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Supp.", "case_ids": [ 5683183 ], "pin_cites": [ { "page": "335-36" } ], "opinion_index": 2, "case_paths": [ "/f-supp/546/0324-01" ] }, { "cite": "560 F.2d 1093", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 938097 ], "opinion_index": 2, "case_paths": [ "/f2d/560/1093-01" ] }, { "cite": "638 P.2d 1087", "category": "reporters:state_regional", "reporter": "P.2d", "year": 1981, "opinion_index": 2 }, { "cite": "97 N.M. 242", "category": "reporters:state", "reporter": "N.M.", "year": 1981, "opinion_index": 2 }, { "cite": "97 N.M. 194", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1555071 ], "weight": 2, "opinion_index": 2, "case_paths": [ "/nm/97/0194-01" ] }, { "cite": "84 N.M. 512", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2763464, 2766830, 2768511 ], "weight": 2, "year": 1972, "opinion_index": 2, "case_paths": [ "/nm/84/0512-02", "/nm/84/0512-03", "/nm/84/0512-01" ] }, { "cite": "84 N.M. 524", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2766340 ], "weight": 2, "pin_cites": [ { "page": "541-43" }, { "page": "884-86" } ], "opinion_index": 2, "case_paths": [ "/nm/84/0524-01" ] }, { "cite": "58 N.M. 303", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1587502 ], "weight": 2, "year": 1954, "opinion_index": 2, "case_paths": [ "/nm/58/0303-01" ] }, { "cite": "93 P. 875", "category": "reporters:state_regional", "reporter": "P.", "year": 1908, "opinion_index": 2 }, { "cite": "152 Cal. 705", "category": "reporters:state", "reporter": "Cal.", "case_ids": [ 1980193 ], "year": 1908, "opinion_index": 2, "case_paths": [ "/cal/152/0705-01" ] }, { "cite": "76 N.M. 234", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 8501466 ], "weight": 2, "year": 1966, "opinion_index": 2, "case_paths": [ "/nm/76/0234-01" ] }, { "cite": "54 L.Ed.2d 95", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1977, "opinion_index": 2 }, { "cite": "98 S.Ct. 121", "category": "reporters:federal", "reporter": "S. Ct.", "year": 1977, "opinion_index": 2 }, { "cite": "90 N.M. 195", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2874306 ], "weight": 2, "year": 1977, "opinion_index": 2, "case_paths": [ "/nm/90/0195-01" ] }, { "cite": "97 N.M. 282", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1555137 ], "weight": 2, "year": 1982, "opinion_index": 2, "case_paths": [ "/nm/97/0282-01" ] }, { "cite": "92 N.M. 697", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1557083 ], "weight": 2, "year": 1979, "opinion_index": 2, "case_paths": [ "/nm/92/0697-01" ] }, { "cite": "405 So.2d 916", "category": "reporters:state_regional", "reporter": "So. 2d", "case_ids": [ 9578385 ], "opinion_index": 2, "case_paths": [ "/so2d/405/0916-01" ] }, { "cite": "91 N.M. 11", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1571114 ], "weight": 2, "pin_cites": [ { "page": "424" } ], "opinion_index": 2, "case_paths": [ "/nm/91/0011-01" ] }, { "cite": "233 F.Supp. 447", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 1481913 ], "pin_cites": [ { "page": "449" } ], "opinion_index": 2, "case_paths": [ "/f-supp/233/0447-01" ] } ], "analysis": { "cardinality": 2444, "char_count": 76441, "ocr_confidence": 0.84, "pagerank": { "raw": 3.346395341323274e-07, "percentile": 0.8744735696946038 }, "sha256": "3d9f8ef08523b7dd6ee7b6390dd97836c8261343b76f7469704ec0a84356a63f", "simhash": "1:8f2fc6e67d4f8cb6", "word_count": 12210 }, "last_updated": "2023-07-14T15:39:32.898300+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "STOWERS, J., concurs.", "BIVINS, Judge (concurs in part, specially concurs in part).", "SOSA, Senior Justice, and WALTERS, J. (concur in part, dissent in part).", "SOSA, Senior Justice, concurs." ], "parties": [ "UNITED NUCLEAR CORPORATION, a Delaware Corporation, Plaintiff-Appellee, v. ALLENDALE MUTUAL INSURANCE COMPANY, a Rhode Island Corporation, Defendant-Appellant." ], "opinions": [ { "text": "OPINION\nRIORDAN, Justice.\nPlaintiff United Nuclear Corporation (UNC) brought suit under two different policies of insurance against defendants Allendale Mutual Insurance Company (Allen-dale) and its subsidiary, Appalachian Insurance Company (Appalachian). Each insurer provided different coverage to UNC. UNC sought reimbursement for business interruption and property damage losses that occurred when a tailings embankment failed at UNC\u2019s Churchrock uranimum mill site. Both Allendale and Appalachian denied coverage. The trial court, finding coverage under Allendale\u2019s policy, awarded judgment to UNC for losses and damages, including attorney\u2019s fees, prejudgment interest and punitive damages. The trial court found in favor of Appalachian. Allendale appeals. We affirm in part and reverse in part.\nThe issues on appeal are:\nI. Whether the trial court erroneously construed an exclusionary provision in Allendale\u2019s policy of insurance.\nII. Whether the punitive damage award against Allendale is unlawful and unconstitutional.\nIII. Whether the award of attorney\u2019s fees against Allendale was unreasonable and an abuse of discretion.\nIV. Whether the trial court\u2019s award of compensatory damages is supported by substantial evidence.\nV. Whether the award of prejudgment interest against Allendale is error.\nI. Policy Coverage.\nOn July 16, 1979, the earthen tailings dam at UNC\u2019s Churchrock uranium mill failed, releasing 94 million gallons of tailings and causing the mill to be shut down. At the time of the dam failure, the Allen-dale insurance policy issued to UNC provided coverage for:\nCollapse of buildings, structures or a material part thereof in excess of $25,000 for each occurrence, except that there shall be no liability for loss or damage caused by or resulting from flood, earthquake, landslide, subsidence or any other earth movement. Collapse shall not mean settling, cracking, shrinking, bulging, or expansion of pavements, foundations, walls, floors, ceilings or roofs. (Emphasis added.)\nAllendale\u2019s refusal to honor UNC\u2019s claim for coverage was based in part on the ground that the dam failure was excluded under the \u201csubsidence or any other earth movement\u201d exception. Allendale also disputed the amount of damages claimed by UNC under various other provisions of the policy.\nAll parties agree that the \u201ccollapse\u201d was caused by \u201cdifferential settlement.\u201d Allen-dale argues that differential settlement is a kind of \u201csubsidence\u201d and cites four dictionary definitions which, by various interrelated words, draw a connection between the two terms. We would agree that there is similarity between the events described by \u201csettlement\u201d and by \u201csubsidence,\u201d but the terms are not necessarily synonymous. Indeed, during argument on a motion for directed verdict, Allendale\u2019s counsel stated that he understood the terms to mean different things. One of Allendale\u2019s experts expressed an \u201cexplicit difference\u201d in that one event was a \u201ccause\u201d and the other an \u201ceffect.\u201d\nAs UNC points out, the language used in the policy and the manner of expression indicate a distinction between \u201csettlement\u201d and \u201csubsidence.\u201d The collapse provision explains that \u201c[c]ollapse shall not mean settling * * * of pavements, foundations, walls, floors, ceilings or roofs.\u201d In its own \u201cCollapse Guidelines for Adjustors,\u201d an exhibit at trial, Allendale advised its adjustors that \u201csettling,\u201d unless accompanied by \u201csignificant physical deformation (falling) of the component and material impairment of the structural integrity of the structure,\u201d does not mean \u201ccollapse.\u201d UNC argues that this language demonstrates that minor settlement resulting in cosmetic damage is excluded from policy coverage but Allendale\u2019s guidelines acknowledge that, even though \u201csettling\u201d is specifically excluded, in some cases of settlement when it is accompanied by or results in physical deterioration and material impairment of the structure, there is coverage under the policy.\nUNO's analysis is in accord with previous interpretations of similar clauses. Morton v. Great American Ins. Co., 77 N.M. 35, 419 P.2d 239 (1966), held that \u201csettling\u201d that impaired the structural integrity of the building constituted \u201ccollapse.\u201d In Barash v. Ins. Co. of North America, 114 Misc.2d 325, 451 N.Y.S.2d 603 (1982), the court said that \u201csettling, shrinking or expansion\u201d meant normal wear and tear only. Thus, we determine that the trial court did not err in finding that the \u201cdifferential settlement\u201d that caused the collapse at the Churchrock uranium mill site was not a form of \u201csubsidence\u201d that would have been excluded under the Allendale policy.\nAlternatively, Allendale argues that if coverage is not excluded under the \u201csubsidence\u201d exception, loss by \u201cdifferential settlement\u201d must be excluded as \u201cany other earth movement.\u201d Allendale construes this phrase to cover all earth movement, and relies on Kolner v. Director, Federal Emergency Management Agency, Ins. Law Rep. (CCH), 1983 Fire and Casualty Cases, p. 1129 (N.D.Ill.1983), for the assertion that \u201cearth movement\u201d is unambiguous. However, in Kolner all the experts agreed that the direct cause of the damage was \u201cearth movement.\u201d The issue there was whether that exclusion applied when the earth movement itself was caused by flood \u2014 a covered peril. The question in Kolner did not concern the definition of the term of \u201cearth movement.\u201d However, in the instant case the scope of the term \u201cearth movement\u201d was at issue. The trial court construed the term to cover only \u201cother naturally occurring phenomenon\u201d in addition to \u201cflood, earthquake, landslide, [and] subsidence.\u201d\nIn construing the term \u201cearth movement\u201d to cover only naturally occurring phenomenon, the trial court applied the doctrine of ejusdem generis. Numerous other cases have applied the doctrine to the term \u201cearth movement.\u201d See e.g. Peach State Uniform Service, Inc. v. American Ins. Co., 507 F.2d 996 (5th Cir.1975); Gullett v. St. Paul Fire & Marine Ins. Co., 446 F.2d 1100 (7th Cir.1971); Wyatt v. Northwestern Mutual Ins. Co. of Seattle, 304 F.Supp. 781 (D.Minn.1969); Wisconsin Builders, Inc. v. General Ins. Co. of America, 65 Wis.2d 91, 221 N.W.2d 832 (1974); Government Employees Ins. Co. v. DeJames, 256 Md. 717, 261 A.2d 747 (Md.App.1970); Anderson v. Indiana Lumbermens Mutual Ins. Co. of Indianapolis, Indiana, 127 So.2d 304 (La.App.1961). Indeed, one of Allendale\u2019s own internal communications discussed the Wyatt case and its holding and acknowledged that the term \u201cearth movement\u201d would most likely be construed to apply to naturally occurring phenomenon.\nThe general rule of construction for insurance contracts is as follows:\nTerms used in a policy which have by prior judicial decisions been given a definite meaning, will be regarded as being used in view of such established construction and be governed thereby; and if the insurer continues to issue, without change, policies, clauses of which have been judicially construed, it will be considered as issuing them with that construction placed on them, even though such construction violates the literal sense of the words used.\nPatterson v. United States, 233 F.Supp. 447, 449 (E.D.Tenn.1964) (quoting 44 C.J.S. Insurance \u00a7 293 (1945)). Allendale issued its policy of insurance to UNC in July, 1977. All of the cases interpreting \u201cearth movement\u201d to apply only to naturally occurring phenomenon (cited above) were decided prior to issuance of the policy here in question. Thus, Allendale is considered to have issued its policy to UNC with the prior judicial interpretations given to the term \u201cearth movement.\u201d Further, New Mexico recognizes this general rule of construction. See Lopez v. Townsend, 42 N.M. 601, 82 P.2d 921 (1938).\nTherefore, we determine that the trial court did not err in applying the doctrine of ejusdem generis to the term \u201cearth movement\u201d and thereby finding that the exclusion in the Allendale insurance policy did not apply to the tailings dam spill at UNC\u2019s Churchrock uranium mill site.\nII. Punitive Damages Award.\nThe trial court found Allendale\u2019s conduct in handling and denying UNC\u2019s claim for coverage to be \u201cwillful, wanton, malicious and in reckless disregard of the rights of its insured.\u201d Based primarily on that finding, punitive damages of $25 million were assessed against Allendale. Allendale claims that the award of punitive damages is unlawful and unconstitutional because Allendale had a reasonable basis for denying coverage to UNC and questioning the amount of UNO's claimed losses. Allen-dale further argues that the standard of proof to determine punitive damages should be a clear and convincing standard; Allendale also argues that an award of $25 million in punitive damages is excessive. We will address Allendale\u2019s standard of proof argument first.\nNew Mexico has never declared the standard of proof required to establish a justification for punitive damages. Allendale urges this Court to follow the lead of Indiana, Wisconsin and other jurisdictions in adopting a requirement of \u201cclear and convincing\u201d evidence. See e.g., Travelers Indem. Co. v. Armstrong, 442 N.E.2d 349 (Ind.1982); Wangen v. Ford Motor Co., 97 Wis.2d 260, 294 N.W.2d 437 (1980). In support of this higher evidentiary test, Allendale emphasizes that parties \u201cagainst whom punitive damages are sought stand accused of highly opprobrious, morally reprehensible behavior.\u201d Because they must face society\u2019s scorn as well as the monetary assessment, Allendale argues that defendants who are held liable in punitive damages are denied due process, the opportunity to present their side of the case, and to their fair day in court unless the standard of clear and convincing evidence is imposed on the trier of facts. We are not convinced that due process is offended when morally reprehensible conduct is shown by substantial evidence which preponderates in favor of the finding.\nAllendale correctly notes that the \u201cclear and convincing\u201d test has been applied in this jurisdiction for determining compensatory liability in cases where defendant was accused of libelous or fraudulent wrongdoing, citing e.g., Hummer v. Betenbough, 75 N.M. 274, 404 P.2d 110 (1965) (undue influence); Mason v. Salomon, 62 N.M. 425, 311 P.2d 652 (1957) (fraud); Terrel v. Duke City Lumber Co., 86 N.M. 405, 524 P.2d 1021 (Ct.App.1974), rev'd in part on other grounds, Duke City Lumber Co. v. Terrel, 88 N.M. 299, 540 P.2d 229 (1975), (economic compulsion \u201clike fraud\u201d). However, we do not read Hummer to require the higher degree of proof; we note, however, that other New Mexico cases cited and those which we have researched all deal with allegations of fraud or are concerned with the \u201cclear and convincing\u201d burden established by statute\u2014usually in connection with termination or deprivation of licenses or basic and inherent individual rights {e.g., termination of parental rights).\nIt is the general rule, not only in New Mexico but elsewhere, that issues of fact in civil cases are to be determined according to the preponderance of the evidence. See NMSA 1978, UJI Civ. 3.6 (Repl. Pamp.1980). As demonstrated by our adopted civil jury instructions and by New Mexico case law (e.g., Campbell v. Campbell, 62 N.M. 330, 310 P.2d 266 (1957)), the requirement of clear and convincing proof to sustain an issue claimed is the exception rather than the rule. We are not disposed to enlarge the areas of the exception\u2019s application. We note that in Whitehead v. Allen, 63 N.M. 63, 313 P.2d 335 (1957), decided more than a quarter of a century ago, it was said that the jury\u2019s finding of breach of contract, \u201cwanton in character and maliciously intentional,\u201d and the accompanying award of punitive damages, were \u201cbased upon substantial evidence.\u201d Clearly, Allendale knew at the commencement of trial what degree of proof UNC would be required to produce, and also knew what the evidence would be on the issues of wrongful denial and wilful and reckless disregard of UNC\u2019s rights. We are not convinced that the degree of proof should be changed in punitive damage areas.\nWe now address the issue of whether the punitive damage award was erroneous.\nIt has been held in New Mexico that:\nPunitive or exemplanary damages may be awarded only when the conduct of the wrongdoer may be said to be maliciously intentional, fraudulent, oppressive, or committed recklessly or with a wanton disregard of the plaintiffs\u2019 rights.\nLoucks v. Albuquerque National Bank, 76 N.M. 735, 747, 418 P.2d 191, 199 (1966) (emphasis added.) To assess punitive damages for breach of an insurance policy there must be evidence of bad faith or malice in the insurer\u2019s refusal to pay the claim. Anderson v. Dairyland Ins. Co., 97 N.M. 155, 158, 637 P.2d 837, 840 (1981); Curtiss v. Aetna Life Ins. Co., 90 N.M. 105, 108, 560 P.2d 169, 172 (Ct.App.), cert. denied, 90 N.M. 7, 558 P.2d 619 (1976). \u201cBad faith\u201d has been defined as meaning \u201cany frivolous or unfounded refusal to pay * * State Farm General Ins. Co. v. Clifton, 86 N.M. 757, 759, 527 P.2d 798, 800 (1974) (emphasis added).\n? the instant case, although the questions of coverage were the major reasons given by Allendale for not paying UNC\u2019s claim, they were not the only reasons. There remained questions regarding the amount of damages available to UNC under its insurance policy with Allendale. UNC\u2019s amended complaint sought $30,032,-152 in compensatory damages. The trial court judgment for UNC was for $24,670,-724 in compensatory damages, a difference of $5,361,428. These are very substantial differences in the amount claimed and the amount awarded. It cannot reasonably be argued that Allendale did not have a legitimate reason to question, in a court of law, the amount of damages claimed by UNC. There existed legitimate issues under various policy provisions regarding UNC\u2019s claim for lost net operating profits, extraordinary costs, carrying costs and costs of repair. Therefore, since there were legitimate questions regarding the amount of UNC\u2019s claimed damages, as is evidenced in the trial court\u2019s judgment awarding substantially different amounts than those claimed by UNC, we cannot say that Allen-dale\u2019s failure to pay UNC\u2019s claim was malicious or in bad faith (i.e., an unfounded refusal to pay). Thus, we determine that the trial court\u2019s award of $25 million in punitive damages was erroneous and therefore reverse on that issue.\nIII. Attorney\u2019s Fees.\nThe trial court awarded UNC attorney\u2019s fees and costs in the amount of $3,210,759 by authority of NMSA 1978, Section 39-2-1, which reads:\nIn any action where an insured prevails against an insurer who has not paid a claim on any type of first party coverage, the insured person may be awarded reasonable attorney\u2019s fees and costs of the action upon a finding by the court that the insurer acted unreasonably in failing to pay the claim.\nIn arriving at the attorney fee award of $3,210,759, the trial court determined a \u201clodestar\u201d figure by using the number of hours worked by UNC\u2019s legal counsel and multiplying that number by the attorneys\u2019 hourly billing rate. This \u201clodestar\u201d figure was then increased by a multiplier of three which represented, in the trial court\u2019s view, a proper enhancement for the exceptional success of UNC\u2019s attorneys in prosecution of the suit and for the advancement of public policy in litigated insurance claims, as shown by the punitive damage award.\nAlthough it can be argued that Allendale was unreasonable in failing to at least acknowledge coverage to UNC due to Allendale\u2019s mistaken interpretation of the various exclusions contained in the policy, it does not follow that Allendale was unreasonable in failing to pay UNC\u2019s claim since as we previously determined, Allendale had a reasonable basis for questioning the amount of UNC\u2019s claimed damages under the various policy provisions. We cannot say that Allendale was unreasonable in failing to pay UNC\u2019s claimed damages under the policy. C.f Urania Enterprises, Inc. v. Travelers Indem. Co., 335 So.2d 757 (La.App.1976) (insurer entitled to present breach of policy condition as defense to liability and therefore should not be charged with penalty or fee for failure to pay the claim). Thus, we determine that the trial court\u2019s award of attorney\u2019s fees to UNC was error and therefore reverse.\nFurther, although unnecessary to our determination of the issue, we feel the \u201clodestar\u201d method used to determine the amount of attorney fees and the multiplier allowed by the trial court are inappropriate in this type of case. The \u201clodestar\u201d and multiplier have generally been applied in civil rights cases and class action suits. Compare, McKinnon v. City of Berwyn, 750 F.2d 1383 (7th Cir.1984) (civil rights action); Laffey v. Northwest Airlines, Inc., 746 F.2d 4 (D.C.1984) (civil rights action); City of Detroit v. Grinnell Corp., 495 F.2d 448 (2nd Cir.1974) (private antitrust national class action); In re Fine Paper Antitrust Litigation, 98 F.R.D. 48 (E.D.Pa.1983) (class certified antitrust action).\nIV. Compensatory Damages Supported by Substantial Evidence.\nAllendale attacks the award of $24,-670,724 in compensatory damages as being unsupported by substantial evidence. While objecting to \u201cnumerous other problems and errors\u201d in the court\u2019s calculations and decision, Allendale makes three specific challenges to the award.\nAllendale first claims error in the trial court\u2019s refusal to consider certain receipts by UNC from the sale of borrowed yellowcake. It contends the profit from those sales should have been offset against the business interruption losses caused by the dam failure, thus reflecting no loss of net profits by UNC. The trial court found, on evidence produced by UNC, that the borrowings and sales relied on by Allendale to support its argument were normal business practices of UNC and would have occurred even in the absence of the dam collapse. Consequently, that income would have had no bearing on lost income from UNC\u2019s own production. Additionally, the argument of Allendale gives no recognition to UNC\u2019s obligation to repay the borrowings. At the time of trial, there was evidence that sales on borrowed uranium had no impact whatever on UNC\u2019s losses from the shut-down of production; there also was testimony that the sales of borrowed uranium created no profits for UNC over its liability for repayment, or over the profit ordinarily to be anticipated by UNC in its engagement in this type of business practice common to the industry.\nUNC makes a further point in refutation of Allendale\u2019s contention: The Allendale policy covers \u201closs of production,\u201d not \u201closs of sales.\u201d In its Adjuster Manual, Allendale rejects the argument it now makes, and instructs its adjusters that with respect to business interruption claims, \u201c[t]he insured should never be given the impression that our policy covers loss of sales[;] it covers loss of production. The insureds do not have to prove a loss of sales.\u201d If UNC would have made sales on borrowed supplies whether or not its own production had been interrupted, that income is irrelevant to a determination of the covered loss of production. The court\u2019s findings regarding UNC\u2019s lost net operating profits, resulting from interruption of its own production and its consequent inability to accept bids from willing purchasers, is supported in the evidence and will not be disturbed on appeal. Howard v. Howard, 100 N.M. 105, 666 P.2d 1252 (1983).\nAllendale next objects to the trial court\u2019s finding that UNC could not have made up its loss of production within a one-year period following repair of the damaged property, which Allendale delineates as the \u201creasonable time\u201d required by the policy. Without citation to any authority, Allendale argues that the policy provision requiring its insured to make up lost production \u201cthrough the use of any property * * * obtainable from other sources\u201d obligated UNC to buy yellowcake on the open market. Again, Allendale misreads its own policy. It is \u201cproduction\u201d which is to be made up, not \u201csales.\u201d The argument advanced by Allendale was specifically rejected in Gordon Chem. Co. v. Aetna Casualty & Surety Co., 358 Mass. 632, 266 N.E.2d 653 (1971). We decline to hold that a mineral producer must buy the refined product from other sources to satisfy the \u201cmake-up of lost production\u201d requirement of its business interruption coverage.\nFinally, Allendale disagrees with the trial court\u2019s conclusion that only one day of the long delay in UNC\u2019s getting back to full operating capacity was because of government regulation of construction or repair. Any increases in business losses resulting from compliance with \u201claw and ordinance\u201d requirements are excluded from the policy coverage. There was significant and substantial evidence presented by UNC on the various causes of delay, including the need to investigate the cause of the collapse, development of repair designs, acquisition and testing of repair materials, and inability to repair the dam during the winter months.\nAlthough there was some evidence UNC might have restructured portions of the tailings area to permit earlier resumption of milling, there was also evidence that UNC partially resumed operations as early as October, 1979 with modified facilities. But the overall repair delay was complicated by conflicts among the engineers regarding making repairs before design, engineering and construction plans had been fully examined and proven. If those delays occasioned by principles of engineering prudency overlapped the same delay period imposed by standards of a regulatory body that had to be met before production could be restarted, it cannot be said that delay was due only to the \u201claw and ordinance\u201d regulation of reconstruction and repairs. The trial court\u2019s determination regarding the effect of governmental regulation does not fail for lack of substantial evidence.\nIn its generalized attack on the amount of the compensatory damage award, aside from the specific objections addressed above, Allendale contends that the trial court made an error of $519,724 in the award for extraordinary losses. We note that UNC requested a finding of $4,566,902 for that item of damages and of $2,203,719 for carrying costs, based upon exhibits it submitted at trial; Allendale requested a finding of no extraordinary losses or carrying costs; and the trial court awarded damages to UNC of $3,464,240 and $1,859,591, repsectively. Allendale\u2019s argument is that UNC referred in a footnote in its post-trial brief to a figure of $2,944,516 as the amount of extraordinary expenses, not compensated under the Appalachian policy, to partially make up for lost production or to reduce loss. Allendale says the difference between the amount awarded and the amount discussed in UNC\u2019s brief shows the trial court\u2019s \u201csuperficial\u201d consideration of the damage issues.\nThe trial court obviously rejected $1,102,662 of UNC's request for a finding of extraordinary loss damages of $4,566,-902, and disallowed $344,128 of its requested finding of $2,203,719 for carrying costs and for fixed, ongoing administrative and overhead expenses. Since the evidence could have supported a larger amount of damages in each category of loss and UNC has not appealed the court\u2019s reduction of the amounts claimed, we do not see how Allendale has been injured. The footnote reference relied upon by Allendale obviously conflicts with other evidence of loss that was introduced at trial. Precise mathematical certainty of computation is not required when the evidence encompasses the monetary amount allowed. Acme Cigarette Services, Inc. v. Gallegos, 91 N.M. 577, 577 P.2d 885 (Ct.App.1978).\nThe trial court\u2019s award of compensatory damages within the range shown by the evidence is affirmed. See Jackson v. Goad, 73 N.M. 19, 385 P.2d 279 (1963); Wirth v. Commercial Resources, Inc., 96 N.M. 340, 630 P.2d 292 (Ct.App.), cert. denied, 96 N.M. 543, 632 P.2d 1181 (1981).\nV. Prejudgment Interest.\nAs its last point of error on appeal Allendale argues that the trial court erred in awarding prejudgment interest of 6% from March 21, 1980, (the date of Allen-dale\u2019s denial of UNC\u2019s claim), to date of judgment. Allendale argues that prejudgment interest was not allowable because the compensatory damage amount was neither liquidated nor ascertainable as of the date of denial, citing O\u2019Meara v. Commercial Ins. Co., 71 N.M. 145, 376 P.2d 486 (1962). Contract damage awards against one who fails to perform should fully compensate the injured party for all damages naturally flowing from such breach. Shaeffer v. Kelton, 95 N.M. 182, 619 P.2d 1226 (1980). Prejudgment interest is meant to compensate a plaintiff for injury resulting from deprivation of the promised performance and for loss of the use and earning power of plaintiff\u2019s own funds that have been expended as a result of a defendant\u2019s failure to pay. Id.\nThe allowance of prejudgment interest is governed by NMSA 1978, Section 56-8-3, which at the time of trial and judgment provided:\nThe rate of interest, in the absence of a written contract fixing a different rate, shall be six percent per annum, in the following cases:\nA. on money due by contract * * *. Where the amount in question is fixed or liquidated, prejudgment interest should be awarded as a matter of right. Shaeffer v. Kelton, 95 N.M. at 188, 619 P.2d at 1232. Where the amount is ascertainable, prejudgment interest may be awarded at the judge\u2019s discretion. Id.; O\u2019Meara v. Commercial Ins. Co.\n? the instant case, the amount payable to UNC under Allendale\u2019s policy was not finally settled until judgment. Because UNC claimed several different amounts between the filing of the complaint and the time of trial, Allendale argues that an award of prejudgment interest is precluded. However, in a leading case on the allowance of prejudgment interest in this state, this Court adopted Wisconsin\u2019s theory that:\n[Mere] difference of opinion as to amount is * * * no more reason to excuse [defendant] from interest than difference of opinion whether he legally ought to pay at all, which has never been held an excuse.\nState Trust & Savings Bank v. Hermosa Land & Cattle Co., 30 N.M. 566, 597, 240 P.469, 481 (1925) (quoting Laycock v. Parker, 103 Wis. 161, 79 N.W. 327 (1899)).\nSince the amount of UNC\u2019s damages was ascertainable and the award of prejudgment interest was within the trial court\u2019s discretion, and since neither a claim nor proof of abuse of discretion has been made or shown by Allendale, we affirm that portion of the judgment as well.\nThe judgment of the trial court is affirmed in part and reversed in part.\nIT IS SO ORDERED.\nSTOWERS, J., concurs.\nBIVINS, Judge (concurs in part, specially concurs in part).\nSOSA, Senior Justice, and WALTERS, J. (concur in part, dissent in part).", "type": "majority", "author": "RIORDAN, Justice." }, { "text": "BIVINS, Judge,\nCourt of Appeals (concurring in part; specially concurring in part).\nI concur in the discussion and results as to issue I, \u201cPolicy Coverage\u201d and issue IV, \u201cCompensatory Damages Supported By Substantial Evidence.\u201d I concur in the results reached as to issue II, \u201cPunitive Damages Award,\u201d issue III, \u201cAttorney Fees,\u201d and issue V, \u201cPrejudgment Interest,\u201d but base my decisions on different grounds.\nFor the sake of clarity, I will use the same numbering and captions as appear in Justice Riordan\u2019s opinion.\nII. Punitive Damages Award.\nJustice Riordan reverses the punitive damages award on the basis that Allendale had a legitimate reason to question compensatory damages as demonstrated by the difference between what UNC claimed and what the trial court awarded. While I agree that a well-founded ground for challenging the issue of compensatory damages may be considered in determining whether an insurer\u2019s failure or refusal to pay a claim rises to the level that would warrant punitive damages, I do not believe that under the circumstances of this case that ground alone suffices to answer the question presented. It is the conduct of Allen-dale relating to its collapse coverage provision that must be analyzed in order to determine if the punitive damages may stand. If this were not so, then a defendant could defeat an award of punitive damages simply by challenging the compensatory damages claim. Could a drunken driver, for example, who left the roadway, cutting down pedestrians on the sidewalk, escape punitive damages simply by raising a legitimate challenge to the claim of pain and suffering by those who survived?\nIt should be noted at the outset that UNC did not seek damages in tort for bad faith failure to pay its claim, see State Farm General Insurance Co. v. Clifton, 86 N.M. 757, 527 P.2d 798 (1974); rather, it sought punitive damages in. addition to the damages contemplated by the parties at the time of making the insurance contract. Such damages are recognized in a breach of contract action, but there must be a showing of malice or of reckless or wanton disregard of the insured\u2019s rights. Clifton; Bank of New Mexico v. Rice, 78 N.M. 170, 429 P.2d 368 (1967); Loucks v. Albuquerque National Bank, 76 N.M. 735, 418 P.2d 191 (1966); NMSA 1978, UJI Civ. 18.27 (Repl.Pamp.1980).\nIn discussing the type of conduct that would justify punitive damages, the court of appeals in Curtiss v. Aetna Life Insurance Co., 90 N.M. 105, 560 P.2d 169 (Ct.App.), cert. denied, 90 N.M. 7, 558 P.2d 619 (1976), said that \u201c \u2018[a]n act characterized as \u201cwillfully\u201d or \u201cmaliciously\u201d * * * denotes the intentioned [sic] doing of a harmful act without just cause or excuse or an intentional act done in utter disregard for the consequences, * * Id. at 108, 560 P.2d at 172 (emphasis added), quoting Potomac Insurance Co. v. Torres, 75 N.M. 129, 131-32, 401 P.2d 308, 309 (1965).\nCurtiss upheld an award of punitive damages where the insurer intentionally refused to pay on a health policy claim, after plaintiff suffered a heart attack, because he was unable to take a physical examination. In the present case, the trial court awarded punitive damages, finding that Allendale denied coverage by relying on \u201ca recognized ambiguity,\u201d and that by its efforts to generate a basis for denial of liability, Allendale acted willfully, wantonly, maliciously, and in reckless disregard of the rights of its insured. The trial court also found that Allendale\u2019s refusal to allow UNC\u2019s claim was vexatious and without reasonable cause.\nIn its findings of fact on punitive damages, the trial court relied on sixteen exhibits as illustrative of the conduct giving rise to the award. These exhibits fall into three categories: (1) internal memoranda reflecting that for some time prior to the Churchrock claim, Allendale and its parent company, Factory Mutual, had been concerned with the \u201ccatastrophic\u201d claims under its collapse peril provision, (2) a legal opinion on a similar failure of a gypsum dike, known as the Beker claim, and (3) documents relating to UNC\u2019s claim.\nThe appellate courts in this state have previously held that:\n\u201c[w]here all or substantially all of the evidence on a material issue is documentary * * * [we] will examine and weigh it, and will review the record, giving some weight to the findings of the trial judge on such issue, and will not disturb the same upon conflicting evidence unless such findings are manifestly wrong or clearly opposed to the evidence.\u201d\nFirst National Bank in Albuquerque v. Energy Equities, Inc., 91 N.M. 11, 14, 569 P.2d 421, 424 (Ct.App.1977), quoting Valdez v. Salazar, 45 N.M. 1, 7, 107 P.2d 862, 865 (1940). Here, given the nature of conduct necessary to warrant a punitive damages award, the findings are wrong and opposed to the evidence.\nAs to the first category of exhibits, Allendale experienced, starting in 1974, \u201cdramatic increases\u201d in \u201ccatastrophic collapse losses.\u201d By March 1979 and before the Churchrock failure, Allendale had decided that, in order to keep its collapse losses within allowable limits, it would need to reduce those losses by $50 million over a five-year period, or $10 million a year. UNC argues that Allendale rejected legitimate methods of loss reduction because these would, taking a quote from one of defendant\u2019s memoranda, \u201cseriously impair [Allendale\u2019s] marketing efforts.\u201d UNC claims that Allendale embarked upon an illegitimate effort to refuse to pay valid collapse claims by leaving an ambiguous collapse provision in the policy, continuing to use it to entice customers, handling each \u201csticky\u201d loss as it came along, preserving its ability arbitrarily to deny coverage, and forcing its confused insureds to litigate for collapse benefits which they thought that they had purchased. In short, the picture UNC paints, and the one apparently adopted by the trial court, is that of an insurance company luring its customers with an ambiguous coverage provision, taking their premiums, and then arbitrarily denying their claims, whether legitimate or not.\nA review of the evidence will not support such a characterization or the findings made. Contrary to UNC\u2019s claim, the statement regarding impairment of marketing efforts was in reference to the unilateral withdrawal of the collapse coverage from all policies, not the rejection of legitimate methods of loss reduction. Withdrawal of this particular coverage was also rejected because of the time involved in securing approval within the Factory Mutual system (referring to other affiliates) as well as approval from the several states in which the companies did business.\nThe goal of reducing collapse losses by $50 million over five years involved, contrary to the implication attached by UNC, legitimate underwriting techniques, such as raising premiums, increasing the deductible, or placing limits on liability. A fair reading of the document does not admit of any other interpretation.\nNor will the evidence support a wholesale, arbitrary denial of collapse claims. UNC, in an effort to demonstrate that like claims were treated differently, points to an outside attorney\u2019s opinion to an Allen-dale affiliate. In the letter opinion, the attorney concluded that the failure of the dike wall on the Beker claim would qualify as a collapse. Allendale contends that the affiliate disagreed with the opinion and paid the claim. Further, it argues that the policy in the Beker claim excluded coverage for a collapse, whereas the UNC policy covered collapse peril. Thus, by considering the loss not a collapse, Allendale contends that its treatment in both cases was consistent. While it would appear that Allendale is correct, it is unnecessary to resolve the question. Assuming UNC\u2019s interpretation of the handling of the two claims is correct, one isolated instance does not establish a concerted effort arbitrarily to deny legitimate claims, nor does it evidence bad faith or willful conduct. Many factors may enter into the handling of a claim, not the least of which is the amount involved and whether a serious dispute exists as to the validity of the damages, as in the present case. Had Allendale embarked on a course of arbitrarily denying collapse claims without any basis, surely the extensive discovery in this case would have turned up more than the Beker claim.\nFinally, the trial court\u2019s findings refer to loss claim documents relating to the Churchrock failure. Among these is an investigative report which suggests that Allen-dale attempted to soften certain words and phrases favorable to its position. Further, the \u201ccut and paste\u201d denial of liability letter (containing copies of policy provisions interspersed in the body of a letter) is referred to in the trial court\u2019s findings. It is difficult to see where these documents, standing alone, provide any basis for a finding of wanton or malicious conduct. The denial letter sets forth rather thoroughly, if not exhaustively, Allendale\u2019s position, but then suggests a meeting to review the points. Where the outcome of the action turned primarily on semantics, in both the legal as well as the engineering sense, it would not be unreasonable for a party carefully to choose words supportive of its position, as long as that position is fairly debatable.\nWhat the evidence does reflect is that Allendale was content to leave its collapse peril provision alone, without attempting to clarify the coverage, and \u201cto handle each sticky situation as it developed.\u201d Had Allendale utilized the claimed ambiguity to its advantage, while arbitrarily refusing to pay legitimate claims, as UNC claims, an argument might be made that such conduct would justify punitive damages. As discussed above, however, outside the Beker claim, the record does not reflect that type of conduct. As a matter of fact, the failure to redefine the collapse provision may have actually worked to the advantage of the insureds, as evidenced by the loss experiences. One Allendale memorandum referred to the collapse provision as a \u201cbonanza * * * handed to the insured * * * [that] has certainly haunted us over and over.\u201d\nIn my opinion, the failure of Allendale to clarify the language of its policy falls short of the conduct necessary to justify an award of punitive damages. In fact, a perusal of the cases discussed by Justice Riordan under issue I, \u201cPolicy Coverage,\u201d reveals that the collapse peril provision bears a striking resemblance to the language used by other companies. It was perhaps not so much the lack of clarity in the language of the exclusionary clause (i.e., \u201csubsidence or any other earth movement\u201d) that resulted in this litigation; rather, it was the strained construction Allen-dale attempted to place on that language.\nNevertheless, while that construction or the failure to clarify the language of the policy might justify the trial court in finding Allendale\u2019s failure to pay unreasonable, as discussed later under the attorney\u2019s fee issue, it would not justify punitive damages. The situation here differs from those cases relied on by UNC, such as Sparks v. Republic National Life Insurance Co., 132 Ariz. 529, 647 P.2d 1127, cert. denied, 459 U.S. 1070, 103 S.Ct. 490, 74 L.Ed.2d 632 (1982). In Sparks, the insurance company, being fully aware of the grievous nature of the insured\u2019s injuries and staggering medical bills, nonetheless decided to deny continuing benefits based on patently ambiguous and previously undisclosed provisions of the insurance policy. There was no economic coercion in the present case, only reliance on exclusionary language which the insurer probably should have known would be construed against it. To award punitive damages against a litigant for seeking construction of contract language would subject most contract disputes to these types of damages. I do not believe that punitive damages were ever intended to reach that far.\nThere is an equally compelling reason why the punitive damages award cannot stand. This involves the definition of \u201ccollapse\u201d and Allendale\u2019s right to litigate whether the failure at Churchrock constituted a collapse.\nAt the beginning of this discussion, I quoted from Curtiss that \u201cwillful\u201d or \u201cmalicious\u201d denotes the intentional doing of an act without just cause or excuse. This language recognizes that where a claim is \u201cfairly debatable,\u201d the insurer is entitled to debate it, whether the issue concerns a question of law or fact. Anderson v. Continental Insurance Co., 85 Wis.2d 675, 271 N.W.2d 368 (1978). See also Gulf Atlantic Life Insurance Co. v. Barnes, 405 So.2d 916 (Ala.1981).\nThis principle has also been recognized and adopted by this court. In Anderson v. Dairyland Insurance Co., 97 N.M. 155, 637 P.2d 837 (1981), the court, citing with approval Crawford v. American Employers\u2019 Insurance Co., 86 N.M. 612, 526 P.2d 206 (Ct.App.1974), rev\u2019d on other grounds, 87 N.M. 375, 533 P.2d 1203 (1975), said that not all actions taken by an insurer to the detriment of its insured justify punitive damages. In Crawford, the court of appeals upheld the refusal by the trial court to submit to the jury the issue of punitive damages where the insurer knew two and one-half years before trial that a serious question of coverage existed. The Crawford court said, \u201c[although the actions of the Insurer could be characterized as entirely self-interested they do not rise to the level of being \u2018maliciously intentional, fraudulent, oppressive, or committed recklessly or with a wanton disregard of the Plaintiff\u2019s rights.\u2019 \u201d Id. at 621, 526 P.2d at 215, quoting Loucks v. Albuquerque National Bank, 76 N.M. 735, 418 P.2d 191 (1966).\nIn order to examine the legitimacy of Allendale\u2019s stand in defending against UNC\u2019s claim, it is helpful to lay out again the collapse coverage provision:\nCollapse of buildings, structures or a material part thereof in excess of $25,000 for each occurrence, except that there shall be no liability for loss or damage caused by or resulting from flood, earthquake, landslide, subsidence or any other earth movement. Collapse shall not mean settling, cracking, shrinking, bulging, or expansion of pavements, foundations, walls, floors, ceilings or roofs. (Emphasis added.)\nAllendale denied coverage, first, on the ground that the failure of the dam did not constitute a \u201ccollapse\u201d; and, second, if it did, the collapse was caused by \u201csubsidence or any other earth movement,\u201d which are excluded. Even if Allendale\u2019s denial of coverage based on the exclusionary phrases, \u201csubsidence or any other earth movement,\u201d may have been unreasonable; Allendale was entitled to a factual determination as to whether the failure at Churchrock constituted a collapse.\nThe collapse peril provision has spawned much litigation. See Annots., 72 A.L.R.2d 1287 (1960); 71 A.L.R.3d 1072 (1976). As the author of the annotation in 71 A.L.R.3d 1072 points out, the question of whether, in a given case, the loss comes within the collapse coverage provision turns on two overriding considerations. The first involves the form of the insuring clause. Some policies insure against collapse without defining that term by qualification or exclusion. Other policies contain qualifying or exclusionary language. For instance, the qualifying or exclusionary language might provide that \u201ccollapse\u201d does not mean \u201csetting, cracking, shrinking, bulging or expansion,\u201d as the qualifying language does in the policy before us. The second overriding consideration affecting coverage involves how a court, in a given case, determines that \u201ccollapse\u201d should be interpreted. Id. at 1075.\nWhere the term \u201ccollapse\u201d was used without qualifying language, courts are sharply divided in interpreting the term. Some courts take the position that \u201ccollapse\u201d is an unambiguous term which denotes a falling in, loss of shape, or reduction to flattened form or rubble. See cases collected in 71 A.L.R.3d at 1079. In sharp contrast, a more liberal view has been taken by other courts, following the lead of Jenkins v. United States Fire Insurance Co., 185 Kan. 665, 347 P.2d 417 (1959). In Jenkins, the court ruled that the settling, cracking, bulging or breaking of all or part of the insured property, in a manner that materially impairs its basic structure or substantial integrity, is a \u201ccollapse\u201d within the meaning of the policy if the occurrence is caused by unusual or extraordinary circumstances which were unforeseeable by the parties when they contracted. New Mexico followed Jenkins, in Morton v. Great American Insurance Co., adopting the Kansas court\u2019s interpretation of \u201ccollapse.\u201d 77 N.M. 35, 419 P.2d 239 (1966).\nBecause the substantial conflict in other jurisdictions which had interpreted \u201ccollapse\u201d provided some evidence that the term, when standing alone, was ambiguous, Morton construed \u201ccollapse\u201d in favor of the insured. Therefore, the qualifying language found in the more recent policies, and the one before us, was apparently added by insurance companies in response to Jenkins. Krug v. Millers\u2019 Mutual Insurance Association, 209 Kan. 111, 495 P.2d 949 (1972). The qualifying language was intended to counter the ambiguity courts found in the word \u201ccollapse\u201d standing alone. Id.\nBecause this court relied on the Kansas case of Jenkins in construing the term \u201ccollapse\u201d without the qualifying exclusionary language, it is important to this discussion of Allendale\u2019s conduct to consider Krug. Krug construed \u201ccollapse\u201d with the added qualifying exclusionary language. In Krug, summary judgment for the insurer was upheld. The policy in Krug, similar to Allendale\u2019s policy, insured against \u201ccollapse (not settling, cracking, shrinkage, bulging or expansion) of building^) or any part thereof * * The lower court held that because the insured\u2019s claim involved a loss caused by settling of his home, due to water leakage, the policy provision was not ambiguous. The insured could not recover on the theory that the exclusionary language referred only to normal settling and cracking.\nWe need not decide whether New Mexico would go along with Krug in holding that the clause with the qualifying language is unambiguous; that issue is not now before us. This court, however, should decide, at the very least, that a fact question existed as to whether the Churchrock failure constituted a \u201ccollapse,\u201d in order to determine whether the issue was \u201cfairly debatable.\u201d\nUNO\u2019s Churchrock dam, a massive structure 5,700 feet in length and ranging from twelve to thirty-eight feet in height, was constructed in 1976. Its thickness varied from 180 feet at the base to sixty feet at the crest. In 1977, embankment cracking was observed at two locations. These cracks were repaired. A year later, additional cracking at the extreme southern end of the dam was observed. Engineering reports associated these cracks with differential settlement transverse to the embankment, due to differential wetting of the soils. Concerned with the cracking of the dam, UNC adopted a monitoring program and engaged an engineering company.\nOn July 16, 1979, a leak was discovered in the dam near the southwest corner of the southernmost tailings pond. When first observed, the break was fifteen feet wide; eventually it opened to thirty-seven feet. Investigation as to cause reflected differential settlement at a transition zone between the bedrock and the alluvial soil under the dam. This differential settlement caused a crack in the dam which allowed the liquid waste to escape from the downstream face of the dam.\nThe trial court found:\n9. The breach was both a material and substantial impairment of the structural integrity of the dam and a falling down or caving in of a material portion of the tailings dam, and constituted a collapse. (Emphasis added.)\nWhile Allendale disagrees with this finding, because of the substantial evidence rule, it does not challenge it on appeal. Nevertheless, Allendale contends, and I agree, that it had a right to debate the fact issue as to whether or not the failure constituted a collapse. There was evidence, which if accepted, would have warranted a finding that the dam did not fall into a flattened mass, but rather developed a hole which grew over a period of time. The policy did not cover losses resulting from normal settlement, cracking or the like. Without citing any supporting authority, UNC counters saying that, \u201c[w]here settling causes a collapse \u2014 that is, significant physical deformation and material impairment of the structural integrity \u2014 the collapse is covered.\u201d At least one case suggests the contrary. In La Salle National Bank of Chicago v. American Insurance Co., 14 Ill.App.3d 1027, 303 N.E.2d 770 (1973), the court rejected a similar argument by the insured, holding in part that:\n[i]t is not at all clear that characterization of the * * * sinking as a collapse would operate to bring the loss within the policy since the underlying cause of such collapse would still be a settling of the supporting soil and with it, a portion of the building\u2019s foundation and floors.\nId. at 774. That case, like the one before us, involved settlement due to soil saturation.\nEven if UNO\u2019s contention that a collapse occurs, regardless of the underlying cause, where there is significant physical deformation and material impairment of the structural integrity of the insured property, the fact finder must nevertheless determine how a mile-long earthen dam collapses. One expert engineer said that \u201ccollapse\u201d is not normally used to describe a dam failure. Arguably, then, is there any difference between a thirty-seven foot breach in a dam, caused by differential settlement due to moisture saturated soils, and a separation of a wall from a ceiling due to settlement caused by soil saturation. See Krug which held that, as a matter of law there was no coverage under similar policy language. See also Eaglestein v. Pacific National Fire Insurance Co., 377 S.W.2d 540 (Mo.App.1964).\nMoreover, because this court in Morton followed Kansas\u2019 liberal approach (Jenkins ) in construing \u201ccollapse\u201d without the qualifying exclusionary language, it would not be unreasonable for an insurer to seek a more restrictive construction with the additional language in light of the later Kansas case {Krug).\nThis court in Morton, referring to the ambiguous term \u201ccollapse\u201d without the qualifying exclusionary language, said, \u201c[ajpplying well-established principles, the question of whether the condition of the building in the instant case is within the interpretations of the clause * * * is a question of fact for the trier of the facts.\u201d 77 N.M. at 39, 419 P.2d at 242. If interpretation of the term \u201ccollapse\u201d without the qualifying language is a question of fact, surely interpretation of the term with the qualifying language is also.\nOther courts have reached a similar result. In Bailey v. Hartford Fire Insurance Co., 565 F.2d 826 (2nd Cir.1977), summary judgment for the insurer was reversed because of the existence of fact questions and the unsettled state of the law. The court said:\n[t]o be sure, no hard and fast rule has emerged in New York nor in other jurisdictions. See 72 ALR 2d 1287. In sum, the expression \u2018collapse of building or any part thereof\u2019 in terms of insurance coverage, is a coat of varied colors. The question of what constitutes a collapse is largely one of degree.\nId. at 830. See also Gullett v. St. Paul Fire & Marine Insurance Co., 446 F.2d 1100 (7th Cir.1971).\nUNC does not dispute the existence of a fact question, but contends that the trial court was compelled to find in its favor. UNC calls our attention to testimony by Dr. Sangrey, an engineer hired by Allen-dale, who said that to defend an overly restrictive definition or use of \u201ccollapse\u201d would \u201cprove fruitless\u201d because of the \u201cvery wide use of the word by engineers.\u201d Dr. Sangrey readily admitted, however, that he did not know how the term \u201crelates to the insurance community\u201d; that is, how it would be construed legally as applied to a given set of facts. Neither did Allendale, but faced with a demand in excess of $30 million, it was entitled to find out, particularly given the wide range of interpretations by courts as to the meaning of \u201ccollapse.\u201d See 71 A.L.R.3d 1072-1104.\nThe record reflects some question on the part of UNC and its representatives as to the merits of its claim during the investigatory stage. Also, the fact that UNC sued both Allendale, which provided collapse peril coverage, and Appalachian, which did not, provides some evidence that UNC was not absolutely certain of its position. Had there been no genuine issue as to liability, undoubtedly summary judgment would have been sought and perhaps granted. This did not occur.\nBecause the question of whether the failure at Churchrock constituted a collapse presented a fact question which Allendale was entitled to debate, I would hold that as a matter of law, no punitive damages could be awarded. Quite aside from the fact that Allendale achieved, by going to trial, some measure of success in reducing UNO\u2019s demand by over $5 million, it should be noted that according to the evidence, it would have been possible for the trial court to have decided in the insurer\u2019s favor any one of several substantial compensatory damage items, which would have reduced the damages even more.\nAllendale urges this court to follow the lead of Indiana, Wisconsin and other jurisdictions by adopting a \u201cclear and convincing evidence\u201d standard for punitive damages claims. See, e.g., Travelers Indemnity Co. v. Armstrong, 358 Ind. 65, 442 N.E.2d 349 (1982); Wangen v. Ford Motor Co., 97 Wis.2d 260, 294 N.W.2d 437 (1980). Because the facts in this case would not justify an award of punitive damages under the lesser \u201cpreponderance of the evidence\u201d standard, it is unnecessary to reach the question of whether it would justify such an award under a clear and convincing evidence standard.\nI would reverse the award of punitive damages and remand with instructions to delete that element from the judgment.\nIII. Attorney\u2019s Fees.\nAllendale first argues that the award of $3,210,759 on attorney\u2019s fees cannot be sustained because it had a reasonable basis for denying coverage. That the actions or in-actions of Allendale did not rise to the level which would justify an award of punitive damages does not answer the question whether an award of attorney\u2019s fees can be upheld. Different standards of conduct are involved.\nAs previously discussed, in order to recover punitive damages, there must be a showing of malice or of reckless or wanton disregard of the insured\u2019s rights. To allow an award of attorney\u2019s fees, however, the insured need only prevail and show that the insurer \u201cacted unreasonably in failing to pay the claim.\u201d NMSA 1978, \u00a7 39-2-1.\nThe appellate courts of this state have not had occasion to discuss this statute, although an award of attorney\u2019s fees was upheld in Stock v. ADCO General Corp., 96 N.M. 544, 632 P.2d 1182 (Ct.App.), cert. denied, 96 N.M. 543, 632 P.2d 1181 (1981), as supported by the evidence. The court of appeals did not, however, set out express guidelines for making such an award.\nUnder some statutes, the insured, upon recovering on the policy, is automatically entitled to a reasonable attorney\u2019s fee, such statutes being compensatory in nature. Halliday v. Farmers Insurance Exchange, 89 Idaho 293, 404 P.2d 634 (1965). Cf. NMSA 1978, \u00a7 38-1-10. In contrast, other statutes hold it necessary to establish fault on the part of the insurer in order to recover attorney\u2019s fees, these statutes being punitive in nature. Meshell v. Insurance Co. of North America, 416 So.2d 1383 (La.App.1982). Because New Mexico\u2019s statute does not automatically award attorney\u2019s fees upon recovery by the insured, but requires a showing of unreasonableness in failing to pay the claim, it falls within the punitive class statutes. As such, it must be strictly construed and applied with caution so as not to intimidate the insurer from raising a defense- in good faith. McGowen v. St. Paul Guardian Insurance Co., 422 So.2d 637 (La.App.1982).\nIn order for the insured to recover attorney\u2019s fees, he must prove that the insurer acted unreasonably in failing to pay the claim. Wood v. Detroit Auto-Inter-Insurance Exchange, 413 Mich. 573, 321 N.W.2d 653 (1982). The trial court in the present case found Allendale\u2019s refusal to pay \u201cwithout reasonable cause.\u201d The question then is whether the evidence will support that finding.\nEven if it can be said that Allendale\u2019s reliance on the \u201csubsidence or any other earth movement\u201d exclusion was unreasonable in light of court decisions construing similar claims as relating to natural phenomenon, nevertheless, the insurer could reasonably have asserted, as a defense, the fact question as to whether the Churchrock failure constituted a collapse. See Strickland v. Prudential Insurance Co. of America, 278 S.C. 82, 292 S.E.2d 301 (1982). An insurer is not liable for the statutory penalty when there is some reasonable ground, whether based on law or fact, for refusing to make payment. McGowen v. St. Paul Guardian Insurance Co. The same applies to attorney\u2019s fees. Allendale had a right to seek a determination as to whether the coverage provision applied. It was not unreasonable for it to do so.\nBecause an award of attorney\u2019s fees cannot be upheld in this case, it is unnecessary to discuss the reasonableness of the award or the \u201cLodestar\u201d approach.\nV. Prejudgment Interest.\nWhile I agree that the award of prejudment interest should be upheld, I disagree with the approach taken and believe it, along with Grynberg v. Roberts, 698 P.2d 430 (1985), will lead to confusion in later cases. We are not concerned with NMSA 1978, Section 56-8-4 (Cum.Supp.1984) which was enacted after the filing of this action.\nIn O\u2019Meara v. Commercial Insurance Co., 71 N.M. 145, 152, 376 P.2d 486, 490-91 (1962), this court said:\n[T]he allowance of interest as an element of the total damage, under the circumstances here present, is a matter of discretion in the trier of the facts, and not a matter of right under the statute. See, 1 Restatement of the Law, Contracts, \u00a7 337, wherein the rule is stated as follows:\n\u201cIf the parties have not by contract determined otherwise, simple interest at the statutory legal rate is recoverable as damages for breach of contract as follows:\n\u201c(a) Where the defendant commits a breach of a contract to pay a definite sum of money, or to render a performance the value of which in money is stated in the contract or is ascertainable by mathematical calculation from a standard fixed in the contract or from established market prices of the subject matter, interest is allowed on the amount of the debt or money value from the time performance was due, after making all the deductions to which the defendant may be entitled.\n\u201c(b) Where the contract that is broken is of a kind not specified in Clause (a), interest may be allowed in the discretion of the court, if justice requires it, on the amount that would have been just compensation if it had been paid when performance was due.\u201d\nIn my view, subsection (a) of the Restatement does not apply because the contract of insurance did not provide for payment of a \u201cdefinite sum of money,\u201d or for performance, the value of which \u201cis ascertainable by mathematical calculation from a standard fixed in the contract or from established market prices.\u201d From a discussion of the issue of compensatory damages, it is clear that the determination of damages was not calculable in the manner required for application of subsection (a). Cf. Sundt v. Tobin Quarries, Inc., 50 N.M. 254, 175 P.2d 684, 169 A.L.R. 586 (1946) (holding under the facts of the case that quantity calculable and prices were ascertainable).\nThe present case, as with O\u2019Meara, falls within subsection (b) of the Restatement, \u00a7 337. See also Kennedy v. Moutray, 91 N.M. 205, 572 P.2d 933 (1977). The award was discretionary, if justice requires it, and resort to calculations is not needed. See also Moorhead v. Stearns-Roger Manufacturing Co., 320 F.2d 26 (10th Cir.1963). Both O\u2019Meara and Moorhead involved, as does the case before us, property damage claims under insurance policies. In O\u2019Meara and Moorhead, prejudgment interest was not awarded. In both cases, the refusal to award was upheld. In the case before us, the same principle should apply in upholding, as a discretionary act, the award of prejudgment interest. No claim has been made of abuse of discretion.\nAllendale assumes that the trial court awarded prejudgment interest based on Restatement \u00a7 337(a). Conclusion of law number 12 simply says UNC is entitled to prejudgment interest from the date of the denial of the claim, March 21, 1980. No reference is made to mathematical calculations. Thus, the award of interest may be sustained under subsection (b). Because the trial court\u2019s exercise of discretion has not been challenged, we need not search the record to justify it.", "type": "concurrence", "author": "BIVINS, Judge," }, { "text": "WALTERS, Justice,\ndissenting. SOSA, Senior Justice, concurring in dissent.\nWe concur with the opinion of Justice Riordan in its discussion of Policy Coverage and Compensatory Damages. We agree with Judge Bivins\u2019s discussion regarding the award of prejudgment interest. We disagree on the denial of punitive damages and attorneys fees and, therefore, respectfully dissent from the opinion of the majority on those questions.\n1. Punitive Damages.\nWe have no quarrel with what has been said regarding the standard of proof to be applied in assessing a claim for punitive damages. Consequently, in determining whether substantial evidence supports the trial court\u2019s findings, that Allendale's conduct was \u201cwilful, wanton, malicious and in reckless disregard of the rights of the insured,\u201d we are required to view the evidence in the light most favorable to the prevailing party, F & T Co. v. Woods, 92 N.M. 697, 594 P.2d 745 (1979), and to indulge all reasonable inferences in support of the trial court\u2019s decision. Texas National Theaters, Inc. v. City of Albuquerque, 97 N.M. 282, 639 P.2d 569 (1982).\nContrary to the well-established rules that it is not the function of an appellate court to weigh the evidence or its credibility, nor to substitute its judgment for the trial court\u2019s when the findings are supported by substantial evidence, Getz v. Equitable Life Assurance Society of the United States, 90 N.M. 195, 561 P.2d 468, cert. denied, 434 U.S. 834, 98 S.Ct. 121, 54 L.Ed.2d 95 (1977), that is what the majority has done in this case.\nJudge Bivins contends that, according to the trial court\u2019s findings, all of the evidence regarding Allendale\u2019s \u201cwrongful conduct,\u201d relied on by the trial court was documentary and thus subject to reweighing by the reviewing court. We do not believe the findings on the insurer\u2019s conduct can be so narrowly circumscribed, nor do we agree that the reviewing court is so unlimited in assessing documentary evidence. What is not pointed out, moreover, is that some of those \u201cdocuments\u201d were depositions, and the testimony of witnesses is not within any exception to the rule that the court may not reweigh the evidence. Additionally, the case cited in support of the right to re-examine and re-weigh the evidence did not unequivocally so state. Kosmicki v. Aspen Drilling Co., 76 N.M. 234, 414 P.2d 214 (1966), was quoted in First National Bank in explication of an alleged exception relied on in First National Bank. Kosmicki made it clear that this court \u201chas never countenanced a review of documentary evidence to the exclusion of the findings * * * To the contrary, we may only review the documentary evidence to determine whether it supports the findings, and we will not disturb the findings \u2018unless such findings are manifestly wrong or clearly opposed to the evidence.\u2019 [Citation omitted.]\u201d 91 N.M. 11, 569 P.2d at 424. That means simply that if there is substantial evidence in the documents to support the findings, other contrary evidence in the documents cannot be used to overturn the findings.\nAmplifying on the evidence discussed by Justice Riordan and Judge Bivins in their separate opinions, the documents and testimony from Allendale\u2019s witnesses established that UNO\u2019s and Beker\u2019s claims were not the only instances of concern to Allen-dale. Testimony of Allendale witnesses, as well as inter-company memoranda, disclose that at the time of the Churchrock dam failure, Allendale had been re-evaluating its liability exposure under the \u201ccollapse\u201d peril in all of its outstanding policies, because the company had experienced \u201cdramatic increases\u201d (plural) in \u201ccatastrophic losses\u201d (plural) far in excess of its estimated annual collapse losses. By its own admissions, those unanticipated claims were the result of Allendale\u2019s reluctance to define what it recognized to be an ambigious collapse provision for fear that a definition protective of its liability would adversely affect marketing efforts. It decided, instead, to leave the ambiguity undefined and to deal with each collapse claim on an individual basis, resolute in its goal to reduce its losses under the collapse peril by $10,-000,000 per year.\nAllendale's internal records provided compelling evidence of its awareness that the collapse peril coverage invited confusion to its insureds with respect to the scope of their collapse coverages. Among Allendale\u2019s documents was the legal opinion obtained by one of its affiliates, mentioned by Judge Bivins, that their policies\u2019 collapse terms would be broadly construed against the insurer. Although that legal opinion was specifically directed to the gypsum dike failure of one of their insureds, the analysis was sufficient to alert Allen-dale and its affiliates that construction of the words \u201cearth movement,\u201d because it was ambiguous, would probably be restricted to natural occurrences. Interoffice memos recognized and cited cases discussing and holding \u201ccollapse\u201d to be an ambiguous term. Still Allendale declined to write a definitive \u201ccollapse\u201d coverage provision, preferring \u201cto handle each sticky situation as it developed.\u201d\n[I]f the insurer continues to issue, without change, policies, clauses of which have been judicially construed, it will be considered as issuing them with that construction placed on them* * *.\nPatterson v. United States, 233 F.Supp. 447, 449 (E.D.Tenn.1964) (quoting 44 C.J.S. Insurance \u00a7 293.)\nAllendale thus was charged with knowing the judicial construction of its unchanged provision. UNC was entitled to believe that it had purchased insurance coverage, not a lawsuit, when it entered into the insurance contract. See Gulf Atlantic Life Insurance Co. v. Barnes, 405 So.2d 916 (Ala.1981).\nAlso among Allendale\u2019s records was evidence that Allendale altered its original September, 1978, investigative report of the UNC dam failure to soften its language where inferences of collapse appeared. As examples, \u201crupture\u201d was changed to \u201cwashout\u201d; a reference to where the dam had \u201cfailed\u201d was changed to \u201ceroded away,\u201d and the words \u201cruptured,\u201d \u201cremoved a slice\u201d and \u201cbreached\u201d were changed to \u201cwashed out\u201d and \u201ceroded.\u201d The changes fairly could have been regarded by the trial court as an attempt by Allendale to bolster its decision to deny coverage nine days after the accident and two months before the investigation was completed. There was evidence that Allen-dale also claimed a \u201cflood damage\u201d exception in coverage, and maintained its liability for businees interruption losses to be substantially lower than provided for, even after it had determined its position on that issue was wrong. Considering these examples and all of the evidence of Allendale\u2019s \u201cstonewalling\u201d of its insured\u2019s claim, the trial court did not act unreasonably in finding that the refusal to pay UNO\u2019s claim was an act of bad faith.\nPunitive damages are meant to punish a wrongdoer and to discourage like behavior in others. NMSA 1978, UJI Civ. 18.27 (Repl.Pamp.1980). To be an effective punishment, the award must be high enough, in relation to the defendant\u2019s assets, to hurt. Marriott v. Williams, 152 Cal. 705, 93 P. 875 (1908). Nonetheless, as with any system of punishment, there must be some correlation between the weight of the penalty and the nature and extent of the wrongdoing. Faubion v. Tucker, 58 N.M. 303, 270 P.2d 713 (1954).\nUNC contends that the court\u2019s punitive award bears a reasonable relationship to the almost $25 million compensatory damages award. It cites Sierra Blanca Sales Co. v. Newco Industries, Inc., 84 N.M. 524, 541-43, 505 P.2d 867, 884-86 (Ct.App.) cert. denied, 84 N.M. 512, 505 P.2d 855 (1972), in support of its argument that a ratio of punitive to compensatory damages of approximately one-to-one does not necessarily indicate passion or prejudice, at the same time resisting Allendale\u2019s argument on comparative awards in other cases as an inappropriate measure of the correctness of the amount awarded. Of course, it is no more acceptable to compare cases approving one-to-one ratios between compensatory and punitive damages to sustain the award, than it is to compare amounts to punitive awards granted in prior decisions. The appellate court is required, however, to consider the enormity of the wrongful acts committed when reviewing a claim of excessive punitive damages.\nIn support of the trial court\u2019s punitive award of $25 million, UNC points to its projection that Allendale had earned interest of nearly $19 million on the amount of the claimed but unpaid loss by the time of trial. If we consider, however, that the trial court\u2019s award of pre-judgment interest should be taken into account as a claim against some of the interest earned by Allendale from date of loss to date of trial, it would be wrong to look at the entire $19 million earned as minimizing the \u201churt\u201d for the amount of punitive damages assessed.\nIn the absence of evidence on the question, we have no assurance that interest of the amount suggested by UNC actually has been earned by Allendale, but we are not so isolated from reality that we cannot assume that, in the 6-plus years since the accident, the insurance company has established a loss reserve fund to cover this claim and has accumulated interest on the fund. If its 6-year average return equalled 12% \u2014 an unquestionably conservative average during the 1979-1984 period \u2014 its earnings on the loss reserve earmarked for the UNC claim would have approached $16.5 million. Prejudgment interest allowed of approximately $4 million would reduce Allendale\u2019s earned interest available to apply on the punitive judgment to $12.5 million. There was evidence that Allendale\u2019s total assets at the time were $859 million, and net assets plus cash on hand were approximately $936 million. A wrongdoer\u2019s assets are relevant in determining the amount of punitive damages. Ruiz v. Southern Pacific Transportation Co., 97 N.M. 194, 638 P.2d 406 (Ct.App.), cert. quashed, 97 N.M. 242, 638 P.2d 1087 (1981). The $25 million punitive award exceeds Allendale\u2019s likely minimum interest earnings, offset by its prejudgment interest liability, by $12.5 million; that amount constitutes less than 7.5% of the company\u2019s total assets. We are unwilling to say that, even after offsetting the amount of earned interest that may be accounted for by the prejudgment interest award, a penalty equalling little more than 7% of the company\u2019s tangible wealth is excessive punishment.\nWhen we consider the purposes for which punitive damages are imposed, and when there is no evidence of passion or prejudice in the trial court\u2019s determination, we are obliged to affirm the award.\n2. Attorneys\u2019 Fees.\nThe trial court awarded attorneys\u2019 fees and costs by authority of NMSA 1978, Section 39-2-1, which allows judgment of attorneys\u2019 fees if the court finds that an insurer has acted unreasonably in failing to pay plaintiff\u2019s claim. From our discussion of punitive damages, we do not doubt that the trial court properly exercised its discretion in granting fees in this case. Our absence of doubt is enhanced, and our certainty regarding Allendale\u2019s unreasonableness is bolstered, by the majority's observation that UNC\u2019s damages were ascertainable.\nIn arriving at the attorney fee award of $3,210,759, the court first determined the number of hours of legal work expended, and multiplied that figure by the attorneys\u2019 hourly billing rates, yielding a base or \"lodestar\u201d figure of $1,070,253 for 13,738 hours. This amount was then increased by a multiplier of 3 which represented, in the trial court\u2019s view, a proper enhancement for the exceptional success of plaintiffs\u2019 attorneys in prosecution of the suit, and for the advancement of public policy in litigated insurance claims, as shown by the attainment of punitive damages. Allendale objects to the accuracy of the time and rate factors; it contends further that application of the enhancement factor of 3 was a gross abuse of discretion.\nAllendale tells us that the trial court included in its calculations the attorneys\u2019 hours spent prior to commencement of litigation, and time used to devise the punitive damages argument. We are not told, however, why those hours should have been excluded, other than that Allendale reads Section 39-2-1 as limiting all fees to actual litigation time. It suggests that the punitive damage claim was separate from UNC\u2019s \u201cclaim on any type of first party coverage\u201d and for some reason, therefore, hours spent on the punitive claim should have been reduced.\nIf all legal work undertaken before the filing of the complaint were excluded from charges, attorneys would be encouraged to file suit before first determining the validity, merits and strengths of their clients\u2019 position. The claim for punitive damages, where one is indicated, is no less a part of the lawsuit nor to be treated any differently when determining attorneys\u2019 fees. Indeed, the statute is specifically addressed to the case where an insured prevails on an insurance claim and the court finds that the insurer unreasonably failed to pay. It consequently contemplates proof of a sort that well may support a punitive damage claim. We are not persuaded that those hours complained of should be eliminated.\nSecondly, Allendale alleges error in the trial court\u2019s allowance of a Washington, D.C. billing rate for UNC\u2019s out-of-state counsel. The company insists that the rate must be adjusted to New Mexico billing standards. The case authority relied on for this proposition, however, specifically leaves such a downward adjustment to the judge\u2019s discretion. The trial court acknowledged the special expertise of the Covington firm and considered the factor of local prevailing fees to be intended only as a guide and just one of many factors to be applied.\nIn our view, the trial court carefully exercised its discretion in establishing the base hourly rates at $74 per hour for the Stephenson firm and $82 per hour for the Covington firm and, in light of the evidence produced on the question, the court may even have erred on the side of conservatism.\nFinally, Allendale argues that the court\u2019s use of a multiplier to the base figure (termed throughout the briefs as the \u201clodestar\u201d figure), has a respectable following in the federal courts. See, e.g., City of Detroit v. Grinnell Corp., 560 F.2d 1093 (2d Cir.1977); McDonald v. Johnson & Johnson, 546 F.Supp. 324, 335-36 (D.Minn.1982), rev\u2019d in part on other grounds, 722 F.2d 1370 (8th Cir.1983); Bagel Inn, Inc. v. All Star Dairies, 539 F.Supp. 107 (D.N.J.1982); Municipal Authority of Bloomsburg v. Pennsylvania, 527 F.Supp. 982 (M.D.Pa.1981); Helfand v. Cenco, Inc., 519 F.Supp. 322 (N.D.Ill.1981). The influences for applying a multiplier are the quality of the work performed, the result obtained, the public policy served, and the risk of non-recovery of fees and costs. The trial court deferred to those influences in deciding to enhance the hourly rate basic figure.\nAccording to Allendale, those courts which have applied a multiplier have all done so in contingency fee cases. We think that is a distinction without a difference. Why a contingent fee lawyer is entitled to enhancement of his fees and a straight fee lawyer is not escapes us when we consider the multiplier factors mentioned in the preceding paragraph.\nThe enhanced hourly fee in this case actually brings the hourly rate for experienced, competent and successful counsel more into line with prevailing rates locally, as well as throughout the country, and it is still much less than the evidence produced before the trial court from experts would have supported.\nWe would not disturb the trial court's award for attorney\u2019s fees.\nIn our judgment, the trial court should be sustained on all points.\nSOSA, Senior Justice, concurs.", "type": "dissent", "author": "WALTERS, Justice," } ], "attorneys": [ "Seth D. Montgomery, Montgomery & Andrews, P.A., Santa Fe, and Robins, Zelle, Larson & Kaplan, Harding A. Orren, Minneapolis, Minn., for defendant-appellant Allendale Mut. Ins. Co.", "G. Stanley Crout, Stephenson, Carpenter, Crout & Olmsted, Santa Fe, Peter J. Nickles, Covington & Burling, Washington, D.C., and Russell Moore, Robert H. Clark, Keleher & McLeod, Albuquerque, for plaintiff-appellee United Nuclear Corp.", "John J. Kircher, Milwaukee, Wis., and White, Koch, Kelly & McCarthy, P.A., Santa Fe, for amicus curiae Federation of Ins. Counsel.", "Mitchell, Alley & Rubin, \u2022 Santa Fe, and LeBoeuf, Lamb, Leiby & MacRae, Washington, D.C., for amicus curiae Com\u2019r of Ins. of State of Iowa, Director of Business Regulation, and Ins. Com\u2019r of State of Rhode Island, et al." ], "corrections": "", "head_matter": "709 P.2d 649\nUNITED NUCLEAR CORPORATION, a Delaware Corporation, Plaintiff-Appellee, v. ALLENDALE MUTUAL INSURANCE COMPANY, a Rhode Island Corporation, Defendant-Appellant.\nNos. 15094, 15104.\nSupreme Court of New Mexico.\nOct. 15, 1985.\nRehearing Denied Dec. 5, 1985.\nSeth D. Montgomery, Montgomery & Andrews, P.A., Santa Fe, and Robins, Zelle, Larson & Kaplan, Harding A. Orren, Minneapolis, Minn., for defendant-appellant Allendale Mut. Ins. Co.\nG. Stanley Crout, Stephenson, Carpenter, Crout & Olmsted, Santa Fe, Peter J. Nickles, Covington & Burling, Washington, D.C., and Russell Moore, Robert H. Clark, Keleher & McLeod, Albuquerque, for plaintiff-appellee United Nuclear Corp.\nJohn J. Kircher, Milwaukee, Wis., and White, Koch, Kelly & McCarthy, P.A., Santa Fe, for amicus curiae Federation of Ins. Counsel.\nMitchell, Alley & Rubin, \u2022 Santa Fe, and LeBoeuf, Lamb, Leiby & MacRae, Washington, D.C., for amicus curiae Com\u2019r of Ins. of State of Iowa, Director of Business Regulation, and Ins. Com\u2019r of State of Rhode Island, et al." }, "file_name": "0480-01", "first_page_order": 518, "last_page_order": 539 }