Plaintiff may bring this claim only if Silverleaf had an insurable interest to assign. See Snethen v. Oklahoma State Union of Farmers Educ. and Coop. Union of Am., 664 P.2d 377, 379 (Okla. 1983) (under Oklahoma law, "[i]t is well settled that both the validity and enforceability of an insurance contract depend upon the presence of an insurable interest in the person who purchased the policy"); see also Delk v. Markel American Ins. Co., 81 P.3d 629, 633-34 (Okla. 2003) ("An insurable interest is the relationship or connection a person must have with the subject matter of an insurance policy in order to insure it."). Thus, as an initial matter, the Court must determine whether Silverleaf had an insurable interest in the Mall.

The distinction between wagering and insurance is now so firmly established in public perception, that the justification for the insurable interest doctrine is more readily apprehended today as the prevention of unproductive and wasteful commercial transactions, the limitation of insurance to true indemnity, and the deterrence of the fraudulent destruction of insured property.Delk v. Markel Am. Ins. Co., 81 P.3d 629, 633-635 (Okla. 2003) (footnotes omitted). We find the relevant facts of the case before us similar to those in Smith v. Amerisure Insurance Co., No. 03A01-9510-CV-00370, 1996 WL 269461 (Tenn. Ct. App. May 22, 1996) perm. app. denied (Tenn. Oct. 21, 1996).

Cf. Delk v. Markel American Ins. Co., 2003 OK 88, ¶ 21, 81 P.3d 629, 640 ("The insurer believed it was entering into a contract of indemnity for the full value of the home up to the coverage limits. Its obligations are not increased by the actual status of the legal title to the insured premises.

State Life Ins. Co. v. State ex rel., Kehn, 1942 OK 385, 135 P.2d 965. Delk v. Markel American Insurance Co., 2003 OK 88, ¶ 11, 81 P.3d 629, 636. Carr v. Union Mut. Ins. Co., 1979 OK CIV APP 15, 598 P.2d 269, 270-271 (Released for Publication by Order of the Supreme Court) quoting 3 Couch on Insurance 2d, § 24:70, p. 155.

It is imposed when an individual obtains a legal right to property through fraudulent, abusive means or through a method which violates equity and good conscience. Delk v. Market American Ins. Co., 2003 OK 88, ¶ 19 n. 48, 81 P.3d 629, 640; Matter of Estate of Ingram, 1994 OK 51, ¶ 19, 874 P.2d 1282, 1287. The primary reason for imposing a constructive trust is to avoid unjust enrichment.

The right of a parent to the care, custody, companionship and management of his or her child is a fundamental right protected by the federal and state constitutions. Matter of Adoption of L.D.S., 2006 OK 80, ¶ 11, 155 P.3d 1; Delk v. Market American Ins. Co., 2003 OK 88, ¶ 17, 81 P.3d 629; Matter of Baby Girl L., 2002 OK 9, ¶ 33, 51 P.3d 544; McDonald v. Wrigley, 1994 OK 25, ¶ 9, 870 P.2d 777. The Okla. Const, art. 2, § 7 providing:

The charge is interesting in light of an opinion recently released by the Court for publication. In Delk v. Markel American Insurance Co., 2003 OK 88, 81 P.3d 629 2003 WL 22390053, we were asked to answer a certified question of law from the United States District Court. Delk determined that an insured cotenant who occupies the insured property as her home and who has insured the property for its full value may recover insurance benefits greater than the value of a fractional legal interest in the property. In so doing, the majority found it "our task to provide the federal court with a range of scenarios, if any, that would militate in favor of or against recovery."

The primary reason for imposing a constructive trust is to avoid unjust enrichment.Delk v. Markel Am. Ins. Co., 81 P.3d 629, 640 n. 48 (Okla. 2003) (citation omitted). "A constructive trust is a remedial device used by courts to enforce substantive rights, it is not itself a substantive right."

Further, while not dispositive, the court notes that Stifel's argument in this regard is somewhat inconsistent with its position that dismissal of the constructive trust claim is inappropriate and interpleader is warranted. See Delk v. Markel Am. Ins. Co., 81 P.3d 629, 640 n.48 (Okla. 2003) (“The primary reason for imposing a constructive trust is to avoid unjust enrichment.”).

In determining whether an insurable interest exists, Oklahoma courts have adopted the "factual expectation theory of insurable interest" wherein the court must evaluate "if the insured would gain some economic advantage by its continued existence or would suffer some economic detriment in case of its loss or destruction." Snethen v. Okla. State Union of the Farmers' Educ. and Copperative Union of America, 664 P.2d 377, 380 (Okla. 1983); see alsoDelk v. Markel American Ins. Co., 81 P.3d 629, 633-34 (Okla. 2003). At the time of the loss in this case, Hill would neither gain an economic advantage through the continued existence of the property nor suffer an economic detriment.