* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata and coll ateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### APR 17 1998 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY; STATE FARM FIRE AND CASUALTY COMPANY, Plaintiffs-Appellants,

v. BILL McCALISTER, DEBBIE McCALISTER, Defendants-Appellees. No. 97-5002 (N. District of Oklahoma) (D.C. No. CV-96-892-C)

ORDER AND JUDGMENT *

Before SEYMOUR , Chief Judge, LOGAN and MURPHY , Circuit Judges.

Plaintiffs State Farm Mutual Automobile Insurance C ompany and State Farm Fire and Casualty Company (hereinafter collect ively “State Farm”) appeal the district court’s grant of summary judgment in f avor of Bill and Debbie McCalister. State Farm sued the McCalisters in Sep tember 1996, seeking a-2-

declaration that a series of settlements entered in to by State Farm and the McCalisters constituted a full and final settlementof all of the McCalisters’ claims for uninsured/underinsured motorist coverage . The district court rejected State Farm’s contentions and concluded that the settlement agreements clearly and unambiguously released State Farm from liability on ly under the specific policies referenced in the settlement agreements. On appeal , State Farm asserts that the district court erred when it refused to consider extrinsic evidence in interpreting the settlement agreements, even though the agreemen ts are unambiguous on their faces. We exercise jurisdiction pursuant to 28 U.S .C. § 1291 and affirm

. This court reviews a decision granting summary judg ment de novo , under the same legal standard applicable in the district courts. See Miles v. Denver Pub. Sch. , 944 F.2d 773, 775 (10th Cir. 1991). Summary judg ment is appropriate “if the pleadings, depositions, answers to interrogator ies, and admissions on file, together with the affidavits, if any, show that the re is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c); see also Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 247-48 (1986). Because the parties are familiar with the facts sur rounding this case and the controlling issue on appeal is legal, this court se es no need to recite the facts here. Relying on a 1973 decision of this court anda 1980 decision of the-3-

Oklahoma Supreme Court, State Farm contends that th e district court was obligated to review extrinsic evidence to determine the meaning of the settlement agreements, even though those agreements are unambi guous on their faces. See First Nat’l Bank v. Rozelle , 493 F.2d 1196, 1200 (10th Cir. 1973); Amoco Prod. Co. v. Lindley , 609 P.2d 733, 741-42 (Okla. 1980). We agree thatthe referenced cases appear to indicate that resort to extrinsic e vidence is appropriate even when the contract in question is unambiguous. The probl em with State Farm’s reliance

on Rozelle and Amoco , however, is that the Oklahoma Supreme Court’s mos t recent pronouncements on this issue clearly indicat e that courts must not utilize extrinsic evidence to interpret a contract when that contract is clear and unambiguous on its face. For instance, the Oklahom a Supreme Court recently held as follows:

Whether a contract is ambiguous so as to require extrinsic evidence to clarify the doubt is a question of law for the courts. If language of a contract is clear and free of ambigui ty, the court is to interpret it as a matter of law.

. . . . A contract must be considered as a whole so as to g ive effect to all its provisions without narrowly concentratin g upon some clause or language taken out of context. The language in a contract is given its plain and ordinary meaning unless some technica l term is used in a manner intended to convey a specific technical co ncept . The parol evidence rule teaches that unless fraud or mistake is involved, precontract negotiations and oral discussions are merg ed into, and superseded by, the terms of an executed writing. T he practical construction of an agreement (to be derived from th e acts and conduct of the parties) is an available tool onlyin case ambiguity appears to be present. Where, as here, a contract is complete in itself-4-

and, when viewed as a totality, is unambiguous, its language is the only legitimate evidence of what the parties intended. That intention cannot be determined from the surrounding circumsta nces, but must be gathered from a four-corners’ examination of the instrument

. Lewis v. Sac & Fox Tribe of Okla. Hous. Auth. , 896 P.2d 503, 514 (Okla. 1994) (footnotes omitted); see also Founders Bank & Trust Co. v. Upsher , 830 P.2d 1355, 1361-62 (Okla. 1992) (“Intent is to be gather ed from the entire instrument

. Where the language is clear and explicit, there is no need to resort to extrinsic evidence to ascertain its meaning. Where a contrac t is complete in itself but, as viewed in its entirety is unambiguous , its language is the only legitimate evidence of what the parties intended .” (footnotes omitted)). In a diversity case, this court is required to appl y the most recent statement of state law by the state’s highest court. See Vitkus v. Beatrice Co. , 127 F.3d 936, 941-42 (10th Cir. 1997); Black v. Baker Oil Tools, Inc. , 107 F.3d 1457, 1464 (10th Cir. 1997). Accordingly, our disposition of the issue raised by State Farm is controlled by Sac & Fox Tribe and Founders Bank, rather than the much older cases cited in State Farm’s brief. Sac & Fox Tribe and Founders Bank indicate that the district court did not err when it refused to consider extrinsic evidence to vary the terms of the settlement agreements at issu e. Furthermore, because the settlement agreements were clear and unambiguous an d resort to extrinsic evidence was not necessary, the district court did not err in denying State Farm an evidentiary hearing on the McCalisters’ summary jud gment motion. Sac & Fox-5-

Tribe , 896 P.2d at 514 (“If language of a contract is cl ear and free of ambiguity, the court is to interpret it as a matter of law.”). Having resolved that the district court did not errin refusing to consider the extrinsic evidence advanced by State Farm, we AFFIRM for substantially those reasons expressed by the district court in its thor ough Order dated December 3,
1996. ENTERED FOR THE COURT:

Michael R. Murphy Circuit Judge