F I L E D

United States Court of Appeals

Tenth Circuit

JAN 9 2001

PATRICK FISHER

Clerk

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

_________________________

ROBERT E. STAUTH, HARRY L.

WINN, KEVIN J. TWOMEY,

DONALD N. EYLER, R. RANDOLPH

DEVENING, JAMES E. STUARD and

FLEMING COMPANIES, INC.,

Plaintiffs-Appellants,

v.

NATIONAL UNION FIRE

INSURANCE COMPANY OF

PITTSBURGH and FEDERAL 

INSURANCE COMPANY,

Defendants-Appellees.

No. 98-6405

_________________________

Appeal from the United States District Court

for the Western District of Oklahoma

(D.C. No. CIV-96-1825-M)

_________________________

Submitted on the briefs:

John N. Hermes and Myrna S. Latham of McAfee & Taft, Oklahoma City,

Oklahoma, for Plaintiff-Appellants.

Gerald P. Green, Frances E. Patton, Haven Tobias, and Pierce C.

Hendrickson of Baysinger & Green, Oklahoma City, Oklahoma for DefendantAppellee Federal Insurance Company; James M. Peters of Monnet, Hayes, Bullis,

Thompson & Edwards, Oklahoma City, Oklahoma for Defendant-Appellee

National Union Fire Insurance Company of Pittsburgh, Pennsylvania.
* The Honorable Milton I. Shadur, Senior United States District Judge

for the Northern District of Illinois, sitting by designation.

1 For simplicity we will also refer to appellants collectively as

“Fleming,” treated as a singular noun. That dual usage should not create any

confusion, because the context will clearly show whether the name is being used

to denote the corporation alone or all of the appellants. 

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Before BALDOCK and McWILLIAMS, Circuit Judges, and SHADUR, District

Judge.*

SHADUR, District Judge.

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). Accordingly the case

has been ordered submitted without oral argument.

This appeal poses the question of the recoverability of attorneys’ fees and

expenses incurred by Fleming Companies, Inc. (“Fleming”) and a number of its

officers and directors--Robert Stauth, Harry Winn, Kevin Twomey, Donald Eyler,

Randolph Devening and James Stuard--in connection with their institution and

successful prosecution of a declaratory judgment action to resolve the question of

which of two sets of director and officer executive liability policies covered

them.1

 Fleming’s fee request was denied by the district court on the premise that

36 Okla. Stat. §3629(B) (“Section 3629(B)”) requires the submission of a “proof

of loss” in support of such a request and no document fitting that term in the

usual sense had been tendered by Fleming. Fleming has appealed the district
2 Because Federal’s policies contain the substantive provisions while

National Union’s is a following form, we will use the singular term “1996 Policy”

when we hereafter discuss the provisions of Federal’s later policy (which, it

should be said, are no different substantively from its 1993 Policy).

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court’s denial of attorneys’ fees.

We conclude that Section 3629(B) applies to declaratory judgment actions

such as that brought by Fleming, and we also hold that Fleming complied fully

with its contractual obligations under the insurance policies involved so as to

satisfy the statutory requirements. We further hold that under the circumstances

an award of attorneys’ fees is mandatory under Section 3629(B). We therefore

REVERSE and REMAND this action to the district court, directing it to award

Fleming its attorneys’ fees and expenses associated with the declaratory judgment

action.

Background

In 1993 Fleming purchased two directors and officers (“D and O”) liability

policies (the “1993 Policies”)--one from Federal Insurance Company (“Federal”)

providing basic coverage and the other from National Union Fire Insurance

Company (“National Union”) providing excess coverage (we refer to Federal and

National collectively as “Insurers”). In 1996 Fleming renewed these two policies

(“the 1996 Policies”2).

Between March and June 1996, Fleming shareholders and noteholders filed

ten different class actions against Fleming, all alleging its violation of the federal
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securities laws by having failed to disclose the existence of litigation that began

in 1993 and settled in 1996. Those multiple actions were eventually consolidated

into two actions (“the Class Actions”), one by Fleming’s noteholders and the

other by its shareholders. Fleming notified Insurers of the existence of the Class

Actions and provided them with copies of the complaints.

As we discuss at greater length later, such submission of the complaints

was all the notice that the 1996 Policies required of Fleming for it to become

entitled to policy coverage and to bring an appropriate action against Insurers if

need be. Indeed, by contrast with other types of coverage provided by the

multiperil 1996 Policy, the relevant provision for D and O coverage did not

require Fleming to submit a “proof of loss.” 

In October 1996 Fleming filed a declaratory judgment action against

Insurers, seeking a determination that they had a duty to indemnify Fleming in the

Class Actions under the 1996 Policies. Although Insurers agreed to cover

Fleming, they contended that it was covered under the 1993 Policies and not the

1996 Policies. That made a real world difference: Because part of the coverage

afforded by the 1993 Policies had already been exhausted, more coverage was

available to Fleming under the 1996 Policies. Fleming also raised a separate

issue in the declaratory judgment action as to what rule--“larger settlement” or

“relative exposure”--controlled the allocation of coverage between insureds and
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non-insureds.

 On November 12, 1997 the district court ruled that the 1996 Policies

rather than the 1993 Policies provided coverage for the Class Actions. On the

other disputed issue, the district court ruled that the “larger settlement” rule of

allocation controlled. Insurers then appealed the district court’s judgment.

On appeal a panel of this Court affirmed the holding that the 1996 Policies

provided coverage but vacated the trial court’s ruling on allocation as premature 

(Stauth v. National Union Fire Ins. Co., 185 F.3d 875 (10th Cir. 1999) (Table),

available at 1999 WL 420401, at *1). For that reason the panel directed the

district court to hold the case in abeyance until the underlying lawsuits were

resolved (id. at *15). Because that has not yet occurred, no liability to the Class

Action plaintiffs has been suffered to this point, although Fleming has of course

incurred the expense of this litigation while Insurers have been providing the

defense in the underlying Class Actions.

Meanwhile, some two weeks after the district court’s November 12, 1997

ruling on the coverage and allocation issues, Fleming filed a motion for attorneys’

fees pursuant to Section 3629(B). As stated earlier, this appeal has been taken

from the district court’s denial of that motion.
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 Section 3629(B) and the Standard of Review

Section 3629(B) provides in relevant part:

It shall be the duty of the insurer, receiving a proof of loss, to submit

a written offer of settlement or rejection of the claim to the insured

party within ninety (90) days of receipt of that proof of loss. Upon a

judgment rendered to either party, costs and attorney fees shall be

allowable to the prevailing party. For purposes of this section, the

prevailing party is the insurer in those cases where the judgment does

not exceed the written offer of settlement. In all other judgments the

insured party shall be the prevailing party.

Before us the parties have raised several issues as to that statute’s interpretation

and applicability. We address those issues in this order:

1. whether Section 3629(B) applies to Fleming’s declaratory

judgment actions;

2. whether the absence of a conventional formal proof of loss is fatal

to Fleming’s request for attorneys’ fees;

3. whether Fleming was a “prevailing party” under Section 3629(B);

and

4. whether an award of attorneys’ fees to the prevailing party is

mandatory under that statute.

Despite the general rule that the standard of review for a denial of

attorneys’ fees is an abuse of discretion standard (see, e.g., Mann v. Reynolds, 46

F.3d 1055, 1062 (10th Cir. 1995) and cases cited there), in this instance the

district court did not exercise any discretion because it based its decision on its
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reading of Section 3629(B) as requiring a proof of loss as a matter of law. 

Because the parties’ dispute is not as to the underlying facts but rather as to the

proper application of Section 3629(B), we conduct our review of the district

court’s statutory interpretation under a de novo standard (Ward v. Allstate Ins.

Co., 45 F.3d 353, 354 (10th Cir. 1994)). 

Application of Section 3629(B) to Declaratory Judgment Actions

As an initial matter we must determine whether Section 3629(B) operates at

all in this type of action: a declaratory judgment proceeding concerned primarily

with the preliminary question of which D and O policies (1993 or 1996) applied

to Fleming’s claim for coverage of the Class Action suits. Fifteen years ago we

gave an affirmative answer to the question of Section 3629(B)’s applicability to

declaratory judgment actions seeking coverage under liability policies. In An-Son

Corp. v. Holland-America Ins. Co., 767 F.2d 700 (10th Cir. 1985) an insured

party had requested that its liability insurer defend it in a personal injury action

(id. at 701-02). After the insurer rejected the claim and the insured provided its

own representation, it brought suit under Section 3629(B) to recover its

expenditures, alleging that the insurer had breached its duty to defend (id. at

702).

In concluding that the statute did apply to such actions, An-Son, 767 F.2d

at 703 first observed that the Oklahoma courts interpreted the statute broadly,
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citing Shinault v. Mid-Century Ins. Co., 654 P.2d 618, 619 (Okla. 1982). Next

the opinion emphasized that the statute declared an insured to be the prevailing

party in “all” judgments other than in a specific and limited category of cases

(id.). Finally, after noting a split of authority on the question whether an insured

can recover attorneys’ fees incurred in a declaratory judgment or indemnity

action, Anson, id. at 704 expressed the belief that the Oklahoma Supreme Court

would find persuasive this argument set out in 7C John Appleman, Insurance Law

and Practice §4691, at 283 (1979):

After all, the insurer had contracted to defend the insured, and it

failed to do so. It guessed wrong as to its duty, and should be

compelled to bear the consequences thereof. If the rule laid down by

these courts [which have denied recovery] should be followed by

other authorities, it would actually amount to permitting the insurer

to do by indirection that which it could not do directly. That is, the

insured has a contract right to have actions against him defended by

the insurer, at its expense. If the insurer can force him into a

declaratory judgment proceeding and, even though it loses such

action, compel him to bear the expense of such litigation, the insured

is actually no better off financially then [sic] if he had never had the

contract right mentioned above.

We adhere to the An-Son precedent and its line of analysis to hold that

Section 3629(B) applies here. For its part, Federal attempts to escape that result

by urging that because this case involves indemnity rather than the defense of

litigation, the An-Son rationale does not support the award of attorneys’ fees to

Fleming. But Federal’s attempt thus to distinguish An-Son fails for two reasons.

First, Federal ignores An-Son’s explicit rejection of the contention that
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Section 3629(B) applies “only to so-called ‘first party’ actions where the insured

has sustained a loss and the insurer rejects a claim made under the policy, but not

to actions seeking indemnity or declaratory judgment, as here” (767 F.2d at 703). 

In thus distinguishing actions involving indemnity from those involving firstparty insurance (while still holding Section 3629(B) applicable to both types of

action), An-Son clearly used the word “indemnity” in its broad sense of insurance

providing third-party coverage, including both the duty to defend and the duty to

indemnify.

Second, nothing in An-Son limits its analysis to the duty to defend. We can

discern no principled reason why Section 3629(B) should be operative where the

duty to defend is at issue, but not where the issue is the duty to indemnify. Surely

the Appleman argument approved in An-Son applies with equal force to both

situations, for it is founded on compelling an insurer to bear the consequences of

its improper denial of the insured’s right to coverage. Any such improper denial

forces the insured to litigate the coverage issue and to incur the corresponding

expenses of litigation, or else to forgo its right to coverage. As Appleman

explained, requiring the insured to bear the litigation expenses defeats the purpose

for which the insured purchased the insurance policy--to provide financial

protection. We therefore reject Federal’s attempt to distinguish An-Son.

Federal has also advanced a second argument for avoiding Section 3629(B): 
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It says that it did provide coverage to Fleming (while also advancing the costs of

defending the underlying litigation), so that Fleming was never denied any

benefits and has not sustained any injury. But that ignores the critical fact that

Federal turned down Fleming’s claim to coverage under the 1996 Policy. Because

Fleming had more coverage available to it under that policy than remained

available under the 1993 Policy, Federal’s turndown forced Fleming to institute a

declaratory judgment action to determine its rights under the 1996 Policy. With

that added contention on Federal’s part having proved empty as well, we adhere

to our determination that Section 3629(B) applies to this case.

Terms of the 1996 Policy

We now turn to the district court’s order denying attorneys’ fees and costs

to Fleming. In reaching that result the district court held that Section 3629(B)

requires submission of a proof of loss and noted that neither party disputed the

absence of such a submission. It is of course odd to speak of “proof of loss” in

the ordinary formal sense in this kind of action, as contrasted with a first-party

action of the type referred to earlier (where the insured has sustained a loss and

seeks reimbursement from its insurer). After all, where coverage is at stake and

the insured is forced to bring suit to establish its right to such coverage, the loss

inheres in having to incur the expense of the lawsuit itself (most importantly in

incurring attorneys’ fees), so that the proof that such loss is being incurred is the
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very bringing of the lawsuit (of which, needless to say, the insurer is given notice

at its very outset). It is scarcely surprising, then, that (as will be seen) the parties

agreed under the relevant terms of the policies at issue here that written notice of

the underlying D and O claim would be all that was required of Fleming to trigger

the insurers’ obligations.

Before we embark on that discussion, though, it is worth noting that there

are no appellate precedents that deal with the question whether in this type of

situation (the declaratory judgment action seeking coverage, where we have just

explained that a “proof of loss” in the usual sense would be an anomaly) the

submission of a separate proof of loss is required by Section 3629(B). Only one

Oklahoma case-- Shadoan v. Liberty Mut. Fire Ins. Co., 894 P.2d 1140, 1144 n. 9

(Okla. Ct. App. 1995)--speaks of the Section 3629(B) requirements, and its

footnote listing proof of loss as one of three elements for obtaining recovery was

written in connection with a first-party action. As for the only prior case from

this Court--an unpublished disposition in Western Farmers Elec. Coop. v. St. Paul

Ins. Co., 134 F.3d 384 (10th Cir. 1998) (Table), available at 1998 WL 43168, at

*2-*3 (10th Cir.)--that order adverted briefly to a proof-of-loss requirement, but

that reference was not made in the context of a declaratory judgment action such

as that involved here.

But suppose that it were to be assumed that a “proof of loss”--one of the
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type appropriate to the kind of claim at issue here--were indeed required to trigger

the operation of Section 3629(B) as between Fleming and Insurers. Our

examination of the terms of the 1996 Policy compels the conclusion that

Fleming’s notification to Insurers of the existence of the Class Actions, followed

by the institution of the declaratory judgment action when coverage under the

1996 Policies was denied, would be all that was necessary to satisfy a “proof of

loss” requirement.

We begin with Section 8 of the “General Terms and Conditions” section of

the 1996 Policy, which in relevant part states simply, “No action shall lie against

the Company unless, as a condition precedent thereto, there shall have been full

compliance with all the terms of this policy.” As stated earlier, the 1996 Policy is

one covering a host of perils, one of which--the “Executive Liability and

Indemnification” (D and O) provision--is implicated here. And its statement of

what Fleming had to do to obtain D and O coverage reads simply in its Section

10, the Reporting and Notice provision as to that coverage:

The Insureds shall, as a condition precedent to exercising their rights

under this coverage section, give to the company written notice as

soon as practicable of any Claim made against any of them for a

Wrongful Act.

As is entirely understandable in light of the nature of the coverage involved, not a

word is said in that Reporting and Notice provision about a “proof of loss” as a

precondition to coverage. All that was required was written notice, which
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Fleming provided by advising Insurers of the Class Actions and providing them

with copies of the underlying complaints.

By sharp contrast, the parties themselves have confirmed that they knew

full well how to require Fleming as a party insured to provide a “proof of loss” in

the conventional sense when that was an essential condition of coverage. As to

other types of perils covered by the 1996 Policy--types where a third party had

caused a quantified loss to the Insured, which then asserted a first-party claim to

be made whole by the Insurer--the 1996 Policy expressly required a “proof of

loss” as conventionally understood. Thus under Section 22 of the “Crime

Insurance” provision the 1996 Policy required among other things:

Within four months after such discovery [of loss or an occurrence

that may become a loss] the Insured shall furnish to the Company

affirmative proof of loss with full particulars.

Having thus expressly demanded a proof of loss as a precondition to certain

classes of coverage while conspicuously omitting any such requirement for the D

and O coverage whose denial spawned this litigation, Federal (and hence National

Union under its following form of policy) cannot in good conscience urge such a

proof of loss as a requirement in the formal sense--a sense that does not fit

Fleming’s claim here. Instead we hold that if Section 3629(B) does require a

“proof of loss” as a price for bringing into play the other portions of that statute

awarding attorneys’ fees and costs to the “prevailing party” and then defining the
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latter term, Federal’s own 1996 Policy confirms that the assumed “proof of loss”

requirement was satisfied by Fleming notifying the Insurers about the Class

Actions, followed by its compelled institution of the declaratory judgment action.

Fleming as a “Prevailing Party” under Section 3629(B)

That then leads to the question whether Fleming was a “prevailing party”

under Section 3629(B), which requires such status as the basis for an award of

attorneys’ fees and costs (see Shinault, 654 P.2d at 619). Shinault, id. echoes the

statutory definition under which the insured is the prevailing party unless the

insurer has made a settlement offer and there is a subsequent judgment for a

lesser amount--an exception that is of course inapplicable where the insured is hit

with a judgment after the insurer has rejected the claim. This litigation is

obviously outside of the narrow confines of that exception: Fleming has itself

obtained a judgment confirming its coverage under the 1996 Policies after

Insurers had rejected Fleming’s claim to coverage under those policies. Under the

statute that made Fleming the “prevailing party.”

Although Insurers attempt to counter that the “judgment” spoken of in

Section 3269(B) has to be an actual adjudicated recovery, in a sense that brings

the analysis full circle to the already-decided proposition that Section 3629(B)

applies to declaratory judgment actions. Any notion that an actual adjudicated

recovery was required by the statute would be inconsistent with our decision as to
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declaratory judgment actions, originally reached in An-Son and adhered to here. 

Moreover, nothing either in the language of Section 3629(B) or in the Shinault

opinion supports Insurers’ claim that a dollar recovery is essential for the

attainment of prevailing party status in the current context.

Insurers also contend that the pending allocation issue must be resolved

before Fleming can be deemed a prevailing party. That contention lacks merit,

because no resolution of the issue would negate the vital victory as to coverage

under the 1996 Policies that Fleming won in the declaratory judgment action--at

worst the later determination could only reduce the amount of coverage available. 

In sum, we conclude that Fleming’s upheld judgment in the declaratory judgment

actions makes it the prevailing party entitled to recover attorneys’ fees and costs

under Section 3629(B).

Mandatory Nature of Fleming’s Award

We turn finally to the question whether an award of attorneys’ fees and

costs is mandatory under Section 3629(B) where a prevailing party has met the

statutory requirements. Because the district court had ruled against Fleming on

the statutory coverage issue, it had no need to consider that added question. But

the issue is one that the district court will necessarily face on remand, it poses a

straight question of law capable of resolution here, and it has been posed to us by

the parties. No useful purpose would be served by our eschewing the issue and
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creating the potential for a second appeal, so we resolve it now.

Section 3629(B) says, “Upon a judgment rendered to either party, costs and

attorney fees shall be allowable to the prevailing party.” What is meant by the

phrase “shall be allowable”?

Nearly a decade ago our Court, emphasizing the word “allowable,” held

that an award of attorneys’ fees under Section 3629(B) is entirely discretionary 

(Adair State Bank v. American Cas. Co., 949 F.2d 1067, 1077-78 (10th Cir.

1991)). But post-Adair two separate intermediate Oklahoma Courts of Appeals

have read Section 3629(B) differently--each case holds that an award of

attorneys’ fees is mandatory upon compliance with the statute (Shadoan, 894

P.2d at 1143-44 and Williams v. Old Am. Ins. Co., 907 P.2d 1105, 1107 (Okla Ct.

App. 1995)). Both of those decisions view “shall” as the operative word in the

phrase and, pointing to Oklahoma Supreme Court authority holding “shall” to be

“a word of command or mandate, with a compulsory and peremptory meaning,”

reason that the Oklahoma legislature would have used the word “may” if it had

intended a fee award to be discretionary.

As a federal court sitting in diversity of citizenship litigation, our duty

under Erie v. Tompkins principles is of course to conform to Oklahoma’s

substantive law. And in the absence of definitive direction from the Oklahoma

Supreme Court, that calls for us to predict the course that body would take if
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confronted with the issue (Fransen v. Conoco, Inc., 64 F.3d 1481, 1492 n.10 (10th

Cir. 1995)).

In this instance we address the special variant under which principles of

stare decisis call for any panel of this Court to follow an earlier panel’s

interpretation of state law, absent a supervening declaration to the contrary by

that state’s courts or an intervening change in the state law (Koch v. Koch Indus.,

Inc., 203 F.3d 1202, 1231 (10th Cir. 2000)). Here such a supervening declaration

has been made by two separate intermediate Courts of Appeals in Oklahoma, each

of which has given thoughtful consideration to our Adair decision but has come

out the other way, ruling that Section 3629(B) makes an award of attorneys’ fees

mandatory. Although those opinions do not come within the category that is

accorded precedential value under Oklahoma law, instead being “considered to

have persuasive effect” (Okla. Stat. tit. 12, ch. 15, app., Okla. S.Ct. Rule

1.200(c)(2)), so that we are not absolutely bound by those decisions in

determining Oklahoma law (Fransen, 64 F.3d at 1492 n.10), such decisions by a

state’s intermediate appellate courts provide evidence of how the state’s highest

court would rule on the issue, and we can consider them as such (id.). Section

3629(B)’s “shall be allowable” language certainly presents an arguable question

of interpretation of a state statute, and not one but two intermediate Oklahoma

Courts of Appeals have considered our Court’s reading and have found it
3 This opinion has been submitted to the active judges of the Tenth

Circuit and the Court has unanimously agreed en banc to the overruling of that

part of Adair, as stated here.

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unpersuasive as to what Oklahoma law means.

On balance, we are inclined to follow the lead of those courts as to what

their Supreme Court is more likely to do if confronted with the same issue. We

therefore overrule that part of Adair that is inconsistent with this holding.3 In

conformity with Shadoan and Williams, we hold that an award to Fleming of

attorneys’ fees and costs under Section 3629(B) is mandatory.

Conclusion

We REVERSE the order of the district court denying attorneys’ fees and

costs to Fleming and REMAND the case to the district court, directing it to award

to Fleming the attorneys’ fees and costs that it has incurred in the declaratory

judgment action and its aftermath (including this appeal).