UNITED STATES CO URT OF APPEALS FOR THE TENTH CIRCUIT

8865 NORTH COVE, Plaintiff - Appellant,

v. AMERICAN FAMILY MUTUAL INSURANCE COMPANY, Defendant - Appellee. No. 14-4086 (D.C. No. 2:12-CV-00237-DAK) (D. Utah)

ORDER AND JUDGMENT *

Before BRISCOE , Chief Judge, LUCERO and MATHESON , Circuit Judges.

Plaintiff 8665 North Cove, a limite d liability company (“North Cove”), appeals from the district c ourt’s grant of summary judgm ent in favor of defendant American Family Mutual In surance Company (“American Family”) on North Cove’s suit for breach of in surance contract. The court he ld that Americ an Family was

* After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not mate rially assist the de termination 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 This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel. It may be cite d, however, for its persuasi ve value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### May 14, 2015
Elisabeth A. Shumaker Clerk of Court- 2 - prejudiced by North Cove’s delay in filing it s notice of loss. We have jurisdiction under 28 U.S.C. § 1291, and affirm.
I North Cove owned a residential pr operty located at 8665 North Cove in Summit County, Utah. The property wa s insured under a homeowners insurance policy issued by American Family to J ohn and Heidi Carnesale, North Cove’s principals. In late August 2007, North Cove contracted with S&S Roofing, Inc. (“S&S”) to install a new roof. In spri ng 2008, while S&S was still performing its work, North Cove discovered problems with the roof. S&S filed suit against North Cove in 200 9 to enforce a mechan ic’s lien. North Cove counterclaimed for alle ged defective workmanship. Coincidentally, S&S was insured by American Family under a commercial general lia bility policy. American Family provided a defense to S&S against the counterclaim. During discovery, North Cove revealed it had made numerous repa irs to the property totaling more than $30,000, although it is unclear exactly when the repairs were made. At some time in 2011, North Cove moved unsuccessfully to add American Family as a third-party defendant. However, there is no evidence in the record that Am erican Family, as a non-party, received notice of North Cove’s motion. The S&S su it was resolved in February 2013 when North Cove ac cepted a $30,000 offer of judgment. In December 2010, while the roofi ng suit was pending, the Carnesales contacted their insurance agen t to open a claim. The agent explained that he could- 3 - not do so without the date of the claim or other information. He referred the couple to American Family. On Ap ril 7, 2011, the Carnesales contacted American Family, which noted the date of loss as April 15, 2008. American Family wrote to the Carnesales on May 10, 2011, explaining that it would deny the claim because, among other things, notice was untimely. It cited language in the homeowners policy that requi red the Carnesales to provide “notice [of the loss] as soon as reasonably possible to us or our agent” and stated that the late notice prevented it from exercising its right under the po licy to be “show[n] . . . the damaged property before permanent repairs or replacement is made.” (Emphases omitted). North Cove filed suit against American Family in January 2012. American Family moved for summary judgment. The di strict court granted American Family’s motion, concluding that North Cove failed to provide notice of its claim as soon as reasonably possible and that American Fam ily was prejudiced as a result. North Cove timely appealed.
II “We review the district court’s summ ary judgment ruling de novo, applying the same legal standards as the district court.” Da lpiaz v. Carbon Cnty., 760 F.3d 1126, 1131 (10th Cir. 2014). Summary judgment is a ppropriate “if the movant shows that there is no genuine disput e as to any material fact a nd the movant is entitled to judgment as a matter of law.” Fed. R. Ci v. P. 56(a). The m ovant can meet this- 4 - burden “by[] citing to par ticular parts of material s in the record, including depositions, documents, . . . affi davits or declarations, sti pulations . . . , admissions, interrogatory answers, or other materi als.” Fed. R. Civ. P. 56(c)(1)(A). The parties agree that Utah law governs our analysis. Under Utah law, failure to provide notice to an insurer “does not ba r recovery under the policy if the insurer fails to show it was prejudiced by the fail ure.” Utah Code § 31A-21-312(2). North Cove admits it did not make a formal claim to Am erican Family until April 7, 2011, more than two years after the incident. It ar gues, however, that American Family had constr uctive notice of its claim in either April 2009 (when North Cove filed its counterc laim in the roofing suit a nd S&S requested a defense), or December 2010 (when John Carnesale telephoned his insurance agent). There is no evidence to support North C ove’s assertion that American Family received constructive notice of the claim in April 2009. This argument is based on the faulty premise that Amer ican Family was a party to the roofing suit. As the district court explained, Am erican Family was not a part y to the suit between S&S and North Cove, its interests were not represented, and a ny duty it had to indemnify S&S would rest on S&S’s policy rather th an the Carnesales’ homeowners policy. North Cove erroneously portrays American Family as an active participant in the roofing suit when it did nothing mo re than pay for a defense. Further, North Cove overloo ks the fact that the hom eowners policy was issued
to the Carnesales

 not North Cove. Thus, American Family had little reason to- 5 - know that it insured the property at issu e. Although John Ca rnesale assigned the claims against American Family under the homeowners policy to North Cove in April 2009, American Family did not learn of the assignment un til July 2012 during discovery in this suit. North Cove next argues that even if American Family re ceived notice in December 2010 or April 2011 (when the Carnes ales first contacte d American Family about the loss), the in surer failed to establish prej udice. We disagree. As an initial matter, we reject No rth Cove’s contention that the district court ignored § 31A-21-312(2) in its anal ysis. Although the court di d not specifically cite the statute, it repeatedly expl ained in its decision that American Family suffered prejudice from the untimely notice. We similarly disagree with North Cove ’s assertion that American Family could meet its burden of establishing prejud ice only by affidavit. Under Rule 56(c), a party may rely on responses to interrogatori es. American Family responded to North Cove’s prejudice interrogatory by stating that it was “precluded from investigating the claim due, in part to [North Cove’s] failure to ti mely report this claim, and by [North Cove’s] repair of the allegedly damaged propert y before displaying the subject property to American Family, as was required by the insurance contract.” American Family further responded that North Cove’s “spoliation of the evidence which was central to the claim materially and substantially deprived American Family of any ability to i nvestigate the claim.”- 6 - In its motion for summary judgment, Am erican Family argued that there was no genuine issue of material fa ct as to prejudice. North Cove thus had the burden of creating a genuine issue as to prejudice (for example, by sh owing that at least some, if not all, of the repairs were made after American Family receiv ed notice). Because North Cove failed to produce any such evidence, summary judgment was proper. See SEC v. Smart, 678 F.3d 850, 858 (10th Ci r. 2012) (“A properly submitted summary judgment motion cannot be defeated by mere allegations or denials. Rather, to withstand summary judgment, the nonmoving pa rty must come forward with specific facts showing that there is a genuine issu e for trial.” (citati on, quotation, and alteration omitted)). North Cove does not dispute the distri ct court’s conclusion that it made substantial repairs to the pr operty before providing Ameri can Family the opportunity to examine the alleged damages or to partic ipate in repair decisi ons. Instead, North Cove asserts without legal au thority that discovery cond ucted in its lawsuit with S&S—a suit to which American Family was not a party—sh ould be considered an adequate substitute for American Family ’s separate rights under the homeowners policy. This argument is without merit.- 7 - III The judgment of the district court is AFFIRMED

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Entered for the Court

Carlos F. Lucero Circuit Judge