¶3 Gray's fire insurance policy was purchased from Republic through its agent Holman. When Gray bought the policy, she allegedly informed Holman that the insured property's legal title stood in her son's name.¹ Holman, who - according to Gray - told her that it did not matter in whose name title was held, had the policy issued to her as the only insured.

¶5 In early 1987 Gray hired counsel to recover the fire loss. Upon (a) Republic's persistence that Gray did not have an insurable interest in the covered property and (b) its continued denial of the claim, Gray and Tarr sued both Holman and Republic on June 2, 1988 - more than one year, but less than two years, after the fire. Gray and Tarr advanced a contract theory of liability against both the insurer and its agent. They also pressed a tort theory for Republic's alleged bad-faith refusal to pay the claim and for Holman's negligence in failing to procure the arranged-for indemnity policy. On December 14, 1989 the trial court summarily ruled for Holman² and Republic on the contractual theory of liability.³ Gray's tort theories were summarily decided in favor of the insurer on February 16, 1990. The nisi prius summary disposition of Tarr's claim [on all theories of liability] - also in favor of Republic and Holman - was effected by its March 7, 1990 order.

¶7 Resolution of Tarr's standing⁴ to sue Republic and Holman requires a factual inquiry into whether Gray was Tarr's agent⁵ or merely an officious volunteer.⁶ If, in fact, Tarr was either Gray's disclosed or undisclosed principal and Gray was authorized to secure fire coverage for the premises on [909 P.2d 780] Tarr's behalf, any injury to the property or harm from the agent's (Gray's) transaction can be redressed ex delicto.⁷

¶8 In their briefs Republic and Holman assure us they knew nothing of Tarr or of his interest in the insured property until the present action was brought. Gray represents that Tarr authorized her to procure the insurance policy. Whether Gray and Tarr did, at the time she purchased the fire-loss coverage, stand vis-a-vis each other as agent and principal presents a factual dispute which is unfit for summary disposition and hence remains unresolved by the trilogy of the trial court's critical summary rulings of December 14, February 16 or March 7. Tarr's standing to sue cannot be denied anterior to determining Gray's status qua Tarr's agent.⁸

¶9 Without specifically referencing bad-faith refusal to settle a claim⁹ in section "D"¹⁰ of their joint petition in error, Gray and Tarr challenge as erroneous the nisi prius conclusion that Gray did not have an insurable interest in the property destroyed by fire. The insureds' omission is not fatal to preserving for appellate review bad-faith refusal to pay a claim. That issue is fairly comprised within the appellants' assignment of errors.¹¹ Republic's refusal to settle Gray's claim is actionable if it can be established that, when the insurer's actions are measured by the facts then known and knowable to it, its failure to recognize Gray's [or Tarr's, if then known as her principal] insurable interest in the covered property was in bad faith.¹²

¶10 A petition in error should be construed as an entirety.¹³ In summarizing the case¹⁴ Gray and Tarr described their legal action as one for "bad faith refusal to settle a claim" for loss by fire to property in which they had an insurable interest. The statement of "issues and errors proposed to be raised on appeal," when read in conjunction with the "summary of case," is clearly [909 P.2d 781] sufficient to preserve for review the insureds' claim for bad-faith refusal to settle.¹⁵

¶11 The focus in summary process is not on facts a plaintiff might be able to prove at trial (i.e., the legal sufficiency of evidence that could be adduced) but rather on whether the evidentiary materials as a whole (a) show undisputed facts on some or all material issues and (b) will support but a single inference in favor of a successful movant's quest for relief. Summary adjudication process - a special pretrial procedural track to be conducted with the aid of acceptable probative substitutes¹⁶ - is a search for undisputed material fact issues that may be resolved without forensic combat. It is a method for identifying and isolating non-triable fact issues, not a device for defeating the opponent's right to trial by jury. Only that evidentiary material which entirely eliminates from trial some or all fact issues may afford legitimate support for nisi prius resort to summary process.

¶12 Inherent in the summary judgment for Republic on Gray's (and Tarr's) tort theory of insurer's liability is the trial court's determination that (a) Gray did not possess an insurable interest in the property and (b) the facts known or knowable to Republic at the time of the claims's rejection legally support its refusal to pay the indemnity. Before summary disposition of this case could be effected, the trial judge was duty-bound to ascertain - from the evidentiary material before him - that as a matter of law Gray for Tarr, if her principal did not and could not demonstrate she would gain some economic advantage by the insured property's continued existence or, in the alternative, that she [or Tarr, if her principal] did not suffer some economic detriment from its loss or destruction.¹⁷ The law's "factual expectation" standard, adopted in Snethen,¹⁸ is today the Oklahoma test for use in ascertaining a person's insurable interest. Equating insurable interest with a legally cognizable estate¹⁹ is no longer sanctioned by our jurisprudence.²⁰

¶18 Summary adjudication process is a search for non-triable facts - not a technique for defeating the opponent's right to trial by jury. The evidentiary materials as a whole reveal disputed material facts concerning the insurer's bad-faith refusal to settle and about Holman's negligence. The February 16 order, when viewed in light of the record before us, fails to disclose that the trial court applied the correct criteria - under the currently in force "factual expectation" test²¹ - to determine if Gray, in her individual capacity, had an insurable interest in the covered property. Because several facts material to Gray and Tarr's ex delicto theory of liability are controverted, summary judgment for Republic cannot be sustained. The summary ruling for Holman is equally insupportable.

¹ Holman disputes that, before Gray presented the claim for fire loss, she ever advised him that title to the insured property was in her son.

² The summary judgment in Holman's favor on the contract theory was doubtless rested on the familiar common-law principle that one who deals as agent in behalf of a disclosed principal is not liable for the latter's breach of contract. See Underside v. Lathrop, Okl., 645 P.2d 514, 517 (1982), for a discussion of the distinction between ex contractu and ex delicto theory of liability as it affects an agent's defenses to an action for negligence in failing to procure an arranged-for policy of insurance.

³ While originally Gray and Tarr assigned error in the trial court's unfavorable disposition of their ex contractu theory of liability, they failed to re-urge it in the petition for certiorari now before us. We must hence leave undisturbed that part of the Court of Appeals' opinion which affirms the nisi prius summary ruling for Republic and Holman on the plaintiffs' ex contractu theory. The Supreme Court will not review issues resolved by the Court of Appeals but not retendered on certiorari. Hough v. Leonard, Okl., 867 P.2d 438, 445-46 (1993); Ford v. Ford, Okl., 766 P.2d 950, 952 (1989).

⁴ For a general discussion of the distinction between federal and state standing concepts, see Toxic Waste Impact Group, Inc. v. Leavitt, Okl., 890 P.2d 906, 913 (1994) (Opala, J., concurring.).

⁵ Agency is a "contract by which one person, with greater or less discretionary powers, undertakes to represent another in certain business relations." F. WHARTON, AGENCY AND AGENTS (1876); see also RESTATEMENT OF AGENCY (SECOND) § 1 which defines agency as:

⁶ Officious volunteers are those who introduce themselves into matters which do not concern them and do something which they are neither legally nor ethically bound to do or which is not in pursuance of the protection of another's interest. Booker v. Sears Roebuck & Co., Okl., 785 P.2d 297, 310 (1990); Kelly v. Tyra, 103 Minn. 176, 114 N.W. 750, 752 (1908).

⁷ See RESTATEMENT OF AGENCY (SECOND) § 316(1) which states:

⁸ By resting its March 7 order upon the one-year limitation in the insurance contract, the trial court attempted to avoid ruling on whether Tarr's tort remedy against Republic and Holman was timely invoked. Its order erroneously reasons that since the insureds' claim was brought more than one year after the operative event, i.e., the June 4 fire, it was contractually barred regardless of which theory is urged. Because our jurisprudence affords a two-year limitation for a tort action based on bad-faith refusal to settle a claim, Lewis v. Farmers Ins. Co., Inc., Okl., 681 P.2d 67, 70 (1983), the trial court's reasoning is clearly flawed. See also McGehee v. State Ins. Fund, Okl., 904 P.2d 70 (1995).

⁹ Bad-faith refusal to settle a claim was first recognized as a distinct tort in Christian v. American Assur. Co., Okl., 577 P.2d 899, 901 (1978). The remedy rests on the insurer's implied-in-law duty to act in good faith and deal fairly with the insured to ensure that the policy benefits are received. Id. at 901. While numerous items of damage may result from one injurious occurrence, the party who seeks to recover for an insured loss has but a single cause of action, although the claim may be advanced concurrently on ex contractu and ex delicto theories. Mann v. State Farm Mut. Auto. Ins. Co., Okl., 669 P.2d 768, 772 (1983).

¹⁰ Section D of the petition in error calls for the appellant to identify the "issues and errors proposed to be raised on appeal."

¹¹ Markwell v. Whinery's Real Estate, Inc., Okl., 869 P.2d 840, 843 (1994).

¹² Buzzard v. McDanel, Okl., 736 P.2d 157, 161 (1987) (Opala, J., concurring.).

¹³ Bane v. Anderson, Bryant & Co., Okl., 786 P.2d 1230, 1234 (1989).

¹⁴ See Gray and Tarr's petition in error, exhibit B, "Summary of Case".

¹⁵ Nilsen v. Tenneco Oil Co., Okl., 614 P.2d 36, 38 (1980).

¹⁶ "Acceptable probative substitutes" are those which may be used as "evidentiary materials" in the summary process of adjudication. Seitsinger v. Dockum Pontiac Inc., Okl., 894 P.2d 1077, 1080-81 (1995); Davis v. Leitner, Okl., 782 P.2d 924, 926-27 (1989).

¹⁷ This test is nominationed the "factual expectation" test. Snethen v. Okl. U. of Farmers Ed. & Co-op. U., Okl., 664 P.2d 377, 380 (1983). When applied, it suffices to negate any notion of an unlawful "wager contract". Id. at 379-80.

¹⁸ Snethen, supra note 17 at 380.

¹⁹ The now defunct "legally cognizable interest" test requires that property may be treated as insurable only if the insured has a legal or equitable right enforceable either at law or in chancery. Lucena v. Crauford, 127 Eng.Rep. 630, 651 [1806]. See also Snethen, supra note 17 at 380.

²⁰ Snethen, supra note 17 at 380.

²¹ See Snethen, supra note 17 at 380.