The Oklahoma Supreme Court has held that the Oklahoma Savings Statute, 12 O.S. §100, providing a one-year period beyond the statute of limitations for a new action based on a prior timely filed action applies to an insurer’s subrogation claim. State Farm Mutual Automobile Ins. Co. v. Payne, 2017 OK 95, 408 P.3d 204.

An insurer filed a subrogation action against a third-party motorist arising out of an automobile accident which involved the insured. The insurer’s subrogation claim was similar to an action the insured had initially brought, but had voluntarily dismissed after the applicable two-year statute of limitations had expired. The district court dismissed the insurer’s subrogation claim as untimely. The insurer appealed, and the Court of Civil Appeals affirmed. The insurer then sought a writ of certiorari to the Oklahoma Supreme Court.

The Supreme Court of Oklahoma reversed and remanded, ruling that the subrogation action was not time barred based on the Oklahoma Savings Statute, 12 O.S. §100, which provides:

If any action is commenced within due time, and a judgment thereon for the plaintiff is reversed, or if the plaintiff fail in such action otherwise than upon the merits, the plaintiff, or, if he should die, and the cause of action survive, his representatives may commence a new action within one (1) year after the reversal or failure although the time limit for commencing the action shall have expired before the new action is filed.

The Supreme Court referenced earlier jurisprudence which held that Oklahoma’s Savings Statute is “remedial” in nature, and thus “should be liberally construed.” It ruled that the test for whether a subsequent plaintiff qualifies as “the plaintiff” for purposes of 12 O.S. §100 focuses not on whether the subsequent plaintiff is identical to the one before, but on whether the two entities are “substantially the same.” To determine whether the two entities are “substantially the same,” the Court looked to whether the parties were “suing in the same right.” The Supreme Court concluded that because the insurer was “substantially the same, suing in the same right” as its insured for purposes of a subrogation claim, the insurer should be entitled to the same treatment as its insured for purposes of the Savings Statute. Accordingly, it held the insurer’s action timely since it was filed within one year after its insured had voluntarily dismissed the prior lawsuit.