FALLS LAKE NATIONAL INSURANCE COMPANY, Plaintiff, v. ISRAEL MARTINEZ, JR., et al., Defendants. In this insurance coverage dispute, Falls Lake National Insurance Company “Falls Lake” seeks a declaratory judgment that it has no obligation to indemnify Israel Martinez, Jr., Salinas Express, LLC “Salinas Express”, or SMC Transport, LLC “SMC” in connection with a personal injury action that Brandon Lester filed against Martinez, Salinas Express, SMC, and others in this court. See Lester v. SMC Transport, LLC, No. Background I. The Underlying Personal Injury Action Before sunrise on October 26, by Salinas Express the “Salinas Express Tractor” Martinez, Roy Salinas “Roy” Just before 6 00 a.m. At the same time On December 9, 2015, Lester filed the underlying personal injury action against SMC, Martinez, Salinas Express, and Shifflett. On September 2, 2016, the court ruled on a number of motions filed by the parties in that action, including Lester’s motion for partial summary judgment. As is relevant in the instant action, the court ruled that Martinez and Roy were employees of Salinas Express at the time of the accident, that they were acting within the scope of their employment, and, thus, that Salinas Express is “vicariously liable for their negligent conduct.” Lester v. SMC Transport, LLC, No. 7 15CV00665, 2016 2 27 28 W.D. Va. Sept. 2, II. The Insurance Policies A. The Policy Issued by Falls Lake At the time of the accident, Salinas Express was insured under a motor carrier liability policy issued by Falls Lake the “Falls Lake Policy” The following are “insureds” a. You for any covered “auto”. b. Anyone else while using with your permission a covered “auto” you own 1 2 e. Anyone liable for the conduct of an “insured” described above but only to the extent of that liability. However 3 1 a Id. at § IIA In addition to the scheduled vehicles for which the Falls Lake Policy provides coverage, the policy lists three types of vehicles which “are also covered ‘autos’ for Covered Autos Liability Coverage.” Id. at § IC specifically Any “auto” you do not own while used with the permission of its owner as a temporary substitute for a covered “auto” you own that is out of service because of its a. Breakdown; b. Repair; c. Servicing; d. “Loss”; or e. Destruction. Id. at § IC B. The Policy Issued by United Specialty During the time period at issue issued by United Specialty the “United Specialty Policy” SMC Tractor was not listed on the United Specialty Policy’s schedule of covered autos at the time of the accident liability coverage under the United Specialty Policy for the underlying accident. 4 The United Specialty Policy contains an MCS 90 endorsement.1 That endorsement provides In consideration of the premium stated in the policy to which this endorsement is attached, the insurer company United Specialty agrees to pay, within the limits of liability described herein, any final judgment recovered against the insured SMC for public liability resulting from negligence in the operation, maintenance or use of motor vehicles subject to the financial responsibility requirements of Sections 29 and 30 of the Motor Carrier Act of However United Specialty MCS 90 Endorsement at 2 III. The Instant Action After the underlying personal injury action was commenced by Lester brought this action seeking a declaratory Salinas Express the accident. The declaratory 1″An MCS 90 endorsement is an endorsement added to a trucker’s insurance policy to satisfy federal motor carrier regulations requiring minimum levels of financial responsibility.” Nat’l Specialty Ins. Co. v. Martin Vegue, 644 F. App’x 900, 903 n.4 11th Cir. 2016 citing 49 5 partial summary Standard of Review An award of summary judgment is appropriate “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56a. In determining whether a genuine dispute of material fact exists, the court must “view the facts and all justifiable inferences arising therefrom in the light most favorable to the nonmoving party.” Libertarian Party of Va. v. Judd, 718 F.3d 308, 313 4th Cir. 2013; see also Anderson v. Liberty Lobby, Inc., 477 Discussion I. Applicable Law Under Texas law 2 The court notes that Roy is not named as a defendant in the underlying personal injury action. 6 Underwriters at Lloyds London, 810 F.3d 986, 990 5th Cir. II. Coverage under the Falls Lake Policy A. Salinas Express In their respective motions, Falls Lake and Lester dispute whether Salinas Express is entitled to indemnification under the Falls Lake Policy. Although Salinas Express is the named “insured” under the Falls Lake Policy and the Salinas Express Tractor is a “covered ‘auto,'” Falls Lake argues that coverage is unavailable for Lester’s injuries because they arose from an accident involving Lester’s vehicle, the SMC Tractor, and Shifflett’s vehicle, and did not “result from the ownership, maintenance or use of” the Salinas Express Tractor. See Falls Lake Policy § IIA 7 Under Texas law, the insuring language at issue is interpreted broadly. See Lincoln Gen. Ins. Co. v. Aisha’s Learning Ctr., 468 F.3d 857, 859 60 5th Cir. In Lindsey For an injury to fall within the “use” coverage of an automobile policy 1 2 Id. at 157. The Supreme Court has since held that “the analysis is the same whether the policy requires that an injury ‘result from’ or ‘arise out of’ the covered auto’s use.” Lancer Ins. Co. The Supreme Court’s attempted to enter his parents’ parked and locked truck through the truck’s sliding rear window 8 to retrieve an article of clothing. Lindsey Applying the Lindsey factors to the instant case, the court concludes that Lester’s injuries resulted from the use of the Salinas Express Tractor. First, the accident occurred while the Salinas Express Tractor was being towed from the rest area. Using a vehicle in this manner is not “unexpected or unnatural.” Lindsey, 997 S.W.2d at 158; see also State Farm Fire and Casualty Co. v. Pinson, 984 F.2d 610, 612 4th Cir. The second factor is whether the accident arose within the vehicle’s natural territorial limits before its use terminated. See Lindsey 3″Where a vehicle is a mere situs of injury 9 concludes that this factor is also satisfied. The mere fact that Lester’s vehicle made contact with the SMC Tractor, rather than the Salinas Express Tractor, is not dispositive. See, e.g., State & County Mut. Fire Ins. Co. v. Trinity Universal Ins. Cos., 35 S.W.3d 278, 282 Tex. App. El Paso 8th Dist. The third factor is whether the covered vehicle “produced the injury” in question. Lindsey, 997 S.W.2d at 157. As discussed above, the causation inquiry in this context involves “but for causation, though not necessarily direct or proximate causation.” Utica Nat’l Ins. Co., 141 S.W.3d at 203. A but for cause is “one without which the event would not have occurred.” Transcon. Ins. Co. v. Crump, 330 S.W.3d 211, 223 Tex. Based on the undisputed evidence in the instant case 10 Express Tractor “produced” Lester’s injuries For these reasons, the court concludes that the accident at issue resulted from the use of the Salinas Express Tractor, and, thus, that Salinas Express is entitled to liability coverage under the Falls Lake Policy. Accordingly, the court will deny Falls Lake’s motion for partial summary B. SMC The parties also dispute whether SMC is entitled to coverage under the Falls Lake Policy. United Specialty First, SMC is not an additional “insured” under the Falls Lake Policy. In arguing to the contrary, SMC cites to subsection e 4In addition to arguing that Salinas Express is not entitled to coverage, Falls Lake argues that coverage is not owed to Salinas Express’ employees, Martinez and Roy. In light of the court’s conclusion that Salinas Express is entitled to coverage under the Falls Lake Policy, and its earlier ruling that Salinas Express is vicariously liable for the negligent conduct of Martinez and Roy, the issue of whether Martinez and Roy are also entitled to coverage is ultimately of no consequence. In any event, this issue involves a dispute of material fact regarding the ownership of the Salinas Express Tractor and whether Martinez and Roy were acting on behalf of the owner. Accordingly, it cannot be resolved at this stage of the 11 if SMC could be deemed an “insured” under subsection e After defining “Who Is an Insured,” the Falls Lake Policy excludes certain motor carriers from the definition. As is relevant in the instant case 1 a Falls Lake Motor Carrier Coverage Form § IIA1, Docket No. 1 2. “Accordingly, coverage is extended under the policy to non employee motor carriers only if their insurance policies offer reciprocal coverage.” Ill. Nat’l Ins. Co. v. Temian, 779 F. Supp. 2d 921, 926 N.D. Ind. In this case, it is undisputed that SMC is a “motor carrier” subject to motor carrier insurance requirements. Moreover, the court agrees with Falls Lake and Lester that SMC met those requirements by means other than “‘auto’ liability insurance.” Indeed, it is undisputed that the SMC Tractor was not insured at the time of the accident under any policy of insurance procured by SMC. Although the United Specialty Policy issued to SMC contains an MCS 90 endorsement, that endorsement “does not provide insurance coverage.” Real Legacy Assurance Co. v. Santori Trucking, Inc., 560 F. Supp. 2d 143, 147 D.P.R. 12 Assurance Co., 560 F. Supp. 2d at 147 148; see also Canal Ins. Co. v. Carolina Cas. Ins. Co., 59 F.3d 281, 283 1st Cir. Additionally, the court agrees with Falls Lake and Lester that the SMC Tractor is not a “covered ‘auto'” under the Falls Lake Policy. In arguing to the contrary, United Specialty relies on § IC Any “auto” you do not own while used with the permission of its owner as a temporary substitute for a covered ‘auto’ you own that is out of service because of its a. Breakdown; b. Repair; c. Servicing; d. “Loss”; or e. Destruction. Id.at § IC 13 Even assuming that United Specialty’s recitation of the “undisputed” evidence is correct, the mere fact that the SMC Tractor was used to tow the Salinas Express Tractor from the rest stop does not mean that it was a “temporary substitute” for the disabled vehicle. Because the term “temporary substitute” is not defined in the Falls Lake Policy, the court must consider its “ordinary, everyday meaning.” Progressive County Mut. Ins. Co. v. Sink, 107 S.W.3d 547, 552 Tex. Applying this standard would have performed but for its temporary disability. The same cannot be said for the SMC 14 Tractor Conclusion For the reasons stated, Falls Lake’s motion for partial summary judgment will be granted in part and denied in part, Lester’s motion for partial summary judgment will be granted, and United Specialty’s motion for partial summary judgment will be denied. The Clerk is directed to send certified copies of this DATED This s Glen E. Conrad Chief United States District Judge 15 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF VIRGINIA FALLS LAKE

Century Surety Company, Plaintiff – Appellant v. Jim Hipner LLC; Robert Lopez; Huey Brock; Jose Chavez; Abraham Reyes, Defendants – Appellees

 

No. 15-2120

 

UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT

 

842 F.3d 606; 2016 U.S. App. LEXIS 21029

 

September 20, 2016, Submitted

November 23, 2016, Filed

 

 

COUNSEL: For Century Surety Company, Plaintiff – Appellant: Jeffrey Charles Gerish, PLUNKETT & COONEY, Bloomfield Hills, MI; Bradford S. Moyer, PLUNKETT & COONEY, Kalamazoo, MI; Scott K. Porsborg, SMITH & BAKKE, Bismarck, ND.

 

For Jim Hipner LLC, Defendant – Appellee: Duane A. Lillehaug, MARING & WILLIAMS, Fargo, ND.

 

For Huey Brock, Defendant – Appellee: Michael D. Ainbinder, Colleen Pratt, AINBINDER & PRATT, Long Beach, CA; Duane A. Lillehaug, MARING & WILLIAMS, Fargo, ND.

 

JUDGES: Before SMITH, BYE, and BENTON, Circuit Judges.1

 

1   This opinion is being filed by Judge Smith and Judge Benton pursuant to 8th Cir. Rule 47E.

 

OPINION

PER CURIAM.

Century Surety Company (“Century”) appeals from a final judgment of the district court2 determining that Jim Hipner, LLC3 (“Hipner”) does have coverage under an umbrella policy entered into between Century and Hipner. After finding the notice provision in the policy ambiguous, the district court concluded that the governing law, the law of Wyoming, would consider Hipner’s delayed notice of claim not to be untimely. Century appealed, seeking reversal of the district court’s determinations that the notice [*2]  provision is ambiguous and that Hipner gave timely notice. Because Wyoming law, however, had not definitively addressed whether an insurer must be prejudiced before being entitled to deny coverage when the insured has failed to give notice “as soon as practicable,” we certified the question to the Supreme Court of Wyoming. See Wyo. Stat. Ann. § 1-13-106.

 

2   The Honorable Daniel L. Hovland, United States District Judge for the District of North Dakota.

3   The named appellees in this case are Jim Hipner, LLC, Robert Lopez (Hipner’s employee), Huey Brock (an injured passenger), Jose Chavez (an injured driver), and Abraham Reyes (an injured passenger). However, the present appeal relates only to the contractual relationship between Century and Hipner.

On certification, [HN1] the Supreme Court of Wyoming adopted the notice-prejudice rule, holding that “prejudice to the insurer [is required] before coverage may be denied based upon a violation of a notice provision contained in the policy.” Century Sur. Co. v. Jim Hipner, LLC, 2016 WY 81, 377 P.3d 784, 791 (Wyo. 2016). Additionally, the court held that “an insurance clause is [not] enforceable where it excludes coverage unless the insured notifies the insurer ‘as soon as practicable . . . whether [the insurer] [is] prejudiced or not.'” Id. at 792 (ellipses in original) [*3]  (second and third alterations in original). After supplemental briefing to this court, we now affirm the district court.

 

1. Background

In 2010, Hipner, a trucking company, purchased a $2 million umbrella policy (“Century Policy”) from Century. In paragraph 3, the Century Policy contains the following notice provision:

 

1. If you notify any “underlying insurer” of an “occurrence” or an offense involving “bodily injury” or “personal and advertising injury[,”] you must see to it that we are also notified in writing as soon as practicable.

 

 

Later, in the same paragraph, the Century Policy contains an exclusion provision that states:

Failure to notify us, as required per paragraphs 3. a. and 3. b. above, of an “occurrence” or offense as soon as practicable will result in exclusion of coverage whether we are prejudiced or not.

 

 

On March 31, 2011, one of Hipner’s drivers created a road obstruction that caused a multi-vehicle collision (“the accident”) in North Dakota. According to the North Dakota Motor Vehicle Crash Report, a passenger in a car that was rear-ended by another vehicle suffered injuries deemed minor at the time. The Motor Vehicle Crash Report indicates that the other persons involved [*4]  in the accident had “non-incapacitating” injuries at the time of the accident. Jim Hipner (“Jim”), a co-owner of Hipner, learned of the accident the same day that it occurred.

Jim testified that, upon his arrival to the scene of the accident, the state patrol officer told him that “there were no serious injuries.” Jim also testified that the officer told him that one of the passengers had “some numbness or tingling,” but that “it was nothing to worry about” and that this “happens quite often in these cases.” According to the medical records, one person, Huey Brock, arrived at Trinity Hospital on March 31 unable to move his arms or legs.

On the day of the accident, Jim called and reported the accident to representatives at Willis of Wyoming and Great West Casualty Company (“Great West”), his company’s primary insurers. But, no one at Hipner notified Century. In his deposition, Jim stated that he thought that notifying Willis of Wyoming satisfied his obligations to notify all of the insurance companies. On March 31, Great West set up a claim and began investigating the accident.

Brock’s injuries rendered him quadriplegic. Jim testified that he did not know that Brock sustained significant [*5]  injuries from the accident until May 2011. On September 20, 2011, Century received notice of the accident indirectly when Willis of Wyoming sent Century the policy renewal for Hipner. The next day, Century created an umbrella claim relating to the accident. On December 13, 2011, Great West sent its claim file, including the investigation materials, to Century. Century did not perform its own investigation of the accident because “[t]he duty to investigate the accident fell upon Great West Casualty. Century Surety relied upon Great West Casualty to perform a competent investigation.” Nevertheless, Century later found fault with Great West’s investigation, claiming that it was not thorough enough. After reviewing the materials that Great West sent to Century, Century concluded that Great West did not do a timely and thorough investigation of the claim. According to Century, Great West “did not do . . . the type of investigation that an insurance company should do when [it] receive[s] a claim involving injuries involving a quadriplegic.” Century subsequently asked Great West to investigate further. Specifically, it asked Great West to retain an accident reconstructionist, but Great West declined that [*6]  request and indicated that it would not hire an accident reconstructionist unless litigation resulted. Century admitted that nothing prevented it from obtaining an accident reconstructionist or investigating further.

In November 2012, Century received Brock’s settlement demand but declined to participate in the settlement “based upon lack of coverage for Jim Hipner LLC under the Century Policy coupled with serious questions regarding liability and damages.”

Century then filed the instant action in federal court seeking a declaratory judgment that Century does not have an obligation to defend or indemnify Hipner in connection with any claims arising out of or relating to the accident. Both Hipner and Brock filed motions for summary judgment, or in the alternative, a motion for partial summary judgment, requesting Century’s claims for declaratory relief be denied. Century, in response, filed a cross-motion for summary judgment seeking a declaration that it has no obligation to defend or to indemnify Hipner in connection with the accident. Specifically, Century argued that it was not liable under Wyoming law because Hipner failed to provide written notice “as soon as practicable” as required [*7]  by the Century Policy.

The district court determined that although the Century Policy clearly and unambiguously requires written notice of a claim, the “as soon as practicable” requirement is ambiguous. Citing to Pacheco v. Continental Casualty Co., 476 P.2d 166 (Wyo. 1970), the district court concluded that Wyoming courts have found similar language ambiguous. After a “balancing of the beneficiary’s right to have the policy liberally construed in his favor with the legitimate interest of the insurer in being protected from stale claims,” id. at 169, the district court found that Century received timely notice under the Century Policy as a matter of Wyoming law.4 The district court explained that “Century Surety’s choice to rely on Great West’s investigation and not to independently investigate the accident, posed the substantial obstacle to Century Surety ascertaining the facts surrounding the accident rather than Hipner LLC’s failure to notify Century Surety for approximately three to four months.”

 

4   Ultimately, the district court granted summary judgment in favor of Century, concluding that the policy was not triggered because there was no “ultimate net loss,” as required by the insuring agreement and because Hipner’s settlement with Brock did not allow [*8]  judgment to be entered against Hipner. But the district court suggested that because of the personal-injury statute of limitations, Brock had time to sue Hipner in connection with the collision and attempt to establish that Hipner’s liability and damage exceed the underlying policy limits, notwithstanding the agreement fully releasing Hipner from all liability. Brock has now sued the insured, Hipner, for negligence in connection with the collision. Because the district court rejected Century’s late-notice defense, collateral estoppel would preclude Century from raising the same defense if Brock or Hipner seeks umbrella coverage under the Century policy. For that reason, Century has standing to appeal the district court’s judgment even though it was the prevailing party on summary judgment.

 

1. Discussion

On appeal, Century argues that the policy language at issue is unambiguous and that, applying Wyoming’s notice-prejudice rule, it suffered prejudice from the delay in receiving notice of the accident as a matter of law.

[HN2] “The construction and interpretation of the terms of [an insurance] policy are questions of law for the court, where there is no ambiguity in the language of the policy [*9]  when applied to the undisputed facts, and it is error to leave its construction to the jury . . . .” Tadday v. Nat’l Aviation Underwriters, 660 P.2d 1148, 1155 (Wyo. 1983) (Thomas, J., concurring) (footnotes omitted) (quoting 46 C.J.S. Insurance § 1368 (1946)). Furthermore, [HN3] “whether the notice-prejudice rule applies in this context is a question of law.” In re Centrix Fin., LLC, No. 09-CV-01542-PAB-CBS, 2015 U.S. Dist. LEXIS 71122, 2015 WL 3499853, at *4 (D. Colo. June 2, 2015).

As a threshold matter, the Supreme Court of Wyoming held in Century Surety that Century’s exclusion provision “exclud[ing] coverage unless the insured notifies the insurer ‘as soon as practicable . . . whether [the insurer] [is] prejudiced or not'” is unenforceable. 377 P.3d at 792 (ellipses in original) (second and third alterations in original). As a result, we must apply [HN4] Wyoming’s “two-step approach to an insurer’s claim of late notice.” Id. at 791.

First, we must determine whether Hipner’s

 

notice was untimely, in violation of the notice requirement contained in the insurance policy. The question of the timeliness of the insured’s delay in providing notice will depend upon a number of factors, including, but not limited to, the language of the notice requirement in the policy, the timing of the notice, the insured’s knowledge of the underlying facts and ability to provide notice, the sophistication [*10]  of the parties, the type of insurance at issue, and the reasonableness of any delay.

 

 

Id. (citing Northbrook Prop. & Cas. Ins. Co. v. Applied Sys., Inc., 313 Ill. App. 3d 457, 729 N.E.2d 915, 922, 246 Ill. Dec. 264 (Ill. Ct. App. 2000)). Second, if we conclude that Hipner’s notice was untimely, we must then determine “whether the insurer was prejudiced by that delay. If the insurer was prejudiced, then the insurer will be relieved of its obligation to provide coverage.” Id.

 

1. Timeliness of Notice

As to the first inquiry, the district court determined that although the Century Policy clearly and unambiguously requires written notice of a claim, the “as soon as practicable” requirement is ambiguous. It then balanced the parties’ competing interests and found that Century received timely notice under the Century Policy as a matter of Wyoming law.

We conclude that the “as soon as practicable” requirement is unambiguous. [HN5] Wyoming law provides that the phrase “as soon as practicable” means “within a reasonable time.” See Black & Yates, Inc. v. Negros-Philippine Lumber Co., 32 Wyo. 248, 231 P. 398, 401 (Wyo. 1924) (“Where no time for performance is specified in a contract the law implies that it must be performed within a reasonable time. This is substantially true even where the mode of defining the time of performance of a commercial contract is by the use of the phrase ‘as soon as practicable’ or other similar phrases.” [*11]  (citations omitted)).5

 

5   Other courts are in agreement that the phrase “as soon as practicable” means “within a reasonable time.” See, e.g., Weitz Co., LLC v. Lexington Ins. Co., 982 F. Supp. 2d 975, 1000 (S.D. Iowa 2013), aff’d, 786 F.3d 641 (8th Cir. 2015) (“First, regarding the ‘substantial compliance’ issue, this Court must interpret the phrase ‘as soon as practicable’ from Lexington/Allied’s insurance policy. Iowa courts are in agreement that ‘as soon as practicable’ means ‘within a reasonable time in light of the circumstances.'” (citation omitted)); Hughey v. Aetna Cas. & Sur. Co., 30 F.R.D. 508, 511 (D. Del. 1962) (“Delaware law further provides a requirement to give notice ‘as soon as practicable’ means within a reasonable time under the circumstances; mere time lapse is not the determining factor.”); Greenway v. Selected Risks Ins. Co., 307 A.2d 753, 755 (D.C. 1973) (“The words ‘as soon as practicable’ have uniformly been held to mean within a reasonable time in view of all the facts and circumstances of each particular case.”); Bass v. Allstate Ins. Co., 77 N.J. Super. 491, 187 A.2d 28, 30 (N.J. Super. Ct. App. Div. 1962) (“The policy in question requires that written notice of the occurrence shall be given to the company as soon as practicable. This phrase has been construed to mean within a reasonable time.”); Ragland v. Nationwide Mut. Ins. Co., 146 W. Va. 403, 120 S.E.2d 482, 490-91 (W. Va. 1961) (“It is apparent from the decisions of courts of other jurisdictions and by the great weight of authority that: (1) The phrase ‘as soon as practicable’ means a reasonable time; and (2) more than [*12]  five months is not, under normal circumstances, a reasonable time for an insured to report a fatal accident to his insurer.”); Wallace v. State Farm Mut. Auto. Ins. Co., 187 Tenn. 692, 216 S.W.2d 697, 700 (Tenn. 1949) (“The language ‘as soon as practicable’ means a reasonable time.”).

We also conclude, under the undisputed facts of this case, that notice to Century would have been no less “practicable” than the notice given to the primary carriers. The record shows that Hipner notified the underlying primary insurance companies on March 31, 2011; however, he never directly provided notice to Century. Instead, Century received notice of the accident indirectly when Willis of Wyoming sent Century the policy renewal for Hipner. Jim Hipner attributed his failure to notify Century of the accident to his belief that notice to Willis of Wyoming satisfied his obligations to notify all of the insurance companies. Under the undisputed facts of this case, we conclude that Hipner did not provide timely notice of the accident to Century.

 

1. Prejudice to Century

We must now determine whether Century was prejudiced by the delay in receiving notice of the accident. Century received indirect notice of the accident on September 20, 2011, four months after the accident occurred.

Century argues [*13]  that the delay in receiving notice of the accident prejudiced it as a matter of law. Century contends that a rebuttable presumption of prejudice exists where the insured fails to show substantial compliance with a condition precedent, see Gainsco Ins. Co. v. Amoco Prod. Co., 2002 WY 122, 53 P.3d 1051, 1067 (Wyo. 2002), and that Hipner failed to submit evidence rebutting the presumption of prejudice to Century based on the delay in receiving notice of the claim. Century cites the following evidence in support of its argument that it was prejudiced: (1) Century was not provided the claim file from Great West, the underlying insurer, until nine months after the accident; (2) Great West did not do a timely or thorough investigation of the claim; (3) Great West did not retain defense counsel until about five months after the accident; (4) Century learning of an accident that occurred months prior prevented Century from interviewing witnesses while the facts were still fresh in their minds; (5) the vehicles were not preserved; and (6) Century was unable to take scene photos.

Century’s argument fails because Century does not show how the four-month delay in receiving notice actually prevented it from taking any meaningful investigatory steps that it would have done had [*14]  there been no delay. This is because Century chose not to investigate once it received the investigative materials from Great West. If Century believed that something was missing after receiving the investigative materials, it could have launched its own investigation or followed up with Great West’s investigation, but it chose not to. Specifically, it did not (1) interview any persons involved; (2) take any photographs of any vehicle involved in the accident or the accident scene; (3) obtain any medical records regarding any individual involved in the accident other than what Great West provided; (4) contact any employers of any of the people involved in the accident; (5) hire any outside company to do an investigation regarding witnesses, statements, or photographs; or (6) hire an accident reconstructionist. Century admitted that nothing prevented it from investigating further. During the span of time between when Century received notice–September 2011–and when it denied coverage–May 2012–Century made no attempt to ascertain whatever information that it deemed necessary. For that reason, we hold, as a matter of law, that Century suffered no prejudice from the delay in notice. As [*15]  the district court concluded:

 

Century Surety’s choice to rely on Great West’s investigation and not to independently investigate the accident, posed the substantial obstacle to Century Surety ascertaining the facts surrounding the accident rather than Hipner LLC’s failure to notify Century Surety for approximately three to four months. Century Surety cannot postpone its independent investigation based on its reliance on Great West’s investigation and then later submit Great West’s investigation was incompetent and that too much time has lapsed for Century Surety to perform an investigation; Century Surety cannot have it both ways.

 

 

 

 

III. Conclusion

Accordingly, we affirm the judgment of the district court.