United States Court of Appeals
                         For the Eighth Circuit
                     ___________________________

                             No. 15-3755
                     ___________________________

                             Simmons Foods, Inc.

                     lllllllllllllllllllll Plaintiff - Appellee

                                        v.

  Industrial Risk Insurers, an Unincorporated for Profit Association; Swiss
Reinsurance America Corporation; Westport Insurance Corporation; Ironshore
                        Specialty Insurance Company

                  lllllllllllllllllllll Defendants - Appellants
                      ___________________________

                             No. 15-3845
                     ___________________________

                             Simmons Foods, Inc.

                    lllllllllllllllllllll Plaintiff - Appellant

                                        v.

  Industrial Risk Insurers, an Unincorporated for Profit Association; Swiss
Reinsurance America Corporation; Westport Insurance Corporation; Ironshore
                        Specialty Insurance Company

                   lllllllllllllllllllll Defendants - Appellees
                                    ____________

                 Appeals from United States District Court
             for the Western District of Arkansas - Fayetteville
                                    ____________

                             Submitted: January 11, 2017
                                Filed: July 11, 2017
                                  ____________

Before RILEY,1 Chief Judge, LOKEN and BENTON, Circuit Judges.
                              ____________

RILEY, Chief Judge.

       In 2011, Simmons Foods, Inc., made a claim under two property insurance
policies it had with Industrial Risk Insurers and Ironshore Specialty Insurance
Company (collectively, the insurers).2 The insurers denied a portion of the claim that
related to one of Simmons’s damaged properties in Oklahoma, which eventually
resulted in Simmons filing suit in Arkansas where Simmons is headquartered. The
insurers moved to dismiss the action based on policy provisions requiring any action
be brought within one year of the date of loss, a window that had closed some time
earlier. The district court applied Arkansas law—which voids such contractual
provisions, unlike Oklahoma law—and denied the motion. The case went to trial, and
after the jury verdict Simmons recovered $2,817,380.11 of the $3,584,041.90 it
sought. The district court then ordered the insurers to pay prejudgment interest. The
district court rejected Simmons’s attempt to recover an additional 12% in damages

      1
       The Honorable William Jay Riley stepped down as Chief Judge of the United
States Court of Appeals for the Eighth Circuit at the close of business on March 10,
2017. He has been succeeded by the Honorable Lavenski R. Smith.
      2
       The member companies of Industrial Risk Insurers, Westport Insurance
Corporation and Swiss Reinsurance America Corporation, were also named
defendants and are therefore included as “insurers.” Also, the parties refer to a single
claim, notwithstanding the fact there are two policies, apparently because a single
event—a snowstorm—was involved. Because it does not affect our analysis, we will
do the same.

                                          -2-
and also attorney fees, finding Simmons failed to clear the statutory threshold. See
Ark. Code Ann. § 23-79-208. Neither side is satisfied with how things were resolved.
The insurers appeal the denial of their motion to dismiss and the award of
prejudgment interest. Simmons cross-appeals the decision not to award statutory
damages or attorney fees. We affirm the denial of the insurers’ motion to dismiss,
reverse and vacate the award of prejudgment interest, and affirm the rejection of
Simmons’s claims for statutory damages and attorney fees.

I.     BACKGROUND
       Simmons is a large, family-owned poultry and pet-food company that is
incorporated in Arkansas and headquartered in Benton County, Arkansas. The
insurers issued two materially identical property insurance policies to Simmons, with
a coverage term from September 1, 2010, to September 1, 2011, and a joint liability
limit of $100 million. According to Simmons’s Assistant Risk Manager, the policies
were “negotiated, entered, issued, and delivered to Simmons at its corporate office in
Benton County, Arkansas,” and the policy premiums were paid from Arkansas. The
policies covered 51 properties Simmons owned, specifically: 21 in Arkansas, 13 in
Oklahoma, and 17 scattered throughout Kansas, Missouri, New Jersey, and Canada.

        In February 2011, a snowstorm swept through Oklahoma and Missouri and
damaged several of Simmons’s covered buildings and farms. Simmons made a claim
for all of its damaged properties under the policies, which provided that the insurers’
liability “shall not exceed the smaller of the following: 1. the cost to repair, rebuild
or replace on the same site with new materials of like kind and quality, whichever is
the smallest; 2. the actual expenditure incurred in repairing, rebuilding or replacing
on the same or another site, whichever is the smallest.” The parties resolved most of
the claim without issue. The exception was a dispute about Simmons’s can-making
facility in Fort Gibson, Oklahoma, a 300-foot by 400-foot metal structure that
sustained considerable damage to its roof and supporting columns. The parties
disagreed on how the policies covered the situation—Simmons contended it was

                                          -3-
entitled to recover the cost to rebuild the structure, while the insurers asserted they
were only obligated to pay for the cost to repair specified damages. Simmons elected
to rebuild the facility despite this impasse, and eventually submitted invoices to the
insurers totaling $7,367,859.12. The insurers maintained their position and remitted
their final payment in July 2013, having paid only the $3,879,097.99 they initially
offered Simmons.3 Simmons sent a letter stating its disagreement and demanding
$3,584,041.90. The insurers rejected this last-ditch effort to avoid litigation.

        Simmons filed suit in the Western District of Arkansas on September 20, 2013,
seeking $3,584,041.90 for the insurers’ alleged breach of contract.4 See 28 U.S.C.
§ 1332(a)(1) (diversity jurisdiction). The insurers moved to dismiss the action, see
Fed. R. Civ. P. 12(b)(6), based on a time-limitation provision in the policies that
provided: “No suit or action on this policy for the recovery of any claim shall be
sustainable in any court of law or equity . . . unless commenced within twelve months
next after inception of the loss.” (Emphasis added). If enforced, the limitation
provision could bar Simmons’s suit given that the lawsuit was filed over 31 months
after the snowstorm (i.e., 19 months too late). Simmons countered that Arkansas law
applied, making the provision unenforceable and the action timely. The district court
agreed with Simmons and denied the motion because it considered “the timeliness of
the suit [to be] a procedural matter” and therefore “governed by the law of the
forum.” The insurers disagreed with this classification and asked the district court
to certify to our court whether the timeliness issue is procedural or substantive. See
28 U.S.C. § 1292(b) (interlocutory appeal). The district court declined to do so,

      3
        Of this amount, $1,170,482.54 was for temporary repairs to the Fort Gibson
facility. The remaining $2,708,615.45 reflects what the insurers’ experts estimated
it would cost to repair the structure.
      4
        Note the math does not add up: the $7,367,859.12 Simmons claimed minus the
$3,879,097.99 the insurers paid does not equal the $3,584,041.90 Simmons sought.
That is, Simmons’s demand was about $95,000 too high. We discuss the significance
of this fateful miscalculation later. See infra, section II.C.

                                         -4-
reasoning that regardless of whether the issue was procedural (as the district court
initially found) or substantive (as the insurers urged) it would be governed by
Arkansas law. The case moved forward.

       At trial, the parties presented conflicting evidence on the two issues the jury
needed to decide. First, the parties continued their quarrel over whether the facility
could have been repaired. Second, if the rebuild were proper, the parties disputed
whether Simmons was entitled to the full $3,584,041.90 it sought. On this point the
insurers claimed Simmons’s figure included certain “betterments” that were not
covered by the policies—for example a new dock door, additional exhaust fans, and
higher-quality steel—while Simmons posited these expenses were either required by
local code or would save money in the long run. Following the jury’s findings,
Simmons was entitled to $2,817,380.11 in damages. The district court later awarded
Simmons prejudgment interest. See Ark. Code Ann. § 4-57-101(d) (prejudgment
interest); see also Woodline Motor Freight, Inc. v. Troutman Oil Co., Inc., 

, 568 (Ark. 1997). The district court rejected Simmons’s request for
additional relief under Ark. Code Ann. § 23-79-208 (statutory damages and attorney
fees), finding Simmons fell short of the statutory threshold “[b]y the slightest of
margins.” We must now determine whether the district court was correct to: (1) apply
Arkansas law and deny the insurers’ motion to dismiss; (2) award Simmons
prejudgment interest; and (3) reject Simmons’s request for statutory damages and
attorney fees. See 28 U.S.C. § 1291 (appellate jurisdiction).

II.    DISCUSSION
       A.     Motion to Dismiss
       The insurers first contend Simmons’s suit was untimely and therefore should
have been dismissed. Whether this contention has merit hinges largely on which
state’s law we must apply. Under Arkansas law, an insured has five years to sue an
insurer for breach of a property insurance policy and “[a]ny stipulation or provision
in the policy or contract requiring the action to be brought within any shorter time or

                                         -5-
be barred is void.” Ark. Code Ann. § 23-79-202; 

Thus, under
Arkansas law, Simmons’s suit was timely, and the insurers do not suggest otherwise.
The insurers argue Oklahoma law applies, and Oklahoma law allows courts to enforce
limitation provisions like the one here.5 See, e.g., Clipperton v. Allstate Ins. Co., 151
F. App’x 652, 655 (10th Cir. 2005). The district court applied Arkansas law and
denied the motion to dismiss, both of which are decisions we review de novo.
See, e.g., Carton v. Gen. Motors Acceptance Corp., 

, 454-55 (8th Cir.
2010). In deciding what law applies, federal courts exercising diversity jurisdiction
apply the forum state’s choice-of-law principles—here, that is Arkansas. See Am.
Fire & Cas. Co. v. Hegel, 

, 959 (8th Cir. 2017).

       With that in mind, the first step is to determine whether the timeliness issue is
procedural or substantive in nature. If it is procedural, then Arkansas law applies; if
it is substantive, then further analysis is needed. See Travis Lumber Co. v.
Deichman, 

, 255 (Ark. 2009). The insurers posit “[e]very court to
consider the enforceability of a suit limitation provision in an insurance contract has
treated it as a substantive, not procedural, issue.” However the insurers offer scant
support for this bold claim—they cite two out-of-circuit, district-level decisions.6

      5
       Simmons makes an alternative argument that its suit was timely even if
Oklahoma law applies, because the time period was equitably tolled or waived during
the continued negotiations and claim-adjustment period. We conclude Oklahoma law
does not apply and therefore express no view as to whether Simmons’s suit was
timely under Oklahoma law.
      6
       See Baillie Lumber Co., L.P. v. Ace Am. Ins. Co., No. 11-CV-995A, 

, at *8 (W.D.N.Y. Dec. 10, 2014); Simons v. N. Cent. Crop Ins., Inc., No. 98
c 1099, 

, at *2-3 (N.D. Ill. June 12, 1998). But see, e.g., Sun Ins.
Office, Ltd. v. Clay, 

, 738 (Fla. 1961) (determining a Florida statute
voiding limitation provisions always applies in Florida courts provided there is
personal jurisdiction); Galliher v. State Mut. Life Ins. Co., 

, 834 (Ala.
1907) (holding Georgia law governed the “‘validity, interpretation, and construction’”
of a Georgia contract, but forum law governed “all remedies on contracts” (quoting

                                          -6-
More importantly, the statement almost directly conflicts with a case from the only
court whose classification controls: the Arkansas Supreme Court.

       In Gulf Insurance v. Holland Const., an Oklahoma-based insured obtained a
property insurance policy from a Texas-based insurer. Gulf Ins. Co. v. Holland
Const. Co., 

, 1004 (Ark. 1951). The insured made a claim under
that policy when some of its property was damaged in Arkansas, and the insurer
denied coverage. See 

passed from the date of the incident before the
insured filed suit in Arkansas state court. See 

the insurer pointed to a
limitation provision within the policy stating: “‘No suit action on this policy, for the
recovery of any claim, shall be sustainable in any court . . . unless commenced within
twelve months next after the happening of the loss.’” 

Also like here, the
insurer argued Oklahoma law applied and allowed the clause to be enforced. See 

Supreme Court disagreed:

      [T]he period of limitation in which suit may be filed . . . is a matter of
      procedure and not of substantive law. . . . Where the statutes of the
      forum make void all agreements whereby the time for the bringing of
      actions is fixed at a period less than that prescribed by law, a contractual
      stipulation made in another jurisdiction is not available as a defense.

(emphasis added) (citation and internal quotation marks omitted). The
Arkansas Supreme Court declined to give effect to the limitation provision and
affirmed the jury verdict in favor of the insured. See 

Jones, 

, 250 (1850))). We also note both Baillie and Simons
seem to skip the procedural/substantive question altogether, and neither of these cases
is controlling here.

                                          -7-
       The insurers try to avoid a similar result here by contending in oral argument
Gulf Insurance is “distinguishable on many, many grounds.”7 We disagree. At oral
argument, the insurers first suggested Gulf Insurance “was going to be governed by
Arkansas law under any sort of choice-of-law analysis” because the damage occurred
in Arkansas. Whether some other choice-of-law principle would have called for
application of Arkansas law is irrelevant, because the Arkansas Supreme Court did
not rely on any such other principle—it relied solely on its determination that the
timeliness issue was procedural and governed by the forum’s law. See 

also unpersuaded by the insurers’ attempt to highlight slight differences between the
limitation provision in Gulf Insurance and the one here.8 The operative language
struck down by the Arkansas Supreme Court was a clause shortening the time an
insured could sue an insurer. That language similarly exists here.

       Last, the insurers orally argued “the law has come a long way since the Gulf
case as to how [courts] treat suit-limitation provisions.” Maybe so. However, “‘[a]s
a federal court, our role in diversity cases is to interpret state law, not to fashion it.’”
Wivell v. Wells Fargo Bank, N.A., 

, 896 (8th Cir. 2014) (quoting
Dannix Painting, LLC v. Sherwin-Williams Co., 

, 905 (8th Cir. 2013)).
When dealing with an issue of state law we are bound by rulings on that issue from


       7
       Despite suggesting “[e]very court” has found limitation provisions to be
substantive, the insurers neglected to cite Gulf Insurance even once in their briefs.
The insurers’ only attempt to distinguish Gulf Insurance came during oral argument.
       8
        The policy in Gulf Insurance contained a fail-safe clause of sorts in that it
required suits be commenced within a year of the loss, “‘provided that where such
limitation of time is prohibited by the laws of the State Wherein this policy is issued,
then in that event no suit or action under this policy, shall be sustainable unless
commenced within the shortest limitation permitted under the laws of such state.’”

(emphasis added). The Arkansas Supreme Court did not address this
language, probably because the proviso was not applicable—the policy was not
issued in Arkansas. See 

                                            -8-
the state’s highest court. See 

We are faced with an issue of Arkansas
law, and the Arkansas Supreme Court has decided that issue, so we are bound by that
decision regardless of whether we think it wise or in accordance with the supposed
national trend. If the Arkansas Supreme Court or legislature wants to change state
law, then they can do so—we cannot. Simmons’s suit was timely, and the district
court was right to deny the insurers’ motion to dismiss.

       B.     Prejudgment Interest
       The insurers next argue Simmons is not entitled to prejudgment interest, which
is another issue we decide (this time without dispute) under Arkansas law. See
Maddox v. Am. Airlines, Inc., 

, 699 (8th Cir. 2002). “Prejudgment
interest is compensation for recoverable damages wrongfully withheld from the time
of the loss until judgment.” Dorsett v. Buffington, 

, 232 (Ark. 2013).
A prevailing plaintiff is entitled to prejudgment interest “if the amount of damages
is definitely ascertainable by mathematical computation, or if the evidence furnishes
data that make it possible to compute the amount without reliance on opinion or
discretion.” 

the damages are not by their nature capable of exact
determination, both in time and amount, prejudgment interest is not an item of
recovery.” 

       The parties disagree about how these rules apply in this case. To the insurers,
this case is similar to Woodline Motor Freight, Inc. v. Troutman Oil Co., Inc., 

(Ark. 1997). We agree that case is “instructive.” In Woodline, a vehicle
driver caused a crash that damaged a convenience store. See 

The building
owner sued.9 See 

“[t]here was conflicting testimony as to whether the


      9
      The tenant also sued for personal property damage (e.g., inventory), which
Simmons claims makes Woodline distinguishable. See 

569. However, the
Arkansas Supreme Court bifurcated its discussion and offered separate rationales for
why prejudgment interest was inappropriate for the owner and the tenant. See 

building needed to be completely torn down, or whether part of the structure could
have been repaired.” 

The jury awarded $100,000 of the $202,000 the
owner sought for property damage. See 

Given that “the estimates to
repair or replace [the] building varied substantially,” the Arkansas Supreme Court
held prejudgment interest was improper because “it was impossible to compute the
amount of [the plaintiff’s] damages without reliance on opinion or discretion.” 

In Simmons’s case, the jury had to exercise discretion to reach a verdict based
on “conflicting testimony” and estimates that “varied substantially” as to Simmons’s
damages. This suggests “the amount due [Simmons] was neither liquidated as a
dollar sum nor ascertainable by fixed standards.” 

maintains prejudgment interest was proper because the policies
provided a “method” to ascertain damages: the insurers owed either “the cost to
repair, rebuild or replace” the facility or “the actual expenditure incurred in repairing,
rebuilding or replacing” the facility, whichever was less. To Simmons, the damages
were capable of exact determination because there was “no dispute concerning the
amount Simmons spent to replace the building.” Thus, once the jury decided what
Simmons posits was the only issue at trial—“whether the entire building needed to
be replaced at all”—there was no room left for “opinion or discretion,” nothing for
the jury to ascertain. 

. But the record and verdict show
that was not the case.

       The parties stipulated to how much Simmons actually spent on the facility and
how much the insurers voluntarily paid Simmons. If the jury simply plugged these
figures into Simmons’s proffered damages formula, without relying on any opinion
or discretion, it would have awarded about $3.5 million in damages. Yet, as Simmons
said at oral argument, “juries do what juries do”—the jury awarded Simmons


569. We rely only on the court’s discussion as to the owner’s claim for prejudgment
interest, making this distinction irrelevant.

                                          -10-
$2,817,380.11. Neither party suggested this figure at trial, nor do they offer any
explanation on appeal as to how the jury may have reached this sum. “The fact that
the jury awarded a lesser amount than requested is not necessarily dispositive, but it
is unclear here . . . how the jury arrived at the total damages amount.” Yazdianpour
v. Safeblood Techs., Inc., 

, 540 (8th Cir. 2015); cf. Aceva Techs., LLC
v. Tyson Foods, Inc., 

, 365-66 (Ark. Ct. App. 2013) (awarding
prejudgment interest where the plaintiff recovered less than it sought, but it was clear
how the jury calculated damages). The jury could not, and indeed did not, blindly
accept every invoice Simmons offered into evidence. The jury had to use its
discretion to ascertain which experts to believe, which expenses were covered under
the policies, and whether the invoices “‘reflected reliable and fair dollar amounts.’”

(quoting Sims v. Moser, 

, 520 (Ark.
2008)). The need for such discretion means Simmons’s damages were not capable
of exact determination until the jury spoke and the district court entered judgment,
and prejudgment interest was not appropriate.10




      10
        We reach this conclusion regardless of our standard of review, an issue upon
which the parties disagree (but do not elaborate). The insurers propose de novo
review, citing Children’s Broadcasting Corp. v. Walt Disney Co., 

, 868
(8th Cir. 2004). Simmons suggests an abuse-of-discretion standard, pointing to All-
Ways Logistics, Inc. v. USA Truck, Inc., 

, 518 (8th Cir. 2009). We need
not reconcile this apparent inconsistency within our precedent, because “[a] district
court by definition abuses its discretion when it makes an error of law.” Koon v.
United States, 

, 100 (1996).

                                         -11-
      C.         Statutory Damages and Attorney Fees
      For its part, Simmons claims it should have received statutory damages and
attorney fees.11 Under Ark. Code Ann. § 23-79-208(a)(1), an insurer found to have
improperly withheld payment on a claim “shall be liable to pay the holder of the
policy . . . , in addition to the amount of the loss, twelve percent (12%) damages upon
the amount of the loss, together with all reasonable attorney’s fees for the prosecution
and collection of the loss.” This additional relief is available only “if the amount
recovered for the loss is within twenty percent (20%) of the amount demanded or
which [was] sought in the suit.” 

       The Arkansas Supreme Court has made clear the statute is “strictly construed
in favor of the party sought to be penalized” and “should not be held to apply except
in cases that come clearly within the statute.” Primerica Life Ins. Co. v. Watson, 

, 448 (Ark. 2004). Whether this case comes “clearly within the statute”
depends on whether Simmons recovered at least 80% of the amount it “demanded”
or “sought in the suit.” After thorough analysis, the district court found “Simmons
fail[ed] to chin this statutory bar, as its net recovery of $2,817,380.11 is only 78.6%
of its $3,584,041.90 demand.” We review the district court’s legal conclusion de
novo, and the factual findings supporting it for clear error. See, e.g., Jackson v.
Allstate Ins. Co., 

, 1206 (8th Cir. 2015).

       Simmons proposes two reasons why the district court was wrong. First,
Simmons suggests the district court took too narrow a view in deciding what numbers
to use. That is, the math should reflect the question posed to the jury: “What . . . was
the least amount for which Simmons could have replaced the entire Ft. Gibson
Building?” Simmons said this number was $6,098,080, the “amount demanded.”


      11
       The Arkansas Supreme Court has held § 23-79-208 is “a procedural matter,”
and therefore may be applied regardless of what state’s substantive law governs.
Shepherd v. State Auto Prop. & Cas. Ins. Co., 

, 329 (Ark. 1993).

                                         -12-
The jury found the number to be $5,525,995.56, the “amount recovered.” If these
numbers are used, then Simmons recovered 90.6% of the amount it sought. But this
approach fails to recognize the difference between an insurance claim and a legal
claim, and the statutory threshold is concerned with the latter. See Ark. Code Ann.
§ 23-79-208(d)(1) (referring to the amount sought “in the suit” (emphasis added));
Nat’l Standard Ins. Co. v. Westbrooks, 

, 357 (Ark. 1998) (“This court
has previously interpreted the language ‘amount demanded or which is sought in the
suit’ as ‘the amount sued for.’” (quoting Mut. Relief Ass’n v. Poindexter, 

, 18 (Ark. 1928))). Simmons made an insurance claim, and the insurers denied part
of that claim. Simmons then demanded and ultimately sued for the difference, not the
entire $6,098,080, a point it repeatedly acknowledges throughout its briefs. This
admitted truth is enough to defeat this version of Simmons’s argument.

       Alternatively, Simmons contends the district court failed to grasp the
“substance” of its demand. Notwithstanding the above approach, Simmons says it
was “undisputed” Simmons was suing to recover the difference between what it spent
to replace the facility and what the insurers voluntarily paid. That difference was
$3,488,761.13, and using this as the “amount demanded” would mean a recovery rate
of 80.8%. The district court was right to reject this attempt at revisionist history.
Given the parties’ stipulations, this is the correct difference and appears to be the
most Simmons could have recovered. Yet, for some unknown reason, Simmons
consistently demanded an amount almost $100,000 more than that. Consider: In its
pre-suit demand letter, Simmons sought $3,584,041.90; the complaint stated the suit
was for $3,584,041.90, and asked for an additional 12% of that amount as statutory
damages; pretrial disclosures and reports reflect this higher number; and the jury was
told this was the stipulated amount Simmons was seeking. When the district court
mid-trial expressed concern about the origin of this number, Simmons doubled down
and reaffirmed that “at the end of the day . . . this lawsuit is for 3.584 million.” The
closest Simmons came to reducing its demand was in closing arguments when
counsel acknowledged some expenses did relate to so-called betterments that were

                                         -13-
not technically covered by the policies, but even then Simmons sought to justify the
costs. It seems clear to us that all parties operated under the assumption Simmons
was seeking $3,584,041.90, and Simmons never made a full and timely attempt to
make a “new and lesser demand.” 

Because Simmons failed to recover at
least 80% of that amount, it was not entitled to statutory damages or attorney fees.

III.   CONCLUSION
       We affirm the district court’s decision to deny the insurers’ motion to dismiss,
because the limitation provision is procedural and is void under Arkansas law. We
reverse and vacate the award of prejudgment interest, because the jury had to exercise
discretion in determining Simmons’s loss. We affirm the denial of Simmons’s
request for statutory damages and attorney fees, because Simmons did not recover the
statutory threshold of at least 80% of the amount it demanded in the suit.
                        ______________________________




                                         -14-