                                                                           F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                            NOV 10 2003
                                   TENTH CIRCUIT
                                                                       PATRICK FISHER
                                                                                   Clerk

 KENNETH McQUAY,

          Plaintiff-Appellee/
          Cross-Appellant,
 v.                                                  Nos. 02-5112/02-5124
 PENN-AMERICA INSURANCE                            (D.C. No. 01-CV-176-EA )
 COMPANY, a foreign insurer,                              (N.D. Okla.)

          Defendant-Appellant/
          Cross-Appellee.



                                ORDER AND JUDGMENT *


Before EBEL, BALDOCK, and KELLY, Circuit Judges.



      In August 2000, a fire destroyed a tavern located near Sperry, Oklahoma.

Plaintiff-insured filed a proof of loss for the proceeds of the insurance policy

covering the tavern. Defendant-insurer denied Plaintiff’s claim. Plaintiff filed

suit alleging breach of insurance contract and bad faith. The case proceeded to

trial and the jury returned a verdict in favor of (1) Plaintiff on the breach of


      *
        This order and judgment is not binding precedent, except under the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.
contract claim, and (2) Defendant on the bad faith claim. Both Plaintiff and

Defendant appeal the district court’s denial of their respective post-trial motions.

We have jurisdiction under 28 U.S.C. § 1291, and affirm.

                                          I.

      KC’s Steakhouse, LLC (“KC’s LLC”) was a restaurant-tavern located near

Sperry, Oklahoma. Plaintiff Kenneth McQuay (“McQuay”), his brother Larry

McQuay, and wife Catherine Sandridge, each owned a one-third interest in KC’s

LLC. On March 5, 1999, KC’s LLC obtained the tavern, its contents, and the

property it was located on (collectively “tavern”) by general warranty deed. That

same day, KC’s LLC, McQuay and his brother obtained a mortgage on the tavern

from Exchange Bank of Skiatook (“Exchange Bank”). McQuay personally paid

all the mortgage payments.

      In February 2000, McQuay sought insurance for the tavern from Defendant

Penn-America Insurance Company (“Penn-America”). McQuay informed Penn-

America’s insurance agent, Roberta Amos, that KC’s LLC was the owner of the

tavern. McQuay requested that Penn-America list KC’s LLC as the insured on the

tavern’s insurance policy.

      Thereafter, Penn-America issued a commercial property insurance policy

(“Policy”) that mistakenly provided “Kenneth McQuay” as the only “named

insured.” The Policy provided: (1) $80,000 in coverage on the building in which


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KC’s LLC was located; (2) $30,000 in coverage for personal business property;

and (3) up to 25% of the loss sustained for debris removal. Under the Policy,

destruction of the tavern by fire was a “covered cause of loss.”

      On August 22, 2000, a fire destroyed the tavern. After the fire, McQuay

hired Druce Wood, a public insurance adjuster, to assist him in preparing a “proof

of loss” form to submit to Penn-America. Wood conducted an investigation and

determined that the fire caused $99,058 in damages for loss of the building and

$32,128 in damages for loss of its contents. On October 5, 2000, McQuay

submitted a proof of loss form to Penn-America for $115,000. The proof of loss

form only listed McQuay and Exchange Bank as having an interest in the tavern.

After Penn-America rejected McQuay’s proof of loss form and amended proof of

loss form for failing to identify all the interest holders in the tavern, McQuay

filed suit in state court alleging breach of insurance contract and bad faith on the

part of Penn-America. Penn-America removed the action to federal district court

on the basis of diversity jurisdiction.

      After a four day trial, the jury returned a verdict in favor of (1) Penn-

America on McQuay’s bad faith claim, and (2) McQuay on his breach of contract

claim. The jury awarded McQuay $115,000 in damages. The district court

entered judgment in accordance with the jury verdict and provided that McQuay




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should recover $115,000 plus post-judgment interest, as required by Oklahoma

law.

       On May 24, 2002, McQuay filed a motion to alter or amend the judgment.

See Fed. R. Civ. P. 59(e). In that motion, McQuay argued the district court erred

in failing to award prejudgment interest on the breach of contract damage award.

The district court denied that motion and McQuay appealed. On May 31, 2002,

Penn-America filed a motion for judgment as a matter of law, or in the alternative

a new trial. See Fed. R. Civ. P. 50. The district court denied that motion and

Penn-America appealed.

                                        II.

       On appeal, Penn-America challenges the jury verdict and the district court’s

entry of judgment in favor of McQuay on the breach of contract claim. Penn-

America submits that the jury verdict and judgment must be reversed because

McQuay was not the real party in interest. Alternatively, Penn-America asserts

that McQuay only had a one-third interest in the insured property and that

damages should be remitted accordingly. We review the denial of a motion for

judgment as a matter of law de novo applying the same legal standard as the

district court. Aquilino v. Univ. of Kan., 268 F.3d 930, 933 (10th Cir. 2001). “A

party is entitled to judgment as a matter of law ‘only if the evidence points but

one way and is susceptible to no reasonable inferences which may support the


                                          4
opposing party’s position.’” Id. (quoting Tyler v. RE/MAX Mountain States, Inc.,

232 F.3d 808, 812 (10th Cir. 2000)).

                                          A.

      In federal court, “[e]very action shall be prosecuted by the real party in

interest.” Fed. R. Civ. P. 17(a). “[T]he real party in interest is the one who,

under applicable substantive law, has the legal right to bring suit.” Fed. Deposit

Ins. Corp. v. Gelderman Inc., 975 F.2d 695, 698 (10th Cir. 1992). In a diversity

case, the forum state’s substantive law determines whether a party is the real party

in interest. United States Cellular Inv. Co. v. Southwestern Bell Mobile Sys.,

Inc., 124 F.3d 180, 182 (10th Cir. 1997). “The forum state’s procedural statute or

rule defining the real party in interest concept is not applicable, however, because

it only governs who may sue in the state courts; under Rule 17(a), the federal

courts are concerned only with that portion of state law from which the specific

right being sued upon stems.” K-B Trucking Co. v. Riss Inter’l Corp., 763 F.2d

1148, 1153 (10th Cir. 1985) (internal quotations and citation omitted).

      Under Oklahoma law, “[i]t is well settled that both the validity and

enforceability of an insurance contract depend upon the presence of an insurable

interest in the person who purchased the policy.” Snethen v. Okla. State Union of

the Farmers Educ. and Coop. Union of Am., 664 P.2d 377, 379 (Okla. 1983). The

Oklahoma Supreme Court has held that “there is an insurable interest in the


                                          5
property if the insured would gain some economic advantage by its continued

existence or would suffer some economic detriment in case of its loss or

destruction.” 1 Id. at 380. If an insurable interest exists, the insured has “a right

to enforce the [insurance] contract regardless of the property’s legal status.” Id.

(emphasis added). In sum, “[i]t is well settled that any person has an insurable

interest in property, by the existence of which he will gain an advantage, or by the

destruction of which he will suffer a loss, whether he has . . . any title in, or lien

upon, or possession of the property itself.” Harrison v. Fortlage, 161 U.S. 57, 65

(1896).

      Several cases establish that a “right of property is not an essential

ingredient of insurable interest; any limited or qualified interest, whether legal or

equitable, or any expectancy of advantage, is sufficient.” State Farm Fire and

Cas. Co. v. Suggs, 833 F.2d 883, 887 (10th Cir. 1987) (internal quotations and

citations omitted). For example, in Hartford Fire Ins. Co. v. Carter, 196 F.2d 992,

993-995 (10th Cir. 1952), we held the plaintiffs had an insurable interest under

Oklahoma law in a tavern destroyed by fire because the jury found plaintiffs were

the beneficial owners of the tavern. Similarly, in Conti v. Republic Underwriters



      1
        The Oklahoma Insurance Code defines “insurable interest” as “any actual,
lawful, and substantial economic interest in the safety or preservation of the
subject of the insurance free from loss, destruction, or pecuniary damage or
impairment.” 36 Okla. Stat. Ann. § 3605(B).

                                           6
Ins. Co., 782 P.2d 1357, 1358-60 (Okla. 1989), the Oklahoma Supreme Court held

that a plaintiff-insured had an insurable interest in a house he lived in that was

destroyed by fire. In Conti, the deed to the house was in the name of a third party

and that fact was never disclosed to the defendant-insurer. Id. at 1359. Rejecting

the defendant-insurer’s argument that plaintiff did not have an insurable interest

in the property, the court explained that “[i]t has long been recognized in

Oklahoma that an insurer may not escape its contractual obligation to one who has

equitable title, beneficial ownership and undisputed possession of property, even

though bare legal title rests in another.” Id. at 1360.

      In this case, McQuay had both legal and equitable interests in the tavern.

McQuay’s equitable interest consisted of a one-third ownership interest in KC’s

LLC by virtue of the limited liability operating agreement. 2 Further, McQuay’s

equitable interest consisted of his economic interest in the tavern’s continued

existence. McQuay had an interest in the tavern’s future because under the

limited liability operating agreement he was entitled to a pro rata share of the

cash the company generated. McQuay’s legal interest in the property consisted of

his status as a mortgagor of the tavern and his continued liability on the mortgage.



      2
        An equitable interest exists when a person holds an ownership interest in
a venture. Equity refers to the financial definition that an owner’s equity in a
business is equal to the business’s assets minus its liabilities. Black’s Law
Dictionary 374 (6th ed. 1991).

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See, e.g., Willis v. Nowata Land and Cattle Co., 789 P.2d 1282, 1284 (Okla.

1989) (noting that “the borrower retained an insurable interest in the mortgaged

premises at the time of the loss.”); Suggs, 833 F.2d at 887-88 (holding that co-

obligors on a note secured by a mobile home had an insurable interest in the

mobile home because they would suffer loss upon its destruction). In addition,

Oklahoma is a lien theory state. 42 Okla. Stat. Ann. § 10. As such, McQuay

retained “all the incidents of ownership” in the mortgaged property as mortgagor.

See Teachers Ins. & Annuity Ass’n of Am. v. Okla. Tower Assoc. Ltd. P’ship,

798 P.2d 618, 620 (Okla. 1990).

      McQuay also suffered economic loss as a result of the tavern’s destruction

because he had to obtain additional insurance to avoid defaulting on his mortgage.

The new insurance resulted in an increase of roughly $112 per month to his

mortgage payments. Therefore, McQuay had an insurable interest in the tavern

because he stood to gain an economic advantage in the tavern’s continued

existence and bore an economic loss in the tavern’s destruction. 3 Consequently,

McQuay had a right to enforce the insurance contract under Oklahoma law, and

hence, was a real party in interest for purposes of Rule 17(a).



      3
       We also agree with the Oklahoma Supreme Court’s rejection of Penn-
America’s argument that McQuay did not have an insurable interest solely
because bare legal title to the property was in the name of KC’s LLC. See Conti,
782 P.2d at 1360.

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                                         B.

      Alternatively, Penn-America argues McQuay’s insurable interest is limited

to his one-third interest in KC’s LLC. Penn-America submits that the “judgment

is excessive and should be reversed” because the jury did not follow the district

court’s instruction that “[i]n cases in which the value of property destroyed

exceeds an insured’s interest in the property, an insured may recover from the

insurance company only the value of his insurable interest, and cannot recover the

full value of the property.” The court also instructed the jury, however, that:

             The Plaintiff claims that the Defendant is not entitled to claim
      that he lacks an insurable interest or has only a limited insurable
      interest in the insured property because he disclosed the actual owner
      of the insured property to his insurance agent when procuring the
      insurance policy.
             Under Oklahoma law, a licensed insurance agent who solicits
      or negotiates an application for insurance is regarded as representing
      the insurance company and not the insured.
             As a result, disclosures made by an insured to an insurance
      agent as to the actual status of title to insured property are imputable
      to the insurance company.
             If you find that the Plaintiff disclosed the actual owner of the
      insured property to his insurance agent when procuring the insurance
      policy, that knowledge is imputed to the Defendant, and the
      Defendant is estopped from asserting that Plaintiff had no insurable
      interest or only a limited insurable interest.

(Aplt’s App. at 222) (emphasis added). Penn-America did not object to the

court’s “estoppel instruction” at trial. Although unclear, we construe Penn-

America’s argument as a challenge to the district court’s jury instructions.

                                          9
      The jury instructions must be considered as a whole. Reed v. Landstar

Ligon Inc., 314 F.3d 447, 454-55 (10th Cir. 2002). We review a jury instruction

for plain error when a party fails to object to the instruction at trial. Telecor

Comm. Inc. v. Southwestern Bell Tel. Co., 305 F.3d 1124, 1142 (10th Cir. 2002);

Fed. R. Civ. P. 51 (“No party may assign as error the giving or failure to give an

instruction unless that party objects thereto before the jury retires to consider its

verdict . . . .”). Under the plain error standard, we will affirm the instruction

unless it was patently erroneous and prejudicial. Unit Drilling Co. v. Enron Oil &

Gas Co., 108 F.3d 1186, 1190 (10th Cir. 1997).

      The district court’s jury instructions, as a whole, were neither patently

erroneous nor prejudicial. First, the court’s “estoppel instruction” was not

patently erroneous; to the contrary, the instruction provided a correct statement of

Oklahoma law. See Hartford Fire Ins. Co. v. Martin, 381 P.2d 877, 881 (Okla.

1963) (noting it is well established in Oklahoma “that where the agent of an

insurance company is given authority to take applications for the company’s

policies, knowledge of material facts, acquired by him in doing so, is imputed to

said company.”); McGehee v. Farmers Ins. Co., 734 F.2d 1422, 1424 (10th Cir.

1984) (holding defendant-insurer was estopped under Oklahoma law from

asserting the plaintiffs had no insurable interest when the insurance agent knew

plaintiffs were not the record owners of the insured property and nevertheless


                                           10
issued the policy). Second, Penn-America was not prejudiced by the court’s

“estoppel instruction” because the testimony of Penn-America’s insurance agent,

Amos, established that McQuay instructed her to name KC’s LLC as an insured

under the Policy. Accordingly, the district court properly denied Penn-America’s

motion for judgment as a matter of law or a new trial pursuant to Rule 50 because

the evidence supported McQuay’s position.

                                         III.

      McQuay cross-appeals the district court’s order denying his motion to

amend the judgment to include an award of prejudgment interest on the breach of

contract damage award. See Fed. R. Civ. P. 59(e). “Prejudgment interest on a

federal court’s judgment in a diversity case is a matter of state law.” Macsenti v.

Becker, 237 F.3d 1223, 1245 (10th Cir. 2001). We review a district court’s denial

of prejudgment interest under an abuse of discretion standard; however, any legal

interpretation or statutory analysis the district court performs in denying

prejudgment interest is reviewed de novo. See Driver Music Co. v. Commercial

Union Ins. Co., 94 F.3d 1428, 1433 (10th Cir. 1996).

                                         A.

      In Oklahoma, two statutory provisions govern an award or denial of

prejudgment interest in a breach of insurance contract case. First, Oklahoma’s

Insurance Code provides that “[i]f the insured is the prevailing party, the court in


                                          11
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.” 36 Okla. Stat. Ann. § 3629(B) (emphasis

added). Second, Oklahoma’s general prejudgment interest statute provides that

“[a]ny 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 him upon

a particular day, is entitled also to recover interest thereon . . . .” 23 Okla. Stat.

Ann. § 6.

      In Taylor v. State Farm Fire & Cas. Co., 981 P.2d 1253, 1261 (Okla. 1999),

the Oklahoma Supreme Court construed 36 Okla. Stat. Ann. § 3629(B) and 23

Okla. Stat. Ann. § 6 in pari materia. The court explained that when § 3629(B) is

construed with § 6, the purview of § 3629(B) is restricted to property-loss

recoveries in which the insured loss was (1) for a liquidated amount, or (2) for an

amount that could be made ascertainable by reference to well-established market

values. Id. Hence, before the prevailing party can be awarded prejudgment

interest, a court must determine that at the time the proof of loss was denied, the

quantum of the loss could be ascertained by reference to market values. Id. The

Oklahoma Supreme Court also explained, however, that “[d]amages are not

certain where their calculation is left to the best judgment of the fact-finder or if




                                            12
conflicting evidence must be weighed to determine the precise amount of damages

due.” Id. at 1261 n.45.

                                          B.

      McQuay challenges the district court’s denial of prejudgment interest from

the date the loss was payable under the Policy. McQuay argues the insured loss

was for an amount that could be ascertained by reference to well-established

market values as evidenced by his public insurance adjuster’s ability to establish

the market value of the tavern. We reject McQuay’s ad hoc argument that

damages were certain or ascertainable in this case prior to trial.

      In the final pretrial order, McQuay identified his damages on the breach of

contract claim as an issue to be litigated. The district court instructed the jury on

insurable interest and damages for the breach of contract claim. At trial, McQuay

testified that in estimating the actual cash value of the contents of KC’s LLC,

some of the estimates were “guesswork,” but that he believed they were in the

“ballpark.” (Aplt’s App. at 275). Thus, an award of damages was clearly a

question of fact for the jury; it was not even certain McQuay would recover any

damages. Therefore, the district court properly concluded McQuay’s damages

were not ascertainable until the jury returned a verdict. Thus, an award of

prejudgment interest under 36 Okla. Stat. Ann. § 3629(B) and 23 Okla. Stat. Ann.

§ 6 was improper. See Taylor, 981 P.2d at 1261 (explaining that “if a (property


                                          13
loss) demand’s value is unascertainable until its quantum is judicially settled, no

prejudgment interest is the victor’s due.”).

      AFFIRMED.



                                               Entered for the Court,



                                               Bobby R. Baldock
                                               Circuit Judge




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