UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

________________ _________________ NANCY ANAYA-SMITH, next of kin of Michael Brian Smith, deceased, Plaintiff Counter Defendant - Appellant,

v. FEDERATED MUTUAL INSURANCE COMPANY, Defendant Counterclaimant - Appellee. No. 21-6113 (D.C. No. 5:20- CV-00565-D) (W.D. Okla.)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before HARTZ , BALDOCK , and McHUGH , Circuit Judges.

________________ _________________ This appeal has been abated pending the Oklahoma Supreme Court’s answers to the questions of state law we certifi ed to it on April 25, 2022. The Oklahoma Supreme Court has now ruled, and its answ ers require us to re verse the district court’s grant of summary judgment a nd to remand for further proceedings.

* After examining the briefs and appella te record, this pa nel has determined unanimously that oral argument would not ma terially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Ci r. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value cons istent with Federal Rule of Appellate Procedure 32. 1 and Tenth Circuit Rule 32.1. FILED United States Court of Appeals Tenth Circuit 

### May 23, 2024 Christopher M. Wolpert Clerk of Court Appellate Case: 21-6113 Document: 010111054433 Date Filed: 05/23/2024 Page: 12 This appeal involves an insurance cove rage dispute between Appellant, Nancy Anaya-Smith, and Appellee, Federated Mutu al Insurance Company (“Federated”). Ms. Anaya-Smith’s husband, Michael Smit h, was killed while a passenger in a car owned by his employer, Fixtur es & Drywall Company of Oklahoma (“FADCO”), and driven by his coworker, Duane Alan Clark, as part of a job assignment. While traveling on I-35 in Oklahoma, the car was involved in a high-speed, single-car accident. Mr. Smith sustained se rious injuries from the accid ent and later died at the hospital. At the time of the accident, FADC O had an insurance policy through Federated. The policy included up to $1, 000,000 of liability coverage and an umbrella policy that provided an additi onal $6,000,000 of liability coverage per accident. These liability limits cover an “insured,” which includes FADCO and “anyone else while using with [FADCO’s] permission a covered ‘auto’ [FADCO] own[s], hire[s] or borrow[s],” subject to certain exceptions. App. at 102. FADCO also purchased uninsured moto rist (“UM”) coverage up to $1,000,000 for “directors, officers, partners, or owners of [FADC O] and family memb ers who qualify as insureds.” Id. at 195. FADCO rejected in writing UM coverage for all other insureds. At the time of the accident, Mr. Smith was no t a director, officer, partner, or owner of FADCO, or a family member of any of those individuals. Because Mr. Smith was on the job a nd traveling in an employer-owned vehicle, the exclusive re medy provision of the Oklaho ma Workers’ Compensation Act barred Mr. Smith and his widow from su ing Mr. Clark or FADCO and benefiting Appellate Case: 21-6113 Document: 010111054433 Date Filed: 05/23/2024 Page: 23 from FADCO’s liability coverage and umbrella policy. Okla. Stat. tit. 85A, § 5. Thus, Ms. Anaya-Smith submitted a claim, seeking to recover on behalf of her late husband under FADCO’s UM policy. When Fe derated denied the UM claim, Ms. Anaya-Smith brought a bad faith claim against Federated in the United States District Court for the Western Distri ct of Oklahoma. Federated submitted a counterclaim for a declaratory judgment that FADCO’s insurance policy does not provide UM coverage for Mr. Smith because (1) the vehicle was not an uninsured vehicle at the time of the accident, and (2 ) the policy’s provision of UM coverage to only FADCO’s directors, officers, partners , owners, and their family members who qualify as insureds does not violate Oklahoma’s UM coverage statute, Okla. Stat. tit. 36, § 3636. Before the district court, the par ties brought cross-motions for summary judgment. In addition to the claim that UM coverage was unavailable to Mr. Smith, Federated argued, in the alte rnative, that if § 3636 re quires named insureds to purchase UM coverage for al l or none of the insureds , the imputed UM coverage would be the minimum $25,000 per person and $50,000 per o ccurrence in the statute, not the $1,000,000 coverage limit FADCO pur chased for its directors, officers, partners or owners, and their family members who qualify as insureds. The district court granted in part and denied in part Federated’s motion and denied Ms. Anaya-Smith’s motion. The dist rict court held (1) the vehicle was an uninsured vehicle at the time of the accident because the driver is immune from tort liability under the exclusive remedy pr ovision of the Oklahoma Workers’ Appellate Case: 21-6113 Document: 010111054433 Date Filed: 05/23/2024 Page: 34 Compensation Act, and (2) FADCO’s policy providing UM coverage for directors, officers, partners, owners, or family members of such individuals who qualify as insureds but rejecting UM coverage for ot her insureds does not violate § 3636. The district court did not reach the question of whether the imputed coverage for insureds who are not directors, officers, partners , owners, or family members of such individuals would be the $1,000,000 limit FADCO purchas ed for its directors, officers, partners, owners, a nd their family members who qualify as insureds or the $25,000 per person a nd $50,000 per occurrence minimu m established by the statute.
See Okla. Stat. tit. 36, § 3636. Ms. Anaya-Smith appealed and moved to certify a question of law to the Oklahoma Supreme Court concerning § 3636. We granted the motion to certify with modifications to the proposed question, and the Oklahoma Supreme Court did not further modify the certified questions. The certified questions were as follows: 1. Where Mr. Smith was injured and killed as a passenger in an employer-owned vehicle that had $7, 000,000 of liability insurance and has not shown the claim would exceed $7,000,000, but where Mr. Smith cannot recover under the policy b ecause the worker’s compensation exclusive remedy provision of [Okla. Stat. tit. 85A, § 5] bars suit against the employer, does that vehicle qualif y as an uninsured motor vehicle within the meaning of [Okla. Stat. tit. 36, § 3636(C)]? 2. Does [Okla. Stat. tit. 36, § 36 36] permit FADCO, a corporate named insured, to purchase uninsured moto rist coverage for its directors, officers, partners, owners, and th eir family members who qualify as insureds, but to reject uninsured motorist covera ge for other persons who qualify as insureds? 3. If FADCO’s insurance policy with Fe derated violates [O kla. Stat. tit. 36, § 3636], does the legislative inte nt or purpose of § 3636 impute the $1,000,000 uninsured motorist cove rage policy limit FADCO purchased Appellate Case: 21-6113 Document: 010111054433 Date Filed: 05/23/2024 Page: 45 for its directors, officers, partners, owners, and their family members who qualify as insureds or [does] the $25,000 per person/ $50,000 per accident minimum uninsured motorist coverage policy limit in § 3636 [apply] to the other persons who qualify as insureds? Anaya-Smith v. Federated Mut. Ins. Co. , --- P.3d ----, 2024 WL 2151104, at *1 (Okla. May 14, 2024) (fifth and si xth alterations in original). The Oklahoma Supreme Court answered two of our certified questions on May 14, 2024. The Oklahoma Supreme Court first held that “a tortfeasor, who is immune from suit due to the exclusive remedy of workers’ compensation, may be an uninsured motorist as a matter of Okla homa law,” and that the vehicle in which Mr. Smith was a passenger qualifies as an uninsured motor vehicle under § 3636(C). Id. at *3–*6. The Oklahoma Supreme Court ne xt held that, once a corporate insured purchases a UM policy under a general automo tive liability policy, it cannot elect to purchase UM coverage for some individuals who qualify as insureds under the policy but not for others pursuant to § 3636. Id. at *6–*9. Finally, the Oklahoma Supreme Court declined to answer the third certifi ed question because “the question of what amount would be payable under the Federate d policy was not decided by the federal district court and has not b een briefed by the parties.” Id. at *10. Appellate Case: 21-6113 Document: 010111054433 Date Filed: 05/23/2024 Page: 56 The ruling from the Oklahoma Supreme Court has resolved this appeal. Accordingly, we REVERSE the district court’s entry of summary judgment for Federated and REMAND the case for further pr oceedings not inconsistent with this court’s order or the opinion of the Oklahoma Supreme Court.

Entered for the Court
Carolyn B. McHugh Circuit Judge Appellate Case: 21-6113 Document: 010111054433 Date Filed: 05/23/2024 Page: 6