. Plaintiffs appeal.

{13 Defendants have filed a counter-appeal from the Trial Court's ruling on their motion to strike, claiming the matter need only be reached in the event this Court were to consider those portions of the record which they claim should have been stricken.

STANDARD OF REVIEW

' 14 The appellate standard of review of a trial court's grant of summary judgment is de novo. Carmichael v. Beller, 1996 OK 48, ¶ 2, 914 P.2d 1051, 1053. On review, this Court will examine the pleadings and eviden-tiary materials submitted by the parties to determine if there is a genuine issue of material fact. Id. All inferences and conclusions to be drawn from the evidentiary materials will be viewed in the light most favorable to the non-moving party. Id.

{15 This Court bears "an affirmative duty to test all evidentiary material tendered in summary process for its legal sufficiency to support the relief sought by the movant." Copeland v. The Lodge Enters., Inc., 2000 OK 36, 18, 4 P.3d 695, 699. The focus in summary process is not on the facts which might be proven at trial, but rather on whether the tendered proof in the record reveals only undisputed material facts supporting but a single inference that favors the movant's motion for summary judgment. Polymer Fabricating, Inc. v. Employers Workers' Comp. Ass'n, 1998 OK 118, 1 7, 980 P.2d 109, 112. This Court will reverse the grant of summary judgment where it appears from the evidentiary materials that material facts concerning issues raised in the case are conflicting or, if the material facts are undisputed, that reasonable persons in the exercise of fair and impartial judgment might reach different conclusions from those facts. See Buck's Sporting Goods, Inc. v. First Nat'l Bank & Trust Co. of Tulsa, 1994 OK 14, [ 11, 868 P.2d 693, 697-98.

DISCUSSION

I. Defendants' Attack on Plaintiffs' Evidence

116 We shall first consider Defendants' "counter-appeal" because of their claim that this Court should not consider much of the evidentiary materials offered by Plaintiffs in response to their summary judgment motion. Actually, the challenge to the evidence offered by Plaintiffs is not reviewable as a counter-appeal because the appealed order was an interlocutory order which is not ap-pealable by right. 12 0.8.2001 § 993; Okla. Sup.Ct. R. 1.27, 12 0.8.2001, ch. 15, app. 1. However, we shall address the issue raised by Defendants to support their claim that they are entitled to judgment as a matter of law because much of the evidentiary material submitted by Plaintiffs is not acceptable under Oklahoma District Court Rule 18, 12 0.8. Supp.2002, ch. 2, app. 1.

117 We find Defendants' arguments reflect a basic misunderstanding of the nature of summary judgment process in Oklahoma courts. In this regard, the Oklahoma Supreme Court's pronouncements in Copeland are instructive:

While the mere contention that material facts are in dispute is not sufficient to defeat a plea for summary judgment, neither is the nonmovant to be held to the standard of producing forensic evidence. The nonmovant must merely "present something which shows that when the date of trial arrives, he will have some proof to support his allegations." For an item of evidentiary material to be insufficient to defeat a motion for summary judgment, it must either facially lack probative value or be incapable of conversion at trial to admissible evidence.

Copeland, 2000 OK 36 at 19, 4 P.3d at 699 (emphasis added; footnotes omitted) (quoting Davis v. Leitner, 1989 OK 146, 1 12, 782 P.2d 924, 926). In Davis, the Court stated that the evidentiary materials attached to a response to a motion for summary judgment "are not to be held to the standard of competent, admissible evidence." Davis, 1989 OK 146 at 1 18, 782 P.2d at 926.

1 18 Recent amendments to Oklahoma District Court Rule 183, 12 0.8. Supp.2002, ch. 2, app. 1, which were in effect at the time Defendants sought summary judgment, reflect these pronouncements in Copeland and Davis. The amended rule omits the references to "admissible evidence"-a phrase which Defendants constantly brandished in their briefs below-replacing them with "acceptable evidentiary material." Rule 18(b). The rule sets forth the procedure for challenging admissibility of evidentiary material submitted by another party when that material "does not appear to be convertible to admissible evidence at trial." Rule 13(c)(emphasis added).

119 Defendants' motion to strike attacked substantial portions of Plaintiffs' evi-dentiary materials as inadmissible because, according to Defendants, the materials neither controverted Defendants' statement of undisputed facts nor supported undisputed facts identified by Plaintiffs. For example, Defendants moved to strike Plaintiffs' assertion that the debris was a "chunk" of concrete the same color as the walkway, claiming that Donna Julian did not testify that the eolors of the walkway and the debris were the same. However, in making that claim, Defendants referred only to selected excerpts of her deposition testimony.

120 In other portions of her deposition, Donna Julian testified that she remembered "stepping on something very hard," describing it as "one big chunk," and her testimony established that Plaintiffs retained possession of the chunk of debris. Also, as stated, photographs in the record tend to demonstrate that the debris did not contrast markedly from the surface color of the sidewalk. Thus, it appears that "acceptable evidentiary material" establishes a controversy of fact for which there will be admissible evidence at trial.

1 21 After reviewing Defendants' motion to strike, we are unable to conclude that the Trial Court's decision, denying the motion in its entirety, was in error.

II. Plaintiffs' Allegations of Error

122 Plaintiffs' contentions of error may be summarized as the single contention that genuine issues of material fact precluded the grant of summary judgment. Defendants' motion for summary judgment was based on their assertion that the alleged defect in the premises-the rock/debris on the sidewalk-was open and obvious. They focused primarily on this excerpt from Donna Julian's deposition:

Q. Was there anything on that date that the incident occurred that would have prevented you from seeing this rock, stone, debris, whatever it was that you twisted your ankle on?

A. No, not that I can think of.
Q. [Were] you carrying anything in your arms when the incident occurred?
A,. No. Only my purse. No.
Q. No briefcase?
A. No.

However, after our review of the entire ree-ord, we find that reasonable minds could differ as to whether the sidewalk debris constituted an open and obvious hazard.

1 23 The Oklahoma Supreme Court has stated that "the characteristic of an item as being observable ... cannot, by itself, require that item to be declared as a matter of law an open and obvious danger." Zagal v. Truckstops Corp. of America, 1997 OK 75, ¶ 9, 948 P.2d 278, 275. Instead, "[all of the cireumstances must be examined to determine whether a particular condition is open and obvious to the plaintiff or not." Id. (citing Brown v. Nicholson, 1997 OK 82, 18, 985 P.2d 319, 822).

4 24 Here, the evidentiary materials tend to show that the color of the piece of debris did not contrast markedly from the color of the sidewalk. And, from the submitted photographs, it does appear that the area where the sidewalk curved, next to a high retaining wall, was not directly illuminated by one of Defendants' photocell lamps. Viewing the facts and inferences in a light most favorable to Plaintiffs, as we must when reviewing the grant of summary judgment, we find that the issue of whether these factors created a concealed danger presents a question for the trier of fact.

125 The Oklahoma Supreme Court has rejected the "open and obvious" defense in several cases where the condition or defect was visible but, nevertheless, unseen by the plaintiff. We conclude that this case falls within the same category. See Phelps v. Hotel Mgmt., Inc., 1996 OK 114, 925 P.2d 891 (plaintiff struck a glass bowl with the back of her head while taking her seat on a bench-although the glass bowl was visible, whether its position, in relation to the seating area, made it something other than harmless was jury question); Roper v. Mercy Health Cir., 1995 OK 82, 903 P.2d 314 (plaintiff tripped over small light fixture installed in sidewalk, and whether her claim of not seeing fixture because of pedestrian traffic was sufficient to treat fixture as a hidden defect was an issue to be determined by a jury); Spirgis v. Circle K Stores, Inc., 1987 OK CIV APP 45, 748 P.2d 682 (approved for publication by the Oklahoma Supreme Court) (issue of whether a pothole in parking lot was a hidden danger because of traffic was one to be decided by trier of fact).

126 Furthermore, implicit in Defendants' characterization of Donna Julian's injury as "self-inflicted misfortune" is that her injury was a result of her own negligence. Comparative negligence issues are for the trier of fact to determine. Okla. Const. art. 28, § 6 ("'The defense of contributory negli-genee or of assumption of the risk shall, in all cases whatsoever, be a question of fact, and shall, at all times, be left to the jury.").

CONCLUSION

127 When all tendered evidentiary materials are considered, there is a dispute of fact over the material issue of the open and obvious character of the sidewalk debris. Based on the record before us, and in consideration of all of the cireumstances, we find that reasonable minds could differ as to whether the sidewalk debris constituted a concealed danger. Thus, a jury question is presented, and we conclude that the Trial Court erred in granting summary judgment to Defendants.

128 REVERSED AND REMANDED FOR FURTHER PROCEEDINGS.

COLBERT, V.C.J., and TAYLOR, P.J., concur.

      . .- Oklahoma District Court Rule 13 was amended by order filed September 17, 2002, with amendments effective thirty days thereafter, or on October 17, 2002. Defendants' motion for summary judgment and motion to strike were both filed after the effective date of the amendments.


source: Caselaw Access Project

author: TOM COLBERT, Vice Chief Judge.

license: Public Domain

text:
    2003 OK CIV APP 83
    Tom TISDALE and Bertha Tisdale, Plaintiffs/Appellants, v. ITW RAMSET/RED HEAD, a wholly owned subsidiary of Illinois Tool Works, Inc., Defendant/Appellee, and Hilti, Inc., Hilti Group, Hilti International, and Hilti Corporation, Defendants.
    No. 98,968.
    Court of Civil Appeals of Oklahoma, Division No. 2.
    June 3, 2003.
    Certiorari Denied Sept. 22, 2008.
    Eric W. Quandt, Jack G. Zurawik Tulsa, OK, for Plaintiffs/Appellants.
    John R. Woodard, III, Jody R. Nathan, FEldman, Franden, Woodard, Farris & Bou-dreaux, Tulsa, OK, for Defendant/Appellee.
   Opinion by

TOM COLBERT, Vice Chief Judge.

T1 Tom and Bertha Tisdale appeal from the district court's order dismissing their claim against ITW Ramset/Red Head. The issue in this action for personal injury is whether the district court erred in holding the Tisdales' claim time-barred as a matter of law. Upon review of the record and applicable law, we conclude that the court erred and we reverse.

FACTS AND PROCEDURAL HISTORY

12 On March 16, 2000, Tom Tisdale was injured in the course of his employment when a nail gun malfunctioned, sending a nail into his right eye. On March 18, 2002, Tom and his wife sued Hilti, Inc., Hilti Group, Hilti International, Hilti Corporation, and "John Doe" on theories of negligence, manufacturers products Hability, and breach of warranty. On September 9; 2002, the Tis-dales filed an amended petition substituting ITW as a defendant in place of "John Doe."

{3 ITW filed a motion to dismiss, asserting that the Tisdales' claim against it was barred by the statute of limitations. Following the exchange of briefs and a hearing, the district court granted ITW's motion. The Tisdales dismissed their claims against the other defendants and appeal. ©

STANDARD OF REVIEW

T4 Although ITW filed a motion to «dismiss, the Tisdales attached an affidavit to their supplemental response. As the affidavit was not excluded by the trial court, we treat ITW's motion as one for summary judgment. 12 O.S. Supp.2002 § 2012(B); see also Kang v. Kang, 2000 OK CIV APP 89, 18, 11 P.3d 218, 219. "Summary judgment is proper only when the pleadings, affidavits, depositions, admissions or other evidentiary materials establish that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Davis v. Leitner, 1989 OK 146, ¶ 9, 782 P.2d 924, 926. In reviewing the grant or denial of summary judgment, we must view all inferences and conclusions to be drawn from the evidentiary materials in a light most favorable to the party opposing the motion. Id. Although a trial court considers factual matters when deciding whether summary judgment is appropriate, its ultimate decision is purely legal: whether one party is entitled to judgment as a matter of law because there are no material disputed facts. Carmichael v. Beller, 1996 OK 48, ¶ 2, 914 P.2d 1051, 1053. Therefore, our standard of review on appeal is de novo. Id.

DISCUSSION

T5 There is no dispute that the Tisdales' amended petition was filed after the limitations period éxpired. See 12 0.9.2001 § 95(8). Their claim against ITW is timely only if the amended petition relates back to the date of the original petition.

An amendment of a pleading relates back to the date of the original pleading when:
*d ock
2. The claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading; or
3. The amendment changes the party or the naming of the party against whom a claim is asserted if paragraph 2 of this subsection is satisfied and, within the period provided by subsection I of Section 2004 of this title for service of the summons and petition, the party to be brought in by amendment:
a. Has received such notice of the institution of the action that he will not be prejudiced in maintaining his defense on the merits; and
b. Knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against him.

12 0.8.2001 § 2015(C).

1 6 Service of process must be made within 180 days of the filing of the petition. 12 0.8.2001 § 2004(I). The effect, when combined with section 2012(C)(8), is that a plaintiff seeking to have an amended petition naming a new or substituted party relate back to the date of the original petition must be able to show, at a minimum, that within 180 days of the filing of the original petition, the new party knew or should have known that "but for a mistake" concerning its identity, the claim would have been brought against it originally,. "New parties cannot be added by way of amendment after the statute of limitations has run unless the requirements of [12 0.8.2001 § 2015(C)] have been met." Bray v. Thomas Energy Sys., Inc., 1995 OK CIV APP 146, ¶ 3, 909 P.2d 1191, 1194.

T7 The Oklahoma Supreme Court has adopted the federal courts' construction of Rule 15(c) of the Federal Rules of Procedure, which is identical to section 2015(C). Dotson v. Rainbolt, 1995 OK 39, ¶ 14, 894 P.2d 1109, 1118. There are three conditions to the doe-trine of relation back:

(1) the plaintiff's claim against the newly-named defendant must have arisen "out of the conduct, transaction, or occurrence set forth ... in the original pleading," see 12 ©.S.2001 § 2015(C)(2);
(2) within 180 days of the filing of the original petition, the newly-named defendant must have "received such notice of the institution of the action that he will not be prejudiced in maintaining his defense on the merits," see 12 00.98.2001 § 2015(C)(8)(a); and
(3) within 180 days of the filing of the original petition, the newly-named defendant "knew or should have known that, but for a mistake concerning [his] identity," the action would have been brought against him originally, see 12 ©.S.2001 § 2015(C)B)(b).

Singletary v. Pa. Dep't of Corr. 266 F.3d 186, 194 (3d Cir.2001). All three conditions must be met before the amended petition can relate back to the filing date of the original petition.

T8 Whether the Tisdales' lack of knowledge of ITW's identity was a "mistake" becomes relevant only if there is an issue of fact as to whether, within 180 days of the filing of the original petition, ITW had some actual or imputed knowledge of the lawsuit and its possible role in it. The Tisdales submitted the affidavit of Mr. Tisdale's employer's attorney in the workers' compensation case. That affidavit states that ITW was contacted by a private investigator on the employer's behalf well before the 180-day time limit. The affidavit also states that the Tisdales' attorney was not informed of ITW's identity until after the conclusion of the workers' compensation claim. Viewing that affidavit and all possible inferences from it in the Tisdales' favor, Kang, 2000 OK CIV APP 89, 13, 11 P.3d at 219, we conclude that ITW may have known about the lawsuit and may have been aware that it was an intended target within the 180 days. This is an issue of material fact that precludes the entry of judgment as a matter of law.

T 9 The parties debate the meaning of two Oklahoma cases interpreting section 2012(C). The first, Dotson, 1995 OK. 89, 894 P.2d 1109, is of limited value here because it applies an earlier version of section 2012. See id. at 1 16 n. 5, 894 P.2d at 1118 n. 5. The second, Bray, 1995 OK CIV APP 146, 909 P.2d 1191, is somewhat more applicable since it analyzes the current version of section 2015(C). In Bray, the Court of Civil Appeals determined that the plaintiff had not made a "mistake," for the purposes of relation back, by simply failing to discover the names of the defendants within the statutory limitations period. Id. at T 11, 909 P.2d at 1195-96. We do not view Bray as determinative here, however, because the Tisdales tried without success to discover ITW's identity from the very firm now representing it.

' 10 Certainly, "the bulk of authority from [federal] Courts of Appeals takes the position that the amendment of a 'John Doe' complaint-ie., the substituting of real names for 'John Doesg' or 'Unknown Persons' named in an original complaint-does not meet the 'but for a mistake' requirement." Singletary, 266 F.3d at 200. However, the combination here of (1) the Tisdales' unsuccessful attempts to discover ITW's name from attorneys who apparently knew of and withheld that information, and (2) the fact that ITW is represented by the same firm which represented Mr. Tisdale's employer, creates issues of fact such that judgment as a matter of law was in error.

111 REVERSED AND REMANDED FOR FURTHER PROCEEDINGS.

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


author: CAROL M. HANSEN, Judge.

text:
    2003 OK CIV APP 85
    Milford BURGESS, Plaintiff/Appellant, and Ida Burgess, Plaintiff, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant/Appellee, and Tommy Ray Lepley, an individual, Defendant.
    No. 99,431.
    Court of Civil Appeals of Oklahoma, Division No. 1.
    Aug. 8, 2003.
    Dale Warner, Tulsa, OK, for Plaintiff/Appellant.
    William F. Smith, Gladd & Smith, Tulsa, OK, for Defendant/Appellee.
   Opinion by

CAROL M. HANSEN, Judge.

T1 In this personal injury action, Appellant, Milford Burgess (Burgess) , appeals from summary judgment in favor of Appel-lee, State Farm Mutual Automobile Insurance Company (State Farm), from whom Burgess was seeking payment under uninsured motorist (UM) coverage. We hold the trial court correctly applied the rule of lex loci contractus to find no available UM coverage under State Farm's Kansas policies issued to Burgess.

T2 The dispositive facts were stipulated. Burgess and his wife Ida were injured in Tulsa while riding in a vehicle owned and driven by their daughter, Carol Wilson (Wilson). Wilson's vehicle was struck by a vehicle driven by Defendant Tommy Ray Lepley (Lepley), who was at the time speeding and intoxicated. The accident was solely Lep-ley's fault. Burgess was hospitalized in Tulsa for a month, incurring medical expenses exceeding $40,000.00. At the time, Burgess was a resident of Kansas. Wilson and Lep-ley were residents of Oklahoma.

T3 Burgess had UM coverage with State Farm on two separate Kansas policies, each in the amount of $100,000.00. These policies were issued to Burgess as a Kansas resident for vehicles garaged there. Lepley's Oklahoma vehicle insurance provided $100,000.00 liability coverage, which was paid to Burgess in settlement of his claims against Lepley. Wilson's Oklahoma UM coverage, with State Farm, was $10,000.00, which was also paid to Burgess. Burgess' damages, though not finally determined, exceeded the total of Lep-ley's liability and Wilson's UM coverages.

[ 4 The parties further stipulated that Burgess' Kansas policies provided that the UM coverage would not "stack", that is, the policy limits could not be added or combined, regardless of the number of vehicles involved or total amount of coverage for all the vehicles listed under a policy, or policies, to determine the limit of coverage. See, Herren v. Farm Bureau. Mut. Ins. Co., 2001 OK CIV APP 82, 26 P.3d 120. Burgess' policies also provided that the UM coverage would be reduced by the amount paid or payable by the tortfeasor. Each of these provisions is consistent with Kansas statutes.

15 In its Motion for Summary Judgment, State Farm argued that the net result of these policy provisions was that UM coverage was not available under Burgess' policies. State Farm reasoned that because the policies do not stack, only one $100,000.00 UM coverage limit was available to Burgess. Further, State Farm argues, this one available $100,000.00 limit is entirely set off by the $100,000.00 liability payment received from the tortfeasor, Lepley. The net effect according to State Farm's position is zero coverage under Burgess' Kansas policies.

16 Burgess countered that the Kansas anti-stacking law was contrary to Oklahoma public policy, citing Bohannan v. Allstate Ins. Co., 1991 OK 64, 820 P.2d 787, and should be unenforceable here. The trial court disagreed and granted summary judgment in favor of State Farm. Burgess appeals from that judgment.

T7 Both Burgess and State Farm cited Bohannan, and Herren, supra, in support of their requests for summary judgment. In Bohannan, a matter certified to the Oklahoma Supreme Court by the Tenth Circuit Court of Appeals, the facts are very similar to those here. There, Bohannan, a California resident was injured in a vehicle accident [a] in Oklahoma, [b] while a passenger in a vehicle owned and driven by an Oklahoma resident, and [c] due entirely to the fault of an Oklahoma resident.

18 As here, Bohannan settled for the liability limits of the tortfeasor's policy and received the UM limits of the Oklahoma policy covering the vehicle in which she was riding. Bohannan had UM coverage under an Allstate Insurance Company California policy. Alistate denied Bohannan's UM claim, asserting under California law it could subtract the amount of the Oklahoma Hability and UM payments, reducing its UM liability to zero.

19 The question certified was whether California or Oklahoma law determined the application and effect of the UM provisions of the California policy. The Oklahoma Supreme Court determined it would "remain aligned with those states that continue to follow the lex loci contractus rule", but modified the rule as follows:

The validity, interpretation, application and effect of the provisions of a motor vehicle insurance contract should be determined in accordance with laws of the state in which the contract was made, unless those provisions are contrary to the public policy of Oklahoma, or unless the facts demonstrate that another jurisdiction has the most significant relationship with the subject matter and the parties.

1 10 Applying the foregoing standard, the Bohannan Court determined that application of California's non-stacking or set-off law to reduce the California UM coverage, by the amount of the Oklahoma UM coverage, would deny Bohannan the realization of the benefits as a first party insured under the Oklahoma insurance contract, and would allow the California insurer a windfall. The Court concluded such result would "offend the legislative policy expressed in [86 0.8. 2001] § 3636, which allows stacking and bars set-off for payments from the tortfeasor. The Court summarized:

Thus, any provision in the California UM contract which prohibits stacking of Oklahoma UM coverage with the California coverage or which allows Oklahoma UM benefits to be a credit or set off against the UM benefits under the California contract violates Oklahoma public policy and is unenforceable in an Oklahoma forum.

11 Burgess concedes the $100,000.00 payment under Lepley's Oklahoma liability coverage may be set-off against the Kansas UM coverage under Bohannan. The Court there found such set-off was not precluded under Oklahoma law and therefore did not offend Oklahoma public policy. Burgess, however, asserts prohibiting stacking or allowing a credit against Oklahoma UM benefits is "problematical". While we agree, the ultimate facts here, while similar, are distinguishable from those in Bohannan.

112 In Bohannan, Allstate refused to stack its California UM benefits from a single policy with the Oklahoma UM benefits. The Court there found this was antithetical to the purpose of Oklahoma's UM law, particularly § 3686, which is to "assure each person the contracted coverage for personal injury damages caused by a financially irresponsible, tortious motorist for each premium paid. Bohannan, 820 P.2d at 792.

{13 In the matter before us, however, State Farm's refusal to stack UM benefits did not implicate Oklahoma UM coverage. Rather, the non-stacking provision was applied to two Kansas policies. The premium for those Kansas policies was determined in accordance with Kansas anti-stacking laws. See, Bohanman at 798. The anti-stacking provision, under the stipulated facts here, did not offend Oklahoma's public policy as expressed in § 3636.

14 Similarly, State Farm set off the allowable $100,000.00 UM limit against Lep-ley's $100,000.00 liability coverage, and not against Wilson's $10,000.00 UM coverage. As noted above, Burgess concedes setting off the California UM coverage against Oklahoma liability coverage was expressly approved in Bohannan. Bohannan provides no relief for Burgess.

{15 Herren is equally unsupportive of Burgess' position. There, the injured plaintiff, Herren, was an Oklahoma resident at the time she was injured in a vehicular accident in Miami, Oklahoma. . She was insured under a Missouri policy issued while she was resident there, and four Kansas policies issued while her husband was resident in Kansas. She was not insured under any Oklahoma policy.

'[ 16 Under the Missouri policy, UM coverage was available only if the tortfeasor had no liability coverage, or if the coverage was less than the minimum required by law. The tortfeasor in Herren did have the minimum liability coverage. As here, the Kansas policies provided they could not be stacked, and also that UM coverage would be available only if the tortfeasor's lability coverage was less than the UM coverage of the policy. Without stacking, the tortfeasor's Hability coverage was equal to each of the Kansas policies issued to Herren's husband. The trial court granted summary judgment in favor of both insurers. On appeal Herren argued this was error in that exceptions to the lex loci contractus rule were applicable.

{17 After discussing the facts and holding in Bohannan, the Herren Court held:

Because Joyce Herren was not an insured under any Oklahoma [UM] coverage, application of the Kansas and Missouri provisions barring [UM] coverage could not affect [UM] coverage as it did in Bokhonnan. Thus, as in Bohannan, there is no violation of Oklahoma public policy as expressed in § 3636.

118 Here, while Burgess was an insured under Oklahoma UM coverage, State Farm's refusal to stack coverage and its set off against Oklahoma liability benefits did not deny Burgess any Oklahoma benefits contrary to Bohannan. We perceive no violation of Oklahoma public policy. As the Court of Civil Appeals noted in Herren, at 123:

A conflict with Oklahoma law is not equivalent to a violation of Oklahoma public policy. ... under Bokhannan the public policy exeeption may be invoked only where the other state's laws [1] violated a "clearly expressed" public policy intended to apply to insurance policies effective in Oklahoma, or [2] would effectively deprive the insured of benefits bargained for under an Oklahoma insurance policy. Neither cireum-stance is present here. (Citations omitted).

{19 We hold there is no basis for an exception to the lex loci contractus under the facts now before us. In the absence of evidence establishing the Kansas policies provided for a place of performance, we interpret the contracts according to the law and usage of the place where they were made, that is, Kansas. See, Herren, 26 P.3d at 122; 15 0.9.2001 § 162. Under Kansas law, UM benefits from the two Kansas policies may not be stacked and the Kansas UM benefits may be set off against the Oklahoma liability coverage. There was no UM coverage available from Burgess' Kansas policies. The trial court's judgment is accordingly AFFIRMED.

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

      . Plaintiff Ida Burgess' case was bifurcated. She received a judgment of $40,000.00 against Defendant Tommy Lepley. Neither are directly involved as parties to this appeal.

      . The appeal is submitted without appellate briefing in accordance with the accelerated procedure under Rule 1.36, Oklahoma Supreme Court Rules, 12 0.$.2001, Ch.15, App.

      . See, K.S.A. § 40-284(b) & (d).

      . This rule is "used sometimes to denote the law of the place where the contract is made, and at - other times to denote the law by which the contract is to be governed (.e. place of its performance)." Black's Law Dictionary 911 (6th. ed.1990); Herren, 26 P.3d at 122. The rule is codified in Oklahoma at 15 0.$.2001 § 162.


author: LARRY JOPLIN, Chief Judge.

text:
    2003 OK CIV APP 79
    BURLINGTON NORTHERN AND SANTA FE RAILWAY COMPANY, Plaintiff/Appellant, v. BRUCE WILLEY TRUCKING and Great West Casualty Company, Defendants/Appellees.
    No. 97,902.
    Court of Civil Appeals of Oklahoma, Division No. 3.
    Aug. 22, 2003.

      Roberta Browning Fields, Hugh D. Rice, Rainey, Ross, Rice & Binns, Oklahoma City, OK, for Appellant.
    Robert B. Mills, Dan K. Jones, The Mills Law Firm, Oklahoma City, OK, for Appel-lees.
   Opinion by

LARRY JOPLIN, Chief Judge.

T1 Plaintiff/Appellant Burlington Northern and Santa Fe Railway Company (Railway) seeks review of the trial court's order denying its motion for new trial after a jury verdict for Defendants/Appellees Bruce Wil-ley Trucking and Great West Casualty Company (Trucker) on the parties' claims and counterclaims to recover damages arising from a collision at a railroad crossing. In this appeal, Railway complains the trial court erred in denying its motion for new trial after improper instruction of the jury. Haying reviewed the record, we hold the trial court indeed erred in instructing the jury and should have granted the motion for new trial, The order of the trial court should therefore be reversed and the cause remanded.

1 2 Trucker's semi-tractor truck with grain trailer attached became stuck in a drainage ditch, partially blocking the Maple Street railroad crossing in Carrier, Oklahoma. Railway's on-coming train could not stop, and collided with the truck.

13 Railway commenced the instant suit against Trucker to recover damages for the repair and loss of use of its train engine. Trucker counter-claimed for damages to its tractor-trailer.

1 4 At trial, Railway adduced evidence that Trucker gave no warning by sign, flare or other device to alert the on-coming train of the impediment, and argued its train crew acted as quickly as possible to avoid the accident. Trucker adduced evidence arguably showing that the train erew could see the impediment in time to stop but delayed braking until too late.

15 Upon conclusion of the evidence, and over Railway's objection, the trial court instructed the jury on burden of proof, giving both a "greater weight of the evidence" instruction and a "clear and convincing evidence" instruction. Over Railway's objection, the trial court also instructed that a train and a truck are both "vehicles," the operators of which are subject to the same duties and obligations imposed by the "rules of the road," and refused to instruct as Railway requested concerning the duty of a train operator The trial court further refused Railway's requested jury instructions concerning Trucker's legal duty to warn of the stopped truck as required by state and federal law.

T6 On the instructions given, the jury returned a verdict for Trucker on both Railway's claims and Trucker's counterclaims. Railway filed a motion for new trial, alleging error in instruction of the jury. The trial court denied the motion for new trial, and Railway appeals.

17 "A trial court must instruct on issues raised by the pleadings and supported by the evidence." Nail By and Through Nail v. Oklahoma Children's Memorial Hosp., 1985 OK 101, 19, 710 P.2d 755, 758. Where "it clearly appears that the instrue-tions given or refus[ed] either caused a miscarriage of justice or led to a different verdict than would have been rendered but for this alleged error," the judgment should be reversed. Nail 1985 OK 101, § 11, 710 P.2d 755, 759.

T8 In its first proposition, Railway complains the trial court erred in giving both a "greater-weight-of-the-evidence" and "clear-and-convincing-evidence" instruction. Here, Railway argues that when these conflicting instructions are read together with Instruction No. 14 on the elements of a negligence claim, and Instruction 29 concerning the "greater-weight-of-the-evidence" burden of proof to recover lost profits, the jury was certainly mislead to believe that Railway had to prove its negligence claim by "clear and convincing" evidence. Eagle-Picher Min. & Smelting Co. v. Layton, 1988 OK 222, 117, 77 P.2d 1137, 1189. In the present case, because none of the claims or counterclaims required proof by "clear and convincing" evidence, we hold such an instruction could have only confused the jury, and should not have been given.

19 In its second proposition, Railway complains of the trial court's instructions defining both a train and a truck as a "vehicle," the operators of which are held to the same duties and obligations by the "rules of the road." Here, Railway first points out that the statutory definitions of "vehicle," "railroad" and "railroad train" are specifically expressed in mutually exclusive terms. Railway secondly points out that the "rules of the road" for "vehicles" approaching an "intersection" and "railroad crossing" are completely different from the rules for operators of trains approaching a railroad crossing.

%10 "[The operator of the train can assume the vehicle will obey the law." Hamilton v. Allen, 1998 OK 46, ¶ 13, 852 P.2d 697, 700. A train "engineer has a right to assume that one approaching the crossing has not omitted ordinary precautions imposed by law and will stop in time to avoid injury." Jester v. St. Louis-San Francisco Ry. Co., 1965 OK 180, ¶ 13, 413 P.2d 589, 541-542. Oklahoma law clearly imposes on the operator of a train the duty to stop only upon observation of an obstruction, whether human or vehicular, when the train operator knows or should know that the vehicle or person will not clear the crossing in time to avoid the collision. See, eg., Missouri Pac. R. Co. v. Gordon, 1939 OK 322, ¶ 24, 98 P.2d 39, 43; Missouri, O. & G. Ry. Co. v. Lee, 1918 OK 551, ¶ 28, 175 P. 867, 872.

The duty of a motorist at a railroad crossing is different; "[A] vehicle nearing a railroad crossing must yield the right-of-way to an approaching train[.]" Hamilton, 19983 OK 46, T 13, 852 P.2d at 700. A standard "lookout" instruction "does not adequately explain the duties of a motorist at a railroad crossing" where the motorist "has a continuing duty to remain alert at all times, including the time the tractor trailer remained on the tracks, until he reached a place of safety beyond the tracks." Moore v. Burlington Northern R. Co., 2002 OK CIV APP 23, 113, 41 P.3d 1029, 1033. Failure to so instruct constitutes prejudicial error. Id. We therefore hold the trial court erred in giving the "vehicle" instructions as applicable to Railway, and in failing to give Railway's requested instructions on-point.

112 In its third proposition, Railway complains of the trial court's refusal to instruct as requested concerning Trucker's federal and state legal duties to carry and deploy devices to warn of its stopped truck. Under the circumstances of this case, we agree. The evidence clearly showed the truck was stuck at the crossing for a sufficient time to permit placement of the mandated warning devices. Given the train operators' legally-permitted assumption that the truck would clear the crossing in time to avoid a collision, we believe a jury, if properly instructed in this respect, might well conclude that had Trucker not failed to deploy warning devices, the accident could have been avoided by giving the train operators notice of the immovable truck in time to stop.

T13 The order of the trial court denying Railway's motion for new trial is therefore REVERSED and the cause REMANDED for new trial.

ADAMS, P.J., and BUETTUNER, J., concur.

      . The trial court's Instruction Number 6 provided:
      In a civil lawsuit, such as this one, the law provides which party is to prove certain things to you. This is called "Burden of Proof."
      When I say that a party has the burden of proof on any proposition by the greater weight of the evidence, or use the expression "if you find," or "if you decide," I mean you must be persuaded, considering all the evidence in the case, that the proposition on which such party has the burden of proof is more probably true than not true. The greater weight of the evidence does not mean the greater number of witnesses testifying to a fact, but means what seems to you more convincing and more probably true.
      A party who seeks to recover on a claim [or a counterclaim], or a party who raises an affirmative defense has the burden to prove all the elements of the claim or defense. In deciding whether a party has met the burden of proof, you are to take into account all the evidence, whether offered by that party or any other party.
      OUJT 3.1

      , The trial court's Instruction No. 7 provided:
      When I say that a party has the burden of proving any proposition by clear and convincing evidence, I mean that you must be persuaded, considering all the evidence in the case, that the proposition on which the party has the burden of proof is highly probable and free from serious doubt.
      OUJI 3.2

      . The trial court's Instructions Numbers 24-28 provided:
      INSTRUCTION NUMBER 24
      The operator of a vehicle having the right-of-way must exercise ordinary care and operate his vehicle with due regard to existing conditions. He is entitled to assume that his right-of-way will be respected, until he has warning, notice or knowledge to the contrary. If the situation is such as to indicate to a reasonably careful person in his position that to proceed would probably result in a collision, then he should exercise ordinary care to prevent an accident, even to the extent of yielding his right-of-way.
      OUJI 10.3
      INSTRUCTION NUMBER 25
      A person operating a vehicle has the duty to use ordinary care for his own safety. If hazardous conditions exist of which he knows or in the use of ordinary care should know, he has the duty to use the care required by such conditions.
      OUJI 11.2
      INSTRUCTION NUMBER 26
      It is the duty of the operator of a vehicle to use ordinary care to prevent damage to themselves or other persons.
      OUJI 10.1
      INSTRUCTION NUMBER 27
      It is the duty of every operator of a vehicle to exercise ordinary care in keeping a lookout consistent with the safety of others.
      OUJI 10.2
      INSTRUCTION NUMBER 28
      You are instructed that as used in these instructions a train locomotive and a truck are vehicles.

      . Railway's Requested Instructions Numbers 2-4 provided:
      REQUESTED JURY INSTRUCTION NO. 2
      The operator of a train has no duty to stop or slow the train when a truck is approaching, driving over or sitting on a railroad crossing. The duty of the train operator to attempt to stop arises only if the train operator determines that the truck will not or cannot clear the train's right-of-way in time to avoid a collision. Authority:
      Jester v. St. Louis-San Francisco Railroad Co., 413 P.2d 539 (Okla.1966) Missouri Pac. R. Co. v. Gordon, 186 Okla. 424, 98 P.2d 39, 43 (1940).
      REQUESTED JURY INSTRUCTION NO. 3
      Because trains have the right-of-way at railroad crossings, the operator of a train has the right to proceed and must only attempt to stop a train when the operator determines that a truck or other vehicle will not, or cannot, clear the right-of-way. Authority:
      Jester v. St. Louis-San Francisco Railroad Co., 413 P.2d 539 (Okla.1966); Missouri Pac. R. Co. v. Gordon, 186 Okla. 424, 98 P.2d 39, 43 (1940).
      REQUESTED JURY INSTRUCTION NO. 4
      Trains have the right-of-way at railroad crossings. The only duty a railroad owes to a trespasser is to refrain from willfully or wantonly injuring him.
      Authority:
      Hamilton v. Allen, 852 P.2d 697, 700 (Okla.1993); Jester v. St. Louis-San Francisco Railroad Co., 413 P.2d 539 (Okla.1966); Guilfoyle v. Missouri, Kansas, and Texas R. Co., 812 F.2d 1290, 1292 (10th Cir.1987).

      . On this issue, Railway requested the following instructions:
      REQUESTED JURY INSTRUCTION NO. 19
      There was in force and effect at the time of the occurrence federal regulations requiring that trucks such as that involved in the occurrence be equipped with warning devices in the event that they become stopped. The warning devices required under these federal regulations are 1) three bidirectional emergency reflective triangles; or 2) at least 6 fusees or 3 liquid burning flares. At the time of this occurrence federal law prohibited driving a motor vehicle unless the driver was satisfied that this emergency equipment was in place in the truck and ready for use. AUTHORITY:
      49 CFR Ch. III, § 392.8 (Emergency Equipment, Inspection and Use) and § 393.95 (Emergency Equipment on All Power Units)
      REQUESTED JURY INSTRUCTION NO. 20
      There was in force and effect at the time of the occurrence the following federal regulation: 49 CFR § 392.22 Emergency Signals; Stopped Commercial Vehicles, which provides, in relevant part:
      Hazard warning signal flashers. Whenever a commercial motor vehicle is stopped upon the traveled portion of a highway or shoulder of a highway for any cause other than necessary traffic stops, the driver of the stopped commercial motor vehicle shall immediately activate the vehicular hazard warning signal flashers and continue the flashing until the driver places the warning devices [reflective triangles or (flares/fusees)] required by paragraph (b) of this section. ... The flashing lights may be used at other times while a commercial motor vehicle is stopped in addition to, but not in lieu of, the warning devices....
      You are instructed that "highway" is defined as "any road, street or way, whether on public or private property, open to public travel."
      AUTHORITY:
      49 CFR§ 392.22
      49 CFR§ 390.5
      REQUESTED JURY INSTRUCTION NO. 21
      There was in force and effect in the State of Oklahoma at the time of the occurrence the following statute. Title 47 (Motor Vehicles) § 11-1003, Stopping, standing or parking prohibited in specified places, which provides, in part,
      A. No persons shall stop, stand or park a vehicle, except when necessary to avoid conflict with other traffic or in compliance with law or the directions of a police officer or traffic-control device, in any of the following places:
      9. Within fifty (50) feet of the nearest rail of a railroad crossing.

      AUTHORITY:
      47 O.S.§ 11-1003(A)(9).
      REQUESTED JURY INSTRUCTION NO. 22
      In addition to the duty to exercise ordinary care, there are also duties imposed by statutes. If you find that a person violated the following statute and the violation was a direct cause of the injury, then such violation in and of itself would make such person negligent. There was in force and effect in Oklahoma at the time of the occurrence the following statute: Title 47 (Motor Vehicles) § 11-1003, Stopping, standing or parking prohibited in specified places which provides, in relevant part:
      A. No persons shall stop, stand or park a vehicle, except when necessary to avoid conflict with other traffic or in compliance with law or the directions of a police officer or traffic-control device, in any of the following places:
      9. Within fifty (50) feet of the nearest rail of a railroad crossing.

      AUTHORITY:
      47 O.S.§ 11-1003(A)(9).
      REQUESTED JURY INSTRUCTION NO. 23
      There was in force and effect in the State of Oklahoma at the time of the occurrence, the following statute: Title 47 (Motor Vehicles) § 12-407, Certain Vehicles to Carry Flares or Other Warning Devices-Exceptions which provides that any truck operated outside of municipal limits must carry certain emergency equipment:
      1. At least three flares, or three electric lanterns, each of which shall be capable of being seen and distinguished at a distance of five hundred (500) feet under normal atmospheric conditions at night time.
      2. At least three red burning fusees, unless red electric lanterns are carried....
      3. At least three red cloth flags, not less than twelve (12) inches square, with standards to support same.
      ... Or three portable reflector units on standards of a type approved by the Department [of Transportation].

        AUTHORITY:
      47 O.S.§ 12-407.
      REQUESTED JURY INSTRUCTION NO. 24
      In Oklahoma, the driver of a parked vehicle constituting a source of danger to other vehicles is generally bound to exercise ordinary or reasonable care to give adequate warning or notice to approaching traffic, and the duty exists regardless of the reason for stopping. The driver of the stopped vehicle must take precautions reasonably calculated to prevent injury, whether by use of lights, flags, guards, or other practical means. A failure to give such warning may constitute negligence, even in the absence of any specific duty imposed by governmental regulation.
      Authority:
      Dirickson v. Mings, 910 P.2d 1015, 1018 (Okla.1996).

      . Instruction Number 14 provided:
      A party claiming damages has the burden of proving each of the following propositions:
      First, that they have sustained damages;
      Second, that the party from they seeks [sic] to recover was negligent;
      Third, that such negligence was a direct cause of the damage sustained by the claiming party.
      OUJI 9.1.

      . " Conflicting or contradictory instructions furnish no correct guide to the jury, and the giving thereof is erroneous. Instructions of this character are misleading, as the jury are not supposed to know when the judge states the law correctly and when incorrectly, and they should not be left to reconcile conflicting principles of law. The giving of contradictory instructions is ordinarily held ground for reversal. The error in giving incorrect instructions is not cured by giving correct instructions in conflict with them.' (Citations omitted.)

      . Cf, 47 O.S. § 1-186 (defining "vehicle" as "[elvery device in, upon or by which any person or property is or may be transported or drawn upon a highway, excepting devices moved by human power or used exclusively upon stationary rails or tracks ..."), with, 47 O.S. § 1-149 (defining "railroad" as "[a] carrier of persons or property upon cars operated upon stationary rails"); 47 O.S. § 1-151 (defining "railroad train" as "[al steam engine, diesel, electric or other motor, with or without cars coupled thereto, operated upon rails.") (Emphasis added.)

      . Cf, 47 O.S. § 11-403(d) (vehicle right-of-way at an intersection); with, 47 0.8. § 11-701 (vehicle must yield right-of-way to oncoming train at railroad crossing).

      . The "mere discovery of an object upon the track, not discernible to be a human being, does not impose upon the employees in charge of the train the duty to stop or lessen the speed of the train, unless the circumstances be such as to lead a reasonably prudent man to believe that the object was probably a human being." (Emphasis added.)

      . "[The doctrine of the last clear chance recognizes primary negligence on the part of the plaintiff, but that such negligence has ceased, and after such negligence has ceased that his condition of peril has been discovered by the defendant, and, notwithstanding the prior negligence of the plaintiff, the defendant might, by the exercise of ordinary care, have refrained from inflicting any injury on plaintiff. When these conditions exist the courts universally permit the plaintiff to recover."

      . "[Thhe trial court gave Instruction # 10 which stated, 'It is the duty of every operator of a vehicle to exercise ordinary care in keeping a lookout consistent with the safety of other persons.' This instruction, given often in auto collision cases, does not adequately explain the duties of a motorist at a railroad crossing. Bailey had a continuing duty to remain alert at all times, including the time the tractor trailer remained on the tracks, until he reached a place of safety beyond the tracks. This omission in instructing on the motorist's duty was prejudicial to Plaintiff,. ..."


author: JERRY L. GOODMAN, Presiding Judge.

text:
    2003 OK CIV APP 76
    In The Matter of the Application for a PERMIT TO DEVELOP AN ABSTRACT PLANT OF LeFLORE TITLE COMPANY, INC., LeFlore Title Company, Inc., Petitioner/Appellee, v. Clifton Scott, Auditor and Inspector for the State of Oklahoma; and Adams Abstract Company, Inc., Respondents/Appellants.
    No. 96,948.
    Court of Civil Appeals of Oklahoma, Division No. 4.
    Aug. 26, 2003.
    Michael J. Masterson, Wilburn & Master-son, Tulsa, OK, for Appellee.
    Seott D. Boughton, Assistant Attorney General, Oklahoma City, OK, for Appellant, Clifton Scott, Auditor and Inspector for the State of Oklahoma.
    Joe M. Fears, Barber & Bartz, Tulsa, OK, for Appellant, Adams Abstract Company, Inc.
   Opinion by

JERRY L. GOODMAN, Presiding Judge.

T1 State Auditor and Inspector Clifton Scott and Adams Abstract Company appeal the trial court's October 9, 2001, decision ordering the State Auditor to issue a permit to LeFlore Title Company for construction of an abstract plant. Because the trial court reached the correct result in requiring the issuance of the permit, we affirm.

BACKGROUND-THE OKLAHOMA ABSTRACTORS LAW

12 Anyone wishing to produce abstracts and otherwise engage in the business of abstracting in Oklahoma must obtain authorization to do so pursuant to the Oklahoma Ab-stractors Law, 74 0.9.2001 and Supp.2002 §§ 227.10 through 227.30. Two separate authorizations are required: a permit, which is defined as the authorization to build an abstract plant, see § 227.11(4); and a certificate of authority, which is defined as the authorization to engage in the business of abstracting, see § 227.11(8). Authorization in both cases comes solely from the State Auditor and Inspector. See § 227.12(A).

T3 An abstract plant is a set of records with entries made of all documents filed in the offices of the county clerk and court clerk which legally impart constructive notice of matters affecting title to, interest in, and encumbrances upon real property within that particular county. See § 227.11(2); Abstracts of Oklahoma, Inc. v. Payne County Title Co., 1992 OK 18, n. 1, 825 P.2d 1834. To develop an abstract plant requires the permit, which involves submitting a form, a fee, and a bond. See § 227.21, To engage in the business of abstracting requires a certificate of authority, which involves submitting a separate form, fee, and bond. See § 227.14(A).

T4 The permit must be obtained first. Arbuckle Abstract Co. v. Scott, 1998 OK 125, ¶ 12, 975 P.2d 879, 885. It can be renewed annually where the permit holder has not completed development of an abstract plant. See § 224.21. After completion of the abstract plant and compliance with the statutes, the permit holder can obtain the certificate of authority needed to engage in the business of abstracting. Id.

PROCEDURAL HISTORY

15 LeFlore Title filed an application with the State Auditor for a permit to build an abstract plant in LeFlore County. Adams Abstract, which holds a certificate of authority and engages in the business of abstracting in that county, filed an objection.

16 Two issues developed over the course of the proceedings. The first was whether the county court clerk's books and records were sufficiently complete to allow LeFlore Title to build the abstract plant. Adams Abstract asserted they were not, due to a number of missing files and to conditions at a former hotel where a number of files were stored. LeFlore Title disagreed, asserting that the court clerk maintained listings and indexes for all court orders and every instrument in any missing file.

17 The second issue was whether the first issue needed to be determined at this stage of the proceedings or in the second, certificating stage of the administrative process. Initially, a panel appointed by the State Auditor found that the clerk's records were not so defective as to preclude the issuance of the permit, and recommended the permit be granted. The State Auditor agreed and granted the permit, but then granted a rehearing and appointed a second panel.

8 This second panel found that it was not necessary to resolve the issue of the records completeness, because the statute dealing with the permit had no such requirement. The panel reasoned that the two-step process for ultimately obtaining authority to issue abstracts does not involve the issue of completeness until the applicant reaches the second stage, where the application for the certificate of authority is made. The panel recommended the permit be granted, but with cautionary language that no decision as to the certificate of authority was being made and that should LeFlore Title proceed to build an abstract plant, "it does so at its own risk."

T9 The State Auditor disagreed with the panel and denied the permit application. The Auditor based his decision on his conclusion that the court clerk's records and files were incomplete.

10 LeFlore Title then filed a petition for review in district court. Following a hearing, the trial court reversed the State Auditor's decision and ordered him to issue the permit. The trial court found that the State Auditor's finding that the clerk's records were incomplete was clearly erroneous. From the trial court's judgment, the State Auditor and Adams Abstract appeal.

STANDARD OF REVIEW

T11 The same standards of review apply to both the trial court and the appellate courts when making determinations on appeal from an administrative agency ruling. Seely v. Okla. Horse Racing Comm'n, 1987 OK CIV APP 61, ¶ 10, 748 P.2d 685, 689-90. An agency's adjudicative order will be affirmed if the record contains substantial evidence in support of the facts upon which the decision is based, and if the order is otherwise free of error. City of Hugo v. State ex rel. Pub. Employees Relations Bd., 1994 OK 134, ¶ 9, 886 P.2d 485, 490. However, an administrative order is subject to reversal if an appealing party's substantial rights are prejudiced because the agency's decision is entered in excess of statutory authority or jurisdiction, or if an order is entered based on an error of law. Title 75 0.8.2001 § 322(1)(b) and (d); City of Tulsa v. State ex rel. Pub. Employees Relations Bd., 1998 OK 92, ¶ 12, 967 P.2d 1214.

ANALYSIS

{12 For the following reasons, we agree with the conclusion reached by the second panel that the sufficiency of the court clerk's records is not a factor in determining whether to issue a permit. It certainly is a factor regarding issuance of a certificate of authority, but that is a different matter. Therefore, because the State Auditor's order was based on an error of law, the trial court's decision reversing the State Auditor's order shall be affirmed. Though the trial court did not reach its result based on this reason, the matter was raised below, and the appellants do not assert it is improper for us to consider it here.

13 To obtain a certificate of authority is to complete the second step in the process of authorization to engage in the business of abstracting. Section 227.14 sets out the procedure for doing so. It is entitled, "Application for certificate of authority-Fee-Bond-Proof required." Subsection (A) requires the application to contain "such information as may be necessary to determine whether or not the applicant has complied with the provisions of the Oklahoma Abstrac-tors Law."

114 That information includes this requirement set out in subsection (B):

The applicant shall furnish proof to the State Auditor and Inspector that there is an abstract plant available for use for each county for which abstracts will be prepared ....

115 Section 227.14, then, clearly contemplates that it is at this point-when the application for the certificate of authority is pending-that the matter of whether an abstract plant is available should be determined by the State Auditor. Whether the court records are sufficiently complete is a factor to consider in making that determination.

16 Obviously, there can be no such requirement in obtaining the permit, because the permit is necessary before the applicant can attempt to develop the abstract plant. Section 227.21, which sets out the process for obtaining a permit, is entitled "Development of abstract plant-Permit." The only language in this statute similar to § 227.14's language concerning compliance with the Oklahoma Abstractors Law is found in its concluding sentence, "The permit holder shall comply with the provisions of the Oklahoma Abstractors Law to obtain a certificate of authority after completion of the abstract plant." (Emphasis added.)

117 The Legislature chose to use the words "develop" regarding the permit and "complete" regarding the certificate of authority. The permit allows the applicant to develop the abstract plant. Only if the development is successful to the point of being complete can the applicant receive a certificate of authority. Simply put, this language indicates a permit is to be granted in order for the applicant to attempt to successfully develop an abstract plant. If the attempt fails and the plant is not developed to the point of completion-possibly due to the incompleteness of the county's records-then one of the requirements for obtaining the certificate of authority is not fulfilled. Whether it is fulfilled is to be determined in the context of obtaining the certificate, not obtaining the permit.

18 While there is no authority directly on point, there are several Oklahoma cases involving applicants in the process of obtaining authority to engage in the business of abstracting. In Arbuckle Abstract Co. v. Scott, 1998 OK 125, 975 P.2d 879, the Supreme Court noted that the State Auditor clearly possessed initial authority to consider the completeness of court records, though at what stage of the administrative process he could do so was not at issue.

119 In Abstracts of Oklahoma, Inc. v. Payne County Title Co., 1992 OK 18, 825 P.2d 1834, the State Auditor had granted the applicant a permit, and a competitor sought to revoke it. The State Auditor found that due to a 1894 courthouse fire, Payne County's offices did not contain all the entries for, or copies of, all documents and instruments affecting real property. The State Auditor then concluded that while he would not revoke the existing permit, he would not renew it nor would he grant a certificate of authority until the county's records were complete.

120 The trial court set aside the State Auditor's decision, and the Supreme Court affirmed on the grounds that the State Auditor's decision was premature. The Court noted that as long as applicants comply with the law, "they are entitled to continue compiling an abstract plant pursuant to a permit which has not expired or been revoked. When such compilation is completed, they may apply for a certificate of authority." Id. at ¶ 23, 825 P.2d at 1340. The Court concluded:

Although we do not at this time determine whether the missing records are grounds for refusing issuance of a certificate of authority, we hold that they are not grounds to refuse renewal of a permit to compile an abstract plant until [the applicant] applies for such renewal. Id. at 25, 825 P.2d at 1340.

€ 21 The Court did not reach the issue of whether the State Auditor could reject a permit application if he concluded the records were incomplete. It is possible to interpret the Court's language to mean he could do so when it came time for renewal, and thus could do so before initially granting a permit application. However, given the gist of the decision and the wording of the statutes, it seems most likely that in the instant case the Supreme Court would hold that the Legislature intended that the applicant be given a chance to develop the abstract plant, with the impact of missing records to be considered in determining whether the development successfully reached the point of completion. The sufficiency of the records is to be considered at that point, and not in determining whether to issue the permit.

CONCLUSION

122 We follow a long-standing rule that a correct decision arrived at on the basis of wrong reasons or an incorrect theory will not be reversed. State v. Landess, 1955 OK 148, 18, 298 P.2d 574, 577. The trial court reached the correct result in ordering the State Auditor to issue the permit to LeFlore Title Company, though not for the reason it gave. We express no opinion as to the reason given by the trial court, as it is unnecessary to do so at this stage of the proceedings.

23 AFFIRMED.

REIF, J., and RAPP, J., concur.


text:
    2003 OK CIV APP 82
    INTERNATIONAL CRYSTAL MANUFACTURING COMPANY and CNA Insurance Companies, Petitioners, v. Luvenia SHELTON and the Workers' Compensation Court, Respondents.
    No. 98,948.
    Court of Civil Appeals of Oklahoma, Division No. 4.
    Aug. 26, 2003.

      Angela Reinstein, Pierce Couch Hendrick-son Baysinger & Green, LLP. Oklahoma City, OK, for Petitioners.
    Walt Brune, Walt Brune, P.C., Ponea City, OK, and Sam Townley, Townley Law Group, Oklahoma City, OK, for Respondents.
   Opinion by

JERRY L. GOODMAN, Presiding Judge.

4 1 Employer, International Crystal Manufacturing Company, seeks review of the February 14, 2008, order of a three-judge panel affirming in part and modifying in part the trial court's October 7, 2002, order awarding workers' compensation benefits to Luvenia Shelton (Claimant). Based upon our review of the facts and applicable law, we sustain the order under review.

FACTS

12 Claimant was injured August 28, 1997. While working for Employer as an accounting manager, she walked into a glass door, striking her left atm and shoulder. Her arm and hand immediately contracted into a drawn, closed position, so that she was unable to hold papers or use her arm. One week later, without a return of the arm's full mobility, and with Claimant experiencing extreme pain, she sought treatment. Claimant was examined by a series of doctors and diagnosed with reflex sympathetic dystrophy (RSD).

T3 Following a hearing September 26, 2002, the trial court issued an order on October 7, 2002, finding Claimant had suffered injury to the left arm, left hand, and left shoulder, with subsequent RSD, and with psychological overlay. The trial court further found Claimant needed certain treatment modalities. A three-judge panel affirmed, except for certain modifications not at issue here. Employer seeks our review.

STANDARD OF REVIEW

{4 When we review the factual determinations of the Workers' Compensation Court, we apply the any-competent-evidence standard under which it is not our duty to weigh the evidence but, rather, to canvass the facts to determine whether the trial court's decision is supported by competent evidence. Hughes v. Cole Grain Co., 1998 OK 76, 964 P.2d 206, Parks v. Norman Mun. Hosp., 1984 OK 53, 684 P.2d 548.

ISSUES

1. Dorsal Column Stimulator and Morphine Pump

[ 5 The trial court's order states:

[12]-

THAT respondent's assertion that claimant's need for a dorsal column stimulator and for a morphine pump are [sic] not related to her accidental injury at respondent, are DENIED.

-[13}-

THAT respondent's assertion that certain medical treatment of the claimant, including the morphine pump, was unauthorized, is DENIED. The respondent did not authorize the treatment, but it was reasonable and necessary and is authorized by the Court.

-{14]-

THAT respondent shall provide the claimant with continuing prescription medication and maintenance of her dorsal column stimulator and morphine pump....

These portions of the order were affirmed by the three-judge panel.

16 Employer's first proposition of error is that there is no competent evidence in the record to support these findings. Employer claims the stimulator and pump were unrelated to this injury and were inserted to treat a different part of the body. We find no merit to this proposition of error.

T7 The extensive record reflects that Claimant was injured August 28, 1997, and within one week began experiencing pain. She began an extensive course of pain management treatment, and obtained some relief. She moved from Oklahoma to Arizona and, in 2001, began seeing Dr. Pattabi Kalyanam in Phoenix, who continued to treat her for pain, based upon his initial diagnosis of "left upper extremity complex regional pain syndrome (reflex sympathetic dystrophy.)" In December 2001, Dr. Kalyanam surgically inserted "trial epidural electrodes for spinal cord stimulation under fluoroscopy" which afforded Claimant some relief.

18 We next note Claimant's medical expert, Dr. Hugh McClure, opined in his deposition that the phrase "reflex sympathetic dystrophy" and "chronic pain syndrome" both refer to the same condition. The expert opined that Claimant's condition was directly related to, and caused by, "an obvious blow to the medial volar surface of the brachium, which would basically be directly over the nerve," occurring on August 28, 1997, the stipulated date of injury. In his March 26, 2002, report, the expert stated:

It is my opinion that the injury Ms. Shelton sustained on August 28, 1997, while working for International Crystal Mfg., was the direct causation of the injuries to her left arm, left shoulder and body as a whole due to the results of the reflex sympathetic dystrophy.... It is also my opinion that, secondary to the injury and the secondary pain from the injury, she is now suffering from a chronic pain syndrome....

Our review of the record reflects Claimant met her burden of proving a direct causal connection between the injury, the resulting chronic pain, and the necessity of the subsequent treatment modalities, including the surgical installation of the dorsal column stimulator and morphine pump. We find no merit to Employer's first proposition of error.

2. Unauthorized Medical Treatment

T9 Employer's second proposition of error is that despite being told by Employer's insurance carrier that it would not authorize additional medical treatment, Claimant proceeded with "unauthorized" treatments, including surgical insertion of the dorsal column stimulator and morphine pump. Employer's argument is essentially that the trial court has no authority to order payment for medical treatments, if an employer's insurance carrier has previously denied authorization for those treatments. Employer submits no legal authority for this position, and we decline to adopt it. It is ultimately the province of the trial court, after a review of all the facts and law, to determine what is and is not necessary, reasonable, and, by extension-authorized-treatment.

{10 The trial court's order, affirmed by the three-judge panel, found:

-[13]-

THAT respondent's assertion that certain medical treatment of the claimant, including the morphine pump, was unauthorized, is DENIED. The respondent did not authorize the treatment, but it was reasonable and necessary and is authorized by the Court.

{11 Again, our review of the extensive medical record submitted in this case supports the trial court's finding that the so-called "unauthorized" treatment was necessary and reasonable to treat the compensable injuries suffered by Claimant. Employer's reply brief states that:

[The claimant only argues that the medical testimony of Dr. McClure addresses the issue of whether this medical treatment was reasonable and necessary. This is completely incorrect. Again, nowhere in Dr. McClure's report is this issue addressed, period.

We find this statement wholly unsupported in the record and would refer Employer to Dr. McClure's March 26, 2002, report which states, in relevant part:

It is my opinion, due to the subjective and objective symptomatology ... this individual will be in need of continuing medical care and any prescription medication nee-essary to maintain or prevent any further deterioration of her present level of recovery.
She should be allowed to continue to see Dr. Kalyanum [sic] ... on at least a six to twelve times per year basis for follow-up examinations, treatment recommendations, and monitoring of her prescription medications.... It is further my opinion that she will be in need of any necessary durable medical equipment including a morphine pump and supplies....
oof ok
In my opinion, the patient will continue to need medical treatment and any preseription medication necessary to maintain or prevent any further deterioration of her present level of recovery....
It is further my opinion that she will be in meed of any necessary durable medical equipment, including a morphine pump and supplies. ... (Emphasis added.)

" 12 Though Dr. McClure's report does not contain the precise words "necessary and reasonable," the import of his opinion is inescapable. Presumably, if a medical expert opines that a patient "needs" treatment, that treatment is by definition, "necessary." Further, it seems clear to this court that if a physician deems continued treatment is needed or necessary, then such treatment must therefore be reasonable. We can think of no situation where a physician could ethically prescribe necessary, but unreasonable treatment, or for that matter, could prescribe reasonable, but unnecessary treatment. Employer's argument is without merit.

3. Sufficiency of Evidence

{13 Employer finally contends Dr. McClure's report is incompetent to support the trial court's finding that continued medical maintenance is required. Employer made a probative value objection to the report upon its submission into evidence. This objection was overruled by the trial court and the report was admitted. We find no merit to this proposition of error for the reasons set out above.

1 14 The February 14, 2008, order of the three-judge panel is sustained.

1 15 SUSTAINED.

REIF, J., and RAPP, J., concur.

      . Employer's brief in chief seems to suggest it is the Claimant's burden to prove that "medical treatment was authorized and reasonable and necessary." (Emphasis added) We are not aware of any authority that requires a claimant to prove the additional fact that the medical treatment she received was authorized by the insurance carrier before the carrier would be required to pay for it. Taking this statement to its logical conclusion, an insurance carrier which routinely denied all medical treatment to injured workers would never be required to pay for any treatment, since a claimant could never prove the medical care was authorized. The need for evidentiary hearings to compel payment of medical expenses would be obviated. In effect, the decision to pay medical expenses would be made not by the Workers' Compensation Court, but by an insurance adjuster.