Submitted: March 16, 2016
from United States District Court for the Eastern District of
Arkansas - Jonesboro
WOLLMAN, BENTON, and SHEPHERD, Circuit Judges.
SHEPHERD, Circuit Judge.
Cooper appeals the district court's grant of General
American Life Insurance Company's ("General
American") motion for summary judgment and denial of
Cooper's request to alter and amend or correct the
judgment. We affirm.
purchased an annuity from General American on August 2, 2012,
by transferring $144, 818.27 to General American from his
account with the Arkansas Teacher Retirement System
("ARTRS"). ARTRS sent General American the
corresponding treasury warrant in that amount. Cooper began
receiving statements from General American indicating that
his annuity was funded and accruing interest. On May 6, 2013,
ARTRS notified General American that the warrant had never
cleared, so General American reversed the transaction.
Cooper's June 2013 statement from General American showed
that the transaction had been reversed. Cooper called General
American to find out why this had occurred, and General
American offered to restore his annuity policy with interest
under the condition that a hold would be placed on the
account until a replacement warrant was received and cleared.
On June, 17, 2013, ARTRS faxed General American the form
necessary to obtain a replacement warrant. General American
returned the completed form on July 12, 2013. On July 24,
2013, General American received the replacement warrant and
finalized the restoration of Cooper's account with
interest, accruing from August 2, 2012.
meantime, Cooper hired an attorney who filed this action on
July 23, 2013, seeking interest, a 12% penalty under Ark.
Code Ann. § 23-79-208, and attorney's fees under
Ark. Code Ann. §§ 23-79-208 or 23-79-209. In
Cooper's Reply in Opposition to Defendant's Response
to Plaintiff's Motion for Summary Judgment ("Reply
in Opposition"), Cooper for the first time suggested
that if §§ 23-79-208 and 209 were not applicable,
he should be awarded attorney's fees under Ark. Code Ann.
§ 16-22-308, which provides for discretionary fees in
breach of contract actions. The district court determined
that §§ 23-79-208 and 209 did not apply in this
case, that Cooper's argument for discretionary breach of
contract attorney's fees under § 16-22-308 was not
timely made, and that Cooper had not asserted a breach of
contract claim. The district court entered judgment
dismissing Cooper's complaint. Cooper filed a motion
requesting that the district court alter and amend or correct
its judgment pursuant to Federal Rules of Civil Procedure
59(e) and 60, but the court denied his motion.
review a grant of summary judgment de novo." Woods
v. DaimlerChrysler Corp., 409 F.3d 984, 990 (8th Cir.
2005). We review the district court's denial of a motion
to alter and amend or correct judgment for an abuse of
discretion. Briscoe v. Cnty. of St. Louis, Mo., 690
F.3d 1004, 1015 (8th Cir. 2012) (stating the standard of
review for a motion to alter or amend judgment pursuant to
Fed.R.Civ.P. 59(e)); Murphy v. Mo. Dept. of Corrs.,
506 F.3d 1111, 1117 (8th Cir. 2007) (stating the standard of
review for denial of relief under Fed.R.Civ.P. 60(b)).
23-79-208 is "highly penal in nature and is to be
strictly construed." McKee v. Federal Kemper Life
Assur. Co., 927 F.2d 326, 328 (8th Cir. 1991) (quoting
Callum v. Farmers Union Mut. Ins. Co., 508 S.W.2d
316, 319 (Ark. 1974)). It states:
(a)(1) In all cases in which loss occurs and the . . .
insurance company . . . liable therefor shall fail to pay the
losses within the time specified in the policy after demand
is made, the person, firm, corporation, or association shall
be liable to pay the holder of the policy . . . in addition
to the amount of the loss, twelve percent (12%) damages upon
the amount of the loss, together with all reasonable
attorney's fees for the prosecution and collection of the
§ 23-79-208 provides "in the event an insurer
wrongly refuses to pay benefits under an insurance policy,
the insured may recover the overdue benefits, twelve percent
(12%) damages upon the amount of the loss, and reasonable
attorneys' fees." Running M Farms, Inc. v. Farm
Bureau Mut. Ins. Co. of Ark., Inc., 265 S.W.3d 740, 743
(Ark. 2007) (quoting Phelps v. U.S. Credit Life Ins.
Co., 10 S.W.3d 854, 856 (Ark. 2000)). "The penalty
and attorneys' fees [are] for the benefit of the one who
is only seeking to recover, after demand, what is due him
under the terms of his contract, and who is compelled to
resort to the courts to obtain it." State Farm Fire
& Cas. Co. v. Andrews, 210 S.W.3d 896, 903 (Ark. 2005)
(internal quotation omitted). Section 23-79-208(a)(1)
confirms this by stating that fees are only available where
the insurer "fail[s] to pay the losses within the time
specified in the policy." And § 23-79-209 provides:
(a) In all suits in which the judgment or decree of a court
is against a life, property, accident and health, or
liability insurance company, either in a suit by it to cancel
or lapse a policy . . . or in a suit for a declaratory
judgment under the policy, or in a suit by the holder of the
policy to require the company to reinstate the policy, the
company shall also be liable to pay the holder of the policy
all reasonable attorney's fees for the defense or
prosecution of the suit, as the case may be.
one situation where the statute applies is where a party is
seeking declaratory judgment to "determine the
obligations of the insurer under a policy of insurance."
S. Farm Bureau Cas. Ins. Co. v. Watkins, 386 S.W.3d
6, 10 (Ark. Ct. App. 2011). In summary, the cases applying
§§ 23-79-208 and 209 involve insurers'
contractual promises to pay benefits under policies of
insurance when ...