FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

CORNHUSKER CASUALTY INSURANCE 

COMPANY,

Plaintiff-Appellee,

v. No. 06-35106

CHRIS KACHMAN,

D.C. No. Defendant,  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
COUNSEL

Kevin Coluccio, Garth L. Jones, Paul L. Stritmatter, Stritmatter 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 Casualty 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 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 juris1508 CORNHUSKER CASUALTY INS. v. SAMPLES
diction 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, 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 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 postmarked 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 polCORNHUSKER CASUALTY INS. v. SAMPLES 1509
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 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

1510 CORNHUSKER CASUALTY INS. v. SAMPLES
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 Rockeries to make premium payments in July, late August or early September,

November, and February, and not every three months. Samples 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 district court’s interpretation of state law. United States v. Davidson, 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, cannot 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

CORNHUSKER CASUALTY INS. v. SAMPLES 1511
claims that before the district court Samples instead argued

that Cornhusker’s mailing of the notice of cancellation by certified 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 allowing 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 delivery, requires that someone be present to accept delivery.”

Because the district court was sufficiently apprised of the “actually delivered” issue when it ruled that RCW § 48.18.290

allows for notification by certified mail, we reject Cornhusker’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 October 28, 2004 was timely.1

 To establish equitable estoppel

under Washington law, Samples must show (1) that Corn1Samples does not press on appeal the argument he made before the district court that Cornhusker is equitably estopped from denying coverage

because it accepted late payment from Rockeries on an earlier occasion.

1512 CORNHUSKER CASUALTY INS. v. SAMPLES
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 Cornhusker 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 equitably 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,

CORNHUSKER CASUALTY INS. v. SAMPLES 1513
we have certified this legal issue to the Washington State

Supreme Court. We stay further proceedings pending resolution of our certified question to the Washington State

Supreme Court of what constitutes “mailed” under RCW

§ 48.18.290. 

FURTHER PROCEEDINGS STAYED.

1514 CORNHUSKER CASUALTY INS. v. SAMPLES