UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
JESSICA M. TAYLOR, individually and as Personal Representative of the Estate of DAVID G. TAYLOR, Deceased,
Plaintiff-Appellee,
v. No. 95-5207
STATE FARM FIRE AND CASUALTY COMPANY,
Defendant-Appellant.
ORDER Filed August 18, 1999
Before BALDOCK , EBEL , and LUCERO , Circuit Judges.
Defendant-appellant State Farm petitions for rehearing of our June 11,
1999 order and judgment, in which the court affirmed the district court’s award
of prejudgment interest and attorney’s fees based on the Oklahoma Supreme
Court’s answer to questions we previously certified to that court.
Upon consideration of the petition for rehearing and appellee’s response,
the court concludes that the petition should be granted. An amended order and
judgment is attached. Entered for the Court, Patrick Fisher, Clerk of Court
By: Keith Nelson Deputy Clerk
-2- F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS AUG 18 1999 FOR THE TENTH CIRCUIT PATRICK FISHER Clerk
JESSICA M. TAYLOR, individually and as Personal Representative of the Estate of DAVID G. TAYLOR, Deceased,
v. No. 95-5207 (D.C. No. 94-C-253-BU) STATE FARM FIRE AND (N.D. Okla.) CASUALTY COMPANY,
ORDER AND JUDGMENT *
This is an appeal from an award of $16,608.14 in prejudgment interest and
$126,000.00 in costs and attorney’s fees under Okla. Stat. Ann. tit. 36, § 3629(B)
against defendant State Farm in favor of plaintiffs David G. and Jessica M.
Taylor, who sued State Farm for failing to settle a claim under their homeowner’s
* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. insurance policy for hail damage to their house. 1 State Farm contended that:
(1) under Brashier v. Farmers Insurance Co. , 925 P.2d 20 (Okla. 1996), § 3629(B)
did not support the award of either prejudgment interest or costs and attorney’s
fees because the Taylors prevailed only on their claim of bad-faith refusal to
settle a property loss and not on their contract claim (which was held to be
time-barred); and (2) the Taylors expressly disclaimed their right to attorney’s
fees based on the common law of Oklahoma. The district court relied primarily
on Thompson v. Shelter Mutual Insurance , 875 F.2d 1460, 1464 (10th Cir. 1989),
an earlier case in which this court upheld an award of costs and attorney’s fees
under § 3629(B) to plaintiffs who had prevailed on claims of both breach of
contract and bad faith.
Because the parties disagreed as to whether Thompson was dispositive in
this case in light of Brashier , we certified the following questions to the
Oklahoma Supreme Court:
(1) To what extent, if any, does Brashier v. Farmers Insurance Co. , 925 P.2d 20 (Okla. 1996), preclude trial court allowance of attorney fees and prejudgment interest under Okla. Stat. Ann. tit. 36,
1 Mr. Taylor died on January 26, 1998. Mrs. Taylor was substituted for him by order filed on February 27, 1998. After examining the briefs and appellate record, this panel has determined unanimously to grant the parties’ request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1.9. The case is therefore ordered submitted without oral argument.
-2- § 3629(B) in insurance bad faith cases in which the insured does not also recover on a contract claim?
(2) Following Brashier , are insurance bad faith claimants proceeding under Oklahoma law precluded from recovering attorneys fees and prejudgment interest in cases in which a claim is predicated on tort rather than contract?
In response to the first question, the Oklahoma Supreme Court answered
that Brashier does not preclude a trial court from awarding attorney’s fees and
prejudgment interest under Okla. Stat. Ann. tit. 36, § 3629(B) in insurance bad
faith cases in which the insured does not also recover on a contract claim. See
Taylor v. State Farm Fire & Cas. Co. , No. 89-677, ___ P. 2d ___, 1999 WL
318496, at *1 (Okla. May 18, 1999). The court held that § 3629(B) authorizes
awards of attorney’s fees and prejudgment interest, whether the theory of liability
is based in contract or tort, “so long as the ‘core element’ of the damages sought
and awarded is composed of the insured loss.” Id.
In response to the second question, the Oklahoma Supreme Court answered
that Brashier does not bar an attorney’s fee award under § 3629(B) in tort claims
for bad-faith refusal to settle a property loss. See id. The court held that
prejudgment interest is also allowed under § 3629(B) “ whenever (a) the insured
is the prevailing party and (b) the damages for the insured loss were capable of
ascertainment by reference to well-established market values.” Id.
-3- Applying the Oklahoma Supreme Court’s answer to this appeal, we hold
that § 3629(B) properly supports the district court’s award of attorney’s fees and
costs to plaintiffs, but that the case must be remanded for additional proceedings
related to the award of prejudgment interest, namely, to determine whether the
insured property loss was ascertainable by reference to well-established market
values and, if so, the amount thereof upon which prejudgment interest is to be
awarded. The district court’s order is therefore AFFIRMED in part and
REVERSED in part, and REMANDED for additional proceedings in accordance
with this order and judgment.
Entered for the Court
Carlos F. Lucero Circuit Judge
-4- F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS JUN 11 1999 FOR THE TENTH CIRCUIT PATRICK FISHER Clerk
JESSICA M. TAYLOR, individually and as Personal Representative of the Estate of DAVID G. TAYLOR, Deceased, No. 95-5207 Plaintiff-Appellee, (D.C. No. 94-C-253-BU) (N.D. Okla.) v.
ORDER AND JUDGMENT **
This is an appeal from an award of $16,608.14 in prejudgment interest and
$126,000.00 in costs and attorney’s fees under Okla. Stat. Ann. tit. 36, § 3629(B)
against defendant State Farm in favor of plaintiffs David G. and Jessica M.
Taylor, who sued State Farm for failing to settle a claim under their homeowner’s
** This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. insurance policy for hail damage to their house. 1 State Farm contended that:
(1) under Brashier v. Farmers Ins. Co. , 925 P.2d 20 (Okla. 1996), § 3629(B) did
not support the award of either prejudgment interest or costs and attorney’s fees
because the Taylors prevailed only on their claim of bad faith refusal to settle a
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UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
JESSICA M. TAYLOR, individually and as Personal Representative of the Estate of DAVID G. TAYLOR, Deceased,
Plaintiff-Appellee,
v. No. 95-5207
STATE FARM FIRE AND CASUALTY COMPANY,
Defendant-Appellant.
ORDER Filed August 18, 1999
Before BALDOCK , EBEL , and LUCERO , Circuit Judges.
Defendant-appellant State Farm petitions for rehearing of our June 11,
1999 order and judgment, in which the court affirmed the district court’s award
of prejudgment interest and attorney’s fees based on the Oklahoma Supreme
Court’s answer to questions we previously certified to that court.
Upon consideration of the petition for rehearing and appellee’s response,
the court concludes that the petition should be granted. An amended order and
judgment is attached. Entered for the Court, Patrick Fisher, Clerk of Court
By: Keith Nelson Deputy Clerk
-2- F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS AUG 18 1999 FOR THE TENTH CIRCUIT PATRICK FISHER Clerk
JESSICA M. TAYLOR, individually and as Personal Representative of the Estate of DAVID G. TAYLOR, Deceased,
v. No. 95-5207 (D.C. No. 94-C-253-BU) STATE FARM FIRE AND (N.D. Okla.) CASUALTY COMPANY,
ORDER AND JUDGMENT *
This is an appeal from an award of $16,608.14 in prejudgment interest and
$126,000.00 in costs and attorney’s fees under Okla. Stat. Ann. tit. 36, § 3629(B)
against defendant State Farm in favor of plaintiffs David G. and Jessica M.
Taylor, who sued State Farm for failing to settle a claim under their homeowner’s
* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. insurance policy for hail damage to their house. 1 State Farm contended that:
(1) under Brashier v. Farmers Insurance Co. , 925 P.2d 20 (Okla. 1996), § 3629(B)
did not support the award of either prejudgment interest or costs and attorney’s
fees because the Taylors prevailed only on their claim of bad-faith refusal to
settle a property loss and not on their contract claim (which was held to be
time-barred); and (2) the Taylors expressly disclaimed their right to attorney’s
fees based on the common law of Oklahoma. The district court relied primarily
on Thompson v. Shelter Mutual Insurance , 875 F.2d 1460, 1464 (10th Cir. 1989),
an earlier case in which this court upheld an award of costs and attorney’s fees
under § 3629(B) to plaintiffs who had prevailed on claims of both breach of
contract and bad faith.
Because the parties disagreed as to whether Thompson was dispositive in
this case in light of Brashier , we certified the following questions to the
Oklahoma Supreme Court:
(1) To what extent, if any, does Brashier v. Farmers Insurance Co. , 925 P.2d 20 (Okla. 1996), preclude trial court allowance of attorney fees and prejudgment interest under Okla. Stat. Ann. tit. 36,
1 Mr. Taylor died on January 26, 1998. Mrs. Taylor was substituted for him by order filed on February 27, 1998. After examining the briefs and appellate record, this panel has determined unanimously to grant the parties’ request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1.9. The case is therefore ordered submitted without oral argument.
-2- § 3629(B) in insurance bad faith cases in which the insured does not also recover on a contract claim?
(2) Following Brashier , are insurance bad faith claimants proceeding under Oklahoma law precluded from recovering attorneys fees and prejudgment interest in cases in which a claim is predicated on tort rather than contract?
In response to the first question, the Oklahoma Supreme Court answered
that Brashier does not preclude a trial court from awarding attorney’s fees and
prejudgment interest under Okla. Stat. Ann. tit. 36, § 3629(B) in insurance bad
faith cases in which the insured does not also recover on a contract claim. See
Taylor v. State Farm Fire & Cas. Co. , No. 89-677, ___ P. 2d ___, 1999 WL
318496, at *1 (Okla. May 18, 1999). The court held that § 3629(B) authorizes
awards of attorney’s fees and prejudgment interest, whether the theory of liability
is based in contract or tort, “so long as the ‘core element’ of the damages sought
and awarded is composed of the insured loss.” Id.
In response to the second question, the Oklahoma Supreme Court answered
that Brashier does not bar an attorney’s fee award under § 3629(B) in tort claims
for bad-faith refusal to settle a property loss. See id. The court held that
prejudgment interest is also allowed under § 3629(B) “ whenever (a) the insured
is the prevailing party and (b) the damages for the insured loss were capable of
ascertainment by reference to well-established market values.” Id.
-3- Applying the Oklahoma Supreme Court’s answer to this appeal, we hold
that § 3629(B) properly supports the district court’s award of attorney’s fees and
costs to plaintiffs, but that the case must be remanded for additional proceedings
related to the award of prejudgment interest, namely, to determine whether the
insured property loss was ascertainable by reference to well-established market
values and, if so, the amount thereof upon which prejudgment interest is to be
awarded. The district court’s order is therefore AFFIRMED in part and
REVERSED in part, and REMANDED for additional proceedings in accordance
with this order and judgment.
Entered for the Court
Carlos F. Lucero Circuit Judge
-4- F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS JUN 11 1999 FOR THE TENTH CIRCUIT PATRICK FISHER Clerk
JESSICA M. TAYLOR, individually and as Personal Representative of the Estate of DAVID G. TAYLOR, Deceased, No. 95-5207 Plaintiff-Appellee, (D.C. No. 94-C-253-BU) (N.D. Okla.) v.
ORDER AND JUDGMENT **
This is an appeal from an award of $16,608.14 in prejudgment interest and
$126,000.00 in costs and attorney’s fees under Okla. Stat. Ann. tit. 36, § 3629(B)
against defendant State Farm in favor of plaintiffs David G. and Jessica M.
Taylor, who sued State Farm for failing to settle a claim under their homeowner’s
** This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. insurance policy for hail damage to their house. 1 State Farm contended that:
(1) under Brashier v. Farmers Ins. Co. , 925 P.2d 20 (Okla. 1996), § 3629(B) did
not support the award of either prejudgment interest or costs and attorney’s fees
because the Taylors prevailed only on their claim of bad faith refusal to settle a
property loss and not on their contract claim (which was held to be time-barred);
and (2) the Taylors expressly disclaimed their right to attorney’s fees based on the
common law of Oklahoma. The district court relied primarily on Thompson v.
Shelter Mutual Insurance , 875 F.2d 1460, 1464 (10th Cir. 1989), an earlier case in
which this court upheld an award of costs and attorney’s fees under § 3629(B) to
plaintiffs who had prevailed on claims of both breach of contract and bad faith.
Because the parties disagreed as to whether Thompson was dispositive in
this case in light of Brashier , we certified the following questions to the
(1) To what extent, if any, does Brashier v. Farmers Insurance Co. , 925 P.2d 20 (Okla. 1996), preclude trial court allowance of attorney fees and prejudgment interest under Okla. Stat. Ann. tit. 36, § 3629(B) in insurance bad faith cases in which the insured does not also recover on a contract claim?
1 Mr. Taylor died on January 26, 1998. Mrs. Taylor was substituted for him by order filed on February 27, 1998. After examining the briefs and appellate record, this panel has determined unanimously to grant the parties’ request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f) and 10th Cir. R. 34.1.9. The case is therefore ordered submitted without oral argument.
-2- (2) Following Brashier , are insurance bad faith claimants proceeding under Oklahoma law precluded from recovering attorneys fees and prejudgment interest in cases in which a claim is predicated on tort rather than contract?
In response to the first question, the Oklahoma Supreme Court answered
that Brashier does not preclude a trial court from awarding attorney’s fees and
prejudgment interest under Okla. Stat. Ann. tit. 36, § 3629(B) in insurance bad
faith cases in which the insured does not also recover on a contract claim. See
Taylor v. State Farm Fire & Cas. Co. , No. 89-677, ___ P. 2d ___, 1999 WL
318496, at *1 (Okla. May 18, 1999). The court held that § 3629(B) authorizes
awards of attorney’s fees and prejudgment interest, whether the theory of liability
is based in contract or tort, “so long as the ‘core element’ of the damages sought
and awarded is composed of the insured loss.” Id. That is the case here.
In response to the second question, the Oklahoma Supreme Court answered
that Brashier does not bar an attorney’s fee award under § 3629(B) in tort claims
for bad-faith refusal to settle a property loss. See id. The court held that
prejudgment interest is also allowed under § 3629(B) “ whenever (a) the insured is
the prevailing party and (b) the damages for the insured loss were capable of
ascertainment by reference to well-established market values.” Id. That is also
the case here.
-3- Applying the Oklahoma Supreme Court’s answer to this appeal, we hold
that § 3629(B) properly supports the district court’s award of prejudgment interest
and costs and attorney’s fees to plaintiffs. The district court’s order is therefore
AFFIRMED.
-4-