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NOT FOR PUBLICATION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).