explaining that “if a (property loss) demand’s value is unascertainable until its quantum is judicially settled, no prejudgment interest is the victor’s due.”
How later courts described this case
- explaining that “if a (property loss) demand’s value is unascertainable until its quantum is judicially settled, no prejudgment interest is the victor’s due.”
- stating recovery of attorney’s fees under § 3629(B) “embraces both contract- and tort-related theories of liability so long as the ‘core element’ of the damages [recovered] is composed of the insured loss.”
- “[I]ndemnity for loss (under the contract) constitutes the centerpiece element of damages included in every ex delicto recovery for bad-faith refusal to settle.” (emphasis omitted)
- discussing the “ex contractu underpinnings” to “a bad-faith tort claim for refusal to settle”
Written by the judges who cited it.
The opinion
OPALA, J.
¶ 1 In conformity to the Uniform Certification of Questions of Law Act,
1
the United States Court of Appeals for the Tenth Circuit (“certifying court”) submitted the following questions:
(1) To what extent, if any, does
Brashier v. Farmers Insurance Co.
.. .
2
preclude trial court allowance of attorney fees and prejudgment interest under Okla. Stat. Ann. tit. 36, § 3629 (B)
3
in insurance bad
*1256
faith cases in which the insured does not also recover on a contract claim?
(2) Following
Brashier,
are insurance bad faith claimants proceeding under Oklahoma law precluded from recovering attorney’s fee and prejudgment interest in cases in which a claim is predicated on tort rather than contract?
¶ 2 As we understand the
first question,
it calls for an answer to whether
Brashier
construes the terms of
36 O.S.1991 § 3629(B)
to bar an award of attorney’s fee and prejudgment interest in actions rested on a theory other than
ex contractu. We answer in the negative.
Recovery authorized by § 3629(B) embraces both contract- and tort-related theories of liability so long as the “core element” of the damages
sought
and
awarded
is composed of the insured loss.
4
Brashier
does not address itself to the insured’s right to recover, under § 3629, prejudgment interest on an award for the insured property loss. Prejudgment interest on an insured property-loss recovery — as an additional item of damages to the insured — is authorized by the terms of § 3629(B), to be construed together with those of 23 O.S.1991 § 6,
5
whenever
(a) the insured is the prevailing party and (b) the damages for loss were capable of ascertainment by reference to well-established market values.
6
In that context prejudgment interest is deemed to be a statutorily added item of damages.
¶ 3 As we understand the
second question,
it asks that we answer whether
Brashier
may be construed to bar the § 3629 recovery of counsel-fee award and prejudgment interest in actions prosecuted solely on the theory of insurer’s bad-faith refusal to settle. We declare that
Brashier does not bar a counsel-fee award
in tort claims for bad-faith refusal to settle a property loss. A prevailing party’s counsel fee also may be viewed as an element of the insured’s recovery for the insurer’s bad-faith refusal to settle the claim. In short, it does not rest solely on the § 3629 authority.
7
The right of an insured to recover prejudgment interest on the insured property loss (awarded in a bad-faith tort claim) is authorized as an additional .item of damages to the insured by the terms of § 3629(B), to be construed together with those of 23 O.S.1991 § 6,
8
whenever
(a) the insured is the prevailing party and (b) the damages for the insured loss were capable of ascertainment by reference to well-established market values.
9
I
THE ANATOMY OF FEDERAL LITIGATION
¶ 4 A hail storm damaged David and Jessica Taylor’s [Taylors] roof in April 1992. At the time their residence was covered by a homeowner’s policy issued by State Farm Fire and Casualty Company [State Farm], The parties differed on the extent and on the cost of repair.
¶ 5 Suit was brought in March 1994 on
ex contractu
and
ex delicto
theories of liability. The Taylors sought recovery (a) on the homeowner’s policy for loss to the roof and (b) for State Farm’s alleged breach of its implied duty of good faith and fair dealing by refusing to settle the claim. The district court summarily ruled out as time-barred the contract theory of liability, but allowed the trial to proceed on the tort theory.
10
The jury returned a verdict for the Taylors in the amount of $39,002.25 in actual damages. The
*1257
Taylors moved for an award of attorney’s fee, costs and prejudgment interest, all alleged to be due under the terms of 36 O.S.1991 § 3629.
11
Relying on
Thompson v. Shelter Mutual
Insurance,
12
the district court set the counsel-fee award at $126,000
13
(including costs) with prejudgment interest of $16,-608.14.
14
According to
Thompson,
the terms of § 3629(B) allow a counsel-fee award for time spent preparing and prosecuting a bad-faith claim, whenever the insured succeeds in litigation and meets the statutory requirement of obtaining a judgment larger than that of the greatest settlement offer from the insurer.
15
¶ 6 State Farm’s quest for review in the U.S. Court of Appeals for the Tenth Circuit is confined to corrective relief from the award of attorney’s fee, costs and prejudgment interest. According to State Farm, the terms of § 3629
do not support the challenged recovery absent the insureds’ victory on their contract claim.
The certifying court notes that the parties disagree on whether
Thompson’s
vitality has been undermined by the teachings of
Brashier.
It is this dispute between the litigants that appears to form the basis of the federal court certification.
II
THE NATURE OF THIS COURT’S FUNCTION WHEN ANSWERING QUESTIONS FROM A FEDERAL COURT
¶7 While in answering the queries posed by a federal court the parameters of state-law claims or defenses identified by the submitted questions may be tested, it is not this court’s province to intrude (by its responses) upon the certifying court’s decision-making process.
16
The latter court must be left entirely free to assess the impact of our answers and then
make its own appraisal
of the proof in the case before it.
17
¶8 Because this case is not before us for decision, we refrain, as we must, from applying the declared state-law responses to the facts in the federal-court litigation, which are tendered for review by the certifying court either in the form of evidence adduced at trial or in acceptable probative substitutes (the so-called “evidentiary materials”).
18
The task of analyzing today’s answers for their application to this case is deferred in its entirety to the certifying court.
Ill
BRASHIER’S
TEACHINGS AND THEIR HISTORICAL ANTECEDENTS
A.
Insured Loss Recovery under Ex Contractu And Ex Delicto Theories
¶ 9 While numerous items of damage may result from one injurious occurrence, the party who seeks to recover for an
*1258
insured loss
has hut a single came of action,
although its claim may be advanced concurrently on
ex contractu
and
ex delicto
theories.
19
When a lawsuit is brought solely for
recovery of loss
under the policy, it is, of course, limited to an
ex contractu
theory. But when an action is pressed for
bad-faith refusal to settle
— first recognized as a distinct tort in
Christian v. American Assur. Co.
20
— the plaintiff may seek damages (a) for the
loss payable under the policy
together with (b)' those
other items of recovery
that are consistent with harm flowing from insurer’s bad-faith breach of its implied-in-law duty to settle.
21
In sum, while no identifiable
ex contractu
recovery is achieved by the victorious bad-faith plaintiff,
indemnity for loss (under the contract)
constitutes the centerpiece
element of damages
included in every
ex delicto
recovery for bad-faith refusal to settle.
22
B.
The Teachings of Brashier
¶ 10 The issue in, Brashier
23
was whether, in light of § 3629’s explicit exclusion from its purview of UM losses,
24
the victorious UM plaintiff was nonetheless entitled to an attorney’s fee as a common-law element of his bad-faith recovery. Concluding that § 3629 did not explicitly abrogate the pre-existing common law, the court allowed a counsel-fee award as an item of recoverable harm. The
Brashier pronouncement stands confined to UM claims.
It resulted from the legislative failure explicitly to address in § 3629 the continued viability of pre-existing common-law authority.
IV
THE EFFECT OF
BRASHIER
ON THIS LITIGATION
INSOFAR AS THE INSUREDS SEEK A COUNSEE-FEE AWARD
A.
A Counsel-Fee Award Under 36 O.S.1991 § 3629(B)
¶ 11 The law yields two sources of authority for counsel-fee allowance in bad-faith tort claims — the text of § 3629
25
and the
common-law jurisprudence
(under the teachings of
Christian).
26
Section 3629 provides, among others, for the prevailing party’s recovery of counsel fee in an action for the insured loss recovery. Counsel-fee award under § 3629 depends
not
on the theory of liability imposed
but on the recovery
of the insured loss as the prevailing party’s core element of reparations. Ever since this court’s pronouncement in
Oliver’s Sports Center, Inc. v. Nat’l Standard Ins. Co.,
27
§ 3629 has been held
to authorize counsel-fee awards in both contract and tort claims
*1259
against the insurer, so long as the insured loss constitutes the core element of the awarded recovery.
28
¶ 12 While in
Brashier
the insured loss lay at the core of bad-faith recovery, it was for a coverage (UM) that was explicitly excluded from the purview of § 3629.
Brashier declares that
UM-loss
recovery in
bad-faith claims qualifies for a counsel-fee award
under the teachings of Christian.
B.
Counsel-Fee Award
As
An Element of Damages In A Bad-Faith Claim
¶ 13 The remedy of
bad-faith refusal to settle a claim
rests on the insurer’s
implied-in-laiv
duty to act in good faith and to deal fairly with the insured.
29
Christian
stands for the notion that counsel fees are a
common-law element of the insured’s damage
for the insurer’s bad-faith refusal to pay the claim.
30
¶ 14
Brashier
addresses itself
only
to claims based on bad-faith refusal to pay a UM loss. No other class of insurance recovery is implicated by its teachings. What
Brashier
settles is that, although a party prevailing in a claim for bad-faith refusal to settle a UM loss
may not be allowed an aivard of counsel fee under the authority of § 3629,
an attorney’s fee is recoverable by the prevailing party as a recognized common-law element of damage. In short,
Brashier
teaches that the UM coverage exclusion from the purview of § 3629 falls short of abrogating the common law of
Christian.
Y
THE EFFECT OF BRASHIER ON THIS LITIGATION INSOFAR AS THE INSUREDS SEEK
PREJUDGMENT INTEREST
¶ 15
Brashier does not reach the issue
whether prejudgment interest may be added — from the time of the
claim’s accrual to the date of judgment
— on the amount of recovery
for an insured property loss.
The award of prejudgment interest in
Brashier
rests on 12 O.S.1991 § 727,
31
which governs solely personal-injury elements of recovery.
32
Section 727 is clearly not applicable to a property damage loss.
33
The statute that governs prejudgment interest awardable
qua
damages is 23 O.S.1991 § 6.
34
Its terms,
which are declaratory of the common law,
provide in pertinent part:
Any person who is entitled
to recover damages certain,
or
capable of being made certain
by calculation, and the right to recover which is vested in that person
*1260
upon a particular day, is entitled also to recover interest thereon from that day.
(emphasis added).
A.
The Common-Law Antecedents of § 6
¶ 16 Interest was permitted at common law on a debtor’s failure to repay a loan according to the contract terms.
35
This concept led to the development of the distinction- — still present in the law of damages— between claims for liquidated and unliquidat-ed amounts.
36
Interest, though allowed on liquidated claims, was denied on demands considered unliquidated. This principle of English jurisprudence became a part of the American common law.
37
As courts began to view compensation as the primary goal of damage awards, there developed some relaxation in the requirement that recovery of prejudgment interest be confined to liquidated demands.
38
If the amount of an injured party’s claim could be determined by reference to well-established market values or by computation, the injured party could be awarded interest as a matter of law.
39
This view came to be incorporated into the New York Civil Code,
40
which was adopted in 1866 by the Dakota Territory.
41
Oklahoma’s prejudgment interest statute in § 6 was derived from the laws of Dakota.
42
¶ 17 Prejudgment interest on an insured property-loss recovery is governed by the legislative approval of the applicable common law which is declared in § 6.
43
*1261
Damages are certain within the meaning of § 6 if they
are liquidated or capable of ascertainment before judgment through calculation by resort to well-established market
values,
44
Interest on the insured loss is allowable from the date the claim becomes certain
45
and the loss is payable under the terms of the policy.
46
Prejudgment interest is regarded as a part of the recoverable harm. In bad-faith recovery cases, prejudgment interest would accrue on the liquidated amount of the insured property loss.
47
¶ 18 In sum, if a (property loss) demand’s value is unascertainable until its quantum is judicially settled, no prejudgment interest is the victor’s due.
48
But if the value of the demand is fairly ascertainable before its settlement by judgment, prejudgment interest will accrue.
49
B.
§ 3629 and § 6 are In Pari Materia
¶ 19 Different statutes on the same subject are generally to be viewed as
in pan materia
and must be construed as a harmonious whole.
50
All legislative enactments
in pari materia
are to be interpreted together as forming a single body of law that will fit into a coherent symmetry of legislation.
51
We cannot conclude that the legislature intended for § 3629 to supersede the terms of 23 O.S.1991 § 6 by making prejudgment interest an across-the-board advantage of
every
prevailing party. We hence declare that § 3629 neither
expands
nor
abridges
a successful party’s entitlement to prejudgment interest in the insured loss litigation.
¶ 20 When construed together with § 6, the purview
of
§ 3629 is restricted to those property-loss recoveries in which the
insured loss
was for a liquidated amount or for an amount that could be made ascertainable by reference to well-established market values. Before prejudgment interest is one’s due, it must be determined that, at the time proof of loss was denied, the quantum of the loss could be ascertained by reference to market values.
52
C.
Pre-Existing Common Law Cannot Be Abrogated Without Explicit Legislative Direction
¶21 Any notion that § 3629 was intended to give
every
prevailing party in a suit for recovery of the insured property loss the benefit of prejudgment interest would not only repeal § 6 — an enactment long in force — but would also abrogate, without any semblance of legislative authority, pre-exist-ing common law that stands declared by that section. By the mandate of 12 O.S.1991 § 2 the common law remains in full force unless a statute explicitly provides to the contrary. Legislative abrogation of the common law
*1262
may not be effected by mere implication.
53
It must be clearly and plainly expressed.
54
¶22 If the amount due for the Taylors’ loss is found to have been “fairly ascertainable” in value when their proof of loss was denied, prejudgment interest will accrue on the amount of the recovered property loss that was insured.
VI
SUMMARY
¶23 In answer to question one we declare Oklahoma law to be that for actions prosecuted in tort to recover for the insurer’s bad-faith refusal to settle,
Brashier
bars neither an award of attorney’s fee nor of prejudgment interest which stands authorized by the terms of
36 O.S.1991 §
3629(B),
55
One’s victory solely on a contract theory of recovery is not the
sine qua non
of a § 3629(B) counsel-fee award. Recovery
under § 3629(B)
embraces both contract- and tort-related theories of liability
so long as the insured loss is the core element of the prevailing litigant’s recovery. Nor does Bra-shier address itself to the issue
whether prejudgment interest may be added — from the
accrual time of the claim to the date of judgment
— on the amount of recovery for the insured property loss. Prejudgment interest is authorized by the terms of § 3629(B), to be construed together with 23 O.S.1991 § 6,
56
upon the insured property loss recovered as part of one’s bad-faith claim
whenever
the insured is the prevailing party and the insured loss was for a liquidated amount or for an amount capable of ascertainment by reference to well-established market values.
¶ 24 In answer to question two we declare Oklahoma law to be that
Brashier
does not bar a § 3629 recovery of counsel-fee award in a common-law tort action for bad-faith refusal to settle a claim (other than one for UM loss). Counsel-fee allowance, which may also be awarded as an element of the insured’s damages for the insurer’s bad-faith refusal to pay a claim, does not hence rest solely on the authority of § 3629. Prejudgment interest
on the insured property loss
recovered in a bad-faith-refusal action is authorized by § 3629(B), to be construed together with § 6, as an additional item of damages to the insured,
whenever
the insured is the prevailing party and the insured loss was for a liquidated amount or for an amount capable of ascertainment by reference to well-established market values.
¶ 25 CERTIFIED QUESTIONS ANSWERED.
¶ 26 HARGRAVE, V.C.J., HODGES, LAVENDER, ALMA WILSON, KAUGER and WATT, JJ., concur;
¶ 27 SUMMERS, C.J., concurs in part and dissents in part;
¶ 28 SIMMS, J., dissents.
2
. 1996 OK 86 , 925 P.2d 20 .
3
.The pertinent terms of 36 O.S.1991 § 3629(B) are:
Insurer must submit a written offer of settlement or rejection of the claim to the insured within ninety (90) days of receipt of proof of loss.
Upon a judgment rendered to either party, costs and attorney fee shall be allowable to the
*1256
prevailing party.
The prevailing party is the insurer in those cases where judgment does not exceed written offer of settlement. In all other judgments the insured shall be the prevailing party. If the insured is the prevailing party, the court in rendering judgment shall add interest on the verdict at the rate of fifteen percent (15%) per year from the date the loss was payable pursuant to the provisions of the contract to the date of the verdict.
(emphasis supplied).
4
.
See
discussion in Part IV(A) infra.
5
. For the terms of 23 O.S.1991 § 6, see Part V,
infra.
6
.
See
discussion in Part V,
infra.
7
.
See
discussion in Part IV(B)
infra.
8
. For the terms of 23 O.S.1991 § 6, see Part V,
infra.
9
.
See
discussion in Part V,
infra.
10
. Extant jurisprudence imposes a two-year limitation upon a tort action based on bad-faith refusal to settle a claim.
Lewis v. Farmers Ins. Co., Inc.,
1983 OK 100 , 681 P.2d 67, 70 .
11
. For the pertinent terms of 36 O.S.1991 § 3629, see
supra
note 3.
12
. 875 F.2d 1460 (10th Cir.1989).
13
. For the amount of the counsel-fee award and costs the district court relied
on the parties’ stipulation.
14
. The prejudgment interest of $16,608.14 was calculated (at 15% per annum) from 3 June 1992 (the date that State Farm made a written offer to adjust its previous settlement offer) to 28 April 1995 (the day judgment was entered).
15
.
Thompson, supra
note 12 at 1465.
16
.
See
Uniform Laws Annotated, Uniform Certification of Questions of Law Act/Rule (1995); Goldschmidt, Certification of Questions of Law; Federalism in Practice, American Judicature Society (1994).
17
.
See, e.g., Shebester v. Triple Crown Insurers,
974 F.2d 135, 137 (10th Cir.1992). State Farm informs us that it is arguing on appeal (to the U.S. Court of Appeals for the Tenth Circuit) that the plaintiffs have waived their plea for an attorney's fee as an element of their claim for bad-faith refusal to settle the insured loss. We note that since the asserted waiver is not included in the questions certified, it is inappropriate for our consideration.
18
.
Schmidt v. United States,
1996 OK 29 , 912 P.2d 871, 873 ;
Brown v. Ford,
1995 OK 101 , 905 P.2d 223, 226 ;
Bonner v. Oklahoma Rock Corp.,
1993 OK 131 , 863 P.2d 1176 , 1178 n. 3;
Shebester v. Triple Crown Insurers,
1992 OK 20 , 826 P.2d 603 , 606 n. 4.
19
. Our current remedial regime gives the insured a choice between two alternative theories of recovery — one founded on promise-generated liability and the other on insurer’s duty of good faith implied in its status
qua
insurer or derived from public policy considerations.
Mann v. State Farm Mut. Auto. Ins. Co.,
1983 OK 84 , 669 P.2d 768, 772 ;
Retherford v. Halliburton Co.,
1977 OK 178 , 572 P.2d 966, 969 ;
Aetna Casualty & S. Co. v. Associates Transports Inc.,
1973 OK 62 , 512 P.2d 137, 142 ;
Stone v. Case,
34 Okl. 5 , 124 P. 960, 966-67 (1912).
20
. 1977 OK 141 , 577 P.2d 899, 901 .
21
.
Id.
at 901 .
22
. If a notion does still persist that a bad-faith tort claim for refusal to settle is devoid of
ex contractu
underpinnings, it comes through the confusion of the term "claim” with that of "recovery.” In an
ex contractu
claim it is solely the insured loss that may be recovered, while the
elements of recovery in the bad-faith suit are for more than the irisured loss:
(a) the loss to be indemnified under the policy
plus
(b) the harm from insurer's bad-faith refusal to settle.
23
.
Brashier, supra
note 2 at 22.
24
. For the pertinent terms of 36 O.S.1991 § 3629(B), see
supra
note 3.
25
. For the text of 36 O.S.1991 § 3629(B), see
supra
note 3.
26
.
Christian, supra
note 20 .
27
. 1980 OK 120 , 615 P.2d 291, 295 . Under the teachings of
Oliver’s Sports,
if the bad-faith tort claim is timely and one of the items of recovery is the amount of loss to be indemnified under the provisions of the policy, § 3629(B) is invocable because
critical to its application is
not the timeliness of a contract claim, but
the plaintiff s recovery of loss submitted for payment to the insurer.
28
.
For application of the Oliver’s Sports
approach,
see McCorkle v. Great Atlantic Inc. Co.,
1981 OK 128 , 637 P.2d 583, 586 , where the victorious (fire-insurance) plaintiff received as items of recovery, an award for the insured loss, punitive damages for the insurer's bad-faith handling of the claim, and an attorney’s fee (under § 3629);
Alsobrook v. National Travelers Life Ins. Co.,
1992 OK CIV APP 168 , 852 P.2d 768, 773 ;
City Nat. Bank v. Jackson Nat. Life Ins.,
1990 OK CIV APP 89 , 804 P.2d 463, 469 .
29
.
Christian, supra
note 20 at 901. A
Christian
claim — crafted from the nature of the insured/insurer relationship — flows not so much from contract as it does from law that attaches a cluster of implied-in-law duties to the insurer/insured status.
Id.
30
.
Christian, supra
note 20 at 901.
31
. The pertinent terms of 12 O.S.1991 § 727(A)(2) are:
When a verdict for damages by reason of personal injuries ... is accepted by the trial court, the court in rendering judgment shall add interest on said verdict at a rate prescribed pursuant to subsection B of this section from the date the suit was commenced to the date of verdict....
32
.
Brashier, supra
note 2 at 26;
Timmons v. Royal Globe Ins. Co.,
1985 OK 76, ¶ 1 , 713 P.2d 589, 590 (teaches that when a verdict covers more than purely personal injury, § 727 applies to those severed (or severable) portions of the verdict which represent an identifiable personal-injury element).
33
. Although
personal-injury
recovery is for unliq-uidated damages, by explicit legislative declaration prejudgment interest nonetheless attaches to that kind of award. 12 O.S.1991 § 727. In short,
§ 727 takes personal-injury recovery out of the rubric that is governed by § 6.
34
.
Shanbour v. Phillips 66,
1993 OK 128 , 864 P.2d 815, 816-817 ;
Fidelity-Phenix Fire Ins. Co. of N.Y. v. Board of Ed. of Town of Rosedale,
201 Okl. 250 , 204 P.2d 982, 987-88 (1948);
see also Ottinger v. U.S. for Use of Brown,
230 F.2d 405 (10th Cir.1956).
35
. The early common law viewed any interest as usurious and illegal. With the expansion of commercial activity, this view changed and English courts permitted the collection of interest on a debtor’s failure to repay a loan according to the contract terms.
Lowe v. Waller,
2 Doug. 736 , 740, 99 Eng. Rep. 470, 472-73 (K.B.1781). For various treatments of the early historical developments in interest law, see
Laycock v. Parker,
103 Wis. 161 , 79 N.W. 327 (1899);
Adriance v. Brooks,
13 Tex. 279, 281 (1855);
Van Rensselaer v. Jewett,
2 N.Y. 135, 140 (1849); D. Dobbs, Remedies, § 3.5 (1973); 8 W. Holdsworth, History of English Law 100-13 (1925); C. McCormick, Handbook On The Law Of Damage, § 51 k; T. Sedgwick, A Treatise on the Measure of Damages § 292* (A. Sedgwick & J. Beale 9th rev. ed.1920); 1 J. Sutherland, The Law of Damages, §§ 301-303 (J. Berryman 4th ed.1916); M. Oyos,
Prejudgment Interest in South Dakota,
33 S.D.L.Rev. 484, 486-88 (1988); Michael S. Knoll, A
Primer on Prejudgment Interest,
75 Tex. L.Rev. 293, 298 (1996); A.E. Rothschild, Comment,
Prejudgment Interest: Survey and Suggestion,
77 Nw. U.L.Rev. 192, 195-99 (1982);
Note, Recovery of Prejudgment Interest on an Unliquidated State Claim Arising within the Sixth Circuit,
46 U. CIN. L. REV. 152 (1977); Comment,
Prejudgment Interest: An Element of Damages Not to be Overlooked,
8 CUM. L. REV. 521 (1977); Note,
Denham v. Bedford: Statutory Prejudgment Interest and its Effect on Third Party Insurers,
1979 DET. C.L. REV. 345, 346; Comment,
Allowance of "Interest" on Unliquidated Tort Damages in Pennsylvania, 75
DICK. L. REV. 79, 89-91 (1970); Comment,
Interest as Damages in California,
5 U.C.L.A. L. REV. 262, 264-65 (1958).
See in this connection Daly v. Swift & Co.,
90 Mont. 52 , 300 P. 265, 269 (1931);
Necedah Manufacturing Corp. v. Juneau County,
206 Wis. 316 , 237 N.W. 277, 281-83 (1931).
36
. If the amount of damages was a fixed sum (such as the face amount of an insurance policy), the claim was considered
liquidated.
This is so because a defendant knew the amount owing and could immediately pay the damages. If the damages were uncertain, the claim was considered
unliquidated.
The defendant could not determine the extent of liability before trial.
The liquidated-unliquidated dichotomy test presupposed that a defendant was liable for prejudgment interest only if the defendant knew or could have deteimined the amount of damages. Oyos, supra
note 35 at 487;
McCormick, supra
note 35 at § 51;
Sedgwick, supra
note 35 at § 292.
37
.
Oyos, supra
note 35 at 487;
Dobbs, supra
note 35 at § 3.5;
McCormick, supra
note 35 at §§ 54-56;
Sedgwick, supra
note 35 at §§ 299, 315.
38
. By the mid-nineteenth century, several theories concerning interest as damages were current. The prevailing view permitted recovery beyond strictly liquidated claims.
Oyos, supra
note 35 at 487;
U.C.L.A. Comment, supra
note 35, at 265.
39
.
Oyos, supra
note 35 at 487;
McMahon v. New York & Erie Railroad,
20 N.Y. 463 (1859);
Van Rensselaer, supra
note 35 ;
Reid v. Rensselaer Glass Factory,
3 Cow. 393 (N.Y.1824);
U.C.L.A. Comment, supra
note 35 at 264.
40
. Field, The Civil Code of ti-ie State of New York, §§ 1835, 1836 (1865).
41
. 1 South Dakota Code of 1939 (1939);
Oyos, supra
note 35 at 487.
42
. 23 O.S.1991 § 6 (Historical Note).
43
.
Withrow v. Red Eagle Oil Co.,
1988 OK 16 , 755 P.2d 622, 625 ;
Sisney
v.
Smalley,
1984 OK 70 , 690 P.2d 1048, 1050 .
44
.
Sandpiper North Apartments, Ltd. v. American Nat’l Bank and Trust Co.,
1984 OK 13 , 680 P.2d 983, 993 ;
American Eagle Fire Ins. Co. v. Lively,
142 Okl. 246 , 286 P. 797, 799 (1930)(interest is not recoverable on unliquidated damages where a judgment or verdict is necessary to ascertain the amount of the damage);
St. Paul Fire & Marine Ins. Co. v. Robison, 12
Okl. 269, 180 P. 702, 703 (1919).
45
.
Heiman v. Atlantic Richfield Co.,
1995 OK 19 , 891 P.2d 1252, 1258 . Damages are not certain where their calculation is left to the best judgment of the fact-finder or if conflicting evidence must be weighed to determine the precise amount of damages due.
Withrow, supra
note 43 at 626;
Cook v. Oklahoma Bd. of Public Affairs,
1987 OK 22 , 736 P.2d 140, 153 .
46
.
Fidelity-Phenix, supra
note 34 at 987.
47
.
See, e.g., Timmons, supra
note 32, where prejudgment interest was invoked for just one item of a party's multi-element recovery.
48
.
Cook, supra note
45 at 152;
Allison v. Allen,
1958 OK 125 , 326 P.2d 1059, 1063 ;
Smith v. Owens,
1963 OK 187 , 397 P.2d 673, 683 ;
American Eagle, supra
note 44 at 798.
49
.
Cook, supra
note 45 at 152;
Smith, supra
note 48 at 683.
50
.
State v. Phillips Petroleum Co.,
189 Okl. 629 , 118 P.2d 621, 625 (1941).
51
.
Sharp v. Tulsa County Election Bd.,
1994 OK 104 , ¶ 11, 890 P.2d 836, 840 ;
Johnson v. Ward,
1975 OK 129, ¶ 22 , 541 P.2d 182, 186 ;
Letteer v. Conservancy Dist.,
1963 OK 218, ¶ 14 , 385 P.2d 796, 801 .
52
.
Sandpiper, supra
note 44 at 993.
53
. Brashier, supra
note 2 at 22;
Tate v. Browning-Ferris,
1992 OK 72 , 833 P.2d 1218, 1225-1226 ;
Silver v. Slasher,
1988 OK 53 , 770 P.2d 878, 884 ;
State Mut. Life Assur. Co. of Amer. v. Hampton,
1985 OK 19 , 696 P.2d 1027 , 1036 (Opala, J., concurring);
Rides Exploration v. Okl. Water Resources Bd.,
1984 OK 73 , 695 P.2d 498, 504 .
54
.
Tate, supra
note 53 at 1225-1226;
Fuller v. Odom,
1987 OK 64 , 741 P.2d 449, 451 ;
McCormack v. Oklahoma Publ. Co.,
1980 OK 98 , 613 P.2d 737, 740 .
55
. For the text of 36 O.S.1991 § 3629, see
supra
note 3.
56
. For the text of 23 O.S.1991 § 6, see Part V
supra.