United States Court of Appeals

For the Eighth Circuit

___________________________

No. 15-3755

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Simmons Foods, Inc.

lllllllllllllllllllll Plaintiff - Appellee

v.

Industrial Risk Insurers, an Unincorporated for Profit Association; Swiss

Reinsurance America Corporation; Westport Insurance Corporation; Ironshore

Specialty Insurance Company

lllllllllllllllllllll Defendants - Appellants

___________________________

No. 15-3845

___________________________

Simmons Foods, Inc.

lllllllllllllllllllll Plaintiff - Appellant

v.

Industrial Risk Insurers, an Unincorporated for Profit Association; Swiss

Reinsurance America Corporation; Westport Insurance Corporation; Ironshore

Specialty Insurance Company

lllllllllllllllllllll Defendants - Appellees

____________

Appeals from United States District Court 

for the Western District of Arkansas - Fayetteville
____________

 Submitted: January 11, 2017

 Filed: July 11, 2017

____________

Before RILEY, Chief Judge, LOKEN and BENTON, Circuit Judges.

1

____________

RILEY, Chief Judge.

In 2011, Simmons Foods, Inc., made a claim under two property insurance

policies it had with Industrial Risk Insurers and Ironshore Specialty Insurance

Company (collectively, the insurers). The insurers denied a portion of the claim that 2

related to one of Simmons’s damaged properties in Oklahoma, which eventually

resulted in Simmons filing suit in Arkansas where Simmons is headquartered. The

insurers moved to dismiss the action based on policy provisions requiring any action

be brought within one year of the date of loss, a window that had closed some time

earlier. The district court applied Arkansas law—which voids such contractual

provisions, unlike Oklahoma law—and denied the motion. The case went to trial, and

after the jury verdict Simmons recovered $2,817,380.11 of the $3,584,041.90 it

sought. The district court then ordered the insurers to pay prejudgment interest. The

district court rejected Simmons’s attempt to recover an additional 12% in damages

The Honorable William Jay Riley stepped down as Chief Judge of the United

1

States Court of Appeals for the Eighth Circuit at the close of business on March 10,

2017. He has been succeeded by the Honorable Lavenski R. Smith.

The member companies of Industrial Risk Insurers, Westport Insurance 2

Corporation and Swiss Reinsurance America Corporation, were also named

defendants and are therefore included as “insurers.” Also, the partiesrefer to a single

claim, notwithstanding the fact there are two policies, apparently because a single

event—a snowstorm—wasinvolved. Because it does not affect our analysis, we will

do the same.

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and also attorney fees, finding Simmons failed to clear the statutory threshold. See

Ark. Code Ann. § 23-79-208. Neither side issatisfied with how things were resolved. 

The insurers appeal the denial of their motion to dismiss and the award of

prejudgment interest. Simmons cross-appeals the decision not to award statutory

damages or attorney fees. We affirm the denial of the insurers’ motion to dismiss,

reverse and vacate the award of prejudgment interest, and affirm the rejection of

Simmons’s claims for statutory damages and attorney fees. 

I. BACKGROUND

Simmons is a large, family-owned poultry and pet-food company that is

incorporated in Arkansas and headquartered in Benton County, Arkansas. The

insurersissued two materially identical property insurance policiesto Simmons, with

a coverage term from September 1, 2010, to September 1, 2011, and a joint liability

limit of $100 million. According to Simmons’s Assistant Risk Manager, the policies

were “negotiated, entered, issued, and delivered to Simmons at its corporate office in

Benton County, Arkansas,” and the policy premiums were paid from Arkansas. The

policies covered 51 properties Simmons owned, specifically: 21 in Arkansas, 13 in

Oklahoma, and 17 scattered throughout Kansas, Missouri, New Jersey, and Canada.

In February 2011, a snowstorm swept through Oklahoma and Missouri and

damaged several of Simmons’s covered buildings and farms. Simmons made a claim

for all of its damaged properties under the policies, which provided that the insurers’

liability “shall not exceed the smaller of the following: 1. the cost to repair, rebuild

or replace on the same site with new materials of like kind and quality, whichever is

the smallest; 2. the actual expenditure incurred in repairing, rebuilding or replacing

on the same or another site, whichever is the smallest.” The parties resolved most of

the claim without issue. The exception was a dispute about Simmons’s can-making

facility in Fort Gibson, Oklahoma, a 300-foot by 400-foot metal structure that

sustained considerable damage to its roof and supporting columns. The parties

disagreed on how the policies covered the situation—Simmons contended it was

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entitled to recover the cost to rebuild the structure, while the insurers asserted they

were only obligated to pay for the cost to repair specified damages. Simmons elected

to rebuild the facility despite this impasse, and eventually submitted invoices to the

insurers totaling $7,367,859.12. The insurers maintained their position and remitted

their final payment in July 2013, having paid only the $3,879,097.99 they initially

offered Simmons. Simmons sent a letter stating its disagreement and demanding 3

$3,584,041.90. The insurers rejected this last-ditch effort to avoid litigation.

Simmons filed suit in the Western District of Arkansas on September 20, 2013,

seeking $3,584,041.90 for the insurers’ alleged breach of contract. See 28 U.S.C. 4

§ 1332(a)(1) (diversity jurisdiction). The insurers moved to dismiss the action, see

Fed. R. Civ. P. 12(b)(6), based on a time-limitation provision in the policies that

provided: “No suit or action on this policy for the recovery of any claim shall be

sustainable in any court of law or equity . . . unless commenced within twelve months

next after inception of the loss.” (Emphasis added). If enforced, the limitation

provision could bar Simmons’s suit given that the lawsuit was filed over 31 months

after the snowstorm (i.e., 19 months too late). Simmons countered that Arkansas law

applied, making the provision unenforceable and the action timely. The district court

agreed with Simmons and denied the motion because it considered “the timeliness of

the suit [to be] a procedural matter” and therefore “governed by the law of the

forum.” The insurers disagreed with this classification and asked the district court

to certify to our court whether the timeliness issue is procedural or substantive. See

28 U.S.C. § 1292(b) (interlocutory appeal). The district court declined to do so,

Of this amount, $1,170,482.54 was for temporary repairs to the Fort Gibson 3

facility. The remaining $2,708,615.45 reflects what the insurers’ experts estimated

it would cost to repair the structure. 

Note the math does not add up: the $7,367,859.12 Simmons claimedminusthe

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$3,879,097.99 the insurers paid does not equal the $3,584,041.90 Simmons sought. 

That is, Simmons’s demand was about $95,000 too high. We discuss the significance

of this fateful miscalculation later. See infra, section II.C.

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reasoning that regardless of whether the issue was procedural (as the district court

initially found) or substantive (as the insurers urged) it would be governed by

Arkansas law. The case moved forward.

At trial, the parties presented conflicting evidence on the two issues the jury

needed to decide. First, the parties continued their quarrel over whether the facility

could have been repaired. Second, if the rebuild were proper, the parties disputed

whether Simmons was entitled to the full $3,584,041.90 it sought. On this point the

insurers claimed Simmons’s figure included certain “betterments” that were not

covered by the policies—for example a new dock door, additional exhaust fans, and

higher-quality steel—while Simmons posited these expenses were either required by

local code or would save money in the long run. Following the jury’s findings,

Simmons was entitled to $2,817,380.11 in damages. The district court later awarded

Simmons prejudgment interest. See Ark. Code Ann. § 4-57-101(d) (prejudgment

interest); see also Woodline Motor Freight, Inc. v. Troutman Oil Co., Inc., 938

S.W.2d 565, 568 (Ark. 1997). The district court rejected Simmons’s request for

additional relief under Ark. Code Ann. § 23-79-208 (statutory damages and attorney

fees), finding Simmons fell short of the statutory threshold “[b]y the slightest of

margins.” We must now determine whether the district court was correct to: (1) apply

Arkansas law and deny the insurers’ motion to dismiss; (2) award Simmons

prejudgment interest; and (3) reject Simmons’s request for statutory damages and

attorney fees. See 28 U.S.C. § 1291 (appellate jurisdiction).

II. DISCUSSION

A. Motion to Dismiss

The insurers first contend Simmons’s suit was untimely and therefore should

have been dismissed. Whether this contention has merit hinges largely on which

state’s law we must apply. Under Arkansas law, an insured has five years to sue an

insurer for breach of a property insurance policy and “[a]ny stipulation or provision

in the policy or contract requiring the action to be brought within any shorter time or

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be barred is void.” Ark. Code Ann. § 23-79-202; id. § 16-56-111(a). Thus, under

Arkansas law, Simmons’s suit was timely, and the insurers do not suggest otherwise. 

The insurers argue Oklahoma law applies, and Oklahoma law allows courtsto enforce

limitation provisions like the one here. See, e.g., Clipperton v. Allstate Ins. Co., 151

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F. App’x 652, 655 (10th Cir. 2005). The district court applied Arkansas law and

denied the motion to dismiss, both of which are decisions we review de novo. 

See, e.g., Carton v. Gen. Motors Acceptance Corp., 611 F.3d 451, 454-55 (8th Cir.

2010). In deciding what law applies, federal courts exercising diversity jurisdiction

apply the forum state’s choice-of-law principles—here, that is Arkansas. See Am.

Fire & Cas. Co. v. Hegel, 847 F.3d 956, 959 (8th Cir. 2017). 

With that in mind, the first step is to determine whether the timeliness issue is

procedural or substantive in nature. If it is procedural, then Arkansas law applies; if

it is substantive, then further analysis is needed. See Travis Lumber Co. v.

Deichman, 319 S.W.3d 239, 255 (Ark. 2009). The insurers posit “[e]very court to

consider the enforceability of a suit limitation provision in an insurance contract has

treated it as a substantive, not procedural, issue.” However the insurers offer scant

support for this bold claim—they cite two out-of-circuit, district-level decisions.6

Simmons makes an alternative argument that its suit was timely even if 5

Oklahoma law applies, because the time period was equitably tolled or waived during

the continued negotiations and claim-adjustment period. We conclude Oklahoma law

does not apply and therefore express no view as to whether Simmons’s suit was

timely under Oklahoma law.

See Baillie Lumber Co., L.P. v. Ace Am. Ins. Co., No. 11-CV-995A, 2014 WL

6

6997524, at *8 (W.D.N.Y. Dec. 10, 2014); Simons v. N. Cent. Crop Ins., Inc., No. 98

c 1099, 1998 WL 321466, at *2-3 (N.D. Ill. June 12, 1998). But see, e.g., Sun Ins.

Office, Ltd. v. Clay, 133 So. 2d 735, 738 (Fla. 1961) (determining a Florida statute

voiding limitation provisions always applies in Florida courts provided there is

personal jurisdiction); Galliher v. State Mut. Life Ins. Co., 43 So. 833, 834 (Ala.

1907) (holdingGeorgia lawgoverned the “‘validity,interpretation, and construction’”

of a Georgia contract, but forum law governed “all remedies on contracts” (quoting

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More importantly, the statement almost directly conflicts with a case from the only

court whose classification controls: the Arkansas Supreme Court.

In Gulf Insurance v. Holland Const., an Oklahoma-based insured obtained a

property insurance policy from a Texas-based insurer. Gulf Ins. Co. v. Holland

Const. Co., 236 S.W.2d 1003, 1004 (Ark. 1951). The insured made a claim under

that policy when some of its property was damaged in Arkansas, and the insurer

denied coverage. See id. Three years passed from the date of the incident before the

insured filed suit in Arkansas state court. See id. Like here, the insurer pointed to a

limitation provision within the policy stating: “‘No suit action on this policy, for the

recovery of any claim, shall be sustainable in any court . . . unless commenced within

twelve months next after the happening of the loss.’” Id. at 1005. Also like here, the

insurer argued Oklahoma law applied and allowed the clause to be enforced. See id. 

The Arkansas Supreme Court disagreed:

[T]he period of limitation in which suit may be filed . . . is a matter of

procedure and not of substantive law. . . . Where the statutes of the

forum make void all agreements whereby the time for the bringing of

actionsisfixed at a period lessthan that prescribed by law, a contractual

stipulation made in another jurisdiction is not available as a defense.

Id. at 1006 (emphasis added) (citation and internal quotation marks omitted). The

Arkansas Supreme Court declined to give effect to the limitation provision and

affirmed the jury verdict in favor of the insured. See id.

Jones v. Jones, 18 Ala. 248, 250 (1850))). We also note both Baillie and Simons

seemto skip the procedural/substantive question altogether, and neither ofthese cases

is controlling here.

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The insurers try to avoid a similar result here by contending in oral argument

Gulf Insurance is “distinguishable on many, many grounds.” We disagree. At oral 7

argument, the insurers first suggested Gulf Insurance “was going to be governed by

Arkansas law under any sort of choice-of-law analysis” because the damage occurred

in Arkansas. Whether some other choice-of-law principle would have called for

application of Arkansas law is irrelevant, because the Arkansas Supreme Court did

not rely on any such other principle—it relied solely on its determination that the

timeliness issue was procedural and governed by the forum’s law. See id. We are

also unpersuaded by the insurers’ attempt to highlight slight differences between the

limitation provision in Gulf Insurance and the one here. The operative language 8

struck down by the Arkansas Supreme Court was a clause shortening the time an

insured could sue an insurer. That language similarly exists here. 

Last, the insurers orally argued “the law has come a long way since the Gulf

case as to how [courts] treat suit-limitation provisions.” Maybe so. However, “‘[a]s

a federal court, our role in diversity cases is to interpret state law, not to fashion it.’” 

Wivell v. Wells Fargo Bank, N.A., 773 F.3d 887, 896 (8th Cir. 2014) (quoting

Dannix Painting, LLC v. Sherwin-Williams Co., 732 F.3d 902, 905 (8th Cir. 2013)). 

When dealing with an issue of state law we are bound by rulings on that issue from

Despite suggesting “[e]very court” has found limitation provisions to be 7

substantive, the insurers neglected to cite Gulf Insurance even once in their briefs. 

The insurers’ only attempt to distinguish Gulf Insurance came during oral argument.

The policy in Gulf Insurance contained a fail-safe clause of sorts in that it 8

required suits be commenced within a year of the loss, “‘provided that where such

limitation of time is prohibited by the laws of the State Wherein this policy is issued,

then in that event no suit or action under this policy, shall be sustainable unless

commenced within the shortest limitation permitted under the laws of such state.’” 

Id. at 1005 (emphasis added). The Arkansas Supreme Court did not address this

language, probably because the proviso was not applicable—the policy was not

issued in Arkansas. See id. at 1004-06.

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the state’s highest court. See id. at 896-97. We are faced with an issue of Arkansas

law, and the Arkansas Supreme Court has decided that issue, so we are bound by that

decision regardless of whether we think it wise or in accordance with the supposed

national trend. If the Arkansas Supreme Court or legislature wants to change state

law, then they can do so—we cannot. Simmons’s suit was timely, and the district

court was right to deny the insurers’ motion to dismiss.

B. Prejudgment Interest

The insurers next argue Simmons is not entitled to prejudgment interest, which

is another issue we decide (this time without dispute) under Arkansas law. See

Maddox v. Am. Airlines, Inc., 298 F.3d 694, 699 (8th Cir. 2002). “Prejudgment

interest is compensation for recoverable damages wrongfully withheld from the time

of the loss until judgment.” Dorsett v. Buffington, 429 S.W.3d 225, 232 (Ark. 2013). 

A prevailing plaintiff is entitled to prejudgment interest “if the amount of damages

is definitely ascertainable by mathematical computation, or if the evidence furnishes

data that make it possible to compute the amount without reliance on opinion or

discretion.” Id. However “[i]f the damages are not by their nature capable of exact

determination, both in time and amount, prejudgment interest is not an item of

recovery.” Id. at 232-33.

The parties disagree about how these rules apply in this case. To the insurers,

this case is similar to Woodline Motor Freight, Inc. v. Troutman Oil Co., Inc., 938

S.W.2d 565 (Ark. 1997). We agree that case is “instructive.” In Woodline, a vehicle

driver caused a crash that damaged a convenience store. See id. at 566. The building

owner sued. See id. At trial “[t]here was conflicting testimony as to whether the

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The tenant also sued for personal property damage (e.g., inventory), which 9

Simmons claims makes Woodline distinguishable. See id. at 566, 569. However, the

Arkansas Supreme Court bifurcated its discussion and offered separate rationales for

why prejudgment interest was inappropriate for the owner and the tenant. See id. at

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building needed to be completely torn down, or whether part of the structure could

have been repaired.” Id. at 569. The jury awarded $100,000 of the $202,000 the

owner sought for property damage. See id. at 566-67. Given that “the estimates to

repair or replace [the] building varied substantially,” the Arkansas Supreme Court

held prejudgment interest was improper because “it was impossible to compute the

amount of [the plaintiff’s] damages without reliance on opinion or discretion.” Id.

at 569. In Simmons’s case, the jury had to exercise discretion to reach a verdict based

on “conflicting testimony” and estimates that “varied substantially” asto Simmons’s

damages. This suggests “the amount due [Simmons] was neither liquidated as a

dollar sum nor ascertainable by fixed standards.” Id.

Simmons still maintains prejudgment interest was proper because the policies

provided a “method” to ascertain damages: the insurers owed either “the cost to

repair, rebuild or replace” the facility or “the actual expenditure incurred in repairing,

rebuilding or replacing” the facility, whichever was less. To Simmons, the damages

were capable of exact determination because there was “no dispute concerning the

amount Simmons spent to replace the building.” Thus, once the jury decided what

Simmons posits was the only issue at trial—“whether the entire building needed to

be replaced at all”—there was no room left for “opinion or discretion,” nothing for

the jury to ascertain. Dorsett, 429 S.W.3d at 232. But the record and verdict show

that was not the case.

The parties stipulated to how much Simmons actually spent on the facility and

how much the insurers voluntarily paid Simmons. If the jury simply plugged these

figures into Simmons’s proffered damages formula, without relying on any opinion

or discretion, it would have awarded about $3.5 million in damages. Yet, as Simmons

said at oral argument, “juries do what juries do”—the jury awarded Simmons

569. We rely only on the court’s discussion as to the owner’s claim for prejudgment

interest, making this distinction irrelevant.

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$2,817,380.11. Neither party suggested this figure at trial, nor do they offer any

explanation on appeal as to how the jury may have reached this sum. “The fact that

the jury awarded a lesser amount than requested is not necessarily dispositive, but it

is unclear here . . . how the jury arrived at the total damages amount.” Yazdianpour

v. Safeblood Techs., Inc., 779 F.3d 530, 540 (8th Cir. 2015); cf. Aceva Techs., LLC

v. Tyson Foods, Inc., 429 S.W.3d 355, 365-66 (Ark. Ct. App. 2013) (awarding

prejudgment interest where the plaintiff recovered lessthan itsought, but it was clear

how the jury calculated damages). The jury could not, and indeed did not, blindly

accept every invoice Simmons offered into evidence. The jury had to use its

discretion to ascertain which experts to believe, which expenses were covered under

the policies, and whether the invoices “‘reflected reliable and fair dollar amounts.’” 

Yazdianpour, 779 F.3d at 540 (quoting Sims v. Moser, 284 S.W.3d 505, 520 (Ark.

2008)). The need for such discretion means Simmons’s damages were not capable

of exact determination until the jury spoke and the district court entered judgment,

and prejudgment interest was not appropriate.

10

We reach this conclusion regardless of our standard of review, an issue upon 10

which the parties disagree (but do not elaborate). The insurers propose de novo

review, citing Children’s Broadcasting Corp. v. Walt Disney Co., 357 F.3d 860, 868

(8th Cir. 2004). Simmons suggests an abuse-of-discretion standard, pointing to AllWays Logistics, Inc. v. USA Truck, Inc., 583 F.3d 511, 518 (8th Cir. 2009). We need

not reconcile this apparent inconsistency within our precedent, because “[a] district

court by definition abuses its discretion when it makes an error of law.” Koon v.

United States, 518 U.S. 81, 100 (1996).

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C. Statutory Damages and Attorney Fees

For its part, Simmons claims it should have received statutory damages and

attorney fees. Under Ark. Code Ann. § 23-79-208(a)(1), an insurer found to have

11

improperly withheld payment on a claim “shall be liable to pay the holder of the

policy . . . , in addition to the amount of the loss, twelve percent (12%) damages upon

the amount of the loss, together with all reasonable attorney’s feesfor the prosecution

and collection of the loss.” This additional relief is available only “if the amount

recovered for the loss is within twenty percent (20%) of the amount demanded or

which [was] sought in the suit.” Id. § 23-79-208(d)(1). 

The Arkansas Supreme Court has made clear the statute is “strictly construed

in favor of the party sought to be penalized” and “should not be held to apply except

in cases that come clearly within the statute.” Primerica Life Ins. Co. v. Watson, 207

S.W.3d 443, 448 (Ark. 2004). Whether this case comes “clearly within the statute”

depends on whether Simmons recovered at least 80% of the amount it “demanded”

or “sought in the suit.” After thorough analysis, the district court found “Simmons

fail[ed] to chin this statutory bar, as its net recovery of $2,817,380.11 is only 78.6%

of its $3,584,041.90 demand.” We review the district court’s legal conclusion de

novo, and the factual findings supporting it for clear error. See, e.g., Jackson v.

Allstate Ins. Co., 785 F.3d 1193, 1206 (8th Cir. 2015).

Simmons proposes two reasons why the district court was wrong. First,

Simmons suggeststhe district court took too narrow a view in deciding what numbers

to use. That is, the math should reflect the question posed to the jury: “What . . . was

the least amount for which Simmons could have replaced the entire Ft. Gibson

Building?” Simmons said this number was $6,098,080, the “amount demanded.”

The Arkansas Supreme Court has held § 23-79-208 is “a procedural matter,” 11

and therefore may be applied regardless of what state’s substantive law governs. 

Shepherd v. State Auto Prop. & Cas. Ins. Co., 850 S.W.2d 324, 329 (Ark. 1993). 

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The jury found the number to be $5,525,995.56, the “amount recovered.” If these

numbers are used, then Simmons recovered 90.6% of the amount it sought. But this

approach fails to recognize the difference between an insurance claim and a legal

claim, and the statutory threshold is concerned with the latter. See Ark. Code Ann.

§ 23-79-208(d)(1) (referring to the amount sought “in the suit” (emphasis added));

Nat’l Standard Ins. Co. v. Westbrooks, 962 S.W.2d 355, 357 (Ark. 1998) (“This court

has previously interpreted the language ‘amount demanded or which is sought in the

suit’ as ‘the amount sued for.’” (quoting Mut. Relief Ass’n v. Poindexter, 10 S.W.2d

17, 18 (Ark. 1928))). Simmons made an insurance claim, and the insurers denied part

of that claim. Simmons then demanded and ultimately sued for the difference, not the

entire $6,098,080, a point it repeatedly acknowledges throughout its briefs. This

admitted truth is enough to defeat this version of Simmons’s argument. 

Alternatively, Simmons contends the district court failed to grasp the

“substance” of its demand. Notwithstanding the above approach, Simmons says it

was “undisputed” Simmons wassuing to recover the difference between what itspent

to replace the facility and what the insurers voluntarily paid. That difference was

$3,488,761.13, and using this asthe “amount demanded” would mean a recovery rate

of 80.8%. The district court was right to reject this attempt at revisionist history. 

Given the parties’ stipulations, this is the correct difference and appears to be the

most Simmons could have recovered. Yet, for some unknown reason, Simmons

consistently demanded an amount almost $100,000 more than that. Consider: In its

pre-suit demand letter, Simmons sought $3,584,041.90; the complaint stated the suit

was for $3,584,041.90, and asked for an additional 12% of that amount as statutory

damages; pretrial disclosures and reportsreflect this higher number; and the jury was

told this was the stipulated amount Simmons was seeking. When the district court

mid-trial expressed concern about the origin of this number, Simmons doubled down

and reaffirmed that “at the end of the day . . . this lawsuit is for 3.584 million.” The

closest Simmons came to reducing its demand was in closing arguments when

counsel acknowledged some expenses did relate to so-called betterments that were

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not technically covered by the policies, but even then Simmons sought to justify the

costs. It seems clear to us that all parties operated under the assumption Simmons

was seeking $3,584,041.90, and Simmons never made a full and timely attempt to

make a “new and lesser demand.” Id. at 358. Because Simmons failed to recover at

least 80% of that amount, it was not entitled to statutory damages or attorney fees.

III. CONCLUSION

We affirm the district court’s decision to deny the insurers’ motion to dismiss,

because the limitation provision is procedural and is void under Arkansas law. We

reverse and vacate the award of prejudgment interest, because the jury had to exercise

discretion in determining Simmons’s loss. We affirm the denial of Simmons’s

request for statutory damages and attorney fees, because Simmons did not recover the

statutory threshold of at least 80% of the amount it demanded in the suit.

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