Auto Accident Demand Letter - Oklahoma

DEMAND FOR SETTLEMENT - MOTOR VEHICLE COLLISION

STATE OF OKLAHOMA

PRIVILEGED AND CONFIDENTIAL
SETTLEMENT COMMUNICATION PURSUANT TO 12 O.S. § 2408

[FIRM NAME]
[________________________________]
[________________________________]
[City], Oklahoma [____]
Telephone: [________________________________]
Facsimile: [________________________________]
Email: [________________________________]

DATE: [__/__/____]

VIA CERTIFIED MAIL, RETURN RECEIPT REQUESTED
AND VIA ELECTRONIC MAIL

[________________________________]
[Adjuster Name]
[________________________________]
[Insurance Company Name]
[________________________________]
[Street Address]
[________________________________]
[City, State ZIP]

RE: SETTLEMENT DEMAND - MOTOR VEHICLE COLLISION
Our Client: [________________________________] (hereinafter "Claimant")
Date of Loss: [__/__/____]
Location of Accident: [________________________________]
Your Insured: [________________________________] (hereinafter "Tortfeasor")
Policy Number: [________________________________]
Claim Number: [________________________________]
Date of Birth: [__/__/____]
Age at Time of Accident: [____]

Dear [________________________________]:

This firm represents [________________________________] (hereinafter "Claimant") in connection with personal injuries and damages sustained in a motor vehicle collision that occurred on [__/__/____] in [________________________________] County, Oklahoma. This letter constitutes a formal demand for settlement of our client's claims arising from the negligence of your insured, [________________________________].

This demand is made pursuant to Oklahoma law and constitutes a settlement communication under 12 O.S. § 2408 (Oklahoma's Rule 408 equivalent).

I. OKLAHOMA LEGAL FRAMEWORK

A. Modified Comparative Negligence (51% Bar) - 23 O.S. § 13

Oklahoma follows a modified comparative negligence system under 23 O.S. § 13. The statute provides:

"In all actions hereafter brought to recover damages for negligence resulting in personal injuries or death, or injury to property, contributory negligence shall not bar a recovery unless any negligence of the person so injured, damaged, or killed is of greater degree than any negligence of the person, firm, or corporation causing such damage, or unless any negligence of the person so injured, damaged, or killed is of greater degree than the combined negligence of any persons, firms, or corporations causing such damage."

Under this statute, a plaintiff is barred from recovery if the plaintiff's negligence is of a greater degree than the defendant's negligence (or combined negligence of all defendants). If the plaintiff's negligence is 50% or less, the plaintiff may recover, but the award is proportionally reduced by the plaintiff's percentage of fault.

Example: A plaintiff found 30% at fault with $150,000 in total damages would recover $105,000.

In the present case, your insured is 100% liable for this collision. Our client bears no comparative fault.

B. Statute of Limitations - 12 O.S. § 95(A)(3)

Under 12 O.S. § 95(A)(3), Oklahoma provides a two (2) year statute of limitations for personal injury actions and actions for injury to personal property. The collision occurred on [__/__/____], and accordingly, the limitations period expires on [__/__/____].

We reserve the full right to initiate litigation before the statutory period expires.

C. Mandatory Liability Insurance - 47 O.S. § 7-204

Oklahoma's Compulsory Insurance Law (47 O.S. § 7-204) requires every motor vehicle owner to maintain liability insurance meeting the following minimum limits:

D. Uninsured/Underinsured Motorist Coverage - 36 O.S. § 3636

Under 36 O.S. § 3636, Oklahoma requires insurers to offer uninsured motorist (UM) coverage to every policyholder. While the purchase of UM coverage is not mandatory, the insurer must affirmatively offer it. If not properly offered and rejected, UM coverage may be deemed included by operation of law.

Subsection (B) addresses underinsured motorist (UIM) coverage, which must also be offered. UIM coverage applies when the at-fault driver's policy limits are insufficient to cover the claimant's damages.

E. No Compensatory Damages Cap

Oklahoma does not impose a statutory cap on compensatory damages in auto accident personal injury cases. Previous legislative attempts to cap non-economic damages were struck down as unconstitutional by the Oklahoma Supreme Court in Beason v. I.E. Miller Services, Inc., 441 P.3d 1107 (Okla. 2019). Claimants are entitled to the full measure of compensatory damages as determined by the fact-finder.

F. Punitive Damages - 23 O.S. § 9.1

Under 23 O.S. § 9.1, punitive damages may be awarded "for the sake of example and by way of punishing the defendant." Oklahoma establishes a tiered cap system based on the nature of the defendant's conduct:

Practice Note: In auto accident cases involving intoxicated driving, the Category III "no cap" provision may apply, making the full measure of punitive damages available.

G. Several Liability - 23 O.S. § 15

Under 23 O.S. § 15, Oklahoma abolished joint and several liability effective November 1, 2011. In all civil actions based on fault and not arising from contract:

"The liability for damages caused by two or more persons shall be several only and a joint tortfeasor shall be liable only for the amount of damages allocated to that tortfeasor."

Each defendant is responsible only for the percentage of damages attributed to that defendant.

H. Collateral Source Rule

Oklahoma preserves the collateral source rule as an "entrenched precept" of Oklahoma law. Compensation received by the injured party from a collateral source wholly independent of the tortfeasor does not reduce damages recoverable from the wrongdoer. See Blythe v. University of Oklahoma, 82 P.3d 1021 (Okla. 2003). Health insurance payments, disability benefits, and other independent payments cannot be used to offset the defendant's liability.

I. Measure of Damages - 23 O.S. § 61

Under 23 O.S. § 61, the measure of damages for personal injury is "the amount which will compensate for all detriment proximately caused thereby, whether it could have been anticipated or not."

II. STATEMENT OF FACTS

A. Accident Description

On [__/__/____], at approximately [____] [a.m./p.m.], our client, [________________________________], was operating a [____ Year] [________________________________] [Make/Model], bearing Oklahoma license plate number [________________________________], traveling [direction] on [________________________________] [Street/Highway] in/near [________________________________], [________________________________] County, Oklahoma.

At the time of the collision, our client was [________________________________] [describe activity].

Your insured, [________________________________], was operating a [____ Year] [________________________________] [Make/Model], bearing license plate number [________________________________]. Your insured [________________________________] [describe negligent conduct].

As a direct and proximate result of your insured's negligence, your insured's vehicle struck our client's vehicle [________________________________] [describe point of impact].

B. Weather and Road Conditions

Weather conditions were [________________________________]. Road conditions were [________________________________]. Visibility was [________________________________]. The posted speed limit was [____] miles per hour.

C. Police Report

The collision was investigated by [________________________________] [law enforcement agency]. Officer [________________________________] prepared a report assigned Case Number [________________________________]. The report [________________________________] [summarize findings and citations].

D. Witnesses

E. Physical Evidence

☐ Photographs of the accident scene preserved
☐ Photographs of vehicle damage preserved
☐ Photographs of client's visible injuries preserved
☐ Dashcam or surveillance video footage [is/is not] available
☐ Event Data Recorder (EDR) data [has/has not] been preserved
☐ Cell phone records of the at-fault driver [have/have not] been obtained

III. LIABILITY ANALYSIS

A. Negligence of Your Insured

Under Oklahoma law, negligence requires proof of: (1) a duty owed by the defendant to the plaintiff, (2) breach of that duty, (3) that the breach was the proximate cause of the plaintiff's injury, and (4) resulting damage. See Iglehart v. Board of County Commissioners, 60 P.3d 497 (Okla. 2002).

Your insured breached the duty of care by:

☐ Violating 47 O.S. § [________________________________] [cite specific traffic statute]
☐ Operating a motor vehicle in a careless or reckless manner
☐ Failing to maintain a proper lookout
☐ Failing to maintain a safe following distance
☐ Failing to yield the right of way
☐ Operating a motor vehicle while distracted
☐ Operating a motor vehicle under the influence of alcohol or drugs
☐ Exceeding the posted speed limit
☐ Failing to obey a traffic control device
☐ [________________________________] [other negligent conduct]

B. Proximate Causation

Your insured's negligence was the direct and proximate cause of our client's injuries. But for the negligent conduct, this collision would not have occurred.

C. Allocation of Fault

Your insured bears 100% of the fault. Our client bears 0% comparative fault, far below the threshold that would bar recovery under 23 O.S. § 13.

IV. INJURIES AND MEDICAL TREATMENT

A. Emergency Treatment

Following the collision, our client was [________________________________] on [__/__/____]. Presenting complaints:

• [________________________________]
• [________________________________]
• [________________________________]

Emergency diagnoses:

• [________________________________]
• [________________________________]
• [________________________________]

B. Medical Treatment Chronology

C. Treating Physicians and Specialists

D. Current Medical Status and Prognosis

As of this demand, our client [________________________________] [describe current condition and prognosis]. Dr. [________________________________] has opined that [________________________________].

E. Future Medical Treatment

V. DAMAGES

A. Economic Damages

1. Past Medical Expenses

Note: Under Oklahoma's collateral source rule (Blythe v. University of Oklahoma, 82 P.3d 1021), the full billed amount is recoverable. Insurance write-offs and reductions do not diminish the defendant's liability.

2. Future Medical Expenses

3. Lost Wages and Income

Our client was employed by [________________________________] as a [________________________________] earning $[________] [per period]. As a result of injuries, our client was unable to work for [________________________________].

4. Loss of Earning Capacity

[If applicable] $[________]

5. Property Damage

6. Out-of-Pocket Expenses

B. Non-Economic Damages

1. Pain and Suffering

Our client has endured significant physical pain and emotional suffering. [________________________________] [Describe nature and severity of pain, impact on daily life, sleep disturbance, emotional distress, anxiety, depression, loss of enjoyment, etc.]

Under 23 O.S. § 61, damages must compensate for "all detriment proximately caused" by the defendant's negligence, "whether it could have been anticipated or not." Oklahoma imposes no cap on non-economic damages following Beason v. I.E. Miller Services, Inc., 441 P.3d 1107 (Okla. 2019).

Pain and Suffering Valuation: $[________]

2. Loss of Consortium

[If applicable] Our client's spouse, [________________________________], has suffered loss of consortium. Oklahoma recognizes the right of a spouse to recover for loss of companionship, comfort, society, affection, and sexual relations. See Cosper v. Helvering, 58 P.2d 869 (Okla. 1936).

Loss of Consortium Damages: $[________]

C. Summary of Damages

VI. DEMAND FOR SETTLEMENT

Based upon the foregoing, we demand settlement in the total amount of:

$[________________________________]

This demand is open for thirty (30) days, expiring on [__/__/____]. If we do not receive a meaningful response or acceptable offer by that date, we will file suit in the appropriate Oklahoma District Court.

This demand covers all claims:

☐ Personal injury claims
☐ Property damage claims
☐ Loss of consortium (if applicable)
☐ All past, present, and future damages

This demand does not include punitive damages under 23 O.S. § 9.1, which are expressly reserved.

VII. SETTLEMENT NEGOTIATION PROVISIONS

A. Good Faith Requirement

We expect good faith settlement negotiations. Oklahoma courts have recognized that insurers have a duty to deal fairly and in good faith with claimants. Failure to do so may result in bad faith liability. See Badillo v. Mid Century Ins. Co., 121 P.3d 1080 (Okla. 2005).

B. Policy Limits Disclosure

We request immediate written confirmation of:

☐ The liability coverage limits
☐ Whether UM/UIM coverage was offered per 36 O.S. § 3636
☐ Whether coverage is disputed
☐ Any umbrella or excess policies
☐ Whether stacking of UM/UIM coverage applies

C. Reservation of Rights

This demand is without prejudice to all rights, including punitive damages under 23 O.S. § 9.1, bad faith claims, UM/UIM claims, and all other available remedies.

VIII. LITIGATION WARNING

Should settlement not be achieved, we will file a complaint in [________________________________] County District Court, Oklahoma. We will pursue full compensatory damages, punitive damages under 23 O.S. § 9.1 (including potentially uncapped Category III damages if applicable), pre-judgment interest, costs, and all available relief.

IX. MEDICAL RECORDS AUTHORIZATION

Enclosed is a HIPAA-compliant authorization (45 C.F.R. § 164.508).

I, [________________________________], authorize the following providers to release records related to the collision on [__/__/____] to [________________________________] [Insurance Company]:

This authorization expires on [__/__/____] or upon final resolution, whichever occurs first.

Signature: _________________________________ Date: [__/__/____]
Printed Name: [________________________________]

X. ENCLOSED DOCUMENTATION

☐ Police/Accident Report
☐ Photographs of accident scene
☐ Photographs of vehicle damage
☐ Photographs of injuries
☐ Medical records and bills (itemized)
☐ Proof of lost wages
☐ Property damage estimates/invoices
☐ HIPAA-compliant medical authorization
☐ Expert reports (if available)
☐ Witness statements
☐ [________________________________]

XI. DOCUMENTATION CHECKLIST - CLAIMANT FILE

☐ Accident/police report obtained
☐ All medical records collected
☐ All medical bills itemized (billed and paid)
☐ Lost wage documentation obtained
☐ Property damage documented
☐ Witness statements preserved
☐ Injury photographs at multiple recovery stages
☐ Insurance policy information confirmed
☐ UM/UIM coverage status verified (was it properly offered per 36 O.S. § 3636?)
☐ Statute of limitations deadline calendared ([__/__/____] - TWO YEARS)
☐ Treatment completed or at MMI
☐ Future medical projections obtained
☐ Pain and suffering documentation maintained
☐ Insurance correspondence documented
☐ HIPAA authorization executed
☐ Demand sent certified mail
☐ Settlement authority confirmed with client
☐ Lien search completed (Medicare, Medicaid, ERISA, workers' comp)
☐ Punitive damages evidence evaluated (DUI, distraction, recklessness)

XII. OKLAHOMA-SPECIFIC PRACTICE NOTES

☐ Modified Comparative Negligence (51% Bar): 23 O.S. § 13 - barred if plaintiff's negligence is of greater degree than defendant's or combined defendants'
☐ Two-Year Statute of Limitations: 12 O.S. § 95(A)(3) - applies to both personal injury and property damage
☐ No Compensatory Damages Cap: Caps ruled unconstitutional in Beason v. I.E. Miller Services, Inc., 441 P.3d 1107 (Okla. 2019)
☐ Tiered Punitive Damages: 23 O.S. § 9.1 - Category I ($100,000 or actual damages), Category II ($500,000 or 2x actual), Category III (uncapped for life-threatening conduct including DUI)
☐ Several Liability Only: 23 O.S. § 15 - joint and several liability abolished; each defendant liable only for its percentage
☐ Collateral Source Rule Preserved: Blythe v. University of Oklahoma, 82 P.3d 1021 - full billed amounts recoverable
☐ UM/UIM Must Be Offered: 36 O.S. § 3636 - insurer must offer UM coverage; if not properly offered, coverage may be deemed included
☐ Minimum Insurance 25/50/25: 47 O.S. § 7-204
☐ Measure of Damages: 23 O.S. § 61 - all detriment proximately caused, whether anticipated or not
☐ Bad Faith: Oklahoma recognizes insurer bad faith as an independent tort - Badillo v. Mid Century Ins. Co., 121 P.3d 1080 (Okla. 2005)
☐ Discovery Rule: SOL may be tolled for latent injuries
☐ Venue: Proper in county where cause of action arose, where any defendant resides, or where plaintiff resides (if defendant does business there)

Respectfully submitted,

[FIRM NAME]

By: _________________________________
[________________________________]
[Attorney Name]
Oklahoma Bar No. [________________________________]
[________________________________]
[Street Address]
[________________________________]
[City, Oklahoma ZIP]
Telephone: [________________________________]
Email: [________________________________]

cc: [________________________________] [Client Name]
Enclosures: As noted above

SOURCES AND REFERENCES

• 23 O.S. § 13 (Comparative Negligence): https://law.justia.com/codes/oklahoma/title-23/section-23-13/
• 23 O.S. § 15 (Several Liability): https://law.justia.com/codes/oklahoma/title-23/section-23-15/
• 23 O.S. § 9.1 (Punitive Damages): https://law.justia.com/codes/oklahoma/title-23/section-23-9-1/
• 36 O.S. § 3636 (Uninsured Motorist Coverage): https://law.justia.com/codes/oklahoma/title-36/section-36-3636/
• Oklahoma Statutes Title 23 - Damages (Senate PDF): https://oksenate.gov/sites/default/files/2019-12/os23.pdf
• Oklahoma Insurance Department - Uninsured Motorist: https://www.oid.ok.gov/uninsured-motorist/
• Nolo - Oklahoma Car Accident Laws: https://www.nolo.com/legal-encyclopedia/oklahoma-car-accident-laws.html
• Nolo - Oklahoma Car Insurance Requirements: https://www.nolo.com/legal-encyclopedia/oklahoma-car-insurance-requirements.html