The Oklahoma Legislature has created an incentive for insurance companies to timely investigate claims submitted by insureds and resolve those claims. This incentive comes in the form of a statute,1 which explicitly gives an insured the right to recover the costs and fees paid to his or her attorneys when the insured prevails at a trial (or, in other words, when the jury agrees the insurance company should have paid a claim). The money for these fees and costs is paid by the insurance company. This is huge for policyholders because attorneys’ fees and litigation costs can reach thousands of dollars—sometimes hundreds of thousands.

In a recent federal case, Hamilton v. Northfield Insurance Company, the insurer came dangerously close to limiting this policyholder right in a trial court order.2

The facts of the trial court case were summarized by Steven A. Meyerowitz, Esq., Director of FC&S Legal:3, 4

Billy Hamilton filed a claim with Northfield Insurance Company in December 2015 regarding the leaking roof of a commercial building he owned. Northfield denied Mr. Hamilton’s claim in February 2016 and again in April 2016. Mr. Hamilton sued Northfield in November 2016.

In June 2017, Mr. Hamilton’s attorney sent Northfield’s attorneys an email including a revised draft pretrial order. In that communication, Mr. Hamilton’s counsel asked Northfield’s attorneys to send him ‘a serious settlement offer’ the following week, noting that he had ‘almost $12k in hard costs invested in this case thus far’ and was conveying that information ‘because that figure impacts how much of any settlement Mr. Hamilton would receive.’

Counsel for Northfield responded that the insurance company was ‘willing to offer $45,000 to settle this case,’ observing that they ‘believe[d] this [wa]s a fair offer as it [wa]s more than three times the actual damages in this case.’

Northfield’s counsel also stated, ‘Based upon your out of pocket litigation expenses, this settlement amount will allow you to recover these expenses along with some fees and should reimburse Mr. Hamilton for the entire amount of his repair costs.’

Mr. Hamilton rejected Northfield’s settlement offer, and the case proceeded to trial, resulting in a $10,652 jury verdict, the maximum amount of damages the judge instructed the jury it could award.

Mr. Hamilton subsequently filed motions for attorneys’ fees and statutory interest pursuant to 36 Okla. Stat. § 3629(B).

Northfield responded that Mr. Hamilton was not the prevailing party under the statute given that he had recovered less than the settlement offer. The district court agreed with Northfield, rejecting Mr. Hamilton’s arguments for adding attorneys’ fees to the verdict when determining the prevailing party.

Mr. Hamilton appealed to the Tenth Circuit.

The scare came when at first, the Tenth Circuit affirmed the trial court’s ruling that Hamilton was not the prevailing party entitled to attorney fees and costs under §3629.5 It was at this juncture of the proceedings that Drew Houghton of Merlin Law Group and other Oklahoma Association of Justice (“OAJ”) trial lawyers recognized the Tenth Circuit’s ruling would fatally harm not only Mr. Hamilton who was directly involved in the lawsuit, but also many other Oklahoma policyholders who are wrongfully denied coverage by their insurance company every year. Because of this, Drew and other OAJ colleagues, Simone Fulmer, Rex Travis, and Timothy Hummel, made the easy decision to jump into the fight and go “all in” to make the law right. Even though they were not the attorneys for Mr. Hamilton, their decided to join the proceedings on behalf of the OAJ as Amicus Curiae6 (Latin for “friend of the court”). Following a petition for en banc rehearing, and the submission of the Amicus Curiae brief in support of Hamilton, the Tenth Circuit vacated its opinion and certified two questions to the Oklahoma Supreme Court.7 The certified questions were:

1. In determining which is the prevailing party under Okla. Stat. tit. 36, §3629(B), should a court consider settlement offers made by the insurer outside the sixty- (formerly, ninety-) day window for making such offers pursuant to the statute?

2. In determining which is the prevailing party under Okla. Stat. tit. 36, §3629(B), should a court add to the verdict costs and attorney fees incurred up until the offer of settlement for comparison with a settlement offer that contemplated costs and fees?

Significantly, the Oklahoma Supreme Court answered “No” to the first question, siding with Hamilton and the OAJ on each issue.8 In the amicus curiae brief, Drew and the OAJ argued that when reading the statute as a whole and considering the overall context in which it exists, it is clear the “written offer of settlement” refers to an insurance company’s written offer to fulfill its policy obligations to its insured, not an offer to end a “dispute or lawsuit” with its insured, as the court originally found. Furthermore, by reaching its original conclusion to deny Hamilton as the prevailing party in this case, the federal court stood to establish a benchmark inconsistent with long-standing Oklahoma case law. “Were this court to allow insurers to skirt the sixty-day requirement entirely, offer payment at a later date, and then use the untimely payment to deny attorneys’ fees owed to the policyholder, then the purpose of a statute intended to ensure prompt payment of claims would be thoroughly thwarted,” said Oklahoma Supreme Court Chief Justice Noma D. Gurich. While prompt pay laws vary from state to state, they are critical to policyholders’ right to recover insurance benefits following the wrongful denial or delay in payment of an insurance claim. Policyholders’ entitlement to attorneys’ fees and costs following an insurance company’s failure to timely and properly pay a claim serves to deter them from acting in bad faith. Oklahoma is one of many states to protect policyholders with these types of statutes.

Upon receiving the Oklahoma Supreme Court’s published decision9 that answered the Tenth Circuit’s certified questions confirming Oklahoma policyholder’s right to attorneys’ fees and costs arising from wrongfully denied claims, the Tenth Circuit issued its final Order and Judgment, holding:

In light of the Oklahoma Supreme Court’s decision, Hamilton is the ‘prevailing party’ within the meaning of § 3629. Hamilton is thereby entitled to reasonable attorney fees and statutory interest at an annual rate of fifteen percent. § 3629.10

I now have the extremely exciting opportunity to work alongside Drew in Merlin Law Group’s Oklahoma City office and fight for the rights of Oklahoma’s insureds. As the newest attorney in the Oklahoma City office, I am excited to transition from medical malpractice defense work to fight for the rights of policyholders whose insurance companies wrongfully deny their claims and prevent their homes and businesses from being repaired after catastrophic weather events. Drew’s willingness to jump into a fight that was not his client is just one example of Merlin Law Group’s tenacity, and it demonstrates how hard our firm will work to help policyholders, even when it is not our case.
1 36 O.S. § 3629(B)
2 Hamilton v. Northfield Ins. Co., No. 16-519, 2017 WL 6337468 (E.D. Okla. Aug. 28, 2017).
3 Steven A. Meyerowitz, Oklahoma Supreme Court Asked to Decide When Insured is “Prevailing Party” in Suit Against Insurer, Insurance Coverage Law Center, Jan. 28, 2020. (subscription required).
4 It is also important to note that at Pretrial, the trial judge granted Summary Judgment for Northfield on Hamilton’s bad faith claim allowing only the breach of contract claim to proceed to trial.
5 Hamilton v. Northfield Ins. Co., 910 F. 3d 1320 (10th Cir. 2018) (rehearing granted, judgment vacated by Hamilton v. Northfield Ins. Co., 761 Fed. Appx. 794 (10th Cir. Jan. 18, 2019)).
6 A copy of the amicus brief can be provided upon request. Please email:
7 Hamilton v. Northfield Ins. Co., 761 Fed. Appx. 794 (10th Cir. Jan. 18, 2019).
8 The court noted that its answer to the first question necessarily resolved the panel’s second question in the negative: because § 3629(B) only applies to settlement offers made by the insurer prior to litigation and thus before any such fees have been incurred, the court held that it is improper to stack attorney fees on top of the “prevailing party” calculation.
9 Hamilton v. Northfield Ins. Co., –P.3d–, 2020 OK 28 (Okla. May 5, 2020).
10 Hamilton v. Northfield Ins. Co., 817 Fed. Appx. 573 (10th Cir. June 8, 2020).