Opinion:Progressive Direct Insurance Co. v. Pope, 2022 OK 4
Subject matter:Insurance Law
Date Decided:January 11, 2022
Trial Court:District Court of Tulsa County; Judge Drummond
Route to this Court:Appeal of a finding implicit in a consent judgment; retained sua sponte by Oklahoma Supreme Court. 
Facts:Appellant, Powell, and Pope were in a motor vehicle accident. Pope left the scene of the collision in violation of  47 O.S. 2011 § 10-103. Pope was charged with and pleaded guilty to violating the statute. Appellee, Progressive, filed this case as a declaratory judgment action seeking a ruling that the treble damages that Pope was exposed to under the aforesaid statute were punitive in nature and excluded by a clause in Progressive’s policy that excludes punitive damages from coverage. Progressive filed a motion for summary judgment seeking a ruling that (1) the statutory treble damages were excluded from its policy; and (2) that Appellant was not entitled to recover attorneys fees. The trial court granted the motion in part, finding that the statutory treble damages were excluded from the policy, but not ruling on the attorney fees issue. The trial court then entered a consent judgment awarding Appellant $2,558.74 in property damage. The consent judgment specifically reserved Appellant’s right to appeal the court’s ruling that  statutory treble damages under 47 O.S. 2011 § 10-10 were excluded from coverage under Appellee’s policy of insurance. 
Standard of Review:De Novo. 
Analysis:Compensatory damages are intended to redress the concrete loss that the plaintiff suffered by reason of the defendant’s wrongful conduct. Punitive damages are aimed at deterrence and retribution. Statutorily specified damages may be compensatory, punitive, or a mixture of the two depending on the legislative purpose served by the particular legislation at issue. A statutorily specified damage is punitive when the primary intent of the statute is to deter a type of behavior.  The civil treble damages language in 47 O.S. 2011 § 10-103 was enacted for the purpose of deterrence. The obvious public policy purpose of the treble damages provision is to provide an added deterrence (in addition to the criminal one) against hit-and-run drivers. This is in contrast to some specified statutory damage provisions that are put in place to encourage plaintiffs to file suit but that are not based upon deterring or punishing a defendant’s conduct. More than 25 years ago, the United States Court of Appeals for the 10th Circuit stated: “Oklahoma courts adhere to the view that public policy prohibits liability insurance coverage of punitive damages except where the party seeking the benefit of insurance coverage has been held liability for hte punitive damages solely due to the conduct of another, under principles of vicarious liability.” In addition, the OKSCT has long recognized that an insurer and insured are free to agree to any provisions in an insurance policy so long as such agreement does not conflict with public policy. The provisions of the insurance policy at issue in this case clearly and unambiguously excludes coverage for intentional acts and for punitive or exemplary damages. Treble damages in 47 O.S. 2011 § 10-103 are punitive for the purpose of the exclusion in the policy at issue in this case and, thus, are properly excluded from coverage. 
Outcome:Affirmed 8-0. 
Vote:DARBY, C.J., KANE, V.C.J., WINCHESTER, EDMONDSON (author), COMBS, GURICH, ROWE, KUEHN, JJ., concur.KAUGER, J. did not participate.
Other: Generally, a party who voluntarily accepts the benefits of a judgment cannot question the validity of the judgment in an appeal. One of the exceptions to this rule may occur when “it is only possible to receive a more favorable judgment, but not a less favorable one,” which is the case here. 
Also, while this was not an appeal under Rule 1.36 because the trial court’s ruling of partial summary judgment was an uncertified interlocutory order, the Supreme Court exercised its control over the form of an appellate record and directed the parties to file a Rule 1.36 appellate record and to prosecute the appeal pursuant to Rule 1.36.