Appeal from the United States District Court for the Western District of Washington Ronald B. Leighton, District Judge, Presiding D.C. No. CV-05-05026-RBL
The opinion of the court was delivered by: Gould, Circuit Judge
Argued and Submitted October 19, 2007-Seattle, Washington
Filed January 30, 2008; Amended January 13, 2009
Before: Ronald M. Gould and Richard A. Paez, Circuit Judges, and Lyle E. Strom,*fn1 District Judge.
Brooks Samples ("Samples") appeals the district court's grant of summary judgment in favor of Cornhusker Casualty Insurance Company ("Cornhusker") and denial of Samples' cross-motion for summary judgment in Cornhusker's declaratory judgment action. The district court held that Cornhusker, before the accident that resulted in the death of Samples' wife, effectively cancelled its policy insuring the company responsible for her fatal injuries. The crux of the district court's holding is its determination that certified mail satisfies the notice requirement for cancellation of an insurance policy under the Revised Code of Washington ("RCW") § 48.18.290. Samples challenges this conclusion and also argues that Cornhusker, because it informed the insured that it would collect the premium in a quarterly payment plan, is estopped from denying coverage under its insurance policy when the insured paid its last installment less than three months after the previous payment. Cornhusker, in addition to endorsing the district court's statutory interpretation, contends that Samples waived his right to argue that certified mail, unlike regular mail, must actually be delivered in order to satisfy the notice requirement of RCW § 48.18.290 because he did not raise the issue before the district court. We have jurisdiction under 28 U.S.C. § 1291. We hold that the issue of statutory interpretation raised by Samples has not been waived, and we further hold that Cornhusker is not equitably estopped from asserting its contrary theory of statutory interpretation. Thus, to resolve this question of statutory interpretation, we certified to the Washington State Supreme Court the sole dispositive issue of whether notice sent by certified mail qualifies as "mailed" under RCW § 48.18.290 and therefore satisfies the statutory notice requirement even if the letter is never received by the insured. On December 18, 2008, the Washington State Supreme Court determined that a certified letter must be delivered to the last known address of the insured to constitute effective notice. Specifically, the Washington State Supreme Court concluded: "Sending notice of cancellation by certified mail does not satisfy the 'mailed' requirement of RCW 48.18.290. In order for certified mail to meet the statutory notice requirement, the notice must be 'actually delivered.' " Cornhusker Cas. Ins. Co. v. Kachman, 81160-1, 2008 Wash. LEXIS 1226, at *13 (Wash. Sup. Ct. Dec. 18, 2008). Therefore, we hold that because Rockeries did not receive delivery of the cancellation letter, Cornhusker did not provide effective cancellation notice. We reverse the district court's grant of summary judgment to Cornhusker, and instruct the district court to grant summary judgment to Samples.
Beginning on June 28, 2000, Cornhusker, a Nebraska company, provided commercial auto insurance for Rockeries, Inc. ("Rockeries"), a Washington landscaping company. The policy renewed annually with a "quarterly" payment plan under which, after the first year, the total annual premium was billed in four equal installments throughout the year as specified on each installment notice. On eleven separate occasions during the more than four years that Cornhusker insured Rockeries, Rockeries did not pay a premium installment on time. After each payment deadline passed, Cornhusker sent a letter notifying Rockeries of the date the policy would be cancelled if Cornhusker did not receive Rockeries' payment. On all but two of these occasions, Rockeries paid the amount due before the cancellation date and Cornhusker sent Rockeries a notice that Rockeries' policy would be reinstated with no lapse in coverage. Rockeries did not pay by the cancellation date in January of 2001, but Cornhusker did not cancel Rockeries' policy because the envelope containing the payment was post-marked before the cancellation date and the payment was received within five days of the cancellation date.
After Rockeries did not pay the premium installment due on September 2, 2004, Cornhusker, on September 29, 2004, sent via certified mail a letter notifying Rockeries that the policy would be cancelled if the payment was not received by October 19, 2004. Rockeries did not pay by the cancellation date for the second time and Cornhusker cancelled Rockeries' policy on October 19. On October 22, 2004, Leanne Samples was fatally injured in an automobile accident with a Rockeries employee. Rockeries notified its insurance broker of the accident on October 25, 2004, and Cornhusker received a check from Rockeries for the past-due premium installment on October 28, 2004. Rockeries never received the cancellation letter that Cornhusker sent by certified mail on September 29, and the letter was returned to Cornhusker on November 1, 2004.
Brooks Samples, Leanne's husband and the administrator of her estate, brought a wrongful death action against Rockeries and its owners in Washington state court. Cornhusker then brought this action against Rockeries and Samples seeking a declaratory judgment that it had effectively cancelled its policy insuring Rockeries due to nonpayment of premiums prior to the accident and that it therefore had no obligation to provide Rockeries with a defense or assume any liability in the wrongful death action.
Cornhusker filed a motion for summary judgment. Samples filed a cross-motion for summary judgment in which he asserted that Cornhusker never cancelled the policy because it had sent the cancellation notice to Rockeries by certified mail. Samples argued that because certified mail requires a signature for delivery and because the letter was returned to Cornhusker, the cancellation letter was never delivered. Samples contended that the failed delivery deprived Rockeries of the notice of cancellation mandated by RCW § 48.18.290.
Samples also argued that Cornhusker was estopped from denying Rockeries coverage because (1) Cornhusker had on one occasion accepted late payments from Rockeries in the past and (2) the policy stated that Rockeries had to pay the premium on a quarterly basis and Cornhusker had received Rockeries' payment less than three months after Cornhusker received Rockeries' previous installment payment.
The district court granted Cornhusker's motion for summary judgment and denied Samples' cross-motion for summary judgment, holding that as a matter of law notice sent by certified mail is "mailed" under RCW § 48.18.290 and that a letter of cancellation sent via certified mail provides sufficient notice of cancellation to comply with the statute even if, as in this case, the cancellation letter was never actually received by the insured. The district court rejected both of Samples' estoppel arguments, holding (1) that under Washington law one instance will not establish a course of conduct that will support estoppel and (2) that the course of conduct and the written premium notices called for ...