                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           DEC 8 2004
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    RICHARD E. MYERS; SARAH
    MYERS,

                Plaintiffs-Appellants,
                                                         No. 04-7009
    v.                                              (D.C. No. 03-CV-77-P)
                                                         (E.D. Okla.)
    COUNTRY MUTUAL INSURANCE
    COMPANY,

                Defendant-Intervenor-
                Appellee.


                            ORDER AND JUDGMENT            *




Before SEYMOUR , KELLY , and McCONNELL , Circuit Judges.



         After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore

ordered submitted without oral argument.




*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
       In this diversity case, plaintiffs-appellants Richard and Sarah Myers appeal

the district court’s entry of summary judgment in favor of defendant-intervenor-

appellee Country Mutual Insurance Company (Country). The district court

concluded that Illinois law governs the provisions of the auto insurance policy

that plaintiffs purchased from Country, and that under Illinois law plaintiffs’

claim against Country for underinsured motorist coverage was barred by the

two-year limitations period contained in the policy. Having conducted the

required de novo review of the district court’s summary judgment order,     see Adler

v. Wal-Mart Stores, Inc. , 144 F.3d 664, 670 (10th Cir. 1998), we affirm.

       On February 23, 2001, while plaintiffs were traveling through Oklahoma,

their car was struck by a car being driven by Harlan Mogck. Plaintiffs are

residents of Illinois and Mogck is a resident of Oklahoma. Country is

incorporated and domiciled in Illinois. At the time of the accident, plaintiffs were

insured under an auto insurance policy that they purchased from Country in

Illinois.

       Plaintiffs were injured in the accident, and they filed the instant diversity

action against Mogck on February 3, 2003. Plaintiffs did not name Country as a

defendant in their complaint. Instead, on April 23, 2003, plaintiffs’ counsel sent

a letter to Country notifying it that plaintiffs had filed suit against Mogck and that

plaintiffs were asserting a claim against Country for underinsured motorist


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benefits. Plaintiffs’ counsel also “invited” Country to intervene in the case

against Mogck, and counsel warned Country that it would “be bound by any

verdict we may receive as a result of a jury trial.” Aplt. Br., Ex. C.

      Country subsequently filed an application to intervene in this action, and

the district court granted the application. After both plaintiffs and Country filed

motions for summary judgment, the district court entered an order granting

summary judgment in favor of Country, concluding that: (1) “Illinois law governs

the validity, interpretation, application and effect of the provisions of the

[Country policy]”; and (2) “Plaintiffs have failed to comply with the policy

provisions which expressly state[] that any suit, action or arbitration against

[Country] is barred . . . [if] it [is] not commenced within two years after the

accident.” Aplee. Br., Att. A.

      Plaintiffs claim the district court erred in concluding that Illinois law

governs the Country policy. According to plaintiffs, because the accident

occurred in Oklahoma and plaintiffs have sued the tortfeasor in Oklahoma,

“Oklahoma public policy . . . prevent[s] the enforcement of the private two-year

limitations provision.” Aplt. Br. at 3. Plaintiffs assert that their claim against

Country for underinsured motorists benefits was therefore not time-barred, relying

on the Oklahoma Supreme Court’s decision in      Uptegraft v. Home Ins. Co. , 662

P.2d 681, 683 (Okla. 1983) (holding “that actions to recover a loss under . . .


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uninsured motorist coverage are governed by [Oklahoma’s] five year statute of

limitations applicable to written contracts and that a provision in [an] insurance

policy which limits the time for bringing a suit thereunder to less than the

statutory period is void”). Alternatively, plaintiffs assert there is no timeliness

problem here because Country’s application to intervene relates back to the filing

of the original action against Mogck.

       “In a diversity case, we apply the substantive law of the forum state,

including its choice of law rules.”     Garcia v. Int’l Elevator Co. , 358 F.3d 777,

779 (10th Cir. 2004). Under Oklahoma’s choice of law rules, “[t]he validity,

interpretation, application and effect of the provisions of a motor vehicle

insurance contract should be determined in accordance with the laws of the state

in which the contract was made, unless those provisions are contrary to the public

policy of Oklahoma . . . .”     Bohannan v. Allstate Ins. Co. , 820 P.2d 787, 797

(Okla. 1991). “[U]nder        Bohannan the public policy exception may be invoked

only where the other state’s laws [1] violated a clearly expressed public policy

intended to apply to insurance policies effective in Oklahoma, or [2] would

effectively deprive the insured of benefits bargained for under an Oklahoma

insurance policy.”   Burgess v. State Farm Mut. Auto. Ins. Co.    , 77 P.3d 612, 615

(Okla. Ct. App. 2003) (quotation omitted).




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      Because Oklahoma has no connection to the Country policy beyond the

purely fortuitous fact that the accident occurred in Oklahoma, we conclude that

the two-year limitations period does not violate any public policy under Oklahoma

law or deprive plaintiffs of any benefits bargained for under an Oklahoma

insurance policy. Thus, we agree with the district court that Illinois law governs

the Country policy, and that, under Illinois law, the two-year limitations period is

enforceable and bars plaintiffs’ claim against Country for underinsured motorist

benefits. See Parish v. Country Mut. Ins. Co.    , 814 N.E.2d 166, 168-71 (Ill. App.

Ct. 2004) (enforcing identical two-year limitations period).

      We also reject plaintiffs’ argument that Country’s application to intervene

relates back to the filing of the original action against Mogck. To begin with,

Fed. R. Civ. P. 24 does not contain a relation-back provision. In addition,

because Country has denied coverage for underinsured motorist benefits, it is not

a subrogated real party in interest, and there is no basis for applying the relation

back provision in Fed. R. Civ. P. 17(a).

      The judgment of the district court is AFFIRMED.


                                                      Entered for the Court


                                                      Stephanie K. Seymour
                                                      Circuit Judge



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