Republic Waste Services of Texas, Ltd. v. Empire Indemnity Insurance , 98 F. App'x 970 ( 2004 )

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this opinion should not be published and is not precedent except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).
4