* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not

be published and is not precedent except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 08-30803

Summary Calendar

ADAM J. MECHE

Plaintiff-Appellant

v.

NATIONAL INDEMNITY COMPANY

Defendant-Appellee

Appeal from the United States District Court for the 

Eastern District of Louisiana

USDC No. 2:07-cv-01491

Before JOLLY, BENAVIDES, and HAYNES, Circuit Judges.

PER CURIAM:*

This appeal is from a summary judgment in favor of the insurer. The

issue is whether the insurer sent the notice of cancellation of the insurance

policy in compliance with the applicable Washington state law. In light of very

recent Washington Supreme Court precedent, we must conclude that the insurer

has not shown that the notice sent complied with the statutory notice

requirement. Therefore, we vacate the summary judgment and remand.

United States Court of Appeals

Fifth Circuit

F I L E D

February 13, 2009

Charles R. Fulbruge III

Clerk
No. 08-30803

2

I. FACTUAL AND PROCEDURAL HISTORY

National Indemnity Company (NIC), through its general agent, Cochrane

and Company, issued a public liability insurance policy to Selena Transport,

L.L.C. (Selena) that was to be effective from November 22, 2005, to November

22, 2006. On February 22, 2006, an employee of Cochrane mailed to Selena a

notice of cancellation of the insurance policy due to nonpayment of premiums.

The notice provided that the insurance policy would be cancelled effective March

30, 2006. 

On March 31, 2006,the plaintiff, Adam Meche, was injured in an accident

involving his motor vehicle and a truck driven by Vladimir I. Volkov, who was

an employee of Selena. Meche filed suit in Louisiana state court against Volkov,

Selena, and NIC, alleging that the accident was caused by Volkov’s negligence

and that Selena was vicariously liable as the employer. Meche further alleged

that the insurance policy issued by NIC was in “full force and effect” at the time

of the accident. NIC removed the suit to federal court and filed a motion for

summary judgment, arguing that the insurance policy had been cancelled prior

to the accident. 

The district court granted NIC’s motion for summary judgment and

dismissed with prejudice Meche’s claims against NIC. Subsequently, the district

court granted the parties’ joint motion for entry of final judgment as to NIC

pursuantto Rule 54(b) oftheFederal Rules of CivilProcedure. The district court

also continued the proceedings against the remaining defendants pending this

Court’s resolution of the instant appeal. 

II. ANALYSIS

A. Standard of Review

This Court reviews a district court’s grant of summary judgment de novo,

applying the same standards as the district court. See e.g., Hirras v. Nat’l R.R.

Passenger Corp., 95 F.3d 396, 399 (5th Cir. 1996). Summary judgment is proper
No. 08-30803

1 Meche also makes other challenges to the mailing but in view of our disposition of

this issue, we need not address them.

2 We note that on June 7, 2006, the statute was revised slightly. However, the former

version was in effect at the time the notice of cancellation was sent.

3

if the record reflects “that there is no genuine issue as to any material fact and

that the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c).

B. Notice of Cancellation

Meche contends that the district court erred in granting summary

judgment in favor of NIC. He contends that NIC did not comply with the

applicable Washington statutory requirements when it sent the notice of

cancellation with respect to the insurance policy at issue. Meche contends that

there is a genuine issue of fact with respect to whether NIC mailed the notice.

Among other things, Meche argues that “NIC has come forth with no evidence

that its certified mailing of the notice of cancellation was received.”1

In February of 2006, section 48.18.290(1) of the Revised Code of

Washington, provided that cancellation of insurance policies may be effected

only upon compliance with certain requirements. More specifically, “[w]ritten

notice of such cancellation, accompanied by the actual reason therefor, must be

actually delivered or mailed to the named insured.” Wash. Rev. Code §

48.18.290(1)(a) (emphasis added).2 Additionally, the statute provided that: 

The mailing of any such notice shall be effected by depositing it in

a sealed envelope, directed to the addressee at his or her last

address as known to the insurer or as shown by the insurer’s

records, with proper prepaid postage affixed, in a letter depository

of the United States post office. The insurer shall retain in its

records any such item so mailed, together with its envelope, which

was returned by the post office upon failure to find, or deliver the

mailing to, the addressee.

§ 48.18.290(2).
No. 08-30803

3 We note that Kachman was issued after the briefing in the instant case was

completed. Kachman makes clear that certified mail does not fall under the “mailed” prong

of the statute; instead, certified mail must be actually delivered. 198 P.3d 505, 2208 WL

5250268, at *4.

4 Of course, the district court did not have the benefit of Kachman. 

4

Very recently, the Washington Supreme Court answered the following

question that had been certified to it by the Ninth Circuit: “Does sending notice

of cancellation by certified mail satisfy the ‘mailed’ requirement of RCW §

48.18.290 (1997) and give sufficient notice of cancellation to comply with RCW

§ 48.18.290, even if there is no proof that the cancellation letter was received by

the insured?” Cornhusker Casualty Ins. Co. v. Kachman, 198 P.3d 505, 2008

WL 5250268, *1 (Wash. Dec. 18, 2008). The Washington Supreme Court ruled

that the sending of a notice of cancellation by certified mail fails to satisfy the

“mailed” requirement of RCW 48.18.290. Id. at *4. Accordingly, certified mail

must be “actually delivered” to meet the statutory requirements. Id.

In the instant case, NIC submitted evidence thatthe notice of cancellation

was sent by certified mail. NIC does not argue that the notice was actually

delivered to Selena. Instead, NIC relies on Washington cases issued prior to

Kachman holding that an insurer is not required to prove that a mailed notice

of cancellation was actually received for the cancellation to be effective.3

Additionally, NIC points to deposition testimony that the notice was never

returned by the post office as undeliverable. Because NIC did not prove that the

certified mail was actually delivered, the district court erred in granting

summary judgment in favor of NIC.4

Accordingly, we VACATE the summary judgment and REMAND for

proceedings consistent with this opinion.