United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 24-1176
                        ___________________________

                            Maxus Metropolitan, LLC

                                      Plaintiff - Appellee

                                        v.

                Travelers Property Casualty Company of America

                                   Defendant - Appellant
                                 ____________

                     Appeal from United States District Court
                for the Western District of Missouri - Kansas City
                                 ____________

                            Submitted: June 11, 2025
                             Filed: August 28, 2025
                                 ____________

Before COLLOTON, Chief Judge, ARNOLD and GRUENDER, Circuit Judges.
                            ____________

GRUENDER, Circuit Judge.

      On September 27, 2018, a catastrophic fire struck the Metropolitan, a multi-
building apartment complex located in Birmingham, Alabama. It destroyed one of
the Metropolitan’s buildings entirely and caused varying degrees of damage to the
others. The insurance carrier at the time of the fire, Travelers Property Casualty
Company of America (“Travelers”), denied payment to the Metropolitan’s owner,
Maxus Metropolitan, LLC (“Maxus”), for certain related remediation costs. Maxus
sued Travelers for breach of contract and vexatious refusal to pay. At trial, the jury
sided with Maxus and awarded it damages of $27,330,263.13. It also found
Travelers liable for vexatious refusal to pay and accordingly awarded Maxus
additional damages of $546,905, plus attorneys’ fees as allowed under Missouri law.
Travelers appeals the district court’s denial of its motions for judgment as a matter
of law and for a new trial as well its grant of prejudgment interest and attorneys’
fees. We affirm on all issues except regarding the prejudgment interest, which we
vacate and remand for recalculation.

                                   I. Background

       On September 27, 2018, a fire destroyed “Phase 6,” a standalone building that
was part of the Metropolitan. The Metropolitan consisted of several buildings and
was divided into six distinct “phases.” At the time of the fire, all six phases of the
Metropolitan were at various stages of completion, including some which were
occupied by tenants. Phase 6 was still under construction. Phase 6 was connected
to Phase 5 via an open-air walkway. No other direct connection existed between
Phase 6 and the other phases. The fire caused severe and obvious damage to Phase
5, including broken windows, melted window frames, damaged siding, and
extensive soot1 throughout. Embers burned holes in the roofs of Phases 1-5. The
interiors of Phases 1-4, however, appeared to have been unaffected by the fire.

     At the time of the fire, the Metropolitan’s policy with Travelers covered up to
$35 million in “direct physical loss . . . or damage.”2 The policy also provided

      1
       The parties refer to different types of combustion byproducts, e.g., soot, ash,
char. The technical distinctions between these byproducts do not affect our analysis.
For simplicity, we use the term “soot” to refer to all combustion byproducts.
      2
       Maxus owned the Metropolitan at the time of the fire, having recently
purchased it from Bomasada Birmingham, LLC, which continued to serve as the
general contractor on the project and maintained its preexisting insurance policy
with Travelers. Due to the change in ownership, Maxus qualified as an additional
named insured on the policy. Bomasada is not a party here.
                                       -2-
coverage for up to $5 million in lost business income. The policy expired just three
days after the fire on September 30, 2018 and was not renewed.

       Almost from the start, Maxus and Travelers experienced difficulties in their
dealings with each other. Maxus notified Travelers of the fire the very day it
occurred, but Travelers did not reach a coverage determination until almost two
months later. When a month and a half had passed with no decision, Maxus filed a
consumer complaint with the Alabama Department of Insurance. Nine days later—
and sixty-three days after the fire—Travelers notified Maxus that it would provide
coverage. (Travelers asserts this delay was caused by confusion as to whether a
centralized intruder alarm system—which the Metropolitan lacked—was actually
required, given that the policy and renewal letter had different terms in that regard.)
Four days later, on December 3, representatives from Travelers and Maxus met in
person. Travelers agreed to advance $1,000,000 for initial cleanup and emergency
repair costs. It also reiterated its previous request for documentation regarding the
level of completion of Phase 6 at the time of the fire. The parties also agreed that an
environmental testing company would test Phases 5 and 6 for contaminants. Testing
was carried out in mid-December. On March 13, 2019—after receiving the
inspection report from January 15 and after several additional months of back and
forth regarding required documentation—Travelers made an additional payment,
bringing its total payout to $3,519,607.19.

       Up to this point, neither party was concerned about possible fire damage in
Phases 1-4. Then, in April 2019, Maxus’s vice president of construction visited the
site and discovered evidence of soot and water damage throughout Phases 1-5.
Accordingly, Maxus hired Forensic Building Science (“FBS”) to inspect Phases 1-5
for fire damage. Upon inspection, FBS identified visible soot stains throughout
Phases 1-5 that seemed to indicate smoke had entered the Metropolitan’s HVAC
system during the fire. FBS gathered and sent seventy-two samples to the lab, which
confirmed that all but one or two contained soot to varying degrees—from “trace”
to “significant.” FBS recommended pausing construction to allow it to return to the
exact same locations in two weeks for further testing. FBS also found a large amount
                                         -3-
of water damage, some of which it believed to have been caused by preexisting
construction defects and some of which it believed to have resulted from leaks from
the holes in the roof created by burning embers. Maxus informed Travelers of FBS’s
initial findings.

      FBS issued its official report on June 5, 2019, finding that carcinogenic soot
was present throughout Phases 1-5 and that extensive remediation was required,
which would necessitate the evacuation of all residents and employees. Maxus
immediately forwarded the report to Travelers, requesting its input as to the planned
remediation. Travelers did not respond. On June 11, Maxus reached out again,
requesting a response before Maxus evacuated tenants. Travelers responded the next
day, explaining that it had arranged for an industrial hygienist to investigate the
property and that until Travelers received that report, it could not say whether the
evacuation of residents was covered under the policy. Further, Travelers noted that
the hygienist’s report would only provide information as to whether the evacuation
costs were covered under the policy. Travelers refused to take a position on whether
an evacuation was needed and explained that it “has not undertaken and will not
undertake any technical, feasibility, safety, or other review of the report or opinions
of” FBS.

       The hygienist visually inspected the Metropolitan on June 13, 2019. He
detected no odor or stains that indicated smoke infiltration. On August 2, he sent his
report to Travelers and advised them against performing any additional testing.
Travelers did not discuss this report with Maxus but requested that the hygienist
return to perform additional testing, which he did on September 30 and October 1.
Meanwhile, concerned by the FBS report, the Metropolitan had already evacuated
its tenants, notifying them on June 14th that they were required to vacate by June
24th.

        In mid-September, before the hygienist returned, Maxus informed Travelers
that it intended to begin remediation of Phases 1-4 on October 7 and asked whether
Travelers objected to this remediation. Travelers responded that it could not take a
                                         -4-
position until after the hygienist had completed his testing. On October 9—after the
hygienist had performed additional tests but before the parties had received the
results—Maxus signed a contract with a construction company to begin remediation.
Remediation on each floor required installing a temporary plastic containment to
eliminate cross-contamination between floors; removing and disposing of sheetrock,
carpets, and other items that could not be cleaned; temporarily removing and
cleaning cabinets, countertops, appliances, trim, doors, and windows; cleaning
interior wall cavities using HEPA filtration; spraying structural components with
multiple coats of sealant; conducting clearance testing to confirm the absence of
soot; and rebuilding.

       On December 16, Travelers sent Maxus the hygienist’s reports—both the
report based on his June 13 visual observations and the report regarding his
September 30 and October 1 tests. These reports made clear that the hygienist
disputed FBS’s findings and that he deemed the currently ongoing remediation to be
unnecessary. Three days later, on December 19, 2019, Maxus sued Travelers in
Missouri state court for breach of contract and vexatious refusal to pay. Travelers
removed the case to the Western District of Missouri pursuant to federal diversity
jurisdiction.

        A jury trial was held. At trial, Travelers argued that that soot from the Phase
6 fire did not reach the other buildings. Rather, it claimed, any soot present in Phases
1-4 was the normal result of background contamination from the neighborhood and
not from the fire. 3 It also argued that—even if present and resulting from the Phase
6 fire—microscopic soot cannot constitute “physical loss or damage” as required
under the policy. As to the water damage, Travelers argued that any water damage
was neither caused by the fire nor occurred during the policy period. For its part,

      3
        Travelers restricted its arguments to the microscopic soot present in Phases
1-4, as well as any additional microscopic soot present in Phase 5 beyond that for
which Maxus had already been compensated. It did not contest at trial, nor does it
contest on appeal, that the policy covered remediation expenses for the heavy, visible
soot in Phase 5.
                                          -5-
Maxus asserted that both the soot remediation and the water damage resulting from
the leaks created by the burning embers were covered under the policy. It also
argued Travelers was liable under Missouri law for vexatious refusal to pay and
therefore subject to additional damages as well as an attorney’s fees award. See 

 (2024) (providing that an insurance company that “has refused
to pay . . . without reasonable cause or excuse” may be subject to pay additional
damages as well as “a reasonable attorney’s fee”). Maxus presented the FBS
consultant—a currently-licensed building code official—who had produced the
relied-upon report. The FBS consultant critiqued the testing methodology of
Travelers’ industrial hygienist, suggesting that he purposely chose to sample in
locations where soot was unlikely to be discovered and had even cleaned each
location before gathering a sample. For its part, Travelers critiqued the background
of the FBS consultant, suggesting that he lacked the professional credentials and
educational background to serve as an expert witness.

       The jury sided with Maxus and awarded all it had requested: $27,330,263.13
in damages, $546,905 for vexatious refusal to pay, and “reasonable attorneys’ fees.”
After trial, Maxus moved for calculation and award of attorneys’ fees and for
alteration of the judgment to include pre- and post-judgment interest. The district
court granted both motions. When calculating the attorneys’ fees award, it included
fees accrued before the complaint was filed as well as fees accrued by paralegal
professionals and other litigation support staff. Travelers moved for judgment as a
matter of law and for a new trial, which the district court denied. On appeal
Travelers raises six issues: (1) whether the presence of microscopic soot may
constitute “direct physical loss or damage,” (2) whether Maxus was required to
prove the water damage occurred during the policy period, (3) whether Maxus
presented sufficient evidence that Travelers vexatiously refused to pay Maxus’s
claims, (4) whether Travelers is entitled to a new trial due to erroneous jury
instructions, (5) whether the district court abused its discretion when calculating the
attorneys’ fees award, and (6) whether the district court properly calculated and
awarded prejudgment interest.


                                         -6-
                                   II. Discussion

                               A. Microscopic Soot

       We first address Travelers’ contention that it was entitled to judgment as a
matter of law because Maxus failed to prove the presence of microscopic soot in
Phases 1-4 constituted a “direct physical loss of or damage to” property as required
under the policy. We review the denial of a motion for judgment as a matter of law
de novo, reviewing the sufficiency of the evidence to support the jury’s verdict in
the light most favorable to the prevailing party, and affirming unless no reasonable
juror could have reached the same conclusion. Joseph J. Henderson & Sons, Inc. v.
Travelers Prop. Cas. Ins. Co. of Am., 

 (8th Cir. 2020). “Judgment
as a matter of law is appropriate only when the record contains no proof beyond
speculation to support the verdict.” Wilson v. Brinker Int’l, Inc., 

, 770
(8th Cir. 2004) (citation modified). Therefore, we “will not set aside a jury verdict
unless there is a complete absence of probative facts to support the verdict.” Id. at
769 (internal quotation marks omitted).

      Travelers asserts that the policy language—“direct physical loss of or damage
to” property—covers remediation only to the extent the soot either caused physical
harm to the property or rendered it uninhabitable. It argues that Maxus failed to
prove the presence of microscopic soot satisfies this standard—first, because
microscopic soot does not constitute direct physical loss or damage, and second,
because Maxus failed to establish that the soot made the property uninhabitable.

       Sitting in diversity, we apply state substantive law. Sanborn Savings Bank v.
Freed, 

 (8th Cir. 2022). The parties here agree that Missouri law
governs. Missouri courts have yet to address whether or when the presence of
microscopic soot might constitute physical damage. When facing an undecided
matter of state law, federal courts must make an “Erie-educated guess” as to what
the state supreme court would decide if it were in our shoes. BSI Constructors, Inc.


                                         -7-
v. Hartford Fire Ins. Co., 

 (8th Cir. 2013). To do this, we may
“turn to other jurisdictions for persuasive guidance.” 

       Few courts have addressed whether similar policy language covers
microscopic soot. See, e.g., Shirley v. Allstate Ins. Co., 

, 1187-
89 (S.D. Cal. 2019) (assuming presence of soot within claimants’ home could
constitute a physical loss but ruling for insurer due to lack of evidence that soot was
present); Creative Consolidation, LLC v. Erie Ins. Exch., 

, 908 (D.C.
2024) (contrasting COVID-19 virus with smoke that leaves “tangible parts of ash
and soot on surfaces or in HVAC systems”). However, many courts have considered
other microscopic contaminants. For example, we have held—applying Missouri
law—that if a policy uses the adjective “physical” to describe a loss, then there must
be “some physicality to the loss or damage of property—e.g., a physical alteration,
physical contamination, or physical destruction.” K.C. Hopps, Ltd. v. Cincinnati Ins.
Co., 

 (8th Cir. 2023) (finding that COVID-19 contamination
did not constitute physical damage). Similarly, the Missouri Court of Appeals
recently held that a policy’s requirement of “‘direct physical loss of or damage to’
property,” meant the loss or damage must be “directly material, perceptible, or
tangible.” BBX Cap. Corp. v. Scottsdale Ins. Co., 

, 603 (Mo. Ct.
App. 2025). Thus, the BBX court reasoned, COVID-19 contamination was not a
covered damage because it did not cause a “physical alteration or tangible impact
to” the insured property. 

. The court took care to distinguish the COVID-
19 virus from asbestos, which would be covered under the policy because “released
asbestos fibers are a form of contamination that is ‘permanent absent some
intervention.’” 

 at 606 (quoting Olmsted Med. Ctr. v. Cont’l Cas. Co., 

 (8th Cir. 2023)). The BBX court leaned on our reasoning in Olmsted
where, applying Minnesota law, we reasoned that “some forms of physical
contamination may support a finding of ‘direct physical loss,’” if the property’s
“function is seriously impaired or destroyed and the property rendered useless by the
presence of contaminants.” Olmsted, 

 (citation modified). Thus,
we found that viral contamination, though in some sense “physical,” was not a
physical loss because “contaminated property will return to a non-contaminated state
                                         -8-
with no intervention because the virus may die on its own in as little as a few hours.”

.

       Olmsted aligns with the reasoning of our sister circuits who have found that
microscopic contaminants may constitute physical damage when they “make the
structure uninhabitable and unusable.” Port Auth. of N.Y. & N.J. v. Affiliated FM
Ins. Co., 

 (3d Cir. 2002) (applying New York and New Jersey
law); see also Q Clothier New Orleans, LLC v. Twin City Fire Ins. Co., 

 (5th Cir. 2022) (applying Louisiana law); Sandy Point Dental, P.C. v.
Cincinnati Ins. Co., 

, 334 (7th Cir. 2021) (applying Illinois law). This
remains true even if the structure is “intact and undamaged” if the contaminant
renders “the property unusable or uninhabitable.” Q Clothier, 

; see
also Uncork & Create LLC v. Cincinnati Ins. Co., 

 (4th Cir. 2022)
(pointing out that, under West Virginia law, a physical loss “may exist in the absence
of structural damage” if the property has been rendered “unusable or
uninhabitable”).

       Therefore, for the presence of microscopic soot to qualify as a physical loss
or damage, it must both (1) meet the required degree of physicality and (2) render
the property unusable or uninhabitable. Here, the first criterion is easily met: Unlike
a viral infection—but like asbestos—soot is “permanent absent some intervention,”
Olmsted, 

, and thus meets the policy’s physicality requirement.4

      The second criterion presents a thornier question for which the parties offered
competing evidence. Here, we need only determine whether there was sufficient
evidence to support the jury’s verdict. See Baker v. John Morrell & Co., 

 (8th Cir. 2004). Travelers argues that the jury required an expert witness

      4
        This is further reinforced by the policy itself. In a different context, it
includes soot in a list of “[p]ollutants,” which it defines as “any solid, liquid, gaseous
or thermal irritant or contaminant, including smoke, vapor, soot, fumes, acids,
alkalis, chemicals, waste and any unhealthful or hazardous building materials
(including asbestos and lead products or materials containing lead).”
                                            -9-
to make a habitability determination and that the FBS consultant lacked the
qualifications to testify to a structure’s habitability. Travelers also points to the
testimony of its own expert witness, a public health and indoor pollutants specialist,
who testified that he would expect soot to pose a health risk if there were an
“accumulation of residues easily visible to the eye on a variety of surfaces distributed
throughout the space.”

       But even Travelers’ own specialist testified that he would need to see
additional sampling—sampling that Travelers neither performed nor requested to
have performed—to be certain as to whether the soot posed a health hazard. Further,
a witness who works as a public health specialist and industrial hygienist testified
that test scores indicating a “moderate” amount of soot—a result achieved by
nineteen of the seventy-two samples—are “out of the ordinary” and “not something
to be ignored.” The same witness also testified that even scores representing a
“significant” impact—a result achieved by twenty-nine of the seventy-two
samples—was “another level of problem” that indicated “a real significant source or
sources” of combustion particles.           And, regarding the FBS consultant’s
qualifications, while Travelers is correct that he lacked advanced scientific degrees,
the jury was also informed that he had been a licensed building code official for
seventeen years and as such had completed over 400 hours of classroom training,
including annual training on hazardous materials. The FBS consultant testified that
upon discovering the soot he was ethically required to inform Maxus of its hazardous
nature and that his soot remediation plan was designed to comply with several
national standards. We will not overturn the jury’s verdict “unless there is a
complete absence of probative facts to support” it. Wilson, 

.
Sufficient evidence existed to support the jury’s verdict.

                                 B. Water Damage

      We next address Travelers’ contention that it was entitled to judgment as a
matter of law because Maxus failed to present evidence that the water damage—
which was caused by the ember hole leaks—occurred before the policy expired.
                                         -10-
Travelers argues that we should invalidate this award under the “manifestation rule”
that has been adopted in some jurisdictions. See Prudential-LMI Com. Ins. v.
Superior Ct., 

 (Cal. 1990) (finding an insurer was only
responsible for damage that “manifested” before the policy expired).

       Even if Missouri were to adopt the manifestation rule—which, as Travelers
admits, it has not yet done—Travelers’ argument fails. If a jurisdiction has adopted
the manifestation rule, then “the carrier insuring the risk when the damage first
becomes apparent remains responsible for indemnifying the loss until the damage is
complete.” 

. This remains true even if the insurance policy “purports to
limit coverage to losses” which occurred during the policy term. 

 The term
“manifestation” refers to “that point in time when appreciable damage occurs and is
or should be known to the insured.” 

. Thus, if damage has manifested
within the policy period but worsens after the policy expires, the initial insurer is
responsible for the entirety of the damage. See 

 On the other hand, if the cause
of damage exists but lies dormant and “no damage or injury of any kind” occurs
before manifestation, then liability is placed on the party carrying the risk when the
damage finally manifests. 

 (emphasis added).

       Here, Travelers argues that the damage “manifested”—was known or should
have been known by a reasonable insured, 

 at 1247—when the water damage was
discovered over six months after the fire. But that is a distortion of the manifestation
rule, which holds insurers responsible for indemnifying a loss caused by damage that
first occurs during the policy period but that worsens after the policy’s expiration.
See 

. Here, damage first occurred on the date of the fire, September
27, 2018, when embers burned holes in the roof. As the insurance provider on that
date, Travelers is liable for any continuing damage caused by the ember-hole leaks.
See 

. At trial, the FBS consultant testified in detail about how the ember
leaks caused the water damage, distinguishing between the water damage caused by
the ember-hole leaks and the water damage caused by preexisting construction
defects. Even assuming Missouri would adopt the manifestation rule, Travelers was
not entitled to judgment as a matter of law because sufficient evidence existed to
                                         -11-
support the jury’s finding that the water damage was covered under the policy
because the fire caused the water damage and the damage had manifested before the
policy expired. See Wilson, 

 (holding that we will not set aside the
jury’s verdict on appeal “unless there is a complete absence of probative facts to
support the verdict”).

                           C. Vexatious Refusal to Pay

       We next address Travelers’ contention that it was entitled to judgment as a
matter of law because Maxus failed to present sufficient evidence that Travelers
acted vexatiously. To prove a claim of vexatious refusal under Missouri law, “the
insured must show the insurer’s refusal to pay the claim was willful and without
reasonable cause, as the facts would appear to a reasonable and prudent person.”
Morris v. J.C. Penney Life Ins. Co., 

 (Mo. Ct. App. 1995) (per
curiam); see also 

 (2024). Missouri usually protects
insurers from vexatious refusal claims when the case “involves a reasonably litigable
issue.” Morris, 865 S.W.2d at 76. Here, Travelers argues that it was entitled to
judgment as a matter of law on the vexatious refusal claim because its refusal to pay
was—at a minimum—based on the existence of reasonably litigable issues. We
agree that reasonably litigable issues existed. The microscopic soot claim presented
a novel issue and the other coverage issues were also subject to reasonable dispute,
especially given the presence of preexisting construction defects.

       However, the presence of a reasonably litigable issue does not necessarily bar
a vexatious refusal claim under Missouri law if “there is evidence that the insurer’s
attitude was vexatious and recalcitrant in refusing the claim.” Id. A jury may find
vexatiousness if the insurer refused to pay based on an inadequate investigation or
if it denied liability without explanation. Tauvar v. Am. Fam. Mut. Ins. Co., 

 (Mo. Ct. App. 2008). Here, Maxus presented sufficient evidence
to support a finding of vexatiousness on either basis. The jury heard evidence that
Travelers’ inspector collected samples in locations where soot was unlikely to be
discovered and employed a sampling methodology that seemed purposefully
                                        -12-
designed to minimize the likelihood of discovering soot. Further, Travelers refused
to indicate whether it would cover the soot remediation until after it had received its
expert’s final report, but then declined to communicate the expert’s initial findings
until December—after Maxus had begun remediation—despite receiving his report
in August. It never even issued a denial letter or provided a justification as to why
it had effectively denied coverage. Rather, in response to Maxus’s requests for
advice as to what would be covered, necessary, and considered reasonable, Travelers
continued to reiterate that it could not “take a position.” Sufficient evidence supports
the jury’s vexatious refusal award.

                                D. Jury Instructions

      We next address Travelers’ contention that the jury instructions were
erroneous and that it is therefore entitled to a new trial. “In diversity cases the
substance of jury instructions is a matter governed by the applicable state law.
Accordingly, the jury instructions, when read as a whole, must fairly and adequately
present the relevant state law.” Acad. Bank, N.A. v. AmGuard Ins. Co., 

 (8th Cir. 2024). We review the district court’s choice of jury instructions
for abuse of discretion. 

.

       Travelers argues the jury instructions were erroneous because: (1) they
permitted a jury to conclude that the mere presence of microscopic soot could satisfy
the policy’s “direct physical loss of or damage to property” requirement; (2) the
district court did not instruct the jury that Maxus bore the burden of proof; and (3)
the district court did not instruct the jury that damage from faulty workmanship was
not recoverable. All three arguments fail.

      First, regarding whether microscopic soot may constitute a physical loss, the
challenged jury instructions state:

      Jury Instruction No. 18: Wherever in these instructions the phrase
      “direct physical loss of or damage to” is used, that means the property

                                         -13-
      has suffered some physicality to the loss or damage to the property—
      e.g., a physical alteration, physical contamination, or physical
      destruction.

      Jury Instruction No. 24: Your verdict must be for Plaintiff Maxus
      Metropolitan, LLC on the Soot Claim if you believe: First, that the
      presence of soot, ash, smoke, or char is direct physical loss or damage
      to property; and Second, that soot, smoke, or char was present at the
      Metropolitan . . . .



These instructions fairly and adequately present the relevant law. Instruction No. 18
explains that covered damage must have a physical component. See K.C. Hopps, 

. And Instruction No. 24 requires the jury to determine whether the
presence of soot constituted a “direct physical loss or damage.” Further, there is no
indication that Travelers’ proposed instructions would have changed the verdict, as
they provide no further clarification as to what might be considered a “direct physical
loss or damage.” See Am. Home Assur. Co. v. Greater Omaha Packing Co., 

 (8th Cir. 2016) (“[A] new trial is necessary only when the errors
misled the jury or had a probable effect on a jury’s verdict.”). The instructions read
as a whole fairly and adequately present Missouri law on the issue of whether
microscopic soot may constitute a physical loss, and we detect no abuse of
discretion.

       Second, we need not decide whether the district court erred by neglecting to
clarify that Maxus bore the burden of proof, because Travelers failed to properly
object. A party may not claim that the district court erred by omitting a jury
instruction unless that “party properly requested [the omitted instruction] and . . .
also properly objected.” Fed. R. Civ. P. 51(d)(1)(B). “A party who objects to . . .
the failure to give an instruction must do so on the record, stating distinctly the matter
objected to and the grounds for the objection.” Id. 51(c)(1). At the instructions




                                          -14-
conference, Travelers stated that it had no objection to Instruction No. 14.5 It later
objected “to the court’s failure to give any instruction on the burdens of proof under
[the] insurance policy” and referenced its own proposed jury instruction, but did not
explain why it believed its preferred burden of proof instruction was required. This
does not constitute a proper objection. Further, Travelers’ purported objection made
little sense at the time, given that the district court did instruct on the burden of
proof—in the previously-undisputed, now-contested-on-appeal Instruction No. 14.
Travelers’ challenge fails.

       Third, the district court did not err by omitting a faulty workmanship
instruction. Courts are “required to instruct the jury on a defense only when
substantial evidence to support the defense has been presented.” State v. Hudson,

, 686 (Mo. Ct. App. 2022). Here, Travelers argues the district court
should have instructed the jury that any damages resulting from faulty workmanship,
rather than the fire, were not recoverable. But Travelers failed to present any
evidence that the claimed damages were caused by faulty workmanship. Indeed, to
the contrary, Travelers’ only support for a faulty workmanship instruction came
from the testimony of a single witness who, as the district court pointed out, “opined
that certain damages at The Metropolitan were caused by faulty workmanship but
could not testify that Maxus was claiming any of those damages in the lawsuit.”
Maxus Metropolitan, LLC v. Travelers Prop. Cas. Co. of Am., No. 20-CV-0095-
FJG, 

, at *11 (W.D. Mo. Jan. 3, 2024). Indeed, on appeal Travelers
points to no supporting evidence but instead argues that a faulty workmanship
instruction was warranted because Maxus’s evidence called for that inference on its
own. This is not what Missouri law requires, see Hudson, 643 S.W.3d at 686;
therefore, the district court did not abuse its discretion.




      5
        Instruction No. 14 read, in relevant part: “You must decide whether certain
facts have been proved by the greater weight of the evidence. A fact has been proved
by the greater weight of the evidence, if you find that it is more likely true than not
true.”
                                         -15-
                                 E. Attorneys’ Fees

        We next address Travelers’ contention that the district court abused its
discretion in calculating the attorneys’ fees award. Travelers argues that it should
be recalculated to (1) remove any fees related to pre-suit legal advice and (2) exclude
litigation expenses provided by paralegals and other litigation support team
members. In Missouri, “attorneys’ fees may be awarded when they are provided for
in a contract or when they are authorized statutorily.” Berry v. Volkswagen Grp. of
Am., Inc., 

 (Mo. 2013). Here, attorneys’ fees are authorized by
Missouri’s vexatious refusal to pay statute. 

 (2024) (“In
any action against any insurance company to recover the amount of any loss under
a policy,” the court or jury may allow “a reasonable attorney’s fee.”). We review
the grant of attorneys’ fees for abuse of discretion. Jet Midwest Int'l Co. v. Jet
Midwest Grp., LLC, 

 (8th Cir. 2024).

        First, Travelers contends that the authorizing statute’s reference to “[i]n any
action” limits attorneys’ fees to those accrued during litigation—and thereby
excludes any accrued before the suit was filed. In support, Travelers points out that,
as a penal statute, § 375.420 should be strictly construed. It also points to the
Missouri Supreme Court’s direction to trial judges to consider—among six other
factors—“the number of hours reasonably expended on the litigation.” Berry, 

. These arguments fail. Even strictly construed, § 375.420 places no
parameters for when attorneys’ fees may begin to accrue. Further, Missouri courts
are highly deferential to a trial court’s determination regarding attorneys’ fees: “The
trial court is deemed an expert at fashioning an award of attorneys’ fees and may do
so at its discretion.” Id. at 430. To prevail, Travelers “must show the trial court’s
decision was against the logic of the circumstances and so arbitrary and unreasonable
as to shock one’s sense of justice.” See id. at 431. Awarding attorneys’ fees that
accrued before a suit was filed does not shock one’s sense of justice—especially
considering the jury found Travelers liable for vexatious refusal to pay because of
its actions during that period. See Ray Haluch Gravel Co. v. Cent. Pension Fund of
Int’l Union of Operating Eng’rs & Participating Emps., 

 (2014)
                                         -16-
(“The fact that some of the claimed fees accrued before the complaint was filed is
inconsequential.”).

       Second, Travelers contends that the award should be reduced because
§ 375.420’s “reasonable attorney’s fee” does not include paralegal and other non-
lawyer fees. However, the Missouri Supreme Court has held that “reasonable
attorney fees” include “reasonably incurred, out-of-pocket litigation expenses that
would normally be charged to a fee-paying client.” Wilson v. City of Kansas City,

, 897 (Mo. 2020). Paralegal fees and litigation support personnel
fees usually fall into this category. See Missouri v. Jenkins, 

 (1989)
(finding “self-evident” that the work of paralegals and other litigation support staff
should be considered part of a “reasonable attorney’s fee”). The trial court did not
abuse its discretion when calculating the attorneys’ fees.

                              F. Prejudgment Interest

       We finally address Travelers’ contention that the district court erred when it
awarded prejudgment interest to Maxus. Missouri law provides that a party with an
outstanding account is entitled to prejudgment interest so long as it has made a
definite demand for payment and “the amount owed is liquidated or readily
ascertainable.” Child. Int’l v. Ammon Painting Co., 

 (Mo. Ct.
App. 2006); see also 

 (2024). “Awards of prejudgment
interest are not discretionary; if the statute applies, the court must award
prejudgment interest.” Child. Int’l, 

. Travelers asserts the
prejudgment interest award should be reversed because: (1) Maxus failed to prove it
made definite demands supporting its calculation, (2) the amount owed was not
readily ascertainable before trial, and (3) a good faith dispute existed as to whether
Travelers was liable. We reverse in part, finding that the district court properly
awarded prejudgment interest but that it erred when it calculated the amount of
interest based on the dates Maxus paid the invoices without considering the dates
Maxus demanded payment from Travelers.


                                         -17-
       First, Travelers argues that the district court erred when it calculated the
prejudgment interest beginning thirty days after Maxus paid its contractors’
invoices, rather than when Maxus “demanded” payment from Travelers. Missouri
law provides that prejudgment interest accrues on unpaid accounts “after they
become due and demand of payment is made.” 

 (2024).
The demand must be “definite as to both time and amount.” Child. Int’l, 

. Here, therefore, the prejudgment interest calculation depends on the date
Maxus “demanded” payment from Travelers. Maxus asserts that it demanded
payment the very day of the fire. But it would have been impossible to reasonably
ascertain the amount of damage at that time. And, indeed, the district court did not
calculate prejudgment interest based on when the damage occurred but rather based
on when Maxus paid each invoice—in other words, after the amount due had become
“readily ascertainable.” See Columbia Mut. Ins. Co. v. Long, 

(Mo. Ct. App. 2008). The record is unclear as to when Maxus forwarded the invoices
to Travelers. Missouri law does not allow interest to be charged on an account until
payment for it has been demanded. 

 (2024). If Maxus
delayed in forwarding invoices to Travelers, then the prejudgment interest
calculation must be based on the date each invoice was forwarded, and thus
demanded, not based on the date each invoice was paid by Maxus. Therefore, further
fact finding is necessary to determine when Maxus forwarded the invoices to
Travelers. Then, if the facts require, the amount of prejudgment interest must be
recalculated based on the dates Maxus demanded payment from Travelers rather
than the dates Maxus paid the invoices.

        Second, Travelers argues that prejudgment interest was improperly awarded
because the damages were not “liquidated” before trial, but rather required judgment
calls to determine which invoices were related to fire damage and which were caused
by construction defects. This argument fails. Damages are considered “liquidated”
once they have become due and are either fixed and determined or are “readily
ascertainable by computation or a recognized standard.” Long, 

.
“An exact calculation of damages need not be presented in order for the claim to be
considered liquidated.” Comens v. SSM St. Charles Clinic Med. Grp., Inc., 335
                                       -18-
S.W.3d 76, 82 (Mo. Ct. App. 2011). Even when the parties dispute the value or
proper computation of damages, damages may still be ascertainable. 

 Here,
damages were readily ascertainable at the time each invoice was issued. Like in
Long, “[f]rom the date that [Maxus] reported [its] loss, [Travelers] was in a position
to conduct a full investigation into that loss. Indeed, [Maxus] repeatedly asked that
[Travelers] do so.” Long, 

. This holds true for the lost business
income as well as the remediation damages, because it was readily computable under
the policy. While Missouri generally does not allow prejudgment interest on lost
profits, an exception exists when those lost profits are based on a predetermined
contractual amount. See Invs. Title Co. v. Chicago Title Ins. Co., 

 (Mo. Ct. App. 1998). The lost business income award here is one such
predetermined contractual amount, as the policy lays out precisely how the “business
interruption” expenses should be calculated. Indeed, Travelers does not dispute the
formulas and methods used to determine the business interruption expense. And,
contrary to the dissent’s assertion, Travelers was fully aware of what it owed. Maxus
provided proof of loss for its business income claim in August 2019, and Travelers
knew the total amount requested since at least October 2020. Damages were
liquidated.

       Third, Travelers argues that the district court erred in awarding prejudgment
interest because a good faith dispute existed as to whether it was liable for the
remediation damages. This argument fails outright under Missouri law: “The mere
fact that a party denies liability or defends a claim against him or her, or even the
existence of a bona fide dispute as to the amount of the indebtedness, does not
preclude recovery of interest . . . .” Comens, 335 S.W.3d at 82 (citation modified).

       Altogether, the district court did not err in awarding prejudgment interest but
erred by calculating the interest based on the invoice payment dates rather than based
on the dates payments were demanded. Accordingly, we vacate the prejudgment
interest award and remand for recalculation.



                                        -19-
                                   III. Conclusion

       For the foregoing reasons, we affirm the district court’s denial of Travelers’
motions for judgment as a matter of law and for a new trial as well as its grant of
attorneys’ fees. We vacate its grant of prejudgment interest and remand for
recalculation based on further fact finding.

ARNOLD, Circuit Judge, concurring in part and dissenting in part.

       I concur in the court’s explanation for affirming the judgment on Maxus’s
water damage claim and in the court’s decision to vacate the prejudgment interest
award that Maxus received, but I otherwise dissent. Maxus may well have spent over
fifteen million dollars cleaning the combustion byproducts that the parties
generically call soot out of the first four buildings, or “phases,” of the Metropolitan
apartment complex. But the record does not support the jury’s finding that this soot
caused over fifteen million dollars in costs covered by Maxus’s insurance policy
with Travelers. What it reveals, instead, is less than three thousand dollars of covered
soot damage to a single access control system in those phases. I would therefore
reverse the district court’s judgment on the Phase-One-through-Four soot damage
claim except the part of it attributable to the access control system damage. I would
vacate the district court’s judgment on Maxus’s claim that Travelers vexatiously
refused to pay under the policy, which depends on the soot damage claim. And in
vacating the prejudgment interest award, I would instruct the district court that
prejudgment interest could not accrue on Maxus’s business interruption damages
because they are either speculative or entirely unproven.

      Start with soot damage in Phases One through Four. Maxus’s insurance policy
only covered “direct physical loss of or damage to” the Metropolitan. Under
Missouri law, which governs the parties’ dispute, “this definition of loss requires
some physicality to the loss or damage of property—e.g., a physical alteration,
physical contamination, or physical destruction.” See K.C. Hopps, Ltd. v. Cincinnati


                                         -20-
Ins. Co., 

 (8th Cir. 2023); see also BBX Cap. Corp. v. Scottsdale
Ins. Co., 

, 603–04 (Mo. Ct. App. 2025).

        Soot in Phases One through Four caused physical alteration or destruction of
property, but it was not nearly on the order of fifteen million dollars. Some soot
infiltrated and damaged the wiring of an access control system in one of those
phases. That cost less than three thousand dollars to repair or replace. Neither the
court nor the parties have identified evidence that soot caused uncompensated
damage to Phases One through Four by physically altering or destroying any other
property.

      Nor is there evidence that soot damaged those phases by physically
contaminating them. The court and Maxus cite nothing more than evidence that soot
was present in Phases One through Four and that it can be a hazardous substance.
But there is no evidence that soot actually impaired the function of Phases One
through Four, much less made them “unusable or uninhabitable” as the court holds
that Maxus’s policy requires.

       Consider the evidence the court cites that a microscopist found “moderate” or
“significant” concentrations of soot in some parts of Phases One through Four.
Troubling as that sounds, there is no indication that it had any effect on the usability
of the phases because that was not what the microscopist was measuring. He was
measuring relative to background soot concentration, not relative to safe soot
concentration. So labeling a concentration moderate just meant that “something
[had] come in,” apart from background soot sources, that was “out of the ordinary.”
And labeling a concentration significant meant that there was likely “a real
significant source or sources,” in addition to background sources, “that [was]
contributing to” the concentration. In applying these labels, the microscopist was not
opining that the soot concentrations in Phases One through Four made them unusable
in any degree. The only testimony on that score was another expert’s opinion that
there was “no evidence indicating a risk” to tenants in those phases “from fire-related
residue.”
                                         -21-
       That one of Maxus’s consultants reported the soot accumulation in Phases
One through Four to Maxus does not suggest anything to the contrary. While the
consultant had an ethical duty to report hazardous conditions to Maxus, hazardous
conditions are not what he reported. He testified that he notified Maxus of “the
potential for” hazardous soot conditions in Phases One through Four. Assuming that
he was qualified to evaluate the hazards of soot, all this report shows is that the soot
in those phases could be hazardous. It was not evidence that the soot was actually
hazardous, nor was it evidence that any soot hazard was severe enough to impair the
function of the phases or render them unusable or uninhabitable.

       The same is true of the consultant’s testimony that Maxus cleaned soot from
Phases One through Four in accordance with several national standards. The record
does not reveal whether these were standards for remediating soot accumulations
sufficient to impair the function of a building. So even if Maxus followed the
standards because it needed to do so, and not out of an abundance of caution, its
adherence to them does not show that soot physically contaminated those phases.

       The other parts of the record that Maxus cites do not fill the evidentiary gap,
and even the court does not rely on them. For the most part, Maxus piles up
additional evidence that it found soot in Phases One through Four, that soot can be
dangerous, and that it cleaned soot from those phases. But none of this matters
because all of it is subject to the same limitation as the microscopist’s measurements
and the consultant’s report and testimony: it says nothing about whether
accumulation of soot in the phases impaired their function.

      The remaining evidence Maxus cobbles together is even less relevant.
Evidence that Travelers covered soot damage to Phase Five does not, despite
Maxus’s arguments to the contrary, make it any more likely that there was covered
soot damage to Phases One through Four. The soot accumulation in Phase Five was
greater than the accumulation in Phases One through Four.



                                         -22-
      And evidence that there are no health-based standards or exposure limits for
soot on surfaces and no fixed numerical concentrations of soot consistently
described as contamination or damage does not show that the accumulation in Phases
One through Four impaired those phases’ function. No one would say that eating a
small number of bananas is hazardous just because there is no accepted limit for
consumption of that radioactive fruit; if you are not eating hundreds of millions of
bananas, the risk that the radiation will kill you is not worth mentioning. See Joe
Schwarcz, Is It True that Bananas Are Radioactive?, Off. for Sci. & Soc’y, McGill
Univ. (Mar. 15, 2018), https://perma.cc/8XC2-F8Q6. Much the same goes for soot.
The absence of standards establishing when soot is hazardous, or consistently
hazardous, means only that Maxus could not trot out such standards to establish that
the soot in Phases One through Four was hazardous enough to make them less
functional. Maxus’s burden to prove that soot caused physical loss of or damage to
property in Phases One through Four remained.

       Since Maxus largely failed to carry that burden, I would substantially reverse
the district court’s judgment on Maxus’s Phase-One-through-Four soot damage
claim. All I would affirm in that judgment is the part that reflects the soot damage
to the access control system in those phases.

      Reversing almost all of the judgment on the Phase-One-through-Four soot
damage claim would require the vacatur of the judgment on Maxus’s vexatious
refusal claim. The latter judgment included both a penalty fixed by the jury and an
award of attorneys’ fees fixed by the district court, and both were contingent on the
judgment on the soot damage claim. So both need a fresh look to determine whether
they are appropriate despite the infirmities in the soot damage judgment.

      The need for another look at the penalty is apparent from the face of the jury’s
verdict. The jury set the penalty as a percentage of Maxus’s recovery on its claims
under the insurance policy, including the Phase-One-through-Four soot damage
claim. See 

. This equaled twenty percent of the first fifteen
hundred dollars of the recovery, plus two percent of the rest of the recovery. But if
                                        -23-
the jury had known that Travelers was not obliged to cover most of the Phase-One-
through-Four soot damage, it likely would have adjusted the percentage. It may, in
fact, have found that Travelers did not act vexatiously at all and declined to impose
any penalty. The evidence the court identifies that Travelers vexatiously refused to
pay a claim pertains only to Travelers’s handling of the Phase-One-through-Four
soot damage claim, and the same is true of nearly all the additional evidence that
Maxus identifies. So the prudent course would be to vacate the current penalty and
let a jury consider a new one with the understanding that Travelers was entitled to
deny almost all of that claim. Cf. Robertson Oil Co. v. Phillips Petroleum Co., 

 (8th Cir. 1989).

       The attorneys’ fees award likewise merits reconsideration. If a new jury finds
that Travelers did not act vexatiously, then the award cannot stand because there is
no basis for it. The authorization for the award came from the statute permitting an
insured to recover attorneys’ fees if its insurer vexatiously refuses to pay a claim.
See 

; see also Dean v. Olibas, 

, 1006 & n.5
(8th Cir. 1997). But even if it were certain that a new jury would find that Travelers
behaved vexatiously, it would still be wise to remand to the district court to
reevaluate the magnitude of the fees that Maxus should recover. The district court
expressly relied on “the 100% successful result achieved by” Maxus at trial as
support for its award. Since the evidence did not support that result, the district court
might well reduce the fees it allowed if the issue came before it again. See Chavez-
Lavagnino v. Motivation Educ. Training, Inc., 

 (8th Cir. 2014).

       Travelers would have us apply similar reasoning to the business interruption
damages that the jury awarded to Maxus, but that would be a mistake. Though it is
true that the jury’s misunderstanding about coverage of Phase-One-through-Four
soot damage might have affected the award, it might not have, and Travelers is
responsible for the uncertainty.

       The verdict form that the jury used had a single blank for the jury to fill with
the total business interruption damages that Maxus would recover. Among other
                                          -24-
things, that total was supposed to include covered business interruption damages
from soot accumulation in Phases One through Four, which led Maxus to evacuate
tenants, and from fire damage to Phases Five and Six, which led to repairs and
reconstruction before tenants were admitted. And coverage, again, extended only to
the consequences of “direct physical loss of or damage to” the Metropolitan. Maxus,
recall, almost entirely failed to prove that soot caused any such loss of or damage to
Phases One through Four, and it certainly proved less than what was necessary to
warrant the evacuation. But recall also that the jury wrongly held Maxus liable for
extensive non-business-interruption damage purportedly caused by soot in Phases
One through Four. So how can we tell whether it topped up the total business
interruption award with unsupported damages it attributed to the soot in those
phases? There was, after all, evidence that business interruption damages attributable
to the other phases could support the whole award. In a typical case, the only option
would be to remand for a new trial to supply the answer. See Friedman & Friedman,
Ltd. v. Tim McCandless, Inc., 

 (8th Cir. 2010).

       But in this case, there is no need to ask the question in the first place because
there is a catch: Travelers proposed the single-blank verdict form. A party cannot be
heard to complain when a district court gives it the verdict form it requested.
Travelers created a risk of confusion when it invited the jury to aggregate different
business interruption damages, and it must live with the results. See Hoechst
Celanese Corp. v. BP Chems. Ltd., 

 (Fed. Cir. 1996).

       That brings me to the last part of the district court’s judgment that is
intertwined with the award of unproven Phase-One-through-Four soot damages. The
district court’s prejudgment interest award includes some interest accruing on those
damages, which is reason enough to vacate it in part. But the court is right to vacate
the award in full because it has another, broader flaw. As the court explains, the
district court generally allowed interest to accrue on claimed damages before Maxus
demanded that Travelers pay the damages, and Missouri law prohibits that. Under
the governing Missouri statute, interest accrues “for all moneys after they become
due and payable, on written contracts, and on accounts after they become due and
                                         -25-
demand of payment is made.” See 

. It is not self-evident
that sums owed under an insurance policy are “accounts” whose payment an insured
must demand rather than moneys due and payable under a written contract. See
Hocker Oil Co. v. Barker-Phillips-Jackson, Inc., 

, 521 n.8 (Mo. Ct.
App. 1999). But our precedent teaches that “interest upon a claim against an insurer’s
contractual obligation runs from the date of the demand made by the insured, unless
otherwise specified.” U.S. Fid. & Guar. Co. v. Empire State Bank, 

,
369 (8th Cir. 1971). Since no such specification appears in the parties’ dealings here,
the district court violated that principle by allowing pre-demand interest to accrue.

       I part ways with the court’s approach to prejudgment interest, however, to the
extent that the court blesses a new prejudgment interest award calculated by merely
changing the initial interest accrual date or dates. It is not just that some of the Phase-
One-through-Four soot damages on which such interest would accrue lack support
in the record. The court also approves an award of interest on Maxus’s business
interruption damages, and that award would be unduly speculative even if the
damages were unrelated to the soot in the first four phases.

         Under the statute that controls here, interest generally accrues on a claim only
if it is liquidated, meaning that it is “fixed and determined or readily determinable.”
See Macheca Transp. Co. v. Phila. Indem. Ins. Co., 

 (8th Cir.
2013). This protects parties who are unaware of the amount they owe. See 

 And
we have observed, in dictum, that an insurance “claim for lost business income is
very similar to a claim for lost profits,” see 

, which is unliquidated
“because lost profits are inherently counterfactual, seeking damages for what might
have hypothetically occurred.” See Penzel Constr. Co. v. Jackson R-2 Sch. Dist., 

, 137 (Mo. Ct. App. 2021).

      Whatever the limits of this analogy, it is persuasive when it comes to Maxus’s
business interruption claim. If the business interruption damages Maxus recovered
did not reflect the lost income from evacuating Phases One through Four to clean
out soot, which Travelers had no obligation to cover, then they reflected lost income
                                           -26-
from the other phases, which Maxus had not even finished building. Projecting
income from hypothetical tenants at properties still under construction is precisely
the sort of assumption-heavy, counterfactual exercise that a typical lost profits claim
requires and that a defendant is not expected to treat as a good estimate of what it
owes. See Bailey v. Hawthorn Bank, 

 (Mo. Ct. App. 2012).
The case the court cites as authority for allowing prejudgment interest on such
projected income held, in fact, that prejudgment interest could not accrue on the
profits that the plaintiff anticipated but “failed to realize.” See Invs. Title Co. v. Chi.
Title Ins. Co., 

 (Mo. Ct. App. 1998). So too here.

        The rule that a plaintiff may recover prejudgment interest on contractually
predetermined lost profits, if such a rule exists, does not extend to the circumstances
before us. The opinion in the cited case, from which the court derives the rule,
discussed predetermination only in mentioning an agreement to split a
“predetermined share” of profits as a fact distinguishing Schmidt v. Morival Farms,
a case in which the Missouri Supreme Court permitted prejudgment interest on lost
profits. See 

 at 538–39. The Missouri Supreme Court’s own opinion reveals that
its decision turned on the fact that the parties before it, who had agreed to share the
profits of a farm in fixed percentages, had access to the income and expense figures
used to calculate the profits, discussed them before interest accrued, and largely
agreed on them. See Schmidt v. Morival Farms, 

 (Mo. 1951).
Together, these precedents suggest at most that a defendant may be liable for
prejudgment interest on lost profits under a contract if the contract tells the parties
how to calculate the profits and the components of that calculation are facts the
defendant could readily ascertain. But they do not suggest that Travelers was liable
for prejudgment interest on Maxus’s hypothetical estimate of its lost income.
Travelers agreed to cover Maxus’s business interruption losses; it did not agree to
the counterfactual assumptions underlying that estimate. It had no more notice of its
total liability than a buyer who repudiates a minimum purchase agreement and thus
knows that it must compensate its seller for lost profits on unpurchased items but
does not know the extent of the profits. And such a buyer has no obligation to pay


                                           -27-
prejudgment interest on lost profits. See Scullin Steel Co. v. PACCAR, Inc., 

 (Mo. Ct. App. 1986).

       That leaves one loose end: Travelers’s argument that improper jury
instructions tainted Maxus’s recovery of non-business-interruption soot damages to
Phases One through Four. After reducing those damages to the amount that Maxus
sufficiently proved, that argument loses any heft it might have. The reduced damages
covered the cost of repairing or replacing the soot-damaged access control system,
and the challenged instructions were not responsible for Maxus’s recovery of that
cost. That recovery occurred because Maxus offered testimony that soot caused a
quantified amount of physical damage to the access control system and Travelers
did not offer contrary evidence. Even on appeal, Travelers does not seriously dispute
that Maxus’s policy required it to cover the quantified damage. Were the jury
instructed, as Travelers insists that it should have been, that Maxus had the burden
of proof, that the mere presence of soot in Phases One through Four was not covered
damage, and that certain damage caused by faulty workmanship was not covered
either, the jury almost certainly would have still awarded Maxus the same amount
for the quantified damage to the access control system. There is no sense vacating
the current award just to reach an identical outcome. Cf. K.C. Hopps, 

; Beshears v. Asbill, 

 (8th Cir. 1991).

       I would therefore affirm the award of damages for repair or replacement of
the access control system, as well as the judgment on Maxus’s Phase-One-through-
Four water damage claim. But I would reverse the rest of the judgment on Maxus’s
Phase-One-through-Four soot damage claim, vacate the intertwined judgment on
Maxus’s vexatious refusal claim, and vacate Maxus’s prejudgment interest award
with instructions not to allow interest on business interruption damages.
                        ______________________________




                                        -28-