*2 Before JOHN R. GIBSON and BOWMAN, Judges, Circuit and HENLEY, Judge. Senior Circuit GIBSON, Judge. JOHN R. Nodaway Valley brought Bank diversity action to recover a settlement payment attorney’s and fees from Conti- Casualty Company, nental which issued a liability policy only Nodaway that covered Valley’s directors and officers. The in- individuals, together sured with certain individuals, corporations uninsured $500,000 paid brought by to settle a suit Bank United Missouri and also incurred $300,497 attorneys’ a total of fees court,1 expenses. F.Supp. The district held that Continental $500,000 responsible for of the settlement, attorneys’ of the fees and costs that were incurred in de- fending the United Missouri suit. award, adding prejudgment interest to the judgment in the court entered a favor of $830,860.18. ap- for On (1) that the dis- peal, Continental contends: set- trict court attributed too much of the payment litigation costs to the tlement individuals; (2) that the court not have awarded affirm the terest. We district court.2 I. underlying dispute be-

The details of the the Noda- Missouri Bank and tween United Valley Bank are not material to this way after say case. It suffices to Nodaway Val- bought Missouri shares Nod- ley, and shareholders of the directors Sachs, Fed.R.App.P. pursuing appeal. a frivolous See Howard F. 1. The Honorable Judge Although the Western District of Cas- States District we conclude that Continental meritorious, Missouri. ualty's appeal we do not Therefore, deny that it is frivolous. believe Nodaway Valley has filed a motion in which it Valley’s Nodaway motion. against Continental seeks sanctions squeeze-out Co., 715 away Valley merg- executed Bank (W.D.Mo.1989). court, F.Supp. er. In a suit filed a Missouri state claimed that Val- II. *3 directors, its and its sharehold- ley, officers ers, corporate other entities had violat- Casualty challenges the dis- Continental by squeezing out law United ed Missouri ninety per- to allocate trict court’s decision separate two Missouri. That suit ended in responsibility a cent of the settlement agreement, agreements. one attorneys’ settlement fees to percentage similar of the $500,000 ques- Missouri received to settle A insured directors. threshold its claim that direct- only govern count of tion is what our standard against Nodaway Valley’s solely di- of that ed review decision. agreement, other

rectors. A. nothing in return for set- Missouri received tling remaining complaint. counts of Casualty argues that al Continental locating payment and costs the settlement court, the district Continental Before question of law and fact involves a mixed argued Valley’s Nodaway di- Nodaway we should review de novo. anything rectors could not recover because Valley argues that the decision is allocation the losses fell within exclusions contained finding a should review fact Nodaway Valley’s district policy. in The only clear error. summary against granted recognized has on on issue. vexing “the nature more than one occasion testimony court then heard questions fact of the distinction between concerning appropriate allocation of the of law.” Pullman-Stan- expenses payment. fees and and settlement Swint, dard testimony Valley presented Nodaway (1982). 72 L.Ed.2d 66 The Pull- Stinson, Mag law firm attorneys of the 52(a) Court stated: “Rule man-Standard Fizzell, represented Nodaway which had guidance particular not furnish with does Valley’s the other defendants directors and from fact. respect distinguishing brought by in the suit United Missouri. any yet rule or Nor do we know other entire attorneys testified that Those unerringly distinguish a principle that will payment settlement was attributa- legal from a conclusion.” factual portion of Missouri’s com- to the ble The Court reiterated these observa- only the was directed plaint that Corp., in tions Cooter & Gell Hartmarx They testified that directors. — U.S. -, and costs incurred of fees offering simple pre- again no Valley's defending directors. focusing on whether scription and instead “ presented testimo- appellate court was ‘better the district ” manager and William H. ny of its claims positioned’ particular to make a determi- Bates, attorney experienced business Id., at 2458-60. nation. litigation who was President-Elect the fine This court has also considered Bates tes- Bar when he testified. ques- between factual distinctions seventy percent of the eighty tified that ex rel. Morris tions. In United States should have payment and costs settlement Construction, Casualty In- Inc. v. Aetna corporate to the been allocated Cir.1990), F.2d 375 surance to effect the company that had been used Supply, McCrary’s in In re Farm merger. squeeze-out analy- our Inc., question is- testimony, focused on whether hearing the court sis required application of “[allocating of the re- sue concluded that 10% it re- or whether legally oriented standard to nonin- sponsibility for non-technical, quired application of generous under almost parties sured seems Using these factually standard. oriented circumstances.” principles, we found that the term “subcon- reviewed under the erroneous stan- tractor” as used the Miller Act had a dard a district court’s decision to allocate meaning sufficiently technical it of the fault in an automobile accident 65% presented a mixed of law and fact plaintiff. Id. at 464. de that should be reviewed novo. Morris cases, In addition to these numerous Construction, n. 4. 908 F.2d 377-78 & Eighth Circuit decisions hold that the calcu- contrast, in McCrary, we held that what damages lation and award of is a “place constitutes a of business” was only of fact reviewable for clear error. factual because was based on a See, e.g., Arresting Officers, Webb v. statutory closely “non-technical standard *4 (8th Cir.1984); F.2d Apex 501 Mining practical experience.” human related to Chicago Copper Co. v. & Chem. 705 F.2d at 332. (8th Cir.1965). F.2d recently have considered a We We also observe that the allocation of us, and that a similar to the one before held responsibilities requires a fact- per district court’s determination of the inquiry type bound similar to inquiry the of centages responsibility a of required in negligence the determination of

based on constitutional violations should be discriminatory Supreme intent. The clearly the rule. reviewed under erroneous finding has stated that a Court of intention- Missouri, v. State Jenkins of al discrimination is a of fact to be (8th Cir.1988), part in and rev’d aff'd — clearly reviewed under the U.S. -, erroneous stan- part grounds, in on other dard, (1990) City City, Anderson v. (ap- L.Ed.2d 31 Bessemer 110 S.Ct. of 564, 573, 1504, 1511, portionment seventy-five percent respon- 105 S.Ct. (1985), sibility desegregation the costs L.Ed.2d 518 and that state the determina- twenty-five percent to the school dis- negligence “generally tion of reviewed trict). apportionment satisfied that deferentially.” Gell, We are Cooter & at responsibility the for the covered and 2459. amount, non-covered settlement fees and dispute, Without the of whether expenses similarly presents a factual issue. coverage or not there is under the insur- concerning apportionment Cases legal ance contract is a determination. comparative fault are liability under by summary judg- was decided This issue States, illuminating. Mandel United unchallenged. recog- ment and is We also F.2d 964 we stated that exposure to dam- nize apportionment of fault under the Arkansas legal ages underlying in the case involved question for comparative fault statute is a application questions as well as only for the fact finder and reviewable questions. remaining to those facts clear error. Id. St. Hilaire however, simply question, involves how Henderson, (8th Cir.), F.2d 973 Moye v. by much is covered or not covered denied, 151, 42 419 U.S. cert. policy. insurance court stated that L.Ed.2d 125 this core, At its this issue concerns the evalu- responsibility finder has the the fact comparative responsibilities of ation of the apportion negligence the facts and “assess exposure their particular parties and of parties proper....” as he deems among the underlying damages in the to an award of may apportionment an Id. at 982. Such came Evidence of this evaluation suit. clearly only if reversed representing lawyers from Similarly, Chicago & North Western directors, claim man- bank officers Rail Railway v. Minnesota Co. Transfer Continental, testify- lawyer ager for (8th Cir.1967), F.2d 129 way witness, gave all of whom ing expert as an clearly standard applied a erroneous liability respective opinions as to the judgment allowing of a con to the review corporate entities and the non-insured among tortfeasors. Id. at 131. tribution directors. officers and sured individual Campbell In a Fifth v. Bar certainly legal theo- 1959), testimony involved the court The sky, 265 F.2d 463 Cir. parties essentially essentially legal. against the in the was factual or recovery ries of analysis of the underlying application action and an 1202. If the of law to the Id. at theories. applicable requires inquiry under those facts based on facts “ inquiry necessarily started While the with experience fact with ‘the finder’s ” considerations, however, the ultimate conduct,’ mainsprings of human the con judgmental primarily determination judicial administration will favor cerns analyzed light one which facts (quot deference court. controlling law. We are convinced this Duberstein, ing 363 U.S. Commissioner inquiry. As a factu in essence factual issue, subject al it is errone (1960)). City, ous standard. Bessemer Construction, analysis in Our Morris S.Ct. at distinguished between le- which any degree entertain Were non-technical, gally based characterization of the regarding doubt our factually questions, rests based identification of allocation issue and our principles same considered review, the recent proper standard of and the Seventh and Ninth Circuits. *5 lays effectively to & decision Cooter Gell allocation of We are convinced Gell, rest those doubts. Cooter responsibilities requires a non- settlement that a deferential standard Court decided inquiry. Whether fact-intensive 11 applied to Rule the review of whether we we label the issue factual or Id., Citing 110 at 2461. sanctions. S.Ct. is simply conclude that the district court 552, Underwood, Pierce issue, positioned to determine the better (1988), 2541, S.Ct. 101 L.Ed.2d 490 is same—name- our ultimate conclusion the that the administra- Court concluded sound ly, that the district court’s decision as to justice requires tion the district court responsibilities the allocation fact-specific it is questions because resolve clearly under the errone- must be reviewed effectively efficiently do able to better ous standard. at Review must so. Id. 110 S.Ct. 2459-60. give the district court the be deferential to flexibility “necessary to resolve B. ‘ “multifarious, fleeting, special,

involving question next is whether the utterly generaliza- resist narrow facts that ’ ” Pierce, clearly is district court’s allocation errone (quoting at 2460 tion.” S.Ct. 2548). 561-62, at Court has admonished at ous. U.S. Thus, “[wjhere grant if its ar- even we Continental lower courts remember us gument permissible before is are two views evi there fact, dence, one of law and the issue mixed them the factfinder’s choice between its sufficiently factual in essence that clearly Bessemer cannot be erroneous.” is far better able to effective- district court 574, City, 470 105 S.Ct. at 1511. U.S. at efficiently it. ly and resolve of the evi “If the district court’s account in light of the record plausible dence is adopted ap circuit courts have Two entirety, appeals in its the court viewed proaches similar Cooter & Gell. may though it convinced not reverse even Bank, Comp. v. Continental Mars Steel fact, sitting as the trier had it been the Seventh 880 F.2d 928 weighed the differ it would have evidence disputes” that “fact-intensive Circuit stated 573-74, ently.” “ at 105 S.Ct. at 1511. under a “deferential should be reviewed “clearly erroneous” when appellate the role of ‘[A] standard because it, support although there is evidence to articulating establishing rules courts reviewing on the entire evidence at 933. is not at stake.” Id. law firm conviction definite and left with the 728 F.2d 1195 McConney, United States v. ” Id. 824, has been committed.’ denied, that a mistake U.S. cert. Cir,), (quoting at at the court 83 L.Ed.2d S.Ct. 101, Gypsum States dispute whether the atJ looked analysis L.Ed. hensive is not (1948)). clearly erroneous. reviewing Similarly, although the district court’s care- the district court ad- analysis ful of this we are convinced mitted that it only could prop- estimate the clearly allocation is not er erroneous. allocation of fees expenses, at id. concluded The district court first that if the its allocation trial, gone Missouri suit had III. in that suit probably defendants would Bank, prevailed. Nodaway have Valley Continental next contends give great weight 1460. We to the district that the district court by awarding erred law, interpretation of state Subur- According interest. to Conti Newspapers, Kroger ban Inc. v. Casualty, nental permits pre (8th Cir.1989), and Conti- judgment only to be awarded if a nental has not convinced us that claim liquidated. was Because the exact the district court’s conclusion was incor- amount of Casualty’s liability rect. clear until the district court en judgment, tered its The district court then stated that al- argues that liquidated its claim was not expo- it “difficult though was to allocate prejudg and thus should not be liable for probably in a defense that seemed sure ment argument only interest. This merits success,” Nodaway Valley headed for a brief discussion. Bank, greatest it believed that the by Nodaway Valley’s risk was borne di- this, In diversity cases such “[p]re- *6 conclusion, reaching rectors. that judgment interest is a matter of substan- rely upon plati- court was not content to tive state law.” First Am. State Bank v. tendency juries Co., 319, tudes about the to attack Ins. F.2d Instead, corporate “deep pockets.” (8th Cir.1990). As previously we have stat- ed, corporate holding give great weight court noted that com- to the district pany likely interpretation in this case “would have been court’s of state law. Subur- by jury essentially Newspapers, as ban 886 F.2d at viewed basket 1062. prejudg- the district court held for stock or a collection of ment interest should be awarded because: papers leading used individual de- n fendants.” Id. 1460. The court also support Missouri cases an allowance if the interest, stated United Missouri “case prejudgment though for even trial, gone jury probably had would the claim moneys the insurer for holding compa- previously speci- have understood that advanced could not be [the ny] many at the time of trial held assets of until an fied allocation occurred. Catron (including aged innocent shareholders v. Columbia Mut. Ins. S.W.2d 5 (Mo.1987) [(en banc)]; persons) identity infirm whose was dram- Mauer v. State [sic], by being present Employees’ System atized as defendants in Retirement (Mo.App.1988). 762 S.W.2d 517 Defen- the lawsuit.” Id. long dant insurer has had the benefit of thoroughly Only examining after advances, plaintiff’s pay and should for nuances of facts before it did the court use of the funds. appraisal, realistic and fair hold “[a] Bank, at 1467. settlement, of the time of would ... have exposure allocated about to the 10% Catron v. Columbia Mutual Insur- (Mo.1987)(en banc), uninsured defendants ... and ance 723 S.W.2d 5 90% defendants_” al- Id. at 1461. Ac- the Missouri Court held that cordingly, though prejudgment generally the court held that is interest responsible unliquidated “not on an de- recoverable Missouri, paid general that had been to settle rule is sub- mand” ject exceptions. the United Missouri suit. Id. at at 6. The court 1466. We Id. traditionally compre- “[ijnterest conclude that the district court’s has observed 1987)(en 5, (Mo. Co., 723 S.W.2d Ins. Mut. use of compensate been used dissenting). J., banc) (Welliver, person money to which of use of loss “may also 7. entitled.” fairness principles equitable consider in- prejudgment awarding justice when terest.” award court’s believe We supported prejudgment Fur- by McGuire Catron, also but only by Merta, 773 S.W.2d v. Co. Rental niture America, Appellee, STATES UNITED v. Mauer (Mo.Ct.App.1989), 878, 883 v. Trustees, S.W.2d

Board of The district (Mo.Ct.App.1988). ZEPHIER, Appellant. Al reflects of Missouri terpretation No. 89-5511. inter- unless the concern inade- will be available, compensation Appeals, est incentive have an will and defendants quate Eighth Circuit. advantage to take litigation prolong May Submitted Virgi- West money. See value the time 310-11 Oct. States, U.S. Decided nia United v. 2,n. & 702, 706-07 2, 107 S.Ct. n.& Corp. Motors (1987); General n. 655-56 Corp., 461 v. Devex 10, L.Ed.2d n. 2058, 2062 & 10, 103 S.Ct. Retire Employees (1983); Lorenzen (7th Cir. 228, 236-37 Plan, F.2d ment Quality Enter., Inc. 1990); Gorenstein 431, 436-37 Inc., Care-USA, Dobbs, Hand D. Cir.1989); generally, see *7 3.5, at Remedies § Law book (1973). 165-74 set- allocation court's fees was expenses, payment,

tlement Also, decision clearly not consistent interest prejudgment award Accord- cases. Missouri relevant with the dis- affirm ingly, we

trict court. Judge,

HENLEY, Senior

concurring. opinion of fully in I concur While while appears only that I add

court, lip service pay now courts generally rule that demands, unliquidated on not recoverable are claims insurance unliquidated in fact Mauer rule. See general subject to Trustees, S.W.2d v. Board of v. Columbia Catron (Mo.Ct.App.1988);