Taylor v. State Farm Fire and Casualty Co., (10th Cir. 1999)

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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.

STATE FARM FIRE AND

CASUALTY COMPANY,

Defendant-Appellant.

No.
name="1">95-5207

(D.C. No. 94-C-253-BU)

(N.D. Okla.)

ORDER AND JUDGMENT
name="txt*">(*)

Before BALDOCK, EBEL, and

LUCERO, Circuit Judges.

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

insurance policy for hail damage to their house.
name="txt1a">(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

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,

§ 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. 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.

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.

Entered for the Court

Carlos F. Lucero

Circuit Judge

FOOTNOTES

Click footnote number to return to corresponding location in the text.

*. 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.

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.

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