In November 2011, Oklahoma enacted a statute, commonly called the “no play no pay” law, as part of so called tort reform. This statute essentially says if a person is a victim in a car accident, and at the time of the automobile accident the victim, or the person that is NOT at fault, does not have automobile insurance then the victim cannot recover for pain and suffering damages in court. The statute citation is Title 47 O.S. Sec. 47-116.
There are several exceptions to the no pay no play law. If a person had been covered by car insurance previous to the car wreck and had not received a notice of cancellation at least 30 days prior to the car wreck then the prohibition of recovering pain and suffering is not applicable. If the person that was at fault was intoxicated, or under the influence of drugs or alcohol and is then convicted or pleads guilty or no contest then the uninsured victim is able to recover for pain and suffering. The statute does not apply if the motorist who caused the accident intentionally caused the accident, left the scene of the accident or at the time of the accident, was acting in furtherance of the commission of a felony. There are several other exceptions that apply to the no pay no play statute.
The constitutionality of the statute is a serious question in the State of Oklahoma. Similar statutes to Oklahoma’s no pay no play statute have been found to be constitutional in Louisiana’s and New Jersey’s state courts under those states’ Constitutions and the United States Constitution. The state courts there found that the no pay no play statute did not violate equal protection, due process and excessive fines constitutional provisions.
In those states, their constitutions have similar provisions to the United States Constitution, which has been turned into Swiss cheese with exceptions by justices and legislatures of both ideological camps. Fortunately for the citizens of Oklahoma their founding fathers had the foresight, largely because Oklahoma was founded later in the history of the U.S., 46th state to be precise, to make sure that their citizens rights were not degraded by exceptions carved out by the courts and legislatures. Particularly, Oklahoma’s Constitution has two provisions that are likely offended by the “No Pay No Play” statute, Article 5 § 46 and Article 2§ 9.
Article 5 § 46 of the Oklahoma Constitution reads in relevant part:
Local and special laws on certain subjects prohibited.
The Legislature shall not, except as otherwise provided in this Constitution, pass any local or special law authorizing:
Regulating the practice or jurisdiction of, or changing the rules of evidence in judicial proceedings or inquiry before the courts, justices of the peace, sheriffs, commissioners, arbitrators, or other tribunals, or providing or changing the methods for the collection of debts, or the enforcement of judgments or prescribing the effect of judicial sales of real estate;
The “No Pay No Play” statute offends the above provision of “Regulating the practice or jurisdiction of, or changing the rules of evidence in judicial proceedings or inquiry before the courts” by not allowing those that have no car insurance full access to the court. Essentially Oklah0ma’s founding fathers wanted the courts to be equal and if a person is to be punished for a violation of the law do it in a manner that does not violate people’s fundamental rights to access to courts.
If a person does not have insurance then fine them or put them in jail but don’t pick out people that have been injured and deprive them of their rights to the courts. This law is particularly heinous because the more a victim of a car accident is in pain and suffers the more they are punished. Even worse, the people that profit from depriving victims of car accidents of their constitutional right to access to courts are insurance companies. To say it more precisely, the Oklahoma Legislature and Governor Mary Fallin deprived victims of car accidents of their right to courts so that insurance companies could profit.
The other clause of the Oklahoma Constitution that the “No Pay No Play” statute offends is Article 2, § 6 which provides as follows;
Courts of justice open – Remedies for wrongs – Sale, denial or delay.
The courts of justice of the State shall be open to every person, and speedy and certain remedy afforded for every wrong and for every injury to person, property, or reputation; and right and justice shall be administered without sale, denial, delay, or prejudice.
The way that the no pay no play law offends the above provision is clear. Access to the court for a remedy for pain and suffering is deprived.
On behalf of my client, I asked a Tulsa County District Court to rule that Oklahoma’s “No Pay No Play” statute is unconstitutional based on the above discussed Oklahoma Constitutional provisions. The District Court Judge ruled in favor of my position and found the statute unconstitutional. The insurance industry has appealed and has now hired two huge law firms to fight this case. Six attorneys for the insurance industry have now entered the case. The Supreme Court of Oklahoma is currently considering whether to accept the case.