                  UNITED STATES COURT OF APPEALS

                               TENTH CIRCUIT



 ABED DAMAJ,

       Plaintiff-Appellant,
 v.
                                                       No. 96-5197
 FARMERS INSURANCE COMPANY,
 INC., d/b/a Farmers Insurance Group
 of Companies,

       Defendant-Appellee.




                 ORDER ON PETITION FOR REHEARING
                        Filed December 22, 1997


Before SEYMOUR, Chief Judge, EBEL and BRISCOE, Circuit Judges.


      Plaintiff-Appellant Abed Damaj ("Damaj") petitions for rehearing. The

rehearing petition is GRANTED. Therefore, the Court will issue today a modified

order and judgment, and the order and judgment of October 15, 1997, is

withdrawn and vacated. For the information of the parties, we note that we have

modified the original order and judgment to reflect our determination that Damaj
presented sufficient evidence to proceed on his claim for punitive damages. As a

result, we reverse the district court's grant of summary judgment against Damaj

on the issue of punitive damages. 1

      IT IS SO ORDERED.

                                      Entered for the Court

                                      PATRICK FISHER, Clerk




      1
         On November 26, 1997, Damaj also filed a motion to strike a statement in
the brief submitted by defendant-appellee Farmers Insurance Company, Inc.
("Farmers") responding to Damaj's petition for rehearing. Damaj argues that the
statement suggests that we reconsider the original order and judgment and thus
constitutes an improper petition for rehearing. Because we do not read the
challenged statement in Farmers' brief as a request for rehearing and because
Farmers does not petition for rehearing, we deny Damaj's motion to strike.

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                                                                              F I L E D
                                                    United States Court of Appeals
                     UNITED STATES COURT OF APPEALS         Tenth Circuit

                                                                               DEC 22 1997
                                  TENTH CIRCUIT
                                                                          PATRICK FISHER
                                                                                    Clerk
 ABED DAMAJ,

          Plaintiff-Appellant,
 v.
                                                            No. 96-5197
 FARMERS INSURANCE COMPANY,                           (D.C. No. 94-CV-531-M)
 INC., d/b/a Farmers Insurance Group                        (N.D. Okla.)
 of Companies,

          Defendant-Appellee.




                      AMENDED ORDER AND JUDGMENT **


Before SEYMOUR, Chief Judge, EBEL and BRISCOE, Circuit Judges.




      Plaintiff-Appellant Abed Damaj ("Damaj") appeals the district court's order

granting summary judgment in favor of Farmers Insurance Company, Inc.,

("Farmers") on Damaj's claim of bad faith breach of an insurance contract and

granting Farmers' motion to strike Damaj's punitive damages claim. We reverse.

                                   BACKGROUND

      *
         This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. This court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
      Damaj purchased a fully customized 1989 Chevrolet Astro van on August

8, 1991, for $12,744. The van had approximately 39,000 miles on its odometer.

When Damaj's van was stolen on January 8, 1994, it had approximately 85,000

miles on the odometer. The van has never been recovered.

      Damaj reported the theft to Farmers on January 10, 1994. Ron Banks, the

assigned adjuster, recorded a telephone conversation with Damaj on January 20,

1994, in which Banks asked Damaj about the model of his van, whether he had

customization coverage on the van, the equipment on the van, whether there were

any dents or dings on the van, the condition of the tires on the van, and whether

Damaj had checked on the value of the van. Damaj stated that the van would

have sold new for about $26,000.

      Damaj testified in his deposition that he also told Banks during their

telephone conversation that a van like his would sell for $12,000-$13,000, but

Banks represented that he had information that such vans typically sold for

$7,000-$8,000. When Damaj disputed Banks' estimates, Banks told Damaj he

would call him back. Banks telephoned Damaj later that day and stated he could

not justify paying more than $10,000 for the loss. Banks proceeded to obtain

quotes by telephone from four area car dealers as to the value of the van, ranging

from $8,500 to $10,000. Damaj presented evidence that Banks obtained these




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quotes by first suggesting a price range and then asking the dealer if the figure

sounded about right.

      Damaj also testified in his deposition that at a later meeting in Banks'

office, he asked Banks how he had arrived at the $10,000 value for his van.

Banks stated that he had called several dealers in town, one of which was

Riverside Chevrolet. Damaj visited Riverside Chevrolet and located a 1990 van

similar to his, except that it did not have a VCR or CB radio and was not in as

good condition, with 53,000 miles that was priced at $14,900.

      In a telephone conversation on February 14, 1994, Banks offered to settle

Damaj's claim for $10,000, less a $120 deductible. Damaj then visited Banks'

office on February 16, 1994, refused Banks' offer, and asked for $13,000 for his

van. On February 17, 1994, Farmers wrote Damaj, reiterating its offer to pay

$9,880 for the van, and informing Damaj of the option of initiating an arbitration

process to settle the dispute regarding the value of the van. Damaj did not

respond to the letter.

      Damaj filed this action against Farmers on May 2, 1994, in state court in

Oklahoma seeking actual damages for breach of contract, damages in excess of

$10,000 for bad faith breach of an insurance contract, and $600 million in

punitive damages. On May 24, 1994, Farmers filed a notice of removal to federal

court. Farmers moved for summary judgment on the bad faith claim and the claim


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for punitive damages, and the district court granted the motion on February 16,

1996. The parties then consented to the resolution of Damaj's breach of contract

claim by a magistrate judge. In an order dated July 29, 1996, the magistrate

valued the van at $12,105, and awarded Damaj damages in the amount of $2,305.

This amount represented the value of the van, less $9,880 which Farmer

eventually had paid Damaj, less the $120 deductible, plus $200 for the loss of

personal property from the van.

                                  DISCUSSION

      We review a district court's grant of summary judgment de novo, applying

the same legal standard used by the district court pursuant to Fed. R. Civ. P.

56(C). 1 Wolf v. Prudential Ins. Co., 50 F.3d 793, 796 (10th Cir. 1995). Summary

judgment is inappropriate when, after viewing the record in the light most

favorable to the non-moving party, there is a genuine dispute as to a material fact.

Id. Neither we nor the district court should weigh the evidence and determine the

truth of the matter or otherwise resolve issues of disputed facts when considering



      1
         The district court granted Farmers' motion to strike Damaj's punitive
damages claim by concluding that Damaj presented insufficient evidence showing
the necessary factual basis to support a claim for punitive damages. Thus,
although the district court characterized its ruling dismissing Damaj's punitive
damages claim as the grant of a motion to strike, the district court sub silentio
actually issued an order granting summary judgment on the punitive damages
claim. As a result, the standard of review for an appeal of a summary judgment
ruling apply to the district court's motion to strike.

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a summary judgment motion. See Concrete Works of Colorado, Inc. v. City and

County of Denver, 36 F.3d 1513, 1518 (10th Cir. 1994), cert. denied, 115 S. Ct.

1315 (1995).

      Thus, in the context of this appeal, we do not ask whether the record

reveals some evidence supporting the district court's ruling. Rather, we ask

whether Damaj, the non-moving party, supported his claim with enough evidence

to raise a question of material fact that should be resolved at trial. Because the

evidence presented by Damaj was sufficient to put into dispute Farmers' defense

that it acted in good faith, we must conclude that summary judgment on the issue

of bad faith was inappropriate in this case. In addition, we find that Damaj

offered enough evidence to support his claim for punitive damages so that

summary judgment was inappropriate on this issue as well.

                                     I. Bad Faith

      Under Oklahoma law, an insurance company has an implied duty to deal

fairly and act in good faith with its insured. Timberlake Constr. Co. v. U.S.

Fidelity & Guar. Co., 71 F.3d 335, 343 (10th Cir. 1995) (citing Christian v.

American Home Assurance Co., 577 P.2d 899, 904 (Okla. 1977)). The essence of

the tort of bad faith is the unreasonableness of the insurer's actions. Id. (citing

Conti v. Republic Underwriters Ins. Co., 782 P.2d 1357, 1360 (Okla. 1989)). Bad

faith conduct includes "the unjustified withholding of payment due under a


                                          -5-
policy." McCorkle v. Great Atlantic Ins. Co., 637 P.2d 583, 587 (Okla. 1981).

An insurer does not breach the duty of good faith by litigating a dispute with its

insured, however, if there is a "legitimate dispute" as to coverage or the amount

of the claim, and the insurer's position is reasonable and legitimate. Timberlake,

71 F.3d at 343. Nevertheless, by presenting evidence casting doubt on the

legitimacy of an insurer's good faith justification for disputing a claim, a plaintiff

can defeat summary judgment and present his case to the jury. See McCoy v.

Oklahoma Farm Bur. Mut. Ins. Co., 841 P.2d 568 (Okla. 1992). Even a

"legitimate dispute as to coverage will not act as an impenetrable shield against a

valid claim of bad faith" where the insured presents sufficient evidence

reasonably tending to show bad faith or unreasonable conduct. See Timberlake,

71 F.3d at 343 (citing Oulds v. Principal Mut. Life Ins. Co., 6 F.3d 1431, 1440

(10th Cir. 1993)).

      We find that Damaj presented evidence regarding three issues of material

fact that, when taken as true, support a bad faith cause of action. First, Damaj

presented the affidavit of an expert witness qualified to comment on insurance

practices, Bob R. Stephens, who performed a thorough investigation of Farmers'

conduct in this case. Stephens stated that the "investigation conducted by

Farmers was inadequate to place a fair market value on the plaintiff's van."

(App't App., Vol. I, ex. 5 at 190 ¶ 14). Stephens specifically criticized Farmers'


                                          -6-
practice of obtaining price quotes for stolen vehicles from used car dealers by

suggesting a price range to the dealers and asking if such figures sound about

right: "Farmers failed to perform a fair valuation of the plaintiff's van because of

its failure to follow accepted valuation practices by reliance on independent and

verifiable written sources of information." (Id. at 190-91 ¶ 15). Although

Farmers presented evidence that its method of obtaining quotes on a van which

had been stolen, and therefore could not be inspected, conformed with industry

practice, Stephen's affidavit is evidence to the contrary, and we should not try to

resolve that dispute on summary judgment. Instead of weighing the evidence to

decide whether one version of the facts appears more plausible than another, we

only should evaluate whether the non-moving party presented some evidence to

support his case. Certainly, the expert's testimony presents a triable issue of fact

concerning whether Farmers (1) in fact conformed to industry standards and (2)

undertook an adequate investigation to determine an accurate value of the stolen

vehicle.

      Second, Damaj presented evidence that when offering him a settlement of

$10,000 for his claim, Banks told him that the van was worth only between

$7,000 and $8,000, even though Banks had not yet received any price quotes for

the van. Thereafter, Banks obtained price quotes between $8,500 to $10,000, but

did not disclose these figures to Damaj until well after Banks first made the


                                         -7-
$10,000 settlement offer. This fact is relevant because the erroneous

representation by Banks could have given Damaj the impression that the $10,000

offer was generously excessive in light of the price quotes Banks ultimately

received. In fact, it was within the range of those quotes, albeit at the high end.

Such an impression could be construed by the jury as part of a bad faith effort to

induce Damaj to accept the $10,000 figure. When added to the evidence showing

that Banks suggested the price range he obtained from the dealers, a reasonable

jury could conclude that Farmers adopted a pre-determined value for the van and

then attempted to support that value by relying on incomplete and improper third

party appraisals. The fact that Banks suggested a price range to the dealers just

above the $7,000 to $8,000 figure he quoted to Damaj could indicate that Banks

had no intention to obtain an accurate price quote.

      Third, Banks failed to consult the separate customization policy Damaj had

purchased for the van from Farmers in order to obtain an accurate accounting of

all of the van's customized features. Farmers contends that by providing most of

this information to Farmers when he filed his claim, Damaj relieved Farmers of

any burden to investigate the matter further. However, it is undisputed that even

a cursory review of the policy would have revealed several customized features

not contained in the Vehicle Valuation Settlement Report prepared by Banks. (Id.

at 143). They include a rear ladder, a rear tire rack and cover, and a transmission


                                         -8-
coolant system. Such additional information would have been relevant to any

effort to determine an accurate value of the vehicle. Under Oklahoma law,

intentionally disregarding "undisputed facts supporting the insured's claim"

constitutes bad faith conduct by an insurer, especially when "a more thorough

investigation would have produced relevant information." Timberlake, 71 F.3d at

345.

       Even if Damaj had some responsibility under the policy to notify Farmers

of all items lost as a result of the theft, we conclude that Farmers still had an

affirmative duty under Oklahoma law to act in good faith and review information

to which it had easy access despite any inadvertent omissions by Damaj.

Moreover, Damaj could be said to have fulfilled his duty to provide an accurate

accounting of his loss by fully informing Farmers about the van's customized

features when purchasing the customization policy and then specifically

reminding Banks of the existence of the customization coverage. (App't App.,

Vol. I, ex. 4 at 5). Finally, Stephens' affidavit notes that Farmers' "failure to

negotiate with the plaintiff or to determine the full and exact nature and extent of

the equipment and accessories located on and in the plaintiff's van is an improper

method by which to 'adjust' a claim." (App't App., Vol. I, ex. 5 at 190 ¶ 14).

       Farmers may very well prove at trial that it did indeed act in good faith.

However, determining which party is the more likely to prevail at trial is not


                                          -9-
appropriate when reviewing a grant of a motion for summary judgment. Given

the procedural posture of this case on appeal, we must ask only whether the non-

moving party presented sufficient evidence to dispute the factual basis for the

prevailing party's summary judgment motion. We conclude that Damaj met his

burden and that we should reverse the district court's ruling.

                               II. Punitive Damages

      To recover punitive damages, the evidence offered by a plaintiff must

"show some elements of fraud, malice, or oppression" or gross negligence.

McLaughlin v. National Ben. Life. Ins. Co., 772 P.2d 383, 387 (Okla. 1988). The

evidence offered by Damaj, if proven at trial, could be construed by the jury to

establish intentional "deception and dishonesty" by Farmers sufficient to support

an award of punitive damages for bad faith breach of an insurance contract under

Oklahoma law. Willis v. Midland Risk Ins. Co., 42 F.3d 607, 615999 (10th Cir.

1994) (applying Oklahoma law). Thus, we reverse the district court's order

striking Damaj's punitive damage claim.

                                  CONCLUSION

      Therefore, we REVERSE the district court's ruling granting summary

judgment on the bad faith claim, REVERSE the district court's ruling granting

summary judgment on the claim for punitive damages, and REMAND for further

proceedings not inconsistent with this opinion.


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ENTERED FOR THE COURT



David M. Ebel
Circuit Judge




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