Cisneros, 134 F.3d at 944. In Dixon v. State Mutual Insurance Co., 126 P. 794 (Okla. 1912), the Oklahoma Supreme Court considered the refusal of the defendant insurance company to cover the insured's fire loss due to the insured's late notice of claim. The court held that "[u]nless time was made of the essence of the contract, the [insurance] company cannot escape liability for the loss, except it appears that they were injured by the failure of the insured to comply with the letter of the contract as to time for giving notice and making proof."

Reversed and remanded. See, also, 34 Okla. 624, 126 P. 794, L. R. A. 1915F, 1210. Everest Campbell, for plaintiff in error.

Because we hold time is of the essence for the notice provision of Section 12, the FDIC's argument that KBS must show prejudice to defeat liability also must fail. Quoting Dixon v. State Mut. Ins. Co., 34 Okl. 624, 126 P. 794, 795 (1912), the FDIC argues that "`[u]nless time was made of the essence of the contract, the [insurer] cannot escape liability for the loss, except it appears that they were injured by the failure of the insured to comply with the letter of the contract as to time for giving notice and making proof.'" See also Independent School Dist. No. 1 v. Jackson, 608 P.2d 1153, 1155 (Okla. 1980); Fox v. National Savings Ins. Co., 424 P.2d 19, 25 (Okla. 1967).

e, according to the testimony of Mr. Lawrence, he had the checks, L to Q, knew they were for options, and also had the statements of the Root Grain Company showing dealings in options, converge upon the mind with compelling power, and force it to the conclusion that the officers of the plaintiff, whose knowledge was its knowledge, discovered as early as May 11, 1921, the alleged wrongful acts of Mr. Prose charged in the complaint of the plaintiff, and that the evidence to that effect is of so conclusive a character that this court, under the rule stated above, ought not to sustain a judgment based on a finding of the jury to the contrary. Counsel for the plaintiff, however, now contend that, because there was no provision in the bond that it should be forfeited if notice of the dishonest act was not given within the five days after its discovery, the failure to give it within that time was immaterial, and they cite St. Paul Fire Marine Ins. Co. v. Owens, 69 Kan. 602, 77 P. 544, and Dixon v. State Mutual Ins. Co., 34 Okla. 624, 126 P. 794, L.R.A. 1915F, 1210. It is not conceded that the rule here invoked is applicable to the action on this bond. If it were, counsel are estopped from taking advantage of it now, because they never presented this claim to the court below, never obtained a ruling upon it by that court, never took any exception to any such ruling, and without these counsel may not invoke the jurisdiction of this court in an action at law to review rulings of the court upon questions never presented and never considered at the trial. The second question is: Was the plaintiff ignorant of the fact that Mr. Prose was buying and selling wheat futures in its name while he was acting as its general manager in 1921? All the testimony relative to this subject has been carefully read and examined; much of it has already been referred to. It is useless now to recite and review it. Suffice it to say that it leaves so little doubt in our minds that the plaintiff knew, permitted, and practiced the purchase and sale of f

“Although no particular form of expression is necessary, it must appear from the plainly expressed provisions contained in a contract, independent of all extraneous matter or circumstances, that it was the intention of the parties thereto that time should be the essence thereof.”See, e.g., Dang v. UNUM Life Ins. Co. of Am., 175 F.3d 1186, 1189-90 (10th Cir. 1999); Cont'l Cas. Co. v. Beaty, 455 P.2d 684, 688 (Okla. 1969); Dixon v. State Mut. Ins. Co., 126 P. 794, 796 (Okla. 1912). See Okla. Stat. tit. 15, § 174 (“Time is never considered as of the essence of a contract, unless by its terms expressly so provided.”); Beaty, 455 P.2d at 688; FDIC v. Kan. Bankers Sur. Co., 963 F.2d 289, 294 (10th Cir. 1992) (clear intent of parties to make time of the essence in contract, including fully set forth consequences of untimely notice).

Davis relies on Oklahoma's well-established notice-prejudice rule to argue that St. Paul must show prejudice in order to deny coverage based on the 90-days notice provision. See Dixon v. State Mut. Ins. Co., 126 P. 794, 795 (Okla. 1912) ("Unless time was made of the essence of the contract, the company cannot escape liability for the loss, except it appears that they were injured by the failure of the insured to comply with the letter of the contract as to time for giving notice and making proof."); Dang v. UNUM Life Ins. Co. of America, 175 F.3d 1186, 1190 (10th Cir. 1999); Cont'l Cas. Co. v. Beaty, 455 P.2d 684, 688 (Okla. 1969). Those cases and Oklahoma's notice-prejudice rule would presumably apply if the denied coverage claim here were for bodily injury or property damage liability, personal injury liability, or other coverages under the Policy which, unlike the pollution clean-up costs coverage, have no reporting requirement as part of the definition of the particular risk covered.

tion for disclosing his expert opinion and endorsing view that an expert has a duty to "give the court the benefit of the knowledge he has in store at the time he is called upon" (quoting Burnett v. Freeman , 125 Mo.App. 683, 103 S.W. 121, 123 (1907) )); Dixon v. People , 168 Ill. 179, 48 N.E. 108, 110–13 (1897) (holding that physician could be held in contempt for refusing to disclose expert opinions without additional compensation); Flinn v. Prairie Cnty. , 60 Ark. 204, 29 S.W. 459, 460 (1895) (holding that a witness may be compelled to disclose "such information as he already possesses ... whether such information is peculiar to his trade or profession, or not"); Ex parte Dement , 53 Ala. 389, 395–97 (1875) (holding that a physician could be held in contempt for refusing to testify as an expert without payment); see alsoLogan v. Chatham Cnty. , 113 Ga.App. 491, 148 S.E.2d 471, 473 (1966) ("An expert testifying as a witness, has no greater privilege than any other witness." (quoting Dixon v. State , 12 Ga.App. 17, 76 S.E. 794, 794 (1912) )); Summers v. State , 5 Tex. App. 365, 378 (1879) (holding that "[a] medical expert could not be compelled to make a post-mortem examination unless paid for it; but, an examination having already been made by him, he could be compelled to disclose the result of that examination"); Bd. of Comm'rs of Larimer Cnty. v. Lee , 3 Colo.App. 177, 32 P. 841, 842 (1893) (recognizing the "general rule" that "the professional witness" may be compelled "to testify as to what he may know, whether it be observed facts, or accumulated knowledge acquired by study and experience"). One court adopted a middle-ground approach that gives trial courts "wide discretion to quash subpoenas or issue protective orders whenever a litigant's demand for a particular expert constitutes an unnecessary or unwarranted intrusion" as well as "the power to compel an unwilling expert to provide pre-formulated opinion testimony whenever a litigant establishes a compelling need for the testimony."

udicially enforced); Zurich American Insurance Company v. ACE American Insurance Company , 165 A.D.3d 558, 86 N.Y.S.3d 468, 469 (2018) citing Neuwirth v. Blue Cross & Blue Shield of Greater N.Y., Blue Cross Assn. , 62 N.Y.2d 718, 719, 476 N.Y.S.2d 814, 465 N.E.2d 353 (1984) (the burden of establishing that a claim falls within a policy's exclusionary provisions rests with the insurer); Clark v. Prudential Property and Cas. Ins. Co. , 138 Idaho 538, 541, 66 P.3d 242, 245 (2003), (burden is on the insurer to use clear and precise language if it wishes to restrict the scope of coverage and exclusions not stated with specificity will not be presumed or inferred).See , e.g. , O'Connell v. Liberty Mutual Fire Ins. Co. , 43 F.Supp.3d 1093, n. 3, 1097 (D. Mont. 2014) (it is a general rule of contract interpretation that if a contract includes a level of specificity in one context and then omits that specificity in a similar context, such an omission is purposeful and should be given meaning); Dixon v. State Mut. Ins. Co. , 1912 OK 594, 34 Okla. 624, 126 P. 794 (maxim expressio unius est exclusio alterius , mention of one thing implies exclusion of another, is applied to construction of insurance policy).See , e.g. , Cantanucci v. Reliance Ins. Co. , 43 A.D.2d 622, 349 N.Y.S.2d 187, 190-191 (1973) (by construing the exclusion to apply only to water below the surface due to natural causes, effect is given to the well-settled principle that provisions of an insurance policy are to be harmonized and that ambiguities must be resolved in favor of the insured).

The termination provisions did not include failure to give notice of disability as ground for termination, or forfeiture. Under such circumstance we are of the opinion the rule in the early case of Dixon v. State Mutual Fire Ins. Co., 34 Okla. 624, 126 P. 794, L.R.A. 1915F, 1210, cited by plaintiff, is applicable. In Dixon it was held that the insurer could have made time for giving notice of loss of the essence of the contract.

While this State does not have the same statutes that the Supreme Court of Wisconsin has said express a public policy in that State to "protect the interests of injured third persons with respect to enforcing their claims against an automobile liability insurance carrier" (Stippich v. Morrison, 12 Wis.2d 331, 107 N.W.2d 125, 128; and see the discussions in Kurz v. Collins, 6 Wis.2d 538, 95 N.W.2d 365, and Zander v. Holly, 1 Wis.2d 300, 84 N.W.2d 87) nor the statutory reason for requiring the insurer to show prejudice that exists in Colorado (see Ewing v. Colorado Farm Mutual Cas. Co., 133 Colo. 447, 296 P.2d 1040), this court, at an early date, adopted a liberal construction of insurance policy provisions concerning notice. For instance, in the leading case of Dixon v. State Mut. Ins. Co., 34 Okla. 624, 126 P. 794, 795, L.R.A. 1915F, 1210, this court, in speaking of the insuring company, said: "* * * Unless time was made of the essence of the contract, the company cannot escape liability for the loss, except it appears that they were injured by the failure of the insured to comply with the letter of the contract as to time for giving notice and making proof."