                                                                           FILED
                           NOT FOR PUBLICATION
                                                                           DEC 24 2015
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


ATLANTIC CASUALTY INSURANCE                      No. 13-35133
COMPANY,
                                                 D.C. No. 9:12-cv-00014-DWM
              Plaintiff - Appellee,

 v.                                              MEMORANDUM*

GTL, INC.,

              Defendant,

  And

JOHN P. GREYTAK; TANGLEWOOD
INVESTORS LIMITED PARTNERSHIP,

              Defendants - Appellants.


                  Appeal from the United States District Court
                          for the District of Montana
                Donald W. Molloy, Senior District Judge, Presiding

                        Argued and Submitted June 4, 2014
                               Seattle, Washington




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Before: McKEOWN and WATFORD, Circuit Judges and ROTHSTEIN,** Senior
District Judge.

                                          I

                                INTRODUCTION

      In this diversity action, Defendants-Appellants John P. Greytak and

Tanglewood Investors Limited Partnership (collectively, “Greytak”) appeal from the

final judgment entered following the granting of Plaintiff-Appellee Atlantic Casualty

Insurance Company’s (“Atlantic”) motion for summary judgment.

                                         II

                                  DISCUSSION

    Because this case presented a controlling question of first impression concerning

Montana law, on June 25, 2014, we certified the following question to the Montana

Supreme Court pursuant to Rule 15(3) of the Montana Rules of Appellate Procedure:

   Whether, in a case involving a claim of damages by a third party, an insurer
   who does not receive timely notice according to the terms of an insurance
   policy must demonstrate prejudice from the lack of notice to avoid defense and
   indemnification of the insured.

The Montana Supreme Court accepted jurisdiction of the certified question and has

rendered its decision. Atlantic Cas. Ins. Co. v. Greytak, No. OP 14-0412, 2015 WL

3444507 (Mont. May 29, 2015). The Court held that “an insurer who does not receive


       **
              The Honorable Barbara Jacobs Rothstein, Senior District Judge for the
U.S. District Court for the Western District of Washington, sitting by designation.
timely notice according to the terms of an insurance policy must demonstrate

prejudice from the lack of notice to avoid defense and indemnification of the insured.”

Id. at *4.

    Because the District Court determined that Atlantic was not required to establish

prejudice from lack of timely notice, it made no finding of fact as to prejudice.1 We

are therefore unable to determine, based on the record before us, whether Atlantic

demonstrated prejudice from Greytak’s untimely notice.

       Accordingly, we vacate the District Court’s grant of summary judgment in

favor of Atlantic and remand for the District Court to determine whether Atlantic has

established that it suffered prejudice as a result of Greytak’s lack of timely notice.

       VACATED AND REMANDED. Each party shall bear its own costs on

appeal.




       1
         “[Defendants] argue Atlantic Casualty must show it suffered prejudice as a result of the
deficient notice . . . . [R]ecent and pertinent binding authority is contrary to the argument and
authority of Defendants’ prejudice claims, which are without merit.” Atlantic Cas. Ins. Co. v.
GTL, Inc., 915 F. Supp. 2d 1169, 1176 (D. Mont. 2013).
