UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

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KELLY BRYANT; HOLLIE BRYANT, 

 Plaintiffs - Appellants, 

v. 

SAGAMORE INSURANCE COMPANY, 

 Defendant - Appellee. 

No. 15-7000 

(D.C. No. 6:13-CV-00240-RAW) 

(E.D. Okla.) 

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ORDER AND JUDGMENT*

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Before HARTZ, PHILLIPS, and McHUGH, Circuit Judges. 

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Plaintiffs Kelly Bryant and his daughter Hollie Bryant (the Bryants) appeal the 

district court’s award of costs pursuant to Fed. R. Civ. P. 54(d) in favor of Defendant 

Sagamore Insurance Company (Sagamore). This court previously affirmed the 

district court’s grant of summary judgment in favor of Sagamore. Bryant v. 

Sagamore Ins. Co., 597 F. App’x 968 (10th Cir. 2015). We have jurisdiction under 

28 U.S.C. § 1291 and affirm. 

 *

 After examining the briefs and appellate record, this panel has determined 

unanimously that oral argument would not materially assist in the determination of 

this appeal. See Fed. R. App. P. 34(a)(2); 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. 

FILED 

United States Court of Appeals

Tenth Circuit 

July 15, 2015

Elisabeth A. Shumaker 

Clerk of Court
2 

I. 

Briefly, Kelly Bryant obtained car insurance from Sagamore in a policy 

excluding coverage for his teen daughter, Hollie, who was covered under her 

stepfather’s policy. Hollie drove Kelly’s car and was in an accident involving a third 

party, Cuba Lawrence. Sagamore was notified of the accident by Lawrence’s insurer 

and repeatedly tried to contact Kelly and Hollie to investigate the accident by sending 

them letters, leaving voice mail messages, sending a representative to Kelly’s home 

and finally sending them a letter by Federal Express warning that failure to contact 

Sagamore would be grounds for denying coverage. Bryant, 597 F. App’x at 969-70, 

972-73. The Bryants never responded to Sagamore, and when they failed to appear 

for a scheduled examination, Sagamore declined coverage, citing both the exclusion 

provision and the Bryants’ failure to cooperate. 

Thereafter, Lawrence filed suit against Hollie, who failed to answer, and 

Lawrence obtained a default judgment against Hollie for almost $700,000.00. The 

Bryants did not notify Sagamore of Lawrence’s lawsuit or request Sagamore to 

defend Hollie. The Bryants then filed breach-of-contract and bad-faith claims against 

Sagamore, relying on an Oklahoma case published after Sagamore denied coverage 

that held it violated state policy to exclude a teen driver from both parents’ insurance 

policies. Sagamore then paid Lawrence its full $50,000 policy limit. The district 

court granted summary judgment, ruling the recent Oklahoma case lacked 

precedential effect at the time Sagamore denied coverage, and Sagamore had 

reasonably denied the claim based on the Bryants failure to cooperate. 
3 

Sagamore timely filed a bill of costs seeking to recover $13,706.43 in 

litigation costs as a prevailing party under Rule 54(d). The district court clerk 

entered an order taxing costs of $11,731.60. The Bryants filed objections to the cost 

order, arguing that they were indigent, Sagamore should be penalized for not paying 

its policy limit to Lawrence sooner, and the case was complex and close. The district 

court accepted that the Bryants had a low income, but ruled Sagamore should not be 

penalized for paying its policy limits to an innocent third party and its denial of 

coverage did not present a close or complex case, given the Bryants’ failure to 

cooperate as required by the policy. This appeal followed. 

II. 

Rule 54(d)(1) provides: “Unless a federal statute, these rules, or a court order 

provides otherwise, costs—other than attorney’s fees—should be allowed to the 

prevailing party.” “The district court possesses broad discretion in awarding costs.” 

In re Williams Sec. Litig.-WCG Subclass, 558 F.3d 1144, 1148 (10th Cir. 2009) 

(internal quotation marks omitted). “Accordingly, we review costs awards only for 

an abuse of that discretion.” Id. 

“Rule 54(d) creates a presumption that the prevailing party shall recover 

costs.” Klein v. Grynberg, 44 F.3d 1497, 1506 (10th Cir. 1995). “Once a prevailing 

party establishes its right to recover allowable costs, however, the burden shifts to the 

non-prevailing party to overcome the presumption that these costs will be taxed.” 

Williams, 558 F.3d at 1148. Although the district court has discretion to deny costs 

to the prevailing party, we have held that doing so is a “severe penalty” and that 
4 

“there must be some apparent reason to penalize the prevailing party if costs are to be 

denied.” Klein, 44 F.3d at 1507. These reasons “include[e] when the prevailing 

party was only partially successful, when damages were only nominal, when costs 

were unreasonably high or unnecessary, when recovery was insignificant, or when 

the issues were close or difficult.” Williams, 558 F.3d at 1150-51 (internal quotation 

marks omitted). 

The Bryants do not challenge the reasonableness of the amount of taxable 

litigation costs awarded under Rule 54(d). Rather, they argue the district court 

should have exercised its discretion to deny costs in order to penalize Sagamore for 

not settling with Lawrence when she first filed a claim with Sagamore. We cannot 

agree. The Bryants failed to cooperate with Sagamore’s investigation into the 

accident, allowed default judgment to be entered against Hollie by failing to file an 

answer to Lawrence’s complaint, and failed even to notify Sagamore about 

Lawrence’s lawsuit. Under these facts, Sagamore can hardly be said to have delayed 

in paying its policy limit to Lawrence. The Bryants “caused this litigation to be 

brought” and caused Sagamore’s “costs to be incurred.” Id. at 1151 (internal 

quotation marks omitted). The Bryants also argue they were partially successful 

because Sagamore ultimately paid its policy limit, but in the previous appeal, we 

rejected their similar argument that the payment constituted a confession of 

judgment. See Bryant, 597 F. App’x at 971 (“[T]his argument ignores the fact that 

Sagamore resolved Lawrence’s claim while disputing liability at all times and with 
5 

explicit acknowledgment from Lawrence that the settlement was in compromise of a 

doubtful and disputed claim.” (internal quotation marks omitted)). 

The Bryants also argue the district court should have exercised its discretion to 

deny costs because they are indigent. While this court has acknowledged that a court 

may consider indigent circumstances in exercising discretion whether to award costs, 

we have also concluded that a district court does not abuse its discretion in awarding 

costs to the prevailing party simply because the non-prevailing parties were indigent. 

Rodriguez v. Whiting Farms, Inc., 360 F.3d 1180, 1190-91 (10th Cir. 2004) 

(affirming an award of costs despite the plaintiffs’ indigent status because they failed 

to show that the prevailing party should be penalized). 

The Bryants do not identify any facts or law the district court overlooked or 

failed to comply with, and we conclude it did not abuse its discretion in awarding 

costs under Rule 54(d). See Williams, 558 F.3d at 1148 (“A district court abuses its 

discretion where it (1) commits legal error, (2) relies on clearly erroneous factual 

findings, or (3) where no rational basis exists in the evidence to support its ruling.”). 

The judgment of the district court is affirmed. 

Entered for the Court 

Carolyn B. McHugh 

Circuit Judge