ALSO INSIDE: Board of Governors & YLD Vacancies Sovereignty Symposium 2021 Volume 92 — No. 6 — August 2021 Personal Injury contents August 2021 • Vol. 92 • No. 6 THEME: PERSONAL INJURY Editor: Cassandra Coats FEATURES PLUS 6 WELLS, WHIPPLE and the Election of Remedies 31 Sovereignty Symposium 2021 BY DUSTIN VANDERHOOF 36 OBA Nominating Petitions and Board 12 Interpleaders – How a Plaintiff’s Attorney of Governors Vacancies Can Use Them Effectively BY ASHLEY LEAVITT 16 Pitfalls of Prosecuting Premises Liability Claims Against Tribal CasinoS BY HUGH M. ROBERT AND DANIEL M. PHILLIPS 20 The History and Evolution of Life Care Planning BY SHERRY A. LATHAM 26 Selected Scenes From the Upcoming Netflix Series: Good Faith – The Uninsured/ Underinsured Motorist Episode BY JACOB L. ROWE AND SIMONE FULMER GAUS DEPARTMENTS 4 From the President 38 From the Executive Director PAGE 31 – Sovereignty Symposium 2021 40 Law Practice Tips 44 Ethics & Professional Responsibility 46 Board of Governors Actions 52 Oklahoma Bar Foundation News 56 Young Lawyers Division 61 For Your Information 62 Bench and Bar Briefs 66 In Memoriam 67 Editorial Calendar 72 The Back Page PAGE 36 – OBA Leadership Vacancies FROM THE PRESIDENT History Repeats Itself By Mike Mordy TRAVELED EUROPE WITH TWO FRIENDS IN should make sure we better promote the study I the summer of 1977 between the time I graduated and awareness of history. from undergraduate school and started law school in the The framers of our Constitution, our forefa- fall. You could buy a Eurail train pass back then for not thers, knew and appreciated history and used much money and follow a guide titled “Europe on $10 a that knowledge when they drafted the U.S. Day.” We wound up in Munich, Germany, at some point Constitution. They had experienced strong during the trip and traveled to the Dachau Concentration governmental oppression by the British; how- Camp Memorial 10 miles north of Munich. Dachau was ever, they still adopted some of their ideals a Nazi concentration camp opened in 1933 and liberated while avoiding the monarchial British system by U.S. forces April 29, 1945. The Nazis used the camp to in favor of a democratic government. The imprison, torture and kill mainly innocent Jewish people framers knew their Greek and Roman history but also Romanians, Polish people and foreign nationals and used that knowledge to avoid a dema- from other countries Germany occupied or invaded. gogue from being able to wrestle power from Forced labor was required of the prisoners, and worst of the people. The founders did not ignore the all, prisoners were tortured and killed in medical exper- history of the brutal and oppressive Greeks iments. There were 32,000 documented deaths at the and Romans but rather used that history to camp, and thousands of deaths were undocumented. prevent history from repeating itself. This experience had a profound effect upon me not just Bad and evil have happened in the history of because I was astonished by the barbaric brutality commit- humanity and are a stain, but history, both good ted by the Nazis upon the Jewish people, but because I did and evil, is important and must be considered so not know and appreciate the extent of the Nazis’ amoral we can appreciate its impact. Studying history tyranny. I felt this history had been glossed over and and imparting history to the younger gener- had not been given the attention in my education that it ations supports and promotes the rule of law should have been given. My age group because we see the effects on mankind where studied World War II, but I remember the rule of law is not adopted, administered, thinking back in 1977 when I was at adjudicated and enforced fairly and efficiently. Dachau that the attempted extermina- The Dachau Concentration Camp Memorial tion of the Jewish race and the killing is a memorial to those who perished there; of six million Jewish men, women and however, it is also a reminder to watch for children by the Nazis was not given tyranny and to avoid any type of government the attention and study it deserved. that is intolerant of others. The recent public I bring this up because I know awareness of the Tulsa Race Massacre of 1921 is history repeats itself, and therefore, a current example, in our faces, of making sure we need to be vigilant in making we know, and all generations know, of even the sure history is taught, studied, bad history of our society so that history does discussed and appreciated. There not repeat itself. It has been famously quoted seems to be a movement in our cur- that, “Those who do not remember the past are rent culture to ignore our history or condemned to repeat it.” The same holds true despise it or, in some cases, attempt if history is not taught. We need to be vigilant President Mordy practices to destroy it. We as attorneys know to teach, study and discuss all history, good or in Ardmore. our laws and interpretations of those bad, to avoid that history and to be assured that [email protected] 580-223-4384 laws are based upon history, and we the rule of law is maintained. 4 | AUGUST 2021 THE OKLAHOMA BAR JOURNAL THE OKLAHOMA BAR JOURNAL is a publication of the Oklahoma Bar Association. All rights reserved. Copyright© 2021 Oklahoma Bar Association. Statements or opinions expressed herein are those of the authors and do not necessarily reflect those of the Oklahoma Bar Association, its officers, Board of Governors, Volume 92 — No. 6 — August 2021 Board of Editors or staff. Although advertising copy is reviewed, no endorsement of any product or service offered by any advertisement is intended or implied by publication. JOURNAL STAFF BOARD OF EDITORS Advertisers are solely responsible for the content of their ads, and the OBA reserves JOHN MORRIS WILLIAMS MELISSA DELACERDA, Stillwater, Chair the right to edit or reject any advertising copy Editor-in-Chief for any reason. Legal articles carried in THE [email protected] LUKE ADAMS, Clinton OKLAHOMA BAR JOURNAL are selected CAROL A. MANNING, Editor AARON BUNDY, Tulsa by the Board of Editors. Information about [email protected] submissions can be found at www.okbar.org. CASSANDRA L. COATS, Vinita LAUREN RIMMER BAR CENTER STAFF Advertising Manager VIRGINIA D. HENSON, Norman John Morris Williams, Executive Director; [email protected] Gina L. Hendryx, General Counsel; Jim C. SCOTT JONES, Oklahoma City Calloway, Director of Management Assistance JANA L. KNOTT, El Reno Program; Craig D. Combs, Director of Administration; Janet K. Johnson, Director of TONY MORALES, Shawnee Educational Programs; Beverly Petry Lewis, Administrator MCLE Commission; Carol A. ROY TUCKER, Muskogee Manning, Director of Communications; Dawn Shelton, Director of Strategic Communications DAVID E. YOUNGBLOOD, Atoka and Marketing; Richard Stevens, Ethics Counsel; Robbin Watson, Director of Information Technology; Loraine Dillinder Farabow, Peter Haddock, Tracy Pierce Nester, Katherine Ogden, Steve Sullins, Assistant General Counsels OFFICERS & Les Arnold, Julie A. Bays, Gary Berger, BOARD OF GOVERNORS Debbie Brink, Jennifer Brumage, Melody Claridge, Cheryl Corey, Ben Douglas, Johnny MICHAEL C. MORDY, President, Ardmore; Marie Floyd, Matt Gayle, Suzi Hendrix, Debra CHARLES E. GEISTER III, Vice President, Oklahoma City; JAMES R. Jenkins, Kiel Kondrick, Rhonda Langley, HICKS, President-Elect, Tulsa; SUSAN B. SHIELDS, Immediate Jamie Lane, Durrel Lattimore, Edward Past President, Oklahoma City; MICHAEL J. DAVIS, Durant; TIM E. Maguire, Renee Montgomery, Whitney DECLERCK, Enid; JOSHUA A. EDWARDS, Ada; AMBER PECKIO Mosby, Lauren Rimmer, Tracy Sanders, Mark GARRETT, Tulsa; BENJAMIN R. HILFIGER, Muskogee; ANDREW E. Schneidewent, Kurt Stoner, Krystal Willis, HUTTER, Norman; DAVID T. MCKENZIE, Oklahoma City; MILES T. Laura Willis & Roberta Yarbrough PRINGLE, Oklahoma City; ROBIN L. ROCHELLE, Lawton; KARA I. SMITH, Oklahoma City; MICHAEL R. VANDERBURG, Ponca City; Oklahoma Bar Association 405-416-7000 RICHARD D. WHITE JR., Tulsa; APRIL J. 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THE OKLAHOMA BAR JOURNAL AUGUST 2021 | 5 PERSONAL INJURY Wells, Whipple and the Election of Remedies By Dustin Vanderhoof HE FOLLOWING IS A DISCUSSION OF RECENT Oklahoma Supreme Court cases Taddressing workers’ compensation exclusivity and intentional torts, election of remedies and the constitutionality of the Oklahoma Legislature’s limitation of workers’ compensa- tion death benefits to spouses, children and legal guardians of employees killed in work- related incidents. CURRENT STATUS OF THE husband’s death resulted from the employees could seek redress PARRET EXCEPTION TO defendants’ willful and intentional outside the workers’ compensation WORKERS’ COMPENSATION acts of having the decedent work scheme for injuries caused by an EXCLUSIVITY on the lights despite their knowl- employer’s intentional conduct.8 It has long been the law in edge of the substantial dangers The question facing the court was Oklahoma that the exclusive rem- associated with the task.”4 what level of intent was required edy for accidents arising out of and The Western District asked for a tort to fall outside the Workers’ in the course of one’s employment the Oklahoma Supreme Court to Compensation Act’s exclusivity was found within the Oklahoma certify the “standard of intent nec- protection.