* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### AUG 1 1997 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

DARIN P. FARBER,

Plaintiff-Appellant,

v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant-Appellee. No. 96-5187 (D.C. No. 94-CV-1155-K) (N.D. Okla.)

ORDER AND JUDGMENT *

Before BRORBY, BARRETT, and MURPHY, Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously to grant the parties’ request for a dec ision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1.9. The c ase is therefore ordered submitted without oral argument.1 Under Oklahoma law, the term “uninsured” motorist i ncludes an

underinsured motorist, whose liability limits are l ess than the amount sought by a claim. See Okla. Stat. tit. 36, § 3636(C). -2- In this diversity case, plaintiff-appellant Darin P . Farber appeals from the district court’s grant of summary judgment against him on his claim for benefits under uninsured motorist policies issued by defendant-appellee State Farm Mutual Automobile Insurance Company (State Farm). This co urt exercises jurisdiction pursuant to 28 U.S.C. § 1291 and affirms.

BACKGROUND Mr. Farber, an Oklahoma resident, was injured in anautomobile accident on July 17, 1993, when another driver ran a red lig ht and collided with his 1990 Ford pickup truck. The other driver’s insurance wa s inadequate to compensate him for his claimed injuries. Mr. Farber sought un insured motorists’ benefits 1 from State Farm, which had issued ten separate auto mobile insurance policies covering the ten vehicles kept at his family’s ranc h. Mr. Farber lived at the ranch with his mother and stepfather, Lee Roy and Janice West, and worked for the family ranching bus iness, J-Bar-L Incorporated. He owned three of the family’s ten insured vehicles , including the pickup truck involved in the accident. It was Ms. West who deal t with State Farm representatives in purchasing the policies and in c ompleting the necessary2 Mr. Farber has given three different accounts of hi s contacts with State

Farm representatives. At his deposition on February 24, 1995, he stated that he had telephoned State Farm to inform them that he pu rchased the Ford pickup truck, needed full insurance coverage, and wanted t o have the policy listed under the name of Mr. West. See Appellant’s App. at 195-96. He admitted that Ms. West made the contacts on his other two vehicles. Id. at 197. In an affidavit dated October 16, 1995, Mr. Farber added that “[o]nsome occasions . . . I inquired if I shouldn’t have the policies issued inmy name and was advised it was okay and better for us if my vehicles were insured under my parents’ name.” Id. at 198. In an affidavit dated March 15, 1996, Mr. Farber attempted to supplement the record with a statement that a “lady (name unkn own)” at the State Farm office assured him that he was “covered exactly the same” as his mother and stepfather. Id . at 217. We note that the March 15 affidavit was submitted f or the first time in connection with Mr. Farber’s motion to alter or ame nd judgment under Fed. R. Civ. P. 59(e). To supplement a Rule 59(e) motion w ith additional evidence, the movant must show either that the evidence was newlydiscovered or that, for evidence available at the time summary judgment was granted, counsel made a diligent yet unsuccessful attempt to discover it. See Webber v. Mefford , 43 F.3d 1340, 1345 (10th Cir. 1994). Because Mr. Farber’s March 15, 1996 affidavit does not satisfy either requirement, this court will dis regard it. -3- application forms, although Mr. Farber had some contact with them. 2 J-Bar-L Incorporated paid the premiums. The policies, which are identical forms issued by S tate Farm, define the term “insured” as: “1. the first person named in the declarations; 2. his or her
spouse ; 3. any relative who does not own a car; and 4. any other person wh ile occupying

. . . your car .” See, e.g. , Appellant’s App. at 68. Mr. West was the first person named in the declarations of all ten p olicies, even those covering Mr.-4-

Farber’s three vehicles. Each policy provided unin sured motorist coverage of $10,000 per person. After the accident, Mr. Farber sought to aggregate or “stack” coverage under the ten policies, so that a total of $100,000 would be available to pay his claims. Initially, State Farm denied any coverage, but, on August 25, 1995, tendered a check for $10,000, its limit under the p ickup truck policy. State Farm’s explanation was that Mr. Farber met the defi nition of an insured under that policy, as a person occupying the truck at the time of the accident. He was not an insured under any of the other policies as afirst listed person, a spouse of the listed person, or a relative who does not own acar. In the district court, Mr. Farber alleged that Stat e Farm was estopped from denying stacked coverage, or, alternatively, was re quired to provide stacked coverage under the terms of an oral contract. He a lso asserted a claim for bad faith denial of insurance benefits. The court ente red summary judgment in favor of State Farm on all claims and denied Mr. Farber’s Fed. R. Civ. P. 59(e) motion to alter or amend judgment.

DISCUSSION This court reviews the district court’s grant of su mmary judgment de novo, applying the same legal standard used by the distri ct court under Fed. R. Civ. P. 56(c) to determine if any genuine issue of material fact was in dispute and if the3 In the district court, Mr. Farber did not raise the doctrine of reasonable

expectations. Ordinarily, this court will not ente rtain issues that are raised for the first time on appeal. See Jenkins v. Wood , 81 F.3d 988, 996 (10th Cir. 1996). In this instance, however, the court addresses the iss ue on the merits. The Oklahoma Supreme Court did not adopt the doctrine i n the interpretation of insurance policies until after the district court e ntered summary judgment. See Max True Plastering Co. v. United States Fidelity & Guar. Co. , 912 P.2d 861, 862, 870 (Okla. 1996). Furthermore, Mr. Farber’s r easonable expectations argument relies upon the same facts and analysis as his estoppel argument, which was raised and resolved in the district court, but not briefed on appeal. -5- substantive law was correctly applied. See Webber v. Mefford , 43 F.3d 1340, 1342-43 (10th Cir. 1994). In applying the standard , the court is to construe the factual record and all reasonable inferences from t he record in the light most favorable to the party opposing summary judgment. See Blue Circle Cement, Inc. v. Board of County Comm’rs, 27 F.3d 1499, 1503 (10th Cir. 1994). To the extent Mr. Farber is contesting the district court’s denia l of his Rule 59(e) motion to alter or amend the judgment, this court evaluates t he ruling for an abuse of discretion. See Webber, 43 F.3d at 1345. On appeal, Mr. Farber argues that (1) he is entitle d to stacked benefits under the two policies covering his own vehicles, through an oral insurance contract or, alternatively, through application of the doctrine of reasonable expectations 3 and (2) he has a valid bad faith claim against State Farm for its treatment of his claims under all ten policies. Th ese contentions are without merit.4 This analysis is not affected by Mr. Farber’s claimthat State Farm violated

Oklahoma law when it failed to offer him an opportu nity to purchase uninsured motorist coverage. The applicable statute confers the right to reject such coverage on a “named insured or applicant.” Okla. Stat. tit. 36, § 3636(F). Under the uncontested facts, Mr. Farber does not fit into either category. -6- A claimant may stack uninsured motorist coverage un der multiple policies, but “the claimant must first be an insured under ea ch policy,” Mann ex rel. Mann v. Farmers Ins. Co. , 761 P.2d 460, 465 (Okla. 1988) (quoting Shepard v . Farmers Ins. Co , 678 P.2d 250, 252-53 (Okla. 1983)), viewing each policy independently,

see State Farm Mut. Auto. Ins. Co. v. Wendt , 708 P.2d 581, 585 (Okla. 1985). Thus, to stack coverage from the policies on his other two vehicles, Mr. Farber had the burden of showing that he and State Farm ha d reached an oral contract making him the insured under those policies. A val id oral contract requires an actual application or offer to purchase insuranc e and an actual acceptance of the offer, including therein the foll owing elements: 1. The subject of the insurance; 2. The risks insured against; 3. The amount of indemnity; 4. The time when the risk att aches and ends; and 5. The amount of the premium . . . [T]here is no contract until the minds of the parties meet in these respects. Glen Falls Ins. Co. v. Johnson , 403 P.2d 229, 233 (Okla. 1965). A review of the record provides no evidence of an oral contract qua lifying Mr. Farber as an insured under the two policies in question. 4 Moreover, the doctrine of reasonable expectations, an aid in the interpretation of insurance contracts, does not giv e Mr. Farber stacked coverage.-7-

As adopted in Oklahoma, the doctrine is applicable only “to cases in which policy language is ambiguous and to situations where, alth ough clear, the policy contains exclusions masked by technical or obscure language or hidden exclusions.” Max True Plastering Co. v. United States Fidelity & Guar. Co. , 912 P.2d 861, 870 (Okla. 1996). Contrary to Mr. Farber’s contention, the doctrine does not apply to either the alleged, but legally invalid, oral contr act or to the State Farm policy, which provides an unambiguous and nontechnical defi nition of the term “insured.” Finally, Mr. Farber claims that State Farm breached its duty of dealing fairly and in good faith with him in connection wit h all ten State Farm policies. Mr. Farber’s standing to make a bad faith claim, ho wever, is confined to the Ford pickup truck policy. See Townsend v. State Farm Mut. Auto. Ins. Co. , 860 P.2d 236, 238 (Okla. 1993). As the district court corre ctly observed, “there is no evidence in the record reasonably tending to show that State Farm acted in bad faith with respect to this policy under which it ha s already paid Farber in full.” Appellant’s App., 12-13.

CONCLUSION The judgment of the United States District Court fo r the Northern District of Oklahoma is affirmed for substantially the same reasons expressed in the-8-

district court’s orders, entered July 28, 1995, Feb ruary 13, 1996, and June 28, 1996.

Entered for the Court
Michael R. Murphy Circuit Judge