                                                                           F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                           APR 21 2003
                             FOR THE TENTH CIRCUIT
                                                                       PATRICK FISHER
                                                                                Clerk

    CLARENDON AMERICA
    INSURANCE COMPANY,

                 Plaintiff-Appellee,
                                                           No. 00-6319
    v.                                              (D.C. No. 98-CV-1761-M)
                                                          (W.D. Okla.)
    CONTINENTAL MASONRY
    CORPORATION,

                 Defendant-Appellant.


                             ORDER AND JUDGMENT           *




Before EBEL , HENRY , and MURPHY , Circuit Judges.




         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      This order and judgment is not binding precedent, except under the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. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
      Plaintiff-appellee Clarendon America Insurance Company (Clarendon) filed

this declaratory judgment action pursuant to 28 U.S.C. § 2201 against

defendant-appellant Continental Masonry Corporation (Continental), seeking a

declaration that it was not obligated to provide coverage for an indemnity claim

made against Continental because it did not receive timely notice of the claim.

Jurisdiction in the district court was based on diversity of citizenship pursuant to

28 U.S.C. § 1332. Because this is a diversity case, the district court applied the

substantive law of the forum state, Oklahoma.    See Farmers Alliance Mut. Ins. Co.

v. Salazar , 77 F.3d 1291, 1294 (10th Cir. 1996). The district court entered

summary judgment in favor of Clarendon, concluding it could properly deny

coverage under the insurance policy at issue. We affirm.

      The parties to this case are familiar with its facts and procedural history,

which are accurately and thoroughly set forth in the district court’s order; thus, we

only very briefly summarize them here. During the relevant period, Continental

was covered by a commercial liability insurance policy issued by Mid-Continent

Casualty Company (Mid-Continent) and a commercial umbrella policy issued by

Clarendon. It purchased both policies through Insurance Agency of Mid-America

(IAM). Clarendon’s policy required Continental to notify it or Continental’s

broker of any accident or injury which could result in a liability claim as soon as

possible, even if no claim had been made. The policy also required Continental to


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send Clarendon copies of all demands or legal documents if someone made a claim

or started a lawsuit.

      The loss in question occurred in November 1988. It is undisputed that

Continental did not notify any of its insurers of the loss incident. The injured

parties filed a lawsuit against Continental in 1990, but later voluntarily dismissed

it. Continental did notify IAM of this first lawsuit, but Mid-Continent is the only

insurer listed in its loss notice. There is no evidence Clarendon was notified of

this first, dismissed lawsuit.

      The injured parties filed a second lawsuit in 1991, naming different

defendants, one of whom filed a third-party complaint against Continental in 1992,

seeking indemnification. Continental did not notify Clarendon about either the

injured parties’ second lawsuit or the indemnification action filed against it, nor

did it send Clarendon copies of any of the relevant legal documents. In November

1997, the injured parties obtained a $2,150,000 judgment. In March 1998,

Continental notified Clarendon of this judgment and the indemnification claim

against it, seeking coverage. Clarendon then filed this declaratory action,

claiming, among other things, that Continental had breached the terms of the

policy by failing to give it timely notice.

      Both parties filed motions for summary judgment. Clarendon presented

undisputed evidence that it received no notice of any accident or injury, no notice


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of any claim or lawsuit, and no copies of any demands or legal documents until

March 1998, almost ten years after the loss occurred. Continental contended the

loss notice it provided to IAM in 1990 about the first dismissed lawsuit satisfied

its notice obligations under the policy, regardless of whether Clarendon ever

actually received notice.

      The district court rejected Continental’s argument, holding that IAM was

not Clarendon’s agent as a matter of law under Okla. Stat. tit. 36, § 1423(B)

(1990), 1 and therefore, notice to IAM did not constitute notice to Clarendon.

Further, it ruled that any notice to IAM of the first lawsuit in 1990 was

insufficient, because that action was dismissed and Continental never provided

notice to Clarendon of the second lawsuit or the indemnity claim. The district

court also ruled that Clarendon was prejudiced by Continental’s failure to provide

timely notice. Because Continental failed to give Clarendon timely notice of

either the incidents giving rise to the claims or the claims themselves, as required

by the policy, the district court ruled Clarendon could properly deny coverage.



1
       Clarendon is licensed in Oklahoma only to sell excess and surplus lines
policies, and may only do so through an excess and surplus lines broker.
Although Continental utilized IAM to acquire its umbrella policy from Clarendon,
IAM actually utilized an excess and surplus lines broker, Westphalen, Bradley &
James, Inc., to acquire the policy on behalf of Continental. Section § 1423(B),
since renumbered as Okla. Stat. tit. 1435.3 (B) (2003), provides that a surplus
lines insurance broker “shall . . . be regarded as representing the insured or the
insured’s beneficiary and not the insurer.”

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       “We review a grant of summary judgment de novo, applying the same

standard as the district court.”   Ferroni v. Teamsters, Chauffeurs & Warehousemen

Local No. 222 , 297 F.3d 1146, 1149 (10th Cir. 2002). Summary judgment is

proper if the moving party shows “that there is no genuine issue as to any material

fact and that the moving party is entitled to a judgment as a matter of law.”

Fed. R. Civ. P. 56(c). “When reviewing cross-motions for summary judgment,

‘our review of the record requires that we construe all inferences in favor of the

party against whom the motion under consideration is made.’”        Pirkheim v. First

Unum Life Ins. , 229 F.3d 1008, 1010 (10th Cir. 2000) (quoting      Andersen v.

Chrysler Corp ., 99 F.3d 846, 856 (7th Cir. 1996)).

       On appeal, Continental first contends the district court erred in ruling that

IAM was not its agent and, therefore, that its 1990 notice to IAM failed to satisfy

its notice obligations. Continental contends that, notwithstanding § 1423(B), the

terms of the Clarendon policy permitted it to provide notice to its broker, which it

identifies as IAM. We need not resolve IAM’s agency status under § 1423,

however, because, even if IAM was the authorized broker through whom

Continental could give notice to Clarendon, its 1990 notice was insufficient to

satisfy the notice requirements under the Clarendon policy.      See Griffin v. Davies ,

929 F.2d 550, 554 (10th Cir. 1991) (holding that this court will not “undertake to

decide issues that do not affect the outcome of a dispute”).


                                            -5-
       The loss notice that Continental gave to IAM in 1990 listed only

Mid-Continent as its insurer and referenced only the Mid-Continent general

liability policy. Aplt. App. at 96. Continental’s 1990 loss notice made no

reference whatsoever to Clarendon or the Clarendon umbrella policy. Quite

simply, Continental’s loss notice neither requested nor authorized IAM to notify

Clarendon of any potential or actual loss or claim.

       Moreover, we agree with the district court that the 1990 loss notice was

insufficient because it only provided notice of the 1990 lawsuit, which was

voluntarily dismissed shortly thereafter. It is undisputed that Continental gave

Clarendon no notice of the injured parties’ second lawsuit, which actually

proceeded to trial and judgment, or the indemnification action filed against

Continental. Continental does not suggest a reason why the 1990 notice would be

adequate to notify Clarendon of these two later-filed actions, other than to

summarily assert it is immaterial, nor does it dispute the district court’s ruling that

the 1990 loss notice was insufficient in this regard.   See Snell v. Tunnell , 920 F.2d

673, 676 (10th Cir. 1990) (holding this court will not reach out and decide issues

where the adverse ruling has not been appealed). Further, Continental does not

challenge the district court’s factual finding, based on the undisputed evidence,

that Continental failed to send Clarendon copies of any legal documents relating to

any claim or action until March 1998, or its legal conclusion, based on the plain


                                             -6-
meaning of the policy, that this failure violated the policy terms, requiring

Continental to send copies of    all legal demands or legal documents directly to

Clarendon. See id.; see also VBF, Inc. v. Chubb Group of Ins. Cos.      , 263 F.3d

1226, 1230 (10th Cir. 2001) (holding, under Oklahoma law, that insurance

contracts are to be interpreted “according to the plain meaning of the language in

the policy”).

       Because we agree with the district court’s conclusion that Continental did

not notify Clarendon of the claim until March 1998, we need not address its

second argument on appeal that the 1990 notice was timely, despite its failure to

give notice of the 1988 incidents giving rise to the ultimate claims.

       For the reasons more fully stated by the district court, we also reject

Continental’s third contention: that Clarendon was not prejudiced by its failure to

give timely notice. Although the indemnification action was still pending when

Continental gave notice in March 1998, the underlying action had proceeded to

judgment. It is undisputed that, because of the nearly ten-year delay, Clarendon

was unable to find any record of the policy, to undertake its own investigation or

analysis of the claim, to participate with the primary insurer in the underlying

litigation in an effort to resolve the claim within the collective policy limits, or to

obtain reinsurance protection from its reinsurers.   See Montgomery v. Prof’l Mut.

Ins. Co. , 611 F.2d 818, 819-20 (10th Cir. 1980) (holding that nearly four-year


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delay between claim and notice to insurer “to be beyond all periods of reason,” and

sufficient to demonstrate prejudice as a matter of law).

      Finally, Continental claims there are genuine issues of material fact in

dispute, precluding summary judgment. It does not specifically identify any such

disputed facts, nor do we find there to be any genuine issue of material fact in

dispute. See Anderson v. Liberty Lobby, Inc     ., 477 U.S. 242, 248 (1986) (holding

that, “[o]nly disputes over facts that might affect the outcome of the suit under the

governing law will properly preclude the entry of summary judgment”).

      The judgment of the United States District Court for the Western District of

Oklahoma is AFFIRMED. Continental’s counsel’s motion to withdraw is

GRANTED.



                                                       Entered for the Court



                                                       David M. Ebel
                                                       Circuit Judge




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