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Evans v. State Farm Fire & Casualty Co.

June 12, 2007

ERMA EVANS PLAINTIFF
v.
STATE FARM FIRE & CASUALTY COMPANY DEFENDANT



The opinion of the court was delivered by: James M. Moody United States District Judge

ORDER

Pending before the Court are plaintiff's Motion for Order (#115), Motion to Alter Judgment (#116), Motion to Amend/Correct (#119), two Motions for Attorney's Fees (#121 and #128), and Motion for Bill of Costs (#123). For the reasons stated below the motions are granted in part and denied in part.

Plaintiff filed suit against defendant on May 17, 2006 in the Circuit Court of Saline County, Arkansas. Plaintiff sued to enforce an insurance policy for damages for "personal property loss, and additional contents, in the sum of $56,089.25 as well as damages for loss of use of the barn, together with a twelve percent (12%) penalty, attorney's fees, and other damages for the emotional strain and loss and injury to her reputation as described herein." Defendant removed the case to federal court on June 6, 2006.

The jury trial began on March 12 and the jury reached a verdict on March 15, 2007. Before the jury returned its verdict, plaintiff amended her prayer to $44,581.71 for loss of contents of the barn based upon defendant's assertion of a setoff in the amount $11,507.54 and an additional $1,800.00 for loss of use of the barn for a total of $46,381.71.

The jury returned a verdict in favor of plaintiff and awarded $38,489.99 in damages for the loss of the contents of the barn and $1,800.00 in damages for loss of use of the barn (loss of rent) for a total of $40,289.99,.

There was insufficient evidence to establish that the barn was used as a residence and the $1,800.00 jury verdict is set aside resulting in a total recovery of $38,489.99.

I. Motion for Order, Motion to Alter Judgment, and Motion to Amend/Correct (#115, #116, #119)

These motions seek the prejudgment interest through the date of the judgment, post-judgment interest, and twelve (12%) penalty on the sum of $38,489.99*fn1 pursuant to Arkansas Code Annotated § 23-79-208(a)(1).

"Arkansas law allows prejudgment interest 'where the amount of damages is definitely ascertainable by mathematical computation, or if the evidence furnishes data that make it possible to compute the amount without reliance on opinion or discretion.'" Harrod v. Farmland Mut. Ins. Co. 346 F.3d 1184 (8th Cir. 2003) (citing Woodline Motor Freight, Inc. v. Troutman Oil Co., 327 Ark. 448, 453, 938 S.W.2d 565, 568 (1997)).

After reviewing the complaint and evidence at trial, the Court finds that the amount of money due to plaintiff under the policy was not "definitely ascertainable" at the time of the loss nor has it become "definitely ascertainable" since the loss. Plaintiff's request for prejudgment interest is denied (#115, #116, #119).

Ark.Code Ann. § 23-79-208 provides:

(a)(1) In all cases in which loss occurs and the ... insurance company ... fail[s] to pay the losses within the time specified in the policy after demand is made, the ... corporation ... shall be liable to pay the holder of the policy ... in addition to the amount of the loss, twelve percent (12%) damages upon the amount of the loss, together with all reasonable attorney's fees for the prosecution and collection of the loss.

(d) Recovery of less than the amount demanded by the person entitled to recover under the policy shall not defeat the right to the twelve percent (12%) damages and attorney's fees provided for in this section if the amount recovered for the loss is within twenty percent (20%) of the amount demanded or which is sought in the suit.

Here there is an initial dispute as to whether the amount recovered for the loss is within twenty percent (20%) of the amount ...


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