                                                             FILED
                                                 United States Court of Appeals
                    UNITED STATES COURT OF APPEALS       Tenth Circuit

                           FOR THE TENTH CIRCUIT                      February 13, 2014

                                                                     Elisabeth A. Shumaker
                                                                         Clerk of Court
NATIONWIDE MUTUAL INSURANCE
COMPANY,

             Plaintiff-Appellee,

v.                                                         No. 12-3078
                                                 (D.C. No. 2:11-CV-02119-DJW)
LEANN M. BRIGGS, individually and as                        (D. Kan.)
personal representative of the Estate of
Melvin L. Briggs; STEVEN L. BRIGGS;
BRYAN W. BRIGGS; MARK L.
BRIGGS,

             Defendants-Appellants,

and

LETHA GERALDINE SKIVERS,

             Defendant.


                            ORDER AND JUDGMENT*


Before KELLY, O’BRIEN, and MATHESON, Circuit Judges.



      *
        After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of this
appeal. See Fed. R. App. P. 34(a)(2); 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
       Defendants Leann M. Briggs, Steven L. Briggs, Bryan W. Briggs, and

Mark L. Briggs appeal from the district court’s decision granting summary judgment

in favor of plaintiff Nationwide Mutual Insurance Company. We have jurisdiction

over this diversity case pursuant to 28 U.S.C. § 1291, and we affirm.

                                    I. BACKGROUND

       Nationwide issued a commercial insurance policy to Melvin Briggs d/b/a

Briggs Sod Farm on a 2002 Toyota Camry. The policy included uninsured motorist

coverage. On September 11, 2008, Melvin Briggs was a passenger in the Toyota

Camry that collided with a vehicle operated by an uninsured motorist. Mr. Briggs

died as a result of the injuries he sustained in that accident.

       Defendants, the children of Melvin Briggs, made a claim under the Nationwide

policy for uninsured motorist benefits. Nationwide denied coverage, asserting that it

had non-renewed the policy eight days before the accident. Nationwide then filed

this action for declaratory relief, requesting a judgment declaring that coverage

terminated on September 3, 2008.

       Nationwide subsequently moved for summary judgment, asserting that the

notice of non-renewal sent on June 27, 2008 complied with the relevant Kansas

statutes and all provisions in the policy as to the timing, delivery method, and

required content of the notice. It argued that the notice of non-renewal terminated

coverage and that Nationwide therefore was entitled to judgment as a matter of law.




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      In response, defendants argued that Kansas law and the policy prohibit

non-renewal of coverage except in limited circumstances and that Nationwide had

failed to prove that its reason for non-renewal was authorized by the policy and

Kansas law.

      The district court granted summary judgment for Nationwide. The court

concluded that Nationwide complied with the requirements for notification of

non-renewal and that policy coverage thereby ended effective September 3, 2008.

The court further determined that any alleged factual disputes about the reasons for

non-renewal were not material. This appeal followed.

      Because this appeal involved an unsettled area of Kansas law, we abated the

appeal and certified a question to the Kansas Supreme Court. That court slightly

rephrased our question1 as follows: “Is notice to nonrenew an insurance policy that

complies with the procedure set out in K.S.A. 2012 Supp. 40-3118(b) and the policy

sufficient to force a lapse of coverage, regardless of whether a proper substantive

basis for nonrenewal exists under K.S.A. 2012 Supp. 40-276a(a) and the policy?”

Nationwide Mut. Ins. Co., ___ P.3d ___, 2014 WL 497067, *1 (Kan. Feb. 7, 2014).

The court answered: “Yes.” Id. at *2. We thank the Kansas Supreme Court for its




      1
        Our initial question was: “Under Kansas law, is proper notice sufficient to
non-renew insurance coverage regardless of whether there is an authorized basis for
non-renewal under the policy or Kan. Stat. Ann. § 40-276a?” Nationwide Mut. Ins.
Co. v. Briggs, 491 F. App’x 931, 932 (10th Cir. 2012).


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careful consideration of our certified question. We lift the abatement and proceed to

the merits of the appeal.

                                  II. DISCUSSION

      We review de novo the district court’s summary judgment decision. Twigg v.

Hawker Beechcraft Corp., 659 F.3d 987, 997 (10th Cir. 2011). “Summary judgment

is appropriate ‘if the movant shows that there is no genuine dispute as to any material

fact and the movant is entitled to judgment as a matter of law.’” Id. (quoting

Fed. R. Civ. P. 56(a)). “In applying this standard, we view the evidence and the

reasonable inferences to be drawn from the evidence in the light most favorable to

the nonmoving party.” Id.

      In its motion for summary judgment, Nationwide asserted it was entitled to

judgment because it complied with all provisions in the policy and Kansas law “as to

notice timing, delivery method and required content” for non-renewal. Aplt. App. at

86. Nationwide never gave the reason for non-renewal in its motion, simply noting

that it had a “legitimate reason for not renewing the Policy.” Id. at 87 n.1.

      On appeal, defendants admit that Nationwide complied with the statutory and

policy notice requirements. They argue, however, that Nationwide “failed to prove

by uncontroverted fact that it non-renewed the policy for any of the reasons permitted

by its policy or by statute.” Aplt. Br. at 21. Under these circumstances, they contend

the non-renewal was invalid and coverage did not terminate under the contract. They

assert that summary judgment was inappropriate because, “[a]t a minimum, there is a


                                          -4-
fact issue as to whether Nationwide non-renewed the policy for a reason permitted by

its policy and the statute.” Id.

       In its answer to the certified question, the Kansas Supreme Court explained:

       Notice to nonrenew an insurance policy that complies with the
       procedure set out in K.S.A. 2012 Supp. 40-3118(b) and a consistent
       provision in the policy itself is sufficient to effectively nonrenew
       coverage, regardless of whether there is a permissible substantive basis
       for nonrenewal under K.S.A. 2012 Supp. 40-276a(a) and consistent
       policy language.

Nationwide, ___ P.3d ___, 2014 WL 497067, at *6.

       Nationwide complied with the statutory and policy notice requirements in

nonrenewing the policy and—based on the foregoing passage—it is not relevant here

whether Nationwide had a permissible substantive basis for nonrenewal.

Accordingly, coverage under the policy terminated on September 3, 2008, and the

district court properly granted summary judgment in favor of Nationwide.2


       2
           We note, however, the Kansas Supreme Court’s following statement:

       If Nationwide lacked a permissible substantive reason to refuse to renew
       Melvin’s policy, then it violated K.S.A.2012 Supp. 40–276a(a) and
       breached the contract of insurance. The violation and breach occurred
       at the moment of the wrongful nonrenewal— i.e., while the policy was
       still in force. Nationwide would be liable for any damages caused by its
       breach.

              In addition, if Nationwide violated the substantive provisions of
       K.S.A.2012 Supp. 40–276a(a), it may be subject to administrative
       penalties under the Unfair Trade Practices Act, K.S.A. 40–2401 et seq.

Nationwide, ___ P.3d ___, 2014 WL 497067, at *6.


                                         -5-
                         III.   CONCLUSION
We affirm the judgment of the district court.

                                        ENTERED FOR THE COURT



                                        Scott M. Matheson, Jr.
                                        Circuit Judge




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