
    UNITEDHEALTH GROUP INCORPORATED, a Minnesota corporation, Plaintiff - Appellant, v. EXECUTIVE RISK SPECIALTY INSURANCE COMPANY; First Specialty Insurance Corporation; Starr Excess Liability Insurance International Limited; National Union Fire Insurance Company of Pittsburgh, PA, Defendants-Appellees.
    No. 15-1076
    United States Court of Appeals, Eighth Circuit.
    Submitted: October 19, 2016
    Filed: September 7, 2017
    Rehearing and Rehearing En Banc Denied October 20, 2017
    
    
      Margaret S. Brownell, Erica Holzer, Michael C. McCarthy, William Zane Pentelo-vitch, Senior Litigation Attorney, MAS-LON LLP, Minneapolis, MN, David B. Goodwin, Michael S. Greenberg, COVING-TON & BURLING, San Francisco, CA, Matthew Mackinnon Shors, UNITED-HEALTH GROUP, INC., Minnetonka, MN, for Plaintiff-Appellant.
    Sonya Braunschweig, Alan L. Kildow, BRIGGS & MORGAN, Minneapolis, MN, Jacqueline R. Dungee, Robert L. Ebby, Bonnie M. Hoffman, Daniel J. Layden, Ronald Paltin Schiller, Dylan J. Steinberg, Phillip E. Wilson, Jr., Robert A. Wiygul, HANGLEY & ARONCHICK, Philadelphia, PA, for Defendants-Appellees Executive Risk Specialty Insurance Company and First Specialty Insurance Corporation.
    Thomas Henry Boyd, Brent A. Lorentz, David P. Pearson, WINTHROP & WEIN-STINE, Minneapolis, MN, for Defendants-Appellees Starr Excess Liability Insurance International Limited and National Union Fire Insurance Company of Pittsburgh, PA.
    
      Before LOKEN, SMITH, and COLLOTON, Circuit Judges,
    
      
       Judge Benton, Judge Gruender and Judge Kelly did not participate in the consideration or decision of this matter.
    
    
      
      . The Honorable Lavenski R. Smith became Chief Judge of the United States Court of Appeals for the Eighth Circuit on March 11, 2017.
    
   COLLOTON, Circuit Judge.

UnitedHealth Group sued several insurers in the District of Minnesota, seeking indemnity and defense costs for underlying litigation settlements under its professional liability excess insurance policies. Uni-tedHealth appeals the district court’s grant of summary judgment in favor of four insurance companies. UnitedHealth contends that the court erred in three ways: (1) by granting National Union Fire Insurance Company’s summary judgment motion based on UnitedHealth’s failure to provide adequate notice of its claim; (2) by determining that UnitedHealth presented insufficient evidence on how a settlement was allocated between covered and non-covered claims; and (3) by granting summary judgment sua sponte on United-Health’s claim for certain defense costs. We conclude that the district court did not err on the allocation issue, and that Uni-tedHealth waived its objection to the asserted sua sponte order on defense costs. Because the district court’s rulings on those issues mean that National Union’s coverage would not be implicated, it is unnecessary to address the court’s separate order on the adequacy of notice to National Union. We therefore affirm.

I.

This appeal involves a dispute over insurance coverage for settlement amounts arising from two different lawsuits. Uni-tedHealth reached a single lump-sum settlement for the two actions together. There was potential insurance coverage for claims in one lawsuit but not for claims brought in the other. A dispute then arose over how to allocate the settlement amount between the covered and non-covered claims.

The first lawsuit was filed in New York in 2000. A group of plaintiffs, including several group health plans insured or administered by UnitedHealth or its subsidiaries, sued ÚnitedHealth in New York state court, and United Health removed the action to federal court. One plaintiff was the American Medical Association, and we refer to this litigation as the AMA suit. The case involved databases used by Uni-tedHealth. UnitedHealth’s subsidiary, In-genix, owned two databases that United-Health and other insurers used to calculate the usual, customary, and reasonable charges for medical services.. UnitedHealth used the databases’ calculations to determine the amount that it was. required to pay for out-of-network services. The AMA plaintiffs alleged that UnitedHealth conspired with other insurers to provide inaccurate information to the Ingenix databases to reduce payment for out-of-network benefit claims. The plaintiffs brought claims under the Employee Retirement Income Security Act, Racketeer Influenced and Corrupt Organizations Act, Sherman Act, and state law. The district court, Judge Lawrence M. McKenna, dismissed most of the ERISA and RICO claims. The antitrust claims under the Sherman Act proceeded until the case eventually was settled..

The second action was filed in 2008 in New Jersey. In February 2008, a group of plaintiffs sued Oxford Health, an entity that UnitedHealth acquired in 2004, in the United States District Court for the District of New Jersey. One of the plaintiffs was named Malchow, and we refer to this action as the Malchow suit. The Malchow plaintiffs asserted claims under ERISA and violations of a state regulation, arising from breaches of contract and claims regarding Oxford's billings and payments.

That same month, the New York Attorney General served UnitedHealth with á Notice of Proposed Litigation based on allegations similar to those in the AMA suit. We refer to this action as the NYAG suit. On’ January 13, 2009, UnitedHealth settled the NYAG suit by entering into an agreement known as an Assurance of Discontinuance, under which UnitedHealth agreed to discontinue operating arid using the Ingenix database once an independent database was created. See N.Y. Exec. Law § 63(15). As’ part of this settlement, Uni-tedHealth was required to pay $50 million to help establish this ■ independent database.

The following day, UnitedHealth signed a settlement agreement to résolve both AMA and Malchow suits for $350 million. The settlement agreement did not state how the $350 million was to be allocated between the AMA plaintiffs and Malchow plaintiffs.

The AMA and Malchow plaintiffs moved to be certified as a settlement class before Judge McKenna in New York. The court reviewed the settlement agreement and held a. seven-day evidentiary hearing to determine whether the settlement was fair and reasonable. In October 2010, Judge McKenna certified the settlement class, approved; the-$350 million settlement,.and dismissed the AMA suit. Following the court’s approval,. and in accordance with the settlement agreement, the Malchow plaintiffs stipulated to the dismissal of the Malchow suit in New Jersey. • ■

After signing the settlement agreernent, UnitedHealth filed an amended complaint in this ongoing lawsuit in the District of Minnesota against its professional liability excess insurers. UnitedHealth sought damages for the insurers’ failure to indemnify it -for: (1) the AMA portion of the $360 million settlement under the Antitrust Endorsement of its professional liability insurance policy and $35 million in AMA defense costs; (2) the NYAG settlement; and (3) certain denied claims arising out of lawsuits alleging that UnitedHealth failed to reimburse certain medical expenses. In counts III and IV of its second amended complaint, UnitedHealth sought a declaratory judgment and damages for certain denied claims that are not at issue in this appeal. In counts V and VI, UnitedHealth sought a declaratory judgment and damages for an alleged breach of contract--to reimburse UnitedHealth for the costs to defend and settle the AMA suit. In counts VII and VIII, UnitedHealth sought , the same relief for alleged breaches related to the NYAG suit.

After several years of litigation, four excess insurers remain in this action: Executive Risk Specialty Insurance Company, First Specialty Insurance Corporation, Starr Excess Liability Insurance International Limited, and National Union Fire Insurance Company (collectively, the “Insurers”). Executive Risk holds the first excess insurance policy relevant to this appeal; coverage attaches at $95 million in damages. The others provide coverage at higher levels of damages.

In January 2013, the Insurers moved for partial summary judgment. National Union argued that UnitedHealth had failed to provide proper notice of the AMA claim during the policy period and thus was not entitled to any recovery from National Union for that claim. The district court agreed and dismissed UnitedHealth’s claims against National Union, based on the AMA suit. The court also ruled that UnitedHealth had the burden to allocate the settlement between the potentially covered AMA claims and the non-covered Malchow claims.

In October 2013, the district court' ordered the parties to brief three issues relating to the allocation of UnitedHealth’s $350 million settlement between covered and non-covered claims. The court stated that it would, if necessary, issue a scheduling order to address any remaining issues, including the allocation of UnitedHealth’s defense costs in the AMA suit. After briefing and a hearing on the issues; the district court granted summary judgment for the Insurers on counts V and VI. 'The court ruled that UnitedHealth failed to meet its burden to present sufficient evidence to support an allocation between the potentially covered AMA claims and the non-covered Malchow claims. The court also ruled that the Insurers were entitled to summary judgment on UnitedHealth’s claim for defense costs in the AMÁ suit.

Following the district court’s grant of summary judgment on those claims, Uni-tedHealth and the Insurers entered into a stipulation for entry of final judgment because the remaining claims (counts III, IV, VII, and VIII) did not involve an amount of damages that was sufficient to trigger coverage under the excess policies. The district court granted judgment in favor of the Insurers pursuant to the parties’ stipulation. UnitedHealth now appeals, arguing that the district court erred in determining that UnitedHealth failed to provide adequate notice of the AMA claim to National Union, incorrectly placed the burden of allocation on UnitedHealth and then erred in concluding that UnitedHealth failed to present sufficient evidence to meet that burden, and erroneously adjudicated its AMA defense cost claims sua sponte.

Summary judgment is appropriate if there is no genuine issue of material fact for trial. Fed. R. Civ. P. 56(a). Where the' nonmoving party will bear the burden of proof at trial on an essential element, the. nonmoving party must put forward sufficient facts showing that' there is a genuine issue for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 323-24, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Barge v. Anheuser-Busch, Inc., 87 F.3d 256, 258 (8th Cir. 1996). We review de novo the district court’s grant of summary judgment, viewing the evidence and drawing all reasonable inferences in UnitedHealth’s favor. Larson v. Nationwide Agribusiness Ins. Co., 739 F.3d 1143, 1146 (8th Cir. 2014).

II.

We address first the district court’s ruling on allocation of the settlement. First, UnitedHealth argues that it had no duty to allocate between the covered and non-eov-ered claims under the plain language of its insurance policies. Second, it argues that under Minnesota law, it had no burden to allocate between the covered and non-covered claims and it was required to show only that it suffered a loss that would trigger coverage. Third, UnitedHealth maintains that even if it did bear the burden to allocate, then it presented sufficient evidence to survive summary judgment.

A.

UnitedHealth argues that it had no duty under its insurance policies to allocate the $350 million settlement. The company contends that under the Antitrust Endorsement of the policy issued by the primary insurance carrier Lexington, .which it. asserts is incorporated into the excess insurance policies, UnitedHealth is entitled to coverage for the entire $350 million settlement so long as the settlement included covered antitrust claims. The district court determined that this argument was untimely and meritless. We agree. In its amended complaint, UnitedHealth sought indemnity for only the “portion” of the $350 million settlement attributable to the AMA suit. Its claim that it can recover the entire $350 million, including the amount attributable to the Malchow suit, was not timely advanced.

The claim also lacks merit. The AMA suit qualifies for coverage under the Antitrust Endorsement. The Endorsement provides that notwithstanding any other provisions of the policy, the Insurers must pay for UnitedHealth’s “claims that directly or indirectly result from or are related to, a Wrongful Act consisting or allegedly consisting in whole or in part of anti-trust, price fixing or restraint of trade activities.” But the Malchow claim was separate from the AMA claim, so the Endorsement generates coverage only for the AMA claim. In any event, as the district court observed, the excess insurance policies provide coverage described in the Endorsement only insofar as the coverage would not conflict with a provision of the excess policies. And it is undisputed that the excess policies did not cover the Malchow claims, because the defendant in Malchow, a predecessor-in-interest of UnitedHealth, was never an insured under those policies. UnitedHealth is therefore not entitled to the portion of the settlement that is allocated to the Malchow lawsuit.

B.

UnitedHealth also argues that under Minnesota law, it was not required to submit proof about allocation of the settlement between covered and non-covered claims. The company contends that it was sufficient to show simply that the settlement resulted in a covered loss of unspecified amount above $95 million, where coverage under the first excess policy is triggered.

Under Minnesota law, the initial burden is on the insured to prove prima facie coverage of a third-party claim under a liability insurance policy. Remodeling Dimensions, Inc. v. Integrity Mut. Ins. Co., 819 N.W.2d 602, 617 (Minn. 2012). “If the insured meets its burden of establishing coverage of the claim, the burden shifts to the insurer to prove the applicability of an exclusion under the policy as an affirmative defense.” Id. Although this general burden-shifting scheme is clearly established, the Minnesota Supreme Court has not squarely addressed who bears the burden to allocate between covered and non-covered insurance claims. “Where the state law is uncertain, our task is to predict how the state supreme court would resolve the issue if faced with it.” Marvin Lumber & Cedar Co. v. PPG Indus., Inc., 223 F.3d 873, 876 (8th Cir. 2000).

Our best guidance comes from the Minnesota Supreme Court’s decisions in Remodeling Dimensions and Bor-Son Building Corp. v. Employers Commercial Union Insurance Co. of America, 323 N.W.2d 58 (Minn. 1982). These cases support the conclusion that the Minnesota court would place the burden on the insured to allocate between covered and non-covered claims.

In Bor-Son, a local housing authority brought several claims against Bor-Son and others for faulty workmanship on two building projects. 323 N.W.2d at 60. Bor-Son, the plaintiff-insured, eventually settled the lawsuit, but the settlement did not allocate the amount paid among the various claims. Bor-Son then sought a declaratory judgment that its insurers were liable to indemnify it for the settlement. Under Bor-Son’s insurance policy, the insurers were liable for claims based on loss of rent, but not for claims based on damage to buildings as the result of a breach of contract. The Minnesota Supreme Court held that because “there was no allocation of damage monies ,.. that would establish the amount Bor-Son paid toward the settlement of that loss of rental claim, and since Bor-Son, in this case, furnished no evidence to establish that fact, Bor-Son failed to meet its burden of proving its claim for reimbursement.” Id. at 64.

More recently, in Remodeling Dimensions, the Minnesota court concluded that an insurer who assumes the duty to defend an insured has a duty to disclose to its insured the availability of obtaining a written explanation of an arbitration award. 819 N.W.2d at 617-19. The court stated that “‘the insured’s ordinary burden to allocate a verdict between covered and non-covered claims’ does not shift to the insurer unless the insurer had an affirmative duty to defend the underlying claims.” Id. at 617-18 (quoting Camden-Clark Mem’l Hosp. Ass’n v. St. Paul Fire & Marine Ins. Co., 224 W.Va. 228, 682 S.E.2d 566, 576 (2009)). The court later concluded that “[t]he burden to prove allocation of an arbitration award remains with the insured unless” the insurer took on the duty to defend the insured and failed to disclose the availability of a written explanation of the award. Id. at 619 (emphasis added). Only when the insurer fails to disclose, and this failure results in prejudice to the insured, is the insurer “estopped from claiming that the insured has the burden of proving allocation of the award.” Id. at 618.

In light of Bor-Son and Remodeling Dimensions, we conclude it is not enough under Minnesota law for UnitedHealth to show simply that its $350 million settlement included a covered claim of an unspecified amount. UnitedHealth bears the burden to allocate the settlement between the potentially covered AMA suit and the non-covered Malehow suit with enough specificity to permit a reasoned judgment about liability.

C.

To prove allocation, parties can present testimony from attorneys involved in the underlying lawsuits, evidence from those lawsuits, expert testimony evaluating the lawsuits, a review of the underlying transcripts, or other admissible evidence. See, e.g., Nodaway Valley Bank v. Cont’l Cas. Co., 916 F.2d 1362, 1365-66 (8th Cir. 1990); Remodeling Dimensions, Inc., 819 N.W.2d at 618 n.4; Zurich Reinsurance (UK) Ltd. v. Canadian Pac. Ltd., 613 N.W.2d 760, 764-65 (Minn. Ct. App. 2000). To survive summary judgment, an insured need not prove allocation with precision, but it must present a non-speculative basis to allocate a settlement between covered and non-covered claims. The district court concluded that UnitedHealth failed to provide non-speculative evidence to allocate the $350 million settlement between the potentially covered AMA suit and non-covered Malehow suit.

UnitedHealth complains that the district court excluded evidence that would have supported an allocation of the settlement. The company argues that the district court erroneously excluded both Judge McKenna’s rulings and expert testimony in the underlying lawsuits that occurred after the settlement agreement was signed on January 14, 2009. The allocation inquiry examines how a reasonable party in UnitedHealth’s position would have valued the covered and non-covered claims. In evaluating the claims, we look to what the parties knew at the time of settlement. Cf. Zurich Reinsurance (UK) Ltd., 613 N.W.2d at 764-65 (examining settlement negotiations and internal memoranda to determine whether the settlement included non-covered damages); St. Paul Fire & Marine Ins. Co. v. Nat’l Chiropractic Mut. Ins. Co., 496 N.W.2d 411, 415 (Minn. Ct. App. 1993) (“In determining what claims were settled, it is appropriate to consider the circumstances and events leading up to. the settlement.”).' Events and circumstances happening after settlement are relevant only insofar as they inform hqw a reasonable party would have valued and allocated the claims at the time of settlement.

UnitedHealth argues that even if.events after the settlement are irrelevant, the settlement date was really October 5, 2010—the date on which Judge McKenna approved'the settlement. The settlement agreement for $350 million, however, was signed on January 14, 2009. The court approved that same agreement in October 2010.- UnitedHealth points to no evidence suggesting that allocation of the $350 .mil-, lion settlement between the two lawsuits changed after the agreement was signed in January 2009. The signing date is therefore the relevant date.

The process that occurred after the settlement on January 14, 2009—in-cluding Judge McKenna’s rulings and expert testimony and a report admitted at the settlement hearings—was inadmissible for purposes of allocating the $350 million settlement,, because.it did not address information that was available to the settling parties in January 2009. A reasonable settling party could not have relied on Judge McKenna’s post-January rulings 'to inform its allocation of the $350 million settlement in January. The expert’s testimony at the settlement hearings was based on an affidavit that he produced months after Uni-tedHealth executed the settlement agreement, so that evidence does not. inform how a reasonable person would have allocated the settlement at the time it was reached.

In any event, the district court, also properly excluded Judge McKenna’s rulings as inadmissible hearsay. A court’s prior judgment or ruling is inadmissible hearsay if it is offered to prove the truth of the matter asserted. See Fed. R. Evid. 801(c); United States v. Boulware, 384 F.3d 794, 806 (9th Cir. 2004); cf. United States v. Jeanpierre, 636 F.3d 416, 423 (8th Cir. 2011). Only judicial rulings that are offered, for a different purpose, such as to show effect on the listener, are admissible. Boulware, 384 F.3d at 806; see United States v. Wright, 739 F.3d 1160, 1170 (8th Cir. 2014).

UnitedHealth, seeks to offer Judge McKenna’s rulings as evidence of what a reasonable person would consider when making an objective allocation determination. The company purports to offer the rulings only to show the effect of the rulings on the listener, UnitedHealth. But Judge McKenna’s rulings after January 14, 2009, could not have affected United-Health’s determination of the value of the AMA and.Modchow lawsuits, because, that valuation was made in January 2009 when the settlement agreement was signed. The district court similarly excluded the expert testimony from the October 2010 hearing as hearsay, and UnitedHealth does not challenge that ruling on appeal.

UnitedHealth also argues that the court abused its discretion when it ruled that Unit'edHealth’s expert, 'James Halver-son, could not testify to’ the allocation of the $350 million settlement between the AMA suit and the Malchow suit. Federal Rule of Evidence 702 governs the admissibility of expert testimony. It provides:

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if: (a) the expert’s scientific, technical, or other specialized knowledge will help the trier of .fact to understand the evidence or to determine a fact in issue; (b) the testimony is based on sufficient facts or data; (c) the testimony is the product of reliable principles and methods; and (d) the expert has reliably applied the principles and methods to the facts of the case.

The district court has broad discretion to determine the admissibility of expert, testimony under Rule 702. Weisgram v. Marley Co., 169 F.3d 614, 518 (8th Cir. 1999).

Halverson is an expert on antitrust law, and the district court allowed him to testify about the. .value of the antitrust claims asserted in the AMA suit. But Halverson admitted that he is not an expert on ERISA,. and he testified in; his deposition that he did not analyze the Mal-chow lawsuit. Without analyzing the Mal-chow suit, Halverson could not provide an expert opinion about its value. And without knowing the value of the Malchow suit, Halverson could not testify as to the relative value of the AMA suit compared to the Malchow suit. Thus, the district court did not abuse its discretion in determining that Halverson was not qualified to testify about the settlement value of the ERISA claims or how the $350 million settlement should be allocated between the AMA and Malchow claims.

At oral argument, UnitedHealth suggested that because the Malchow complaint alleged only $160,000 in damages, , a jury reasonably could calculate the value of Malchow as no more than $160,000 and allocate the rest of the $350 million settlement to the AMA suit. But UnitedHealth did not present this argument, to the district court, and it is forfeited. The amount of damages cited in the complaint, moreover, does not by itself support a finding on how a reasonable party in United-Health’s position would have valued the Malchow suit when it settled the cases. The Malchow suit was a putative class action; the damages enumerated were attributable only to the named individual plaintiffs. The exposure to the'defendants in damages, costs of litigation, injury to reputation,.and other categories could have been much greater. The Insurers point out that UnitedHealth suggested in a previous lawsuit, which is subject to judicial notice, that the Malchow suit might have triggered insurance coverage of $120 million. We cannot say based on the Malchow complaint alone that the settlement value of the case was de minimis.

Finally, UnitedHealth argues that’ even without the excluded evidence, and aside from the individual damages asserted in the Malchow complaint, it still presented sufficient evidence for a jury to allocate the settlement. UnitedHealth relies on pre-settlement rulings from the AMA and Malchow suits, which show that the AMA suit involved primarily antitrust claims, and that the Malchow suit’s monetary claims centered on ERISA.' UnitedHealth contends that this evidence, together with evidence -about -UnitedHealth’s insurance policies and Halverson’s testimony about the value of the AMA suit, provided a sufficient basis for a jury to decide allocation and award damages.,

It' is well settled that a jury may not base its damages award on speculation. See Faust v. Parrott, 270 N.W.2d 117, 120 (Minn. 1978). The evidence presented by UnitedHealth fails to give a jury more than a speculative basis on which to allocate the $350 .million settlement between the AMA and Malchmv suits. These were complex lawsuits involving different claims and legal ’ theories. Allocation required either contemporaneous evidence of valuation or -expert testimony on relative value to provide a reasonable -foundation for a jury’s decision. Without more evidence about the' relative value of the claims, a reasonable jury could only speculate as to how -the settlement should be allocated. UnitedHealth made strategic decisions to invoke attorney-client privilege and work-product protection to avoid presenting evidence from its own representatives about contemporaneous valuations of the settlement. The company declined to present additional expert testimony about the value of the Malchow suit to complement Halverson’s testimony about the AMA suit, or to identify an expert who was qualified to address both. On the record that was presented, the district court properly concluded that UnitedHealth failed to present sufficient evidence to submit the issue to a jury. We therefore affirm the district court’s grant of summary judgment for the Insurers on United-Health’s indemnity claim for a portion of the $350 million settlement attributable to the AMA suit.

III.

UnitedHealth also contends that the district court erred when it granted summary judgment for the Insurers on United-Health’s claim for $35 million in defense costs in the AMA suit. The company complains that the court ruled without giving notice and an opportunity to address the issue. In an order directing the parties to brief three discrete issues “relating to allocation of the AMA settlement between covered and uncovered .claims,” the court had informed the parties that issues regarding allocation of defense costs would be addressed in a later briefing schedule if a trial was still required. UnitedHealth objects that the court then granted summary judgment on the defense costs without further notice.

Federal Rule of Civil Procedure 56(f)(2) provides that a district court may grant a motion on grounds not raised by a party if the parties had notice and a reasonable time to respond. But a court “commits reversible error when it grants summary judgment on an issue not raised or discussed by the parties.” Heisler v. Metro. Council, 339 F.3d 622, 631 (8th Cir. 2003).

The Insurers respond that if the district court erred by acting sua sponte, then UnitedHealth waived any objection to the procedure when it failed to alert the district court while the case was still pending. After the disputed order, UnitedHealth entered into a stipulated judgment that dismissed the remaining claims, but never informed the court that it sought to be heard on its claim for defense costs.

In two decisions, this court has held that a party waived any objection to a district court’s sua sponte order granting summary judgment by failing to raise the matter in the district court’ after the order was entered. Figg v. Russell, 433 F.3d 593, 597 (8th Cir. 2006); Shur-Value Stamps, Inc. v. Phillips Petroleum Co., 50 F.3d 592, 595 (8th Cir. 1995). UnitedHealth says that these cases are distinguishable because the parties there had advance notice that the court might act sua sponte, whereas UnitedHealth was led by the court’s briefing order to believe that there would be no action on defense costs until a later time. We did say in Figg that the losing party was on notice that the court might grant summary judgment without a new motion from the other side. But Figg emphasized that “more importantly, ⅛ party waives the notice requirement when it fails to object based on insufficient notice and fails to assert prejudice.’” 433 F.3d at 597 (emphasis added) (quoting Shur-Value, 50 F.3d at 595). Whether or not a party receives an advance signal that the court might act sua sponte, Shur-Value and Figg say that any objection to that procedure is waived if the party does not at least object after the court enters its order while the action is still pending. Ac cord Spring St. Partners-IV, L.P. v. Lam, 730 F.3d 427, 435-36 (5th Cir. 2013).

UnitedHealth points to American Red Cross v. Community Blood Center of the Ozarks, 257 F.3d 859 (8th Cir. 2001), where this court “[r]eluctantly” reversed a grant of summary judgment because the district court ruled sua sponte. Id. at 863. The court in American Red Cross, however, did not discuss whether the appellant objected in the district court or waived its objection to the procedure. Shur-Value was not cited. The appellee might have waived the waiver. The same can be said for Heisler, 339 F.3d at 631-32, and Walker v. Missouri Department of Corrections, 138 F.3d 740, 742 (8th Cir. 1998) (per curiam). Because the issue of waiver was not joined in these cases, we do not consider them precedent on that point. “Questions which merely lurk in the record, neither brought to the attention of the court nor ruled upon, are not to be considered as having been so decided as to constitute precedents.” Webster v. Fall, 266 U.S. 507, 511, 45 S.Ct. 148, 69 L.Ed. 411 (1925).

UnitedHealth had an opportunity to raise its objection to the district court’s summary-judgment procedure before it stipulated to the entry of final judgment. Nothing in the district court’s letters to counsel precluded the company from alerting the court to this alleged mistake. When UnitedHealth failed to raise the point, it waived the notice requirement under our precedents in Shur-Value and Figg. We therefore decline to disturb the district court’s grant of summary judgment for the Insurers on the matter of defense costs in the AMA litigation,

IV.

The district court dismissed United-Health’s claims against National Union for failure to give adequate notice of the AMA claim under the policy. The district court’s later rulings, however, make it unnecessary to address the notice issue, because there is not a sufficient amount of alleged damages remaining in the case to trigger coverage under the National Union policy even if notice had been adequate. We therefore affirm the dismissal of the claims against National Union on this alternative ground.

⅜ ⅜ ⅜

For the foregoing reasons, the judgment of the district court is affirmed. 
      
      . The Honorable Patrick J. Schütz, United States District Judge for the District of Minnesota.
     