author: HODGES, J.

text:
    2002 OK 27
    CARDIOVASCULAR SURGICAL SPECIALISTS, CORPORATION, Appellee, v. Robert B. MAMMANA, M.D., Appellant.
    No. 95738.
    Supreme Court of Oklahoma.
    April 9, 2002.
    Rehearing Denied Jan. 7, 2003.

      Reuben Davis, Gerald Hilsher, David J. Hyman, Boone, Smith, Davis, Hurst & Dick-man, Tulsa, OK, for Appellant.
    Brian J. Rayment, Kivell, Rayment, Francis, Coulson & Heath, Tulsa, OK, for Appel-lee.
   HODGES, J.

¶ 1 This matter was retained by this Court for resolution of the following issues: 1) Is this appeal moot? 2) Is the decision of the arbitration panel subject to judicial review? 3) Does the “non-compete” provision in the former employee’s employment contract constitute an unlawful restraint of trade in.violation of title 15, section 217, of the Oklahoma Statutes? This Court holds that the appeal is not moot, that the decision of the arbitration panel is subject to judicial review, and that the “non-compete” provision in the employment contract constitutes an unlawful restraint of a trade or business and is thus, void and unenforceable.

¶ 2 This dispute involves a “non-compete” provision in an employment contract between a cardiovascular surgeon and his employer, another cardiovascular surgeon. Dr. Cohl-mia is a cardiovascular and thoracic surgeon in Tulsa, Oklahoma. His practice is operated through an Oklahoma corporation, Cardiovascular Surgical Specialists, Corporation (CSS), Appellee, of which he is President and sole shareholder.

¶ 3 In 1996, Dr. Cohlmia sought an associate. On November 15, 1996, he entered into an employment contract with Robert B. Mammana, M.D., a 53 year-old cardiovascular and thoracic surgeon with an established practice in Tuscon, Arizona and over twenty-years experience in Ms specialty. As with any practice of cardiovascular and thoracic surgery, Drs. Cholmia and Mammana were, and are, particularly dependent on referrals from other physicians in the medical community. Patients normally seek treatment from a less specialized medical practitioner who then refers the patient for possible surgery.

¶4 Dr. Mammana’s employment contract contained a “non-compete” provision which was to become the subject of this litigation. It provided that within two years following his employment with CSS, Dr. Mammana would not practice cardiovascular and thoracic surgery within a twenty mile radius of CSS offices. In addition, for nine months following his employment he was not to “solicit, divert or accept referrals” from any source of CSS referrals. Finally, Dr. Mam-mana was prohibited, within one year of his employment, from soliciting or diverting the business of any CSS patients, provided however, that any patient “who affirmatively requests” could continue to see Dr. Mammana.

¶ 5 From early 1997 until July 31, 1999, Dr. Mammana practiced cardiovascular and thoracic surgery as an employee of CSS at hospitals in Tulsa. After Dr. Mammana’s departure from CSS, he continued to practice cardiovascular and thoracic surgery as a sole practitioner.

¶ 6 CSS filed a petition in the District Court of Tulsa County asserting breach of the “non-compete” provision and asking for injunctive relief. That petition was dismissed and the matter was referred to arbitration pursuant to a provision of the employment contract. The arbitration panel ultimately determined that the “non-compete” provision was enforceable and that CSS was therefore entitled to injunctive relief. The issue of damages was reserved for future proceedings. CSS then sought to confirm the arbitration award and to obtain injunctive relief from the District Court of Tulsa County.

¶ 7 After a hearing, the District Court confirmed the decision of the arbitration panel and enjoined Dr. Mammana from practicing cardiovascular and thoracic surgery within a twenty mile radius of one of CSS’s offices. The court denied Dr. Mammana’s motion to vacate the award. This appeal resulted.

¶ 8 The injunction expired on July 31, 2001, during the briefing cycle of this appeal. Drs. Cohlmia and Mammana continue to maintain separate cardiovascular and thoracic surgery practices in Tulsa.

I. This Appeal Is Not Moot

¶ 9 CSS argues that because the injunction enforcing the “non-compete” provision expired by its own terms on July 31, 2001, this appeal is now moot. However, CSS’s claim for damages for breach of the provision remains pending before the arbitration panel. A determination of whether the “non-compete” provision is enforceable is central to the resolution of that claim. Thus, the appeal is not rendered moot by the expiration of the injunction. “Where issues remain to be resolved, for instance, where a party is still potentially liable, the granting of injunctive relief and a review thereof are not moot.” Key Temp. Personnel, Inc. v. Cox, 884 P.2d 1213, 1214 (Okla.Ct.Civ.App.1994) (citations omitted).

II. The Decision Of The Arbitration Panel Is Subject To Judicial Review

¶ 10 CSS also asserts that the decision of the arbitration panel is not subject to judicial review because it does not fit into one of the enumerated grounds for vacation found in title 15, section 812(A) of the Oklahoma Statutes. Dr. Mammana argues that the decision is subject to vacation under section 812(A)(3) because the panel “exceeded its powers” by upholding a “non-compete” provision which is void under Oklahoma law. He points to the parties’ contract which provides that Oklahoma law would control. The controlling authority on this issue, however, is found in Wyatt-Doyle & Butler Eng’g v. City of Eufaula, 2000 Ok 74, 13 P.3d 474.

¶ 11 In Wyatt-Doyle, this Court held “the fact that an arbitrator reviewed the contract of the parties still does not prevent this Court from reviewing the contract’s validity.” Id. at 477. While that decision concerned a contract provision which violated this state’s constitutional limitation on municipal debt, the same reasoning applies to a contract provision which is void by statute.

¶ 12 Like the debt limitation found in the Oklahoma Constitution, the prohibition on unlawful restraints of trade, found at title 15, section 217, was enacted to protect the people. Neil v. Pennsylvania Life Ins. Co., 474 P.2d 961, 963 (Okla.1970) (“Undoubtedly this section of the statute was adopted for the protection of individuals engaged in lawful professions, trades, and business, and for the benefit of the public.”) It provides that “[every contract by which one is restrained from exercising a lawful profession, trade or business of any kind, otherwise than as provided by section 218 and 219 of this title, is to that extent void.”

¶ 13 As in Wyatt-Doyle, this public right cannot be waived by the parties’ agreement to submit the issue of the validity of a contract provision to arbitration. A void provision provides no legal basis for enforcement whether through arbitration or judicial pronouncement.

III. The “Non-Compete” Provision Violates Section 217

¶ 14 “Section 217 prohibits only unreasonable constraints on the exercise of a lawful profession, trade, or business.” Bayly, Martin & Fay, Inc. v. Pickard, 780 P.2d 1168, 1172 (Okla.1989) (emphasis added). Further, only “unfair competition” on the part of a former employee is the legitimate focus of a covenant not to compete. See Tatum v. Colonial Life & Accident Ins. Co., 465 P.2d 448, 451 (Okla.1970). Thus, provisions which require the former employee to “maintain a ‘hands-off policy” as to the employer’s customers have been upheld. See id; Key Temp., 884 P.2d 1213. However, provisions by which an employer sought to go beyond a prohibition on active solicitation and thus prevent fair competition have been declared void. See Bayly, 780 P.2d at 1175 (“Where no active solicitation has occurred, restraint on an insurance agent’s dealings with former clients is unenforceable.”); Loewen Group Acquisition Corp. v. Matthews, 2000 OK CIV APP 109, 12 P.3d 977, 982 (certiorari denied) (“[A]n employer may only contractually protect itself from unfair competition and not from the ordinary fair competition that section 217 is intended to foster”). Competition becomes unfair when a former employee “improperly us[es] some business advantage or opportunity gained through ... employment.” Loewen Group, 12 P.3d at 982. To cure an overly broad and thus unreasonable restraint of trade, an Oklahoma court may impose “reasonable limitations concerning the activities embraced, time, or geographical limitation” but it will refuse to supply material terms of a contract. Bayly, 780 P.2d at 1173 & 1175.

¶ 15 The “non-compete” provision of Dr. Mammana’s employment contract with CSS provided:

17. Non-compete: During the term of the Agreement, and for two year’s thereafter, Dr. Mammana agrees that he will not, for himself or on behalf of any other person, persons, partnership, corporation, or other entity, within a twenty mile radius of Cardiovascular’s offices:
A. own, operate, or in any way participate in the practice of cardiovascular or thoracic surgery,
B. solicit, divert or accept referrals from any source of Cardiovascular referrals within nine months of the date of termination,
C. solicit or divert business of any patient who had been a patient of Cardiovascular within one year of the termination,
without Cardiovascular’s advanced written consent. Notwithstanding the foregoing, Dr. Mammana may, following his termination, accept as a patient anyone for whom Dr. Mammana provided medical services during his employment at Cardiovascular and who affirmatively requests that Dr. Mammana, rather than Cardiovascular, continue to provide medical services.

Testimony before the arbitration panel revealed that the closest hospitals outside the twenty mile radius mentioned in section A of the provision are in Oklahoma City, Fort Smith, Joplin, and Wichita. Therefore, Dr. Mammana was effectively barred from practicing cardiovascular and thoracic surgery within 100 miles of the City of Tulsa. In addition, the prohibition was in effect for two years following his employment with CSS.

¶ 16 Section A is much broader than necessary to protect any legitimate interest of CSS. It is revealing that when asked whether Dr. Mammana could abide by the provision for two years and maintain his practice, Dr. Cohlmia responded: “It would be unlikely that if the non-eompete was abid-ed by, that someone would stay in the community for two years, not practice, and then have a viable practice at the end of two years.” CSS’s assertion that Dr. Mammana could merely switch from cardiovascular and thoracic surgery to another medical specialty such as dentistry or psychiatry for two years does not persuade this Court that the provision constituted a reasonable restraint on Dr. Mammana’s chosen profession.

¶ 17 Similarly section B goes far beyond the reasonable prevention of unfair competition. It is aimed not at CSS patients, but at physicians who have referred patients to either Dr. Mammana or Dr. Cohlmia during Dr. Mammana’s employment with CSS and who might choose to refer a patient to Dr. Mammana during the two years following that employment. It seeks a monopoly with respect to past, present, and future referral sources of Dr. Cohlmia.

¶ 18 Ordinary competition for patients is something CSS cannot avoid through a “non-compete” provision. Evidence presented to the arbitration panel demonstrated the personal nature of reputation-dependent referrals to cardiovascular surgeons. One surgeon has no legitimate business interest in another surgeon’s referral base regardless of a past employer-employee relationship.

¶ 19 The only permissible restriction to be found in the “non-compete” provision is contained in section C. That section prohibits Dr. Mammana from active solicitation of CSS patients within one year following his employment. It excepts those instances in which a patient “affirmatively requests that Dr. Mammana, rather than Cardiovascular, continue to provide medical services.” Such a prohibition is consistent with other non-competition agreements which have been upheld on appeal. See Tatum 465 P.2d at 451; Key Temp., 884 P.2d at 1216.

¶ 20 This Court holds that sections A and B of the “non-compete” provision violate section 217 and are therefore void and unenforceable. For that reason, this Court modifies the agreement, without supplying any material terms, by striking the two offending sections. The matter is remanded to the trial court to determine whether the issue of breach and damages concerning section C should be submitted to arbitration.

TRIAL COURT REVERSED; CAUSE REMANDED WITH DIRECTIONS.

¶ 21 WATT, V.C.J., HODGES, LAVENDER, KAUGER, SUMMERS, BOUDREAU, JJ., concur.

¶ 22 HARGRAVE, C.J., concurs in result.

¶ 23 OPALA, WINCHESTER, JJ., dissent.

      .The grounds for vacating an arbitration award are:
      A. Upon application of a party, the court shall vacate an award if:
      1. The award was procured by corruption, fraud or other illegal means;
      2. There was evident partiality by an arbitrator appointed as a neutral or corruption in any of the arbitrators or misconduct prejudicing the rights of any party;
      3. The arbitrators exceeded their powers;
      4. The arbitrators refused to postpone the hearing upon sufficient cause being shown therefor or refused to hear evidence materia] to the controversy or otherwise so conducted the hearing, contrary to the requirements of this act, as to prejudice substantially the rights of a party; or
      5. There was no arbitration agreement and the issue was not adversely determined in proceedings under Section 3 of this act and the party did not participate in the arbitration hearing without raising the objection.
      Okla. Stat. tit. 15, § 812(A) (1991) (footnote omitted).

      . Doctors refer patients to surgeons for cardiovascular surgery, not to corporations. Thus, referrals made to Dr. Mammana were based on factors other than his status as an employee of CSS or his later status as an independent practitioner.

      . There is no indication in the record that any solicitation or diversion of patients has occurred.

      . The prohibition is also consistent with the Legislature's recent enactment concerning noncom-petition agreements. Effective June 4, 2001, title 15, section 219A gives effect to such agreements provided that the employee "shall be permitted to engage in the same business as that conducted by the former employer or in a similar business ... as long as the former employee does not directly solicit the sale of goods, services or a combination ... from the established customers of the former employer.” 2001 Okla. Sess. Laws ch. 406 § 4.

      . Sections 218 and 219 contain the two exceptions to the restraint of trade prohibition. This matter, however, involves neither a sale of the goodwill of a business, section 218, nor the dissolution of a partnership, section 219.


source: Caselaw Access Project

author: WATT, Vice Chief Justice:

license: Public Domain

text:
    2002 OK 89
    LAMSON & SESSIONS and Pacific Employers Insurance Co., Petitioners, v. David DOYLE and The Workers’ Compensation Court, Respondents.
    No. 96,594.
    Supreme Court of Oklahoma.
    Nov. 12, 2002.
   OPINION

WATT, Vice Chief Justice:

¶ 1 Respondent, David Doyle (“Claimant”), petitioned this Court for certiorari review of the Court of Civil Appeals’ (“COCA”) opinion, reversing the order of the Workers’ Compensation Court on statute of limitations grounds. In support of his petition, Claimant has alleged the COCA decided questions of substance in a way which are probably not in accord with applicable decisions of this Court. Specifically, he alleges his Form 9, filed on March 8, 2001, was sufficient to give timely and adequate notice to Employer of his consequential injury to his bowel and therefore satisfied the applicable statute of limitations. The dispositive issues are: (1) whether Petitioner, Lamson & Sessions (“Employer”), received adequate notice of the claim for benefits for Claimant’s consequential bowel injury after surgery for a compensable back injury; and (2) whether Claimant was required to file a new or amended Form 3 for the consequential injury. We answer the first question in the affirmative and the second question in the negative. The COCA committed error when it held Claimant’s consequential bowel injury was barred because he did not file an amended Form 3 within the time allowed by the statute of limitations. See 86 O.S. Supp.1997 § 43(A), the statute in effect at the time of Claimant’s injury. The opinion of the COCA is vacated, and the order of the Workers’ Compensation Court is sustained.

FACTUAL BACKGROUND

¶ 2 Claimant sustained a work-related back injury in 1999. As treatment for his back, surgery was performed on February 8, 1999. Although the Form 3 is not included in the record on review, Claimant alleges he filed it to commence the claim for his back injury in the Workers’ Compensation Court in April, 1999. This appears to be undisputed. The trial court awarded Claimant temporary total disability in February, 2000.

¶ 3 After his surgery, Claimant developed problems with controlling his bowel functions. On March 8, 2001, Claimant filed a Form 9, “Motion to Set Hearing”, requesting permanent total disability benefits for his back injury and for the consequential injury to his bowels. In support of his request, he attached a written medical report from his doctor, Dr. Melissa Smith-Horn.. She gave an opinion Claimant’s bowel injury was a consequence of his employmerit-rélated back injury and rated his disability at “19% permanent partial impairment to the body as a whole due to loss of bowel control....” Employer objected to the request for permanent disability on the grounds 'that Claimant had not amended his Form 3 to add the consequential injuries, and that these claims were therefore barred by the statute of limitations. The trial court overruled Employer’s objection and awarded Claimant permanent total disability compensation.

¶4 The COCA reversed the trial court’s order, finding Claimant’s failure to amend his Form 3 to include the bowel injury barred the claim. It held:

Section 43(A) prescribes the two-year time limit for filing a Form 3. Indeed, it is the Form 3 which initiates the claim process. Benning v. Pennvell Pub. Co., 1994 OK 113, ¶ 2 nn.2-3, 885 P.2d 652. The purpose of the Form 9 is simply to set the matter for trial. Here, Claimant’s Form 9 indicated that the issues to be tried were permanent total disability and continuing medical treatment. The information on the Form 9 was insufficient to place Employer on guard that Claimant would be alleging consequential injury to the bowels.
Moreover, although Dr. Smith-Horn’s medical report stated that Claimant had ' sustained bowel impairment, it would placé an unreasonable burden upon Employer to require it to read the medical report and anticipate all of the issues to be raised at trial. We are in agreement with Employer that claimant should have amended his Form 3 or filed a new Form 3 for his claim of consequential injury to the bowels. The fifing of the Form 9 with an attached medical report was not sufficient to satisfy the statute of limitations and place Employer on notice that Claimant would be alleging a consequential injury. [Emphasis supplied.]

DISCUSSION

¶ 5 The COCA relied upon Phillips v. Duke Manufacturing, Inc., 1999 OK 25, 980 P.2d 137, cited by Employer as authority that the claimant violated the statute of limitations and that he was required to amend his Form 3 or file a new claim to give notice of a consequential injury. This Court noted the Phillips claimant filed “an amended form” to seek compensation for the consequential injury to his neck. However, the issue in Phillips was whether the claimant could receive temporary disability benefits for a consequential neck injury received during physical therapy for his original injuries. He had received the maximum compensation for his original injuries under 85 O.S. § 22(2)(b). This Court held he was entitled to temporary total compensation because the neck injury was a “new injury” which arose out of a separate incident. We held it arose as a consequence of treatment for the original injury and caused additional disability. In so holding, however, this Court construed § 22, not the statute of- limitations under § 43.

¶6 In Ada Iron & Metal Company v. Tarpley, 1966 OK 202, 420 P.2d 886, the claimant sought compensation for disability sustained to his right leg as a result of being in traction for treatment of the original com-pensable injury to his back. The employer argued the claimant was not entitled to compensation for his right leg because no claim was asserted within one year of the original injury. In discussing the belated assertion of an “injury”, as distinguished from the belated assertion of a “disability”, this Court held:

The law is settled beyond reasonable cavil that an employer is liable for all legitimate consequences flowing from any .injury compensable under the Workmen’s Compensation Law, and the injured workman is entitled to recover, under the schedule of compensation, for the extent of his disability based upon the ultimate result of the compensable injury', without regard to increase of or aggravation of his disability by legitimate consequence occurring subsequent to the time of injury. Barnsdall Refining Co. v. Ramsdall, 149 Okl. 99, 299 P. 499; Booth & Flinn v. Cook, 79 OM. 280, 193 P. 36.
[I]n the instant case there was no belated assertion of other injury. The assertion is of disability, resulting from an injury in connection with which timely claim for compensation was made. [Emphasis supplied.]

Ada Iron & Metal Company v. Tarpley, 1966 OK 202, ¶¶ 7, 10, 420 P.2d 886, 888-89. See also J.E. Carlson, Inc. v. White, 1969 OK 46, 452 P.2d 145; and Forrest Oil Corp. v. Breshears, 1949 OK 14, 202 P.2d 706, wherein we held it was not necessary to file a new claim under similar circumstances because an injured employee was not bound to know or gauge the extent of his injuries nor their future developments.

¶ 7 Under the Act, “injury” includes the consequences that naturally flow from the injury. The definition of “injury” under the Workers’ Compensation Act is found at 85 O.S. Supp.1997 § 3(10):

10. a. “Injury” or “personal injury” means only accidental injuries arising out of and in the course of employment and such disease or infection as may naturally result therefrom and occupational disease arising out of and in the course of employment as herein defined_ [Emphasis supplied.]

¶ 8 In this case, Claimant provided competent medical evidence, in the form of Dr. Smith-Horn’s written report and deposition testimony, that his bowel condition occurred as a consequence of his work-related back injury. This was the trial court’s finding. Therefore, as a matter of law, Claimant’s consequential bowel injury was properly brought before the court pursuant to Claimant’s Form 9.

¶ 9 The defense of statute of limitations is treated as a true affirmative defense, rather than as a jurisdictional question, and is not independently reviewed by this Court. See Special Indemnity Fund v. Choate, 1993 OK 15, 847 P.2d 796; Leach v. Hamilton Trucking Co., 2002 OK CIV APP 11, 39 P.3d 824. If the determination of the Workers’ Compensation Court is reasonably supported by the evidence and not otherwise contrary to law, it will not be disturbed on review. As an affirmative defense, Employer had the burden of proof to show Claimant’s request was time-barred. Special Indemnity Fund v. Choate, 847 P.2d at 804.

¶ 10 The trial court specifically ruled that Employer’s statute of limitations defense “relative to claimant’s consequential injuries and disabilities (SEXUAL DYSFUNCTION AND BOWEL DISORDER) is DENIED.” In vacating the trial' court’s order, the COCA relied on the fact the Form 3 was not amended to include the bowel injury within two years of the time Claimant discovered it was an employment-related injury. That holding was erroneous as a matter of law because competent evidence supported the trial court’s finding that Claimant sustained a consequential injury to his bowel system. Claimant sought compensation for additional “disability” for this “consequential injury” which occurred as a result of his original back injury. If the original Form 3 was timely filed, the additional disability Claimant sought as a consequential injury was also timely filed. Therefore, the trial court’s denial of Employer’s statute of limitations defense was supported by competent evidence and should not have been disturbed.

¶ 11 Our holding today regarding the statute of limitations should not be interpreted to mean Claimant did not need to give Employer notice of his request for additional compensation to allow it to prepare an adequate defense. The Form 9, with medical evidence attached, served this purpose. As noted by Claimant, Employer was apparently adequately informed by the Form 9. Employer presented an addendum to the previously submitted medical opinion of its expert, Dr. Pettigrew, in response to Dr. Smith-Horn’s opinion. Moreover, Employer took Dr. Smith-Horn’s deposition.

¶ 12 The probative value and weight to be given medical evidence is an issue for the Workers’ Compensation Court’s determination. Evidence of one expert may be accepted while that of another may be rejected in whole or in part. See Department of Public Safety v. Jones, 1978 OK 64, 578 P.2d 1197. Based on all of the evidence, which was disputed, the trial court found Claimant sustained consequential injury to his bowel system and awarded permanent total disability. Findings of fact made by the workers’ compensation court are binding and conclusive in review proceedings before this Court, unless they lack support in competent evidence. Parks v. Norman Municipal Hospital, 1984 OK 53, 684 P.2d 548.. It is only when factual findings lack support in competent evidence that the trial court’s decision may be determined to be erroneous as a matter of law. Parks, supra. The trial court’s findings of fact and permanent total disability award are supported by competent evidence. The COCA erred when it vacated it.

CONCLUSION

¶ 13 The trial court’s order awarding Claimant permanent total disability was supported by competent evidence that the bowel condition was related to the original injury to his back. The statute of limitations defense for the bowel injury is inapplicable to the facts presented in this case because the evidence shows it was a consequential injury of his original back injury. No amended Form 3 was required under the circumstances in this ease.

CERTIORARI PREVIOUSLY GRANTED. THE OF THE COURT OF CIVIL APPEALS IS VACATED AND THE ORDER OF THE WORKERS’ COMPENSATION COURT IS SUSTAINED.

ALL JUSTICES CONCUR.

      . A. The right to claim compensation under the Workers' Compensation Act shall be forever barred unless, within two (2) years after the date of accidental injury or death, a claim for compensation is filed with the Workers’ Compensation Court. Provided however, a claim may be filed within two (2) years of the last payment of any compensation or remuneration paid in lieu of compensation or medical treatment which was authorized by the employer or the insurance carrier. Provided further however, with respect to disease or injury caused by repeated trauma causally connected with employment, a claim may be filed within two (2) years of the date of last trauma or hazardous exposure. Provided further however, in the case of asbestosis, silicosis or exposure to nuclear radiation causally connected with employment, a claim may be filed within two (2) years of the date of last hazardous exposure or within two (2) years from the date said condition first becomes manifest by a symptom or condition from which one learned in medicine could, with reasonable accuracy, diagnose such specific condition, whichever last occurs. The filing of any form or report by the employer or insurance carrier shall not toll the above limitations.

        . Claimant also requested compensation for sexual dysfunction as a consequence of his back injury. However, the trial court denied compensation for this, and Claimant did not seek review of that ruling.

      . She explained in her deposition that Claimant’s bowel symptoms began postoperatively, after he left the hospital. She stated that an exam showed he had very loose anal sphincter tone, often ■ caused by. damage to the nerve during surgery. She also stated Claimant complained that his pain medication, taken for his back injury, caused constipation.

      . In its appellate brief considered by the COCA, Employer argued Claimant was aware of his bowel injury at the time of his hospitalization. Employer thus argued the Form 3 giving notice of his back injury should have included the bowel, as well. However, the evidence of Claimant's awareness of the bowel condition, through his testimony, indicates although he noticed it, he did not know what was causing it. In fact, he testified he was told that his medication caused constipation, and that anesthesia sometimes causes the system to shut down. However, he testified he was not given a reason why he lost control of his bowels.


author: BOUDREAU, J.

text:
    2002 OK 94
    WASTE CONNECTIONS, INC. d/b/a Red Carpet Landfill, Plaintiff/Appellant, v. OKLAHOMA DEPARTMENT OF ENVIRONMENTAL QUALITY, Defendant/Appellee.
    No. 97,928.
    Supreme Court of Oklahoma.
    Dec. 10, 2002.

      Keith R. Gibson, Oklahoma City, OK, Jack Y. Perry & Lori J. Marco, Minneapolis, MN, for Waste Connections, Inc. d/b/a Red Carpet Landfill.
    Stan A. Koop, Assistant Attorney General, Oklahoma City, OK, for the Department of Environmental Quality.
   BOUDREAU, J.

¶ 1 This appeal is the result of a June 13, 2002 order of the district court of Major County, in which the trial court dismissed Waste Connections’, Inc. d/b/a Red Carpet Landfill (Waste Connections), request for declaratory judgment and injunctive relief, so that this case may proceed through the administrative process before the Department of Environmental Quality (DEQ).

¶2 The DEQ is a state agency charged with the administration of the Oklahoma Solid Waste Management Act, 27A O.S.2001, § 2-10-201, et seq. Waste Connections received a DEQ permit to operate its Meno, Oklahoma (Red Carpet Landfill) facility in September 2001. Shortly thereafter, the DEQ notified Waste Connections that it must submit a disposal plan under 27A O.S.2001, § 2 — 10—801(D)(1) before receiving any imported waste in excess of 200 tons per day. Waste Connections submitted a plan, but the DEQ refused to approve it, claiming it was inadequate. After conducting inspections of the landfill, the DEQ issued a notice of violations to Waste Connections, citing specific operational deficiencies as well as a lack of an acceptable disposal plan. On January 3, 2002, the DEQ issued an administrative compliance order, stating that Waste Connections failed to obtain a disposal plan prior to accepting imported waste in excess of 200 tons per day. The order further imposed daily fines.

¶ 3 The parties then scheduled an administrative appeal, which was continued at the request of the administrative hearing clerk. Prior to the rescheduled hearing, Waste Connections initiated suit against the DEQ in Major County, requesting a declaratory judgment, temporary restraining order and a temporary injunction. In its suit Waste Connections asserted, among other things that the rule, O.A.C. 252:205-3-2(c), did not apply to its landfill and both the rule and the statute, 27A O.S.2001, § 2-10-801(D)(l), are unconstitutional under the commerce clause of the U.S. Constitution.

¶ 4 The DEQ moved to dismiss the cause for improper venue and failure to state a claim upon which relief could be granted. The trial court determined venue was appropriate in Major County, but dismissed Waste Connections’ claim, because it failed to exhaust all administrative remedies prior to filing action in district court. In the order dismissing the claim the court determined it lacked jurisdiction to consider the matter in light of Waste Connections’ failure to exhaust its administrative remedies.

¶ 5 Waste Connections appealed the order dismissing its claim, asserting jurisdiction was proper. Waste Connections argued that its attack on the constitutionality of the statute, 27A O.S.2001, § 2-10-801(D), rendered it futile to proceed through the administrative process, because administrative agencies lack the power to determine the constitutionality of legislation. Waste Connections also asserted that it is entitled to bring a declaratory judgment action to determine the validity and application of an administrative rule, specifically O.A.C. 252:205-3-2(c), whether or not it requested the agency to pass upon the validity or applicability of the rule in question.

¶ 6 Waste Connections requested this Court retain this appeal. We retain this appeal to examine an apparent conflict between the trial court’s decision and a number of recognized exceptions to the exhaustion of administrative remedies requirement.

I. Exhaustion of Administrative Remedies

¶7 Where relief is available from an administrative agency, a plaintiff is ordinarily required to pursue that avenue of redress before proceeding to the courts. Walker v. Group Health Services, Inc., 2001 OK 2, 37 P.3d 749, as corrected on denial of rehearing; See also Lincoln Income Life Ins. Co. v. Wood, 1976 OK 140, 556 P.2d 602, 603; Allen v. State ex rel. Bd. of Trustees of Oklahoma Retirement Sys. for Justices & Judges, 1988 OK 99, 769 P.2d 1302; Martin v. Harrah Indep. School Dist., 1975 OK 154, 543 P.2d 1370,1372; Arbuckle Abstract Co. v. Scott, 1998 OK 125, 975 P.2d 879, 886-87. The exhaustion rule is one of “orderly procedure”, “designed to allow administrative bodies to perform their statutory functions free from premature and unnecessary interference by preliminary court litigation.” Ar-buckle Abstract Co., 975 P.2d at 886. There are several policy rationales for requiring exhaustion of administrative remedies. First, exhaustion of administrative remedies allows the agency to apply its expertise and discretion under the statutory scheme the agency itself is charged with administering. Arbuckle Abstract Co., 975 P.2d at 887; Ledbetter v. Oklahoma Alcoholic Beverage Laws Enforcement Comm’n, 1988 OK 117, 764 P.2d 172, 180. Second, exhaustion of administrative remedies allows the agency opportunity to correct errors in the administrative process, possibly vindicating the rights of a plaintiff before the courts ever become involved. See Arbuckle Abstract Co., 975 P.2d at 887; Ledbetter, 764 P.2d at 180. Finally, exhaustion allows an administrative agency to compile a record which is adequate for judicial review. Moore v. City of East Cleveland Ohio, 431 U.S. 494, 524-25, 97 S.Ct. 1932, 52 L.Ed.2d 531 (1977); Harline v. Drug Enforcement Admin., 148 F.3d 1199, 1203 (10th Cir.1998).

¶ 8 In cases in which exhaustion of remedies is not required by statute, this Court has held that the requirement to exhaust administrative remedies is a prudential rule, rather than a jurisdictional bar. Walker, 37 P.3d at 761-62. The exhaustion rule “presents a remedial barrier to judicial proceedings when an agency’s rule-prescribed administrative review process is not pursued to conclusion.” Id. at 762. In such cases, the exhaustion requirement is discretionary with the court and may be excused if the administrative remedy is unavailable, ineffective or would have been futile to purse. Tinker Inv. & Mortgage Corp. v. City of Midwest City, 1994 OK 41, 873 P.2d 1029. When an administrative remedy is unavailable, ineffective or futile to pursue, the policy justifications for invoking the exhaustion of administrative remedies doctrine are no longer compelling.

¶ 9 The notion that an administrative process may be inadequate to fully and satisfactorily protect a right in question forms the basis of an exception to the doctrine of exhaustion of remedies for constitutional claims. The exception is a recognition that administrative agencies lack the power to pass on constitutional questions. Dow Jones & Co. Inc. v. State ex rel. Oklahoma Tax Comm’n, 1990 OK 6, 787 P.2d 843, 845 n. 9; Conoco, Inc. v. State Dept, of Health of State of Oklahoma, 1982 OK 94, 651 P.2d 125, 128-29. However, the exhaustion requirement is not excused merely because a party asserts a constitutional claim in a request for judicial relief. Ledbetter, 764 P.2d at 180. If relief may be granted on non-constitutional grounds, the necessity of deciding constitutional issues may be avoided and exhaustion may be required. Public Utilities Comm’n of the State of California v. U.S., 355 U.S. 534, 78 S.Ct. 446, 2 L.Ed.2d 470, rehearing denied by 356 U.S. 925, 78 S.Ct. 713, 2 L.Ed.2d 760 (1958). In Ledbetter, we recognized “where the situation involves the presence of constitutional questions, coupled with a sufficient showing of the inadequacy of the administrative process or remedy and of threatened or impending irreparable injury flowing from the delay that would be caused by following the administrative process[,]” administrative remedies need not be exhausted. Ledbetter, 764 P.2d at 180 (emphasis in original).

¶ 10 In addition, a plaintiff need not exhaust administrative remedies when the Administrative Procedures Act (APA) states that exhaustion is not required. Title 75 O.S.2001, § 306 of the APA provides an exception to the exhaustion rule. Section 306 provides that the validity or applicability of a rule may be determined in an action for declaratory judgment if it is alleged that “the rule, or its threatened application, interferes with or impairs ... the legal rights or privileges of the plaintiff.” 75 O.S.2001, § 306(A). Section 306(D) specifically provides that the “declaratory judgment may be rendered whether the plaintiff has requested the agency to pass upon the validity or applicability of the rule in question.”

¶ 11 A declaratory judgment under § 306 of the APA is not available for review of an adjudication effected in the course of a judicial proceeding. Texas Co. Irrigation & Water Resources Ass’n v. Oklahoma Water Resources Bd., 1990 OK 121, 803 P.2d 1119, 1123. In differentiating between rules and adjudications, Oklahoma Courts have explained the difference between an administrative rule and an administrative adjudication.

An agency’s authority to make rules is clearly distinguishable from that of adjudication. Rulemaking includes the power to adopt rules and regulations of general application' — both substantive and procedural — which are legislative in nature, operate prospectively and have general application. Orders of an administrative body are adjudicative in character. They apply to named persons or specific situations and have immediate rather than future operation.

Harry R. Carlile Trust v. Cotton Petroleum Corp., 1986 OK 16, 732 P.2d 438, 441-42 (emphasis in original). Section 306 is intended to apply only to rules issued by an agency in its quasi-legislative function and not to orders in individual proceedings in its quasi-adjudicative function.

II. The Trial Court Erred When It Dismissed Waste Connections’ Claim for Lack of Jurisdiction

¶ 12 In sustaining the DEQ’s motion to dismiss, the trial court was of the view that the exhaustion of administrative remedies doctrine presented a jurisdictional bar to its consideration of Waste Connections’ request for relief, rather than a prudential one. This view is contrary to our most recent pronouncement in Walker, 37 P.3d at 761-62. The trial court erred when it determined that the exhaustion of administrative remedies doctrine deprived it of jurisdiction. Because a court may not by error divest itself of jurisdiction, this case must be remanded to the trial court for further consideration. Cook v. Winklefleck, 16 Cal.App.2d Supp. 759, 59 P.2d 463 (Cal.App.Super.1936); State ex rel. Bechtel v. McCabe, 60 Ohio App. 233, 20 N.E.2d 381 (Ohio App. 6 Dist.1938).

¶ 13 In its petition, Waste Connections contends that DEQ’s interpretation and enforcement of 27A O.S.2001, § 2-10-801(D)(l) unconstitutionally discriminates against interstate commerce. On remand, the trial court must decide whether Waste Connections, in pressing this constitutional claim, is able to demonstrate a sufficient showing of inadequate administrative remedy and impending harm to overcome the exhaustion of administrative remedies rule.

¶ 14 Similarly, Waste Connections contends alternatively in its petition that O.A.C. 252:205-3-2(e) does not apply to its landfill and, in the event it does apply, the rule unconstitutionally burdens interstate commerce. Waste Connections alleges that the rule or its threatened application interferes with or impairs its legal rights. These allegations directly attack the validity and applicability of the rule in controversy and accordingly 75 O.S.2001, § 306 explicitly confers jurisdiction on the trial court to render a declaratory judgment, without the agency having passed upon the rule in question. Accordingly, the trial court may not dismiss Waste Connections’ claim for judicial relief as it relates to O.A.C. 252:205-3-2(e) because it failed to exhaust its administrative remedies.

¶ 15 We note that 75 O.S.2001, § 306 of the APA provides that the court “may” grant a declaratory judgment, indicating that a court has discretion whether or not to entertain the declaratory judgment action. Declaratory relief will be granted only when the interest of justice will be advanced and an adequate and effective judgment may be rendered. Linn Plywood Corp. v. Millmen’s Union No. 1120, 222 Or. 265, 352 P.2d 594 (1960); See also National Valve and Mfg. Co. v. Grimshaw, 181 F.2d 687 (10th Cir.1950) (disapproved on other grounds in Allendale Mut. Ins. Co. v. Kaiser Engineers, Div. of Henry J. Kaiser Co., 804 F.2d 592 (10th Cir.1986)). While this Court finds the trial court erred in its determination that it lacked jurisdiction, this opinion expresses no view as to whether Waste Connections is entitled to the declaratory relief requested.

¶ 16 APPEAL RETAINED; DECISION OF THE TRIAL COURT REVERSED AND CAUSE REMANDED WITH DIRECTIONS TO PROCEED IN A MANNER CONSISTENT WITH THIS OPINION.

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

¶ 18 OPALA, J., Concurs in Result.

      .Title 27A O.S.2001 § 2-10-801(D)(l) provides:
      D. Before any disposal site accepts for disposal any solid waste generated outside the territorial limits of this state in excess of two hundred (200) tons per day:
      1. The operator of the disposal site shall submit to the Department for approval a disposal plan prepared by either the generator or shipper as set out in the rules promulgated by the Board. Such plans as a minimum shall indicate the type and amount of solid waste generated, the handling, storage, treatment, disposal method and the disposal site to be used. The disposal plans shall be kept current by the persons submitting the original disposal plans and the Department shall be advised not less than five (5) working days prior to the day on which such changes are to be implemented. Persons storing or shipping recyclable materials in an environmentally acceptable manner for the purpose of recycling shall be required to file disposal plans required by this subsection only for those wastes which are to be disposed.

      . O.A.C. 252:205-3-2(c) incorporates by reference the Code of Federal Regulations, Environmental Protection Agency, 40 C.F.R. § 261. Section 261 deals with various aspects of identifying and listing hazardous waste, including how to identify hazardous material, how material may be transported, labeled and categorized and directions for identifying and quantifying particular waste which may be received at some facilities in only limited quantities.

      . Order of the District Court of Major County, June 19, 2002 stated: "The Court further finds that Defendant's Motion regarding dismissal based on lack of jurisdiction should be and hereby is granted.”

      . Neither party appealed the trial court's determination with regard to venue.


author: WINCHESTER, J. OPALA, J., HODGES, J., BOUDREAU, Justice,

text:
    2002 OK 95
    Winfred Nimrod GRAHAM, Plaintiff/Appellant, v. TRAVELERS INSURANCE COMPANY, Defendant/Appellee.
    No. 95,318.
    Supreme Court of Oklahoma.
    Dec. 17, 2002.

      Rex K. Travis, Patricia Travis and C. Ronald Britton, Oklahoma City, OK, for appellant Winfred Nimrod Graham.
    Mark. E. Bialick, Rodney D. Stewart, Dur-bin, Larimore & Bialick, Oklahoma City, OK, for appellee Travelers Insurance Company.
    Chris Harper, Phillip P. Owens II, Chris Harper, Inc., Oklahoma City, OK, for amicus curiae GuideOne Mutual Insurance Company.
    Chris L. Rhodes, William D. Perrine, Kerry R. Lewis, Tulsa, OK, for amicus curiae Carroll Fisher, Insurance Commissioner of the State of Oklahoma.
   WINCHESTER, J.

¶ 1 The issue before us is whether in a commercial insurance policy, uninsured/un-derinsured (UM/UIM) coverage that is provided for vehicles owned by the named insured, must also be provided to employees using their own vehicles, which are limited by an endorsement to liability coverage.

FACTS AND PROCEDURAL HISTORY

¶ 2 Winfred Nimrod Graham, the plaintiff/appellant, was stopped at a red traffic light in Oklahoma City, Oklahoma, when his car was struck from behind by a second car. Graham’s vehicle was struck again when a third car collided with the second ear. The record reveals that as a result of this accident, Graham sustained significant injuries, including a fractured neck.

¶ 3 According to the record, at the time of the accident, Graham was driving his personal vehicle while on business for his employer, CKE Restaurants. CKE had an automobile insurance policy that included UM/UIM coverage with Travelers Indemnity Company of Illinois, the defendani/appellee. Graham sought UIM benefits, but Travelers denied his claim.

¶4 Graham sued the two drivers, their principals, and the owners of one of the vehicles for personal injury, property damage and lost wages. He also sought punitive damages. In his Second Amended Petition, Graham added “Travelers Insurance Company” as a defendant, praying for compensatory and punitive damages.

¶ 5 Travelers moved for summary judgment on the basis that no UM/UIM motorist coverage exists under the Travelers’ policy for CKE employees operating a vehicle CKE does not own. In his response, Graham moved for an interlocutory order arguing he was entitled to UM/UIM motorist coverage under the policy Travelers issued to CKE because that policy provides liability coverage for employees while using their own automobiles, and those covered for liability must also be covered for UM/UIM under Oklahoma’s UM statute, 36 O.S.2001, § 3636. The trial court granted Travelers’ motion.

¶ 6 In its September 26, 2000, Journal Entry of Judgment, the trial court found there was no UM/UIM coverage for Graham under the insurance policy issued by Travelers to CKE. The court determined Graham was an occupant of a non-owned automobile, that he was not an insured of Travelers and that Travelers was entitled to judgment on Graham’s claim of bad faith. Graham appealed.

¶ 7 The Court of CM Appeals, Division II, reversed the judgment of the trial court and remanded the cause to the trial court for further proceedings, holding 36 O.S.2001, § 3636 requires insurance carriers to provide UM/UIM motorist coverage to' the same class of persons covered under the liability provision of an insurance policy, unless such coverage is rejected in writing. The court also held that the' $10,000.00 statutory minimum did not apply, and Travelers’ refusal to compensate Graham did not constitute bad faith because the issue is one of first impression. We granted certiorari.

STANDARD OF REVIEW

¶ 8 Summary judgment is appropriate where it appears there is no substantial controversy as to any material fact and one party is entitled to judgment as a matter of law. Daugherty v. Farmers Coop. Ass’n, 1984 OK 72, ¶ 5, 689 P.2d 947, 949; Crockett v. McKenzie, 1994 OK 3, ¶ 3, 867 P.2d 463, 464. “[T]he inquiry on appeal concerning the propriety of the entry of summary judgment is limited to potential controversies concerning any issue raised by ,the pleadings.” Wabaunsee v. Harris, 1980 OK 52, ¶ 9, 610 P.2d 782, 785. Our ruling must be made on. the record that the parties actually presented and not on a record that is potentially possible. Weeks v. Wedgewood Village, Inc., 1976 OK 72, ¶ 12, 554 P.2d 780, 784. An order that grants summary relief disposes of legal issues. Therefore, on appeal, the review we conduct is de novo. Brown v. Nicholson, 1997 OK 32, ¶ 5, n. 1, 935 P.2d 319, 321, n. 1; Manley v. Bromi, 1999 OK 79, ¶ 22, n. 30, 989 P.2d 448, 456, n. 30. “An appellate court claims for itself plenary, independent and non-deferential authority to re-examine a trial court's legal rulings.” Manley, 1999 OK 79, ¶ 22, n. 30, 989 P.2d at 456, n. 30.

INSURANCE POLICY PROVISIONS

¶ 9 CKE’s insurance policy includes UM/UIM coverage limited in amount to $1,000,000.00 for each accident. The declarations page designates the number 2 as the covered auto symbol. The Business Auto Coverage Form explains the covered auto designation symbols. Symbol “2 = OWNED ‘AUTOS’ ONLY. Only those ‘autos’ you own.... This includes ‘autos’ you acquire ownership of after the policy begins.”

¶ 10 The policy included in the record has separate explanations for “WHO IS AN INSURED” for the liability coverage, and for the UM coverage. The UM coverage is in the form of an endorsement, which states in bold letters at the top “THIS ENDORSEMENT CHANGES THE POLICY. READ IT CAREFULLY.” In a larger font, the next line reads “OKLAHOMA UNINSURED MOTORISTS COVERAGE.” Under section B, ‘WHO IS AN INSURED,” the policy provides:

1. You.
2. If you are an individual, any “family member.”
3. Anyone else “occupying” a covered “auto” or a temporary substitute for a covered “auto.” The covered “auto” must be out of service because of its breakdown, repair, servicing, “loss” or destruction.
4. Anyone for damages he or she is entitled to recover because of “bodily injury” sustained by another “insured.”

¶ 11 Graham admits in his response to Traveler’s motion for summary judgment that the policy provisions limit UM/UIM coverage to owned autos, but argues those facts are “narrowly technically correct.” He claims that the policy contains endorsements that expand the basic coverage. Under an endorsement entitled “Employees as Insureds” the policy provides, “The following is added to the ‘LIABILITY COVERAGE WHO IS AN INSURED’ provision.” On the next line it adds, “Any employee of yours is an ‘insured’ while using a covered ‘auto’ you don’t own, hire or borrow in your business or your personal affairs.” The Business Auto Coverage Part Declarations page shows a covered auto symbol of “1” for liability coverage. The limit of insurance is $1,000,000.00. Symbol “1” on the Business Auto Coverage Form indicates that “1 = ANY ‘AUTO.’ ” Graham emphasizes that the endorsements, “Hired or Borrowed Covered Auto Coverage,” “Nonowned Liability coverage,” and liability coverage for employees all work together to modify the “WHO IS AN INSURED” section of the UWUIM endorsement. Subsection 3 provides, “Anyone else ‘occupying’ a covered ‘auto’ or a temporary substitute for a covered ‘auto’.... ”

¶ 12 Graham argues that these endorsements modify the basic coverage in the following manner. Graham was using his own vehicle to perform duties for his employer. That vehicle became either a borrowed or a non-owned vehicle as to the named insured, CKE. Because Graham was occupying that vehicle, he became an insured as a person ‘occupying’ a covered ‘auto.’ Graham concludes that being insured for liability also insures him for UM/UIM.

¶ 13 But even after Graham’s argument on this point, we are still left with this undisputed fact: The endorsements clearly show that CKE and Travelers agreed that the parties intended UM/UIM coverage for vehicles owned by CKE. Graham’s vehicle was not owned by CKE. Therefore, he was not covered for UM/UIM. Graham then attempts to make an argument that the policy is ambiguous, but the facts stated above show that this argument must fail. Graham’s vehicle clearly was insured for liability and was not insured, under the provisions of the policy, for UM/UIM.

REQUIREMENTS OF § 3636

¶ 14 Graham argues that 36 O.S.2001, § 3636 requires that UM/UIM must be provided in every motor vehicle liability policy unless rejected in writing. He reasons that once an individual is defined as an insured under the contract, as Graham is here by reason of the endorsement to the liability portion of the contract, he is an insured under the UM/UIM portion of the contract. He continues that having chosen to insure Graham and other employees under the liability coverage, § 3636 requires UM/UIM coverage for them. He asserts that this insurance contract is made up of liability and UM/UIM coverages, and that these coverages are not separate contracts.

¶ 16 The only question to be decided is whether 36 O.S.2001, § 3636 requires UM/ UIM coverage over every vehicle this commercial auto policy covers for liability. This is a public policy decision based on statute, not strictly on contract. However, Shepard v. Farmers Ins., 1983 OK 103, 678 P.2d 250, reveals that contractual agreements have an impact on the terms of an insurance policy even though insurance policies are issued pursuant to statute.

¶ 16 Shepard involved a certified question from the United States District Court for the Western District of Oklahoma. That question asked whether a clause was unconscionable or against public policy as expressed in Oklahoma’s Uninsured Motorist Act. The clause denied coverage for a relative of the insured living in the same household because that relative or the relative’s spouse, owned an automobile. The Court held that the exclusionary language was “consistent with sound principles of contract law and ... neither unconscionable nor violative of the public policy expressed in Oklahoma’s Uninsured Motorist Act.” Shepard, 1983 OK 103, ¶ 1, 678 P.2d at 251.

¶'17 Shepard observed that insurance policies are issued pursuant to statutes, and the provisions of those statutes are treated as though they were written into the policy. The parties, are nevertheless free to agree upon the terms of the contract and may limit or restrict an insurer’s liability. Although the court will interpret the policy consistent with the statute, it will not rewrite the contract. Shepard, 1983 OK 103, ¶ 2, 678 P.2d at 251.

¶ 18 CKE and Travelers are the parties to this contract. CKE paid the premiums and agreed to the terms. CKE’s liability policy for nonowned vehicles benefits the company since it insures CKE for the negligent acts of its employees who are in the course of their employment. It has an indirect benefit to the employee, who must by law insure his own vehicle for liability. Beavin v. State ex rel. Dept of Public Safety, 1983 OK 34, ¶ 17, 662 P.2d 299, 302. Where employees do not contribute to group insurance policies, such policies are mere gratuities to those employees. Christian v. Metropolitan Life Ins. Co., 1977 OK 132, ¶ 17, 566 P.2d at 448.

¶ 19 As stated above, Graham agrees that the policy in question is one policy insuring multiple vehicles. Section 3636 does not require that every vehicle covered in one policy have a separate document that separately accepts or rejects UM/UIM coverage for .that vehicle. CKE accepted UM/UIM coverage and limited it to company-owned vehicles. The parties to the contract agreed to those provisions, those provisions are not ambiguous, and there is no public policy in § 3636 that is violated by the agreement of the parties.

¶ 20 The law required that Graham insure his vehicle for liability, and § 3636 provided him the opportunity to accept or reject UM/ UIM coverage for his personal protection. Moser v. Liberty Mut. Ins. Co., 1986 OK 78, 731 P.2d 406, like Shepard, involved a federal certified question. The question in Moser asked whether § 3636 applied to an umbrella liability policy designed to provide excess liability coverage to the insured, a large mul-ti-state corporation. The Court held that it did not. The company had an inflexible policy against maintaining UM/UIM coverage on company vehicles. The company did not reject UM/UIM coverage in writing for the excess liability policy. In its discussion of the case, this Court stated: “[T]he intent of the uninsured motorist legislation is to afford to one insured under his own liability insurance policy the same protection in the event he is injured by an uninsured motorist as he would have had if the negligent motorist had carried liability insurance.” Moser, 1986 OK 78, ¶ 4, 731 at 408. CKE has no obligation to agree to provide Graham with UM/UIM coverage for Graham’s personal vehicle. Moser stated that the intent of the legislature must prevail over the literal import of the words used. Moser, 1986 OK 78, ¶ 6, 731 at 409. The phrase “persons insured thereunder” in § 3636(B), despite their literal import, does not overcome CKE’s specific limitation of UM/UIM coverage to owned vehicles.

¶ 21 The Shepard case allows parties to agree to exclude a relative living in the same house from liability coverage. CKE and Travelers are free to exclude employees operating their own vehicles from UM/UIM coverage through the method of limiting UM/ UIM coverage to vehicles owned by the company. No public policy is violated by such a limitation.

CERTIORARI PREVIOUSLY GRANTED; COURT OF CIVIL APPEALS OPINION VACATED; JUDGMENT OF THE DISTRICT COURT AFFIRMED.

¶ 22 HARGRAVE, C.J., WATT, V.C.J., HODGES, LAVENDER, OPALA, and SUMMERS, JJ., concur.

¶ 23 KAUGER and BOUDREAU, JJ., dissent.

OPALA, J.,

with whom Hodges, J., joins, concurring.

¶ 1 I am unable to read into the provisions of 36 O.S.2001 § 3636 a statutory portability mandate for extending a fleet policy’s UM coverage to include persons injured in a privately-owned vehicle driven on the insured employer’s business. Neither can I accede to today’s dissent which counsels the court to invalidate the insurance policy’s restrictive language excluding from UM coverage persons in vehicles operated on the insured’s business but not owned by the insured. An insurance policy that restricts UM coverage to vehicles owned by the insured — i.e., to those which are covered for liability and for UM protection — does not offend the terms of § 3636.

¶ 2 More simply stated, I can find no textually demonstrable warrant in the language of § 3636 for creating, by our pronouncement in this case, a compulsory UM coverage for on-the-job vehicular injuries inflicted (by under- or uninsured tortfeasors) upon persons in automobiles not owned by the insured employer. A contrary resolution of this legal question would, by judicial fiat, establish a mandatory insurance regime clearly duplicative of (or parallel with) the employer’s statutory workers’ compensation liability. In short, one who as owner insures a fleet of vehicles for liability and UM protection but its non-owned automobiles solely for respondeat superior liability, will not be deemed, by its failure to reject in writing UM coverage for non-owned vehicles, to have purchased UM protection for the latter automobiles.

¶ 3 I hence concur in the court’s opinion and join the separate writing by HODGES, J.

HODGES, J.,

concurring, with whom Opala, J. joins.

¶ 1 This case involves uninsured motorist/under insured motorist (UM/UIM) coverage. While on the job, Winfred Nimrod Graham, an employee of CKE Restaurants (CKE), was injured. At the time, Graham was driving his own car. CKE’s liability insurance policy covered employees while they were driving their own cars, but excluded the same employees under its UM/UIM provisions. Graham sued the insurance carrier under the UM/UIM provisions.

¶ 2 The issue of first impression is whether section 3636 requires that UM/UIM coverage be provided to all persons covered for liability. Section 3636 requires that an insurer offer UM/UIM coverage in the same amount as liability. It also provides that the name insured has the right to reject UM/UIM coverage in writing. Further, in Shepard v. Farmers Ins., 1983 OK 103, ¶ 2, 678 P.2d 250, 251, this Court held that parties can limit or restrict the insurer’s liability so long as the restriction or limitation does not violate public policy. In the present case, the exclusionary language “does not violate the express statutory provisions of [section 3636], rather it exists as an unambiguous contract provision. To interpret the contract or the statute differently would be to rewrite one or both....” See id.

¶ 3 Nothing in title 36, section 3636 invalidates the contractual limitation in the current policy. Because the parties intended to limit the insurer’s exposure and the limitation does not violated section 3636’s statement of public policy, I concur in the Court’s opinion.

BOUDREAU, Justice,

dissenting:

¶ 1 The automobile policy in dispute is comprised of, among other things, liability and UM coverages. Winfred Nimrod Graham (Graham) is covered under the liability portion of the policy by an endorsement that expands the policy definition of who is an insured to include employees conducting company business in their own car. Graham is not covered under the express terms of the UM provisions because they do not provide UM coverage to employees injured while driving a car not owned by the employer. (Here, Graham was conducting company business while driving his own car at the time of the accident.) The first impression question to be decided is whether the Oklahoma Uninsured Motorist Statute, 36 O.S. 2001 § 3636, requires that UM coverage be provided to the same class of persons who are covered for liability under the automobile policy.

¶ 2 The Oklahoma Uninsured Motorist Act (UM statute) provides in pertinent part:

A. No policy insuring against loss resulting from liability imposed by law for bodily injury or death suffered by any person arising out of the ownership, maintenance or use of a motor vehicle shall be issued, delivered, renewed, or extended in this state with respect to a motor vehicle registered or principally garaged in this state unless the policy includes the coverage described in subsection B of this section.
B. 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.

36 O.S. § 3636 (emphasis added). Under Oklahoma law, insurance policies are issued pursuant to statute and the statutory provisions are given force and effect as if written into the policies. Shepard v. Farmers Ins. Co., 1983 OK 103 ¶ 2, 678 P.2d 250, 251. Thus, we must interpret the insurance policy at issue in this case in light of § 3636.

¶ 3 The resolution of this case depends upon our interpretation of the statutory-phrase “for the protection of persons insured thereunder.” Generally, statutes must be interpreted in accordance with their plain, ordinary meaning according to the import of the language used. In re Certification of Question of State Law, 1977 OK 16, 560 P.2d 195. Nevertheless, courts may adopt a restricted meaning of statutory words where using the literal meaning of the words would lead to an absurd result or thwart the obvious legislative purpose of the statute. State ex rel. DHS v. Weinberger, 741 F.2d 290 (10th Cir.1983), cert, denied, Farrah v. U.S., 466 U.S. 971, 104 S.Ct. 2343, 80 L.Ed.2d 817 (1984).

¶ 4 By its express terms, § 3636 requires that insurance companies issuing policies in Oklahoma must “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 ... ”, (emphasis added). Applying the plain, ordinary meaning of the words used in this statutory phrase, the phrase requires UM coverage to be coextensive with the coverage afforded under the comprehensive liability portion of any given policy. The majority opinion, however, refuses to give the phrase a literal construction even though it makes no finding that using the literal meaning of the words would lead to an absurd result or thwart the obvious legislative purpose of the UM statute.

¶ 5 The purpose behind the UM statute is to place the insured in the same position as if the negligent uninsured motorist had complied with Oklahoma laws concerning financial responsibility. McSorley v. Hertz Corp., 1994 OK 120, 885 P.2d 1343. The UM statute is clearly designed to make UM coverage widely available in automobile policies throughout Oklahoma. Ascribing a literal meaning to the words “persons insured thereunder” requires insurers to extend UM coverage to the same class of persons who are covered for liability under the policy. This interpretation does not lead to an absurd result. Moreover, it not only does not thwart the obvious legislative purpose of the statute, it promotes it.

¶ 6 Our previous uninsured motorist cases did not signal the decision reached today by the majority. In Cothren v. Emcasco Ins. Co., 1976 OK 137, 555 P.2d 1037, we held that attempts to tie UM coverage to the vehicle rather than to the person are unenforceable. In Cothren, the appellant was injured while riding as a passenger on a motorcycle which was struck by an uninsured vehicle. He sought to enforce the UM provisions of his father’s liability policy, but the trial court granted summary judgment in favor of the insurer on the ground that the motorcycle was not listed as an insured vehicle under the father’s policy. Although the motorcycle was not listed as an insured vehicle, the UM provision defined an insured as “the named insured and any designated insured and, where residents of the same household, the relatives of either.” Id. at ¶ 5, 555 P.2d at 1038. Thus, as a relative of the named insured, the appellant was an insured under the UM provision of his father’s policy. We held that the exclusionary language of the policy (which denied the appellant coverage based on the fact that the motorcycle was not a covered auto) was contrary to public policy and therefore void. Id. at 16, 555 P.2d at 1040. In other words, we held in Cothren that once a person is an insured under the UM provisions of an insurance policy, exclusions which attempt to tie coverage to the vehicle rather than to the person are contrary to § 3636 and are unenforceable.

¶ 7 The majority opinion relies on Shepard v. Farmers, 1983 OK 103, 678 P.2d 250, for the principle that parties to an insurance contract are free to agree upon the terms of the contract in a manner which limits or restricts the insurer’s liability as long as the terms are neither unconscionable nor viola-tive of the public policy expressed in the UM statute. While Shepard does stand for the proposition that parties to an insurance contract can agree to define who is an insured for purposes of automobile liability and UM coverage, it sheds very little light on the issue of whether our statute requires UM coverage to be coextensive with the coverage afforded under the liability portion of the policy. This is because unlike Graham, the plaintiff in Shepard was not covered as an insured under the liability provision of the insurance policy.

¶ 8 In Shepard we upheld the policy definition of an insured which excluded from coverage a relative of the insured living in the same household if the relative owned his/her own vehicle. In other words, Shepard was excluded as an insured by definition. Nevertheless, the Shepard opinion does include the following language:

Although upholding the exclusionary language might appear to create a situation in which a relative vehicle owner would receive less protection than a relative non-owner merely based upon vehicle ownership, coverage in each case stems not from owning an automobile, but from falling within the definition of an “insured” under any given contract.

Shepard, Id. at 7, 678 P.2d at 252 (emphasis added).

¶ 9 The majority opinion also relies on Moser v. Liberty Mutual Ins. Co., 1986 OK 78, 731 P.2d 406, in which a federal court requested that we determine the applicability of § 3636 to a policy of excess (umbrella) coverage. In Moser, the excess policy involved was separate from the primary policy and, like other excess policies, was designed to cover situations in which corporate liability exceeded the limits of the primary policy. We held that policies providing excess (umbrella) coverage are not required to include UM coverage. Id. at 8, 731 P.2d at 409. Moser is inapposite. The policy in controversy is primary; it is not an excess (umbrella) policy either by its terms or by its “other insurance” clause (which makes it excess under some circumstances).

¶ 10 UM coverage should extend to the same class of persons who are covered under the comprehensive liability portion of any given policy. This is in accord with the manner in which the vast majority of other jurisdictions have construed their respective uninsured motorist statutes. See State Farm Auto. Ins. Co. v. Reaves, 292 Ala. 218, 292 So.2d 95 (1974), overruled on other grounds by State Farm Mut. Auto. Ins. Co. v. Wallace, 743 So.2d 448 (Ala.1999); First Sec. Bank v. Does, 297 Ark. 254, 760 S.W.2d 863 (1988); McMichael v. Aetna Ins. Co., 878 P.2d 61 (Colo.App.1994); Homick v. Owners Ins. Co., 511 N.W.2d 370 (Iowa 1993); Kats v. American Family Mut. Ins. Co., 490 N.W.2d 60 (Iowa 1992); Bertini v. State Farm Mut. Auto. Ins., 48 Ill.App.3d 851, 6 Ill.Dec. 435, 362 N.E.2d 1355 (1977); Vernon Fire & Cas. Ins. Co. v. American Underwriters, Inc., 171 Ind.App. 309, 356 N.E.2d 693 (1976); Babin v. State Farm Mut. Auto. Ins. Co., 504 So.2d 558 (La.App.1987); Thomas v. Allstate Ins. Co., 321 So.2d 808 (La.App.1975); Pappas v. Central Nat’l Ins. Group of Omaha, 400 Mich. 475, 255 N.W.2d 629 (1977); Roach v. Central Nat’l Ins. Co., 60 Mich.App. 40, 230 N.W.2d 297 (1975); Georgeson v. Fidelity & Guaranty Ins. Co., 48 F.Supp.2d 1262 (D.Mont.1998); Allied Mut. Ins. Co. v. Action Electric Co., Inc., 256 Neb. 691, 593 N.W.2d 275 (1999); Rau v. Liberty Mut. Ins. Co., 21 Wash.App. 326, 585 P.2d 157 (1978). These courts concluded this is the most sensible reading of the phrase “persons insured thereunder” as provided in their uninsured motorist statutes. As one court explained: “If insurers are allowed to designate a separate and smaller category of persons insured under uninsured motorist coverage, then the broad-based protection which the legislature intended to require could be contractually restricted at the whim of insurers.” Kaysen v. Federal Ins. Co., 268 N.W.2d 920, 924-25 (Minn.1978).

      . In its motion for summary judgment, the defendant/appellee stated that its corporate name is Travelers Indemnity Company of Illinois, rather than Travelers Insurance Company, the name in the slyle of this case.

      . Rules for District Courts of Oklahoma, 12 O.S. 2001, ch. 2, app., Rule 13(e) provides:
      "e. If it appears to the court that there is no substantial controversy as to the material facts and that one of the parties is entitled to judgment as a matter of law, the court shall render judgment for said party.
      "If the court finds that there is no substantial controversy as to certain facts or issues, the court may enter an order specifying the facts or issues which are not in controversy and direct that the action proceed for a determination of the remaining fact or issues. An order denying either summary judgment or summary disposition is interlocutory and is not reviewable on appeal prior to final judgment.”

      . Although the accident occurred in 1997, the pertinent sections of 36 O.S.2001, § 3636, have remained unchanged since the 1994 amendments, 1994 Okla.Sess.Laws, ch. 294, § 5. The statute states in pertinent part:
      “ § 3636. Uninsured motorist coverage
      “A. No policy insuring against loss resulting from liability imposed by law for bodily injury or death suffered by any person arising out of the ownership, maintenance or use of a motor vehicle shall be issued, delivered, renewed, or extended in this state with respect to a motor vehicle registered or principally garaged in this state unless the policy includes the coverage described in subsection B of this section.
      "B. 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....”

      "F. A named insured or applicant shall have the right to reject uninsured motorist coverage in writing, and except that unless a named insured or applicant requests such coverage in writing, such coverage need not be provided in or supplemental to any renewal, reinstatement, substitute, amended or replacement policy where a named insured or applicant had rejected the coverage in connection with a policy previously issued to him by the same insurer.”

      . As it is stated in today’s opinion, the version of § 3636 found in the 2001 decennial compilation has remained unchanged since 1994. It was in force when the accident in suit occurred in 1997.

      . Before today, we have interpreted § 3636 to require only that UM coverage be included in any insurance policy providing for liability coverage, unless UM coverage is rejected in writing. See, e.g., Chambers v. Walker, 1982 OK 128, 653 P.2d 931.

      . Further, Graham’s entitlement to UM coverage is limited by Oklahoma law to the statutorily mandated minimum coverage. See O’Neill v. Long, 2002 OK 63, 54 P.3d 109; Moon v. Guarantee Ins. Co., 1988 OK 85, 764 P.2d 1331.