REGIONAL AIR, INC. v. Canal Ins. Co.

FILED
United States Court of Appeals
Tenth Circuit

February 15, 2011
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

REGIONAL AIR, INC.,

Plaintiff - Appellant/Cross-
Appellee,
Nos. 09-6090; 09-6101
v.

CANAL INSURANCE COMPANY,

Defendant - Appellee/Cross-
Appellant.

ORDER

Before KELLY and GORSUCH, Circuit Judges, and MELGREN *, District
Judge.

Appellant/Cross-Appellee’s petition for panel rehearing is granted for the

limited purposes of adding footnotes 2 and 3 to the opinion. The petition for

rehearing is denied in all other aspects. The revised decision, filed nunc pro tunc

*
Honorable Eric F. Melgren, District Court Judge, District of Kansas,
sitting by designation.
to the original filing date, is attached to this order.

Entered for the Court

Elisabeth A. Shumaker, Clerk

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 FILED
United States Court of Appeals
Tenth Circuit
PUBLISH
January 14, 2011
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court

REGIONAL AIR, INC.,

Plaintiff - Appellant/Cross-
Appellee,
v. Nos. 09-6090; 09-6101

CANAL INSURANCE COMPANY,

Defendant - Appellee/Cross-
Appellant.

Appeal from the United States District Court
for the Western District of Oklahoma
(D.C. No. 5:08-CV-00342-C)

Edward W. Dzialo, Jr., Godlove, Mayhall, Dzialo, Dutcher & Erwin, Lawton,
Oklahoma, for Plaintiff-Appellant/Cross-Appellee.

Harris A. Phillips (Linda G. Alexander, with him on the briefs), Niemeyer,
Alexander, Austin & Phillips, P.C., Oklahoma City, Oklahoma, for Defendant-
Appellee/Cross-Appellant.

Before KELLY and GORSUCH, Circuit Judges, and MELGREN *, District
Judge.

GORSUCH, Circuit Judge.

*
Honorable Eric F. Melgren, District Court Judge, District of Kansas,
sitting by designation.
 Sometimes litigation takes so many twists and turns that, by the end of it

all, it’s hard to tell who won and who lost. Ours is such a case. After much

motions practice and a trial, Canal paid Regional Air just less than $60,000 for an

insurance loss. After trial, both sides declared victory. And this led to a whole

new fight over who won and who lost the last fight. Claiming to be the

“prevailing party,” each side argued that Oklahoma law entitled it to recover

attorneys’ fees, costs and, in Regional Air’s case, interest from its opponent.

Eventually, the district court declared Regional Air the prevailing party but

granted the company only a fraction of the fees, costs, and interest it sought. This

result satisfied no one and both sides appealed. To resolve these competing

appeals, and hopefully bring this collateral dispute at least a step closer to

conclusion, we must address several questions of law, including: When should

relief granted before trial be included within the district court’s judgment? Does

a trial court have discretion to deny attorneys’ fees under Oklahoma’s law? When

does a prevailing party’s entitlement to pre-verdict interest accrue? As we will

explain, our resolution of these questions agrees in many but not all respects with

the district court’s.

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 I

To make sense of the parties’ current collateral litigation over attorneys’

fees, costs, and interest, some appreciation of their underlying insurance dispute

is required.

Beginning then at the beginning, Canal sold Regional Air an insurance

policy to cover several of Regional Air’s tractor trailers. For our purposes, the

policy contained three important features. First, “[i]n the event of [a] loss,” it

required Regional Air to “protect the covered automobile”; and to ensure this

would be done, Canal’s policy indicated that “reasonable expenses incurred in

affording such protection shall be deemed incurred at [Canal’s] request.” App.

Vol. 2 at 200. Second, the policy required Regional Air to give notice of any loss

“as soon as practicable” to Canal or its agents. Id. Third, in the event of a

dispute about the value of a loss, the policy gave both parties the option to insist

on an appraisal process before a neutral umpire. Id. at 201.

In June 2001, a loss occurred when a traffic accident damaged one of

Regional Air’s tractor trailers. In compliance with the policy, Regional Air had

the vehicle towed to a safe location for storage. Regional Air then notified Canal

of the wreck and Canal, after confirming coverage, forwarded the matter to its

adjuster to handle the claim. On August 2, 2001, the adjuster sent Regional Air a

letter offering $28,094.14 for the damage to the tractor trailer, plus $7,400 for

towing and storage costs incurred through August 5. Id. at 202. The adjuster

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offered to send a check for these amounts right away, if only Regional Air would

sign and return an enclosed settlement agreement.

It didn’t go that way. Writing to the adjuster on August 7, 2001, Regional

Air’s president warned that the offer “does not even come close to replacing this

equipment,” and observed that, during the time it took the adjuster to complete its

assessment of the damage, “the clock was ticking and the storage fees have

already exceeded $6,000.” Id. at 206. The adjuster and Regional Air went back

and forth with more offers and more rejections, but never reached agreement.

Finally, and after an initial skirmish in state court, the appraisal process specified

in the parties’ contract was invoked and an umpire was called in to decide the

dispute. In the end, the umpire awarded Regional Air $44,294.14 in total

compensation — representing Canal’s original settlement offer of $28,094.14 for

repairs and $7,400 for towing and storage costs, plus an additional $10,000 for

repairs not included in Canal’s offer (less a $1,000 deductible). Id. at 207.

Still dissatisfied, Regional Air brought this diversity suit in federal district

court seeking damages equal to the insurance policy’s coverage limit, more than

twice the amount of the umpire’s award. Canal responded by asking the district

court to confirm the propriety of the appraisal award, arguing that it shouldn’t

have to (re)litigate what had already been settled by the umpire consistent with

the parties’ contract. With this the district court agreed, ruling that the contract

allowed Regional Air to avoid the appraisal award (and so obtain a greater

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amount for the damage done to its tractor trailer) only if it could prove at trial

that the umpire’s award was a product of fraud, mistake, or misconduct. At this

point, Canal attempted to settle the case with a new offer of $49,494.14 — the

umpire’s appraisal award plus $5,000 — but Regional Air refused the deal. Aple.

Supp. App. at 63.

So the case proceeded to a jury trial. At trial, the district court found

Regional Air’s evidence of fraud, mistake, or misconduct lacking and directed a

verdict for Canal on the question whether the appraisal award could be undone.

Still, there remained one question for the jury to resolve concerning storage costs.

Though the appraisal award included $7,400 for towing and storage costs

Regional Air incurred during a relatively short period after the accident, the

company claimed it could prove additional storage costs incurred from December

2001 through the date of trial. The district court allowed Regional Air to present

this evidence and in due course the jury returned a $12,000 verdict in favor of

Regional Air for its additional storage costs. After trial, the district court entered

this judgment:

Based on the evidence presented at trial, there is no legally sufficient
evidentiary basis on which a jury could find for Plaintiff on its request to
set aside the umpire award. Accordingly, judgment is hereby entered in
favor of Defendant and against Plaintiff on that claim. . . . As for Plaintiff’s
breach of contract claim for storage charges, the Court enters judgment on
the jury’s verdict in favor of Plaintiff in the amount of $12,000.00. App.
Vol. 1 at 63.

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 That brings us finally to the parties’ current collateral dispute. After the

district court entered judgment ending the litigation on the merits, both sides

declared victory. As the “prevailing party,” both Regional Air and Canal claimed

themselves entitled to recover from the other side their attorneys’ fees, costs and,

in Regional Air’s case, interest. The focus of this new fight was subsection (B) of

Okla. Stat. tit. 36, § 3629, which provides that

[i]t shall be the duty of the insurer, receiving a proof of loss, to submit a
written offer of settlement or rejection of the claim to the insured within
ninety (90) days of receipt of that proof of loss. Upon a judgment rendered
to either party, costs and attorney fees shall be allowable to the prevailing
party. For purposes of this section, the prevailing party is the insurer in
those cases where judgment does not exceed written offer of settlement. In
all other judgments the insured shall be the prevailing party. If the insured
is the prevailing party, the court in 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. This provision shall not apply to uninsured motorist coverage.

For its part, and no doubt with an eye on § 3629’s use of the word “judgment,”

Regional Air also filed a motion to amend the judgment, asking the district court

to make clear(er) Regional Air’s entitlement to recover not just the $12,000 in

storage fees awarded by the jury but also the $44,494.14 Canal owed by virtue of

the confirmed appraisal award.

The district court resolved the parties’ competing motions in three orders

entered on April 1 and 17, 2009. As an initial matter, the district court denied

Regional Air’s motion to amend the judgment. The court then proceeded to hold

Regional Air was, nonetheless, the prevailing party. But this status turned out to

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be of little benefit to Regional Air: the district court declined to award it any

attorneys’ fees or costs. On the question of interest, the district court held that

Regional Air could recover pre-verdict interest on the jury’s $12,000 award for

storage costs — but that it was entitled to no such interest on the appraisal award

confirmed before trial. Finally, the court held that Regional Air’s interest on its

storage costs began to accrue from the “date of loss,” namely June 2001.

II

Between Regional Air’s appeal and Canal’s cross-appeal, the parties have

asked to overturn most every aspect of the district court’s post-judgment orders.

For example, Regional Air argues that, while the district court correctly

determined that it was the prevailing party, the court erred by denying attorneys’

fees and costs and by awarding too little interest. In Regional Air’s estimation,

the district court also abused its discretion when it refused to amend the judgment

to include the amount of Regional Air’s appraisal award. In turn, Canal submits

that it, not Regional Air, is the real prevailing party due attorneys’ fees and costs.

And even if Regional Air is the prevailing party, Canal argues, the district court

should not have awarded Regional Air any interest, or at least not interest dating

all the way back to June 2001.

A

To answer the question who prevailed — Regional Air or Canal — we must

first evaluate Regional Air’s challenge to the district court’s judgment. That’s

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because Okla. Stat. tit. 36, § 3629(B) expressly hinges the prevailing party

determination on what is and isn’t in the “judgment.” The statute tells us that if

the judgment doesn’t exceed the insurer’s written offer of settlement, the insurer

is the prevailing party; otherwise, the insured is.

Before the district court, Regional Air filed a motion to amend the

judgment to reflect not just the jury’s $12,000 storage cost award but also the

$44,494.14 appraisal award. Regional Air did this surely recognizing that, only

by aggregating these amounts could the court’s judgment exceed Canal’s final

written settlement offer of $49,494.14 and so render Regional Air the prevailing

party. See Oulds v. Principal Mut. Life Ins. Co., 6 F.3d 1431, 1446 (10th Cir.

1993) (noting that, when determining the prevailing party for purposes of

§ 3629(B), we compare the judgment to the highest settlement offer made by the

insurer, whenever made). For its part the district court denied Regional Air’s

motion to amend, reasoning that “[w]hile [Regional Air] is entitled to recover the

amount of the appraisal award, that fact is by operation of the terms of the

contract and not the action pursued before the Court.” App. Vol. 1 at 107.

We review a district court’s disposition of a motion to amend the judgment

for abuse of discretion. See Barber ex rel. Barber v. Colo. Dep’t of Revenue, 562

F.3d 1222, 1228 (10th Cir. 2009). This standard of review recognizes that the

question before the district court implicates a degree of judgment, invests the

district court with a degree of discretion in resolving it, and bars us from simply

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substituting our own discretion for the district court’s. At the same time, a

prejudicial error of law is never discretionary and so always a basis for reversal

under the abuse of discretion standard of review. See Valley Forge Ins. Co. v.

Health Care Mgmt., 616 F.3d 1086, 1096 (10th Cir. 2010).

Such an error of law occurred here. Rule 54(c) of the Federal Rules of

Civil Procedure directs that “[e]very [non-default] final judgment should grant the

relief to which each party is entitled.” While most stages of litigation provide an

opportunity for at least a little bit of contention, once a court determines what

relief the parties are entitled to, what gets included in the judgment is not up for

grabs. As a matter of law, the district court’s judgment must grant the relief —

no more, no less, and nothing else — that the court has determined the parties are

entitled to. See Carter Oil Co. v. McCasland, 190 F.2d 887, 892 (10th Cir. 1951)

(“Under Rule 54(c) . . . it is the duty of the court to grant the relief to which a

party is entitled . . . .”); 10 Charles Alan Wright, Arthur R. Miller, Mary Kay

Kane, Fed. Prac. & Proc. § 2664 (3d ed. 1998). And by the end of the merits

litigation in this case, the district court had found Regional Air entitled to two

forms of relief: 1) for the damage done to the tractor trailer and early storage

costs, Regional Air was entitled to the umpire’s appraisal award (no more, no

less); and 2) for additional storage costs incurred after December 2001, the

company was entitled to the $12,000 awarded by the jury. Both these forms of

relief should have been reflected in the court’s final judgment as a matter of law.

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 Admittedly, Regional Air set out — and failed — to win more. Regional

Air sought to undo the umpire’s award by showing that the award was induced by

fraud, mistake, or misconduct, and the company’s showing failed utterly on that

front. But none of this alters the fact that the district court’s orders were clear

and unequivocal in holding that, unless the company could show fraud, mistake,

or misconduct, the umpire’s award was the relief (and the only relief) to which

Regional Air was lawfully entitled for the damage done to its tractor trailer and

for its early storage costs. The company was entitled to a judgment reflecting that

fact.

The district court’s § 3629 analysis illustrates our point. After having held

that the appraisal award should not be part of the judgment, the district court

proceeded to declare Regional Air the prevailing party under § 3629. Yet, the

district court could find Regional Air the prevailing party only by aggregating the

appraisal award with the storage costs verdict. (Without doing so, Regional Air’s

recovery would have been less than Canal’s final written settlement offer, making

Canal the prevailing party.) We agree with the course the district court took in

its § 3629 analysis, aggregating Regional Air’s two awards. But that course

illustrates how the district court erred in refusing to amend the judgment. When

conducting a § 3629 prevailing party inquiry, a court is limited by statute to

comparing the insurer’s settlement offer against the judgment achieved by the

insured. In its § 3629 analysis, the district court appeared implicitly to consider

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the appraisal award part of its judgment. And what the court implicitly

recognized in its § 3629 analysis should have also been recognized explicitly in

its judgment.

B

With a proper judgment for Regional Air — one reflecting both the

$44,494.14 appraisal award and the $12,000 verdict for storage charges — the

question who prevailed for purposes of § 3629 becomes straightforward:

Regional Air received a judgment for $56,494.14; this is more than Canal’s

highest settlement offer of $49,494.14; thus, Regional Air is the prevailing party,

just as the district court concluded.

Of course, Canal disputes this, suggesting that it is the true prevailing

party. To reach the conclusion it does, however, Canal must (and must ask us to)

split in two the relief Regional Air won. According to Canal, Regional Air’s

claim for storage costs under the insurance policy is “entirely separate” from its

claim under the policy for the loss of the truck itself. Aple. Br. at 17. Under

Canal’s theory, the $49,494.14 pre-trial settlement offer should be measured

against only the $44,494.14 portion of the judgment enforcing the appraisal award

— and thus Canal, not Regional Air, should be deemed the prevailing party.

We cannot agree. Whatever other problems may attend this theory (and

Regional Air purports to identify many), it rests on a clearly mistaken premise.

The amounts Regional Air recovered — the $44,494.14 appraisal award and the

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$12,000 for storage charges — all flow from a single breach of contract claim.

Indeed, the umpire’s contract award, on which Canal based its own settlement

offer, itself included a component for storage costs incurred early on; the jury’s

verdict simply brought these storage costs forward, recognizing that more such

costs had been incurred (and were due under the contract’s terms) while this

dispute lingered. The appraisal and storage amounts, thus, are merely different

components of the damages that Regional Air claimed and won under a single

breach of contract cause of action.

C

The next question thus becomes what relief Regional Air is entitled to as

the prevailing party under § 3629. We begin with the question of attorneys’ fees

and costs. The district court cited two reasons for denying any fees or costs to

Regional Air. Regional Air challenges both rationales, and so we consider each

in turn.

1

The district court first held that “[t]he plain language of § 3629 requires the

insured to submit a proof of loss” as a precondition to recovery of any fees or

costs. App. Vol. 1 at 112. In the district court’s view, Regional Air never

submitted to Canal a proof of loss for storage fees. Given this “absence of a

proof of loss for the storage charges,” the court held, Regional Air forfeited its

statutory entitlement to attorneys’ fees and costs. Id.

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 This analysis rests on a legal error. As an initial matter, and while there

are no doubt strong arguments for the district court’s statutory interpretation, so

far we have only assumed (without committing to) the view that a proof of loss is

an essential precondition to recovery under § 3629. See Stauth v. Nat’l Union

Fire Ins. Co., 236 F.3d 1260, 1265 (10th Cir. 2001); Murray v. First Marine Ins.

Co., 29 F. App’x 503, 505-06 (10th Cir. 2002) (unpublished). But we have

expressly held that if a proof of loss is a predicate to recovery under § 3629, it is

a requirement easily met: an insured need only provide the kind of notice its

policy requires for receiving coverage. See Stauth, 236 F.3d at 1262, 1265

(“[T]he terms of the [policy] compel[] the conclusion that . . . notification . . . of

the existence of the [potential liabilities] would be all that was necessary to

satisfy a ‘proof of loss’ requirement.”). So what sounds like a looming

requirement for proof is actually just a matter of providing notice of a loss in a

manner that complies with the contract’s terms. Or, as the Oklahoma Court of

Civil Appeals put it: “Section 3629 is triggered by notice from an insured

claiming to have a covered loss.” See Ass’n of Cnty. Comm’rs v. Nat’l Am. Ins.

Co, 116 P.3d 206, 211 (Okla. Civ. App. 2005) (emphasis added and internal

quotation omitted).

The undisputed facts show Regional Air provided Canal with such notice.

The parties’ insurance policy required Regional Air to give Canal notice “as soon

as practicable” in the event of damage to the insured equipment. The policy also

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required Regional Air to store the damaged equipment, and expressly provided

that Canal would reimburse the expenses Regional Air incurred in doing so.

Thus, as soon as Regional Air reported the accident, Canal should’ve known that

Regional Air was incurring storage costs — and that those costs were Canal’s

responsibility. What’s more, it’s apparent that Canal did know Regional Air was

incurring storage costs. In its August 2, 2001 letter, Canal’s adjuster offered

$7,400 for “wrecker service and storage charges.” App. Vol. 2 at 202 (emphasis

added). And when Regional Air rejected that offer a few days later, it warned the

adjuster that “the clock was ticking and the storage fees have already exceeded

$6,000.” Id. at 206 (emphasis added). Canal thus had abundant notice that

Regional Air was incurring storage costs and expected Canal to pay them. As a

matter of law, this notice satisfied any proof of loss requirement found in § 3629

(if one exists at all). See Stauth, 236 F.3d at 1266; Ass’n of Cnty. Comm’rs, 116

P.3d at 211. 1

1
To be sure, Canal’s policy additionally required Regional Air to file at a
later date, “within 91 days after loss, [a] sworn proof of loss in such form and
including such information as the company may reasonably require.” App. Vol. 2
at 200. But the policy defines “loss” as “direct and accidental loss or damage.”
Id. Therefore, by the policy’s own terms, this additional requirement did not
apply to consequential expenses incurred at Canal’s request — such as the storage
charges at issue here. What’s more, Canal may have waived the proof of loss
requirement by submitting Regional Air’s claim to an arbitration process and
seeking to use that arbitration as a defense in court. See Milwaukee Mech. Ins.
Co. v. Sewell, 168 P. 660, 664 (Okla. 1916).

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 2

The district court offered a second rationale for denying Regional Air

attorneys’ fees and costs, holding that any such award would not be “reasonable.”

App. Vol. 1 at 112. Here again, and again as a matter of law, we cannot agree.

Section 3629 says “costs and attorney fees shall be allowable to the prevailing

party” (emphasis added). Applying this plain language, we and Oklahoma courts

have said that, once a litigant establishes itself as a prevailing party under § 3629,

an award of attorneys’ fees and costs must follow. See Stauth, 236 F.3d at 1267;

Shadoan v. Liberty Mut. Fire Ins. Co., 894 P.2d 1140, 1143-44 (Okla. Civ. App.

1994). To be sure, a district court retains discretion to “determine the proper

amount of an attorney fee [and cost] award,” but it does not retain discretion

whether to issue an award. Shadoan, 894 P.2d at 1144 (emphasis added). The

Oklahoma legislature left courts with no wiggle room on that score, and we may

not revisit or revise that legislative judgment.

Because neither of the district court’s rationales for denying attorneys’ fees

and costs remains standing, we must remand this matter to the district court for a

determination of what amount of attorneys’ fees and costs (and for what work —

whether in the district court or here) Canal owes Regional Air. In doing so, we

express no judgment on what the outcome of its proceedings may be. We do not,

for example, pass on the question whether cost awards are, in a federal diversity

action, governed by Oklahoma’s statute or by the federal rules of civil procedure,

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or what amount of attorneys’ fees would be “reasonable” under Oklahoma law.

Cf. Oulds, 6 F.3d at 1445 (holding that at least § 3629’s attorneys’ fees provision

applies in federal diversity actions). Those are questions entrusted to the district

court in the first instance. We may and do hold only that the two rationales

offered by the district court for denying fees and costs to date cannot be sustained

as a matter of law.

D

Remaining before us still is the question what interest Regional Air should

receive as the prevailing party. Section 3629 directs the trial court to “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.” 2 See also McNickle v. Bankers Life & Cas. Co., 888 F.2d 678, 680 (10th

Cir. 1989) (holding that, in a diversity case like this, “[t]he issue of possible

entitlement to prejudgment interest is governed by state law”). The district court

interpreted § 3629’s language as requiring it to award interest on Regional Air’s

storage costs — but not its appraisal award. The court then proceeded to hold

2
In its opening brief, Regional Air alluded briefly to the possibility that it
might be entitled to prejudgment interest under another statute besides § 3629,
namely 23 Okla. Stat. § 22. With no more to go on than the couple of conclusory
sentences Regional Air tacked onto its argument for interest under § 3629,
however, we decline to consider this argument. See Adams-Arapahoe Joint Sch.
Dist. No. 28-J v. Continental Ins. Co., 891 F.2d 772, 776 (10th Cir. 1989)
(“Merely mentioning [an issue] in another context is not enough,” particularly
where, as here, the issue was not identified in the party’s statement of the issues
raised on appeal).

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that interest should run from “the date of loss,” presumably meaning the date of

the accident in June 2001. App. Vol. 1 at 113. Before us, both parties again take

issue with both aspects of the district court’s disposition.

1

Regional Air protests that it is entitled as a matter of law to interest on both

the storage costs verdict and its appraisal award. In effect, Regional Air asks for

interest on all the relief properly included in the judgment.

We cannot oblige. As we’ve discussed, § 3629 directs our attention to the

judgment when it comes to assessing who qualifies as the prevailing party. See

infra Part II.A. But when it comes to the different question how much interest to

award the now-identified prevailing party, the statute instructs us to award

interest not on the judgment but “on the verdict.” A verdict, of course, is “[t]he

decision of a jury . . . upon an issue which has been submitted to their judgment.”

19 Oxford English Dictionary 533 (2d ed. 1989); see also Black’s Law Dictionary

1592 (Deluxe 8th ed. 2004) (“A jury’s finding or decision on the factual issues of

a case.”). Thus, by operation of the plain terms of the statute, the district court’s

chosen course was the correct one.

Confirming this conclusion is the fact that throughout § 3629 the Oklahoma

legislature juxtaposed the word “verdict” with use of the word “judgment” — a

broader term embracing all final determinations of rights, however obtained. See

Black’s Law Dictionary at 858. Where, as here, a legislature uses different terms

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in the very same statutory provision, we take cognizance of that choice by

presuming the legislature intended the different words to carry with them (their

traditional) different meanings. See, e.g., Russello v. United States, 464 U.S. 16,

23 (1983); Anderson v. United Tel. Co. of Kan., 933 F.2d 1500, 1502-03 (10th

Cir. 1991).

To all this, Regional Air responds by questioning the soundness of a policy

that allows interest on amounts won only through verdicts and not through other

means. We can, however, imagine at least plausible reasons why the Oklahoma

legislature might have wished, as a matter of policy, to give special solicitude to

amounts won through verdicts (in recognition of the extra amount of time and

effort usually required to achieve them, for example). And much more

importantly than any of this is the fact that no policy argument about what the law

should be can suffice to establish that the district court erred in reading the law as

it is. Of course the Oklahoma legislature could have provided for interest on the

judgment rather than on the verdict. But that’s not what the legislature did. If

Oklahoma’s law is to be changed to provide for interest on judgments rather than

on verdicts based on policy considerations, that job belongs to the properly

authorized Oklahoma state authorities, not to this federal court sitting in diversity.

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See Valley Forge Ins. Co., 616 F.3d at 1098; Russo v. Ballard Med. Prods., 550

F.3d 1004, 1023 (10th Cir. 2008). 3

2

Not to be outdone, Canal also asks us to reverse the district court’s award

of interest. Its argument proceeds in two steps. First, Canal says we should

imply in § 3629 a rule that interest may be awarded only from the date a

plaintiff’s claim becomes “certain or capable of being made certain by

calculation.” Aple. Br. at 22 (internal quotation omitted). Second, Canal

submits, such certainty was lacking here until the amount of Regional Air’s

entitlement was “judicially determined,” presumably by virtue of the district

court’s final judgment. Id. To resolve this argument, we need not decide whether

Canal’s first premise has any merit because the second premise is plainly faulty.

Regional Air’s storage costs were always readily ascertainable by calculation; as

3
Although we awarded interest under § 3629 on an amount won on
summary judgment (and hence not by jury verdict) in McNickle v. Bankers Life &
Casualty Co., that case addressed only the date on which interest became
“payable” for purposes of § 3629. 888 F.2d at 681-82. Because the matter was
not presented to us on appeal, we did not consider or decide the question whether
§ 3629 applies to non-verdict judgments. Although Oklahoma’s intermediate
appellate court has on occasion awarded interest under § 3629 in the absence of a
jury verdict, see, e.g., Banks v. Cimarron Ins. Co., 882 P.2d 580, 582 (Okla. Civ.
App. 1994), Regional Air has cited no binding precedent actually discussing or
deciding the question whether prejudgment interest under § 3629 is available
absent a verdict. See Cooper Indus., Inc. v. Aviall Svcs., Inc., 543 U.S. 157, 170
(2004) (“Questions which merely lurk in the record, neither brought to the
attention of the court nor ruled upon, are not to be considered as having been so
decided as to constitute precedents.”).

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the trial transcript demonstrates, all that was needed to figure them out precisely

was the monthly storage bill and a multiplication table.

Retreating, Canal pursues a separate argument for reducing, but not

eliminating, Regional Air’s interest award. Here Canal gains more traction.

Canal points out that the district court awarded interest starting from the “date of

loss,” and so apparently from the date of the accident in June 2001. But storage

costs accrue a day (or month) at a time, and, under § 3629, interest runs “from the

date the loss was payable pursuant to the provisions of the contract.” Interest

does not run, as the district court held, from the “date of loss.” Indeed, such a

result would risk affording a party like Regional Air interest on amounts even

before they were actually incurred, a result the plain language of § 3629 is clearly

aimed at avoiding. We thus must vacate the district court’s interest award and

remand this matter for the court to recalculate its award starting from the date or

dates Regional Air’s storage cost losses reflected in the verdict were payable

pursuant to the provisions of the parties’ contract.

***

By way of summary, we hold that the district court erred by failing to

amend the judgment, that its rationales for denying attorneys’ fees and costs were

legally erroneous, and that it failed to employ the appropriate date for the accrual

of the interest due to Regional Air for purposes of Oklahoma’s statute. At the

same time, we uphold the district court’s determination that Regional Air was the

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prevailing party and that it was entitled to interest on the verdict. The district

court’s April 1 and 17, 2009 orders are vacated and this matter is remanded for

further proceedings consistent with this opinion.

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