11 Certification from the United States Court of Appeals for
the Eighth Circuit The Honorable Lavenski R. Smith, Judge
Representing Appellant: Christopher C. Voigt and Nicholas T.
Haderlie of Crowley Fleck PLLP, Sheridan, Wyoming; Jeffrey C.
Gerish of Plunkett Cooney, Bloomfield Hills, Michigan;
Bradford S. Moyer of Plunkett Cooney, Kalamazoo, Michigan.
Argument by Mr. Gerish.
Representing Appellees: Duane A. Lillehaug of Maring Williams
Law Office, P.C., Fargo, North Dakota, representing Jim
Hipner, LLC; Colleen M. Pratt and Michael D. Ainbinder of
Ainbinder & Pratt, Long Beach, California, representing
Huey Brock; Philip White Jr. of Karpan and White P.C.,
Cheyenne, Wyoming, representing Jim Hipner, LLC and Huey
Brock. Argument by Mr. Ainbinder.
BURKE, C.J., and HILL, DAVIS, FOX, and KAUTZ, JJ.
The United States Court of Appeals for the Eighth Circuit
certified a question to this Court concerning the
enforceability of an insurance policy notice provision.
Specifically, the Eighth Circuit asked:
[W]hether, under Wyoming law, an insurer must be prejudiced
before being entitled to deny coverage when the insured has
failed to give notice "as soon as practicable."
Many states have expressly adopted a notice-prejudice rule
under which an insurer will only be able to disclaim coverage
if it demonstrates it was actually prejudiced by late notice.
See 46A C.J.S. Insurance § 1769. To date,
Wyoming has not.
answer in the affirmative.
Although the parties provided a record containing various
documents, we find it unnecessary to refer to that record.
Where a question of law is certified to this Court pursuant
to W.R.A.P. 11, we rely upon the factual determinations of
the certifying court. Wexpro Co. v. Brimhall, 7 P.3d
42, 43 (Wyo. 2000); Allhusen v. State By and Through Wyo.
Mental Health Professions Licensing Bd., 898 P.2d 878,
881 (Wyo. 1995). The following facts were provided in the
Eighth Circuit's Order for Certification of Questions of
In 2010, [Jim Hipner, LLC ("Hipner")], a trucking
company, obtained a $2 million umbrella policy ("Century
Policy") from Century [Surety Company
("Century")] in order to secure a contract with a
customer. In paragraph 3, the Century Policy contains the
following notice provision:
b. If you notify any "underlying insurer" of an
"occurrence" or an offense involving "bodily
injury" or "personal and advertising injury",
you must see to it that we are also notified in writing as
soon as practicable.
Later, in the same paragraph, the Century Policy contains an
exclusion provision that states:
Failure to notify us, as required per paragraphs 3.a. and
3.b. above, of an "occurrence" or offense as soon
as practicable will result in exclusion of coverage whether
we are prejudiced or not.
On March 31, 2011, one of Hipner's drivers created a road
obstruction that produced an injury-generating, multi-vehicle
collision ("the accident") in North Dakota.
According to the North Dakota Motor Vehicle Crash Report, a
passenger in a car that was rear-ended by another vehicle
suffered injuries deemed minor at the time. The Motor Vehicle
Crash Report indicates that the other persons involved in the
accident had "non-incapacitating" injuries at the
time of the accident. Jim Hipner ("Jim"), a
co-owner of Hipner, learned of the accident the same day that
Jim testified that, upon his arrival to the scene of the
accident, the state patrol officer told him "there were
no serious injuries." Jim also testified that the
officer told him that one of the passengers had "some
numbness or tingling, " but that "it was nothing to
worry about" and that this "happens quite often in
these cases." According to the medical records, one
person, Huey Brock, arrived at Trinity Hospital on March 31
unable to move his arms or legs.
On the day of the accident, Jim called and reported the
accident to representatives at Willis of Wyoming and Great
West Casualty Company ("Great West"), the
underlying primary insurance companies for Hipner. But, no
one at Hipner notified Century. In his deposition, Jim stated
that he thought notifying Willis of Wyoming satisfied his
obligations to notify all of the insurance companies. On
March 31, Great West set up a claim and began investigating
Brock's injuries rendered him quadriplegic. Jim testified
that he did not know that Brock sustained significant
injuries from the accident until May 2011. On September 20,
2011, Century was notified of the accident indirectly when
Willis of Wyoming sent Century the policy renewal for Hipner.
The next day, Century created an umbrella claim relating to
the accident. On December 31, 2011, Great West sent its claim
file, including the investigation materials, to Century.
Century did not perform its own investigation of ...