UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

VICKIE BROOKS, 

 Plaintiff - Appellant, 

v. 

PHILADELPHIA INDEMNITY 

INSURANCE COMPANY, 

 Defendant - Appellee. 

No. 21-6052 

(D.C. No. 5:18-CV-00603-G) 

(W.D. Okla.) 

_________________________________ 

ORDER AND JUDGMENT*

_________________________________ 

Before TYMKOVICH, Chief Judge, MATHESON and PHILLIPS, Circuit Judges. 

_________________________________ 

This appeal arises from the denial of a Rule 59 motion for reconsideration 

arising from the district court’s entry of summary judgment on Philadelphia 

Indemnity’s defense of non-coverage against an uninsured motorist claim. Vickie 

Brooks contends the court erred in applying Oklahoma and Tenth Circuit case law. 

We conclude that the district court correctly applied Oklahoma law. Ms. Brooks 

breached the Philadelphia policy by settling an automobile accident claim with two 

other insurance companies before notifying Philadelphia of personal injuries she 

suffered from the accident. 

* This order and judgment is not binding precedent, except under the doctrines 

of law of the case, res judicata, and collateral estoppel. It may be cited, however, for 

its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. 

FILED 

United States Court of Appeals 

Tenth Circuit 

February 10, 2022

Christopher M. Wolpert 

Clerk of Court

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BACKGROUND 

Ms. Brooks was driving a company vehicle when an underinsured motorist hit 

her.1

 The accident allegedly caused both damage to the vehicle and personal injury to 

Ms. Brooks. At the scene of the accident, police created an accident collision report, 

which included the name of the insurer, Philadelphia, and Philadelphia’s insurance policy 

number. There is no indication that anyone but Ms. Brooks could have provided this 

information to the police, and the collision report was accessible to her at any time after 

the accident. She did not report any personal injuries to police. 

Ms. Brooks’s employer then reported the accident to Philadelphia but did not 

claim any damages, either to the car or arising from Ms. Brooks’s injuries. Thus, 

Philadelphia had no way of knowing that any investigation was needed. Ms. Brooks also 

reported the accident to the underinsured motorist’s insurer, State Farm, and her personal 

insurer, AAA. 

Ms. Brooks apparently then made a claim to AAA and State Farm for personal 

injuries. She subsequently settled with AAA for $25,000 and State Farm for $50,000. In 

doing so, she released all interested parties from liability. This included anyone that Ms. 

Brooks knew had an interest in the claim, not just the parties to the contract.2

 

1

 The district court found that Ms. Brooks worked for Avalon Correctional 

Services, while Ms. Brooks states on appeal that her employer was First Enterprise 

Equipment. Because the parties agree on the relevant insurance contract, this is not a 

material fact. 

2

 Because we affirm for the same reasons as the district court, it is not 

necessary to consider whether Ms. Brooks’s settlements separately destroyed 

Philadelphia’s obligation to pay her claim. 

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Months later, Ms. Brooks’s counsel sent a letter to Philadelphia asking for the 

policy, which included coverage for uninsured or underinsured motorists. When Ms. 

Brooks learned of the underinsured motorist coverage, she submitted a claim. 

Philadelphia did not respond to the claim. 

Ms. Brooks then sued Philadelphia in the district court. Philadelphia moved for 

summary judgment on the basis that, under Oklahoma law, Ms. Brooks’s settlements 

with AAA and State Farm obviated Philadelphia’s duty to pay her claims, arguing the 

settlements destroyed its ability to seek contribution from the other insurance companies. 

The district court granted summary judgment for Philadelphia, relying on an 

Oklahoma case holding that if an insured settles a claim without notice to his or her 

insurer, coverage is forfeited under the insurance contract. See Porter v. MFA Mut. Ins. 

Co., 643 P.2d 302, 305 (Okla. 1982). Because Ms. Brooks entered into two settlements 

without notice to Philadelphia, the district court found that she had forfeited any claims 

under the policy. Thus, Philadelphia was not liable for any of Ms. Brooks’s damages. 

Ms. Brooks filed a motion for reconsideration in light of a Tenth Circuit case 

interpreting Porter: Phillips v. New Hampshire Ins. Co., 263 F.3d 1215, 1222 (10th Cir. 

2001). In Phillips, we held that “even if the UM carrier is legally barred from exercising 

its subrogation rights against the tort-feasor, it must still pay its insured unless it would be 

unfair in light of the insured’s knowing, affirmative, and prejudicial conduct.” Id. If an 

insured’s settlement is made without knowledge of a potential conflict with the insured’s 

policy, the insured does not forfeit coverage under the insurance contract. Id. Ms. 

Brooks argued that she was not specifically aware that the Philadelphia policy included 

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potentially applicable underinsured motorist coverage since she had never seen the 

policy. The district court found that this was not sufficient to make her settlements 

unknowing or involuntary under Phillips, and it denied her motion for reconsideration. 

ANALYSIS 

Ms. Brooks argues that the district court erred by misinterpreting Phillips.

3

 We 

agree with the district court in finding that Phillips does not apply to Ms. Brooks’s case. 

Under Oklahoma law, 

if an insured settles with and releases a wrongdoer from liability for a loss 

before payment of the loss has been made by the insurer, the insurer’s right 

of subrogation against the wrongdoer is thereby destroyed. Also as a 

general rule an insured who deprives insurer, by settlement and release, of 

its right of subrogation against the wrongdoer thereby provides insurer with 

a complete defense to an action on the policy. 

Porter v. MFA Mut. Ins. Co., 643 P.2d 302, 305 (Okla. 1982) (footnotes omitted); see 

also Okla. Stat. tit. 36, § 3636(F)(1)-(2); Brambl v. GEICO General Ins. Co., 

No. 10-CV-474-TCK-PJC, 2011 WL 5326076, at *2-3 (N.D. Okla. Nov. 4, 2011) (“[T]he 

insured’s voluntary settlement with the tortfeasor destroys the UM carrier’s subrogation 

rights and operates as a forfeiture of any UM Case coverage.”). Thus, an insured who 

enters into a settlement with a tortfeasor, without notice to his own insurance company, 

forfeits any underinsured motorist coverage. By settling, the insured destroys the 

3

 Ms. Brooks also argued that the district court improperly found that she had 

knowledge of the policy when she did not know the relevant policy provision. This 

argument simply reframes Ms. Brooks’s argument under Phillips. Both turn on whether 

specific and actual notice is required. Because Ms. Brooks’s Phillips argument fails, her 

argument that the district court improperly found an essential fact also fails. 

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insurer’s right of subrogation, or ability to sue in the shoes of the insured.4

 Under Porter, 

because Ms. Brooks entered into two settlements with the tortfeasor’s insurers and did 

not give notice to Philadelphia, she forfeited her claims under the Philadelphia policy. 

But in Phillips v. New Hampshire Insurance Co., 263 F.3d 1215, 1222 (10th Cir. 

2001), we identified an exception to the Porter rule that settlement without notice voids 

an insurer’s duty to pay. There, the insured did not know whether her employer had an 

insurance policy on the vehicle. Nonetheless, she requested production of any 

automobile insurance policies that the employer had. The employer did not respond to 

her interrogatories, and it failed to produce the insurance agreement until seven months 

after the insured had already entered into a settlement agreement. 

In Phillips, we held that an insured who was not able to obtain information, 

despite her best efforts, about whether the vehicle was insured or which insurance 

company covered the vehicle was not bound by Porter. Id. (defining a “knowing” 

insured as one who “knew at the time the release was signed that he/she was impairing 

any prospective subrogation rights of his/her insurer”). Only after Phillips had already 

4

 Ms. Brooks also contends there was no prejudice to Philadelphia due to the 

destruction of its subrogation rights. She cites Phillips for this argument. In Phillips, the 

tortfeasor was judgment-proof, so the court noted that even if the insured had given 

notice, there was no indication that the insurance company could have collected. But 

Oklahoma courts have presumed that a tortfeasor has some assets, unless that 

presumption is contested or rebutted. See, e.g., Porter v. MFA Mut. Ins. Co., 643 P.2d 

302, 305 (Okla. 1982) (finding that barring the insurer “from exercising its lawful right of 

recourse” against the tortfeasor prejudices the insurer, without discussion of whether the 

tortfeasor had any assets). Here, there is no argument that the tortfeasor is judgmentproof. Thus, it was not error to find that Philadelphia was prejudiced by its inability to 

sue. 

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settled did her employer finally respond that the vehicle was insured. Id. (“Ms. Phillips 

executed the release before even obtaining NHIC’s identity or a copy of the policy.”). 

Because Phillips had no way of finding out whether the vehicle had insurance coverage, 

the Phillips court found that her settlement could not have been a knowing and voluntary 

breach of her notice obligation. Further, she had no way of providing the insurance 

company with notice of the settlement, as required by Oklahoma law. Thus, she did not 

forfeit her insurance coverage when she settled with the tortfeasor before she could have 

possibly known about the existence of the insurance policy. 

Ms. Brooks entered into two settlement agreements without notice to Philadelphia. 

Under Porter, this negates Philadelphia’s duty to pay her claim. 643 P.2d at 305. Ms. 

Brooks argues her settlements fall under the Phillips exception, since she did not have 

actual notice of the underinsured motorist coverage. The district court found that Ms. 

Brooks was aware of the policy’s existence: The Collision Report was generated from an 

investigation made at the scene and identified Philadelphia as the insurer of Ms. Brooks’s 

work vehicle. She thus had actual notice of a potentially applicable insurance policy. 

Ms. Brooks, moreover, does not deny that she had actual knowledge of the identity of the 

insurer, Philadelphia, and the policy number. She argues instead that she was not aware 

of the “details.” App. Br. at 9. 

Ms. Brooks could have obtained the policy provisions by contacting 

Philadelphia—which her counsel eventually did. She claims her initial failure to obtain 

this information makes her settlements unknowing under the logic of Phillips. We 

disagree. In Phillips, the insured used her best efforts but was not able to obtain her 

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policy in the face of recalcitrance by her employer. We emphasized that the insured 

“requested information about, and production of, any automobile insurance policies her 

employer had in force, but her employer did not respond [until after the settlement].” 

Phillips, 263 F.3d at 1218. 

Here, Ms. Brooks knew of the policy but did not procure and read its provisions 

until after the settlements. Ms. Brooks could have obtained the specific information by 

reaching out to Philadelphia, as her counsel eventually did. Ms. Brooks, unlike Phillips, 

could have obtained all the necessary information with a modicum of due diligence. 

Thus, her settlement was knowing and voluntary as explained in Phillips. Ms. Brooks 

does not fall under an exception to the general rule that her settlement voids 

Philadelphia’s duty to pay. 

For the reasons stated above, the district court correctly denied Ms. Brooks’s 

motion to reconsider. Thus, we AFFIRM the decision of the district court. 

Entered for the Court 

Timothy M. Tymkovich 

Chief Judge 

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21-6052, Brooks v. Philadelphia Indemnity Insurance Company 

PHILLIPS, J. dissenting. 

 Philadelphia had two required showings to meet its summary-judgment burden: 

(1) that Ms. Brooks “knowingly and voluntarily” destroyed Philadelphia’s subrogation 

rights with a settlement and release, and (2) that the release “actually prejudiced” 

Philadelphia. On the first point, I note that Philadelphia hasn’t maintained that Ms. 

Brooks knew that her employer’s automobile policy contained underinsured-motorist 

(“UM”) coverage for her. As the majority notes, “[w]hen Ms. Brooks learned of the 

underinsured motorist coverage, she submitted a claim.” Maj. Op. at 3. By then, she had 

settled and issued general releases. On the second point, Philadelphia hasn’t argued that it 

would have pursued the negligent driver or her insurer for subrogation—a minimum 

requirement to show actual (as opposed to theoretical) prejudice. For these reasons, as 

elaborated on below, I respectfully dissent. 

I. “Knowing and Voluntary” 

 In Porter v. MFA Mutual Insurance Co., 643 P.2d 302, 305 (Okla. 1982), the 

Oklahoma Supreme Court stated the “general rule” that “an insured who deprives [an] 

insurer, by settlement and release, of its right of subrogation against the wrongdoer 

thereby provides [the] insurer with a complete defense to an action on the policy.” 

Because Mr. Porter settled and released “the responsible party” (the negligent driver who 

injured him) from further liability before notifying his insurer (which covered UM 

benefits), he prevented his insurer “from exercising its lawful right of recourse against the 

responsible party[.]” Id. So the court held that Mr. Porter “was thereby precluded from 

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2 

bringing action on the uninsured motorist policies.” Id. Importantly, Mr. Porter’s 

knowledge of the UM coverage as contained in his policy was undisputed—he had earlier 

notified his insurer that he might make an UM claim on his policy. Id. at 303. 

In Phillips v. New Hampshire Insurance Co., 263 F.3d 1215 (10th Cir. 2001), we 

applied Porter’s general rule to the facts of Phillips—we didn’t create an “exception” to 

Porter’s general rule as the majority says. See Maj. Op. at 5. Unlike in Porter, the 

claimant in Phillips didn’t know whether her employer had an insurance policy that 

covered her for UM benefits. Phillips, 263 F.3d at 1218. Trying to find out, she filed suit 

and served interrogatories asking about any such insurance. Id. In response, her employer 

stalled for eighteen months before answering the interrogatory and providing the 

insurance policy. See id. By then, the claimant had settled with the tortfeasor and 

provided a release. Id. In this circumstance, we held that she had not “knowingly and 

voluntarily” destroyed the insurer’s subrogation rights. Id. at 1223. 

 The majority relies on these two cases to support its holding that Ms. Brooks 

“knowingly and voluntarily” destroyed Philadelphia’s subrogation rights despite her not 

knowing that the policy contained UM coverage. It does so by pointing to information 

that was available to her in the police report from the traffic accident. The report 

identified Philadelphia as the insurer of her employer’s automobile and listed the 

insurance-policy number. But neither Porter nor Phillips treats constructive knowledge 

of an insurance policy as the equivalent of actual knowledge. How can a claimant who 

doesn’t know whether a policy provides her UM coverage knowingly and voluntarily 

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destroy subrogation for UM-coverage payments?1

 Also noteworthy, to get to constructive 

knowledge, the majority speculates that “a modicum of due diligence” would have 

revealed to Ms. Brooks the presence of UM coverage. See Maj. Op. at 7. But we should 

remember that Philadelphia took months to produce the policy after the claimant asserted 

a claim for UM benefits. See id. And we should remember that on summary judgment, 

the non-movant gets the benefit of the doubt on disputed facts. 

 Further, the majority fails to acknowledge Phillips’s language saying that “in 

commercial/business policies that cover employees, the UM/UIM insurer may also have a 

concomitant duty to inform an injured employee-insured who may be ignorant of 

potential coverage and contract terms of its right to contractual or statutory subrogation if 

the insurer wishes to later elect to exercise that right.” 263 F.3d at 1224 (citing Sexton v. 

Cont’l Cas. Ins., 816 P.2d 1135, 1138 (Okla. 1991), which notes that an insurer has a 

1

 I also disagree with the district court’s handling of Philadelphia’s summaryjudgment burden. The district court stated that “while Plaintiff’s brief argues that 

Defendant’s status as a UM carrier was not known to Plaintiff at the time she signed her 

release, this argument is not supported by affidavit or deposition testimony or any other 

evidentiary material permitted under Rule 56.” But Rule 56 doesn’t require Ms. Brooks 

to file such materials until Philadelphia had introduced admissible evidence that she knew 

about the UM coverage. It didn’t do so. Under our precedent, the summary-judgment 

burden shifts to the non-movant only once the movant meets its initial burden of 

establishing no material disputes of fact. See Reed v. Bennett, 312 F.3d 1190, 1195 (10th 

Cir. 2002); see also Big O Tire Dealers, Inc. v. Big O Warehouse, 741 F.2d 160, 163 (7th 

Cir. 1984) (“Where the moving party fails to meet its strict burden of proof, summary 

judgment cannot be entered even if the opposing party fails to respond to the motion.”). 

But here, Philadelphia failed to meet its burden of showing that Ms. Brooks had actual 

knowledge, so no affidavit from Ms. Brooks was needed. 

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duty to “aid its insured in the preservation of its subrogation rights”).2

 Here, Philadelphia 

knew that Ms. Brooks had been involved in an accident on an interstate highway in which 

another car had spun into the driver’s side of her car and spun it too. The accident was 

serious, and clearly more than a parallel-parking mishap or some such. Yet Philadelphia 

made no attempt to inform Ms. Brooks of Philadelphia’s UM coverage or any interest it 

might have in pursuing subrogation against the negligent driver. 

 Additionally, the majority fails to credit Oklahoma’s stated public policy 

underlying its UM laws. As we noted in Phillips, “[b]ecause [the Oklahoma] UM statute 

is remedial and mandates the inclusion of UM coverage in motor vehicle insurance 

policies, it is to be liberally construed to accomplish the legislative purpose, that of 

providing coverage for injuries which would otherwise go uncompensated.” 263 F.3d 

at 1224 (quoting Forbes v. Shelter Mut. Ins. Co., 904 P.2d 159, 162 (Okla. Civ. App. 

1995)). And as further stated in Phillips, “[t]he central goal of [Okla. Stat. Ann. tit. 36 

§ 3636, Uninsured Motorist Coverage] is to protect victims injured by uninsured or 

underinsured motorists (or by insured motorists whose carriers become insolvent) by 

ensuring payment of damages.” Id. (citing Barnes v. Okla. Farm Bur. Mut. Ins. Co., 11 

P.3d 162, 173 (Okla. 2000)). Those policies don’t square with the majority’s new 

constructive-knowledge rule. 

2

 The court next notes that “[a]t the very least, the insurer has a duty to promptly 

produce a policy on request to an injured employee with a colorable claim under the 

policy so that the employee may ascertain whether he is covered and what responsibilities 

he has under the contract.” Phillips, 263 F.3d at 1224 (emphasis added). 

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II. “Actual Prejudice” 

 The district court committed another error requiring reversal of its summaryjudgment order. Philadelphia didn’t offer evidence that it was “actually prejudiced” by 

Ms. Brooks’s releases. In Phillips, we predicted that “the Oklahoma Supreme Court 

would hold that [the UM insurer] may not rely on the Porter defense if it was not actually 

prejudiced by the signing of the release.” 263 F.3d at 1222. We concluded that “[a]ctual, 

not just theoretical, prejudice is a necessary element of a Porter defense because only the 

insured’s conduct that causes injury to the insurer can be unfair.” Id. at 1223. And that 

“because [the UM insurer] did not allege any undisputed facts to establish that it was 

actually injured by Ms. Phillips’ conduct, it failed to satisfy its summary judgment 

burden.” Id. 

 At the least, to meet its summary-judgment burden on actual prejudice, 

Philadelphia needed to show that it would have pursued the tortfeasor (the negligent 

driver) for whatever UM benefits it eventually decided to pay Ms. Brooks.3 See Porter, 

3 See also State Farm Mut. Auto. Ins. Co. v. Green, 89 P.3d 97, 104 (Utah 2003) 

(“In order to show actual prejudice, it is not sufficient for an insurer to show that its right 

of subrogation has been extinguished. Rather, the insurer may deny coverage only if it 

would have had a realistic possibility of recovering from the tortfeasor had its 

subrogation right not been foreclosed by the insured’s settlement with the tortfeasor. This 

requires an assessment of factors such as the assets held by the tortfeasor, the strength of 

the insurer’s subrogation claim (i.e., the strength of the underlying tort claim), the 

expenses and risks of litigating the insured’s cause of action, and the extent of the 

victim’s damage.”); Hasper v. Center Mut. Ins. Co., 723 N.W.2d 409, 416 (N.D. 2006) 

(same); Gibson v. State Farm Mut. Auto. Ins. Co., 704 N.E.2d 1, 6 (Ohio Ct. App. 1997) 

(relevant factors include “the amount of assets held by the tortfeasor, the likelihood of 

recovery via subrogation, and the expenses and risks of litigating the insured’s cause of 

action”); Kapadia v. Preferred Risk Mut. Ins. Co., 418 N.W.2d 848, 852 (Iowa 1988) 

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643 P.2d at 305 (tying loss of subrogation rights to the claimant’s release of “a 

wrongdoer,” “the responsible party,” “the tortfeasor,” and “Sheltman”—the named 

negligent driver in that case). As Phillips notes, “the only time taking such action 

[seeking subrogation from a tortfeasor] would be profitable to the UM/UIM carrier is 

when the tort-feasor has assets beyond the liability limits (or settlement offer) of his 

insurance policy that may be collected after judgment.” Id. at 1225. Philadelphia made no 

showing on summary judgment that the negligent driver who injured Ms. Brooks had 

collectable assets worth its time and money to pursue. 

 Addressing the collectability piece of “actual prejudice,” the majority recognizes 

that Phillips found a lack of actual prejudice to the insurer because the “tortfeasor was 

judgment-proof, so . . . even if the insured had given notice, there was no indication that 

the insurance company would have collected.” Maj. Op. at 5 n.4. But then, in my view, 

the majority takes a wrong turn—it contends that “Oklahoma courts have presumed that a 

tortfeasor has some assets, unless that presumption is contested or rebutted,” and 

concludes that Brooks failed to rebut this presumption. Id. But neither Philadelphia nor 

the majority offers support for this “presumption,” and Phillips says otherwise. See 263 

F.3d at 1223 (in discussing actual prejudice, the court stated that “because [the insurer] 

did not allege any undisputed facts to establish that it was actually injured by Ms. 

Phillips’ conduct, it failed to satisfy its summary judgment burden.” (emphases added)). 

(insurer must demonstrate actual prejudice by showing it could have collected from 

tortfeasor under subrogation clause). 

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Moreover, Philadelphia didn’t avail itself of any such “presumption” in its summaryjudgment motion or appellate briefing. 

 As mentioned, the “actual prejudice”-collectability question pertains to the 

tortfeasor, not the tortfeasor’s insurance company that has already paid policy limits on 

the claim. See Op. Br. at 3 (“Ms. Brooks settled with the adverse driver’s carrier, State 

Farm, for his $50,000 liability limits[.]”); see also Chandler v. State Farm Auto. Ins. Co., 

598 F.3d 1115, 1119 (9th Cir. 2010) (“The court then acknowledged that an insurer’s 

obligation runs . . . only to the extent of the policy limits.” (cleaned up)). 

Nor is the majority correct to point to the collectability of any payments made to 

Ms. Brooks by her own insurer, AAA. Once more, the UM insurer’s subrogation right 

applies only against the tortfeasor. See Porter, 643 P.2d at 305 (subrogation rights only 

apply to the tortfeasor); see also Chandler, 598 F.3d at 1117 (“Subrogation is an 

equitable doctrine that permits an insurance company to assert the rights and remedies of 

an insured against a third party tortfeasor.”); Aviation & Gen. Ins. Co., Ltd. v. United 

States, 882 F.3d 1088, 1102 (Fed. Cir. 2018) (Reyna, J., concurring) (“It is well 

established that subrogation is a common law doctrine based in equity that permits an 

insurer to take the place of the insured to pursue recovery from third-party tortfeasors 

responsible for the insured’s loss.”). And to show actual prejudice, Philadelphia must 

have shown that it would have pursued the tortfeasor had its subrogation rights not been 

compromised, which it simply didn’t do here. See State Farm, 89 P.3d at 104 (actual 

prejudice requires more than subrogation being extinguished—“the insurer may deny 

coverage only if it would have had a realistic possibility of recovering from the tortfeasor 

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8 

had its subrogation right not been foreclosed by the insured’s settlement with the 

tortfeasor.”). 

So as a second ground on which the district court should have denied summary 

judgment, I rely on Philadelphia’s failure to meet its burden to show actual prejudice. 

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