     Case: 17-20261      Document: 00514203267         Page: 1    Date Filed: 10/20/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                            United States Court of Appeals

                                    No. 17-20261
                                                                                     Fifth Circuit

                                                                                   FILED
                                  Summary Calendar                           October 20, 2017
                                                                              Lyle W. Cayce
                                                                                   Clerk
NAUTILUS INSURANCE COMPANY,

              Plaintiff - Appellee

v.

IRMA MIRANDA-MONDRAGON,

              Defendant - Appellant



                  Appeals from the United States District Court
                       for the Southern District of Texas
                            USDC No. 4:16-CV-2881


Before WIENER, DENNIS, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Nautilus Insurance Company brought a declaratory judgment action
against its insured Houston Star Security Patrol and against Irma Miranda-
Mondragon. Nautilus argued that it owed no duty to defend or indemnify
Houston Star regarding the claim brought by Miranda-Mondragon.                              The
district court granted summary judgment to Nautilus. We AFFIRM.



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                   No. 17-20261
                FACTUAL AND PROCEDURAL BACKGROUND
      Irma Miranda-Mondragon was working as a waitress at a nightclub
when armed gunmen entered and began shooting at patrons and employees.
Miranda-Mondragon was shot in her chest and required significant medical
treatment for her injuries.
      Miranda-Mondragon filed a lawsuit in Texas state court against the
nightclub’s     operators,    Gustavo   Alvarez   and       Huetamo    Enterprises
Incorporated.     She later amended her complaint to include Houston Star
Security Patrol as a co-defendant. Miranda-Mondragon alleged that Houston
Star was the “security company on duty” the night she was shot and was
negligent “in not providing adequate security for” her. Houston Star was
served with process but did not make an appearance.
      On June 10, 2016, the state court granted Miranda-Mondragon’s motion
for default judgment against Houston Star.          Six weeks later, Miranda-
Mondragon’s counsel sent a letter to Houston Star’s insurer, Nautilus
Insurance Company. The letter contained a copy of the default judgment
rendered against Houston Star and sought from Nautilus “a resolution, and
payment of the judgment amount.”
      Nautilus responded by filing for a declaratory judgment in the United
States District Court for the Southern District of Texas. Nautilus sought a
determination that it owed no duty to defend or indemnify Houston Star for
the claim Miranda-Mondragon had brought against Houston Star. Although
Nautilus named Miranda-Mondragon and Houston Star as defendants,
Nautilus was unable to serve Houston Star. That company has never made an
appearance.
      Nautilus and Miranda-Mondragon later filed cross-motions for summary
judgment. The district court held a hearing on the motions and then entered


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                                  No. 17-20261
a final judgment granting Nautilus’s motion and denying Miranda-
Mondragon’s.
      The district court first found that Nautilus had not received notice of the
initial lawsuit until over 40 days after the state court entered a default
judgment against Houston Star. The district court concluded that under Texas
law, such a delay by an insured in providing notice of a suit resulted in
Nautilus having no duty either to defend Houston Star in the lawsuit or to
indemnify its insured for the default judgment. The absence of timely notice
also meant Miranda-Mondragon could not recover against Nautilus.
      The district court alternatively held that even if Houston Star had
provided Nautilus with timely notice, Miranda-Mondragon could still not
recover against Nautilus because her claim was excluded from Houston Star’s
insurance policy. We do not address this second part of the district court’s
judgment because we affirm as to the first part.
      Miranda-Mondragon timely appealed.


                                 DISCUSSION
      We review de novo a district court’s summary judgment ruling. Aldous
v. Darwin Nat’l Assurance Co., 851 F.3d 473, 477 (5th Cir. 2017). When there
are competing motions, we address “each party’s motion independently,
viewing the evidence and inferences in the light most favorable to the
nonmoving party.” Morgan v. Plano Indep. Sch. Dist., 589 F.3d 740, 745 (5th
Cir. 2009). “We will affirm the district court’s judgment if no genuine issues of
fact are presented and if judgment was proper as a matter of law.” Cal-Dive
Int’l, Inc. v. Seabright Ins. Co., 627 F.3d 110, 113 (5th Cir. 2010).
      Miranda-Mondragon contends that genuine issues of fact are present.
There is no factual dispute, though, that Nautilus first received notice of the
lawsuit when counsel sent a letter to Nautilus over 40 days after the state court
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entered default judgment against Houston Star. Settled Texas law provides:
“Compliance with the notice of suit provision is a ‘condition precedent to the
insurer’s liability on the policy.’” Harwell v. State Farm Mut. Auto. Ins. Co.,
896 S.W.2d 170, 173–74 (Tex. 1995) (quoting Weaver v. Hartford Accident &
Indem. Co., 570 S.W.2d 367, 369 (Tex. 1978)). “[W]hen an insurer first receives
notice of a suit after a default judgment has been entered, prejudice exists as
a matter of law.” Berkley Reg’l Ins. Co. v. Philadelphia Indem. Ins. Co., 690
F.3d 342, 350 (5th Cir. 2012) (citing Liberty Mut. Ins. Co. v. Cruz, 883 S.W.2d
164, 166 (Tex. 1993)). Such prejudice “relieves the insurer of liability under
the policy.” Cruz, 883 S.W.2d at 165.
      The insurance policy here contained a notice of suit provision requiring
Houston Star to notify Nautilus “as soon as practicable . . . [i]f a claim is made
or ‘suit’ is brought against” it and “[i]mmediately [to] send [Nautilus] copies of
any demands, notices, summonses or legal papers received in connection with
the claim or ‘suit’[.]”
      The first notice Nautilus received of the lawsuit came from Miranda-
Mondragon’s counsel 41 days after the state court entered default judgment
against Houston Star. The delayed notice prejudiced Nautilus as a matter of
law and relieved Nautilus of liability under the policy. See Berkley, 690 F.3d
at 350; Cruz, 883 S.W.2d at 165.
      AFFIRMED.




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