FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CORNHUSKER CASUALTY INSURANCE
COMPANY,
Plaintiff-Appellee,
v.
No. 06-35106
CHRIS KACHMAN,
Defendant, D.C. No.
CV-05-05026-RBL
and
OPINION
BROOKS SAMPLES, individually and
as Personal Representative of the
Estate of Leanne Samples,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Washington
Ronald B. Leighton, District Judge, Presiding
Argued and Submitted
October 19, 2007—Seattle, Washington
Filed January 30, 2008
Before: Ronald M. Gould and Richard A. Paez,
Circuit Judges, and Lyle E. Strom,* District Judge.
Opinion by Judge Gould
*The Honorable Lyle E. Strom, Senior United States District Judge for
the District of Nebraska, sitting by designation.
1505
1508 CORNHUSKER CASUALTY INS. v. SAMPLES
COUNSEL
Kevin Coluccio, Garth L. Jones, Paul L. Stritmatter, Stritmat-
ter Kessler Whelan Withey Coluccio, Hoquiam, Washington,
for defendant-appellant Brooks Samples.
Irene M. Hecht, Maureen M. Falecki, Keller Rohrback L.L.P.,
Seattle, Washington, for plaintiff-appellee Cornhusker Casu-
alty Insurance Company.
OPINION
GOULD, Circuit 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 declara-
tory 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 sat-
isfy the notice requirement of RCW § 48.18.290 because he
did not raise the issue before the district court. We have juris-
CORNHUSKER CASUALTY INS. v. SAMPLES 1509
diction under 28 U.S.C. § 1291. We hold that the issue of stat-
utory 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, in a
separate order filed concurrently with this opinion we certify
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.
I
Beginning on June 28, 2000, Cornhusker, a Nebraska com-
pany, provided commercial auto insurance for Rockeries, Inc.
(“Rockeries”), a Washington landscaping company. The pol-
icy 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 noti-
fying 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 pol-
1510 CORNHUSKER CASUALTY INS. v. SAMPLES
icy 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 acci-
dent 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 Rocke-
ries and its owners in Washington state court. Cornhusker
then brought this action against Rockeries and Samples seek-
ing 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. Sam-
ples 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
CORNHUSKER CASUALTY INS. v. SAMPLES 1511
Rockeries’ payment less than three months after Cornhusker
received Rockeries’ previous installment payment.
The district court granted Cornhusker’s motion for sum-
mary judgment and denied Samples’ cross-motion for sum-
mary 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 Rockeries to make pre-
mium payments in July, late August or early September,
November, and February, and not every three months. Sam-
ples timely appealed the district court’s judgment.
II
We review de novo the district court’s grant of summary
judgment. Buono v. Norton, 371 F.3d 543, 545 (9th Cir.
2004). We must determine, viewing the evidence in the light
most favorable to Samples, if, on any ground supported by the
record, there exists a genuine issue of material fact that should
go to trial. See Summers v. A. Teichert & Son, Inc., 127 F.3d
1150, 1152 (9th Cir. 1997). We also review de novo the dis-
trict court’s interpretation of state law. United States v. David-
son, 246 F.3d 1240, 1246 (9th Cir. 2001).
III
Preliminarily, Cornhusker contends that Samples waived
his right to argue that certified mail, unlike regular mail, can-
not merely be mailed but must actually be delivered to satisfy
the statutory notice requirement of RCW § 48.18.290 because
he raises the issue for the first time on appeal. Cornhusker
1512 CORNHUSKER CASUALTY INS. v. SAMPLES
claims that before the district court Samples instead argued
that Cornhusker’s mailing of the notice of cancellation by cer-
tified mail did not effectively cancel the policy because RCW
§ 48.18.290 does not authorize the use of certified mail to
provide notice of cancellation.
[1] Ordinarily, “an appellate court will not hear an issue
raised for the first time on appeal.” Broad v. Sealaska Corp.,
85 F.3d 422, 430 (9th Cir. 1996) (citing Singleton v. Wulff,
428 U.S. 106, 120, 49 L. Ed. 2d 826, 96 S. Ct. 2868 (1976)).
However, we will not consider an issue waived or forfeited if
it has been “raised sufficiently for the trial court to rule on it.”
In re E.R. Fegert, Inc., 887 F.2d 955, 957 (9th Cir. 1989).
[2] Before the district court, Samples argued against allow-
ing notice sent by certified mail to qualify as “mailed” under
RCW § 48.18.290 by contending in his Memorandum in
Opposition to Plaintiff’s Motion for Summary Judgment that
“ ‘mailed’ must be interpreted to mean ‘regular mail,’ and to
exclude the use of certified mail, which, like personal deliv-
ery, requires that someone be present to accept delivery.”
Because the district court was sufficiently apprised of the “ac-
tually delivered” issue when it ruled that RCW § 48.18.290
allows for notification by certified mail, we reject Corn-
husker’s waiver argument and proceed to analyze Samples’
appeal on its merits.
IV
[3] Samples contends that Cornhusker is equitably estopped
from denying coverage because under the ordinary meaning
of the term “quarterly,” the payment Rockeries made on Octo-
ber 28, 2004 was timely.1 To establish equitable estoppel
under Washington law, Samples must show (1) that Corn-
1
Samples does not press on appeal the argument he made before the dis-
trict court that Cornhusker is equitably estopped from denying coverage
because it accepted late payment from Rockeries on an earlier occasion.
CORNHUSKER CASUALTY INS. v. SAMPLES 1513
husker’s prior conduct was inconsistent with the claim it later
asserted, (2) that Rockeries acted in reasonable reliance on
that conduct, and (3) that Rockeries would suffer an injury
from allowing Cornhusker to contradict or repudiate its prior
conduct. See Saunders v. Lloyd’s of London, 779 P.2d 249,
255 (Wash. 1989). We conclude that Samples does not meet
this standard.
[4] Samples contends that Cornhusker is estopped from
cancelling Rockeries’ policy because Cornhusker received the
final payment less than three months after Cornhusker
received Rockeries’ prior payment, thereby satisfying the
requirements of the quarterly payment plan. While the Corn-
husker policy specified that Rockeries would be billed on a
quarterly payment plan, Cornhusker explicitly had specified
which “quarters” of the year it expected payments by sending
Rockeries installment notices that listed the due dates for all
payments. Moreover, with the exception of the first policy
year, Rockeries had always been required to make equal
installment payments in July, late August or early September,
November, and February. Cornhusker’s requirement that
Rockeries pay a premium installment on September 2, 2004
was consistent with the installment notices and Cornhusker’s
actions during the three previous years it collected premiums
from Rockeries, thus preventing Samples from proving the
first prong of the estoppel standard. Cornhusker is not equita-
bly estopped from cancelling Rockeries’ insurance policy.
V
[5] Finally, Samples argues that the district court erred in
determining that notice sent by certified mail satisfies the
“mailed” requirement of RCW § 48.18.290 and that a letter of
cancellation sent via certified mail provides sufficient notice
of cancellation to comply with RCW § 48.18.290 even if the
cancellation letter was never received by the insured. Because
our review of the district court’s legal determination rests
entirely upon an unsettled question of Washington state law,
1514 CORNHUSKER CASUALTY INS. v. SAMPLES
we have certified this legal issue to the Washington State
Supreme Court. We stay further proceedings pending resolu-
tion of our certified question to the Washington State
Supreme Court of what constitutes “mailed” under RCW
§ 48.18.290.
FURTHER PROCEEDINGS STAYED.