IN RE: Appointment of Umpire for HAYES FAMILY TRUST, on Behalf of Itself and All Others Similarly Situated, CLAYTON A. HAYES, co-trustee, Petitioners-Appellants,
STATE FARM FIRE & CASUALTY COMPANY, Respondent - Appellee.
FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN
DISTRICT OF OKLAHOMA (D.C. NO. 5:14-CV-00108-C)
Waddell, Jason Waddell, PLLC, Oklahoma City, Oklahoma, for
Benjamin G. Kemble (David V. Jones with him on the brief),
Jones, Andrews & Ortiz, Oklahoma City, Oklahoma, for
TYMKOVICH, Chief Judge, HARTZ and MORITZ, Circuit Judges.
TYMKOVICH, Chief Judge.
appeal arises from a property damage claim filed by the Hayes
Family Trust with its insurer, State Farm Fire &
Casualty. When the parties could not agree on the amount of
loss, Hayes invoked an appraisal process provided by the
policy to calculate the loss incurred. The policy establishes
a procedure whereby each party selects an impartial
appraiser; the appraisers then select an impartial umpire.
But if the appraisers are unable to agree on an umpire, the
policy grants either party the right to seek appointment of
the umpire by the court. After Hayes sought the district
court's assistance with the appointment of an umpire, the
parties participated in the appraisal process, which resulted
in a unanimous award.
Farm paid the balance of that award, and Hayes accepted
payment. But despite State Farm's payment, at Hayes's
request, the district court confirmed the award and entered
judgment in favor of Hayes. Hayes promptly moved for an award
of prejudgment interest, attorney's fees, and costs under
a prevailing party statute. In response, State Farm moved to
vacate or amend the judgment. Finding that the parties
settled any dispute over the amount of loss, the court agreed
with State Farm and vacated its order confirming the
appraisal award and the judgment. Hayes now appeals the order
vacating judgment in an attempt to recover prejudgment
interest, fees, and costs.
affirm. Under Oklahoma insurance appraisal law, the appraisal
award was not binding on State Farm because it did not invoke
the appraisal process. Therefore, State Farm's voluntary
payment of the award, and Hayes's acceptance of that
payment, settled any dispute over the amount of loss to
Hayes's property. Because the parties settled their
dispute over the amount of loss, the district court properly
vacated its earlier judgment in favor of Hayes. For the same
reason, because the court vacated the judgment, Hayes cannot
be a "prevailing party" under the Oklahoma
Insurance Code's prevailing party statute.
filed an insurance claim with State Farm in 2013 after its
Oklahoma City commercial property was damaged in a storm.
State Farm submitted an estimate to repair or replace the
damaged property in the amount of $151, 486. Displeased with
the estimate, Hayes sent a certified letter to State Farm
invoking a statutorily-mandated appraisal provision in the
insurance policy. The provision requires each party to select
an impartial appraiser; the appraisers then select an
Farm did not immediately respond to Hayes's letter, so in
early 2014 Hayes filed two actions against State
Farm in Oklahoma state court-the one at issue here, a
petition for the appointment of an umpire, and a second case
for breach of contract, bad faith, and
negligence. State Farm timely removed both cases to
federal district court on the basis of diversity
Farm eventually named its appraiser, but the parties'
appraisers were unable to agree on an umpire, so the district
court appointed one at Hayes's request. The district
court then administratively closed the case, but reserved the
parties' right to reopen the case at a later date if
parties participated in the appraisal process, which resulted
in a unanimous award in the amount of $347, 254. Hayes again
reopened the case and moved to confirm the appraisal award.
Before the district court acted on Hayes's motion,
however, State Farm paid the balance of the award. And, in a
letter accompanying payment, State Farm stated, "We are
making this payment in accordance with the Businessowners
Coverage Form, CMP-4100 loss settlement provisions. . . .
Please be advised State Farm is not waiving any of the policy
coverages, limitations, exclusions or provisions, all of
which are specifically reserved." App. Vol. 1 at 160.
Hayes accepted the payment without reservation.
State Farm objected to confirmation, contending its payment
settled any dispute over the amount of loss. In addition,
State Farm asserted confirmation would be improper in any
event because under Oklahoma law, an appraisal award is not
binding on the party who did not initiate the appraisal
process. Over State Farm's objection, the district court
initially confirmed the award and entered judgment in favor
of Hayes. The court reasoned that although the award was not
binding on State Farm (because it did not initiate the
process), State Farm's payment conclusively fixed the
amount of loss. And "[b]ecause that amount is entitled
to the same effect as a judgment, some judicial endorsement
is warranted." App. Vol. 1 at 211.
with a judgment in its favor, Hayes filed: (1) a motion to
amend judgment to include prejudgment interest at the
statutory rate of 15%; (2) a motion for $16, 620 in
attorney's fees under the Oklahoma Insurance Code's
prevailing party provision; and (3) a bill of costs in the
amount of $225. For its part, State Farm moved to vacate or
amend the judgment under Rules 59(e) and 60(b). State Farm
argued the payment and acceptance of the appraisal award was
a consummated settlement, abdicating the need for
confirmation and judgment.
State Farm's motion under Rule 59(e), the district court
agreed with State Farm and vacated the earlier judgment. The
court again acknowledged the appraisal award was not binding
on State Farm, but this time it deemed State Farm's
voluntary payment "an offer of settlement which was
accepted by [Hayes] when it accepted the check." App.
Vol. 2 at 189. Because the parties agreed to settle their
dispute over the amount of loss, there was no final
determination of the parties' rights necessitating the
entry of judgment. As such, the district court vacated the
order confirming the appraisal award and the judgment and
struck Hayes's pending motions for interest, fees, and
costs as moot. Hayes timely appealed the court's
challenges the district court's order vacating judgment
on both procedural and substantive grounds. In addition,
Hayes seeks a determination that it is the prevailing party
under the Oklahoma Insurance Code, entitling it to
prejudgment interest, attorney's fees, and costs. Before
reaching the merits of Hayes's appeal, however, we must
address State Farm's contention that we lack appellate
jurisdiction because the district court eliminated the only
final appealable order when it vacated its earlier judgment.
Farm argues that after the district court vacated the
judgment, the case returned to its administratively closed
status, and an administrative closing order is not an
appealable order. We disagree with State Farm's
assessment of the finality of the district court's order
jurisdiction over "final decisions of the district
courts of the United States." 28 U.S.C. § 1291. A
"final decision" is ordinarily one that "ends
the litigation on the merits and leaves nothing for the court
to do but execute the judgment." Catlin v. United
States, 324 U.S. 229, 233 (1945). "[P]ut
differently, one by which the district court
'disassociates itself from a case.'"
McClendon v. City of Albuquerque, 630 F.3d 1288,
1292 (10th Cir. 2011) (quoting Swint v. Chambers Cty.
Comm'n, 514 U.S. 35, 42 (1995)).
true that orders granting relief under Federal Rules
of Civil Procedure 59 and 60(b) are generally not final
decisions. Id. at 1294. They are not final-and,
therefore, not immediately appealable-because "they set
aside or undo a judgment and so settle nothing with finality
except the fact that more litigation is on the way."
Id.; see also 15B Charles Alan Wright,
Arthur R. Miller et al., Federal Practice &
Procedure § 3916 (3d ed. & Apr. 2016 Update)
("An order that vacates a judgment and sets the stage
for further trial court proceedings is not final.").
when a ruling resolves and ends the litigation at the
district court level, that decision is sufficiently final to
maintain an immediate appeal. As we said in
McClendon, "To be a final decision in the
relevant sense for § 1291, then, it is generally not
enough that a decision might seem at one point to
'irretrievably decide' the scope and duration of
litigation in the district court; usually it must
end that litigation." 630 F.3d at 1295. And
this familiar principle applies with equal force to an order
vacating judgment that effectively ends the litigation.
See Stubblefield v. Windsor Capital Grp., 74 F.3d
990, 995 (10th Cir. 1996) (quoting 7 J. Moore, Federal
Practice ¶ 60.30, p. 345) (construing Rule 60(b)
and observing "as in every other case, such jurisdiction
is lacking unless the order granting the Rule 60(b)
motion was a 'final decision of the district
court' within the meaning of 28 U.S.C. § 1291 . .
. ." (emphasis added)).
this principle holds notwithstanding the absence of a
separate Rule 58 judgment. "Although the absence of a
Rule 58 judgment extends the time for appeal . . . a Rule 58
judgment is not necessary for this court to have appellate
jurisdiction." Martinez v. City of Chicago, 499
F.3d 721, 726 (7th Cir. 2007); see also Taumoepeau v.
Mfrs. & Traders Tr. Co. (In re Taumoepeau), 523 F.3d
1213, 1218 n.5 (10th Cir. 2008); Clough v. Rush, 959
F.2d 182, 185 (10th Cir. 1992). In other words, the losing
party can appeal "before the entry of the Rule 58
judgment order if though not embodied in the separate
document that Rule 58 requires" the decision is final
within the meaning of § 1291. Martinez, 499
F.3d at 726.
the district court's order vacating judgment (and
striking Hayes's pending motions) ended the litigation
and effectively disassociated the district court from the
case. The district court appointed an umpire as requested,
the parties completed the appraisal process, and the court
concluded that State Farm's payment of the appraisal
award settled any dispute over the amount of loss. Other ...