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SMITH v. SHELTER MUTUAL INSURANCE CO.2014 OK CIV APP 42325 P.3d 26Case Number: 111356Decided: 12/31/2013Mandate Issued: 04/29/2014DIVISION IITHE COURT OF CIVIL APPEALS OF THE STATE OF OKLAHOMA, DIVISION IICite as: 2014 OK CIV APP 42, 325 P.3d 26
JUDY ANN SMITH, as personal representative of the estate of 
Patty Sue Yeater, deceased, Plaintiff/Appellee,v.SHELTER MUTUAL 
INSURANCE COMPANY, Defendant/Appellant,andDANNY RAY BREEDEN and DOYLE 
DAVIS, Defendants.

APPEAL FROM THE DISTRICT COURT OF OKLAHOMA COUNTY, OKLAHOMA
HONORABLE LISA DAVIS, TRIAL JUDGE

REVERSED AND REMANDED WITH DIRECTIONS

George Mullican, Christopher Wolek, Diane M. Black, GIBBS, ARMSTRONG, 
BOROCHOFF, MULLICAN & HART, P.C., Tulsa, Oklahoma, for 
Plaintiff/AppelleeDavid B. Donchin, Glen Mullins, R. Ryan Deligans, DURBIN, 
LARIMORE & BIALICK, Oklahoma City, Oklahoma, for 
Defendant/Appellant


DEBORAH B. BARNES, VICE-CHIEF JUDGE:
¶1 Defendant/Appellant Shelter Mutual Insurance Company (Shelter) appeals the 
trial court's Order granting summary judgment in favor of Plaintiff/Appellee 
Judy Ann Smith (Smith), as personal representative of the estate of Patty Sue 
Yeater, deceased. This case arises from an automobile accident, and the primary 
issue presented on appeal is whether the minimum limit of liability insurance 
coverage is the higher amount set forth in the Motor Carrier Act of 1995 (the 
MCA), 47 O.S.2011 §§ 
230.21-230.33, or whether it is the lower amount set forth in 47 O.S.2011 § 7-324. Based on our 
review of the record and applicable law, we conclude it is the lower amount and, 
therefore, we reverse the Order granting summary judgment to Smith, and remand 
with directions to the trial court to enter an order granting summary judgment 
to Shelter.
BACKGROUND
¶2 Smith filed her second amended petition in July 2011, alleging her mother, 
Patty Sue Yeater (Decedent), was killed when, on an evening in December 2009, 
the vehicle she was driving collided with a dump truck (the truck) owned by 
Doyle Davis (Davis), and operated at the time by Danny Ray Breeden (Breeden). 
Smith alleged Decedent was driving in a lawful manner at the time of the 
accident, but that the truck was parked partially on the roadway without brake 
lights, warning lights, or other warning device to alert approaching traffic of 
its presence.
¶3 Smith asserted various negligence theories against Davis and Breeden, and 
asserted the truck was insured by Shelter at the time of the collision and that 
Shelter is obligated to pay for any damages caused by the negligence of Davis 
and Breeden. Smith further alleged the truck is subject to the MCA, and sought a 
"declaratory judgment . . . establishing that the minimum limits of liability 
insurance coverage mandated by the financial responsibility law that applies to 
this accident are set by . . . § 230.30 in the amount of $350,000.00."1
¶4 In November 2011, Shelter filed an answer in which it admitted the truck 
was owned by Davis and that, on the evening in question, it was parked partially 
on the roadway while operated by Breeden. Shelter further admitted that at the 
time of the collision the truck was insured by Shelter. Shelter otherwise denied 
Smith's allegations, including the allegation that it is obligated to pay for 
damages caused by the negligence of Davis and Breeden. In addition, Shelter 
asserted that legitimate disputes exist between the parties "as to the amount of 
insurance coverage afforded under the Shelter insurance policy," and "as to the 
classification of the vehicle involved in the accident . . . ."2
¶5 Smith settled her claims against Davis and Breeden and dismissed with 
prejudice her cause of action against them, but Shelter remained a defendant. 
Smith subsequently filed a motion for summary judgment against Shelter, to which 
Shelter filed a response, and Smith a reply. In its response, and at the hearing 
on the motion for summary judgment, Shelter agreed it is to pay up to the amount 
allowable pursuant to the insurance policy.3 However, the parties disagree "on the 
issue of the required liability limits for the [truck] under Oklahoma law . . . 
."
¶6 The insurance policy provides that, "[r]egardless of the limit of 
liability shown in the Declarations," when an accident occurs while the truck is 
being operated by an individual who merely has permission or general consent to 
use it, the limits of liability "will be the minimum limits mandated by any 
applicable uninsured motorist insurance law or financial responsibility law."4 It is 
undisputed Breeden is not a named insured under the policy but was operating the 
truck with permission5 at the time of the collision. Smith argues the 
applicable minimum limit of liability insurance coverage is found in the MCA, 
and is $350,000. Shelter argues the MCA does not apply because Breeden was 
neither a motor carrier nor a private carrier, and that the minimum limits of 
liability insurance coverage are $25,000 per person and $50,000 per accident 
pursuant to 47 O.S.2011 § 7-324 
for motor vehicles generally.6
¶7 At the hearing on the motion for summary judgment, the trial court 
explained that although it agreed with Shelter that Breeden was not a "motor 
carrier" pursuant to the MCA, he "fit under the private carrier definition."7 Accordingly, 
the trial court entered an Order, filed on November 27, 2012, granting summary 
judgment in favor of Smith. In the Order, the trial court "[found] that the only 
issue in the case is the limits of insurance under the policy," and found "the 
limits of insurance in the higher amount as sought by [Smith] should be imposed 
as a matter of law . . . ." The trial court stated, "because the only issue in 
the case was related to a dispute on the limits of insurance, this is a final 
judgment." From the trial court's Order, Shelter appeals.
STANDARD OF REVIEW
¶8 "Although a trial court in making a decision on whether summary judgment 
is appropriate considers factual matters, the ultimate decision turns on purely 
legal determinations, i.e. whether one party is entitled to judgment as a matter 
of law because there are no material disputed factual questions." Carmichael 
v. Beller, 1996 OK 48, ¶ 2, 914 P.2d 1051, 1053. Therefore, an 
order that grants summary relief disposes solely of legal questions and is 
reviewable by a de novo standard. Residential Funding Real Estate 
Holdings, LLC v. Adams, 2012 OK 
49, ¶ 17, 279 P.3d 788, 
793-94. See Kluver v. Weatherford Hosp. Auth., 1993 OK 85, ¶ 14, 859 P.2d 1081, 1084 ("Issues of law 
are reviewable by a de novo standard and an appellate court claims for 
itself plenary[,] independent and non-deferential authority to reexamine a trial 
court's legal rulings."). We will examine the pleadings and evidentiary 
materials submitted by the parties to determine if there is a genuine issue of 
material fact, and all inferences and conclusions to be drawn from the 
evidentiary materials must be viewed in the light most favorable to the 
non-moving party. Carmichael, ¶ 2, 914 P.2d at 1053.
¶9 Statutory construction presents a question of law, State v. Tate, 
2012 OK 31, ¶ 7, 276 P.3d 1017, 1020, and, 
therefore, calls "for a legal conclusion to be governed by a de novo 
standard of appellate review. When reexamining a trial court's legal 
rulings, an appellate court exercises plenary, independent and non-deferential 
authority," State v. Native Wholesale Supply, 2010 OK 58, ¶ 9, 237 P.3d 199, 205 (footnotes 
omitted). "The fundamental rule of statutory construction is to ascertain the 
intent of the legislature. Words and phrases of a statute are to be understood 
and used not in an abstract sense, but with due regard for context, and they 
must harmonize with other sections of the Act." Tate, ¶ 7, 276 P.3d at 
1020 (citation omitted).
ANALYSIS
¶10 In the MCA, it is


declared that it is necessary in the public interest to regulate 
    transportation by motor carriers and private carriers in such manner as to 
    recognize the need to require all motor carriers and private carriers to 
    have adequate insurance; for motor carriers and private carriers to provide 
    service in a safe and efficient manner; and to establish that the operations 
    of motor carriers and private carriers will not have a detrimental impact on 
    the environment.
47 O.S.2011 § 230.22(A). "The 
provisions of the [MCA], except as hereinafter specifically limited, shall apply 
to the transportation of passengers or property by motor carriers and private 
carriers, except motor carriers of household goods and used emigrant movables, 
over public highways of this state . . . ." Id. § 230.22(C).
¶11 Of course, not all persons engaged in transporting persons or property on 
public highways are subject to regulation pursuant to the MCA. A "motor carrier" 
is "any person, except a carrier of household goods or used emigrant movables, 
operating upon any public highway for the transportation of passengers or 
property for compensation or for hire or for commercial purposes, and not 
operating exclusively within the limits of an incorporated city or town within 
this state." Id. § 230.23(6).8
¶12 A "private carrier" is defined as "any person engaged in transportation 
upon public highways, of persons or property, or both, but not as a motor 
carrier, and includes any person who transports property by motor vehicle where 
such transportation is incidental to or in furtherance of any commercial 
enterprise of such person, other than transportation[.]" Id. § 230.23(9). 
Smith argues, and the trial court agreed, that any person transporting persons 
or property on public highways is a private carrier so long as he/she is not a 
motor carrier, and so long as the vehicle he/she is operating exceeds the 
26,000-pound weight limitation discussed below. In effect, Smith argues that the 
word "includes," as used in this provision, signifies that what follows it is 
but a subset of what is meant by "private carrier," and that this subset in no 
way circumscribes the class of persons who may be regulated as private 
carriers.
¶13 We disagree with Smith's argument. Where the meaning of a statutory 
provision is uncertain, it is to be given a reasonable construction, one that 
will avoid absurd consequences if this can be done without violating legislative 
intent. Grand River Dam Auth. v. State, 1982 OK 60, ¶ 25, 645 P.2d 1011, 1019. Further, the 
Legislature will not be presumed to have done a vain and useless act in the 
promulgation of a statute, In re Sup. Ct. Adjudication, 1979 OK 103, ¶ 6, 597 P.2d 1208, 1210, nor will an 
inept or incorrect choice of words be applied or construed in a manner to defeat 
the real or obvious purpose of a legislative enactment, Wooten v. Hall, 
1968 OK 90, ¶ 6, 442 P.2d 334, 336.
¶14 The interpretation proffered by Smith would render that portion of the 
definition of "private carrier" describing "transportation . . . incidental to 
or in furtherance of any commercial enterprise of such person, other than 
transportation," superfluous. Although the Legislature's choice of the word 
"includes" to introduce this portion of the definition of private carrier is 
perhaps less than ideal,9 we decline to interpret this portion in a manner 
that would render it entirely vain and useless. Rather, we conclude that, 
pursuant to the above principles of statutory interpretation, and pursuant to 
the doctrine of ejusdem generis,10 the specific enumeration of transportation 
undertaken "incidental to," and "in furtherance of" a commercial enterprise, 
limits the broad class of "any person engaged in transportation upon public 
highways, of persons or property, or both, but not as a motor carrier," to the 
class of non-motor-carrier transportation of persons or property on public 
highways that is related in some meaningful way to a commercial enterprise.
¶15 In addition, only "private carriers operating vehicles having a gross 
registered weight of greater than 26,000 pounds and not operating exclusively 
within the limits of an incorporated city or town in this state" are regulated 
under the MCA. 47 O.S.2011 § 
230.24(A)(1).
¶16 The Oklahoma Administrative Code (OAC) similarly provides:


No intrastate private carrier, utilizing equipment with an actual weight, 
    registered weight or combination weight or GVWR/GCWR in excess of 26,000 
    pounds when the trailer's GVWR is greater than 10,000 pounds, shall operate 
    upon any street, road, public highway or dedicated public thoroughfare of 
    this State for the transportation of property without first obtaining from 
    the Commission a license as provided in this 
Section.
OAC 165:30-15-4(a). See Mize v. Liberty Mut. Ins. Co., 393 F. SupP.2d 
1223, 1227 (W.D. Okla. 2005) (private carriers weighing 26,000 pounds or less 
are not subject to regulation under the MCA, but the 26,000-pound 
limitation does not apply to motor carriers).
¶17 Regarding the weight of the vehicle, Smith asserts it is undisputed the 
truck "had a GVWR of 27,500 pounds, as listed by the manufacturer."11 In support, 
Smith has attached a photograph of a vehicle information plate with the same 
vehicle identification number as the one typed in the traffic collision 
report.12 
The photograph clearly provides: "Gross Vehicle Weight For This Vehicle 27500." 
Shelter does not dispute the fact that the truck "had a GVWR of 27,500 pounds, 
as listed by the manufacturer," and we conclude there is no genuine dispute that 
the truck had a "gross registered weight of greater than 26,000 pounds . . . ." 
47 O.S.2011 § 230.24(A)(1).13
¶18 However, Breeden's activity was not incidental to or in furtherance of a 
"commercial enterprise," which is defined in the MCA as "all undertakings 
entered into for private gain or compensation, including all industrial 
pursuits, whether the undertakings involve the handling of or dealing in 
commodities for sale or otherwise." Id. § 230.23(12). It is undisputed 
that Breeden was using the truck to transport shingles from his home to a dump 
site as part of putting a new roof on his own home.14 Although Breeden may have saved 
money on his roofing bill by transporting his own shingles, we conclude the 
transportation of his own shingles to the dump site was not incidental to, in 
furtherance of, or otherwise meaningfully related to a commercial enterprise for 
private gain or compensation as intended by the MCA. Because Breeden was neither 
a motor carrier nor a private carrier at the time of the accident, the MCA is 
inapplicable. Consequently, the minimum limit of liability insurance coverage is 
the lesser amount pursuant to § 7-324 for motor vehicles generally
CONCLUSION
¶19 The insurance policy at issue in this case provides that, "regardless of 
the limit of liability shown in the Declarations," when an accident occurs while 
the vehicle is being operated by an individual who merely has permission or 
general consent to use it, as occurred here, the limits of liability "will be 
the minimum limits mandated by any applicable . . . financial responsibility 
law." Based on our review of the record and applicable law, we conclude the MCA 
does not apply because Breeden was neither a motor carrier nor a private carrier 
at the time of the accident. Therefore, the applicable minimum limit of 
liability insurance coverage is found in 47 O.S.2011 § 7-324 for motor 
vehicles generally. Consequently, we reverse the trial court's Order, and remand 
this case with directions to the trial court to enter an order granting summary 
judgment to Shelter.

¶20 REVERSED AND REMANDED WITH DIRECTIONS.

FISCHER, P.J., and WISEMAN, J., concur.

FOOTNOTES

1 R. at 
Tab 3, p. 8.

2 R. at 
Tab 7, pp. 2-3.

3 Smith 
states in her summary judgment motion that this agreement between Smith and 
Shelter occurred "[a]s part of the settlement" with Davis and Breeden. R. at Tab 
8, p. 1.

4 Supp. 
R. at Exhibit D (p. 20 of the policy).

5 Smith 
asserts in her motion for summary judgment that Breeden had permission to use 
the truck, and Shelter admits Davis "had no objection to his son Steve's best 
friend [Breeden] using the truck for his own personal use." R. at Tab 9, p. 
9.

6 Shelter 
states in its summary of the case in the petition in error that "[t]he sole 
issue is whether the minimum financial responsibility limits on [the truck] . . 
. are $25,000/50,000 as Shelter contended or $350,000 as [Smith] 
contended."

7 R. at 
Tab 13, p. 13.

8 Section 
230.23(6) further provides:
[T]he provisions of the [MCA] shall not apply to the following vehicles and 
equipment when such vehicles and equipment are being used for the following:
a. taxicabs and bus companies engaged in the transportation of passengers and 
their baggage, not operated between two or more cities and towns, when duly 
licensed by a municipal corporation in which they might be doing business,
b. any person or governmental authority furnishing transportation for school 
children to and from public schools or to and from public-school-related 
extracurricular activities under contract with, and sponsored by, a public 
school board; provided, that motor vehicles and equipment operated for the 
purposes shall qualify in all respects for the transportation of school children 
under the Oklahoma School Code and the rules of the State Board of Education 
adopted pursuant thereto.
c. transport trucks transporting liquefied petroleum gases intrastate which 
are owned or operated by a person subject to and licensed by the Oklahoma 
Liquefied Petroleum Gas Regulation Act, and
d. transportation of livestock and farm products in the raw state, when any 
of such commodities move from farm to market or from market to farm on a vehicle 
or on vehicles owned and operated by a bona fide farmer not engaged in motor 
vehicle transportation on a commercial scale[.]

9 The 
word including "is sometimes misused for namely. But it should not 
be used to introduce an exhaustive list, for it implies that the list is only 
partial." Bryan A. Garner, A Dictionary of Modern Legal Usage 431-32 (2d 
ed. 1995).

10
Ejusdem generis is "[a] canon of construction holding that when a general 
word or phrase follows a list of specifics, the general word or phrase will be 
interpreted to include only items of the same class as those listed." Black's 
Law Dictionary (9th ed. 2009). The Oklahoma Supreme Court has stated as 
follows:
We have held that the doctrine of ejusdem generis applies when (1) a 
statute contains a specific enumeration; (2) the members of the enumeration 
suggest a class; (3) the class is not exhausted by the enumeration; (4) a 
general reference supplementing the enumeration is made, usually following the 
enumeration; and (5) there is not clearly manifested an intent that the general 
term be given a broader meaning than the doctrine requires. In other words, the 
statute must display a syntactical relationship of the specific to the general, 
with a series of specific words defining a class followed (or sometimes 
preceded) by a catchall referent that determines "how extensively the act . . . 
[is] intended or should reasonably be understood to apply."
Broadway Clinic v. Liberty Mut. Ins. Co., 2006 OK 29, ¶ 19, 139 P.3d 873, 878 (footnotes 
omitted).

11 R. 
at Tab 8, p. 4.

12
See Supp. R. at Exhibit E (corrected), and R. at Tab 8, Exhibit 
A.

13 
Although Shelter does not dispute this fact in its response to the motion for 
summary judgment, but merely asserts it is irrelevant, we note that in Davis's 
deposition, he answers in the negative when asked, "Would you agree with me that 
the gross vehicle weight rating of [the truck] was in excess of 26,000 pounds?" 
However, we conclude Davis's opinion in his deposition that the "gross vehicle 
weight rating" of the truck is not in excess of 26,000 pounds does not create a 
genuine dispute of fact on the issue of whether the gross registered weight of 
the truck was greater than 26,000 pounds because the fact is supported by the 
uncontested vehicle information plate of the truck. That is, based on the 
uncontested vehicle information plate, we conclude there is no genuine dispute 
that the truck has a "gross registered weight of greater than 26,000 pounds" 
pursuant to § 230.24(A)(1). The evidentiary materials introduced indicate there 
is no "substantial controversy as to [this] material fact and that this fact is 
in the movant's favor." Ross v. City of Shawnee, 1984 OK 43, ¶ 7, 683 P.2d 535, 536. In addition, 
because we conclude, infra, that Breeden was not a private carrier because his 
activity was not connected to a commercial purpose, we need not determine 
whether a dispute exists as to whether the activity was exclusively within the 
limits of an incorporated city or town pursuant to § 230.24.

14 
Shelter notes "Breeden was personally going to be responsible for removing the 
debris of his old shingles off of his property. He was borrowing the truck from 
his best friend Steve to use for his own personal use in getting the shingles 
from his property to a dump site," citing Breeden's deposition. R. at Tab 9, p. 
9. Breeden states in his deposition, "I was reroofing my house" and "needed 
something to put [the shingles] in and haul them to the dump with." R. at Tab 8, 
Exhibit G, pp. 19-20. It is also undisputed the truck was not operated across 
state lines, was not used for farming operations, and was not tagged as a farm 
vehicle.


Citationizer© Summary of Documents Citing This DocumentCite
Name
Level
None Found.Citationizer: Table of AuthorityCite
Name
Level
Oklahoma Supreme Court Cases CiteNameLevel 1993 OK 85, 859 P.2d 1081, 64 OBJ        2009, Kluver v. Weatherford Hosp. AuthorityDiscussed 1968 OK 90, 442 P.2d 334, WOOTEN v. HALLDiscussed 2006 OK 29, 139 P.3d 873, BROADWAY CLINIC v. LIBERTY MUTUAL INSURANCE CO.Discussed 1996 OK 48, 914 P.2d 1051, 67 OBJ        1173, Carmichael v. BellerDiscussed 2010 OK 58, 237 P.3d 199, STATE ex rel. EDMONDSON v. NATIVE WHOLESALE SUPPLYDiscussed 2012 OK 31, 276 P.3d 1017, STATE v. TATEDiscussed 2012 OK 49, 279 P.3d 788, RESIDENTIAL FUNDING REAL ESTATE HOLDINGS, LLC v. ADAMSDiscussed 1979 OK 103, 597 P.2d 1208, IN RE SUPREME COURT ADJUDICATION, ETC.Discussed 1982 OK 60, 645 P.2d 1011, Grand River Dam Authority v. StateDiscussed 1984 OK 43, 683 P.2d 535, Ross v. City of ShawneeDiscussedTitle 47. Motor Vehicles CiteNameLevel 47 O.S. 230.24, Powers and Duties of Corporation CommissionDiscussed 47 O.S. 7-324, Motor Vehicle Liability Policies - Contents and CoveragesDiscussed at Length 47 O.S. 230.21, Short TitleCited 47 O.S. 230.22, Necessity to Regulate Transportation by Motor Carriers and Private Carriers - Revocation of Existing Intrastate Certificates and Permits - Applicability of Provisions - Construction of ActCited










