                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                   April 14, 2015
                   UNITED STATES COURT OF APPEALS
                                                Elisabeth A. Shumaker
                                                                    Clerk of Court
                                TENTH CIRCUIT



 DEAN CRAFT,

              Plaintiff - Appellant,

 v.                                                      No. 13-1209
                                               (D.C. No. 1:13-CV-00448-RPM)
 PHILADELPHIA INDEMNITY                                  (D. of Colo.)
 INSURANCE COMPANY, a foreign
 corporation,

              Defendant - Appellee.


                           ORDER AND JUDGMENT *


Before BRISCOE, Chief Judge **, TYMKOVICH, and MATHESON, Circuit
Judges.


      This case is again before us following the Colorado Supreme Court’s ruling

on questions certified to it concerning issues of state law. For the reasons stated

by the Supreme Court, we now AFFIRM the judgment of the district court.




      *
         This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
      **
         In accord with our order dated March 2, 2015, Chief Judge Mary Beck
Briscoe was randomly assigned to succeed Judge William J. Holloway, Jr. on this
panel.
      The facts underlying this appeal are recounted in detail in our certification

order, so we limit our recitation here to a summary of key facts. See Craft v.

Phila. Indem. Ins. Co., 560 F. App’x 710, 711 (10th Cir. 2014). Dean Craft sued

his insurer, Philadelphia Indemnity Insurance Company, after it denied his claim

for reimbursement of costs stemming from a suit against him in his capacity as an

officer of a company. The policy issued by Philadelphia Indemnity provided

liability coverage to officers and directors, but required the insured to comply

with two notice requirements: a prompt notice requirement—to give notice “as

soon as practicable” after the insured learned of a claim—and a date-certain

notice requirement—to give notice “not later than 60 days” after the policy

expired. Craft, unaware of the policy’s existence, did not notify Philadelphia

Indemnity of the claim until more than a year after the policy period had expired.

      The district court granted Philadelphia Indemnity’s motion to dismiss the

suit for failure to provide timely notice. In doing so, the district court rejected

Craft’s argument that he should receive the benefit of Colorado’s notice-prejudice

rule for liability insurance policies, which provides that “late notice does not

result in loss of coverage benefits unless the insurer proves prejudice to its

interests by a preponderance of the evidence.” Friedland v. Travelers Indem. Co.,

105 P.3d 639, 643 (Colo. 2005). The court held as a matter of law that the rule




                                          -2-
extends to occurrence policies but not to claims-made policies such as the one

issued by Philadelphia Indemnity. 1

      Recognizing that the Colorado Supreme Court had never had the occasion

to clarify the reach of its notice-prejudice rule, we certified the following

questions to the court: (1) whether Colorado’s notice-prejudice rule applies to

claims-made liability insurance policies, and (2) if so, whether the rule applies to

both types of notice requirements—that is, both the prompt notice and date-

certain requirements—in those policies. See Craft, 560 F. App’x at 715.

      Before the Supreme Court, the parties agreed that the policy’s prompt

notice requirement was not at issue. The court thus narrowed its focus to

“whether the notice-prejudice rule applies to the date-certain notice requirement

of a claims-made policy.” Craft v. Phila. Indem. Ins. Co., 343 P.3d 951, 954

(Colo. 2015). The court answered in the negative, holding that the rule does not

apply to a date-certain notice requirement in a claims-made insurance policy.




      1
         An “occurrence” policy is a “policy that provides liability coverage only
for injury or damage that occurs during the policy term, regardless of when the
claim is actually made.” Craft v. Phila. Indem. Ins. Co., 343 P.3d 951, 957 (Colo.
2015) (quoting 3 Colo. Code Regs. § 702–5:5–1–8 (2014)). A “claims-made”
policy is a “policy that provides coverage only if a claim is made during the
policy period or any applicable extended reporting period.” Id. (quoting 3 Colo.
Code Regs. § 702–5:5–1–8 (2014)).

                                         -3-
      Because Craft’s was a claims-made policy and he gave notice of his claim

far past the policy’s sixty-day date-certain notice requirement, the Supreme

Court’s ruling requires that we AFFIRM the district court’s dismissal.

                                      ENTERED FOR THE COURT

                                      Timothy M. Tymkovich
                                      Circuit Judge




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