                                                        United States Court of Appeals
                                                                 Fifth Circuit
                                                              F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                                                                May 7, 2004
                       FOR THE FIFTH CIRCUIT
                                                          Charles R. Fulbruge III
                                                                  Clerk

                           No. 03-41270



REPUBLIC WASTE SERVICES OF TEXAS, LTD,

                                               Plaintiff - Appellant,

                              versus

EMPIRE INDEMNITY INSURANCE CO,

                                               Defendant - Appellee.



          Appeal from the United States District Court
               for the Southern District of Texas


                           ( 02-CV-737 )

Before HIGGINBOTHAM, DENNIS, and CLEMENT, Circuit Judges.

PER CURIAM:*

     Plaintiff-Appellant Republic Waste Services of Texas appeals

the district court’s order granting summary judgment in favor of

Empire Indemnity Insurance Company.        Republic sought insurance

coverage from Empire, claiming it was an additional insured under

a policy Empire issued to Rustin Transportation Company.         Empire

denied coverage and Republic brought this suit. The district court


     *
        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this opinion should not be published and is not precedent except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.

                                 1
found that coverage was precluded because Republic did not qualify

as an additional insured under Rustin’s policy.                      Our review is de

novo,1 and we AFFIRM.

       The policy’s additional insured provision states that “[a]ny

person(s) or organization(s) with whom you [Rustin] agree in a

written construction contract to name as an insured [] is an

insured with respect to liability arising out of ‘your work.’”

However, the policy makes clear that additional insured coverage

will       be   provided    “only   when          [Empire]   [is]    notified      via   a

certificate        of      insurance     so        designating      such      person     or

organization, said certificate’s issue date serving as effective

date       herein.”        Moreover,     the       policy    provides      that    Empire

“reserve[s] the right to decline or refuse any Additional Insured

from coverage” by informing the additional insured within fifteen

days of receiving the certificate of insurance.                               This policy

language        clearly     conditions         additional      insured         status    on

notification to Empire through a certificate of insurance, and if

Empire does not deny coverage, the additional insured’s coverage

runs from the issue date of the certificate.

       Republic’s       assertion      that       it   qualifies    as   an    additional

insured under the policy must fail because it did not properly

notify Empire of its alleged additional insured status by sending



       1
       Holtzclaw v. DSC Communications Corp., 255 F.3d 254, 257-58
(5th Cir. 2001).

                                              2
Empire its certificate of insurance.               Proper notification and

allowing Empire the opportunity to deny coverage are conditions

precedent under the policy. Specifically, the policy provides that

Empire will be obligated to an additional insured “only when we

[Empire] are notified via a certificate of insurance so designating

such person or organization.”          The certificate of insurance was

issued on April 26, 2000, but Republic did not send Empire a copy

of the certificate until April 26, 2002 - two years later and three

days before trial.

     It   was    Republic’s   burden       to   abide   by   these   conditions

precedent.      Under Texas law, additional insureds are strangers to

an insurance policy and must bear the burden of proving additional

insured status.2     Moreover, the party claiming additional insured

status is held to the same obligation as the policyholder to review

the policy; reliance on a certificate alone is unreasonable.3                As

a result, Republic was under a duty to review the policy, abide by

its conditions, and prove additional insured status.                  Republic

failed to satisfy the condition precedent of proper notification

and its claim fails under Texas law.

     In support of its claim that Empire was properly notified,



     2
      Republic Nat’l Bank of Dallas v. Nat’l Bankers Life Ins. Co,
427 S.W.2d 76, 80 (Tex. App.–Dallas 1968, writ ref’d n.r.e.).
     3
       TIG Ins. Co. v. Sedgwick James of Washington, 184 F. Supp.
2d 591, 603-04 (S.D. Tex. 2001), aff’d 276 F.3d 754 (5th Cir.
2002).

                                       3
Republic claims that Rustin’s insurance agent was an agent of

Empire, and Empire is therefore deemed to have known that the

certificate of insurance was issued.    This argument was not raised

below and is therefore waived.4        Republic presented no other

summary judgment evidence indicating that Empire was properly

notified under the contract.

     Given Republic’s failure to raise a genuine issue of material

fact that it properly notified Empire of its alleged additional

insured status, summary judgment was appropriate.

     AFFIRMED.




     4
       Stokes v. Emerson Elec. Co., 217 F.3d 353, 358 n.19 (5th
Cir. 2000).

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