                                                                        F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                      UNITED STATES CO URT O F APPEALS
                                                                         April 18, 2007
                             FO R TH E TENTH CIRCUIT                 Elisabeth A. Shumaker
                                                                         Clerk of Court



    G RA IN D EA LER S M U TU A L
    IN SU RAN CE C OM PA N Y ,

              Plaintiff – Appellee,

     v.                                                   No. 06-7060
                                                   (D.C. No. 04-CV -019-JHP)
    C ARL H ILL, doing business as JHC                    (E.D. Okla.)
    M anagement Financial Corp.,

              Defendant – Appellant.



                              OR D ER AND JUDGM ENT *


Before L UC ER O, Circuit Judge, BROR BY, Senior Circuit Judge, and
M cCO NNELL, Circuit Judge.




          Carl Hill appeals the district court’s order granting summary judgment to

his former insurer, Grain Dealers M utual Insurance Co. (“G rain Dealers”). Hill

contends that Grain Dealers’ attempt to cancel his insurance coverage violated his




*
 After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and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.
policy and state law. Therefore, he argues, the policy remained in effect at the

time his business was destroyed by fire. W e conclude that Grain Dealers did not

comply with the terms of the policy when it canceled Hill’s coverage.

Accordingly, we REV ER SE the district court’s judgment and REM AND for

further proceedings.

                                             I

      In M ay 2003, Hill renewed his insurance policy with Grain Dealers to cover

his business from M ay 28, 2003 to M ay 28, 2004. He elected to pay monthly

installments of $145.50, except for the first payment of $301 which he made on

M ay 12, 2003. Hill contends that this payment consisted of a $20 past due

amount, and two monthly payments. Future payments were due on the 28th of

each month. In June, Grain Dealers sent Hill a bill requesting payment of

$145.50 by June 28. He sent this payment late, on July 9; Grain Dealers received

it on July 14. In the meantime, Grain Dealers had issued a cancellation notice on

July 7, demanding payment of $306 by July 27. The notice stated that, if payment

was not received by that date, the policy would be canceled effective July 27 at

12:01 a.m. The $306 figure represented tw o monthly payments, plus a late fee.

Hill claims he never received this notice.

      Grain Dealers cashed Hill’s July 9 check, but did not reinstate the policy

because the payment was for less than the full amount demanded. It sent Hill a

refund check on August 20, after deducting a $20 late fee. Hill’s business was

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destroyed by fire on August 29. In a cruel twist of fate, he received Grain

Dealers’ refund check the next day. Grain Dealers refused to cover Hill’s losses

on the ground that the policy had been canceled effective July 27.

      Invoking diversity jurisdiction under 28 U.S.C. § 1332, Grain Dealers filed

suit seeking a declaratory judgment that it had no contractual obligation to Hill

after the policy was canceled on July 27, 2003. The district court granted Grain

Dealers’ motion for summary judgment, concluding that it had followed the

required procedures to cancel the policy. The district court’s order did not

explain, however, why Grain Dealers could accelerate the payment schedule to

demand payment of the July 28 premium on or before July 27, or why it could

reject the $145.50 payment sent on July 9 for the July premium.

                                          II

      W e review de novo the district court’s grant of summary judgment, viewing

the record in the light most favorable to the party opposing summary judgment.

Lanman v. Johnson County, 393 F.3d 1151, 1154-55 (10th Cir. 2004). Summary

judgment is appropriate if there is no genuine issue of material fact and the

moving party is entitled to judgment as a matter of law . Fed. R. Civ. P. 56(c);

Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).

      The parties agree that Oklahoma state law controls. In this diversity case,

we must “apply Oklahoma law with the objective that the result obtained in the




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federal court should be the result that would be reached in an Oklahoma court.”

Blanke v. Alexander, 152 F.3d 1224, 1228 (10th Cir. 1998) (quotation omitted).

      “To ascertain the nature of [an insurer’s] contractual obligations to [the

insured] . . . we must examine the provisions of the policy.” M ay v. M id-Century

Ins. Co., 151 P.3d 132, 140 (Okla. 2006). Hill’s insurance contract included a

section entitled, “Commercial Direct Bill Payment Plan,” which provides:

      Cancellations

      Any monthly bill not paid within the payment grace period will
      automatically prompt a cancellation notice for nonpayment of
      premium. The effective date of cancellation will be the later of
      either the paid premium earned date or determined according to the
      number of state legal days, plus mailing time. This will vary
      between states.

      ...

      Reinstatements

      W e will automatically reinstate the policy when at least the past due
      premium is received and the payment envelope is post marked [sic]
      prior to the cancellation date. There is no reinstatement fee;
      however, there is an NSF fee of $20.00 for any non-sufficient funds
      payment.

(emphasis added).

      Grain Dealers, as the insurer and drafter of the insurance contract, carries

the burden of establishing its right to demand that the payment due July 28 be

paid on or before July 27, as well as its right to reject Hill’s late payment for the

July premium. See Liverpool, London & Globe Ins. Co. v. Tharel, 174 P. 773,



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774 (Okla. 1918) (holding burden is on insurance company to demonstrate strict

compliance w ith insurance contract’s cancellation provisions); see also M etro.

Life Ins. Co. v. Rosier, 117 P.2d 793, 796 (Okla. 1941) (stating “all doubt arising

from ambiguities and conflicting provisions is resolved against the one who

prepared the [insurance] contract”).

      Grain Dealers received Hill’s past-due payment, postmarked July 9, well

before the July 27 cancellation date. Under the “Reinstatements” policy provision

quoted above, it was then required to “automatically reinstate the policy.” G rain

Dealers maintains that the July payment could not reinstate the policy because the

policy had not yet been canceled. This argument is plainly meritless. The

“Reinstatements” provision explicitly states that the policy will be reinstated if

payment is mailed “prior to the cancellation date.” The term “reinstatement,” as

used in the policy, clearly applies to situations in which a cancellation notice has

been issued, but that policy has yet to be cancelled.

      To the extent that the term “reinstatement” could be considered ambiguous,

it must then be construed against Grain Dealers. See M cM inn v. City of

Oklahoma City, 952 P.2d 517, 522 (Okla. 1997) (“If terms in the contract are

ambiguous, it must be construed against the drafter of the contract.”); see also

M ax True Plastering Co. v. U.S. Fid. & Guar. Co., 912 P.2d 861, 869 (Okla.

1996) (“The interpretation of an insurance contract and whether it is ambiguous is

determined by the court as a matter of law .”). A ccordingly, we reject Grain

                                          -5-
Dealers’ argument that it could not reinstate Hill’s policy because it was not yet

cancelled.

      W e also construe the phrase “at least the past due premium” against G rain

Dealers. On July 27, the date of cancellation, only the June 28 premium was past

due. The second $145.50 included in the cancellation notice was not due until

July 28. Grain Dealers asserts, without citation to the record, that it “was fully

within policy terms to also include the July premium payment.” But it is

incumbent upon Grain Dealers, not Hill, to cite to a policy provision or legal

authority permitting it to accelerate the due date for the July 28 payment. It has

not done so. The cancellation notice also demanded payment of a late fee.

However, construing the policy in favor of Hill, we conclude that a late fee is not

a part of the “past due premium.” Accordingly, Hill’s July payment of $145.50,

not the $306 demanded by Grain D ealers, satisfied his obligation to pay the “past

due premium” and Grain D ealers has not established its right to cancel Hill’s

insurance coverage.

      W e recognize that Hill did not make the payments due on July 28 and

August 28. He states that he did not receive a bill and did not realize he owed a

payment. Grain Dealers did not send a bill because it had purportedly canceled

the policy. Nevertheless, an insurance policy remains in effect until it is properly

canceled. See Commercial Union Fire Ins. Co. v. M iller, 248 P. 1112, 1112-14

(Okla. 1926); see also Empire Fire & M arine S. Co. v. Spurlock, 593 P.2d 768,

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770 (O kla. 1979) (holding workers’ compensation insurance policy remained in

effect because it was not canceled pursuant to statutory requirements). Because

Grain Dealers’ attempt to cancel the policy was ineffective, the policy remained

valid notwithstanding Hill’s failure to pay the premiums due July 28 and August

28. See Bankers’ Reserve Life Co. v. Rice, 226 P. 324, 326 (Okla. 1924) (“The

mere default in payment by the insured does not affect the validity of the contract

of insurance. The provision in the note amounts only to an option in favor of the

company to forfeit the insurance, if it should elect to do so.”).

                                          III

      Finally, Hill asserts claims against G rain Dealers for breach of contract,

bad faith, and estoppel. Grain Dealers maintains that these claims were not

properly before the district court. W e do not address this issue, leaving it for the

district court to determine. Grain Dealers’ m otion to file a surreply brief to

address this dispute is DENIED.

                                          IV

      The judgment of the district court is REVERSED and the case is

R EM A N DED for further proceedings consistent with this order and judgment.

                                                      Entered for the Court



                                                      Carlos F. Lucero
                                                      Circuit Judge



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