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. This order and judgment is not binding

precedent, except under the doctrines of law of the case, res judicata, and

collateral estoppel. It may be cited, however, for its persuasive value consistent

with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.

F I LED

United States Court of Appeals

Tenth Circuit

December 5, 2006

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

CLARA A. SIMS, an individual,

Plaintiff-Appellee,

v.

GREAT AMERICAN LIFE

INSURANCE CO., sued as: The Great

American Life Insurance Company, 

Defendant-Appellant.

No. 05-5109

(D.C. No. 02-CV-583-K)

(N.D. Okla.)

ORDER AND JUDGMENT

*

Before TYMKOVICH, McKAY, and BALDOCK, Circuit Judges.

Clara Sims brought a petition seeking damages for breach of contract and

bad faith against Great American Life Insurance Company (Great American),

after Great American refused to pay life insurance proceeds following the death

of Ms. Sims’ husband. A jury awarded Ms. Sims $300,000 in actual damages on
In her district court reply brief on the fee issue, Ms. Sims adjusted the 1

overall amount sought to $187,439.50.

-2-

her breach of contract claim, and $600,000 in actual damages and $500,000 in

punitive damages on her bad faith claim. Great American appealed the judgment

in favor of Ms. Sims entered on the jury verdict. 

In the meantime, Ms. Sims moved in the district court for attorney’s fees

pursuant to Okla. Stat. tit. 36, § 3629(B). Section 3629(B) provides that “[u]pon

a judgment rendered to either party” on a claim for insurance benefits, “costs and

attorney fees shall be allowable to the prevailing party.” Ms. Sims contended that

she was entitled to an award of attorney’s fees on both her breach of contract and

bad faith claims, and sought a total award of $189,362 in fees. Great American 1

objected to her request for an award of that portion of the fees she had expended

to obtain a verdict on her bad faith claim, contending that either the bad faith

recovery was a double recovery of her insured loss, or that the “core element” of

her damages, giving rise to the award under § 3629(B), was not present in the tort

claim. See Taylor v. State Farm Fire & Cas. Co., 981 P.2d 1253, 1256

(Okla. 1999) (“Recovery authorized by § 3629(B) embraces both contract- and

tort-related theories of liability so long as the ‘core element’ of the damages

sought and awarded is composed of the insured loss.”) (emphasis in original).

A magistrate judge assigned to the issue of attorney’s fees prepared a report

and recommendation proposing that Ms. Sims be awarded $171,456 as a
-3-

reasonable attorney’s fee under § 3629(B). This figure included fees attributable

to the bad faith claim. The magistrate judge, however, disallowed certain fees for

other reasons, and reduced the amount requested by Ms. Sims. In its objections to

this report, Great American again contended that Ms. Sims was not entitled to

fees for prevailing on the bad faith claim. The district court rejected Great

American’s argument concerning fees for the tort claim, sustained in part

Ms. Sims’ objections to the magistrate’s recommendations, and entered a fee

award in the amount of $176,378.60. Great American appealed. 

On November 7, 2006, acting on Great American’s merits appeal, this court

entered an opinion reversing the underlying judgment in part. Sims v. Great Am.

Life Ins. Co., ___ F.3d ___, No. 04-5135, 2006 WL 3200866 (10th Cir. Nov. 7,

2006). While the panel upheld the award of damages for breach of contract, see

id. at *21, it reversed the district court’s denial of judgment as a matter of law on

the bad faith claim, reasoning that insufficient evidence of bad faith had been

presented to sustain the jury’s verdict on that claim. Id. at *18-*20. The panel

also reversed the punitive damages award, holding that it could not stand absent a

finding of bad faith, and that in any event, Great American’s conduct did not

demonstrate the kind of fraud or evil intent required to sustain a punitive damages

award. Id. at *20. Ms. Sims is therefore no longer the “prevailing party” as to

the bad faith claim.
-4-

There remains the issue of how to adjust the attorney’s fee award for

Ms. Sims’ appellate loss on the bad faith claim. Great American refers us to an

itemization it presented to the district court, in which it concluded that the

attorney’s fees related to the bad faith claim amounted to $19,749. It requests

that we simply modify the award by subtracting that amount. We conclude,

however, that we should instead remand for further district court scrutiny of this

issue.

Oklahoma law permits only those attorney’s fees that reasonably

contributed to the recovery of Ms. Sims’ insured loss. See Taylor, 981 P.2d at

1256 (stating recovery of attorney’s fees under § 3629(B) “embraces both

contract- and tort-related theories of liability so long as the ‘core element’ of the

damages [recovered] is composed of the insured loss.”); see also Badillo v. Mid

Century Ins. Co., 121 P.3d 1080, 1107 (Okla. 2005) (discussing “insured loss”

and “core element” concepts). Although Ms. Sims cannot recover attorney’s fees

for work related solely to her failed bad faith claim, the bad faith and contract

claims overlap to an extent. In order to prove her bad faith claim, Ms. Sims had

to establish that the insurance contract was breached. See Christian v. Am. Home

Assurance Co., 577 P.2d 899, 905 (Okla. 1977). We therefore conclude that the

district court need disallow only those attorney’s fees related specifically to the

issue of whether Great American acted in bad faith in failing to pay her claim, as

the resolution of that issue did not contribute to recovery of the insured loss. 
-5-

We therefore VACATE the district court’s award of attorney’s fees in favor

of Ms. Sims, and REMAND for recalculation of the fees to be awarded, in light of

our opinion in Sims and the foregoing discussion.

Entered for the Court

Timothy M. Tymkovich

Circuit Judge