784 N.E.2d 566 (2003)
INS INVESTIGATIONS BUREAU, INC., Vernon Large, and Richard Murphy, Appellants-Defendants,
v.
Lester L. LEE, William R. Lee, Cubeco, Inc., and Lees Inns of America, Inc., as Assignees of the rights of The Home Indemnity Co., Appellees-Plaintiffs.
No. 40A04-0108-CV-364.
Court of Appeals of Indiana.
March 10, 2003.
*570 Karl L. Mulvaney, Nana Quay-Smith, Candace L. Sage, Bingham McHale LLP, James W. Riley, Jr., Mary K. Reeder, Riley Bennett & Egloff, LLP, Indianapolis, IN, Attorneys for Appellants.
Corinne R. Finnerty, McConnell & Finnerty, North Vernon, IN, Attorney for Appellees. *567 *568

*569 OPINION
KIRSCH, Judge.
INS Investigations Bureau, Inc., Vernon Large, and Richard Murphy (collectively, "INS") appeal a jury verdict that awarded *571 Lester L. Lee ("Lester"), William R. Lee ("Bill"), Cubeco, Inc. ("Cubeco"), and Lees Inns of America ("Lees Inns"), as assignees of the rights of The Home Indemnity Co. ("Home Indemnity"), $2,303,601 in compensatory damages for a breach of contract action, $2,546,404 in compensatory damages for a tort action, and $4,600,000 in punitive damages. The court's judgment also awarded the Lees the costs of the trial court action.
On appeal, INS raises a number of issues, which we consolidate, restate, and reorder as follows:
I. Whether the negligence claim raised by the Lees, as assignees of Home Indemnity's rights, is barred by the statute of limitations because Home Indemnity knew or should have known more than two years before this action was brought that it was injured by INS.
II. Whether the Lees, as assignees of Home Indemnity's rights, raise a claim of indemnity against INS that is barred both by Home Indemnity's voluntary payment to settle the federal litigation that arose out of the denial of the Lees' fire claim and because Home Indemnity's injury was due, in part, to its own negligent actions.
III. Whether the trial court erred in allowing the jury to return a verdict on the contract and tort claims, which arose from the same set of facts and resulted in a single injury.
IV. Whether the jury erred in concluding that INS's investigation report was the proximate cause of Home Indemnity's losses.
V. Whether there was sufficient evidence to support an award of punitive damages.
We affirm in part and reverse in part.

FACTS AND PROCEDURAL HISTORY[1]
Lester and Bill are the founders and majority stockholders of Lees Inns. Lees Inns builds and operates limited-service hotels using modular units that in 1992 were constructed at Cubeco, a wholly owned subsidiary of Lees Inns. The Cubeco plant, located in Scipio, Indiana, was owned by Lester and Bill individually.
Home Indemnity insured the plant and its contents for approximately $1.4 million. The insurance policy contained an "arson defense clause," which permitted Home Indemnity to deny a claim if the Lees or someone at their direction committed arson at the Cubeco plant, but required Home Indemnity to pay the claim if someone other than the Lees committed the arson. Appellants' Appendix at 677.
On January 19, 1992, the Cubeco plant was partially destroyed by fire. Two days after the fire, Home Indemnity's adjuster, Richard Clasen, visited the scene and concluded that the fire looked suspicious and required further investigation as to its origin. By telephone, Clasen retained INS to perform the investigation, and INS proceeded without the benefit of a written contract. INS was instructed to report its findings to Michael Brown, an attorney with the Indianapolis law firm of Kightlinger and Gray, who had been hired by Home Indemnity in connection with the investigation.
*572 INS immediately began the fire investigation under the direction of its chief investigator, Vernon Large. Richard Murphy, who worked for INS until June of 1997, was also involved in the investigation. At first, INS's investigation was limited to determining the cause of the fire. Later, Home Indemnity expanded INS's assignment "to include a `full investigation' with background information on the insureds." INS Investigations Bureau, Inc. v. Lee, 709 N.E.2d 736, 738 (Ind.Ct.App. 1999), trans. denied. Based upon his investigation, "Large concluded that the fire was intentionally set." Id.
During the summer of 1992, Home Indemnity pursued an independent investigation of the Lees' financial condition as a possible motive for arson. Id. In connection with this investigation, Home Indemnity hired the accounting firm of Campos & Stratis, which concluded, "the insureds were under severe financial stress, that the [Cubeco] building was on unproductive property with lease payments of $180,000 per year, and that the insureds had a substantial investment in an inventory of materials that depreciated in value." INS Investigations Bureau, 709 N.E.2d at 738; see Appellants' Brief at 29. The accountants told Brown that the Cubeco building was a detriment to Cubeco's ability to operate. Appellants' Brief at 29. "In short, the fire was a financial benefit to the Lees." Appellants' Brief at 30.
In the meantime, the Lees hired their own investigator, John Yust, and their own forensic engineer, William Hoffman. After investigating the fire, both of these experts concluded that the fire was started in an electric furnace that lacked an air filter. It was their theory that sawdust from the cabinet-making operation blocked the airflow to the furnace, which, in turn, caused the furnace elements to overheat and ignite the sawdust.
Brown, Clasen, and three other adjusters for Home Indemnity determined that the Lees' claim should be denied. INS Investigations Bureau, 709 N.E.2d at 738. The adjusters did not claim any particular expertise in fire investigation, but based their decision upon discussions of various reports. Id. In a letter dated November 25, 1992, Clasen informed the Lees that Home Indemnity denied their claim on the following grounds:
"[T]he fire was attributable to an intentional act by someone in authority and responsible for the insureds, that false or misleading information was provided by representatives of the insureds, and that the insureds refused to 1) provide material information regarding financial records of affiliates, and 2) allow contact with a lender-investor in the business."
Id.
On December 29, 1992, the Lees filed suit in Jennings Circuit Court against Home Indemnity. In the complaint, the Lees claimed they were entitled to the $1.4 million insurance policy coverage, consequential damages for Home Indemnity's breach of the contract, and punitive damages because Home Indemnity acted oppressively and in bad faith in denying their claim. On February 1, 1993, Home Indemnity removed the case to federal court on the basis of diversity jurisdiction and subsequently moved for summary judgment. Judge Hugh Dillin denied the motion on December 15, 1994. Appellants' Appendix at 517-25.
In January of 1995, on the first day of trial, the federal suit was settled when Home Indemnity agreed to pay the Lees $3.5 million. As part of the settlement, Home Indemnity assigned any claims it had against INS to the Lees and also gave the Lees a letter apologizing for its conduct and that of its agents. Trial Exhibits, Vol. 18, Plaintiffs' Exhibits 21-22.
*573 On July 7, 1995, the Lees instituted this action. Acting pursuant to their assigned rights, the Lees sued INS alleging that the fire investigation performed by INS and its employees, Large and Murphy, caused Home Indemnity to erroneously deny the Lees coverage. The complaint included the following three counts: (1) that INS breached its contract with Home Indemnity by failing to perform its obligations in a skillful, careful, diligent, and workmanlike manner, which caused the denial of the Lees' claim and a subsequent settlement greatly in excess of the policy limits; (2) that INS and its employees owed Home Indemnity a duty of care to perform services in a skillful, careful, diligent, and workmanlike manner, and that INS's breach of that duty was a proximate cause of the erroneous denial of the Lees' claim and the subsequent litigation; and (3) that INS and its employees acted fraudulently, oppressively, maliciously, and outrageously toward Home Indemnity and the Lees and were thus liable for punitive damages. Appellants' Appendix at 33-41.
On December 22, 1997, INS moved for summary judgment. On May 18, 1998, after "review[ing] the extensive briefs ... and having heard argument," the trial court denied INS's motion. Appellants' Appendix at 608-09. INS sought an interlocutory appeal, which the trial court granted. On appeal, INS argued that summary judgment was warranted on the Lees' claim because: (1) Home Indemnity could not validly assign its claim to the Lees; and (2) the assigned claim was properly characterized as a negligence action, and the applicable two-year statute of limitations had run. INS Investigations Bureau, 709 N.E.2d at 737. Finding that Home Indemnity's claim was assignable and that it was a question of fact whether the statute of limitations had run on the Lees' claim, our court affirmed the trial court's denial of summary judgment. Id. at 744.
On February 22, 2001, after a three-week trial, the jury rendered three verdicts in favor of the Lees and ordered INS to pay the following: (1) $2,303,601 in compensatory damages on Count I's contract claim; (2) $2,546,404 in compensatory damages on Count II's negligence claim;[2] and (3) $4,600,000 in punitive damages under Count III. Appellants' Appendix at 27, 29, 31. The trial court entered judgment on all three verdicts on February 26, 2001. Appellants' Appendix at 25-26.
INS objected to the Lees' request for judgment on all three verdicts because Count I and Count II were alternate bases of relief, as both arose from the same alleged conduct and resulted in the same alleged damages. Appellants' Appendix at 856. On March 28, 2001, INS filed a motion to correct errors contending, inter alia, that: (1) INS did not cause Home Indemnity's damages; (2) the Lees' indemnity claims were barred because of Home Indemnity's comparative fault; (3) the negligence claim was barred by the statute of limitations; (4) the punitive damage award was not supported by the evidence and was excessive in violation of Indiana and federal constitutional law; (5) the compensatory damage award was not supported by the evidence and was excessive;
*574 (6) the verdicts were inconsistent; and (7) the judgment constituted double recovery. Appellants' Appendix at 859-60.
The Lees opposed the motion to correct errors and, arguing that punitive damages were not excessive, the Lees sought discovery pertaining to INS's assets and its relationship to its financially sound parent corporation GAB. INS filed a motion for protective order claiming that GAB's financial information was irrelevant. The trial court granted the protective order as it related to the motion to correct errors. A hearing on the motion to correct errors was held on August 9, 2001, at which time the Lees tried, unsuccessfully, to present evidence of GAB's financial status. On September 4, 2001, the trial court denied INS's motion to correct errors without entering any findings. Appellants' Appendix at 32. INS now appeals.

DISCUSSION AND DECISION

I. Statute of Limitations
The Lees, as assignees of Home Indemnity's rights, filed the instant lawsuit on July 7, 1995. INS first contends that because the complaint sounds in negligence and Home Indemnity knew of or could have discovered INS's alleged wrongdoing before July 7, 1993, the suit is barred by the two-year statute of limitations, and the verdict cannot stand. The Lees respond that our decision in INS Investigations Bureau is "the law of the case" because INS previously raised this issue in its interlocutory appeal from the denial of summary judgment. Appellees' Brief at 25. We agree with the Lees.
Under the law of the case doctrine, an appellate court's determination of a legal issue is binding both on the trial court on remand and on the appellate court on a subsequent appeal, given the same case with substantially the same facts. Montgomery v. Trisler, 771 N.E.2d 1234, 1238 (Ind.Ct.App.2002), trans. denied (citing Humphreys v. Day, 735 N.E.2d 837, 841 (Ind.Ct.App.2000), trans. denied (2001)). All issues decided directly or implicitly in a prior decision are binding on all subsequent portions of the case. Montgomery, 771 N.E.2d at 1238. The doctrine merely expresses the practice of courts generally to refuse to reopen what has been decided and is based upon the sound policy that when an issue is once litigated and decided, that should be the end of the matter. Id.
In INS Investigations, our court affirmed the trial court's denial of summary judgment concluding that the determination of whether the statute of limitations had run in this case was a material issue of fact. INS Investigations, 709 N.E.2d at 743-44. In analyzing when a cause of action accrues under a statute of limitations, the critical time is "when the plaintiff knew or, in the exercise of ordinary diligence, could have discovered that an injury had been sustained as a result of the act of another." UNR-Rohn, Inc. v. Summit Bank, 687 N.E.2d 235, 240 (Ind. Ct.App.1997), trans. denied (1998). In light of the conflicting evidence presented to the trial court as to when Home Indemnity knew or should have known of its injury by INS, our court stated, "INS is requesting that this court examine conflicting evidence and inferences[;] ... summary judgment is not the appropriate means to resolve material issues of fact." INS Investigations, 709 N.E.2d at 743-44. The court thus found that it was the duty of the finder of fact to determine whether the complaint was timely filed and affirmed the denial of summary judgment. Id.
At trial, INS argued that the statute of limitations barred the Lees' recovery for negligence. The jury considered the evidence, *575 was instructed that the running of the statute of limitations was an affirmative defense, and yet found for the Lees.[3] To reach a verdict in the negligence claim, the jury had to find that the statute of limitations had not run. Under the law of the case, we are bound by our previous decision in INS Investigations that the timeliness of this action was a question of fact, and we will not disturb the finder-of-fact's conclusion that the Lees' claim was timely filed.
INS also states, without citation, "Because this tort claim is barred by the two-year statute of limitations, Home [Indemnity]'s claim for punitive damages is barred as well." Appellants' Brief at 58. Finding, as we do, that the negligence claim is not barred by the two-year statute of limitations, the punitive damages claim is likewise not barred.

II. Indemnity
INS asserts for the first time on appeal that the true nature of the Lees' claim is one for indemnity. Appellants' Brief at 43. Both parties agree that Home Indemnity had no contractual or statutory right to indemnification from INS. Indiana adheres to the general rule that in the absence of an express contractual or statutory right to indemnity, a party may bring an action for common law indemnification only if he is without fault. Mullen v. Cogdell, 643 N.E.2d 390, 400 (Ind.Ct.App. 1994), trans. denied (1995). INS argues that the Lees' claim for common law indemnification is defeated by their own guilty acts. The Lees counter that this is not a claim for indemnity and highlight the fact that neither the word "indemnity" nor "indemnify" appear in the complaint or other pleadings. Appellees' Brief at 30; Appellants' Appendix at 33-41.
As explained in 41 AM.JUR. 2d Indemnity § 1 (1995):
"Indemnity is a right which inures to one who discharges a duty owed by him, but which, as between himself and another, should have been discharged by the other.
The right to indemnity stands upon the principle that everyone is responsible for the consequences of his own negligence, and if another person has been compelled to pay the damages which ought to have been paid by the wrongdoer, they may be recovered from him. Indemnity requires full reimbursement, and transfers liability from the one who has been compelled to pay damages to *576 another who should bear the entire loss."
In this action, the Lees are pursuing the rights of Home Indemnity. Even so, they do not allege in their complaint that money paid to them by Home Indemnity under the settlement of the federal lawsuit should have been paid by INS. Instead, they assert that INS and its employees had a duty both under contract and as professional investigators to investigate the fire in a skillful, careful, diligent, and workmanlike manner, and that INS's failure to do so resulted in loss to Home Indemnity. Appellants' Appendix at 35-39.
Our supreme court has held that "[t]he right to indemnity may be implied at common law only in favor of one whose liability to a third person is solely derivative or constructive, and only as against one who has by his wrongful act caused such derivative or constructive liability to be imposed upon the indemnitee." Indianapolis Power & Light Co. v. Brad Snodgrass, Inc., 578 N.E.2d 669, 671 (Ind.1991); see Mullen, 643 N.E.2d at 400. Here, Home Indemnity's liability to the Lees was not solely derivative; instead, the liability arose, in part, pursuant to the insurance contract between the two parties.
Furthermore, an "obligation to indemnify does not arise until the party seeking indemnity suffers loss or incurs damages. This may occur when the party seeking indemnity 1) pays the underlying claim; 2) pays judgment on the underlying claim; or 3) tenders payment in settlement of the underlying claim." Essex Group, Inc. v. Nill, 594 N.E.2d 503, 507 (Ind.Ct. App.1992) (citing TLB Plastics Corp., Inc. v. Procter & Gamble Paper Prods. Co., 542 N.E.2d 1373, 1376 (Ind.Ct.App.1989), trans. dismissed). In their complaint, the Lees did not allege that Home Indemnity paid the federal court settlement and incurred a loss for which INS should indemnify. Likewise, INS, in its motion for summary judgment and at trial, argued that the Lees' claim was one sounding in negligence; no mention was made that the action was one for indemnification.
Home Indemnity assigned to the Lees every interest it had in claims against INS. As assignees, the Lees can sue INS using those theories Home Indemnity could have used to recover damages it incurred because of INS's actions. Here, the Lees chose to assert claims under tort and contract. Finding that this is not a claim for indemnity, we need not address INS's additional arguments that the claim is barred by Home Indemnity's wrongdoing or by its voluntary payment of the Lees' claim.

III. Double Recovery
INS next asserts that the trial court erred in awarding compensatory damages for claims of both negligence and breach of contract on the same facts and the same damages. The Lees counter that INS waived this issue of double recovery when it agreed to the verdict form that allowed the double award. We agree with INS.
INS and Home Indemnity entered into an oral contract under which INS would investigate the origin of the Lees' fire. Our courts have held that "`[i]n a contract for work, there is an implied duty to do the work skillfully, carefully, and in a workmanlike manner. Negligent failure to do so is a tort, as well as a breach of contract.'" Homer v. Burman, 743 N.E.2d 1144, 1147 (Ind.Ct.App.2001) (quoting Hagerman Const., Inc. v. Copeland, 697 N.E.2d 948, 958 (Ind.Ct.App.1998) (citations omitted), trans. denied (1999)); see 57A AM.JUR. 2d Negligence § 120 (1989 & Supp.2002) (same).
In Count I of their complaint, the Lees allege that INS breached its contract with *577 Home Indemnity when it failed to perform the contract in a "skillful, careful, diligent, and workmanlike manner resulting in substantial losses and damages to the Home Indemnity Company." Appellants' Appendix at 35-38. In Count II, the Lees allege that INS and its employees owed Home Indemnity a duty to investigate the fire in a "skillful, careful, diligent, and workmanlike manner" and that INS's breach of this duty constituted negligence. Appellants' Appendix at 38-39. Both the contract and negligence counts allege a breach of the same duty and rely on the same injury.
It was not error for the trial court to allow the parties to proceed under the two theories. Indiana law "allows a party to plead alternative and even inconsistent theories of recovery: `A pleading may ... state as many separate claims or defenses as the pleader has regardless of consistency and whether based on legal or equitable grounds.'" Cahoon v. Cummings, 734 N.E.2d 535, 542 (Ind.2000) (citing Ind. Trial Rule 8(E)(2)); see Foster v. Evergreen Healthcare, Inc., 716 N.E.2d 19, 28 (Ind.Ct.App.1999), trans. denied (2000) (a pleading may set forth two or more claims alternatively or hypothetically, either in one count or in separate counts).
Nevertheless, a party may not recover twice for the same wrong. Damages are awarded to compensate an injured party fairly and adequately for the loss sustained. Bader v. Johnson, 732 N.E.2d 1212, 1220 (Ind.2000). In negligence actions, the injured party is entitled to damages proximately caused by the tortfeasor's breach of duty. Id. A party injured by a breach of contract may recover the benefit of the bargain. Fowler v. Campbell, 612 N.E.2d 596, 603 (Ind.Ct. App.1993). The damages claimed for such a breach must be the natural, foreseeable and proximate consequence of the breach. Id. While an aggrieved party must be compensated, he or she should not be placed in any better position. Wiese-GMC, Inc. v. Wells, 626 N.E.2d 595, 597 (Ind.Ct.App. 1993), trans. denied (1994); see Potts v. Offutt, 481 N.E.2d 429, 434 (Ind.Ct.App. 1985); Downing v. Dial, 426 N.E.2d 416, 421 (Ind.Ct.App.1981).
The law disfavors a windfall or a double recovery. Curtis v. Clem, 689 N.E.2d 1261, 1265 (Ind.Ct.App.1997). Here, the jury verdict resulted in a recovery in both tort and contract, thus allowing a double recovery for a single wrong. See Kellogg v. City of Gary, 562 N.E.2d 685, 708 (Ind.1990). Because our supreme court has noted that double recovery "constitutes fundamental error which cannot be waived," id., the Lees' argument of waiver does not prevail. The Lees may not recover for both of these causes of action.
In determining which count to vacate, it is important to understand how an injury that arises in the context of a contract, can give rise to an action both in contract and tort. Generally, a breach of contract is not a tort.
"However, a contract may create a state of things which furnishes the occasion of a tort, so that negligent performance of a contract may give rise to an action in tort.... The relation which is essential to the existence of the duty to exercise care may arise through either an express or an implied contract.
As a general rule, there is implied in every contract for work or services a duty to perform it skillfully, carefully, diligently, and in a workmanlike manner, and a negligent failure to observe any of these conditions is a tort, as well as a breach of contract. Thus, a person who contracts to make repairs can be held liable for his negligence in doing the work. And one who contracts in a specialized professional capacity to provide *578 the design for a particular structure may be held to respond in damages for the foreseeable consequences of a failure to exercise reasonable care in the preparation of the design. In such cases, the contract is mere inducement creating the state of things which furnishes the occasion of the tort. In other words, the contract creates the relation out of which grows the duty to use care.
....
The prevailing rule appears to be that where there is a general duty, even though it arises from the relation created by, or from the terms of, a contract, and that duty is violated, either by negligent performance or negligent nonperformance, the breach of the duty may constitute actionable negligence."
57A AM.JUR. 2d Negligence §§ 119-21.
Although the Lees could raise a claim either in tort or contract, the essence of their claim is not that INS breached its contract by failing to complete and submit a fire investigation report; instead, they argue that in the role of professional fire investigators, INS and its employees had a duty to complete the investigation in the skillful and workmanlike manner required of other persons in that profession. Here, the Lees' claim that INS breached the standard of care created under the contract more closely resembles a claim for negligence. We therefore vacate the recovery of $2,303,601 for the contract claim and affirm the $2,546,404 recovery in tort.
INS further argues that because the jury's verdicts are inconsistent, our court should remand this case to the trial court to determine damages. We disagree. The $2,303,601 recovery in contract represented the damages, without pre-judgment interest, calculated by the Lees' expert, Bruce Jaffee, Associate Dean of the Kelley School of Business at Indiana University. Transcript, Vol. 13 at 2742-44. Likewise, the $2,546,404 tort recovery was composed of the same $2,303,601 in damages with the addition of $1,091,604 in prejudgment interest, id. at 2744, which sum was then multiplied by 75%, the amount of fault determined by the jury to be attributable to INS.
The difference between the two awards was the omission of the prejudgment interest on the contract claim. "[A]n award of prejudgment interest in a contract action is warranted if the amount of the claim rests upon a simple calculation and the terms of the contract make such a claim ascertainable." Noble Roman's, Inc. v. Ward, 760 N.E.2d 1132, 1140 (Ind.Ct. App.2002); Stephens v. Parkview Hosp., Inc., 745 N.E.2d 262, 266 (Ind.Ct.App. 2001). The award is considered proper when the trier of fact need not exercise its judgment to assess the amount of damages. Noble Roman's, 760 N.E.2d at 1140. Finally, an award of prejudgment interest is generally not considered a matter of discretion. Id.
Here, the undisputed evidence shows that INS stipulated to the amounts of the majority of the damages that the Lees requested. Appellants' Appendix at 683; Transcript, Vol. 13 at 2732. Furthermore, the Lees asserted, and INS did not object, that 8% is the proper amount of prejudgment interest. The trial court was not required to exercise any discretion in determining the prejudgment interest on the stipulated amount. Noble Roman's, 760 N.E.2d at 1141. The prejudgment interest, although omitted under the contract claim, was proper in this case for both claims. There is no need to remand the case for a determination of damages. The jury's decision on damages merely reflected the amounts admitted into evidence by Dean Jaffee. We therefore vacate the award of damages under the *579 Count I contract claim and affirm the award of $2,546,404 under the Count II negligence claim.

IV. Proximate Cause of Home Indemnity's Losses
INS next contends that the Lees cannot prove a reasonable connection between INS's conduct and Home Indemnity's alleged damages, that is, that INS's actions were the proximate cause of Home Indemnity's damages. The Lees counter that they presented substantial evidence that INS's wrongdoing caused Home Indemnity's damages and that proximate cause is therefore a question of fact for the jury.
To sustain an action for negligence the Lees must show: (1) that INS had a duty to conform its conduct to a standard of care arising from its relationship with Home Indemnity; (2) a breach of that duty; and (3) an injury proximately caused by the breach of that duty. Kincade v. MAC Corp., 773 N.E.2d 909, 911 (Ind.Ct. App.2002) (citing Hayden v. Paragon Steakhouse, 731 N.E.2d 456, 457 (Ind.Ct. App.2000)); P.T. Barnum's Nightclub v. Duhamell, 766 N.E.2d 729, 737 (Ind.Ct. App.2002), trans. denied (citing Zawacki v. U.S.X., 750 N.E.2d 410, 414 (Ind.Ct.App. 2001), trans. denied (2002)).
INS entered into an oral contract with Home Indemnity to investigate the fire at Cubeco. This contract created a duty for INS to complete its investigation in a skillful, careful, and workmanlike manner. See Homer, 743 N.E.2d at 1147 (citing Hagerman Constr., Inc., 697 N.E.2d at 958). In its brief, INS does not challenge that it had a duty to Home Indemnity nor does it challenge that it breached that duty. Instead, INS argues that the breach of duty was not the proximate cause of Home Indemnity's loss. More specifically, INS argues that its investigation of the fire, and subsequent report of arson, neither caused Home Indemnity to deny the claim, nor caused it to settle the federal lawsuit for almost $2.4 million more than the insurance policy limit.
Under Indiana law, a negligent defendant may be liable for a plaintiff's injury if his or her action is deemed to be a proximate cause of that injury. Control Techniques, Inc. v. Johnson, 762 N.E.2d 104, 108 (Ind.2002). Whether proximate cause exists is a question of foreseeability. Id. Our supreme court has said, "the issue is whether the injury `is a natural and probable consequence, which in the light of the circumstances, should have been foreseen or anticipated.'" Id. (quoting Bader, 732 N.E.2d at 1218).
The actor need not foresee the exact manner in which the harm occurs but must, in a general way, foresee the injurious consequences of his act or omission. Frye v. Am. Painting Co., 642 N.E.2d 995, 998 (Ind.Ct.App.1994) (citing Rauck v. Hawn, 564 N.E.2d 334, 339 (Ind. Ct.App.1990)). The determination of what is reasonably foreseeable is not judged by the subjective opinions of those involved, but is based upon the standard of due care in avoiding a result which might reasonably have been anticipated in the ordinary experience of men. Frye, 642 N.E.2d at 998 (citing Harper v. Guarantee Auto Stores, 533 N.E.2d 1258, 1264 (Ind.Ct.App. 1989), trans. denied). The injured party is entitled to recover all damages caused by the tortfeasor's breach of duty that are directly related to the wrong and arise without an intervening agency. Bolin v. Wingert, 764 N.E.2d 201, 207 (Ind.2002) (citing Erie Ins. Co. v. Hickman by Smith, 622 N.E.2d 515, 519 (Ind.1993)); Bader, 732 N.E.2d at 1220.
Evidence at trial that INS was negligent in completing its investigation included the *580 following: (1) only a few weeks after the Cubeco fire and approximately eight months before the completion of the investigation, INS investigator Large told Brown that the fire was caused by arson and that Bill was a potential suspect; (2) INS tried to influence the State Fire Marshall with false evidence; (3) INS implied that an innocent diesel fuel spill was part of an accelerant that started the fire; and (4) INS either suppressed or failed to consider evidence that was inconsistent with a finding of arson. Appellees' Brief at 35. The Lees alleged that this investigation was the proximate cause of their injuries because, but for the negligent determination of arson, Home Indemnity would not have denied the Lees' claim, would have had no reason to hire accountants or attorneys to defend the federal lawsuit, and would not have settled the federal lawsuit for an amount that exceeded the policy limit. Appellees' Brief at 36.
At trial, INS offered Proposed Final Jury Instruction No. 16 on proximate cause, which read as follows:
"In a negligence action, proximate cause is an essential element, and requires that there be a reasonable connection between the Defendants' alleged negligent conduct and the Plaintiffs' damages. Proximate cause requires, at minimum, that the harm would not have occurred but for the Defendants' conduct. Proximate cause does not mean approximate, it means the immediate, nearest, direct, next in order, and closest in causal connection. `Proximate cause' is that cause which produces the damage complained of and without which the result would not have occurred. That cause must lead in a natural and continuous sequence to the resulting damage [unbroken by any intervening cause]."
Appellants' Appendix at 702 (emphasis added).[4] The trial court gave the instruction as Final Jury Instruction No. 27; amending the instruction only by deleting the bracketed language, "unbroken by any intervening cause." Appellants' Appendix at 777. Neither party objected to the change. Appellants' Appendix at 743, 746-47.
On appeal, INS attacks the existence of proximate cause on two fronts. First, it highlights Brown's testimony that INS's actions did not impact Home Indemnity's decision to deny the Lees' claim, and concludes that the breach was therefore not the proximate cause of its damages. Appellants' Brief at 49, 50. Second, INS asserts that its liability is foreclosed because the accountants' analysis and the Lees' refusal to disclose certain financial information was a superseding cause. Appellants' Appendix at 50-51. We find these arguments unavailing.
First, INS's contention that proximate cause can be defeated on the basis of Brown's testimony, which was before the jury at trial, merely constitutes an invitation for this court to reweigh the evidence. Couchman v. Restoration Contractors, Inc., 743 N.E.2d 346, 348 (Ind.Ct.App. 2001). We may not accept this invitation. Deree v. All Am. Shipping Supplies, Inc., 718 N.E.2d 1214, 1217 (Ind.Ct.App.1999), trans. denied (2000); see King v. Clark, 709 N.E.2d 1043, 1048 (Ind.Ct.App.1999), trans. denied (our standard of review prohibits us from reweighing the evidence or judging the credibility of witnesses).
Likewise, INS's argument that its liability is foreclosed by the superseding *581 cause of the accountant's report and the Lees' failure to disclose certain financial information also fails. In Control Techniques, Inc. v. Johnson, 762 N.E.2d 104, 107 (Ind.2002), our supreme court described the doctrine of superseding or intervening cause as one that allows an original wrongdoer to be relieved of liability when the wrongdoer's negligent act or omission is followed by a subsequent negligent act or omission so remote in time that it breaks the chain of causation.[5] Here, INS's tendered instruction on proximate cause suggested the inclusion of language that proximate cause "must lead in a natural and continuous sequence to the resulting damage [unbroken by any intervening cause]." Appellants' Appendix at 702. The trial court gave the instruction, but omitted the bracketed language pertaining to intervening or superseding causation. INS did not object. INS's assertion on appeal that superseding causes preclude its actions from proximately causing Home Indemnity's injuries is an attempt to untimely raise an objection to the modified jury instruction. The issue is therefore waived on appeal. See Brown v. Conrad, 531 N.E.2d 1190, 1193 n. 2 (Ind.Ct.App. 1988) (failure to object to an instruction, waived the issue on appeal); Santini v. Consol. Rail Corp., 505 N.E.2d 832, 840 (Ind.Ct.App.1987) (when a party tenders an instruction that the trial court modifies and gives to the jury, failure to object to the modification or to the giving of the instruction waives any instructional error for appeal).
Waiver notwithstanding, a timely objection to this instruction would have led to the same result. In Control Techniques, Inc., our supreme court considered whether a trial court had committed reversible error in refusing a tendered jury instruction on the doctrine of superseding or intervening cause. Johnson, the plaintiff in the case, sustained serious burns to his arms and face while measuring the voltage of a circuit breaker at the LTV Steel Plant. Control Techniques designed and built the circuit breaker and Meade Electric installed it at the plant. At trial, Control Techniques argued that, under the doctrine of superseding causation, its liability was foreclosed by the negligence of Meade Electric in installing the breaker. Control Techniques tendered an instruction on superseding causation, which the trial court refused.
At the close of trial, the court gave the following instruction:
"`Proximate cause' is that cause which produces [the] injury complained of and without which the result would not have occurred. That cause must lead in a natural and continuous sequence to the resulting injury."
Control Techniques, 762 N.E.2d at 110. A jury awarded Johnson damages and allocated eighty percent liability to Meade Electric, fifteen percent liability to Johnson, and five percent to Control Techniques.
Control Techniques argued before our supreme court that it was error for the trial court to refuse the tendered instruction because Meade Electric's installation of the breaker was a superseding cause of the accident that foreclosed Control's liability. In affirming the trial court's judgment to exclude the tendered instruction, the court reasoned:
"[T]he doctrines of causation and foreseeability impose the same limitations on liability as the `superseding cause' doctrine. *582 Causation limits a negligent actor's liability to foreseeable consequences. A superseding cause is, by definition, one that is not reasonably foreseeable. As a result, the doctrine in today's world adds nothing to the requirement of foreseeability that is not already inherent in the requirement of causation."
Id. at 108. The court concluded that trial courts may properly elect to give an instruction on superseding causation "if they conclude it would aid the jury in determining liability. However, this call is better left to the discretion of the trial courts, as they are in the best position to determine whether an instruction on superseding cause is useful." Id. at 110.
Here, the trial court used its discretion and refused to give that portion of INS's tendered instruction pertaining to superseding causation. Instead, the court gave an instruction similar to both the pattern jury instruction and to the one given in Control Techniques. Had INS timely objected, the precedent of Control Techniques would have mandated we find that the instruction on proximate causation adequately covered the subject, and that the trial court did not abuse its discretion in omitting the tendered instruction on superseding causation.
Proximate cause is a question of fact for the jury. This jury heard weeks of testimony during which each party presented evidence as to whether INS's actions were the proximate cause of Home Indemnity's injury. With evidence that INS's investigation and arson determination could have caused Home Indemnity to incur financial loss, the issue of proximate cause was properly before the jury. We cannot say that this jury erred in finding that INS's negligent actions were the proximate cause of Home Indemnity's injury.

V. Sufficiency of Evidence for Punitive Damages
INS argues that the evidence does not support the award of punitive damages. The standard for determining if punitive damages were properly awarded is whether, considering only the probative evidence and the reasonable inferences supporting the judgment, a reasonable trier of fact could find by clear and convincing evidence that the defendant acted with malice, fraud, gross negligence or oppressiveness which was not the result of a mistake of fact or law, honest error of judgment, overzealousness, mere negligence, or other human failing. USA Life One Ins. Co. of Indiana v. Nuckolls, 682 N.E.2d 534, 541 (Ind.1997); Budget Car Sales v. Stott, 662 N.E.2d 638, 639 (Ind. 1996); Hickman, 622 N.E.2d at 520; Inlow v. Wilkerson, 774 N.E.2d 51, 57 (Ind. Ct.App.2002), trans. denied; Stroud v. Lints, 760 N.E.2d 1176, 1179 (Ind.Ct.App. 2002); N. Indiana Pub. Serv. Co. v. G.V.K. Corp., 713 N.E.2d 842, 849 (Ind.Ct.App. 1999), trans. denied (2000). Punitive damages may also be awarded upon a showing of willful and wanton misconduct. Stroud, 760 N.E.2d at 1179.
Punitive damages are those designed to punish the wrongdoer and to discourage him and others from similar conduct in the future. Budget Car Sales v. Stott, 656 N.E.2d 261, 265 (Ind.Ct.App. 1995), trans. denied by 662 N.E.2d 638 (Ind.1996). Because they are awarded in addition to damages that compensate for the specific injury, the injured party has already been awarded all that he is entitled to as a matter of law. Budget Car Sales, 656 N.E.2d at 265. Therefore, the sole issue is whether the defendant's conduct was so obdurate that he should be punished for the benefit of the general public. Id. Punitive damages are awarded *583 upon a showing of intentional conduct, which focuses on the defendant's state of mind. Bright v. Kuehl, 650 N.E.2d 311, 317 (Ind.Ct.App.1995). One such course of conduct is gross negligence, or the intentional failure to perform a duty in reckless disregard of the consequences to the life or property of another. N. Indiana Pub. Serv. Co. v. Sharp, 732 N.E.2d 848, 856 (Ind.Ct.App.2000), trans. denied (2001).
In Indiana Ins. Co. v. Plummer Power Mower & Tool Rental, Inc., 590 N.E.2d 1085, 1093-94 (Ind.Ct.App.1992), the insureds sued their insurer for denying their fire claim. The jury awarded compensatory and punitive damages. The insurer appealed, arguing that the evidence was insufficient to support the award of punitive damages.
The evidence adduced at trial showed that the insureds hired two experts to investigate the explosion and fire, both of whom concluded that the explosion and resulting fire were caused by a defective heater that allowed gas to escape into the air, which was ignited by the flame of a second heater. One of the experts concluded that apparently unconnected fires in other parts of the building were caused by "falldown" and swirling embers in the aftermath of the explosion.
The insurer hired its own investigator, who interviewed witnesses, inspected the burned building and its contents, and consulted with an expert in gas explosions. Ultimately, he issued a written report in which he concluded that the fire and explosion were caused intentionally and that at least two separate fires were set. The insurer also hired an engineer and expert in gas explosions who concluded that the heaters were not the cause of the explosion and concurred in the first expert's theory of causation. The investigator from the Indiana State Fire Marshall's office conducted an investigation and also concluded that the explosion and fires were intentional. Finally, the gas company's investigator concluded that there were a number of unconnected, intentionally set fires.
At the trial and on appeal, the insureds argued that they were entitled to punitive damages because the insurer's experts conducted a flawed investigation promoting a false theory of causation and resulting in unreasonable behavior. However, after reviewing the record, we concluded that there was no evidence that the investigations and conclusions of the four expert witnesses were unreasonable. Rather, the evidence showed at best that the insurer's experts were wrong. We concluded: "Evidence of reliance upon incorrect, but reasonable, theories is not sufficient to justify an award of punitive damages." Id. at 1094.
Similarly, in this case, the Lees' theory is that INS "fabricated an arson case against [the Lees]." Appellees' Brief at 42. The Lees contend that INS "repeatedly lied," "suppressed exculpatory evidence[,] and fabricated inculpatory evidence." Appellees' Brief at 43. At trial, the Lees presented evidence that their experts concluded that the cause of the fire was accidental. Their theory was that the fire began in an electric furnace when an accumulation of sawdust and debris on the heating coils ignited. The blower from the furnace then spread the fire throughout the mezzanine level of the building. Dripping, burning tar from the roof caused other unconnected areas of heavy burn. Also, the Lees presented expert testimony that INS's work on this investigation did not conform to prevailing professional standards.
However, John Walker, a forensic engineer specializing in the analysis of fires and explosions, testified that he believes that the cause of the Cubeco fire was *584 arson. He cited ten factors to support his opinion, many of which were the same factors cited by Large as aiding him in forming his opinion about the cause of the fire. Moreover, Large testified that he still believes that the cause of the fire was arson. Thomas Hinkle of the Indiana State Fire Marshall's Office testified that there were facts that would suggest arson and that he could not eliminate arson as the cause of fire. He testified that the fire's area of origin was undetermined and that he saw irregular burn patterns on the concrete floor, some of which were indicative of liquid accelerant. He further testified that he observed three unconnected areas of heavy burn: the mezzanine, the finishing area, and the carpet area. Home Indemnity's own experts, Carter Roberts and John Yust, testified that fire investigators can disagree in good faith about the cause of a fire even though both investigators are competent in their field.
The probative evidence does not establish clearly and convincingly that INS's conduct constituted malice, fraud, gross negligence, or oppressiveness which was not the result of a mistake of fact or law, honest error or judgment, overzealousness, mere negligence, or other human failing. Rather, the evidence discloses an imperfect investigation punctuated by misstatements, mistakes, and missteps that constituted a breach of INS's duty to Home Indemnity. However, proof that a tort was committed does not necessarily establish the right to punitive damages. USA Life One, 682 N.E.2d at 541. In the final analysis, this case involves a difference in reasonable, professional opinions about the cause and origin of the Cubeco fire. Because there is insufficient evidence that INS's actions were the result of anything more egregious than mere negligence, the imposition of punitive damages is not supported by law. The trial court erred in instructing the jury on punitive damages, and we reverse the portion of the judgment awarding punitive damages to the Lees. See also USA Life One, 682 N.E.2d at 542 (reversing denial of summary judgment on punitive damages claim against insurance company where evidence showed a difference in policy interpretation only).[6]
Affirmed as to the compensatory damages for negligence, reversed as to the compensatory damages for breach of contract, and reversed as to punitive damages.
BAKER, J., and ROBB, J., concur.
NOTES
[1]  We heard oral argument in this case on December 3, 2002, in Madison, Indiana at Madison Consolidated High School. We thank the students, faculty, and our host, the Bar Association of Jefferson County, for their gracious reception. We also commend counsel on the quality of their written and oral advocacy.
[2]  On Count II, the jury determined Home Indemnity had sustained $3,395,205 in compensatory damages. Appellants' Appendix at 29. This amount represented the settlement payment to the Lees in excess of their policy limit, the payments to INS for its investigation, and the attorney fees for the prior suit, plus prejudgment interest of 8%. Transcript, Vol. 13 at 2742-44. After finding that Home Indemnity was 10% at fault and non-parties were 15% at fault, the jury determined that INS should pay $2,546,404 on the basis that it was 75% at fault. Appellants' Appendix at 29.
[3]  The jury was given the following instruction:

"The Defendants have raised the affirmative defense of the Statute of Limitations in this case.
A negligence claim against the Defendants based upon its or their provision of professional services must be filed within two (2) years from the date on which [T]he Home Indemnity Company knew, or in the exercise of ordinary diligence, could have discovered, that an injury had been sustained as the result of the acts of the Defendants.
The complaint in this case was filed on July 7, 1995.
The Defendants have the burden of proving that [T]he Home Indemnity Company knew, or in the exercise of ordinary diligence, could have discovered that an injury had been sustained as the result of the acts of the Defendants before July 7, 1993. If the Defendants have proved by a preponderance of the evidence that [T]he Home Indemnity Company knew, or in the exercise of ordinary diligence, could have discovered, that an injury had been sustained as the result of the acts of the Defendants before July 7, 1993, the Statute of Limitations bars the Lees' negligence claims and you should enter a verdict in favor of the Defendant[s] on the negligence claims.
The Statute of Limitations Defense does not apply to bar the Lees' breach of contract claims however."
Appellees' Appendix at 781.
[4]  Indiana's Civil Pattern Jury Instruction No. 5.06 uses only the italicized language to define proximate cause. The trial court gave a more detailed instruction when it permitted the inclusion of the leading two sentences included on INS's tendered instruction.
[5]  Our supreme court used the terms "superseding" and "intervening" interchangeably to refer to an act of another that cuts off the liability of the original actor. Control Techniques, 762 N.E.2d at 107 n. 1.
[6]  INS also raises the issue that the punitive damages were excessive under both state law and the federal constitution. Because we find that it was error for the trial court to submit the issue of punitive damages to the jury, we need not address this issue.


192 U.S. 243 (1904)
COMMERCIAL NATIONAL BANK
v.
WEINHARD.
SAME
v.
WILLIAMS.
Nos. 109, 110.
Supreme Court of United States.
Argued December 17, 1903.
Decided January 18, 1904.
ERROR TO THE SUPREME COURT OF THE STATE OF OREGON.
*246 Mr. E.S. Pillsbury for plaintiff in error.
Mr. Thomas O'Day, with whom Mr. George H. Williams and Mr. George W. Durham were on the brief, for defendants in error.
MR. JUSTICE DAY, after making the foregoing statement, delivered the opinion of the court.
This case requires the construction of section 5205 of the Revised Statutes of the United States as amended. 3 Comp. Stat. 3495. The section is as follows:
"Every association which shall have failed to pay up its capital stock, as required by law, and every association whose capital stock shall have become impaired by losses or otherwise, shall, within three months after receiving notice thereof from the Comptroller of the Currency, pay the deficiency in the capital stock, by assessment upon the shareholders pro rata for the amount of capital stock held by each; and the Treasurer of the United States shall withhold the interest upon all bonds held by him in trust for any such association, upon notification from the Comptroller of the Currency, until otherwise notified by him. If any such association shall fail to pay up its capital stock, and shall refuse to go into liquidation, as *247 provided by law, for three months after receiving notice from the Comptroller, a receiver may be appointed to close up the business of the association, according to the provisions of section fifty-two hundred and thirty-four. And provided, That if any shareholder or shareholders of such bank shall neglect or refuse, after three months' notice, to pay the assessment, as provided in this section, it shall be the duty of the board of directors to cause a sufficient amount of the capital stock of such shareholder or shareholders to be sold at public auction (after thirty days' notice shall be given by posting such notice of sale in the office of the bank, and by publishing such notice in a newspaper of the city or town in which the bank is located, or in a newspaper published nearest thereto,) to make good the deficiency, and the balance, if any, shall be returned to such delinquent shareholder or shareholders."
The assessment in this case was made by the board of directors without any action of the stockholders of the association, and the defendants in error having failed to pay the same upon notice, their stock was sold as directed in the statute. It is claimed that an assessment by the directors without action of the stockholders was without authority of law and amounted to a conversion of the stock. This view was sustained in the Supreme Court of Oregon. The assessment ordered by the Comptroller was for the purpose of restoring the capital of the bank, and thus enabling it to continue its business. Ample power is conferred upon the Comptroller for this purpose. His action is in aid of other sections of the law preventing a withdrawal of the capital, or the making of dividends when losses have been sustained equal to the undivided profits. Sections 5202-5204, Rev. Stat. When the notice is received from the Comptroller by the bank under section 5205, the association has no authority to review or gainsay the necessity thereof. That question is concluded by the action of the Comptroller. The money to be raised for the continuance of the business may or may not be used in the liquidation of debts. The assessment is entirely different from that provided *248 for in section 5151, calling upon the individual responsibility of shareholders for the payment of debts. Under the last named section the stockholder is required to pay such assessments as may be made, to meet the outstanding obligations of the bank, within the limit of an amount equal to the par value of the stock in addition to the amount invested therein. He has no election of payment, but is required to meet this liability, created by law for the benefit of creditors. Under section 5205 the amount paid is subject to the control of the board of directors in the continued operations of the bank. If the stockholders are to have a voice in making or declining to make the assessment, they may well hesitate to entrust more capital to the control of a board under whose management it has already been impaired. Certain powers are conferred by law upon the directors.
Section 5136 provides that the association shall have power
"Sixth. To prescribe, by its board of directors, by-laws not inconsistent with law, regulating the manner in which its stock shall be transferred, its directors elected or appointed, its officers appointed, its property transferred, its general business conducted, and the privileges granted to it by law exercised and enjoyed.
"Seventh. To exercise by its board of directors, or duly authorized officers or agents, subject to law, all such incidental powers as shall be necessary to carry on the business of banking; by discounting and negotiating promissory notes, drafts, bills of exchange, and other evidences of debt; by receiving deposits; by buying and selling exchange, coin, and bullion; by loaning money on personal security; and by obtaining, issuing, and circulating notes according to the provisions of this Title."
And, again, by section 5145, it is declared that the "affairs" of the corporation "shall be managed by not less than five directors."
Thus the directors are given authority to transact the usual and ordinary business of national banks. Obviously, the *249 power conferred may be exercised in all usual transactions through the executive officers of the bank without consultation with the stockholders. In the present case the question to be dealt with is vital to the continuance of the life of the association, as only by complying with the requirement of the Comptroller in assessing a sum sufficient to make up the impaired capital of the bank can its business be continued. The shareholders by their contracts of subscription have agreed to pay in the amount of capital stock subscribed and to discharge the additional liability imposed by the statute. They have not contracted to meet assessments at the will of the directors to perpetuate the business of a possibly losing concern. It would be going far beyond the usual powers conferred upon directors to permit them to thus control the corporation. Corporate powers conferred upon a board of directors usually refer to the ordinary business transactions of the corporation. Railway Company v. Allerton, 18 Wall. 233. The assessment is required by the Comptroller, not by the directors. The association is to receive notice thereof, and action must be taken by the association to meet the requirements of the Comptroller under the statute. It is provided that if the association fail to pay up its capital stock, and refuse to go into liquidation, as provided by law, for three months after receiving notice from the Comptroller, a receiver may be appointed to close up the business of the association according to the provisions of section 5234. This important provision is entitled to much weight in determining the proper construction of the statute. The assessment may be avoided, and the amount required is not payable if the association decides to go into liquidation. Provision for voluntary liquidation is made in section 5220 wherein authority is given to liquidate upon a vote of shareholders owning two-thirds of the stock. Such liquidation does not prevent the assessment of stockholders under section 5151 for the benefit of creditors and the enforcement of the liability of the shareholders in an action by a receiver or directly by the creditors. Comp. Stat. *250 sec. 5234; sec. 2, Act of June 30, 1876, as amended, 3 Comp. Stat. 3509. The section referred to, 5234, directs the appointment of a receiver to take possession of the books, records and assets of the association, to collect the debts and claims belonging to it, and, among other things, if necessary to pay the debts of the association, to enforce the individual liability of the shareholders.
We are of opinion that section 5205 is intended to and does confer upon the association the privilege of declining to make the assessment to make good the deficiency to the capital, and to elect instead to wind up the business of the bank under section 5220, which provides for voluntary liquidation by a vote of two-thirds of the shareholders. The question is, who shall exercise this privilege and determine the future of the association  is it the directors or the shareholders who have this right of decision? The origin and continuation of the association would seem to be matters in which the owners and not the managers of the bank are primarily interested. If these are privileges of the shareholders and only exercisable by them, this case presents a total lack of the exertion of the power by those upon whom it is legally conferred, as no action of the shareholders was had in the present case in making the assessment. Action upon the Comptroller's order involves extraordinary action of the association, and determines its future operations or liquidation, and is not found within the powers conferred upon the directors for the management of the business of the bank. If this were not so, then the decision of a question of such vital importance is left to the directors, who may or may not be large holders of stock. As it is a matter foreign to the powers of such boards and not conferred by statute or required for the transaction of the business of the bank, we think it was intended to be vested in the shareholders. Whether a given power is to be exercised by the directors or the shareholders depends upon its nature and the terms of the enabling act. In certain instances the law specifically requires the action of the association to be taken by its *251 incorporators or shareholders. Sections 5133, 5134, 5136, 5143, Rev. Stat. These sections regulate matters not pertaining to the ordinary business of the bank entrusted to the directors. They deal with the exercise of those powers which concern the organization of the corporation, the amount of its capital stock and kindred matters.
In section 5205 the requirement of the Comptroller is that the association make the assessment. It is the "association" which is required to pay up the stock or go into liquidation. The payment of the assessments must come from the shareholders, and we are of the opinion that the statute contemplates action upon the alternatives presented in the statute by the association composed of its shareholders. It is true, as suggested by the learned counsel for the plaintiff in error, that it requires a two-thirds vote of the stockholders to put the bank into liquidation under section 5220; but if the assessment is not carried, and the shareholders have not a two-thirds vote favoring liquidation, the bank is put in liquidation, and the shareholders' liability is the statutory one for the benefit of creditors, and not a venture of more capital in the enterprise with a possible stockholders' liability upon the liquidation of the bank if it shall ultimately fail. Again, if the determination of this matter is entirely left to the directors, they may, by declining to make the assessment, force a liquidation of the bank, although the shareholders  the real owners of the property  be willing to make good the impaired capital and continue the business. On the other hand, if the directors may assess to make good impaired capital, the shareholder must pay the assessment or submit to the sale of his stock. Such extraordinary powers are far beyond those required in the management of the bank's affairs or conferred in the sections of the law defining those conferred upon the directors. In Delano v. Butler, 118 U.S. 634, 653, while the question was not directly involved, in speaking of assessments under the act, Mr. Justice Matthews, delivering the opinion of the court, said:
*252 "The assessment imposed upon the stockholders by their own vote, for the purpose of restoring their lost capital, as a consideration for the privilege of continuing business, and to avoid liquidation under § 5205 of the Revised Statutes, is not the assessment contemplated by § 5151, by which the shareholders of every national banking association may be compelled to discharge their individual responsibility for the contracts, debts and engagements of the association. The assessment as made under § 5205 is voluntary, made by the stockholders themselves, paid into the general funds of the bank as a further investment in the capital stock, and disposed of by its officers in the ordinary course of its business. It may or may not be applied by them to the payment of creditors, and in the ordinary course of business, certainly would not be applied, as in cases of liquidation, to the payment of creditors ratably; whereas, under § 5151, the individual liability does not arise, except in case of liquidation and for the purpose of winding up the affairs of the bank. The assessment under that section is made by authority of the Comptroller of the Currency, is not voluntary, and can be applied only to the satisfaction of the creditors equally and ratably."
We concur in this reasoning. The assessment under section 5202 provides for a sum to continue the operations of the bank and if unpaid subjects the stock of the shareholders to sale to make good the deficiency in its collection. Shareholders are given the right to go into liquidation, subjecting themselves, it is true, to the liability of the assessment for the benefit of creditors under section 5151 to an amount equal to the par value of their stock, if needed to make good the indebtedness of the bank, but risking no further investment of new capital in the continued business of the bank. The choice of methods is with the shareholders, and to them is addressed the decision of the question and the making of the assessment if that course is determined upon. Hulitt v. Bell, 85 Fed. Rep. 98. In the present case the assessment was made by the directors without action by the shareholders, and, not being *253 within the statute, was void. It follows that the Supreme Court of Oregon properly affirmed the judgment of the lower court in which the value of the stock sold was recovered.
Judgment affirmed.


                      The Attorney               General of Texas
                                          December 11, 1978

JOHN L. HILL
Attorney General

                   President Philip G. Hoffman                   Opinion No. H-12 7 7
                   University of Houston
                   Houston, Texas 77004                          Re: Authority of the University
                                                                 to promulgate     a regulation
                                                                 defining   the term “full-time
                                                                 basis”   in section   51.352(4),
                                                                 Education Code.

                   Dear Dr. Hoffman:

                          You inquire about the authority of the University of Houston Board of
                   Regents to promulgate a rule defining “full-time basis” as it appears in a
                   provision relating to the Optional Retirement Program. Section 51.353 of the
                   Education Code provides that “[aIll faculty members are eligible to
                   participate in the optional retirement program,” subject to rules prescribed
                   by the governing board of their institution.  “Faculty member” is defined as
                   follows:

                              . . . a person who is employed by an institution of
                              higher education on a full-time basis as a member of
                              the faculty or staff and whose duties include teaching,
                              research, administration, . . . or the performance of
                              professional services. . . .

                   Educ. Code S 51.352(4) (emphasis added). You wish to know whether the
                   Regents may define employment on a “full-time basis” to mean “employment
                   for one-half or more of the standard workload at a rate comparable to the
                   rate of compensation for other persons employed in similar positions.” You
                   note that the Teacher Retirement System (TRS) has adopted the quoted
                   standard in its rule defining “full-time” service under section 3.02(a)(3) of the
                   Education Code.

                           In Attorney General Opinion H-871 (1978) we considered the TRS rule
                   and declined to hold it invalid.   We found numerous factors supporting its
                   validity which are not present in the case of your proposed rule. The TRS
                   definition was an administrative construction of long standing, and employees
                   had accumulated credit and received benefits under it. When the legislature
                   placed the TRS provisions in the Education Code in 1969, it expressly provided

                                                     P. 5050
President Philip G. Hoffman      -   Page 2 (H-1277)

that present members of TRS would continue their membership.          Educ. Code S
3.03(a). In addition, TRS served employees in diverse job classifications       with
various ways of measuring workload.       We concluded that the courts would not
disregard the long-standing administrative construction, particularly in view of the
legislature’s acquiescence in it.

       However, we stated that we would not have construed the statute in this
manner. We noted that the courts will disrenard an administrative   construction
which is contrary to the plain meaning of a itatute.   See Brown Express, Inc. v.
Railroad Commission, 415 S.W.2d 394 (Tex. 1967); Eddins-alcher  Butane Company
v. Calvert, 298 S.W.2d 93 (Tex. 1957). The rule you propose is subject to this
objection.

       The Code Construction Act provides that “[wlords and phrases shall be . . .
construed according to . . . common usage. ” V.T.C.S. art. 5429b-2, S 2.01. -- See also
National Life Co. v. Stegall, 169 S.W.2d 155 (Tex. 1943) (words used in statute are
given ordinary meaning). A dictionary may be consulted to ascertain the meaning
of a word. Board of Insurance Commissioners v. Duncan, 174 S.W.2d 326 (Tex. Civ.
App. - Amarillo 1943, writ ref’d). The dictionary defines “full time” as follows:

            employed for or working the amount           of time considered
            customary or standard.

Webster’s Third International   Dictionary   at 919. ln contrast,   “part time” is defined
as follows:

            employed for or working less than          the amount     of time
            considered customary or standard.

Ia, at 1648. In our opinion, a definition of “full time basis” that includes
employment at half time or less than full time is contrary to the plain meaning of
the statutory language.   In the absence of strong countervailing factors like those
outlined in Attorney General Opinion H-871, see also V.T.C.S. article 5429b-2,
section 3.03, we do not believe your administrative definition would be upheld by
the courts. ln our opinion, you may not adopt the proposed definition of “full-time
basis.”

                                     SUMMARY.

            The governing board of an institution of higher education
            may not promulgate a rule defining employment on a “full-
            time basis” in section 51.352(4) of the Education Code to
            mean “employment for one-half or more of the standard
            workload. . . .I’

                                     P.   5051
 President Philip G. Hoffman     -   Page 3     (~-1277)

                                              Very truly yours,

                                              Attorney General of Texas

     APPROVED:

%L
     DAVID M. KENDALL, First Assistant

     C. ROBERT HEATH. Chairman
     Opinion Committee ’

     jsn

                                          p. 5052


                 IN THE UNITED STATES COURT OF APPEALS

                            FOR THE FIFTH CIRCUIT
                               _______________

                                  No. 96-41280
                               Summary Calendar
                                _______________

                                ROBERT FOGLIA,

                                                         Plaintiff-Appellant,

                                     VERSUS

                   MICHAEL N. MILBY, District Clerk,
               Clerk of the United States District Court
                  for the Southern District of Texas;
                                  and
                       UNITED STATES OF AMERICA,

                                                         Defendants-Appellees.

                         _________________________

             Appeal from the United States District Court
                  for the Southern District of Texas
                              (B-95-CV-85)
                       _________________________

                              November 11, 1997

                               REVISED OPINION

Before JONES, SMITH, and STEWART, Circuit Judges.

JERRY E. SMITH, Circuit Judge:*

      The appellant's motion for clarification is GRANTED.                     The

      *
        Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion
should not be published and is not precedent except under the limited circumstances
set forth in 5TH CIR. R. 47.5.4.
opinion issued on September 8, 1997, is hereby VACATED, and the

following opinion is substituted, for the purpose of changing the

analysis in part II.C.:

     Robert Foglia appeals a dismissal of his claims brought

pursuant to the Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 2401,

et seq.    Finding no error, we affirm.

                                      I.

     This      action    arises     out    of    attorney      Foglia’s   1983

representation of two criminal defendants in the Southern District

of Texas.     Foglia posted bail in the amount of $50,000 for one of

the defendants and $25,000 for the other.          His co-counsel, Sheldon

Weisfeld, posted the remaining $25,000 for the latter defendant.

     In November 1983, the United States Department of Treasury

gave notice to the Clerk of the Southern District that, pursuant to

the Trading with the Enemy Act (“TWEA”), 50 U.S.C. App. § 1,

et seq., the bail monies were being blocked as Cuban assets.               In

April 1984, Foglia filed a motion for return of the $25,000 that he

had posted for one of the defendants.1          In June 1984, Foglia sought

and was granted a stay of the proceedings pending his efforts to

obtain relief through administrative channels, as required by TWEA.

     In the meantime, Weisfeld filed a separate civil action

     1
         The other defendant has absconded from authorities.

                                       2
seeking   return   of   his   bail    monies.   After   exhausting   his

administrative remedies, Weisfeld proceeded to trial in August

1989, whereupon the district court held that the blocking order was

void and ordered release of the funds plus interest.

     Notwithstanding his original filing of a motion for return of

the $25,000 bail in 1984, Foglia waited until November 1994 to file

a notice of claim with the Administrative Office of the United

States Courts (“AO”) seeking back interest since December 1983.

Although the claim for back interest was denied by the AO, Foglia

did receive his $25,000 principal plus interest earned from January

1995 through the date of release of the funds.

     In June 1995, Foglia filed the instant action pursuant to the

FTCA, alleging that the District Clerk negligently had failed to

follow federal regulations that require the deposit in an interest-

bearing account of all monies blocked under the TWEA.      The district

court dismissed Foglia’s complaint, finding that it was barred by

the FTCA’s two-year statute of limitations and that the United

States had not waived sovereign immunity with respect to the

alleged negligent acts.

                                     II.

     We review de novo the grant of a motion to dismiss pursuant to

FED. R. CIV. P. 12(b)(1) and (6).     See Federal Deposit Ins. Corp. v.

Ernst & Young, 967 F.2d 166, 169 (5th Cir. 1992).       Thus, we stand

                                      3
in the same shoes as the district court in deciding the issue.

                                  A.

     Foglia argues that he has stated a claim under the FTCA

because his cause of action for back interest is cognizable as a

conversion claim under Texas law.       Although he is correct that the

FTCA waives sovereign immunity “where the United States, if a

private person, would be liable to the claimant in accordance with

the law of the place where the act or omission occurred,” 28 U.S.C.

1346(b), the FTCA expressly excepts from its waiver of immunity

claims “arising out of an act or omission of any employee of the

Government in administering the provisions of [the Trading with the

Enemy Act].”   28 U.S.C. § 2680(e).     See Price v. United States, 69

F.3d 46, 52-53 (5th Cir. 1995), modified on other grounds, 81 F.3d

520 (5th Cir. 1996).     Because Foglia’s claim for back interest

arises out of the Clerk’s alleged failure to place his bail monies

in   an   interest-bearing   account,     as   required    by   the   TWEA,

jurisdiction does not lie under the FTCA.

     Foglia acknowledges the § 2680(e) exception but argues that

because the Clerk did not “administer[]” the provisions of the

TWEA, it is inapposite.       According to Foglia, “administering”

requires that an individual use his discretion.           He contends that

because the Clerk was required by TWEA regulations to place the

bail money in an interest-bearing account, no such discretion was

                                  4
involved.

       We    do    not     dispute    that     “administering”      may    have   such a

connotation under certain circumstances, but we note that the term

also       encompasses      the     non-discretionary       acts    of    executing   or

enforcing         (or    omitting    to   do    the    same).      Cf.    WEBSTER’S THIRD

INTERNATIONAL DICTIONARY 27 (1986).            Furthermore, in light of both our

strict construction of the sovereign’s limited waiver of immunity,

see Wilkerson v. United States, 67 F.3d 112, 118 (5th Cir. 1995),

and our prior recognition that the FTCA was not intended to redress

breaches of federal statutes or regulations standing alone, see

Johnson v. Sawyer, 47 F.3d 716, 727 (5th Cir. 1995) (en banc), we

adopt the term’s broader definition and affirm.2

                                               B.

       Foglia next argues that the district court erred in failing to

construe his FTCA claim as cognizable under Bivens v. Six Unknown

Named Agents, 403 U.S. 388 (1971).                       Foglia contends that the

Department of the Treasury deprived him of property without due

process by failing to follow the TWEA regulations that required

depositing the blocked funds in an interest-bearing account.

       Foglia       does    not     dispute     that   negligent     deprivations     of

       2
        That Foglia fashions his claim under the FTCA as one of conversion under
Texas state law does not provide an end-run around the § 2680(e) exception from
the limited waiver of sovereign immunity. The underlying facts that comprise the
alleged conversionSSthe Clerk’s failure to place the funds in an interest-bearing
account as he was required to do by TWEA regulationsSSare those for which the
§ 2680(e) exception reinstates immunity for the sovereign.

                                               5
property   do   not    give   rise   to       constitutional   violations,      see

Campbell v. City of San Antonio, 43 F.3d 973, 977 (5th Cir. 1995),

but   insists   that    his   underlying         claim   of   conversion   is   an

intentional tort.       Not only do we disagree that under Texas law

conversion requires intentional conduct, see Lone Star Ford v.

Hill, 879 S.W.2d 116, 122 (Tex. App.SSHouston [14th Dist.] 1994, no

writ), but, even assuming arguendo that such is the case, we note

that Foglia’s complaint speaks of negligent conduct only.                  Given

that the plaintiff is the “master” of his complaint, see Rivet v.

Regions Bank, 108 F.3d 576, 583 (5th Cir. 1997), petition for cert.

filed, 65 U.S.L.W. 3839 (U.S. June 11, 1997) (No. 96-1971), Foglia

has failed to allege conduct that would give rise to a Bivens

claim.

                                      C.

      Foglia asserts that the district court erred in failing to

transfer this action to the United States Court of Federal Claims

to be prosecuted as a claim arising under the Tucker Act, 28 U.S.C.

§ 1346.    In his motion filed two weeks after the magistrate judge

had recommended that the FTCA action be dismissed, Foglia moved to

have this action transferred to the Court of Federal Claims; the

district court took no specific action on the motion.

      In his complaint, Foglia stated that “[t]he current action is

one for the recovery of damages under the Federal Tort Claims Act.”

                                          6
The   statute    conferring   jurisdiction    on    that    court,    however,

specifically excludes “cases . . . sounding in tort.”                28 U.S.C.

§ 1491(a)(1).      The complaint mentions no claim that could be

considered by the Court of Federal Claims.         Accordingly, if we deem

the   district    court   impliedly   to   have    denied   the   motion   for

transfer, there is no error in that decision.

      AFFIRMED.

                                      7


120 S.W.3d 50 (2003)
TRAVELERS CASUALTY & SURETY COMPANY OF AMERICA
v.
ARKANSAS STATE HIGHWAY COMMISSION.
No. 02-1259.
Supreme Court of Arkansas.
June 19, 2003.
*51 Dover Dixon Horne PLLC, by: Cyril Hollingsworth, Little Rock, for appellant.
Robert L. Wilson, Chief Counsel, and Bruce P. Hurlbut, Little Rock, for appellees.
ANNABELLE CLINTON IMBER, Justice.
This case involves an interpretation of sovereign immunity as guaranteed by Article 5, section 20, of the Arkansas Constitution. Appellant Travelers Casualty and Surety Company of America (Travelers) filed a declaratory judgment action against the Arkansas State Highway Commission and the Arkansas State Highway and Transportation Department (referred to hereinafter collectively as "the Highway Commission") in order to determine whether it was liable on a surety performance bond with the Highway Commission after the principal had allegedly defaulted on a construction contract. The circuit court ruled that the action was barred by the doctrine of sovereign immunity. We affirm.
In November of 1997, Fru-Con Construction Company (Fru-Con) entered into a highway construction contract with the Arkansas State Highway Commission. The contract, identified as the White River Bridge Replacement near De Valls Bluff, for U.S. Highway 70, Job No. 060599, required Fru-Con to complete a bridge replacement on Highway 70. Travelers issued a statutory performance bond in the amount of $13,982,784.80 for the purpose of securing Fru-Con's performance under the White River Bridge Contract.
After four years, the Highway Commission claimed that Fru-Con had failed to perform its responsibilities in a timely manner under the contract with respect to the construction of a coffer dam for one of two bridge piers in the White River. The Highway Commission terminated the right of Fru-Con to proceed under the contract effective April 4, 2002. The Highway Commission then made demand upon Travelers, as surety on the bond, to assure the performance of completion of the contract. In response to its termination, Fru-Con filed a claim with the Arkansas Claims Commission for breach of contract seeking $9,000,000. The performance bond provided for a 60-day suspension to allow Travelers to investigate the matter and engage a completion contractor. After the suspension, the bond also allowed Travelers another thirty days to actively engage in the resumption of the White River project. The initial suspension expired on June 3, 2002; however, by mutual agreement the suspension period was extended to June 13, 2002.
On June 13, 2002, Travelers notified the Highway Commission that it was not going to assume the performance of completion of the White River project. On the same day, Travelers filed suit in the Pulaski County Circuit Court seeking a declaratory judgment that it was not liable to the Commission on its statutory performance bond. On July 15, 2002, or two days after Travelers's time to engage a completion contractor had expired, the Highway Commission engaged Jensen Construction Company as the completion contractor for the White River project.
*52 The Highway Commission filed a motion to dismiss on grounds that it enjoyed sovereign immunity from suit because it operated as a branch of the State. Travelers acknowledged that the Highway Commission was a state agency but contended that because the complaint prayed for declaratory relief, and not damages, sovereign immunity was not implicated. The circuit court conducted a hearing on the matter, and ruled that the Highway Commission enjoyed sovereign immunity from the action at bar. The circuit court dismissed the complaint pursuant to Ark. R. Civ. P. 12(b)(1), (2), (6), and (8). It is from the order dismissing its complaint that Travelers appeals.
Two points of error have been raised on appeal. First, Travelers argues, as it did below, that state sovereign immunity is not applicable because Travelers only seeks a declaration of its obligations to the State. For its second point, Travelers argued in its opening brief that a declaratory judgment action is the proper vehicle to settle the issue of liability on the performance bond. Both parties now concede that the circuit court did not rule on that issue; hence that issue is not properly before this court. As we have stated repeatedly, a party's failure to obtain a ruling is a procedural bar to this court's consideration of the issue on appeal. Bell v. Bershears, 351 Ark. 260, 92 S.W.3d 32 (2002).
Sovereign Immunity
Travelers acknowledges on appeal, as it did at the trial-court level, that the Highway Commission is a state agency, and that generally state agencies are immune from suit in the State's courts. Nonetheless, Travelers contends that sovereign immunity does not strip the circuit court of jurisdiction to hear an action for declaratory judgment. In response, the Highway Commission disputes that contention, stating the complaint filed by Travelers sets forth a suit against the State of Arkansas such that the circuit court lacks jurisdiction.
In reviewing the circuit court's decision on a motion to dismiss under Ark. R. Civ. P. 12(b)(6), this court treats the facts alleged in the complaint as true and views them in the light most favorable to the party who filed the complaint. Arkansas Tech University v. Link, 341 Ark. 495, 17 S.W.3d 809 (2000). In testing the sufficiency of the complaint on a motion to dismiss, all reasonable inferences must be resolved in favor of the complaint, and the pleadings are to be liberally construed. Id. However, Arkansas law requires fact pleading, and a complaint must state facts, not mere conclusions, in order to entitle the pleader to relief. Id. Furthermore, sovereign immunity is jurisdictional immunity from suit, and jurisdiction must be determined entirely from the pleadings. Department of Human Servs. v. Crunkleton, 303 Ark. 21, 791 S.W.2d 704 (1990).
The Arkansas Constitution provides the State with sovereign immunity. Article 5, section 20, of the Arkansas Constitution provides that: "The state of Arkansas shall never be made a defendant in any of her courts." The law of sovereign immunity is well established in Arkansas. Often, an analysis of Arkansas's sovereign immunity starts with Pitcock v. State, 91 Ark. 527, 121 S.W. 742 (1909), where we explained that "a sovereign State cannot be sued except by its own consent; and such consent is expressly withheld by the Constitution of this State." 91 Ark. at 535, 121 S.W. at 745. Sovereign immunity is jurisdictional immunity from suit, and where the pleadings show the action is one against the State, the trial court does not acquire jurisdiction. Brown v. Arkansas State HVACR Lic. Bd., 336 Ark. 34, 984 *53 S.W.2d 402 (1999). However, sovereign immunity can be waived when the State is the moving party seeking affirmative relief. Arkansas Dept. of Human Services v. State, 312 Ark. 481, 850 S.W.2d 847 (1993). Additionally, there are exceptions to immunity where a state agency's action is illegal, or when a state agency officer refuses to do a purely ministerial act required by statute. Commission on Judicial Discipline and Disability v. Digby, 303 Ark. 24, 792 S.W.2d 594 (1990).
As a threshold question, we must determine whether this action for declaratory judgment is against the State. Neither party questions that generally a suit against the Highway Commission is a suit against the State. Indeed, this court has held that a suit against the director, commission board members, and chief engineer for the State Highway Department was a suit against the State. See Solomon v. Valco, 288 Ark. 106, 702 S.W.2d 6 (1986); see also Commission on Judicial Discipline and Disability v. Digby, 303 Ark. 24, 792 S.W.2d 594 (1990) (acknowledging that state agencies are generally immune from suit in state courts). In reaching that conclusion, we look beyond the named parties to see if the real claim is against the State. Id.
Similarly, the critical question here is whether Travelers is asserting a claim against the State. Travelers maintains that a suit is a claim against the State only if a plaintiff's victory would subject the State to liability. More specifically, Travelers asserts that it is an evaluation of whether the State's financial obligations would increase that is the decisive inquiry in evaluating sovereign immunity. This court has held in no uncertain terms that an action, which will "tap into the State's treasury" for payment of damages, will result in the case being barred by sovereign immunity. See Arkansas Tech University v. Link, supra; Arkansas Public Defender v. Burnett, 340 Ark. 233, 12 S.W.3d 191 (2000); State Office of Child Support Enforcement v. Mitchell, 330 Ark. 338, 954 S.W.2d 907 (1997). However, we have also reiterated the rule as it has been more commonly stated: "[I]f a judgment for the plaintiff will operate to control the action of the State or subject it to liability, the suit is one against the State and is barred by the doctrine of sovereign immunity." Arkansas Tech University v. Link, 341 Ark. at 502, 17 S.W.3d at 813.
Because its complaint only requests declaratory relief and does not seek any recovery from the State, Travelers contends that the State's sovereign immunity is not implicated. In advancing this argument, Travelers chiefly relies on this court's decision in Commission on Judicial Discipline and Disability v. Digby, supra. In Digby, the Commission on Judicial Discipline and Disability sought a writ of prohibition to prevent the circuit court from entertaining a declaratory judgment action. 303 Ark. 24, 792 S.W.2d 594. The action below was for a declaratory judgment to the effect that the commission was required to release to the public information from its files pursuant to the commission's rules of procedure. Id. We held that to the extent the suit merely sought a declaration that the commission, acting through its director, had acted in violation of the commission's rules of procedure, it was not barred by the sovereign immunity provision of Ark. Const. art. 5, § 20. Id. The Digby case is inapposite. This case does not involve allegations of illegal action by a state agency; instead, the claims here arise out of its surety performance contract between the State and Travelers.
A review of the complaint for declaratory relief reveals the breadth of the claims being made by Travelers. The complaint, in pertinent part, states:
*54 13. As a result of the actions and demands of the Commission and the AHTD, disputes have arisen between Travelers on the one hand and the AHTD and the Commission on the other concerning Fru-Con's performance under the Contract. Those disputes include, among other things, a disagreement concerning Fru-Con's construction of a cofferdam at Piers 13 and 14 and whether any delays, additional costs, or failures to complete the Project were caused by differing site conditions and by the actions and omissions of the AHTD and the Commission. Until those disputes are resolved, Travelers is unable to determine whether its performance under the Bond is required.
* * * *
15.... A declaratory judgment is necessary to determine the respective rights and obligations of Travelers and the Commission and the AHTD with respect to the bond.
Travelers seeks relief in the circuit court in connection with a contract into which it entered with the State. As a result of such a request for relief arising out of a contract with the State, the State would be compelled to file a compulsory counterclaim or risk losing its right to make a claim for breach of contract. See Ark. R. Civ. P. 13(a) (2003). Moreover, the filing of a counterclaim would result in a waiver of sovereign immunity. Arkansas Dept. of Human Svcs. v. State, 312 Ark. 481, 850 S.W.2d 847 (1993). In essence, this declaratory judgment action by Travelers would force the Highway Commission to waive its sovereign immunity and litigate the merits of a contract between the principal, Fru-Con, and the Highway Commission. To that extent, Travelers is seeking to control the action of the State, and the suit is barred by the doctrine of sovereign immunity. See Arkansas Tech University v. Link, supra.
Moreover, as the Highway Commission points out, a ruling on Travelers' liability on the performance bond effectually determines whether the State can seek damages based upon a breach of the performance bond. Travelers is a surety, and as a surety on the bond, its liability is derivative and ordinarily does not exceed that of the principal. Continental Ins. Companies v. Rowan's Estate, 250 Ark. 724, 466 S.W.2d 942 (1971). Thus, in order to determine whether Travelers is obligated under the performance bond, the circuit court would be required to determine Fru-Con's liability under the White River Bridge contract. It follows that if a court were to determine that Travelers is not liable on the performance bond in the amount of $13,982,784.80, or any portion thereof, the State's financial obligations would effectively increase. This court has held that a suit which directly or indirectly coerces the State to bear a financial obligation is subject to sovereign immunity. Arkansas Department of Human Services v. State, supra.
Early in the development of sovereign immunity, we stated that one contracting with the State "must do so with knowledge that they must rely solely upon the legislative branch for performance of the contract and for satisfaction of the State's just obligations." Pitcock v. State, 91 Ark. 527, 539, 121 S.W. 742, 747. By contracting as a surety with the State, Travelers relegated any relief based on breach into the hands of the legislative branch. Although Travelers does not seek any affirmative relief, it does seek to control the State's right to seek affirmative relief under the performance bond. As such, the suit for declaratory judgment is one against the *55 State and is barred by sovereign immunity.
Affirmed.
CORBIN, J., not participating.


                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT

                             No. 12-2203

2315 ST. PAUL STREET, LLC,

                Plaintiff - Appellant,

          v.

HARTFORD FIRE INSURANCE COMPANY,

                Defendant - Appellee.

Appeal from the United States District Court for the District of
Maryland, at Baltimore. George L. Russell, III, District Judge.
(1:10-cv-03641-GLR)

Submitted:   June 7, 2013                  Decided:   August 7, 2013

Before DAVIS and FLOYD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.

Affirmed by unpublished per curiam opinion.

Anthony G. Gorski, RICH & HENDERSON, P.C., Annapolis, Maryland,
for Appellant.    Steven M. Klepper, Mary Beth Smith, KRAMON &
GRAHAM, P.A., Baltimore, Maryland, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

       This case involves a coverage dispute for loss of property

by theft under a builder’s risk policy.          On     appeal,    2315    St.

Paul   Street,   LLC   (St.   Paul)    challenges     the   district   court’s

grant of summary judgment in favor of Hartford Fire Insurance

Company (Hartford) with respect to Plaintiff’s claims alleging

breach of contract and failure to act in good faith--both under

Maryland law.

       Our careful review of the briefing, appellate record, and

relevant law compels us to conclude that the district court did

not err in granting summary judgment in favor of Hartford.                  We

affirm on the reasoning of the district court, as stated in its

June 25, 2012 memorandum opinion.             2315 St. Paul St., LLC v.

Hartford Fire Ins. Co., Civil Action No. GLR-10-3641, 2012 WL

2450167 (D. Md. June 25, 2012).

       We dispense with oral argument because the facts and legal

contentions are adequately presented in the materials before the

court and argument would not aid the decisional process.

                                                                       AFFIRMED

                                      - 2 -


938 F.2d 186
U.S.v.Chase (Howard)
NO. 90-2675
United States Court of Appeals,Eighth Circuit.
APR 11, 1991

1
Appeal From:  W.D.Mo.

2
AFFIRMED.