ORDER OF SUMMARY DISPOSITION
¶1 Rule 1.201 of the Oklahoma Supreme Court Rules provides that “[i]n any case in which it appears that a prior controlling appellate decision is dispositive of the appeal, the Court may summarily affirm or reverse, citing in its order of summary disposition this rule and the controlling decision.” Okla. Sup. Ct. Rule 1.201, 12 O.S.2021, ch. 15, app. 1.
¶2 On July 12, 2021, this Court designated this case, Cherokee Nation v. Lexington Insurance Company (Case No. 119,359), 2022 OK 71, and Muscogee (Creek) Nation v. Lexington Insurance Company (Case No. 119,701) as companion cases. The sole issue in each of the companion cases is whether the district court correctly determined that business interruption coverage for the insureds losses “caused by direct physical loss or damage ․ to real and/or personal property“ includes losses incurred by some intangible harm that rendered the insureds property unusable for its intended purpose. ¶3 THE COURT FINDS that our decision in Cherokee Nation v. Lexington Insurance Company, 2022 OK 71, involves the same primary legal question as that in the above-styled appeal. Therefore, our holding in Cherokee Nation that the policy language “direct physical loss or damage ․ to real and/or personal property” requires immediate, actual or tangible deprivation or destruction of property disposes of the issues herein. Choctaw Nation of Oklahoma does not present any evidence that its property was tangibly damaged, and the policy at issue does not cover its alleged business interruption losses. ¶4 IT IS THEREFORE ORDERED that the district courts order sustaining Choctaw Nation of Oklahomas motion for partial summary judgment on business interruption coverage is reversed and the cause is remanded for further proceedings.
¶5 DONE BY ORDER OF THE SUPREME COURT IN CONFERENCE THIS 23rd day of January, 2023.
¶1 I concur in the Courts order reversing the partial summary judgment granted in favor of the Choctaw Nation of Oklahoma and remanding the cause to the district court for further proceedings based upon our ruling in Cherokee Nation v. Lexington Insurance Co., et al., 2022 OK 71. I would, however, set this matter for oral argument to address the legitimate issues raised in the Petition for Rehearing filed in Cherokee Nation, 2022 OK 71 (rehearing denied, Rowe J., dissenting). I dissent for the reasons stated in Cherokee Nation v. Lexington Ins. Co., 2022 OK 71, ___ P.3d ___.
Citationizer© Summary of Documents Citing This Document
Cite Name Level None Found. Citationizer: Table of Authority Cite Name Level Oklahoma Supreme Court Cases Cite Name Level 2022 OK 71, CHEROKEE NATION v. LEXINGTON INSURANCE CO. Discussed at Length
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CONCUR: KANE, C.J., ROWE, V.C.J. (BY SEPARATE WRITING), WINCHESTER, DARBY, AND KUEHN, JJ., PRINCE, S.J.
DISSENT: EDMONDSON, COMBS (BY SEPARATE WRITING), AND GURICH, JJ.
RECUSED: KAUGER, J.