                    UNITED STATES COURT OF APPEALS

                           FOR THE TENTH CIRCUIT



 JESSICA M. TAYLOR, individually
 and as Personal Representative of the
 Estate of DAVID G. TAYLOR,
 Deceased,

             Plaintiff-Appellee,

 v.                                                    No. 95-5207

 STATE FARM FIRE AND
 CASUALTY COMPANY,

             Defendant-Appellant.


                                     ORDER
                              Filed August 18, 1999


Before BALDOCK , EBEL , and LUCERO , Circuit Judges.



      Defendant-appellant State Farm petitions for rehearing of our June 11,

1999 order and judgment, in which the court affirmed the district court’s award

of prejudgment interest and attorney’s fees based on the Oklahoma Supreme

Court’s answer to questions we previously certified to that court.

      Upon consideration of the petition for rehearing and appellee’s response,

the court concludes that the petition should be granted. An amended order and

judgment is attached.
      Entered for the Court,
      Patrick Fisher, Clerk of Court

       By: Keith Nelson
           Deputy Clerk




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                                                                        F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                         AUG 18 1999
                            FOR THE TENTH CIRCUIT
                                                                     PATRICK FISHER
                                                                              Clerk

    JESSICA M. TAYLOR, individually
    and as Personal Representative of the
    Estate of DAVID G. TAYLOR,
    Deceased,

                Plaintiff-Appellee,

    v.                                                   No. 95-5207
                                                   (D.C. No. 94-C-253-BU)
    STATE FARM FIRE AND                                  (N.D. Okla.)
    CASUALTY COMPANY,

                Defendant-Appellant.




                             ORDER AND JUDGMENT          *




Before BALDOCK , EBEL , and LUCERO , Circuit Judges.


         This is an appeal from an award of $16,608.14 in prejudgment interest and

$126,000.00 in costs and attorney’s fees under Okla. Stat. Ann. tit. 36, § 3629(B)

against defendant State Farm in favor of plaintiffs David G. and Jessica M.

Taylor, who sued State Farm for failing to settle a claim under their homeowner’s


*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The 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.
insurance policy for hail damage to their house.     1
                                                         State Farm contended that:

(1) under Brashier v. Farmers Insurance Co.        , 925 P.2d 20 (Okla. 1996), § 3629(B)

did not support the award of either prejudgment interest or costs and attorney’s

fees because the Taylors prevailed only on their claim of bad-faith refusal to

settle a property loss and not on their contract claim (which was held to be

time-barred); and (2) the Taylors expressly disclaimed their right to attorney’s

fees based on the common law of Oklahoma. The district court relied primarily

on Thompson v. Shelter Mutual Insurance       , 875 F.2d 1460, 1464 (10th Cir. 1989),

an earlier case in which this court upheld an award of costs and attorney’s fees

under § 3629(B) to plaintiffs who had prevailed on claims of both breach of

contract and bad faith.

       Because the parties disagreed as to whether        Thompson was dispositive in

this case in light of   Brashier , we certified the following questions to the

Oklahoma Supreme Court:

       (1) To what extent, if any, does Brashier v. Farmers Insurance Co. ,
       925 P.2d 20 (Okla. 1996), preclude trial court allowance of attorney
       fees and prejudgment interest under Okla. Stat. Ann. tit. 36,



1
       Mr. Taylor died on January 26, 1998. Mrs. Taylor was substituted for him
by order filed on February 27, 1998. 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. 34.1.9. The case is therefore ordered submitted without oral argument.


                                            -2-
       § 3629(B) in insurance bad faith cases in which the insured does not
       also recover on a contract claim?

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

       In response to the first question, the Oklahoma Supreme Court answered

that Brashier does not preclude a trial court from awarding attorney’s fees and

prejudgment interest under Okla. Stat. Ann. tit. 36, § 3629(B) in insurance bad

faith cases in which the insured does not also recover on a contract claim.         See

Taylor v. State Farm Fire & Cas. Co.       , No. 89-677, ___ P. 2d ___, 1999 WL

318496, at *1 (Okla. May 18, 1999). The court held that § 3629(B) authorizes

awards of attorney’s fees and prejudgment interest, whether the theory of liability

is based in contract or tort, “so long as the ‘core element’ of the damages        sought

and awarded is composed of the insured loss.”         Id.

       In response to the second question, the Oklahoma Supreme Court answered

that Brashier does not bar an attorney’s fee award under § 3629(B) in tort claims

for bad-faith refusal to settle a property loss.     See id. The court held that

prejudgment interest is also allowed under § 3629(B) “        whenever (a) the insured

is the prevailing party and (b) the damages for the insured loss were capable of

ascertainment by reference to well-established market values.”         Id.




                                               -3-
      Applying the Oklahoma Supreme Court’s answer to this appeal, we hold

that § 3629(B) properly supports the district court’s award of attorney’s fees and

costs to plaintiffs, but that the case must be remanded for additional proceedings

related to the award of prejudgment interest, namely, to determine whether the

insured property loss was ascertainable by reference to well-established market

values and, if so, the amount thereof upon which prejudgment interest is to be

awarded. The district court’s order is therefore AFFIRMED in part and

REVERSED in part, and REMANDED for additional proceedings in accordance

with this order and judgment.




                                                    Entered for the Court




                                                    Carlos F. Lucero
                                                    Circuit Judge




                                         -4-
                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                         JUN 11 1999
                         FOR THE TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                              Clerk

 JESSICA M. TAYLOR, individually
 and as Personal Representative of the
 Estate of DAVID G. TAYLOR,
 Deceased,
                                                        No. 95-5207
             Plaintiff-Appellee,                  (D.C. No. 94-C-253-BU)
                                                        (N.D. Okla.)
 v.

 STATE FARM FIRE AND
 CASUALTY COMPANY,

             Defendant-Appellant.


                          ORDER AND JUDGMENT           **




Before BALDOCK , EBEL , and LUCERO , Circuit Judges.



      This is an appeal from an award of $16,608.14 in prejudgment interest and

$126,000.00 in costs and attorney’s fees under Okla. Stat. Ann. tit. 36, § 3629(B)

against defendant State Farm in favor of plaintiffs David G. and Jessica M.

Taylor, who sued State Farm for failing to settle a claim under their homeowner’s



**
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The 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.
insurance policy for hail damage to their house.     1
                                                         State Farm contended that:

(1) under Brashier v. Farmers Ins. Co.    , 925 P.2d 20 (Okla. 1996), § 3629(B) did

not support the award of either prejudgment interest or costs and attorney’s fees

because the Taylors prevailed only on their claim of bad faith refusal to settle a

property loss and not on their contract claim (which was held to be time-barred);

and (2) the Taylors expressly disclaimed their right to attorney’s fees based on the

common law of Oklahoma. The district court relied primarily on           Thompson v.

Shelter Mutual Insurance , 875 F.2d 1460, 1464 (10th Cir. 1989), an earlier case in

which this court upheld an award of costs and attorney’s fees under § 3629(B) to

plaintiffs who had prevailed on claims of both breach of contract and bad faith.

       Because the parties disagreed as to whether        Thompson was dispositive in

this case in light of   Brashier , we certified the following questions to the

Oklahoma Supreme Court:

       (1) To what extent, if any, does Brashier v. Farmers Insurance Co. ,
       925 P.2d 20 (Okla. 1996), preclude trial court allowance of attorney
       fees and prejudgment interest under Okla. Stat. Ann. tit. 36,
       § 3629(B) in insurance bad faith cases in which the insured does not
       also recover on a contract claim?




1
       Mr. Taylor died on January 26, 1998. Mrs. Taylor was substituted for him
by order filed on February 27, 1998. 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) and 10th
Cir. R. 34.1.9. The case is therefore ordered submitted without oral argument.

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

       In response to the first question, the Oklahoma Supreme Court answered

that Brashier does not preclude a trial court from awarding attorney’s fees and

prejudgment interest under Okla. Stat. Ann. tit. 36, § 3629(B) in insurance bad

faith cases in which the insured does not also recover on a contract claim.         See

Taylor v. State Farm Fire & Cas. Co.       , No. 89-677, ___ P. 2d ___, 1999 WL

318496, at *1 (Okla. May 18, 1999). The court held that § 3629(B) authorizes

awards of attorney’s fees and prejudgment interest, whether the theory of liability

is based in contract or tort, “so long as the ‘core element’ of the damages        sought

and awarded is composed of the insured loss.”         Id. That is the case here.

       In response to the second question, the Oklahoma Supreme Court answered

that Brashier does not bar an attorney’s fee award under § 3629(B) in tort claims

for bad-faith refusal to settle a property loss.     See id. The court held that

prejudgment interest is also allowed under § 3629(B) “        whenever (a) the insured is

the prevailing party and (b) the damages for the insured loss were capable of

ascertainment by reference to well-established market values.”         Id. That is also

the case here.




                                               -3-
      Applying the Oklahoma Supreme Court’s answer to this appeal, we hold

that § 3629(B) properly supports the district court’s award of prejudgment interest

and costs and attorney’s fees to plaintiffs. The district court’s order is therefore

AFFIRMED.

                                                     Entered for the Court



                                                     Carlos F. Lucero
                                                     Circuit Judge




                                          -4-
