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. 95-5207

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.
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Entered for the Court,

Patrick Fisher, Clerk of Court

 By: Keith Nelson

Deputy Clerk
* This order and judgment is not binding precedent, except under the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.

F I L E D

United States Court of Appeals

Tenth Circuit

AUG 18 1999

PATRICK FISHER

Clerk

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. 95-5207

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

(N.D. Okla.)

ORDER AND JUDGMENT *

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
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-

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,
-3-

§ 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.
-4-

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
** 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. 

F I L E D

United States Court of Appeals

Tenth Circuit

JUN 11 1999

PATRICK FISHER

Clerk

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. 95-5207

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

(N.D. Okla.)

ORDER AND JUDGMENT **

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
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-

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

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?
-3-

(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.
-4-

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