Michael Vogt v. State Farm Life Insurance Comp

United States Court of Appeals
For the Eighth Circuit
___________________________

No. 18-3419
___________________________

Michael G. Vogt

lllllllllllllllllllllPlaintiff - Appellee

v.

State Farm Life Insurance Company

lllllllllllllllllllllDefendant - Appellant

------------------------------

Washington Legal Foundation; Chamber of Commerce of the United States of
America; American Council of Life Insurers

lllllllllllllllllllllAmici on Behalf of Appellant(s)

Public Citizen

lllllllllllllllllllllAmicus on Behalf of Appellee(s)
___________________________

No. 18-3434
___________________________

Michael G. Vogt

lllllllllllllllllllllPlaintiff - Appellant

v.
 State Farm Life Insurance Company

lllllllllllllllllllllDefendant - Appellee
____________

Appeals from United States District Court
for the Western District of Missouri - Jefferson City
____________

Submitted: November 13, 2019
Filed: June 26, 2020
____________

Before SHEPHERD, GRASZ, and KOBES, Circuit Judges.
____________

SHEPHERD, Circuit Judge.

This case comes to us as a class action by over 25,000 life insurance
policyholders who allege that State Farm Life Insurance Company (State Farm)
impermissibly included non-listed factors in calculating Cost of Insurance (COI) fees
assessed on life insurance policies. Following a jury trial, the jury returned a $34
million verdict in the class’s favor. State Farm appeals, asserting that the district
court committed various errors, including with respect to summary judgment, class
certification, and evidentiary rulings. Michael Vogt, the named plaintiff, cross
appeals, arguing that the district court erroneously denied the class prejudgment
interest. Having jurisdiction under 28 U.S.C. § 1291, we affirm with respect to State
Farm’s appeal and reverse and remand with respect to Vogt’s cross appeal.

I.

In 1999, then 54-year-old Vogt purchased a State Farm flexible premium
adjustable whole life insurance policy. In contrast to a standard life insurance policy,

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this type of policy provides benefits in addition to the typical death benefits, which
results in the policy including investment, savings, or interest-bearing components.
The terms of the policy explicitly allowed State Farm to make monthly deductions
from the policy for “(1) the cost of insurance, (2) the monthly charges for any riders,
and (3) the monthly expense charge.” Specifically as to the COI, the policy provides:

Monthly Cost of Insurance Rates. These rates for each policy year are
based on the Insured’s age on the policy anniversary, sex, and
applicable rate class. A rate class will be determined for the Initial
Basic Amount and for each increase. The rates shown on page 4 are the
maximum monthly cost of insurance rates for the Initial Basic Amount.
Maximum monthly cost of insurance rates will be provided for each
increase in the Basic Amount. We can charge rates lower than those
shown. Such rates can be adjusted for projected changes in mortality
but cannot exceed the maximum monthly cost of insurance rates. Such
adjustments cannot be made more than once a calendar year.

R. Doc. 167-2, at 11 (emphasis added). These enumerated factors are so-called
“mortality factors” because they relate to a policyholder’s mortality risk, which
allows the insurer to determine the projected mortality estimate of a policyholder
based on his specific circumstances.

Vogt surrendered the policy in 2013. Dissatisfied with the COI fees, which
increased throughout the time he held the policy, Vogt consulted an attorney and an
actuarial expert, who determined that State Farm had been using non-enumerated
factors unrelated to a policyholder’s mortality risk to calculate the monthly COI fees.
These “non-mortality factors” included taxes, profit assumptions, investment
earnings, and capital and reserve requirements. Vogt asserts that, by including non-
mortality factors in the COI rates, State Farm deducted from the monthly premium
payments more than what the policy stated would be included in the COI fees. Vogt
thereafter filed suit in 2016, asserting breach of contract and conversion claims
against State Farm based on State Farm’s alleged use of unauthorized, non-mortality

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factors to calculate his COI fees, which it collected during the time that Vogt held the
life insurance policy. State Farm then moved for summary judgment, arguing, in
relevant part, that the policy language regarding the COI did not limit State Farm to
calculating the COI based on the specified factors only. The district court denied
State Farm’s motion, concluding that no reasonable person would understand that
State Farm would use non-listed factors to calculate the COI when the policy stated
the COI would be “based on” enumerated factors. The district court determined that,
at a minimum, the policy was ambiguous and should be construed against State Farm.

Vogt then sought to have a class certified composed of similarly situated
policyholders. The proposed class members were individuals who obtained life
insurance from State Farm between 1994 and 2004 under the same policy form as was
used for Vogt. Over State Farm’s objection, the district court certified a class of
approximately 25,000 individuals who currently or previously owned a State Farm-
issued life insurance policy of the same form in the State of Missouri.

The district court held a pretrial hearing, during which it invited Vogt to make
an oral motion for summary judgment. As relevant, Vogt moved for summary
judgment on issues of liability and State Farm’s statute-of-limitations defense. The
district court granted the motion in part, concluding that Vogt had established liability
for breach of contract, leaving damages as the only issue to be tried to the jury, and
concluding that as a matter of law, Vogt’s claims were not time barred. The district
court denied, however, Vogt’s motion for summary judgment on the conversion claim
based on a genuine dispute as to an identifiable corpus converted from each class
member, noting that “[w]ithout establishing the corpus that State Farm purportedly
converted from each member of the class, Plaintiff cannot establish conversion.” R.
Doc. 335. In other rulings, the district court ordered that State Farm was precluded
from referencing the maximum COI rates under the policy and presenting evidence
that State Farm never exceeded this amount. The district court similarly precluded
State Farm’s actuarial expert from testifying about an actuarial memorandum that

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State Farm asserted was relevant to the question of whether it pooled mortality rates,
a process by which all policyholders of the same age, sex, and rate class have their
policy duration blended or “pooled” together, regardless of how long individual
policyholders have actually held the policies. Finally, the district court allowed Vogt
to introduce damages models to the jury, overruling State Farm’s objection that the
models had not been disclosed to State Farm until shortly before trial.

At the close of the evidence at trial, State Farm moved for judgment as a matter
of law under Federal Rule of Civil Procedure 50(a), which the district court denied.
The jury returned an award of damages for the class in the amount of $34,333,495.81.
State Farm moved to decertify the class, arguing that some class members did not
suffer damages and that conflicts existed among the class members. The district court
denied the motion. State Farm then filed a motion for judgment as a matter of law
under Federal Rule of Civil Procedure 50(b) and for a new trial under Federal Rule
of Civil Procedure 59. In its motion for judgment as a matter of law, State Farm
challenged Vogt’s damages models as unreliable, speculative, and invalid, arguing
that they could not support the jury’s verdict. In its motion for new trial, State Farm
cited several erroneous evidentiary rulings warranting a new trial, the district court’s
granting of an oral motion for summary judgment, and the district court’s jury
instruction on the conversion claim. The district court denied both motions. The
district court also denied Vogt’s motion for an amended judgment insofar as it sought
an award of prejudgment interest based on its finding that the parties had
contractually agreed to an interest rate, but granted the motion insofar as it sought to
add a class definition, to award postjudgment interest, and to approve allocation of
damages. The district court then entered judgment, slightly reducing the jury award
to $34,322,414.84 to reflect opt-outs received from class members after the
commencement of the jury trial.

State Farm appeals and Vogt cross appeals. The parties agree that Missouri
law applies in this diversity action.

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 II.

State Farm’s central argument before the district court and again on appeal
involves the interpretation of the clause in the insurance policy that allows State Farm
to collect COI fees from policyholders. State Farm asserts that the grant of partial
summary judgment, based upon the district court’s conclusion that the policy
language did not allow State Farm to formulate the COI based on factors in addition
to those expressly listed in the policy, was erroneous. “We review de novo a district
court’s grant of summary judgment, viewing all facts and making all reasonable
inferences in the light most favorable to the nonmoving party.” Cent. Platte Nat. Res.
Dist. v. U.S. Dep’t of Agric., 643 F.3d 1142, 1146 (8th Cir. 2011). With respect to
the interpretation of the insurance policy, applying Missouri substantive law, “[w]e
review the district court’s interpretation of the [State Farm] policy de novo.”
Westchester Surplus Lines Ins. Co. v. Interstate Underground Warehouse & Storage,
Inc., 946 F.3d 1008, 1010 (8th Cir. 2020).

“Under Missouri law, general rules of contract interpretation govern the
interpretation of insurance policies. Policy terms are given the meaning which would
be attached by an ordinary person of average understanding if purchasing insurance.”
Id. (citations and internal quotations marks omitted). The central issue in interpreting
contract language is determining whether any ambiguity exists, which occurs “where
there is duplicity, indistinctness, or uncertainty in the meaning of the words used in
the contract.” Peters v. Emp’rs Mut. Cas. Co., 853 S.W.2d 300, 302 (Mo. 1993) (en
banc). “Where insurance policies are unambiguous, they will be enforced as written
absent a statute or public policy requiring coverage. If the language is ambiguous,
it will be construed against the insurer.” Id. (citations omitted).

The focus of the dispute between the parties is whether the phrase “based on,”
as used in the COI provision stating that the “rates for each policy year are based on
the Insured’s age on the policy anniversary, sex, and applicable rate class,” allowed

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State Farm to include other non-mortality factors in the calculation of the COI rates.
State Farm argues that this provision allows it to include other factors, while Vogt
asserts that it unambiguously does not. We conclude that, at the very least, the phrase
is ambiguous, and must be construed in favor of Vogt.

The policy contains no definition for the phrase “based on,” so we rely on the
plain and ordinary meaning of the phrase. See CitiMortgage, Inc. v. Equity Bank,
N.A., No. 4:15-CV-230-SPM, 2017 WL 5564532, at *3 (E.D. Mo. Nov. 20, 2017)
(noting that policy did not define term and thus following general Missouri contract
interpretation principle that “[t]he parties’ intent is presumed to be expressed by the
plain and ordinary meaning of the language of the contract” (quoting Chochorowski
v. Home Depot U.S.A., 404 S.W.3d 220, 226 (Mo. 2013))). Looking at the language
of the provision alone, we conclude that the phrase “based on” is at least ambiguous
because a person of ordinary intelligence purchasing an insurance policy would not
read the provision and understand that where the policy states that the COI fees will
be calculated “based on” listed mortality factors that the insurer would also be free
to incorporate other, unlisted factors into this calculation.

State Farm asserts that in examining this phrase, we should rely on Norem v.
Lincoln Benefit Life Co., 737 F.3d 1145 (7th Cir. 2013), which held that the phrase
“based on” in a life insurance contract did not imply exclusivity of factors.
Specifically, the court explained that “neither the dictionary definitions nor the
common understanding of the phrase ‘based on’ suggest that Lincoln Benefit is
prohibited from considering factors beyond sex, issue age, policy year, and payment
class when calculating its COI rates.” Id. at 1150; see also Mai Nhia Thao v. Midland
Nat’l Life Ins. Co., 549 F. App’x 534, 537 (7th Cir. 2013) (“Norem . . . holds that
when the policy says that the monthly cost of insurance rate will be ‘based on’
specified factors, it does not mean that the rate will be based exclusively on those
factors.”). Relying on Norem, State Farm urges us to conclude that the plain and
ordinary meaning of “based on” does not imply exclusivity. But Norem

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acknowledges that other courts have reached the opposite conclusion. 737 F.3d at
1149 (noting that “[s]everal state and district courts have considered similar clauses
in life insurance policies and reached divergent results” and citing same). That
several courts have examined the issue in very similar circumstances and have
reached differing conclusions supports the conclusion that the phrase is ambiguous.

State Farm also cites other cases where the court considered the meaning of the
phrase “based on,” but as those cases involve the phrase as used in the United States
Sentencing Guidelines, we do not find them instructive in construing this insurance
contract. See Appellant’s Br. 33-34 (citing Koons v. United States, 138 S. Ct. 1783,
1788 (2018) and Hughes v. United States, 138 S. Ct. 1765, 1775, 1778 (2018)).
Finally, State Farm asserts that, because it never charged in excess of the maximum
rates stated in the contract for the COI, it cannot have breached the contract,
regardless of the interpretation of the phrase “based on.” We reject this contention.
That State Farm did not violate the contract in another manner does nothing to prove
that it did not violate the contract by including impermissible factors in calculating
the COI. If State Farm wanted the freedom to collect a COI fee based on factors other
than those enumerated in the policy, it could have drafted the policy language to
unambiguously achieve this aim. See Krombach v. Mayflower Ins. Co., 827 S.W.2d
208, 211 (Mo. 1992) (en banc) (“[A]s the drafter of the insurance policy, the
insurance company is in the better position to remove ambiguity from the contract.”).

For the foregoing reasons, we conclude that the phrase “based on” in the COI
provision is at least ambiguous and thus must be construed against State Farm. The
district court did not err in construing the policy language in this manner and granting
summary judgment to Vogt on issues of liability.

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 III.

State Farm also asserts that the district court erred by granting Vogt’s oral
motion for summary judgment on State Farm’s statute-of-limitations defense. Again,
we review a grant of summary judgment de novo, “viewing all facts and making all
reasonable inferences in the light most favorable to the nonmoving party.” Cent.
Platte, 643 F.3d at 1146. Under Missouri law, claims for breach of contract,
conversion, and declaratory judgment are subject to a five-year statute of limitations.
Mo. Rev. Stat. § 516.120. The statute of limitations begins to run “when the damage
resulting [from the wrong] is sustained and is capable of ascertainment[.]” Mo. Rev.
Stat. § 516.100. This test is an objective one, providing that an injury is capable of
ascertainment when the “evidence was such to place a reasonably prudent person on
notice of a potentially actionable injury.” Powel v. Chaminade Coll. Preparatory,
Inc., 197 S.W.3d 576, 582 (Mo. 2006) (en banc) (quoting Bus. Men’s Assurance Co.
of Am. v. Graham, 984 S.W.2d 501, 507 (Mo. 1999) (en banc)).

State Farm contends that the statute of limitations began to run long before
Vogt consulted an actuarial expert and an attorney because he was well aware of the
rising COI fees, as evidenced by annual statements State Farm sent to Vogt, and his
knowledge of rising COI fees put him on notice of potentially actionable overcharges.
This contention is without merit. Although a reasonably prudent person might have
had some suspicions about the rising COI fees, this alone would be insufficient to put
such a person on notice and trigger the running of the statute of limitations. See
Mahanna v. U.S. Bank Nat.’l Ass’n, 747 F.3d 998, 1004 (8th Cir. 2014) (“Notice of
a need to investigate triggers claim accrual but not every potential source of suspicion
or insecurity gives rise to a duty to investigate.”) (applying Missouri law). And as the
enumerated factors in the COI provision are mortality factors, it could have
reasonably been assumed that the rising COI fees were related to Vogt’s increasing
age and less favorable mortality outlook, rather than State Farm’s inclusion of
additional factors in the COI fees. Although, with the help of an attorney and an

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actuarial expert, Vogt was ultimately able to determine that the COI fees included
non-enumerated factors, there is no evidence in the record that would have “place[d]
a reasonably prudent person on notice of a potentially actionable injury” simply based
on the rising COI fees and annual statements. Powel, 197 S.W.3d at 582 (quoting
Bus. Men’s Assurance, 984 S.W.2d at 507). The district court did not err in granting
summary judgment to Vogt on State Farm’s affirmative defense of limitations.

IV.

State Farm next asserts that the district court erred in certifying this suit as a
class action, arguing that (1) numerous members of the class did not have standing
due to a lack of damages caused by the COI overcharges; (2) intra-class conflicts
existed; and (3) the district court impermissibly certified a fail-safe class. “We
accord the district court broad discretion to decide whether certification is
appropriate, and we will reverse only for abuse that of discretion.” Day v. Celadon
Trucking Servs., Inc., 827 F.3d 817, 830 (8th Cir. 2016) (internal quotation marks
omitted). “Moreover, a defendant bears a more onerous burden in challenging
certification where . . . the initial certification decision was carefully considered and
made after certification-related discovery.” Id. at 832.

A.

As a threshold matter, Vogt argues that this Court lacks jurisdiction to review
the class certification orders because State Farm did not specifically identify these
orders in the Notice of Appeal, instead stating only that it was seeking to appeal “all
previous rulings and orders that led up to and served as a predicate for that final
judgment.” “When determining whether an appeal from a particular district court
action is properly taken, we construe the notice of appeal liberally and permit review
where the intent of the appeal is obvious and the adverse party incurs no prejudice.”
Parkhill v. Minn. Mut. Life Ins. Co., 286 F.3d 1051, 1058 (8th Cir. 2002).

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“Ordinarily, a notice of appeal that specifies the final judgment in a case should be
understood to bring up for review all of the previous rulings and orders that led up to
and served as a predicate for that final judgment.” Greer v. St. Louis Reg’l Med. Ctr.,
258 F.3d 843, 846 (8th Cir. 2001). Vogt argues that the class certification orders did
not serve as a predicate to the final judgment on the merits. We disagree. “[T]he
class determination involved consideration of factors intertwined with the merits of
the action,” which we find sufficient to bring the district court’s orders within those
appealed by State Farm as part of the rulings and orders that “served as a predicate
for final judgment. United States v. Bilsky, 664 F.2d 613, 616 (6th Cir. 1981).

B.

State Farm asserts that class certification was inappropriate because the class
included members who did not suffer damages and thus do not have standing. See
Avritt v. Reliastar Life Ins. Co., 615 F.3d 1023, 1034 (8th Cir. 2010) (explaining that
“a named plaintiff cannot represent a class of persons who lack the ability to bring a
suit themselves”). State Farm’s argument that some class members lack standing is
premised on the assertion that some class members received a credit from State Farm
during the period in which the alleged COI overcharges occurred and that this credit
created a set-off that left the class members without any damages. In other words,
even if the class members were improperly charged excessive COI fees, the credits
they received from State Farm more than offset any amount of COI overcharges and
left them with no net damages. Without any damages, State Farm argues, these class
members have not suffered an injury and therefore do not have standing.

We find State Farm’s argument unpersuasive, particularly in light of Stuart v.
State Farm Fire and Casualty Co., 910 F.3d 371 (8th Cir. 2018), where we rejected
a similar argument in a case also involving State Farm. In Stuart, we affirmed the
district court’s ruling certifying a class of State Farm homeowners’ insurance
policyholders who alleged State Farm improperly withheld certain amounts when

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making payments under the policy. Id. at 373. State Farm argued that the class
certification was improper because some class members could not demonstrate an
injury because they had ultimately recouped the withheld payments. We rejected this
argument, explaining that

[a]lthough couched as disputes about standing, State Farm’s arguments
really go to the merits of plaintiffs’ claims. Under plaintiffs’ theory, all
individuals who received an improperly-depreciated . . . payment
suffered a legal injury—breach of contract—regardless of whether the
. . . payment was more than, less than, or exactly the same as the
ultimate cost of repairing or replacing their property. [A] party to a
breached contract has a judicially cognizable interest for standing
purposes, regardless of the merits of the breach alleged.

Id. at 377 (last alteration in original) (internal quotation marks omitted). State Farm’s
arguments here present precisely the same scenario: they challenge the merits of some
class members’ claims, but couch the argument as one challenging those class
members’ standing. For the same reasons we rejected this argument in Stuart, we also
reject it here. This is consistent with the general understanding that a failure on the
merits does not affect a class member’s individual standing. 1 Steven S. Gensler &
Lumen N. Mulligan, Federal Rules of Civil Procedures, Rules and Commentary, Rule
23 (2020) (“[If] it turns out that some members of the class are not entitled to relief,
that represents a failure on the merits, not the lack of a justiciable claim.”).

Further, as Stuart noted, “[w]hether some plaintiffs are unable to prove
damages because they eventually recouped the withheld . . . [payments] is a merits
question, and the district court has the power to amend the class definition at any time
before judgment.” 910 F.3d at 377. This is precisely the course the district court
took, amending the class definition following the jury trial to exclude those class
members who suffered no damages. R. Doc. 404, at 2. The district court did not
abuse its discretion in granting class certification.

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 C.

State Farm next asserts that intra-class conflicts should have precluded class
certification. Specifically, State Farm argues that conflicts exist between current and
former policyholders and between those who have held policies for longer durations
and those who have held policies for shorter durations. Federal Rule of Civil
Procedure 23(a) requires that, for a class action to be certified, the class members
share typicality and adequacy of representation. See also Amchem Prods., Inc. v.
Windsor, 521 U.S. 591, 626 n.20 (1997). “But perfect symmetry of interest is not
required and not every discrepancy among the interests of class members renders a
putative class action untenable. . . . [T]o forestall class certification the intra-class
conflict must be so substantial as to overbalance the common interests of the class
members as a whole.” Matamoros v. Starbucks Corp., 699 F.3d 129, 138 (1st Cir.
2012). State Farm asserts that the purported intra-class conflicts run afoul of these
dictates. We disagree.

State Farm argues that a conflict exists between current and former
policyholders, asserting that, if State Farm employed the COI rates that Vogt’s expert
presented in his damages model, class members would be charged more, not less, and
current policyholders would be subject to higher charges, in conflict with former
policyholders, who, by definition, would not be subject to increased charges. This
purported conflict is entirely speculative and is insufficient to render class
certification inappropriate because it relies on nothing more than conjecture about
how this lawsuit will affect State Farm’s future dealings with current policyholders.
See Ward v. Dixie Nat’l Life Ins. Co., 595 F.3d 164, 180 (4th Cir. 2010) (“[A]
conflict will not defeat the adequacy requirement if it is merely speculative or
hypothetical, and in this case, the conflict rests on the uncertain prediction that this
lawsuit will cause premiums to increase enough to adversely affect some members
of the class.” (internal quotation marks and citation omitted)). What will happen with

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current State Farm policyholders in the future rests on “uncertain predictions” that
cannot serve as a basis to defeat class certification.

As to the purported conflict between policyholders of different durations, State
Farm argues that class members who held policies for a longer duration were
disadvantaged because Vogt’s damages model attributed smaller mortality charges
to those who held policies for shorter durations. State Farm argues that the
policyholders who held the policy for a longer duration actually benefitted from the
COI rates, which pooled all policyholders, regardless of the duration they held the
policy. First, with respect to the purported conflict based on State Farm’s pooling of
mortality rates, as the district court noted in its order denying State Farm’s motion to
decertify the class, “State Farm’s argument fails because the jury found that it did not
pool its mortality rates.” R. Doc. 402, at 6. Although time and again throughout this
appeal State Farm reaffirms its reluctance to accept the jury’s finding on this point,
the fact remains that the jury concluded State Farm did not pool its mortality rates and
any argument premised on pooling must fail. Second, even if there are slightly
divergent theories that maximize damages for certain members of the class, “this
slight divergence is greatly outweighed by shared interests in establishing
[defendant’s] liability.” DiFelice v. U.S. Airways, Inc., 235 F.R.D. 70, 79 (E.D. Va.
2006); see also 1 Newberg on Class Actions § 3:62 (5th ed. 2019) (“Courts generally
reject the argument that an intra-class conflict exists when divergent theories of
liability would benefit different groups within the class. Courts have thus rejected
challenges to the class representatives’ adequacy that were based . . . on different
class members desiring different methods of calculating damages[.]”).

Because there are no class conflicts “so substantial as to overbalance the
common interests of the class members as a whole,” the district court did not err in
certifying the class. Matamoros, 699 F.3d at 138.

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 D.

State Farm next argues that the class conflicts demonstrate that the district
court impermissibly created a fail-safe class. A fail-safe class is one that “would
allow putative class members to seek a remedy but not be bound by an adverse
judgment—either those class members win or, by virtue of losing, they are not in the
class and are not bound.” Orduno v. Pietrzak, 932 F.3d 710, 716 (8th Cir. 2019)
(internal quotation marks omitted). State Farm argues that the district court’s
exclusion of 487 class members after the jury concluded they failed to prove damages
demonstrates that the district court created a fail-safe class. Despite State Farm’s
argument and requests from amici briefs, we need not decide whether the creation of
a fail-safe class is permissible because, quite simply, none is present here. State
Farm’s argument that the district court excluded 487 class members only after they
failed to prove damages is an inaccurate characterization of the record. The district
court excluded these class members prior to trial and none of their claims were
submitted to the jury. The post-trial statement of the district court in its order altering
or amending the judgment served as nothing but clarification on this point.

We are satisfied that the district court defined the class in such a manner that
it excluded those individuals who did not share the claim that State Farm’s conduct
deducted amounts for COI fees that included non-mortality factors, but included and
bound all those who did share that claim, even if they ultimately were unsuccessful
on that claim. Because all members of the class were bound by the judgment,
regardless of whether they succeeded on their individual claims, the district court did
not create a fail-safe class.

Based on the foregoing, we conclude that the district court did not abuse its
discretion in certifying the class or in denying State Farm’s motion to decertify the
class.

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 V.

State Farm also argues that the district court’s denial of State Farm’s post-
verdict motion for judgment as a matter of law was erroneous because Vogt’s
damages models were insufficient to sustain the jury’s damages award. “We review
de novo a district court’s denial of a post-verdict motion for judgment as a matter of
law, viewing the evidence in the light most favorable to the verdict. Judgment as a
matter of law is only appropriate when no reasonable jury could have found for the
nonmoving party.” S. Wine & Spirits of Nev. v. Mountain Valley Spring Co., 646
F.3d 526, 533 (8th Cir. 2011) (citation omitted). State Farm asserts Vogt’s evidence
of damages was impermissibly speculative and unreliable in that (1) it did not
differentiate between policyholders who used tobacco products and those who did
not; (2) it lacked evidence demonstrating that State Farm did not pool mortality rates;
(3) it failed to account for several months in which the COI fee State Farm charged
was less than Vogt’s proposed COI rate that considered only enumerated mortality
factors; and (4) it improperly included policyholders who received all the benefits to
which they were entitled.

Vogt argues that State Farm waived this challenge by failing to raise any
objections to Vogt’s expert damages models prior to trial through a Daubert1 motion
or through objections at trial. We agree that because State Farm failed to file a
Daubert motion or object at trial, it has waived any argument regarding the
admissibility of the expert damages models. See, e.g., Marbled Murrelet v. Babbitt,
83 F.3d 1060, 1066 (9th Cir. 1996) (“Although we recognize that evidence which is
unreliable is necessarily insufficient, the appropriate time to raise Daubert challenges
is at trial. By failing to object to evidence at trial and request a ruling on such an
objection, a party waives the right to raise admissibility issues on appeal.”).

1
Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993).
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However, we will consider State Farm’s argument to the extent it challenges the
sufficiency of the evidence.

Damages for breach of contract must be shown with reasonable certainty, and
the plaintiff bears the burden of providing a rational estimate of the damages “without
resorting to speculation, but the specific amount of damages is committed to the
discretion of the factfinder.” Randy Kinder Excavating, Inc. v. J.A. Manning Constr.
Co., Inc., 899 F.3d 511, 520 (8th Cir. 2018) (internal quotation marks omitted).
(applying Missouri law). In a sufficiency of the evidence challenge, “[i]t is well
settled that we will not reverse a jury’s verdict for insufficient evidence unless, after
viewing the evidence in the light most favorable to the verdict, we conclude that no
reasonable juror could have returned a verdict for the non-moving party.” Ryther v.
KARE 11, 108 F.3d 832, 836 (8th Cir. 1997).

As to State Farm’s complaint that the damages models were insufficient
because they did not differentiate between tobacco and non-tobacco users, there was
no need for the damages models to take this mortality factor into account as this was
not a mortality factor listed in the policy. If State Farm’s stated mortality factors did
not make any differentiation between those who used tobacco products and those who
did not, there is no reason to believe that COI fees would be different as between
tobacco and non-tobacco users. As to State Farm’s argument that the damages
models were insufficient because they operated under the assumption that State Farm
did not pool mortality rates in spite of State Farm’s presentation of undisputed
evidence that they did pool mortality factors, this is nothing more than an attempt to
unwind the factual findings of the jury, which concluded that State Farm did not pool
its policies when calculating the COI rates. Because the jury concluded State Farm
did not pool its policies, the damages models that represented this fact were sufficient
to support the jury award.

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 State Farm further argues that the damages models were insufficient to support
the verdict because they failed to account for several months in which the COI fee
State Farm charged was actually less than a COI fee that considered only the
enumerated mortality factors. We find this argument unpersuasive. At trial, State
Farm presented an offset defense, arguing that State Farm was entitled to an offset for
amounts from months where it charged a COI fee that was less than what a COI fee
based on mortality factors would have included and Vogt presented a damages model
that accounted for State Farm’s claimed amount of offsets. As the damages model the
jury ultimately selected included State Farm’s offset amounts, we are unpersuaded by
State Farm’s argument. Finally, with respect to State Farm’s argument that the
damages models were insufficient because they improperly included policyholders
who received all the benefits to which they were entitled, we are similarly
unpersuaded. State Farm specifically argues that, upon death and payment of death
benefits, all benefits owing on account of a policyholder who selected a death benefit
option would be paid: the face amount of the insurance, not any amount of the
policy’s account value. Thus, State Farm asserts that the policyholder’s beneficiaries
no longer have an interest in the account value. Instead, the policyholders’
beneficiaries are entitled to only the death benefits under the term of the policy.
Without an interest in the account value, State Farm argues, there can be no claim that
a deceased policyholder’s account value was wrongfully depleted by COI
overcharges. However, we see no reason to limit damages merely because death
benefits have been paid for a policyholder; that policyholder still suffered a depleted
account value during his lifetime due to State Farm’s overcharges of COI fees.
Vogt’s damages models, which measure the lost account value for all policyholders
during the period in which they held the policies, provide the most reasonable basis
for measuring the harm that was incurred during the life of the policyholders.

State Farm’s challenges to the sufficiency of the damages models, as a whole,
miscast the evidence presented to the jury and the verdict reached by the jury.
Mindful that we may reverse only where no reasonable juror could have reached a

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verdict in favor of Vogt, we reject State Farm’s argument that the damages models
were insufficient to support the jury award. The district court did not err in denying
State Farm’s motion for judgment as a matter of law based on the alleged
insufficiency of the damages models as evidence of damages suffered by class
members.

VI.

State Farm also takes aim at various evidentiary rulings of the district court,
asserting that the district court (1) incorrectly allowed Vogt to introduce late-
disclosed expert materials at trial; (2) erroneously excluded any evidence related to
the maximum rates State Farm was permitted to charge under the terms of the policy;
and (3) erroneously limited the testimony of State Farm’s expert. State Farm further
argues the cumulative effect of these rulings amounts to reversible error. State Farm
raised these evidentiary issues in its motion for new trial, the denial of which we
review for “a ‘clear’ abuse of discretion, with the key question being whether a new
trial is necessary to prevent a miscarriage of justice.” Hallmark Cards, Inc. v. Murley,
703 F.3d 456, 462 (8th Cir. 2013). Similarly, we review a district court’s evidentiary
rulings for an abuse of discretion and will reverse only if the evidentiary ruling “was
a clear and prejudicial abuse of discretion.” United States v. Mahasin, 362 F.3d 1071,
1084 (8th Cir. 2004). This standard requires “a showing that those rulings had a
substantial influence on the jury’s verdict.” McPheeters v. Black & Veatch Corp.,
427 F.3d 1095, 1101 (8th Cir. 2005).

A.

State Farm first argues that the district court erroneously allowed Vogt to
present three expert damages models at trial that were not timely disclosed. Vogt
originally provided his expert materials to State Farm on January 30, 2018, and
provided a supplement on February 5, 2018. State Farm does not dispute that these

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were properly and timely disclosed expert materials. But on May 16, 2018, after the
February 15, 2018 deadline for plaintiff’s rebuttal expert reports, Vogt provided State
Farm with three damages models that had not been previously disclosed. State Farm
asserts that these amount to new, untimely disclosed expert opinions that the district
court erroneously allowed Vogt to present to the jury. Further, State Farm asserts that
there is clear evidence that this prejudiced State Farm because the jury’s verdict
rejected the only damages model that had been timely disclosed, instead adopting a
damages model from the late-disclosed materials. Under Federal Rule of Civil
Procedure 26(a), the “failure to disclose [expert materials] in a timely manner is
equivalent to a failure to disclose.” Wegener v. Johnson, 527 F.3d 687, 692 (8th Cir.
2008) (quoting Trost v. Trek Bicycle Corp., 162 F.3d 1004, 1008 (8th Cir. 1998)).
Where a party fails to make a timely disclosure, Federal Rule of Civil Procedure
37(c)(1) provides the district court with the authority to exclude the late-disclosed
materials or to fashion a lesser penalty than total exclusion. See also Petrone v.
Werner Enters, Inc., 940 F.3d 425, 435 (8th Cir. 2019) (“Rule 37(c)(1) addresses
what to do if a party fails to disclose information as required by Rule 26(a) and
attempts to use that information on a motion, at a hearing, or at a trial.” (emphasis
omitted)).

Before considering whether the damages models violated Rule 26 and were
thus subject to the sanctions of Rule 37, we must first consider whether the damages
models were actually untimely disclosed expert materials or if they were merely
summaries of voluminous data that were admissible under Federal Rule of Evidence
1006. Rule 1006 allows a party to “use a summary, chart, or calculation to prove the
content of voluminous writings, recordings, or photographs that cannot be
conveniently examined in court,” provided that the party seeking to introduce the
summary “make[s] the originals or duplicates available for examination or copying,
or both, by other parties at a reasonable time and place.” “Summary evidence is
properly admitted when (1) the charts fairly summarize voluminous trial evidence;
(2) they assist the jury in understanding the testimony already introduced; and (3) the

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witness who prepared the charts is subject to cross-examination with all documents
used to prepare the summary.” United States v. Green, 428 F.3d 1131, 1134 (8th Cir.
2005) (internal quotation marks omitted). Summary evidence also may “include
assumptions and conclusions, but said assumptions and conclusions must be based
upon evidence in the record.” Id. (quoting United States v. Wainwright, 351 F.3d
816, 821 (8th Cir. 2003)).

In light of the fact that this case involves complicated and voluminous data
about the COI fees charged to numerous policyholders over a significant period of
time, the damages models are best characterized as summaries that Vogt introduced
to better aid the jury in understanding the evidence at trial. As the district court
noted, the additional damages models utilized the same methodology and calculations
as the previously disclosed expert materials, differing only insofar as they altered
assumptions to apply the theories that State Farm’s expert presented. The differences
between the originally disclosed damages models and the three later-produced
damages models are no more than different “assumptions and conclusions” that are
“based upon evidence in the record.” Id. (quoting Wainwright, 351 F.3d at 821).
And the district court did not allow Vogt to introduce these models at trial without
providing any recourse to State Farm. The district court allowed State Farm to
conduct a telephonic deposition of Vogt’s expert prior to trial and gave State Farm
the opportunity to both submit its own exhibit in response and have its expert
comment on the calculations in the new models.

For the foregoing reasons, we conclude that the damages models were
admissible as summaries of voluminous data, and the district court did not abuse its
discretion by allowing Vogt to introduce these models to the jury. Because we
conclude that these summaries were properly admissible under Rule 1006, we find
Rule 26 inapplicable. The district court thus did not err in denying the motion for
new trial on this basis.

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 B.

State Farm also asserts that the district court erroneously precluded State Farm
from presenting evidence regarding the maximum COI rates under the policy and that
State Farm never exceeded this rate, which State Farm argues was relevant to whether
any class member sustained any damages from the COI fees. We see no error in the
district court’s exclusion of this evidence because it is irrelevant to the determination
of whether class members were damaged by State Farm’s breach of contract in using
non-enumerated factors to assess COI fees.

Relevant evidence “has any tendency to make a fact more or less probable than
it would be without the evidence” and involves a “fact [that] is of consequence in
determining the action.” Fed. R. Evid. 401. Evidence of the maximum COI rates that
State Farm was allowed to charge under the policy fails under both guideposts. The
jury was tasked only with resolving the issue of damages because the district court
determined, via summary judgment, that Vogt had sufficiently demonstrated that
State Farm had breached the contract with its policyholders by collecting COI fees
based on non-enumerated factors. Whether State Farm charged COI fees below the
maximum rate stated in the policy has nothing to do with the question of whether
class members were damaged by State Farm’s collection of COI fees based on
impermissible factors under the policy. It thus does not make it more or less likely
that class members sustained damages from the overcharges, and the maximum COI
rates under the policy is not of consequence in determining damages sustained
through COI overcharges. Further, even if this proof had some arguable relevance,
the district court acted within its discretion in excluding this evidence because it
would serve no purpose other than to confuse or mislead the jury into revisiting issues
of liability that had already conclusively been determined. See Fed. R. Evid. 403;
Am. Bank of St. Paul v. TD Bank, N.A., 713 F.3d 455, 467 (8th Cir. 2013) (finding
no error where district court excluded evidence that was irrelevant and would tend to
confuse the jury). The district court thus committed no error in excluding evidence

-22-
related to State Farm’s maximum allowable COI rates charged under the policy and
in denying the motion for new trial on this basis.

C.

State Farm next argues that the district court erroneously limited the testimony
of its expert, preventing the expert from providing testimony about an actuarial
memorandum from State Farm’s New Jersey operations that State Farm argues was
relevant to whether State Farm pooled its mortality rates. The district court
prohibited State Farm from questioning its expert on this memorandum because it
concluded that the expert’s opinions in his report did not discuss the memorandum.
However, when Vogt’s counsel questioned the expert on cross-examination about the
memorandum, the district court allowed it. State Farm argues that this was in error
because it gave the jury the false impression that it was State Farm, not Vogt, that did
not want any testimony about the actuarial memorandum introduced into evidence.
State Farm asserts that preventing it from eliciting this testimony on direct
examination was prejudicial to State Farm’s case as a central question for the jury to
consider in assessing the question of damages was whether State Farm pooled its
mortality rates.

First, the district court was within its discretion to exclude this testimony
because State Farm’s expert did not offer any opinion on the New Jersey
memorandum in his expert report. See Fed. R. Civ. P. 26(a)(2)(B)(i) (explaining that
expert report is required to include “a complete statement of all opinions the witness
will express and the basis and reasons for them”); Fed R. Civ. P. 37(c)(1) (providing
for exclusion of untimely disclosed expert information). Second, even if the district
court’s ruling were erroneous, State Farm suffered no prejudice from either the
district court’s original decision to exclude the testimony or the district court’s
allowance of questions to this effect on cross examination because, once Vogt’s
counsel opened the door in cross examination of State Farm’s expert, State Farm

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could have questioned the expert about the memorandum on re-direct examination.
State Farm could have both used the memorandum for probative purposes and cured
any potential false impression about State Farm’s desire to use the information. That
State Farm did not avail itself of this opportunity does not create prejudice requiring
reversal. See McPheeters, 427 F.3d at 1101 (providing standard for finding prejudice
for erroneous evidentiary ruling). The district court did not err in limiting the
expert’s testimony, and in denying the motion for new trial on this basis.

D.

State Farm finally argues that, even if the alleged errors do not individually
warrant reversal, the cumulative effect of the rulings does. But “[w]e will not reverse
based upon the cumulative effect of errors unless there is substantial prejudice to the
defendant, and we have declined to apply the doctrine when the evidentiary rulings
are within the trial court’s discretion.” McPheeters, 427 F.3d at 1106 (quoting United
States v. Gladfelter, 168 F.3d 1078, 1083 (8th Cir. 1999)). As we have found that all
of the evidentiary rulings State Farm challenges were within the district court’s
discretion, we find no cumulative error requiring reversal.

VII.

State Farm next challenges the judgment in favor of Vogt on the conversion
claim, arguing both that the conversion claim fails as a matter of law and that the
district court erroneously instructed the jury. State Farm renews arguments it raised
in its motion for new trial, which the district court denied. Again, we review the
denial of a motion for new trial for clear abuse of discretion. Hallmark Cards, 703
F.3d at 462.

Vogt asserted a conversion claim under Missouri law, and we review the
district court’s interpretation of state law de novo. St. Paul Fire & Marine Ins. Co.

-24-
v. Schrum, 149 F.3d 878, 880 (8th Cir. 1998). State Farm presents two arguments as
to why Vogt’s conversion claim fails under Missouri law, each equally unavailing.
First, State Farm argues that money cannot be the subject of a conversion claim and
therefore the money involved in COI overcharges cannot have been converted. But
State Farm ignores that Missouri law recognizes an exception to the general rule that
money cannot be converted: “[C]onversion does not ordinarily lie for money
represented by a general debt. However, the rule is otherwise as to funds placed in
the custody of another for a specific purpose and their diversion for other than such
specified purpose subjects the holder to liability in conversion.” Dillard v. Payne,
615 S.W.2d 53, 55 (Mo. 1981) (citations omitted). Here, policyholders submitted
payments to State Farm with the intention that State Farm add those amounts to their
account values. They did not authorize State Farm to deduct amounts from their
accounts for COI fees based on factors other than those listed in the policy. Thus,
State Farm’s unauthorized deductions fall within the exception recognized under
Missouri law.

Second, State Farm asserts that the conversion claim is barred by the economic
loss doctrine, which Missouri law recognizes “bars recovery of purely pecuniary
losses in tort where the injury results from a breach of a contractual duty.” Dubinsky
v. Mermart, LLC, 595 F.3d 812, 819 (8th Cir. 2010) (internal quotation marks
omitted) (applying Missouri law). However, State Farm again ignores Missouri law
that expressly limits this doctrine to warranty and negligence or strict liability claims.
See, e.g., Renaissance Leasing, LLC v. Vermeer Mfg. Co., 322 S.W.3d 112, 130-31
(Mo. 2010) (en banc) (“Under Missouri law, remedies for economic loss sustained
by reason of damage to or defects in products sold are limited to those under the
warranty provisions of the UCC.”); Sharp Bros. Contracting Co. v. Am. Hoist &
Derrick Co., 703 S.W.2d 901, 903 (Mo. banc 1986) (explaining that the economic
loss doctrine precludes “recovery on a theory of strict liability in tort, as a matter of
policy, where the only damage is to the product sold”). As the district court correctly
noted in rejecting this argument, “Missouri courts have never extended the economic

-25-
loss doctrine beyond the doctrine’s traditional moorings as policing the boundaries
between warranty and negligence[.]” R. Doc. 71, at 6. The district court thus did not
err in its interpretation of Missouri law and did not abuse its discretion in denying the
motion for new trial on this basis.

As to State Farm’s claim that the jury instructions erroneously stated the
elements of conversion, “[w]e review a district court’s formulation of jury
instructions for an abuse of discretion and its interpretation of law de novo.” United
States v. Spotted Horse, 916 F.3d 686, 691 (8th Cir.) (quoting United States v. Farah,
899 F.3d 608, 614 (8ht Cir. 2018)), cert. denied, 140 S. Ct. 196 (2019). “We afford
the district court broad discretion in choosing the form and language of the
instructions, and our review is limited to a determination of whether the instructions,
taken as a whole and viewed in the light of the evidence and applicable law, fairly
and accurately submitted the issues to the jury.” Slidell, Inc. v. Millennium Inorganic
Chems., Inc., 460 F.3d 1047, 1054 (8th Cir. 2006).

The district court gave the following instruction to the jury:

Your verdict must be for Plaintiffs on their claim for conversion if you
believe:

First, each Plaintiff was the owner of the Account Value.

Second, State Farm took non-mortality factors into account when
making deductions from the Account Value for the monthly Cost of
Insurance rates.

Third, one or more of the Plaintiffs was thereby damaged.

Fourth, as a result, State Farm deprived any Plaintiff who was damaged
of possession of the portion of the funds in the Account Value
attributable to non-mortality factors.

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 It has previously been determined that the first, second, and fourth
elements are established as a matter of law. You must treat those
elements as having been proved. Therefore, your verdict must be for
Plaintiffs on their claim for conversion if you believe that one or more
Plaintiffs suffered damages as a result of State Farm’s use of non-
mortality factors to set the monthly Cost of Insurance rates that Plaintiffs
paid.

R. Doc. 356, at 20. State Farm argues that this instruction was an erroneous statement
of the law because it absolved class members of the obligation to show a specific
corpus from which funds were diverted, and instead allowed Vogt to prevail by
proving only damages, which is not an element of conversion. See IOS Capital, LLC
v. Allied Home Mortg. Capital Corp., 150 S.W.3d 148, 153 (Mo. Ct. App.
2004) (“The elements of a cause of action for conversion are: (1) the plaintiff was the
owner of the property or entitled to possession of the property, (2) the defendant took
possession of the property with the intent to exercise some control over it, and (3) the
defendant thereby deprived the plaintiff of the right to possession of the property.”).
We are unpersuaded by this argument. The district court’s inclusion of the word
“damages” in the instruction did not replace the requirement of a specific, identifiable
corpus with a mere showing of damages. Instead, the district court’s inclusion of the
phrase “damages” served to convey that a plaintiff must show the specific funds that
were converted from his account in order to prevail on this claim. And, in granting
in part Vogt’s motion for summary judgment on the breach of contract claim, the
district court determined that, as a matter of law, each plaintiff was entitled to
possession of money deducted from the account value based on non-morality factors;
to the extent State Farm appropriated these funds, it was wrongful; and State Farm
deprived each plaintiff of the right to possess the full account value. Thus, the district
court’s formulation of the conversion instruction served to isolate the remaining
questions for the jury: whether State Farm had deducted amounts for COI fees that
were based on non-enumerated factors, and if so, in what amount. This instruction
is consistent with the elements of conversion under Missouri law. Because the

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district court properly instructed the jury on the conversion claim, it did not err in
denying State Farm’s motion for new trial.

VIII.

On cross-appeal, Vogt asserts that the district court erred by denying
prejudgment interest, arguing that a Missouri statute mandates prejudgment interest
on liquidated claims for breach of contract, which is the type of claim the class
pursued, and that the same statute applies to conversion claims. Vogt contends that
the district court erroneously determined that the policy precluded the award of
prejudgment interest at the statutory rate, and, at the very least, should have awarded
prejudgment interest by utilizing the 4% rate included in the policy. “Whether the
district court had authority to grant prejudgment interest is a question of state law
which we review de novo.” Transit Cas. Co. v. Selective Ins. Co. of Se., 137 F.3d
540, 546 (8th Cir. 1998). “In a diversity case, the question of prejudgment interest
is a substantive one, controlled by state law[,]” here, Missouri law. Emmenegger v.
Bull Moose Tube Co., 324 F.3d 616, 624 (8th Cir. 2003).

Under Mo. Rev. Stat. § 408.020,

Creditors shall be allowed to receive interest at the rate of nine percent
per annum, when no other rate is agreed upon, for all moneys after they
become due and payable, on written contracts, and on accounts after
they become due and demand of payment is made; for money recovered
for the use of another, and retained without the owner’s knowledge of
the receipt, and for all other money due or to become due for the
forbearance of payment whereof an express promise to pay interest has
been made.

“Where an agreement is reached by the parties regarding the interest rate, even if the
agreement is that no interest will be paid or established the interest rate to be zero
percent, it will be enforced.” G&G Mech. Constructors, Inc. v. Jeff City Indus., Inc.,

-28-
549 S.W.3d 492, 496 (Mo. Ct. App. 2018). Section 408.020 also applies to
conversion claims. Stromberg v. Moore, 170 S.W.3d 26, 32 (Mo. Ct. App. 2005).

The district court determined that the inclusion of an interest rate of 4% in the
policy precluded an award of prejudgment interest at the statutory rate because the
4% represented the “other rate . . . agreed upon” in Mo. Rev. Stat. § 408.020.
Specifically, the policy contains an “Interest” provision, which states:

An interest rate of at least 4% a year will be applied to the account
value. The rate applied to the amount of account value up to the amount
of any loan may differ from the rate applied to the account value in
excess of the amount of any loan. We will determine these rates at least
once a year.

R. Doc. 167-2, at 11. Although this provision does not speak directly to prejudgment
interest, we are satisfied that the parties agreed, by the terms of the contract, that the
interest rate to be applied to all policyholder funds held by State Farm was to be 4%.
See Manfield v. Auditorium Bar & Grill, Inc., 965 S.W.2d 262, 270 (Mo. Ct. App.
1998) (“If the legislature had intended for the statutory interest rate to apply where,
as here, there is an agreement as to the rate of interest to be charged, but no separate
and specific agreement as to whether the same rate is to be charged after maturity or
default, it could have simply said so. It did not.”). In the face of this express
agreement, a higher rate of interest is precluded.

Although we conclude the district court correctly denied Vogt’s request for
prejudgment interest at the statutory rate, Vogt is entitled to prejudgment interest at
the 4% rate contained in the contract. State Farm asserts that Vogt has already been
awarded this amount because it was included in the damages model the jury
ultimately selected at trial. Vogt counters that while the damages model included the
contract rate on each class member’s account value through the date each policy was
surrendered or terminated, it does not include any prejudgment interest amount for

-29-
the time following surrender or termination. We agree with Vogt that the policy
holders are entitled to prejudgment interest at the contractual rate of 4% up until the
date of judgment, not merely up until the date of termination or surrender. We further
agree with Vogt that the damages model does not include the 4% interest rate beyond
the date of termination or surrender of a given policy. Because the damages model
does not include prejudgment interest for the entire time up until judgment, the
district court erroneously denied Vogt’s motion for an award of prejudgment interest.
Accordingly, we reverse and remand to the district court for reconsideration of the
motion, consistent with this analysis.

IX.

For the foregoing reasons, we affirm in part and reverse and remand in part.
Vogt’s motion to file a supplemental appendix is denied.
______________________________

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