                                                                           FILED
                           NOT FOR PUBLICATION                              APR 08 2010

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



SOVEREIGN GENERAL INSURANCE                   No. 08-17422
SERVICES, INC.,
                                              D.C. No. 2:05-cv-00312-MCE-DAD
             Plaintiff - Appellant,
 and
                                              MEMORANDUM *
MARTIN F. SULLIVAN, Sr.; GLORIA
SULLIVAN,

             Counter-claimants,
  v.

SCOTTSDALE INSURANCE
COMPANY; NATIONAL CASUALTY
COMPANY; SCOTTSDALE
INDEMNITY COMPANY; WESTERN
HERITAGE INSURANCE COMPANY;
R. MAX WILLIAMSON; JOSEPH A.
LUGHES,

             Defendants - Appellees.


SOVEREIGN GENERAL INSURANCE                   No. 08-17424
SERVICES, INC.,
                                              D.C. No. 2:05-cv-00312-MCE-DAD
             Plaintiff,
 and



        *
          This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
MARTIN F. SULLIVAN, Sr.; GLORIA
SULLIVAN,

       Counter-claimants - Appellants,

 v.

SCOTTSDALE INSURANCE
COMPANY; NATIONAL CASUALTY
COMPANY; SCOTTSDALE
INDEMNITY COMPANY; WESTERN
HERITAGE INSURANCE COMPANY;
R. MAX WILLIAMSON; JOSEPH A.
LUGHES,

          Defendants - Appellees.


WESTERN HERITAGE INSURANCE               No. 09-15246
COMPANY, an Arizona corporation,
                                         D.C. Nos. 2:05-cv-00312-MCE-DAD
          Plaintiff - Appellant,                   2:05-cv-01389-MCE-DAD
 v.

SOVEREIGN GENERAL INSURANCE
SERVICES, INC., a California
corporation; MARTIN F. SULLIVAN,
Sr.; GLORIA SULLIVAN husband and
wife, guarantors,

          Defendants - Appellees.

                Appeal from the United States District Court
                   for the Eastern District of California
               Morrison C. England, District Judge, Presiding




                                     2
                      Argued and Submitted January 14, 2010
                            San Francisco, California

Before: KOZINSKI, Chief Judge, WALLACE and CLIFTON, Circuit Judges.

      Sovereign General Insurance Services, Inc. (Sovereign) appeals from the

district court’s summary judgment for Western Heritage Insurance Company

(Western) on Sovereign’s claims against Western. Western cross-appeals from the

district court’s denial of pre-judgment interest on the damages awarded to Western

by the jury on Western’s claims against Sovereign. The district court had

jurisdiction pursuant to 28 U.S.C. § 1332 due to complete diversity of the parties,

and we have jurisdiction over the final judgment of the district court under 28

U.S.C. § 1291. We review the district court’s summary judgment de novo.

Universal Health Servs., Inc. v. Thompson, 363 F.3d 1013, 1019 (9th Cir. 2004).

We review the district court’s denial of pre-judgment interest under state law for

abuse of discretion. Champion Produce, Inc. v. Ruby Robinson Co., Inc., 342 F.3d

1016, 1020 (9th Cir. 2003). We affirm summary judgment on Sovereign’s claims,

and reverse the district court’s denial of pre-judgment interest claimed by Western.

                                          I.

      Sovereign appeals from the district court’s summary judgment on its

contractual claims for post-termination contingent commissions. However,



                                          3
Sovereign does not dispute that, under the terms of the Agency Agreement,

Western did not owe Sovereign any post-termination contingent commissions until

all claims and losses under the policies in effect at termination were resolved. It is

also undisputed that all such claims and losses had not been resolved as of the date

of the summary judgment. The district court therefore properly determined that

because outstanding liabilities under those policies had not been resolved, no post-

termination contingent commissions were yet due.

      Sovereign argues that the district court’s summary judgment precludes

Sovereign from ever recovering the post-termination contingent commissions. But

Sovereign simply has no viable claim for breach of contract until the commissions

become due, and that will not happen until all of the open claims and other

liabilities on those policies are resolved. Nothing in the district court’s summary

judgment for Western would have a preclusive effect on Sovereign’s ability to

recover commissions if, at some future time, if they become due and Western

refuses to pay them.

      Sovereign argues that there was a contingent commission already due and

owing to Sovereign prior to the Agency Agreement’s termination, and that amount

should have been applied to offset the amounts the jury awarded to Western.

Again, however, no pre-termination contingent commissions were yet due under


                                           4
the terms of the contract. The district court correctly interpreted the provisions of

the Agency Agreement to mean that Sovereign “cannot claim entitlement to

interim commission payments if it owed funds, including premium payments, to

Western Heritage.” The district court then held that, because it was undisputed

that as of June 30, 2004 Sovereign had not paid Western all of the premiums it

owed, Western did not breach the contract by not paying the commission.

      Sovereign argues that there was a dispute as to the amount of premium due,

and that dispute should not have been dealt with on summary judgment. However,

the district court did not determine the exact amounts of premium owed or

contingent commission due. Rather, it concluded that, viewing the evidence in the

light most favorable to Sovereign, the most that Western owed Sovereign on June

30, 2004 in pre-termination contingent commissions was $62,262, and the

minimum that Sovereign owed Western in unpaid premiums was $180,000.

Sovereign argues that the amount of commission due was more than $62,262

because the parties had allegedly modified the formula for calculating those

commissions, but Sovereign has waived this argument on appeal by failing to raise

it in its opening brief. Indep. Towers of Wash. v. Washington, 350 F.3d 925, 929

(9th Cir. 2003). The district court did not err in concluding that the undisputed

facts showed that Sovereign owed more to Western in unpaid premiums than


                                           5
Western would have owed to Sovereign in commissions, and thus, Western did not

breach the contract by failing to pay Sovereign any pre-termination contingent

commissions.

      As with the post-termination contingent commissions, Sovereign argues that

the district court’s order has the effect of causing Sovereign to “forfeit” its right to

receive contingent commissions it allegedly earned prior to termination of the

Agency Agreement. But the issue on summary judgment was not whether

Sovereign might someday have a right to those commissions. Rather, the district

court adjudicated whether, on the facts before it, Western’s failure to pay those

amounts constituted a breach of contract. The district court properly held that

Western did not owe any payment to Sovereign as of June 30, 2004, and thus there

had been no breach. This holding does not involve a situation that might occur at a

future time.

      Sovereign also argues it has claims against Western for interference with

prospective economic advantage, accounting, and fraud. Those claims are not

specifically discussed in Sovereign’s opening brief, and we therefore deem them

abandoned on appeal. Similarly, Sovereign’s opening brief does not make any

argument that Western’s termination of the Agency Agreement was, in and of

itself, wrongful, and thus any such argument is waived on appeal. Sovereign has


                                            6
also waived its appeal as to claims regarding “renewal rights.” Sovereign’s

opening brief mentions renewal rights only in passing, without citing facts in the

record and without providing any specific legal argument regarding the contractual

terms related to renewal rights or the provisions of the California statute to which it

alludes.

                                             II.

       We next turn to the cross-appeal based on the district court’s denial of

prejudgment interest for Western. Under Arizona law, “prejudgment interest on a

liquidated claim is a matter of right. . . . [and] a claim is liquidated if the plaintiffs

provide a basis for precisely calculating the amounts claimed.” Gemstar Ltd. v.

Ernst & Young, 917 P.2d 222, 237 (Ariz. 1996). A claim is not unliquidated

“merely because the jury must find certain facts in favor of the plaintiff in order to

determine the amount of damages. All that is necessary is that the evidence furnish

data which, if believed, makes it possible to compute the amount with exactness.”

Trus Joist Corp. v. Safeco Ins. Co. of Am., 735 P.2d 125, 139 (Ariz. Ct. App.

1986). An unliquidated claim is one where an exact amount

       cannot be definitely fixed from the facts proved, disputed or
       undisputed, but must in the last analysis depend upon the opinion or
       discretion of the judge or jury as to whether a larger or a smaller
       amount should be allowed. . . . [T]he exercise of “opinion or



                                             7
      discretion” that renders a claim unliquidated refers to the manner in
      which damages are calculated.

John C. Lincoln Hosp. & Health Corp. v. Maricopa County, 96 P.3d 530, 542

(Ariz. Ct. App. 2004).

      Here, the damages were calculated without resort to “opinion or discretion”;

they were based on precise accounting records of premiums Sovereign owed

Western and when each of those premiums should have been paid. The jury award

is properly viewed as the total of a series of line items, where each individual

unpaid premium was a definite amount owed on a definite date. Sovereign argues

that, under Arizona law, damages are not liquidated if they can only be determined

via expert opinion. However, Western’s expert did not determine the amount of

damages; he only verified the accuracy of calculations performed by Western’s

accounting staff and systems. Moreover, the mere fact that the amounts owed by

Sovereign fluctuated during the pendency of the litigation does not render

Sovereign’s debts unliquidated. See Homes & Son Constr. Co. v. Bolo Corp., 526

P.2d 1258, 1262 (Ariz. Ct. App. 1974). The district court abused its discretion in

denying Western pre-judgment interest.




                                           8
      We therefore AFFIRM summary judgment as to all of Sovereign’s claims,

and REVERSE and REMAND the denial of pre-judgment interest for Western.

Sovereign is to bear Western’s costs on appeal.




                                         9
