Win Myint and wife Patti KI. Myint v. Allstate Insurance Company

IN THE SUPREME COURT OF TENNESSEE

AT NASHVILLE

WIN MYINT and wife ) FOR PUBLICATION

PATTI K. MYINT )

) FILED: JUNE 1, 1998

Plaintiffs/Appellants )

) DAVIDSON COUNTY

v. )

) HON. CHRISTINA NORRIS,

ALLSTATE INSURANCE COMPANY ) Special Chancellor

)

Defendant/Appellee ) NO. 01-S-01-9612-CH-00238

For Appellants:

JOSEPH H. JOHNSTON

For Appellee:

BARRY FRIEDMAN

FILED

Nashville, TN PAIGE WALDROP MILLS

JOHN D. SCHWALB June 1, 1998

Nashville, TN

JON L. FLEISCHAKER Cecil W. Crowson

Louisville, KY Appellate Court Clerk

For Amicus Curiae:

EDWARD K. LANCASTER

Columbia, TN

Tennessee Farmers Mutual Insurance Company

J. RICHARD LODGE

E. CLIFTON KNOWLES

Nashville, TN

State Farm Mutual Automobile Insurance

Company

THOMAS H. PEEBLES, III

G. BRIAN JACKSON

Nashville, TN

National Association of Independent Insurers

and The Alliance of American Insurers

JOHN KNOX WALKUP

STEPHEN C. KNIGHT

Nashville, TN

State of Tennessee

OPINION

JUDGMENT OF THE COURT OF APPEALS

REVERSED IN PART AND AFFIRMED IN PART BIRCH, J.

In this cause, the insuror refused to pay a claim under

a policy of insurance. The insured contends that such refusal

constitutes an “unfair or deceptive act or practice,” in violation

of the Consumer Protection Act, Tenn. Code Ann. §§ 47-18-101, et

seq.1 In contrast, the insuror insists that Tenn. Code Ann. § 56-

7-105,2 commonly known as the “bad faith statute,” is the exclusive

remedy for the bad faith denial of an insurance claim. Because

Title 56, Chapters 7 and 8 of the Tennessee Code comprehensively

regulates the insurance industry, the insuror insists that the acts

and practices of an insurance company are never subject to the

Consumer Protection Act.

1

Tennessee Code Annotated § 47-18-109 (1995) provides the

remedies for a violation of the Consumer Protection Act:

(a)(1) Any person who suffers an ascertainable loss

of money or property, real, personal, or mixed, . . . as

a result of the use or employment by another person of an

unfair or deceptive act or practice declared to be

unlawful by this part, may bring an action individually

to recover actual damages.

. . . .

(a)(3) If the court finds that the use or employment

of the unfair or deceptive act or practice was a willful

or knowing violation of this part, the court may award

three (3) times the actual damages sustained and may

provide such other relief as it considers necessary and

proper.

2

Tennessee Code Annotated § 56-7-105(a)(1989) provides:

[I]nsurance companies . . . , in all cases when a

loss occurs and they refuse to pay the loss within sixty

(60) days after a demand has been made by the holder of

the policy or fidelity bond on which the loss occurred,

shall be liable to pay the holder of the policy or

fidelity bond, in addition to the loss and interest

thereon, a sum not exceeding twenty-five percent (25%) on

the liability for the loss; provided, that it is made to

appear to the court or jury trying the case that the

refusal to pay the loss was not in good faith, and that

such failure to pay inflicted additional expense, loss,

or injury upon the holder of the policy . . . .

2

We find, for the reasons stated herein, that the acts and

practices of an insurance company may, indeed, be subject to the

Consumer Protection Act. We conclude, however, that the facts

before us do not evince an act “affecting the conduct of any trade

or commerce” such as would be subject to the Consumer Protection

Act.

I

The property herein involved is a two-unit structure

located at 224 Treutland Street in Nashville. The appellants, Win

and Patti Myint, purchased it in 1983 and began leasing the units.

Since 1989, they maintained insurance coverage on the structure

with the appellee, Allstate Insurance Company, under a “landlord’s

package” policy. The structure was insured for its estimated

market value--$61,000. In April 1991, the ground floor tenant

reported water leaking from the second floor. Repairs were made,

and the Myints received no further complaints.

In June 1991, Win Myint inspected the property and

discovered that water leaking from the second-floor kitchen sink

had extensively damaged the ceiling and walls of the ground-level

unit. Win Myint then initiated the eviction process against the

tenants so that he might make necessary repairs.

When one of those tenants applied for subsidized housing,

the Metropolitan Development and Housing Authority investigated her

housing status. In processing the application, a building codes

officer inspected the property and reported several code

3

violations. On August 5, 1991, the Myints received notice of the

codes violations from the chief housing inspector of the Codes

Department of the Metropolitan Government of Nashville and Davidson

County. The notice described the property as “unfit for human

habitation,” and a hearing was set for August 20, 1991. The Myints

failed to attend the hearing, and the property was classified as

“H-6."3 The Myints were ordered to relocate the structure or

demolish it.

On September 27, 1991, the Myints filed a claim with

Allstate for the damage caused by the water, and Allstate sent an

adjuster to inspect the property. While the claim for water damage

was pending, the Myints began to make repairs. On September 30,

1991, Allstate informed them that the claim had been denied because

the damage had been caused by slowly leaking water, which is

excluded from coverage by the terms of the policy.

On October 1, 1991, the codes officials ordered a halt to

the repair process because the Myints had not obtained the

appropriate permit. Consequently, the Myints applied for a permit,

but this application was denied because the property had been

previously scheduled for demolition.

3

Dorsey Barnett, the Metropolitan Codes Department housing

inspector who examined the property, explained that an H-6

structure is usually scheduled for demolition. However, not all

H-6 structures are ultimately demolished. The Codes Department

often lists borderline cases, such as this one, as H-6 in order to

force the property owner to make the necessary repairs as soon as

possible. Should repair of an H-6 structure be denied, the owner

must first appeal to the Housing Appeals Board for a variance. The

variance then entitles the owner to obtain a permit to repair the

structure.

4

On October 18, 1991, Allstate notified the Myints that

the contract of insurance would be terminated as of December 2,

1991. At trial, an Allstate employee testified that the

cancellation was due to the overall poor condition of the property,

as Allstate’s adjuster had observed when he inspected the water

damage. On October 23, 1991, a small fire in the basement of the

property caused minor smoke damage; it is unclear whether the

Myints notified Allstate of this occurrence. Three days later, on

October 26, 1991, a second fire engulfed the property and caused

substantial damage. The Myints then applied for a variance in

order to obtain a building permit. The Metropolitan Board of

Housing Code Appeals granted the variance, giving the Myints until

September 1, 1992, to bring the property into compliance with code

requirements.

On January 10, 1992, the Myints filed with Allstate

“sworn statements in proof of loss” for the fire damage. Because

Allstate failed to respond as of June 17, 1992, the Myints’

attorney wrote Allstate demanding a decision on the claim. On June

23, 1992, Allstate denied the claim, citing two policy violations:

(1) the Myints intentionally set fire to the property for the

purpose of collecting the insurance proceeds; and (2) the fire

damage was the result of an increase in hazard created by the

Myints’ failure to maintain the property. While the parties

stipulated that both fires had been intentionally set, the Myints

have always denied any involvement in the setting of the fire.

The Myints subsequently filed suit against Allstate for

breach of the insurance policy, violation of the bad faith statute,

5

and violation of the Consumer Protection Act.4 Prior to trial, the

trial court dismissed the claim for relief under the Consumer

Protection Act. The jury found Allstate liable under the terms of

the insurance policy and awarded the Myints $45,000 in damages,

subject to a $250 deductible. The jury’s award reflected the

decrease in the market value of the residence, from approximately

$50,000 to $5,000, caused by the fire. The jury further determined

that Allstate did not deny the claim in bad faith; thus, the Myints

were not entitled to additional damages under the bad faith

statute. After the jury verdict, the trial court awarded $13,106

in prejudgment interest to the Myints, pursuant to Tenn. Code Ann.

§ 47-14-123 (1988).

The Court of Appeals reversed the trial court’s

prejudgment interest ruling and affirmed the judgment in all other

respects. The Court of Appeals reasoned that the Consumer

Protection Act is not applicable because the insurer’s bad faith

statute, Tenn. Code Ann. § 56-7-105, provides the exclusive remedy

for the bad faith refusal to pay an insurance claim. The Myints

now appeal that determination and also challenge the Court of

Appeals’ reversal of the trial court's award of prejudgment

interest. Pursuant to Tenn. R. App. P. 11, we granted the Myints’

application to address both issues.5

4

The Myints also sued the Metropolitan Government, seeking an

injunction to prevent demolition of the property. The suit against

the Metropolitan Government was subsequently dismissed for failure

to state a claim upon which relief could be granted.

5

With respect to the issue of whether the Consumer Protection

Act may apply to an insurance company’s decision to deny a claim,

the following parties were granted leave to file briefs as amicus

curiae: the Attorney General of the State of Tennessee, State Farm

Automobile Mutual Insurance Company, Tennessee Farmers Mutual

6

II

Allstate and the several insurance companies which filed

amicus briefs argue that the Consumer Protection Act does not apply

to the insurance industry because the comprehensive insurance

regulations in Title 56, Chapters 7 and 8 of the Tennessee Code

specifically address unfair or deceptive acts or practices on the

part of the insurance industry. Each asserts that Tenn. Code Ann.

§ 56-7-105, which provides a penalty for an insuror’s bad faith

refusal to pay a claim, is the exclusive remedy for such refusal.

The Myints and the Attorney General, on the other hand, urge that

the purposes of the insurance regulations and the Consumer

Protection Act are distinct, each with different standards of

liability, and each with different remedies. They insist that

under appropriate circumstances, both may apply. We note that

while this Court has never explicitly held the Tennessee Consumer

Protection Act applicable to insurance companies, we implicitly did

so in Morris v. Mack's Used Cars, 824 S.W.2d 538, 539-40 (Tenn.

1992). In Morris, we cited with approval to Skinner v. Steele, 730

S.W.2d 335 (Tenn. App. 1987), a case in which the Court of Appeals

expressly held that the insurance industry was not exempt from the

Act.

Construction of a statute is a question of law which we

review de novo, with no presumption of correctness. Roseman v.

Roseman, 890 S.W.2d 27, 29 (Tenn. 1994). The role of the Court in

construing statutes is to ascertain and give effect to legislative

Insurance Company Association, National Association of Independent

Insurers, and the Alliance of American Insurers.

7

intent. Wilson v. Johnson County, 879 S.W.2d 807, 809 (Tenn.

1994). Legislative intent is to be ascertained whenever possible

from the natural and ordinary meaning of the language used, without

forced or subtle construction that would limit or extend the

meaning of the language. Carson Creek Vacation Resorts, Inc. v.

Department of Revenue, 865 S.W.2d 1, 2 (Tenn. 1993). Here, the

language of the statutes at issue provide ample evidence that the

legislature did not intend to exclude insurance companies from the

purview of the Consumer Protection Act.

First, we examine the insurance regulations which

Allstate and several amicae insist are the exclusive means of

sanctioning insurance companies for unfair or deceptive acts or

practices. The Insurance Trade Practices Act, Tenn. Code Ann. §§

56-8-101 et seq., was passed in 1981 for the purpose of

regulat[ing] trade practices in the

business of insurance . . . by

defining, or providing for the

determination of, all such practices

in this state which constitute

unfair methods of competition or

unfair or deceptive acts or

practices and by prohibiting the

trade practices so defined or

determined.

Tenn. Code Ann. § 56-8-101 (1994). Section 56-8-104 specifically

lists the acts which constitute unfair competition or deceptive

acts, including unfair claim settlement practices. Tenn. Code Ann.

§ 56-8-104(8) (1994). The Insurance Trade Practices Act gives the

Commissioner of Commerce and Insurance broad authority to

investigate violations of the Act, issue cease and desist orders,

impose civil penalties, and order suspension or revocation of

8

insurance licenses. Tenn. Code Ann. §§ 56-8-107 & -109(a) (1994).

No private right of action may be maintained under the Act. Tenn.

Code Ann. § 56-8-104(8).

While the Insurance Trade Practices Act focuses on the

comprehensive regulation of insurance industry practices, the bad

faith statute, Tenn. Code Ann. § 56-7-105, focuses on specific

instances of bad faith. Enacted in 1901, the bad faith statute

provides a private right of action to an individual injured by an

insurance company’s refusal to pay a claim, if the refusal “was not

in good faith.”

We find nothing in either the Insurance Trade Practices

Act or the bad faith statute which limits an insured’s remedies to

those provided therein. Allstate argues that Tenn. Code Ann. § 56-

8-103 “plainly states that it is the sole means” for regulating

unfair or deceptive insurance acts or practices. Section 56-8-103

(1995) provides:

No person shall engage in this state

in any trade practice which is

defined in this chapter as, or

determined pursuant to § 56-8-108 to

be, an unfair method of competition

or an unfair or deceptive act or

practice in the business of

insurance.

This language cannot reasonably be construed as limiting the

remedies available outside the Insurance Trade Practices Act.

Likewise, the language in Tenn. Code Ann. § 56-8-101, explaining

the purpose of the Insurance Trade Practices Act, is not relevant

to whether a private right of action created outside the Act is

9

available to a consumer who is harmed by an insurance company’s act

or practice. We therefore conclude that the insurance regulations

in Title 56, Chapters 7 and 8 of the Tennessee Code do not

foreclose application of the Consumer Protection Act to insurance

companies.

Next, we examine the Consumer Protection Act to determine

whether the acts and practices of insurance companies are outside

its scope. Clearly, they are not. The Consumer Protection Act is

remedial, rather than regulatory in nature, and it specifically

provides a private right of action for any “[u]nfair or deceptive

acts or practices affecting the conduct of any trade or commerce.”

Tenn. Code Ann. §§ 47-18-104(a) & -109(a)(1) (1995 & Supp. 1997).

Within the Act is an nonexclusive list of the unfair or deceptive

acts or practices which are prohibited. This list does not

specifically address the acts or practices of insurance companies,

but it includes a general, “catch-all” provision which prohibits

“[e]ngaging in any other act or practice which is deceptive to the

consumer or to any other person.” Tenn. Code Ann. § 47-18-

104(b)(27) (Supp. 1997).

Additionally, it is significant that the Consumer

Protection Act specifically exempts certain entities and

transactions from the prohibitions of the Act. Tennessee Code

Annotated § 47-18-111 (1995) states:

(a) The provisions of this

part do not apply to:

(1) Acts or transactions

required or specifically authorized

under the laws administered by, or

10

rules and regulations promulgated

by, any regulatory bodies or

officers acting under the authority

of this state or of the United

States;

(2) A publisher, broadcaster,

or other person principally engaged

in the preparation or dissemination

of information or the reproduction

of printed or pictorial matter, who

has prepared or disseminated such

information or matter on behalf of

others without notification from the

division that the information or

matter violates or is being used as

a means to violate the provisions of

this part;

(3) Credit terms of a

transaction which may be otherwise

subject to the provisions of this

part, except insofar as the

Tennessee Equal Consumer Credit Act

of 1974, compiled in part 8 of this

chapter may be applicable; or

(4) A retailer who has in good

faith engaged in the dissemination

of claims of a manufacturer or

wholesaler without actual knowledge

that such claims violated this part.

Insurance companies are not mentioned in this statute. Because

exemptions in other areas have been explicitly addressed, the

omission of an exemption for insurance companies strongly indicates

that no such exemption was intended.

Moreover, to exempt insurance companies from the purview

of the Consumer Protection Act would frustrate the purposes of the

Act, which include:

(1) To simplify, clarify, and

modernize state law governing the

protection of the consuming public

and to conform these laws with

existing consumer protection

policies;

11

(2) To protect consumers and

legitimate business enterprises from

those who engage in unfair or

deceptive acts or practices in the

conduct of any trade or commerce in

part or wholly within this state;

(3) To encourage and promote

the development of fair consumer

practices;

(4) To declare and to provide

for civil legal means for

maintaining ethical standards of

dealing between persons engaged in

business and the consuming public to

the end that good faith dealings

between buyers and sellers at all

levels of commerce be had in this

state; and

(5) To promote statewide

consumer education.

Tenn. Code Ann. § 47-18-102 (1995). Furthermore, the legislature

has explicitly required that the Act be liberally construed in

order to effectuate these purposes. Id. Section 47-18-115 (1995)

further emphasizes the point: “This part, being deemed remedial

legislation necessary for the protection of the consumers of the

state of Tennessee and elsewhere, shall be construed to effectuate

the purposes and intent.”

Finally, the most decisive language is found in Tenn.

Code Ann. § 47-18-112 (1995):

The powers and remedies provided in

this part shall be cumulative and

supplementary to all other powers

and remedies otherwise provided by

law. The invocation of one power or

remedy herein shall not be construed

as excluding or prohibiting the use

of any other available remedy.

12

This language is crystal clear. Even when a different code section

applies and is invoked to obtain relief, the Consumer Protection

Act may also apply, assuming the act or practice in question falls

within the scope of its application.

Therefore, the mere existence of comprehensive insurance

regulations does not prevent the Consumer Protection Act from also

applying to the acts or practices of an insurance company. In this

context, the legislature has enacted a trilogy of statutes which,

on their faces, apply to unfair and deceptive insurance trade acts

and practices. We consider the Insurance Trade Practices Act, the

bad faith statute, and the Consumer Protection Act as complementary

legislation that accomplishes different purposes, and we conclude,

accordingly, that the acts and practices of insurance companies are

generally subject to the application of all three.

The next question is whether the particular act at issue

here--the denial of the Myints’ claim--violated the Consumer

Protection Act. The stated purpose of the Consumer Protection Act

is “[t]o protect consumers and legitimate business enterprises from

those who engage in unfair or deceptive acts or practices in the

conduct of any trade or commerce in part or wholly within this

State.” Tenn. Code Ann. § 47-18-102(2) (1988). The terms “trade,”

“commerce,” and “consumer transaction” are defined by the Act to

mean

the advertising, offering for sale,

lease or rental, or distribution of

any goods, services, or property,

tangible or intangible, real,

personal, or mixed, and other

13

articles, commodities or things of

value wherever situated.

Tenn. Code Ann. § 47-18-103(9) (1988).

While the sale of a policy of insurance easily falls

under this definition of “trade” and “commerce,” we conclude that

Allstate’s conduct in handling the Myints’ insurance policy was

neither unfair nor deceptive. The record reveals no evidence of an

attempt by Allstate to violate the terms of the policy, deceive the

Myints about the terms of the policy, or otherwise act unfairly.

It is apparent that the denial of the Myints’ claim was Allstate’s

reaction to circumstances which Allstate believed to be suspicious.

Consequently, Allstate’s conduct does not fall within the purview

of the Tennessee Consumer Protection Act, and the Myints are not

entitled to the benefits of treble damages and attorney’s fees

recoverable under the Act. The trial court’s dismissal of the

Consumer Protection Act claim and the subsequent approval of that

dismissal by the Court of Appeals is therefore affirmed.

III

The final issue is whether the trial court properly

awarded prejudgment interest to the Myints. They requested the

prejudgment interest pursuant to Tenn. Code Ann. § 47-14-123

(1988), which provides:

Prejudgment interest, i.e., interest

as an element of, or in the nature

of, damages, as permitted by the

statutory and common laws of the

state as of April 1, 1979, may be

awarded by courts or juries in

14

accordance with the principles of

equity at any rate not in excess of

a maximum effective rate of ten

percent (10%) per annum . . . .

The trial court’s award of $13,106 in prejudgment interest was

calculated under the simple interest method by applying a 10%

annual interest rate to the judgment amount of $44,750 from June

26, 1991, the date the insurance claim was denied, to May 31, 1995,

the date the trial court’s judgment was entered.

An award of prejudgment interest is within the sound

discretion of the trial court and the decision will not be

disturbed by an appellate court unless the record reveals a

manifest and palpable abuse of discretion. Spencer v. A-1 Crane

Service, Inc., 880 S.W.2d 938, 944 (Tenn. 1994); Otis v. Cambridge

Mut. Fire Ins. Co., 850 S.W.2d 439, 446 (Tenn. 1992). This

standard of review clearly vests the trial court with considerable

deference in the prejudgment interest decision. Generally stated,

the abuse of discretion standard does not authorize an appellate

court to merely substitute its judgment for that of the trial

court. Thus, in cases where the evidence supports the trial

court’s decision, no abuse of discretion is found. See State v.

Grear, 568 S.W.2d 285, 286 (Tenn. 1978) (applying abuse of

discretion standard to trial court’s decision to deny request for

suspended sentence), cert. denied, 439 U.S. 1077, 99 S. Ct. 854, 59

L. Ed.2d 45 (1979).

Several principles guide trial courts in exercising their

discretion to award or deny prejudgment interest. Foremost are the

15

principles of equity. Tenn. Code Ann. § 47-14-123. Simply stated,

the court must decide whether the award of prejudgment interest is

fair, given the particular circumstances of the case. In reaching

an equitable decision, a court must keep in mind that the purpose

of awarding the interest is to fully compensate a plaintiff for the

loss of the use of funds to which he or she was legally entitled,

not to penalize a defendant for wrongdoing. Mitchell v. Mitchell,

876 S.W.2d 830, 832 (Tenn. 1994); Otis, 850 S.W.2d at 446.

In addition to the principles of equity, two other

criteria have emerged from Tennessee common law. The first

criterion provides that prejudgment interest is allowed when the

amount of the obligation is certain, or can be ascertained by a

proper accounting, and the amount is not disputed on reasonable

grounds. Mitchell, 876 S.W.2d at 832. The second provides that

interest is allowed when the existence of the obligation itself is

not disputed on reasonable grounds. Id. (citing Textile Workers

Union v. Brookside Mills, Inc., 205 Tenn. 394, 402, 326 S.W.2d 671,

675 (1959)).

We note that these criteria, if strictly construed, could

prohibit the recovery of prejudgment interest in the vast majority

of cases. Indeed, only a liquidated claim, for which prejudgment

interest is already recoverable as a matter of right under Tenn.

Code Ann. § 47-14-109,6 can truly be considered an obligation of

certain and indisputable amount. Further, it is safe to say that,

6

Section 47-14-109(b) (1995) provides: "Liquidated and

settled accounts, signed by the debtor, shall bear interest from

the time they become due, unless it is expressed that interest is

not to accrue until a specific time therein mentioned.”

16

at trial, defendants usually can articulate at least one good

reason for disputing the existence of the obligation, for were it

otherwise, defendants would rarely survive summary judgment.

Finally, the focus on whether the defendant had a reasonable

defense ignores the principle that prejudgment interest is not a

penalty imposed on the defendant for indefensible conduct.

Not surprisingly, an analysis of relevant case law

reveals that these criteria have not been used to deny prejudgment

interest in every case where the defendant reasonably disputed the

existence or amount of an obligation. More typically, courts

either use the certainty of a claim as support for an award of

prejudgment interest, or they do not discuss the certainty of the

claim at all. See, e.g., Mitchell, 876 S.W.2d at 832 (allowing

the award of interest where the existence and amount of the

obligation under a settlement agreement were not reasonably

disputed); Otis, 850 S.W.2d at 446 (allowing the award of interest

to a plaintiff whose right to recover under a fire insurance

contract was reasonably disputed on the grounds of arson and

misrepresentation); Performance Systems, Inc. v. First American

Nat. Bank, 554 S.W.2d 616, 619 (Tenn. 1977) (allowing the award of

interest, although the existence of the defendant’s obligation

under the lease was reasonably disputed); Johnson v. Tennessee

Farmers Mut. Ins. Co., 556 S.W.2d 750, 752 (Tenn. 1977)(allowing

the award of interest, although the amount of recovery under the

insurance claim was reasonably disputed); Uhlhorn v. Keltner, 723

S.W.2d 131, 138 (Tenn. App. 1986) (allowing award of interest in a

boundary dispute case, where the existence of any obligation to pay

rent and the amount of rent due were both reasonably disputed);

17

Schoen v. J.C. Bradford & Co., 667 S.W.2d 97, 101-02 (Tenn. App.

1984)(rejecting argument that prejudgment interest should not be

imposed when defendant appealed in good faith).7

Thus, we find that if the existence or amount of an

obligation is certain, this fact will help support an award of

prejudgment interest as a matter of equity. After all, the more

clear the fact that the plaintiff is entitled to compensatory

damages, the more clear the fact that the plaintiff is also

entitled to prejudgment interest as part of the compensatory

damages. The converse, however, is not necessarily true. The

uncertainty of either the existence or amount of an obligation does

not mandate a denial of prejudgment interest, and a trial court’s

grant of such interest is not automatically an abuse of discretion,

provided the decision was otherwise equitable. The certainty of

the plaintiff’s claim is but one of many nondispositive facts to

consider when deciding whether prejudgment interest is, as a matter

of law, equitable under the circumstances.

Turning to the facts at hand, the Court of Appeals found

that the trial court abused its discretion in awarding prejudgment

interest because the amount due was not certain and Allstate had a

7

But see Textile Workers Union, 205 Tenn. at 402-03, 326

S.W.2d at 675 (where the employer reasonably and in good faith

disputed its contractual obligation to provide vacation pay to

certain employees, there was no reasonable basis for allowance of

interest); Howard G. Lewis Construction Co. v. Lee, 830 S.W.2d 60,

66 (Tenn. App. 1991) (where the plaintiff requests $25,000 in

damages but receives only $11,000, there is too substantial a

controversy over the amount due, rendering the award of interest

an abuse of discretion). To the extent these cases suggest that

prejudgment interest can never be awarded when a claim is

reasonably disputed, regardless of any equitable considerations,

they are hereby overruled.

18

reasonable basis upon which to dispute the Myints’ right to

recovery. Concededly, Allstate did have a reasonable basis on

which to dispute liability in this case, considering the series of

events which led to the loss: (1) the Myints were notified by a

letter dated October 18, 1991, that their insurance policy would be

canceled as of December 2, 1991; (2) this cancellation was due to

the deteriorating condition of the house; (3) five days later, on

October 23, a small fire was intentionally set in the basement of

the house; and (4) on October 26, a second fire was intentionally

set, causing more extensive damage. Although no conclusive

evidence was adduced to support Allstate's suspicions that the

Myints were involved in the arsons, under these circumstances,

Allstate’s denial of the claim was certainly reasonable.

While the Myints’ right of recovery may have been

reasonably disputed, we are not convinced that the amount of

recovery was uncertain for the purposes of prejudgment interest.

The test for determining whether the amount of damages is certain

is not whether the parties agree on a fixed amount, for a fixed

amount would be a liquidated claim, and the plaintiff would have a

right to collect interest under Tenn. Code Ann. § 47-14-109(b).

Instead, the test is whether the amount of damages is ascertainable

by computation or by any recognized standard of valuation. This is

true even if there is a dispute over monetary value or if the

parties’ experts compute differing estimates of damage. See

Unlimited Equip. Lines v. Graphic Arts Centre, Inc., 889 S.W.2d

926, 942-43 (Mo. Ct. App. 1994); Community State Bank v. O’Neill,

553 N.E.2d 174, 177-78 (Ind. Ct. App. 1990). Here, the amount of

damages was ascertainable by two well-accepted methods of

19

valuation: by estimation of the cost to repair the fire damage,

and by calculation of the difference between the market value of

the house prior and subsequent to the fire. That these values were

contested by the parties does not preclude an award of prejudgment

interest.

Additional facts indicate that the trial court’s award of

prejudgment interest was an equitable decision. First, a jury

determined that the Myints did not commit arson and were legally

entitled to the insurance proceeds. Yet, they were without the use

of those proceeds from the date of the loss, October 1990, to the

trial court’s judgment in May 1995--a period of approximately four

and a half years. During that time, Allstate had full use of the

funds, while the Myints possessed only unproductive property.

Unquestionably, then, the Myints cannot be fully compensated

without the award of interest. Further, the trial court did not

allow the interest to begin accruing until the date Allstate denied

the claim, June 1991, rather than the date of the loss, as the

trial court did in Wilder v. Tennessee Farmers Mutual Ins. Co., 912

S.W.2d 722, 727 (Tenn. App. 1995) (award of interest beginning at

date of loss was abuse of discretion; two year period was more

appropriate under the circumstances).

In conclusion, we find that there is evidence here to

support the award of prejudgment interest. Consequently, the trial

court’s decision was not a “manifest and palpable abuse of

discretion,” and, as a matter of law, we are constrained to sustain

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the trial court’s judgment, even if we were to disagree with it.8

IV

In sum, we hold that the Consumer Protection Act,

although applicable to the insurance industry as a whole, does not

provide a right to recovery to the Myints for the denial of their

insurance claim. Further, under the circumstances of this case, we

find no error in the award of prejudgment interest. Accordingly,

we affirm the Court of Appeals’ dismissal of the claim made under

the Consumer Protection Act. We reverse the Court of Appeals’

decisions that the Consumer Protection Act does not apply to

insurance companies and that the prejudgment interest award was an

abuse of discretion.

______________________________

ADOLPHO A. BIRCH, JR., Justice

8

As a final matter, Allstate argues that it had a

constitutional right to have the issue of prejudgment interest

decided by a jury, under Article I, § 6 of the Tennessee

Constitution. Allstate cites one unpublished decision for support,

a decision which has already been implicitly overruled by Mitchell,

876 S.W.2d at 832, on the issue of pleading requirements for

prejudgment interest.

We find Allstate’s argument without merit. As Tenn. Code Ann.

§ 47-14-123 indicates, prejudgment interest is awarded as a matter

of equity. The right to a jury in an equitable matter is not the

common law right guaranteed by the constitution. Rather, the right

exists only to the extent provided by Tenn. Code Ann. § 21-1-103.

This statute provides a right to have “any material fact in

dispute” tried by a jury in chancery, but it does not require that

the jury also decide all mixed questions of law and fact. See

Wright v. Quillen, 909 S.W.2d 804, 813-14 (Tenn. App. 1995); Sasser

v. Averitt Express, Inc., 839 S.W.2d 422, 434 (Tenn. App. 1992).

In this case, the jury found the facts, and the court decided

whether an award of prejudgment interest was equitable in light of

those facts. We do not find this improper.

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CONCUR:

Anderson, C.J.

Drowota, Holder, JJ.

Reid, S.J.

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