Taylor v. State Farm Fire and Casualty Co.

Annotate this Case

Taylor v. State Farm Fire and Casualty Co.
1999 OK 44
981 P.2d 1253
70 OBJ 1664
Case Number: 89677
Decided: 05/18/1999
Modified: 06/10/1999
Supreme Court of Oklahoma

DAVID G. TAYLOR and JESSICA TAYLOR, Plaintiffs/Appellees,


¶0 Insureds brought an action against their insurer in the United States District Court for the Northern District of Oklahoma to recover under a homeowner's policy for hail-related damage to their roof and for bad-faith refusal to settle that loss. The district court (a summarily ruled in favor of the insurer on the contract theory of liability; (b allowed the trial to proceed on the tort theory; (b entered judgment on jury verdict for the insureds on the ex delicto theory of liability and (c granted insureds, under the authority of


Joseph F. Clark, Jr., Tulsa, Oklahoma, for the appellees.

W. R. Cathcart and Virginia Cathcart Holleman, Cathcart, Gofton & Fraley, Oklahoma City, Oklahoma, for the appellant.


¶1 In conformity to the Uniform Certification of Questions of Law Act,

(1) To what extent, if any, does Brashier v. Farmers Insurance Co. . . .

(2) Following Brashier, are insurance bad faith claimants proceeding under Oklahoma law precluded from recovering attorney's fee and prejudgment interest in cases in which a claim is predicated on tort rather than contract?

¶2 As we understand the first question, it calls for an answer to whether Brashier construes the terms of

¶3 As we understand the second question, it asks that we answer whether Brashier may be construed to bar the § 3629 recovery of counsel-fee award and prejudgment interest in actions prosecuted solely on the theory of insurer's bad-faith refusal to settle. We declare that Brashier does not bar a counsel-fee award in tort claims for bad-faith refusal to settle a property loss. A prevailing party's counsel fee also may be viewed as an element of the insured's recovery for the insurer's bad-faith refusal to settle the claim. In short, it does not rest solely on the § 3629 authority.



¶4 A hail storm damaged David and Jessica Taylor's [Taylors] roof in April 1992. At the time their residence was covered by a homeowner's policy issued by State Farm Fire and Casualty Company [State Farm]. The parties differed on the extent and on the cost of repair.

¶5 Suit was brought in March 1994 on ex contractu and ex delicto theories of liability. The Taylors sought recovery (a) on the homeowner's policy for loss to the roof and (b) for State Farm's alleged breach of its implied duty of good faith and fair dealing by refusing to settle the claim. The district court summarily ruled out as time-barred the contract theory of liability, but allowed the trial to proceed on the tort theory.


¶6 State Farm's quest for review in the U.S. Court of Appeals for the Tenth Circuit is confined to corrective relief from the award of attorney's fee, costs and prejudgment interest. According to State Farm, the terms of § 3629 do not support the challenged recovery absent the insureds' victory on their contract claim. The certifying court notes that the parties disagree on whether Thompson's vitality has been undermined by the teachings of Brashier. It is this dispute between the litigants that appears to form the basis of the federal court certification.


¶7 While in answering the queries posed by a federal court the parameters of state-law claims or defenses identified by the submitted questions may be tested, it is not this court's province to intrude (by its responses) upon the certifying court's decision-making process.


¶8 Because this case is not before us for decision, we refrain, as we must, from applying the declared state-law responses to the facts in the federal-court litigation, which are tendered for review by the certifying court either in the form of evidence adduced at trial or in acceptable probative substitutes (the so-called "evidentiary materials").

Insured Loss Recovery under Ex Contractu
And Ex Delicto Theories

¶9 While numerous items of damage may result from one injurious occurrence, the party who seeks to recover for an [981 P.2d 1258] insured loss has but a single cause of action, although its claim may be advanced concurrently on ex contractu and ex delicto theories.

The Teachings of Brashier

¶10 The issue in Brashier23 was whether, in light of § 3629's explicit exclusion from its purview of UM losses,24 the victorious UM plaintiff was nonetheless entitled to an attorney's fee as a common-law element of his bad-faith recovery. Concluding that § 3629 did not explicitly abrogate the pre-existing common law, the court allowed a counsel-fee award as an item of recoverable harm. The Brashier pronouncement stands confined to UM claims. It resulted from the legislative failure explicitly to address in § 3629 the continued viability of pre-existing common-law authority.

A Counsel-Fee Award Under

¶11 The law yields two sources of authority for counsel-fee allowance in bad-faith tort claims - the text of § 362925 and the common-law jurisprudence (under the teachings of Christian).26 Section 3629 provides, among others, for the prevailing party's recovery of counsel fee in an action for the insured loss recovery. Counsel-fee award under § 3629 depends not on the theory of liability imposed but on the recovery of the insured loss as the prevailing party's core element of reparations. Ever since this court's pronouncement in Oliver's Sports Center, Inc. v. Nat'l Standard Ins. Co.,27 § 3629 has been held to authorize counsel-fee awards in both contract and tort claims [981 P.2d 1259] against the insurer, so long as the insured loss constitutes the core element of the awarded recovery.28


¶12 While in Brashier the insured loss lay at the core of bad-faith recovery, it was for a coverage (UM) that was explicitly excluded from the purview of § 3629. Brashier declares that UM-loss recovery in bad-faith claims qualifies for a counsel-fee award under the teachings of Christian.

Counsel-Fee Award As An Element of Damages
In A Bad-Faith Claim

¶13 The remedy of bad-faith refusal to settle a claim rests on the insurer's implied-in-law duty to act in good faith and to deal fairly with the insured.


¶14 Brashier addresses itself only to claims based on bad-faith refusal to pay a UM loss. No other class of insurance recovery is implicated by its teachings. What Brashier settles is that, although a party prevailing in a claim for bad-faith refusal to settle a UM loss may not be allowed an award of counsel fee under the authority of § 3629, an attorney's fee is recoverable by the prevailing party as a recognized common-law element of damage. In short, Brashier teaches that the UM coverage exclusion from the purview of § 3629 falls short of abrogating the common law of Christian.


¶15 Brashier does not reach the issue whether prejudgment interest may be added - from the time of the claim's accrual to the date of judgment - on the amount of recovery for an insured property loss. The award of prejudgment interest in Brashier rests on

Any person who is entitled to recover damages certain, or capable of being made certain by calculation, and the right to recover which is vested in that person [981 P.2d 1260] upon a particular day, is entitled also to recover interest thereon from that day.

(emphasis added).

The Common-Law Antecedents of § 6

¶16 Interest was permitted at common law on a debtor's failure to repay a loan according to the contract terms.


¶17 Prejudgment interest on an insured property-loss recovery is governed by the legislative approval of the applicable common law which is declared in §6.


¶18 In sum, if a (property loss) demand's value is unascertainable until its quantum is judicially settled, no prejudgment interest is the victor's due.

§ 3629 and § 6 are In Pari Materia

¶19 Different statutes on the same subject are generally to be viewed as in pari materia and must be construed as a harmonious whole.

¶20 When construed together with § 6, the purview of § 3629 is restricted to those property-loss recoveries in which the insured loss was for a liquidated amount or for an amount that could be made ascertainable by reference to well-established market values. Before prejudgment interest is one's due, it must be determined that, at the time proof of loss was denied, the quantum of the loss could be ascertained by reference to market values.

Pre-Existing Common Law Cannot Be Abrogated
Without Explicit Legislative Direction

¶21 Any notion that § 3629 was intended to give every prevailing party in a suit for recovery of the insured property loss the benefit of prejudgment interest would not only repeal § 6 - an enactment long in force - but would also abrogate, without any semblance of legislative authority, pre-existing common law that stands declared by that section. By the mandate of 12 O.S.1991 § 2 the common law remains in full force unless a statute explicitly provides to the contrary. Legislative abrogation of the common law [981 P.2d 1262] may not be effected by mere implication.53 It must be clearly and plainly expressed.54


¶22 If the amount due for the Taylors' loss is found to have been "fairly ascertainable" in value when their proof of loss was denied, prejudgment interest will accrue on the amount of the recovered property loss that was insured.


¶23 In answer to question one we declare Oklahoma law to be that for actions prosecuted in tort to recover for the insurer's bad-faith refusal to settle, Brashier bars neither an award of attorney's fee nor of prejudgment interest which stands authorized by the terms of

¶24 In answer to question two we declare Oklahoma law to be that Brashier does not bar a § 3629 recovery of counsel-fee award in a common-law tort action for bad-faith refusal to settle a claim (other than one for UM loss). Counsel-fee allowance, which may also be awarded as an element of the insured's damages for the insurer's bad-faith refusal to pay a claim, does not hence rest solely on the authority of § 3629. Prejudgment interest on the insured property loss recovered in a bad-faith-refusal action is authorized by § 3629(B), to be construed together with § 6, as an additional item of damages to the insured, whenever the insured is the prevailing party and the insured loss was for a liquidated amount or for an amount capable of ascertainment by reference to well-established market values.



¶27 SUMMERS, C. J., concurs in part and dissents in part;

¶ 28 SIMMS, J., dissents.


1 20 O.S. 1991 §§ 1601 et seq. This Act was amended by Laws 1997, Ch. 61, § 1, eff. Nov. 1, 1997, and is now known as the Revised Uniform Certification of Questions of Law Act.

2 1996 OK 86, 925 P.2d 20.

3 The pertinent terms of 36 O.S. 1991 § 3629(B) are:

Insurer must submit a written offer of settlement or rejection of the claim to the insured within ninety (90) days of receipt of proof of loss. Upon a judgment rendered to either party, costs and attorney fee shall be allowable to the prevailing party. The prevailing party is the insurer in those cases where judgment does not exceed written offer of settlement. In all other judgments the insured shall be the prevailing party. If the insured is the prevailing party, the court in rendering judgment shall add interest on the verdict at the rate of fifteen percent (15%) per year from the date the loss was payable pursuant to the provisions of the contract to the date of the verdict.

(emphasis supplied).

4 See discussion in Part IV(A) infra.

5 For the terms of 23 O.S. 1991 § 6, see Part V, infra.

6 See discussion in Part V, infra.

7 See discussion in Part IV(B) infra.

8 For the terms of 23 O.S. 1991 § 6, see Part V, infra.

9 See discussion in Part V, infra.

10 Extant jurisprudence imposes a two-year limitation upon a tort action based on bad-faith refusal to settle a claim. Lewis v. Farmers Ins. Co., Inc., 1983 OK 100, 681 P.2d 67, 70.

11 For the pertinent terms of 36 O.S.1991 § 3629, see supra note 3.

12 875 F.2d 1460 (10th Cir. 1989).

13 For the amount of the counsel-fee award and costs the district court relied on the parties' stipulation.

14 The prejudgment interest of $16,608.14 was calculated (at 15% per annum) from 3 June 1992 (the date that State Farm made a written offer to adjust its previous settlement offer) to 28 April 1995 (the day judgment was entered).

15 Thompson, supra note 12 at 1465.

16 See Uniform Laws Annotated, Uniform Certification of Questions of Law Act/Rule (1995); Goldschmidt, Certification of Questions of Law; Federalism in Practice, American Judicature Society (1994).

17 See, e.g., Shebester v. Triple Crown Insurers, 974 F.2d 135, 137 (10th Cir. 1992). State Farm informs us that it is arguing on appeal (to the U.S. Court of Appeals for the Tenth Circuit) that the plaintiffs have waived their plea for an attorney's fee as an element of their claim for bad-faith refusal to settle the insured loss. We note that since the asserted waiver is not included in the questions certified, it is inappropriate for our consideration.

18 Schmidt v. United States, 1996 OK 29, 912 P.2d 871, 873; Brown v. Ford, 1995 OK 131, 905 P.2d 223, 226; Bonner v. Oklahoma Rock Corp., 1993 OK 131, 863 P.2d 1176, 1178 n. 3; Shebester v. Triple Crown Insurers, 1992 OK 20, 826 P.2d 603, 606 n. 4.

19 Our current remedial regime gives the insured a choice between two alternative theories of recovery - one founded on promise-generated liability and the other on insurer's duty of good faith implied in its status qua insurer or derived from public policy considerations. Mann v. State Farm Mut. Auto. Ins. Co., 1983 OK 84, 669 P.2d 768, 772; Retherford v. Halliburton Co., 1977 OK 178, 572 P.2d 966, 969; Aetna Casualty & S. Co. v. Associates Transports Inc., 1973 OK 62, 512 P.2d 137, 142; Stone v. Case, 34 Okl. 5, 124 P. 960, 966-67 (1912).

20 1977 OK 141, 577 P.2d 899, 901.

21 Id. at 901.

22 If a notion does still persist that a bad-faith tort claim for refusal to settle is devoid of ex contractu underpinnings, it comes through the confusion of the term "claim" with that of "recovery." In an ex contractu claim it is solely the insured loss that may be recovered, while the elements of recovery in the bad-faith suit are for more than the insured loss: (a) the loss to be indemnified under the policy plus (b) the harm from insurer's bad-faith refusal to settle.

23 Brashier, supra note 2 at 22.

24 For the pertinent terms of 36 O.S.1991 § 3629(B), see supra note 3.

25 For the text of 36 O.S.1991 § 3629(B), see supra note 3.

26 Christian, supra note 20.

27 1980 OK 120, 615 P.2d 291, 295. Under the teachings of Oliver's Sports, if the bad-faith tort claim is timely and one of the items of recovery is the amount of loss to be indemnified under the provisions of the policy, § 3629(B) is invocable because critical to its application is not the timeliness of a contract claim, but the plaintiff's recovery of loss submitted for payment to the insurer.

28 For application of the Oliver's Sports approach, see McCorkle v. Great Atlantic Inc. Co., 1981 OK 128, 637 P.2d 583, 586, where the victorious (fire-insurance) plaintiff received as items of recovery, an award for the insured loss, punitive damages for the insurer's bad-faith handling of the claim, and an attorney's fee (under § 3629); Alsobrook v. National Travelers Life Ins. Co., 1992 OK CIV APP 168, 852 P.2d 768, 773; City Nat. Bank v. Jackson Nat. Life Ins., 1990 OK CIV APP 89, 804 P.2d 463, 469.

29 Christian, supra note 20 at 901. A Christian claim - crafted from the nature of the insured/insurer relationship - flows not so much from contract as it does from law that attaches a cluster of implied-in-law duties to the insurer/insured status. Id.

30 Christian, supra note 20 at 901.

31 The pertinent terms of 12 O.S. 1991 § 727 (A)(2) are:

When a verdict for damages by reason of personal injuries . . . is accepted by the trial court, the court in rendering judgment shall add interest on said verdict at a rate prescribed pursuant to subsection B of this section from the date the suit was commenced to the date of verdict. . . .

(emphasis added).

32 Brashier, supra note 2 at 26; Timmons v. Royal Globe Ins. Co., 1985 OK 76, ¶1, 713 P.2d 589, 590(teaches that when a verdict covers more than purely personal injury, § 727 applies to those severed (or severable) portions of the verdict which represent an identifiable personal-injury element).

33 Although personal-injury recovery is for unliquidated damages, by explicit legislative declaration prejudgment interest nonetheless attaches to that kind of award. 12 O.S. 1991 § 727. In short, § 727 takes personal-injury recovery out of the rubric that is governed by § 6.

34 Shanbour v. Phillips 66, 1993 OK 128, 864 P.2d 815, 816-817; Fidelity-Phenix Fire Ins. Co. of N.Y. v. Board of Ed. of Town of Rosedale, 201 Okl. 250, 204 P.2d 982, 987-88 (1948); see also Ottinger v. U.S. for Use of Brown, 230 F.2d 405 (10th Cir.1956).

35 The early common law viewed any interest as usurious and illegal. With the expansion of commercial activity, this view changed and English courts permitted the collection of interest on a debtor's failure to repay a loan according to the contract terms. Lowe v. Waller, 2 Doug. 736, 740, 99 Eng. Rep. 470, 472-73 (K.B. 1781). For various treatments of the early historical developments in interest law, see Laycock v. Parker, 103 Wis. 161, 79 N.W. 327 (1899); Adriance v. Brooks, 13 Tex. 279, 281 (1855); Van Rensselaer v. Jewett, 2 N.Y. 135, 140 (1849); D. Dobbs, Remedies, § 3.5 (1973); 8 W. Holdsworth, History of English Law 100-13 (1925); C. McCormick, Handbook On The Law Of Damage, § 51 k; T. Sedgwick, A Treatise on the Measure of Damages § 292 (A. Sedgwick & J. Beale 9th rev. ed. 1920); 1 J. Sutherland, The Law of Damages, §§ 301-303 (J. Berryman 4th ed. 1916); M. Oyos, Prejudgment Interest in South Dakota, 33 S.D.L.Rev. 484, 486-88 (1988); Michael S. Knoll, A Primer on Prejudgment Interest, 75 Tex. L. Rev. 293, 298 (1996); A.E. Rothschild, Comment, Prejudgment Interest: Survey and Suggestion, 77 Nw. U. L. Rev. 192, 195-99 (1982); Note, Recovery of Prejudgment Interest on an Unliquidated State Claim Arising within the Sixth Circuit, 46 U. CIN. L. REV. 152 (1977); Comment, Prejudgment Interest: An Element of Damages Not to be Overlooked, 8 CUM. L. REV. 521 (1977); Note, Denham v. Bedford: Statutory Prejudgment Interest and its Effect on Third Party Insurers, 1979 DET. C.L. REV. 345, 346; Comment, Allowance of "Interest" on Unliquidated Tort Damages in Pennsylvania, 75 DICK. L. REV. 79, 89-91 (1970); Comment, Interest as Damages in California, 5 U.C.L.A. L. REV. 262, 264-65 (1958). See in this connection Daly v. Swift & Co., 300 P. 265, 269 (Mont. 1931); Necedah Manufacturing Corp. v. Juneau County, 237 N.W. 277, 281-83 (Wis. 1931).

36 If the amount of damages was a fixed sum (such as the face amount of an insurance policy), the claim was considered liquidated. This is so because a defendant knew the amount owing and could immediately pay the damages. If the damages were uncertain, the claim was considered unliquidated. The defendant could not determine the extent of liability before trial. The liquidated-unliquidated dichotomy test presupposed that a defendant was liable for prejudgment interest only if the defendant knew or could have determined the amount of damages. Oyos, supra note 35 at 487; McCormick, supra note 35 at § 51; Sedgwick, supra note 35 at § 292.

37 Oyos, supra note 35 at 487; Dobbs, supra note 35 at § 3.5; McCormick, supra note 35 at §§ 54-56; Sedgwick, supra note 35 at §§ 299, 315.

38 By the mid-nineteenth century, several theories concerning interest as damages were current. The prevailing view permitted recovery beyond strictly liquidated claims. Oyos, supra note 35 at 487; U.C.L.A. Comment, supra note 35, at 265.

39 Oyos, supra note 35 at 487; McMahon v. New York & Erie Railroad, 20 N.Y. 463 (1859); Van Rensselaer, supra note 35; Reid v. Rensselaer Glass Factory, 3 Cow 393 (N.Y. 1824); U.C.L.A. Comment, supra note 35 at 264.

40 Field, The Civil Code of the State of New York, §§ 1835, 1836 (1865).

41 1 South Dakota Code of 1939 (1939); Oyos, supra note 35 at 487.

42 23 O.S. 1991 § 6 (Historical Note).

43 Withrow v. Red Eagle Oil Co., 1988 OK 16, 755 P.2d 622, 625; Sisney v. Smalley, 1984 OK 70, 690 P.2d 1048, 1050.

44 Sandpiper North Apartments, Ltd. v. American Nat'l Bank and Trust Co., 1984 OK 13, 680 P.2d 983, 993; American Eagle Fire Ins. Co. v. Lively, 142 Okl. 246, 286 P. 797, 799 (1930)(interest is not recoverable on unliquidated damages where a judgment or verdict is necessary to ascertain the amount of the damage); St. Paul Fire & Marine Ins. Co. v. Robison, 72 Okl. 269, 180 P. 702, 703 (1919).

45 Heiman v. Atlantic Richfield Co., 1995 OK 19, 891 P.2d 1252, 1258. Damages are not certain where their calculation is left to the best judgment of the fact-finder or if conflicting evidence must be weighed to determine the precise amount of damages due. Withrow, supra note 43 at 626; Cook v. Oklahoma Bd. of Public Affairs, 1987 OK 22, 736 P.2d 140, 153.

46 Fidelity-Phenix, supra note 34 at 987.

47 See, e.g., Timmons, supra note 32, where prejudgment interest was invoked for just one item of a party's multi-element recovery.

48 Cook, supra note 45 at 152; Allison v. Allen, 1958 OK 125, 326 P.2d 1059, 1063; Smith v. Owens, 1963 OK 187, 397 P.2d 673, 683; American Eagle, supra note 44 at 798.

49 Cook, supra note 45 at 152; Smith, supra note 48 at 683.

50 State v. Phillips Petroleum Co., 189 Okl. 629, 118 P.2d 621, 625 (1941).

51 Sharp v. Tulsa County Election Bd., 1994 OK 104, ¶11, 890 P.2d 836, 840; Johnson v. Ward, 1975 OK 129, ¶22, 541 P.2d 182, 186; Letteer v. Conservancy Dist., 1963 OK 218, ¶14, 385 P.2d 796, 801.

52 Sandpiper, supra note 44 at 993.

53 Brashier, supra note 2 at 22; Tate v. Browning-Ferris, 1992 OK 72, 833 P.2d 1218, 1225-1226; Silver v. Slusher, 1988 OK 53, 770 P.2d 878, 884; State Mut. Life Assur. Co. of Amer. v. Hampton, 1985 OK 19, 696 P.2d 1027, 1036 (Opala, J., concurring); Ricks Exploration v. Okl. Water Resources Bd., 1984 OK 73, 695 P.2d 498, 504.

54 Tate, supra note 53 at 1225-226; Fuller v. Odom, 1987 OK 64, 741 P.2d 449, 451; McCormack v. Oklahoma Publ. Co., 1980 OK 98, 613 P.2d 737, 740.

55 For the text of 36 O.S.1991 § 3629, see supra note 3.

56 For the text of 23 O.S.1991 § 6, see Part V supra.