* This order and judgment is not binding precedent, except under the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

October 6, 2005

Clerk of Court

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

LARRY CLIPPERTON,

Plaintiff-Appellant,

 v.

ALLSTATE INSURANCE

COMPANY,

Defendant-Appellee.

No. 04-6113

(D.C. No. CV-02-1750-T)

(W.D. Okla.)

ORDER AND JUDGMENT *

Before HENRY , ANDERSON , and TYMKOVICH , Circuit Judges.

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(G). The case is therefore

ordered submitted without oral argument. 
-2-

Larry Clipperton appeals from the district court’s order granting summary

judgment in favor of the issuer of his homeowner’s insurance policy, Allstate

Insurance Company. We have jurisdiction under 28 U.S.C. § 1291, and we

affirm. 

On June 4, 2000, Mr. Clipperton’s home was damaged by a natural gas

explosion. An adjuster hired by Allstate inspected Mr. Clipperton’s home and

provided an estimate of how much it would cost to repair the home’s sheetrock

damage. The adjuster also recommended that Allstate retain an engineer to

inspect the home for structural damage. Between August 2000 and December

2000, the parties obtained divergent structural-damage estimates. In May 2001,

Allstate issued a check to Mr. Clipperton for the undisputed amount of sheetrock

damage. More than sixteen months elapsed, and in November 2002, Mr.

Clipperton filed this lawsuit in Oklahoma state court for breach of contract. 

Allstate removed the case to federal court based on diversity of citizenship and

filed a motion for summary judgment. 

The district court held Mr. Clipperton’s case time-barred and granted

Allstate’s summary judgment motion, ruling (1) Allstate’s failure to raise in its

answer the insurance policy’s one-year limitation period did not result in a waiver

of that defense because Mr. Clipperton was unable to demonstrate that the belated

assertion unfairly surprised or prejudiced him; (2) the one-year limitation period
-3-

began to run on the date that Mr. Clipperton’s home was damaged; and (3) the

coverage invoked by the damage to Mr. Clipperton’s home was a property

insurance loss, and as such, the one-year limitation period did not offend Okla.

Stat. Ann. tit. 36, § 3617. On appeal, Mr. Clipperton argues that the district court

erred by finding his case time-barred and challenges each of the district court’s

rulings. 

Diversity actions, such as this, are governed by the substantive law of the

forum state, but we follow federal law “in determining the propriety of the district

court’s grant of summary judgment.” Eck v. Parke, Davis & Co. , 256 F.3d 1013,

1016 (10th Cir. 2001). Accordingly, we review de novo the district court’s grant

of summary judgment, applying the same standard as that court under Fed. R. Civ.

P. 56(c). See Simms v. Okla. ex rel. Dep’t of Mental Health & Substance Abuse

Servs. , 165 F.3d 1321, 1326 (10th Cir. 1999).

Mr. Clipperton first asserts that his breach-of-contract claim is not timebarred because he was prejudiced by Allstate’s failure to either deny his claim or

raise in its answer the one-year limitation period. But we cannot ascertain

whether Mr. Clipperton argued in the district court that he was prejudiced by

Allstate’s failure to deny his claim. 10th Cir. R. 28.2(C)(2) (“For each issue

raised on appeal, all briefs must cite the precise reference in the record where the

issue was raised and ruled on.”). We therefore decline to consider this argument. 
1 Mr. Clipperton’s counsel also disregarded Tenth Circuit Rules 10.3(D)(2)

and 30.1(A)(1), and is reminded that these rules “are not empty gestures,”

Travelers Indem. Co. v. Accurate Autobody, Inc. , 340 F.3d 1118, 1121 (10th Cir.

2003).

-4-

State Ins. Fund v. Ace Transp. Inc. , 195 F.3d 561, 564 n.3 (10th Cir. 1999); 10th

Cir. R. 10.3(B); see also Walker v. Mather (In re Walker) , 959 F.2d 894, 896

(10th Cir. 1992) (observing general rule that appellate court will not consider an

issue not passed upon by district court). 1 And, although Mr. Clipperton identifies

as an issue on appeal that he was prejudiced by Allstate’s failure to assert in its

answer the one-year limitation period, he waived this issue by failing to support it

in his appellate brief. Abercrombie v. City of Catoosa , 896 F.2d 1228, 1231 (10th

Cir. 1990); see generally Aplt. Br. at 10-14 (only addressing prejudice resulting

from Allstate’s failure to deny claim). 

Mr. Clipperton next argues that the limitation period does not begin to run

until Allstate denies his claim. In support of this proposition, Mr. Clipperton

cites the same two non-binding cases he relied upon in the district court, Peloso v.

Hartford Fire Insurance Co. , 267 A.2d 498 (N.J. 1970), and Nicholson v.

Nationwide Mutual Fire Insurance Co. , 517 F. Supp. 1046 (N.D. Ga. 1981). We

are not persuaded by Mr. Clipperton’s argument. He has not identified, and we

have not found, any Oklahoma authority to support his minority position. See,

e.g. , Peloso , 267 A.2d at 500 (acknowledging that the majority of courts hold that
-5-

the limitation period should be calculated from the date of the casualty insured

against, not from the date that the insurer denies an insured’s claim). 

Moreover, an unambiguous insurance policy must be enforced according to

its express terms, “giving the policy’s language its plain and ordinary meaning.” 

S. Hospitality, Inc. v. Zurich Am. Ins. Co. , 393 F.3d 1137, 1139 (10th Cir. 2004)

(applying Oklahoma law); see also Dalton v. LeBlanc , 350 F.2d 95, 97 (10th Cir.

1965) (applying Oklahoma law) (explaining that the “insured is chargeable with

knowledge of the terms of his insurance policy” and bound by the terms’ legal

effect). Mr. Clipperton did not allege that the insurance policy is ambiguous. 

The policy expressly states, “Any suit or action must be brought within one year

after the inception of loss or damage,” Aplt. App. at 4, ¶ 12. Giving the

foregoing language its plain and ordinary meaning, we agree with the district

court that the one-year limitation period began to run on the date that

Mr. Clipperton’s home was damaged. We likewise agree with the district court

that Insurance Co. of North America v. Board of Education , 196 F.2d 901 (10th

Cir. 1952), does not compel a different result. The record does not demonstrate

that Allstate, unlike the insurer in Insurance Co. of North America v. Board of

Education , engaged in dilatory tactics or extended the parties’ negotiations

beyond the expiration of the limitation period. Rather, the parties in this case

ended their negotiations in May 2001, one month before the expiration of the
-6-

applicable limitation period; and then, Mr. Clipperton waited until November

2002 to file suit. 

Mr. Clipperton also contends that the one-year limitation period violates

Okla. Stat. Ann. tit. 36, § 3617. Having carefully reviewed the parties’ briefs, the

record, and Oklahoma law, we agree with the district court that the one-year

limitation period does not run afoul of § 3617.

Finally, Mr. Clipperton asserts, without regard to 10th Cir. R. 27.1(C), that

it may be appropriate to certify certain questions to the Oklahoma Supreme Court.

“Whether to certify a question of state law to the state supreme court is within the

discretion of the federal court.” Armijo v. Ex Cam, Inc. , 843 F.2d 406, 407 (10th

Cir. 1988). Here, we decline to exercise that discretion. 

The judgment of the district court is AFFIRMED. 

Entered for the Court

Robert H. Henry

Circuit Judge