Bryant et al v. Sagamore Insurance Company

Filing 140

ORDER by Judge Ronald A. White denying plaintiffs' motion for a stay pending appeal ( 129 Motion to Stay) and granting in part defendant's motion for attorneys' fees and non-taxable costs ( 122 Motion for Attorney Fees) and directing defendant provide the court with detailed time records no later than 9/12/14 (lal, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF OKLAHOMA

KELLY BRYANT and
HOLLIE BRYANT,
Plaintiffs,
v.
Case No. CIV-13-240-RAW
SAGAMORE INSURANCE COMPANY,
Defendant.

ORDER
On April 23, 2014, the court entered Judgment in favor of Defendant, dismissing this
action. On May 15, 2014, Plaintiffs filed a notice of appeal from that final judgment. Now
before the court are Defendant’s application for attorneys’ fees and non-taxable costs [Docket
No. 122] and Plaintiffs’ motion for a stay of the attorneys’ fees and non-taxable costs issues
pending their appeal from the final judgment [Docket No. 129].

Stay Pending Appeal
A motion for attorneys’ fees is “‘collateral to and separate from’ the decision on the
case’s merits.” Graham v. Hartford Life and Accident Ins. Co., 501 F.3d 1153, 1163 n. 11 (citing
Budinich v. Becton Dickinson & Co., 486 U.S. 196, 200 (1988). “Although filing notice of
appeal generally divests the district court of jurisdiction over the issues on appeal, . . . the district
court retains jurisdiction over ‘collateral matters not involved in the appeal.’” Lancaster v.
Indep. Sch. Dist. No. 5, 149 F.3d 1228, 1237 (10th Cir. 1998) (citations omitted). “Attorney’s
fees awards are collateral matters over which the district court retains jurisdiction.” Id.

In determining whether to grant the stay, the court considers whether: (1) Plaintiffs have
made a strong showing that they are likely to succeed on the merits; (2) Plaintiffs will be
irreparably injured absent a stay; (3) issuance of a stay will substantially injure Defendant or any
other parties interested in the action; and (4) the public interest is in granting or denying the stay.
Hilton v. Braunskill, 481 U.S. 770, 776 (1987).
If a party seeking a stay establishes “that the three ‘harm’ factors tip decidedly in its
favor, the ‘probability of success’ requirement is somewhat relaxed.” F.T.C. Mainstream
Marketing Services, Inc., 345 F.3d 850, 852 (10th Cir. 2003). In that case, the first factor is
satisfied if the movant has raised on appeal “questions going to the merits so serious, substantial,
difficult, and doubtful as to make the issue ripe for litigation and deserving of more deliberate
investigation.” Id. at 852-83 (citing Prairie Band of Potawatomi Indians v. Pierce, 253 F.3d
1234, 1246-47 (10th Cir. 2001)).
The court, therefore, begins with the three “harm” factors. As to the second factor,
Plaintiffs will not be irreparably injured absent a stay. As Plaintiffs note in their motion, if the
stay is not granted, they will “simply post a bond in order to obtain a stay on appeal.” In fact,
rather than be irreparably injured, Plaintiffs will be better served if the stay is denied. If their
pretrial activities are any indication, Plaintiffs are most certainly expending ample time and
resources on the pending appeal. If the court decides the attorneys’ fees and non-taxable costs
issues now, either party can appeal those issues, adding them to the pending appeal. This will
relieve Plaintiffs from expending additional time and resources on a second appeal if they are
unsuccessful in the current appeal and either party appeals the court’s ruling on attorneys’ fees
and non-taxable costs.

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For the same reasons, an issuance of a stay will substantially injure Defendant, as
Defendant would also have to expend ample time and resources on a second appeal in the event
it is successful in the current appeal and either party appeals as to attorneys’ fees and non-taxable
costs. For these reasons, it is clear that judicial economy and the public interest also lean in favor
of denying the stay so that any appeal may be joined with the appeal of the case now pending
before the Tenth Circuit.
All three “harm” factors lean toward denying the stay. This may be enough to deny the
stay. Nevertheless, the court also finds as to the first factor that Plaintiffs have not made a strong
showing that they are likely to succeed on the merits. While Plaintiffs argue that they have raised
novel issues of law, the fact remains that Defendant did not breach the contract when it denied
coverage. Even if the named driver exclusion was not valid, Kelly Bryant failed to cooperate
with Defendant in violation of his policy. The court believes it is unlikely that Plaintiffs will
succeed on the merits. For these reasons, the motion to stay is denied.

Attorneys’ Fees and Non-taxable Costs
A prevailing party is not ordinarily entitled to attorneys’ fees, but an exception to this rule
is when a statute provides otherwise. Bennett v. Coors Brewing Co., 189 F.3d 1221, 1238 (10th
Cir. 1999)(citing Alyeska Pipeline Serv. Co. v. Wilderness Soc’y, 421 U.S. 240, 247 (1975).
Defendant seeks an award of reasonable attorneys’ fees in the amount of $80,894.00 and nontaxable costs in the amount of $410.43 incurred since its offer of judgment to Plaintiffs for
$5000.00 on March 11, 2014. Defendant argues it is entitled to these fees and costs pursuant to

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12 OKLA . STAT . § 1101.1(B),1 which provides in pertinent part:
1. After a civil action is brought for the recovery of money or property in an
action other than for personal injury, wrongful death or pursuant to Chapter 21 of
Title 25 or Section 5 of Title 85 of the Oklahoma Statute, any defendant may file
with the court, at any time more than ten (10) days prior to trial, an offer of
judgment for a sum certain to any plaintiff with respect to the action or any claim
or claims asserted in the action. An offer of judgment shall be deemed to include
any costs and attorney fees otherwise recoverable unless it expressly provides
otherwise. If an offer of judgment is filed, the plaintiff or plaintiffs to whom the
offer of judgment is made shall, within ten (10) days, file:
a. a written acceptance or rejection of the offer, or
b. a counteroffer of judgment, as described in paragraph 2 of this subsection.
If a plaintiff fails to file a timely response, the offer of judgment shall be deemed
rejected. The fact an offer of judgment is made but not accepted or is deemed
rejected does not preclude subsequent timely offers of judgment.
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3. If no offer of judgment or counteroffer of judgment is accepted and the
judgment awarded the plaintiff is less than one or more offers of judgment, the
defendant shall be entitled to reasonable litigation costs and reasonable attorney
fees incurred by the defendant with respect to the action or the claim or claims
included in the offer of judgment from and after the date of the first offer of
judgment which is greater than the judgment until the date of the judgment.
12 OKLA . STAT . § 1101.1(B)(1) and (3) (emphasis added).
Plaintiffs contend that Defendant is not entitled to fees because the offer of judgment was
not apportioned between the two Plaintiffs. Instead, Defendant offered $5,000 total to both
Plaintiffs for the entire case.2 Plaintiffs never provided Defendant or the court with separate

1

Defendant notes that it did not request fees pursuant to Fed. R. Civ. P. 68 because that
rule only applies when judgment is entered in favor of a plaintiff in an amount less than an offer
of judgment. Rule 68 does not apply when judgment is entered in a defendant’s favor. Marx v.
General Revenue Corp., 668 F.3d 1174, 1182 (10th Cir. 2001)(citing Delta Air Lines, Inc. v.
August, 450 U.S. 346, 352 (1981).
2

On March 19, 2014, Plaintiffs filed a motion to clarify an offer of judgment they had
received from Defendant. They argued it was facially ambiguous and confusing, as it did not
indicate if it was directed at Plaintiff Kelly, Plaintiff Holly or both. At a pretrial conference and
motions hearing the next day, the court addressed the motion to clarify, and defendant confirmed
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amounts of damages sought by each in accordance with Fed. R. Civ. P. 26(a)(iii).3
In Haddock v. Woodland Park Home, Inc., 90 P.3d 594 (Okla. Civ. App. 2004), a
husband and wife sought damages – the wife for personal injuries, her husband for loss of
consortium. The defendant made an offer of judgment that was not apportioned between the
plaintiffs. The Oklahoma Civil Court of Appeals ruled that the one judgment amount directed to
both plaintiffs expressly requiring the plaintiffs to accept the judgment together was invalid.
Haddock, 90 P.3d at 597. “Otherwise, an individual plaintiff cannot independently weigh the
risks and benefits of the offer against the judgment that may be obtained for that plaintiff.” Id.
(citation omitted).
If joint offers of judgment were allowed, “then courts would be faced with litigation over
the proper allocation of the costs order between various plaintiffs who may have sought different
amounts of damages.” Id. (citation omitted). Additionally, “[c]larity requires separate offers to
each plaintiff (or to ‘any plaintiff’ as the statute provides).” Id. at 598.
The United States District Court for the Northern District of Oklahoma also addressed
this issue and concluded that an unapportioned offer was valid that was made to a husband and
wife who had no conflict of interest, held an undivided joint interest in a breach of contract
claim, and were represented by the same attorney. Scottsdale Ins. Co. v. Tolliver, 262 F.R.D.
606, 616 (N.D. Okla. 2009).

that the offer of $5,000 was directed at both Plaintiffs for the whole case. The court then allowed
counsel to step outside the courtroom and discuss the offer of judgment. When they returned,
Plaintiffs’ counsel stated that he had the clarification he sought.
3

On August 15, 2013, Plaintiffs disclosed they were seeking $2,988,916.23. Docket No.
19, p. 3. On March 3, 2014, Plaintiffs disclosed they were seeking $2,294,458.00. Docket No.
67, p. 6. Plaintiffs never disclosed damage amounts apportioned between them.
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In an unpublished opinion, the Tenth Circuit has ruled with regard to a Rule 68 offer that
an unapportioned offer was valid that was made to a single family represented by one attorney
claiming damages arising from the same set of facts. Roska v. Sneddon, 366 Fed.Appx. 930, 941
(10th Cir. 2010). The Circuit Court reasoned that “[u]nder these circumstances, the failure to
apportion the offer does not create a ‘potential [for] derivative litigation’ over its division or the
associated costs and attorney’s fees.” Id.
In Roska, the plaintiffs did not seek clarification of the offer and did not state the offer
“was rejected because they could not assess its applicability to the individual claims.” Id. at 942.
The Tenth Circuit concluded that the plaintiffs “were in a position to determine the value of each
family member’s claim and intelligently assess the risks associated with rejecting the $5,000
offer.”
Here, Plaintiffs never disclosed their individual damages. Plaintiffs stated in their
response to Defendant’s motion for summary judgment, however, that Plaintiff Hollie “suffered
embarrassment and mental pain,” and Plaintiff Kelly “incurred financial loss.” Plaintiffs’ shared
one attorney. They are father and daughter. Plaintiffs sought and attained clarification of the
offer of judgment.
Under the rationale discussed in each of the three cases noted above, the court finds that
the offer of judgment was valid. The offer of judgment was clear – $5,000 for both Plaintiffs for
the entire case. Plaintiffs never disclosed their individual damages and were in the best position
to determine their damages. They shared one attorney. In these circumstances, the failure to
apportion the offer does not create the potential for derivative litigation over its division.
Accordingly, the motion for attorneys’ fees and non-taxable costs is granted in part.

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Defendant shall provide the court with detailed time records no later than September 12, 2014,
after which the court will determine the amount of the award.

Conclusion
The motion for a stay pending appeal [Docket No. 129] is hereby DENIED. The motion
for attorneys’ fees and non-taxable costs [Docket No. 122] is hereby GRANTED IN PART at
this time. Defendant shall provide the court with detailed time records no later than
September 12, 2014. The court will then determine the amount of the award.
IT IS SO ORDERED this 28th day of August, 2014.

Dated this 28th day of August, 2014.

J4h4i0

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