                                                                                 FILED
                                                                     United States Court of Appeals
                     UNITED STATES COURT OF APPEALS                          Tenth Circuit

                            FOR THE TENTH CIRCUIT                         November 25, 2015
                        _________________________________
                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
RACHEL KANNADAY,

      Plaintiff – Appellant/Cross-
      Appellee,

v.

CHARLES BALL, Special Administrator                   No. 14-3183 & 14-3222
of the Estate of Stephanie Hoyt,                  (D.C. No. 2:12-CV-02742-JTM)
                                                             (D. Kan.)
      Defendant,

v.

GEICO INDEMNITY INSURANCE
COMPANY,

      Garnishee - Appellee/Cross-
      Appellant.
                      _________________________________

                            ORDER AND JUDGMENT*
                        _________________________________

Before KELLY, BALDOCK, and HOLMES, Circuit Judges.
                  _________________________________

      This bad faith insurance action arises out of an automobile accident in which

Genevie Gold, Sharon Wright, and Plaintiff Rachel Kannaday were seriously injured

after the driver, Stephanie Hoyt, deceased, made an improper U-turn. Hoyt had a

GEICO insurance policy with limits of $25,000 per person and $50,000 per accident,

      *
         This order and judgment is not binding precedent, except under the doctrines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.
which was insufficient to cover the passengers’ serious injuries. Kannaday sued

Hoyt’s estate for negligence in Kansas state court and obtained a verdict of over

$4 million. Kannaday then brought this garnishment action against GEICO, alleging

that GEICO had acted in bad faith in failing to settle and defend Hoyt’s estate. After

a three-day bench trial, the district court found that GEICO had acted in good faith

and without negligence. In this appeal, Kannaday challenges a number of the district

court’s factual and legal conclusions and asks us to certify two questions to the

Kansas Supreme Court, while GEICO seeks to cross-appeal the earlier denial of its

motion for summary judgment. Exercising jurisdiction under 28 U.S.C. § 1291, we

affirm the district court’s factual conclusion that GEICO did not act in bad faith or

negligently and will thus not reach the remaining issues or certify any questions to

the Kansas Supreme Court.

                                           I.

      On July 13, 2005, Stephanie Hoyt attempted to make an improper U-turn on

Interstate 35 in Kansas. Charles Church, who was driving a semi-truck that Chris

Truck Line owned, struck Hoyt’s vehicle.        Hoyt died instantly, and her three

passengers—Gold, Wright, and Kannaday—were seriously injured.             Kannaday’s

injuries were more severe than Gold’s or Wright’s.

      Hoyt’s insurance through GEICO provided a bodily injury limit of $25,000 per

person and a maximum of $50,000 per accident.          Less than a month after the

accident, Kwirt Roarick, a GEICO claims adjuster, received the Kansas Highway

Patrol report, which presented credible evidence that Hoyt was at fault in the

                                          2
accident. Roarick advised Lanny Hamp, Hoyt’s father, that the accident liability

would far surpass policy limits. On October 5, Gold’s attorney Doug Greenwald

submitted a demand letter and proposed dividing the $50,000 per accident proceeds

equally among the three passengers, so each passenger would receive about $16,667.

GEICO already knew by that time that Kannaday’s hospital bill exceeded $140,000

and that Wright’s hospital bill exceeded $90,000. GEICO learned two days after

Gold’s proposal that Gold’s hospital bill exceeded $44,000, Wright’s bill exceeded

$95,000, and Kannaday’s bill exceeded $158,000. GEICO did not respond to Gold’s

letter or inform Hamp or the other injured passengers about the proposal. Instead,

Roarick investigated whether the passengers had underinsured motorist (UIM)

benefits available to supplement the benefits they would receive from Hoyt’s policy.

GEICO made its first settlement offer on November 4, 2005.         Roarick offered

$12,500 to both Wright and Kannaday based on the mistaken belief that they would

have UIM benefits and would ultimately receive $25,000. He offered $25,000 to

Gold because she was the only passenger without UIM coverage. Sabrina Brantley

took over the case from Roarick in the middle of November and reiterated GEICO’s

settlement offers in December.

      Beginning on January 14, 2006, six months after Hoyt’s death, the Kansas

nonclaim statute, Kan. Stat. Ann. § 59-2239, barred the enforcement of claims

against Hoyt’s estate’s assets. Five days later, on January 19, attorney Paul Hasty,

acting on Kannaday’s behalf, offered to settle Kannaday’s claim for $25,000,

stressing that she was the most seriously injured passenger. GEICO asked the firm

                                         3
Fleeson, Gooing, Couson & Kitch to respond to Kannaday’s demand and negotiate

settlements that would distribute the policy limits proceeds.      The Fleeson firm

recommended that GEICO interplead the $50,000 policy limits in court, which

GEICO authorized in the beginning of February. By February 21, Gold accepted the

$25,000 offer, decreasing the amount available for the interpleader action to $25,000.

On February 22, Fleeson wrote Kannaday to repeat GEICO’s prior $12,500 offer,

explaining that Gold accepted $25,000.1 On February 24, Hasty sent a response

again demanding $25,000 but withdrew the demand on February 27.

      On March 23, 2006, Fleeson filed GEICO’s interpleader action in the United

States District Court for the District of Kansas, naming as potential claimants

Kannaday, Wright, Charles Church, Chris Truck Line, Liberty Mutual Fire Insurance

(the workers compensation carrier for Chris Truck Line), Metropolitan Life Insurance

Company (Kannaday’s personal injury protection (PIP) carrier), and Wesley Medical

Center. Only Kannaday and Wesley Medical Center answered the interpleader. In

January 2007, while the interpleader was pending, Wesley offered to accept $6,000 in

full and complete satisfaction of Kannaday’s bill over $150,000, release the lien, and

release Kannaday of all personal liability. Kannaday did not respond. In February

2008, the federal district court awarded the $25,000 that GEICO had tendered to

      1
         The federal district court, following a bench trial, found that GEICO did not
reject Kannaday’s January 19, 2006 offer for $25,000, but rather that Kannaday
withdrew the offer on February 27. After reviewing the record, we are left with a
definite and firm conviction that this particular finding of fact is erroneous. GEICO
rejected Kannaday’s January 19 offer when it counteroffered $12,500 on February
22. GEICO did not reject Kannaday’s second offer of $25,000 because she withdrew
it before GEICO had sufficient time to respond to it.
                                          4
Wesley Medical Center for its hospital lien, which benefitted Kannaday by reducing

the amount she owed the hospital. The federal district court also issued an injunction

barring any of the interpleader defendants from pursuing a claim outside the

interpleader action against the $25,000 insurance proceeds.

      On March 17, 2006, about a week before GEICO filed the interpleader action,

Kannaday petitioned the District Court of Wyandotte County, Kansas, to appoint

Charles Ball as a special administrator for Hoyt’s estate and then sued the estate for

Hoyt’s negligence in the accident. GEICO retained the Fleeson firm to defend the

estate. Fleeson sent a letter to Ball informing him that GEICO had retained it to

defend the estate. Between April 21, 2006, and April 12, 2012, Fleeson sent dozens

of letters to Ball regarding case developments and advising him that the nonclaim

statute protected estate assets, but Ball responded only once with signed discovery

responses and a copy of his appointment as the special administrator. In September

2006, Ball signed a settlement agreement and sent the agreement to Fleeson without

any cover letter or commentary. The settlement agreement allowed Kannaday to

present her evidence to the District Court of Wyandotte County ex parte, and in

exchange, Kannaday agreed not to execute judgment on Hoyt’s estate assets but to

seek recovery only from GEICO. Fleeson told Ball that it would soon file a motion

for summary judgment regarding the nonclaim statute to protect the estate’s assets;

because Ball did not respond, Fleeson retained the settlement agreement and did not

forward it to Kannaday. In December 2006, the District Court of Wyandotte County

held that the nonclaim statute barred any claims against Hoyt’s estate’s assets, stating

                                           5
Kannaday could reach only the GEICO policy. A year later, in December 2007,

Hasty deposed Ball, during which Ball signed a nearly-identical ex parte Settlement

Agreement, despite the District Court of Wyandotte County’s ruling regarding the

nonclaim statute. In March 2008, in response to a request for production, Fleeson

produced a copy of the original Settlement Agreement to Hasty. Kannaday signed

the Settlement Agreement in March 2009. The following day, the District Court of

Wyandotte County conducted an ex parte hearing and awarded Kannaday over $7

million in damages. Fleeson learned of the ex parte award only after the journal

entry of judgment was filed; it appealed the judgment.

      In June 2010, the Kansas Court of Appeals determined that because Kannaday

filed her negligence action outside the nonclaim statute’s period, she could not

recover any estate assets. Nonetheless, the Kansas Court of Appeals held that the

nonclaim statute did not bar Kannaday’s negligence suit, because the GEICO policy

was not an estate asset. Although the injunction from the federal interpleader barred

any actions against the policy proceeds, the Kansas Court of Appeals said the federal

court’s injunction did not prevent any possible future claims against GEICO for bad-

faith failure to settle Kannaday’s claim. The Kansas Court of Appeals also held that

the settlement agreement was invalid because it was not supported by consideration.

Because the nonclaim statute barred Kannaday from collecting from Hoyt’s estate,

her promise to not execute judgment on the estate’s assets was illusory. The Kansas

Supreme Court denied review of the case. Following remand and a bench trial, the



                                          6
District Court of Wyandotte County granted judgment in favor of Kannaday and held

Hoyt to be 100% liable for damages of over $4 million, plus costs.

      In November 2012, Kannaday brought this garnishment action in the District

Court of Wyandotte County against GEICO, alleging among other things that GEICO

acted in bad faith and breached its duty to Hoyt’s estate by failing to settle

Kannaday’s claim within policy limits. GEICO removed the case to federal district

court on the basis of diversity jurisdiction.      The district court denied GEICO’s

motion for summary judgment, explaining that although the nonclaim statute

protected the estate’s assets, the estate still suffered damage through the adverse

judgment. The district court relied on the judgment rule, which states that an action

against an insurance company will lie regardless of whether the insured has paid or

can pay the portion of the judgment in excess of the policy limits. Farmers Ins.

Exch. v. Schropp, 567 P.2d 1359, 1369 (Kan. 1977).

      The case was transferred and assigned to a different district court judge for a

bench trial. After a three-day trial, the district court entered judgment for GEICO.

The district court concluded that because the estate had no assets and the nonclaim

statute precluded any claim on any assets that did exist, the estate’s interests were in

a practical sense identical to GEICO’s. Thus, the Fleeson firm did not have a conflict

of interest in representing both GEICO and the Hoyt estate, although Fleeson still

owed a duty to act in the estate’s best interests. The district court stated that Ball was

essentially a name to be sued and that Fleeson owed its duty to the estate, not to Ball;

nonetheless, it concluded that Fleeson’s communications with Ball were reasonable

                                            7
and adequate in light of the circumstances of the case. It concluded GEICO never

refused to settle the injured passengers’ claims but instead demonstrated a desire to

settle all claims for the “per accident” policy limits. Further, it held the interpleader

action was a reasonable and appropriate method for meeting GEICO’s obligations,

the offer of $25,000 to Gold was reasonable considering she was the only passenger

represented by counsel at the time GEICO made the offer, and GEICO appropriately

considered UIM coverage when making its offers.          Ultimately, the district court

concluded settlement was not possible because Kannaday was only interested in

creating a bad faith claim against GEICO. The district court stated GEICO acted in

good faith, reasonably, and without negligence in its investigation, communications,

negotiations, and settlement efforts.    Although GEICO was not error-free in its

actions, neither GEICO nor Fleeson harmed the estate by any breach of duty.

Further, the district court found for GEICO on an affirmative defense: Ball failed to

cooperate, which relieved GEICO of its contractual obligations.

      Kannaday appeals, arguing GEICO had a conflict of interest with the Hoyt estate

and breached its duty of good faith and reasonable care. She contends the district court

failed to apply the judgment rule and erroneously concluded that Ball breached the policy

by failing to cooperate. She also requests that we certify two questions to the Kansas

Supreme Court regarding the conflict of interest and judgment rule. GEICO asks us to




                                           8
affirm the district court’s findings of fact and conclusions of law and, through a cross

appeal, argues the district court should have awarded it summary judgment.2

                                              II.

       In an appeal from a bench trial, this court must view the evidence presented to the

trial court in the light most favorable to the prevailing party. Raydon Exploration, Inc. v.

Ladd, 902 F.2d 1496, 1499 (10th Cir. 1990). “[W]e review the district court’s factual

findings for clear error and its legal conclusions de novo.” Keys Youth Servs., Inc. v. City

of Olathe, 248 F.3d 1267, 1274 (10th Cir. 2001). The district court’s factual findings are

clearly erroneous only if they are “without factual support in the record, or if the


       2
         GEICO explained at oral argument that it filed the cross appeal to clear up a
potential discrepancy between the initial district court judge’s opinion on summary
judgment and the subsequent district court judge’s decision after bench trial, but it
acknowledged the cross appeal would not alter the relief it received under the
judgment. Instead of filing a cross-appeal, GEICO should have simply raised its
challenge to the district court’s denial of summary judgment in its Response Brief as
an alternative ground for affirmance. A cross-appeal is necessary when a litigant
seeks to enlarge his rights or lessen the rights of his adversary under the original
judgment, but a cross-appeal is not necessary when, as here, the appellee seeks to
defend that judgment on any ground supported by the record.                        Compare
Breakthrough Mgmt. Grp., Inc. v. Chukchansi Gold Casino & Resort, 629 F.3d 1173,
1198 (10th Cir. 2010) (“A cross-appeal ordinarily would be appropriate where a
litigant seeks to enlarge his rights conferred by the original judgment or to lessen the
rights of his adversary under that judgment.”), with Wyoming v. U.S. Dep’t of Agric.,
661 F.3d 1209, 1254 n.33 (10th Cir. 2011) (“[A]n appellee is generally permitted to
defend the judgment won below on any ground supported by the record without filing
a cross appeal.” (internal quotation marks omitted)). Without taking a cross-appeal,
GEICO could “‘urge in support of a decree any matter appearing before the record,
although his argument may involve an attack upon the reasoning of the lower court.’”
Jennings v. Stephens, 135 S. Ct. 793, 798 (2015) (quoting United States v. Am. Ry. Exp.
Co., 265 U.S. 425, 435 (1924)). We will therefore treat GEICO’s arguments on the
cross-appeal as an alternative basis for affirming the district court’s judgment in its favor.
See United Fire & Cas. Co. v. Boulder Plaza Residential, LLC, 633 F.3d 951, 958 (10th
Cir. 2011).
                                              9
appellate court, after reviewing all the evidence, is left with the definite and firm

conviction that a mistake has been made. If there are two permissible views of the

evidence, the fact-finder’s choice between them cannot be clearly erroneous.” Curtis v.

Okla. City Pub. Sch. Bd. of Educ., 147 F.3d 1200, 1217 (10th Cir. 1998) (citation and

internal quotation marks omitted).

       The federal court’s task in cases arising under diversity jurisdiction is “simply to

‘ascertain and apply the state law.’” Wade v. EMCASCO Ins. Co., 483 F.3d 657, 665

(10th Cir. 2007) (quoting Wankier v. Crown Equip. Corp., 353 F.3d 862, 866 (10th Cir.

2003)). “[T]he Court’s task is to predict what the state supreme court would do.” Id. at

666. We review de novo the district court’s interpretation of state law. Id.

       Under established Kansas law, an insurance company’s negligent or bad faith

rejection of an injured party’s offer to settle within the policy’s limits is a breach of its

contract with the insured and gives rise to liability for any judgment in excess of the

policy limits. See Wade, 483 F.3d at 660 (citing Bollinger v. Nuss, 449 P.2d 502, 508

(Kan. 1969)). The Kansas Supreme Court has described the insurer’s duty to conduct

itself both in good faith and without negligence, but stated that the “two rules have

tended to merge,” and emphasized that the ultimate question of liability turns on

various factors present in the particular case. Bollinger, 449 P.2d at 511–12. Those

factors include:

        (1) the strength of the injured claimant’s case on the issues of liability
       and damages; (2) attempts by the insurer to induce the insured to
       contribute to a settlement; (3) failure of the insurer to properly
       investigate the circumstances so as to ascertain the evidence against the
       insured; (4) the insurer’s rejection of advice of its own attorney or

                                             10
       agent; (5) failure of the insurer to inform the insured of a compromise
       offer; (6) the amount of financial risk to which each party is exposed in
       the event of a refusal to settle; (7) the fault of the insured in inducing
       the insurer’s rejection of the compromise offer by misleading it as to the
       facts; and (8) any other factors tending to establish or negate bad faith
       on the part of the insurer.

Id. at 512. Whether any of these factors has been established is a question of fact and the

district court’s finding will not be set aside unless clearly erroneous. Ins. Co. of N. Am. v.

Med. Protective Co., 768 F.2d 315, 321 (10th Cir. 1985).

       A. Conflict of Interest

       Although the district court concluded after the bench trial that no conflict of

interest prevented the Fleeson firm from representing both GEICO and Hoyt’s estate,

Kansas law describes an inherent conflict of interest arising between the insured and

insurer when a claim for damages exceeds policy limits. Coleman v. Holecek, 542

F.2d 532, 537 (10th Cir. 1976) (“The duty to consider the interests of the insured

arises . . . because there has been a claim for damages in excess of the policy limits);

see also Williams v. Am. Family Mut. Ins. Co., 6 F. App’x 756, 760 (10th Cir. 2001)

(“The Kansas Supreme Court has recognized an inherent conflict of interest when an

insurer is faced with a claim against its insured for an amount in excess of the policy

limits.”). This conflict of interest does not necessarily prohibit the insurer’s attorney

from representing both the insured and the insurer. Rather, the conflict requires the

insurer to “give at least equal consideration to the interests of the insured” and to

“conduct itself with that degree of care which would be used by an ordinarily prudent

person in the management of his own business, with no policy limits applicable to the


                                             11
claim.” Bollinger, 449 P.2d at 511. The insurer must evaluate the excess claim

“without looking to the policy limits and as though it alone would be responsible for

the payment of any judgment rendered on the claim.” Coleman v. Holecek, 542 F.2d

532, 537 (10th Cir. 1976). Although the district court incorrectly concluded there

was no conflict between GEICO and Hoyt’s estate, it nonetheless evaluated whether

GEICO acted in bad faith under the Bollinger factors, which is the same analysis that

would be required upon a finding of a conflict. The real question is thus whether the

record supports the district court’s factual conclusion that GEICO acted in good faith

and without negligence.

          B. Good Faith and Reasonable Care

      The district court concluded after a bench trial that GEICO did not act in bad

faith in handling the case. After reading the voluminous record, we conclude that

sufficient evidence supports the district court’s conclusion, even though there is some

evidence that points to GEICO’s negligence or bad faith in handling the claims. The

district court reached its conclusion after weighing certain Bollinger factors more

heavily than others and considering other factors that negated bad faith, which was

appropriate for it to do as the fact-finder. Because the evidence does not leave us with

the definite and firm conviction that a mistake has been made, see Curtis v. Okla. City

Pub. Sch. Bd. of Educ., 147 F.3d at 1217, we will affirm the district court’s judgment for

GEICO.

      Some factors admittedly weigh in Kannaday’s favor. Importantly, Kannaday’s

case for liability and damages was strong. GEICO knew early in the case that all

                                           12
three passengers were seriously injured and policy limits would not adequately

compensate them for their claims. It learned on August 5, 2005, that Hoyt was

primarily at fault for the accident. The high damages and strong case of liability

against Hoyt should have caused GEICO to attempt to settle within policy limits if

possible. Additionally, GEICO failed to inform Hoyt’s father or the other injured

claimants about Gold’s proposal to split the policy proceeds equally among the

passengers. GEICO ignored the suggestion and instead based its settlement offer on

an incorrect assumption about Kansas UIM law, and thus offered Gold more than she

requested. It failed to inform Hoyt’s father about Kannaday’s two offers to settle for

$25,000. And it interpleaded the remaining funds after Gold accepted its offer, even

though the interpleader did not protect Hoyt’s estate from a judgment against it.

      The district court noted that GEICO was not error free in how it handled the

claims against Hoyt’s estate, but it concluded overall the errors were relatively

minor, largely identifiable through hindsight, and did not have a real or tangible

impact on the insured. For example, the district court dismissed GEICO’s failure to

respond to Gold’s offer to split the proceeds equally by noting that no evidence

suggested Kannaday would have accepted a third of the proceeds. Twice, she made a

demand for half the policy limits. While the interpleader was ongoing, she failed to

respond to Wesley Medical Center’s offer to accept $6,000 in full and complete

satisfaction for her hospital bills over $150,000, which would have left $19,000 in the

interpleader for her since only she and Wesley Medical Center had filed answers.



                                          13
      Regarding GEICO’s misunderstanding of UIM coverage in Kansas and

incorrect conclusion that only Gold lacked UIM coverage, the district court

concluded the mistake was honest and not unreasonable. GEICO’s offer attempting

to maximize each injured passenger’s recovery was not in itself bad faith; although

GEICO’s duty runs to its insured rather than the claimants, GEICO presented

evidence at the bench trial that an insurance company’s attempts to maximize a

claimant’s recovery is a strategy to satisfy the claimants, which decreases the risk for

lawsuits against the insured. Although GEICO interpleaded the remaining funds

rather than settle with Kannaday for half the policy limit, the Kansas Supreme Court

has indicated that an insurance company has wide discretion in settling multiple

claims.   In Farmers Insurance Exchange v. Schropp, the Kansas Supreme Court

described several of an insurer’s potential alternatives:

      Farmers could well have notified all of the potential claimants involved
      that the value of the claims would doubtless exceed policy limits, and
      invite them or their attorneys to participate jointly in efforts to reach
      agreement as to the disposition of the available funds. Alternatively,
      Farmers could have attempted to settle claims within the policy limits as
      they were presented. Or, as a third alternative, Farmers could have
      promptly and in good faith commenced an interpleader action, and paid
      its policy limits into court.

Farmers Ins. Exchange v. Schropp, 567 P.2d 1359, 1367 (Kan. 1977). Kannaday is

also correct that GEICO could have exhausted its policy proceeds by accepting

Kannaday’s offer of $25,000. See Castoreno v. W. Indem. Co., 515 P.2d 789, 795

(Kan. 1973) (“[A] liability insurer may in good faith settle part of multiple claims

arising from the negligence of its insured even though such settlements deplete or


                                           14
exhaust the policy limits of liability so that the remaining claimants have little or no

recourse against the insurer.”). We could not, however, identify any time where the

Kansas Supreme Court has required an insurance company to settle with claimants

on a first-come, first-serve basis, or to follow any set distribution method.

      Kannaday further argues that Roarick and Brantley were inexperienced, they

failed to follow GEICO policy, and GEICO failed to properly supervise them to

correct their mistakes. Again, the record contains evidence to support the district

court’s conclusion that overall these errors were minor and did not have a tangible

effect on the insured. For example, Roarick’s failure to record Gold’s initial offer in

the GEICO claim activity log technically violated GEICO policy, but even had he

recorded it and made the offer, evidence supports the district court’s finding that

Kannaday would not have accepted it.            Brantley did not understand that the

interpleader action would not release the insured from liability, but her

misunderstanding of a method that the Kansas Supreme Court has suggested as a

potential alternative for insurance companies to fulfill their obligation to act in good

faith does not demonstrate bad faith.

      The remaining factors on which the district court relied further negate a

finding of bad faith. GEICO promptly and thoroughly investigated the accident and,

after discovering Hoyt was primarily at fault and the passengers were seriously

injured, never sought to pay less than the policy limits to the three passengers

collectively. GEICO followed its attorney’s advice and sought to distribute the full

policy proceeds through an interpleader action.

                                           15
      One factor that the district court apparently relied on heavily was the financial

risk to both parties. Kannaday first demanded $25,000 on January 19, 2006, after the

nonclaim statute barred recovery from the estate’s assets as of January 14, 2006.

Although Kannaday contends that the district court’s reliance on the nonclaim

statute’s protection after the bench trial ignored the initial district court judge’s

summary judgment conclusion and the Kansas Court of Appeals’ determination, we

disagree. The Kansas Court of Appeals held that neither the nonclaim statute nor the

injunction from the interpleader barred Kannaday from pursuing her negligence

claim, but confirmed she could not collect from Hoyt’s estate. The only money at

risk was GEICO’s in a subsequent bad-faith case if she prevailed. Although we do

not have to directly review the initial district court judge’s application of the

judgment rule in summary judgment, we can assume the Kansas Supreme Court

would apply the judgment rule in this case and find that Hoyt’s estate was damaged

when there was an excess judgment against it. But again, the question of whether the

estate was damaged is different than the question of whether it faced any financial

risk. We do not see any support for requiring a court to ignore the effect of the

nonclaim statute during a bad-faith action. Indeed, the Bollinger factor asks about

the financial risk to the parties, not the risk of a judgment alone. This does not run

afoul of the judgment rule, even assuming it applies. We think the district court after

the bench trial correctly considered the nonclaim statute’s effect on the financial risk

Hoyt’s estate and GEICO faced during the settlement negotiation period with

Kannaday. The district court concluded, and we agree, that the nonclaim statute

                                          16
protected the estate assets after January 14, 2006, and thus any financial risk for

failing to settle after that time would affect GEICO, not Hoyt. Before January 14,

2006, the estate did face financial risk if GEICO failed to settle, but the evidence

does not require a finding of bad faith during that time. The only party to make a

demand prior to January 14, 2006, was Gold. While the estate was at risk, GEICO

investigated the accident and the injured passengers’ damages and attempted to settle

with them to protect the estate. Kannaday did not respond to the offer to settle until

after the nonclaim statute passed. GEICO actively sought to settle the claims before

January 14, 2006, and the failure to settle was not because of its lack of effort, but

Kannaday’s.

                                            III.

      The district court concluded after a bench trial that the Bollinger factors, when

applied collectively, do not support Kannaday’s claims of negligence or bad faith.

Evidence appears in the record to support this conclusion, and our review of the

voluminous record does not leave us with a definite and firm conviction that the

district court made a mistake. We affirm the district court’s entry of judgment in

GEICO’s favor. This conclusion resolves the appeal and we do not need to reach the

remaining issues that the parties raised.     We deny Kannaday’s motion to certify

questions of state law to the Kansas Supreme Court.




                                         17
AFFIRMED.

             Entered for the Court


             Bobby R. Baldock
             Circuit Judge




            18
