Cornhusker Casualty v. Samples ( 2008 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CORNHUSKER CASUALTY INSURANCE 
COMPANY, No. 06-35106
Plaintiff-Appellee, D.C. No.
v. CV-05-05026-RBL
CHRIS KACHMAN, ORDER
Defendant,  CERTIFYING
QUESTION TO
and
THE
BROOKS SAMPLES, individually and WASHINGTON
as Personal Representative of the STATE SUPREME
Estate of Leanne Samples, COURT
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.
*The Honorable Lyle E. Strom, Senior United States District Judge for
the District of Nebraska, sitting by designation.
1515
1516 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.
ORDER
GOULD, Circuit Judge:
This case arises from a dispute over whether Cornhusker
Casualty Insurance Company (“Cornhusker”) insured Rocke-
ries, Inc. (“Rockeries”), a Washington landscaping company,
on October 22, 2004, the day Leanne Samples was fatally
injured in an automobile accident with an employee of Rocke-
ries. 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 suit in federal district court against Rockeries
and Samples seeking a declaratory judgment that, prior to the
accident, it had effectively cancelled its policy insuring Rock-
eries because of nonpayment of premiums. The district court
granted summary judgment in favor of Cornhusker and denied
Samples’ cross-motion for summary judgment. Samples
appealed the district court’s decision. We had jurisdiction pur-
suant to 28 U.S.C. § 1291. In an opinion filed concurrently
with this order, we rejected Cornhusker’s waiver argument
and Samples’ equitable estoppel claim. This order certifies to
the Washington State Supreme Court the remaining and disposi-
tive1 question of state law before us—namely, whether notice
1
We conclude that whether Rockeries was insured by Cornhusker on
October 22, 2004 depends entirely upon the answer provided by the Wash-
ington State Supreme Court; the answer to our certified question is “neces-
sary . . . to dispose of” this appeal. Wash. Rev. Code § 2.60.020.
CORNHUSKER CASUALTY INS. v. SAMPLES 1517
sent by certified mail satisfies the “mailed” requirement of the
Revised Code of Washington § 48.18.290 (1997) (“RCW
§ 48.18.290”) such that a cancellation letter sent via certified
mail gives sufficient notice under RCW § 48.18.290, even if
the letter is never received by the insured.
I
Before addressing the question to be certified, we summa-
rize the material facts: Beginning on June 28, 2000, Corn-
husker, a Nebraska company, provided commercial auto
insurance for Rockeries. 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 occa-
sions, 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. Rocke-
ries 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 pol-
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
1518 CORNHUSKER CASUALTY INS. v. SAMPLES
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 filed suit in federal district court against Rockeries and
Samples seeking a declaratory judgment that it had effectively
cancelled its policy insuring Rockeries before the accident
because of nonpayment of premiums and that it therefore had
no obligation to provide Rockeries with a defense or to
assume any liability in the wrongful death action.
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 certified mail
satisfies the “mailed” requirement established in RCW
§ 48.18.290 and that a letter of cancellation sent via certified
mail gives 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. Samples appealed the
district court’s judgment.
In an opinion accompanying this order, we have disposed
of the two other issues on appeal. We have rejected Corn-
husker’s argument that Samples waived his right to argue that
certified mail, unlike regular mail, must actually be received
in order to satisfy the statutory notice requirement of RCW
§ 48.18.290, concluding that Samples sufficiently raised this
issue before the district court. In the same opinion, we have
rejected Samples’ equitable estoppel argument, determining
that Cornhusker’s requirement that Rockeries pay a premium
installment on September 2, 2004 was consistent with the
CORNHUSKER CASUALTY INS. v. SAMPLES 1519
installment notices sent to Rockeries and the payment sched-
ule of the three previous years it collected payments from
Rockeries.
II
We now turn to the issue that is the basis of our certifica-
tion order: whether notice of cancellation sent by certified
mail is “mailed” for purposes of RCW § 48.18.290. Specifi-
cally, the issue is whether a letter of cancellation sent via cer-
tified mail gives sufficient notice of cancellation to comply
with RCW § 48.18.290, even if the cancellation letter is never
received by the insured.
The relevant subsections of RCW § 48.18.290, as it existed
in 2004,2 include:
Subsection (1): Cancellation by the insurer of any
policy . . . may be effected as to any interest only
upon compliance with the following:
Subsection (1)(a): Written notice of such cancella-
tion, accompanied by the actual reason therefor,
must be actually delivered or mailed to the named
insured . . . .
2
RCW § 48.18.290 was amended in June 2006 to include the following
language:
Subsection (1)(a)(i): The insurer must deliver or mail written
notice of cancellation to the named insured . . .
Even though the statute no longer includes the words “actually delivered”
it still distinguishes between delivering and mailing a notice of cancella-
tion without either defining mail to include certified mail or instead requir-
ing delivery of certified mail. Acceptance of certification on this issue by
the Washington State Supreme Court will permit resolution of the case
before us. Moreover, a ruling resolving this issue by the Washington State
Supreme Court will also clarify the meaning of the word “mail” in the cur-
rent version of the statute.
1520 CORNHUSKER CASUALTY INS. v. SAMPLES
Subsection (2): 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 let-
ter 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.
We certify this question because we conclude that neither the
Washington State Supreme Court nor the state court of
appeals has yet answered definitively whether a letter of can-
cellation sent by an insurer via certified mail but never
received by the insured satisfies the notice requirements
imposed by RCW § 48.18.290 to cancel an insurance policy.3
On the one hand, and arguing against treating notice sent
by certified mail as “mailed” for purposes of RCW
§ 48.18.290, although “mailed” is not defined in RCW
§ 48.18.290, in five other sections of the Revised Code of
Washington (“RCW”) “mail” is defined to mean only “regular
mail,” and no section of the RCW defines the term to include
certified mail. See, e.g., RCW §§ 15.44.010, 15.65.020(27),
15.66.010(17), 16.67.030(13), 34.05.010(10). Moreover, the
Washington State Legislature has explicitly authorized the use
of certified mail or registered mail as a form of mailing on
numerous occasions, see, e.g., RCW §§ 4.28.330, 6.27.130(1),
7.04A.090, including at least six provisions in Title 48, which
governs insurance practices and procedures and includes
RCW § 48.18.290, see, e.g., RCW §§ 48.03.040(5),
3
Even though certification was not suggested by either party, we may
sua sponte invoke the certification process. RCW § 2.60.030(1)
(“Certificate procedure may be invoked by a federal court upon its own
motion . . . .”); Parents Involved in Comty. Sch. v. Seattle Sch. Dist., No.
1, 294 F.3d 1085, 1086 (9th Cir. 2002) (certifying question sua sponte).
CORNHUSKER CASUALTY INS. v. SAMPLES 1521
48.05.210(1), 48.05.485. The silence of RCW § 48.18.290
with respect to certified mail in light of the other Washington
statutes that explicitly authorize its use might possibly indi-
cate a deliberate choice by the Washington State Legislature,
and “[w]here the Legislature omits language from a statute,
intentionally or inadvertently, . . . [a reviewing] court will not
read into the statute the language that it believes was omit-
ted.” State v. Moses, 37 P.3d 1216, 1218 (Wash. 2002).4
If sending notice of cancellation by certified mail does not
qualify as “mailed” under RCW § 48.18.290, then Samples
argues that it falls under the “actually delivered” prong of
RCW § 48.18.290, requiring that certified mail be received by
the addressee in order to be effective under the statute. Under
this approach, certified mail would be treated like courier
delivery or Federal Express, which are similar in form to cer-
tified mail. Although the Washington State Supreme Court
has refused to classify as mail “anything other than postal
matter carried by the United States Postal Service,” Cont’l
Sports Corp. v. Dep’t of Labor and Indus., 910 P.2d 1284,
1288 (Wash. 1996), we do not view this decision as preclud-
ing Samples’ argument because it does not hold that all matter
carried by the United States Postal Service must be classified
as mail. Samples points to section 3 of the statute, which per-
mits an affidavit from the individual making or supervising
the mailing to constitute prima facie evidence of the mailing,
RCW § 48.18.290(3), to support his contention that the Wash-
ington State Legislature intended only for regular mail to
4
However, Washington state courts have not always considered the
inclusion of certified mail within the generic term “mail” as reading addi-
tional terms into a statute. E.g., Collins v. Lomas & Nettleton Co., 628
P.2d 855, 856 (Wash. Ct. App. 1981). In Collins, in the context of a state
rule of civil procedure with similar open-ended language to RCW
§ 48.18.290, the Washington State Court of Appeals held that “[w]e find
no justification for precluding the use of certified mail absent express lan-
guage to that effect.” Id. (holding that the sender satisfied the requirements
of the procedural rule and due process where the documents were sent by
certified mail even though the mail was returned to sender).
1522 CORNHUSKER CASUALTY INS. v. SAMPLES
qualify as “mailed” because there would be no need for an
affidavit with certified mail which creates its own paper trail.
On the other hand, and arguing for treating certified mail
as satisfying the “mailed” requirement, Cornhusker contends
that the Washington State Legislature intended certified mail
to satisfy the notice requirements of RCW § 48.18.290. Sec-
tion 2 of RCW § 48.18.290 describes how “mailing” shall be
effected by “depositing [the notice] 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 . . . in a let-
ter depository of the United States post office.” RCW
§ 48.18.290(2). Cornhusker argues that certified mail is
deposited at a United States post office and is thereby an
effective mailing under the statute. Section 2 of the statute
also directs the insurer to “retain in its records any such item
so mailed, together with its envelope, which was returned by
the post office upon a failure to find, or deliver the mailing
to, the addressee.” Id. Cornhusker contends that this statutory
requirement would be rendered meaningless if actual receipt
of a certified mailing was required to effect cancellation.
In further support of classifying notice sent by certified
mail as “mailed” for purposes of RCW § 48.18.290, Washing-
ton state courts, in construing statutory schemes other than
those governing insurance cancellation, have held that actual
receipt of certified mail is not required to provide adequate
notice. See In re Marriage of McLean, 937 P.2d 602, 603-05
(Wash. 1997) (en banc) (holding, in a child support proceed-
ing, that because the statute at issue did not require the return
receipt be signed by the addressee as other Washington stat-
utes did, “nor otherwise expressly indicate that actual delivery
[was] required,” it should not be interpreted to mandate actual
receipt but merely proof of mailing via one of the specified
methods); Baker v. Altmayer, 851 P.2d 1257, 1257-59 (Wash.
Ct. App.) (concluding that even though the owners against
whom a materialman’s lien was sought never received a certi-
fied letter or hand-delivered notices that such letter was wait-
CORNHUSKER CASUALTY INS. v. SAMPLES 1523
ing to be claimed at the post office, the sender “complied with
the literal requirements of the statute and [was] entitled to
enforce its lien”), rev. denied, 866 P.2d 39 (Wash. 1993). But
see State v. Bazan, 904 P.2d 1167, 1171 (Wash. Ct. App.
1995) (holding that a criminal defendant was deprived of a
speedy trial in violation of both Washington criminal proce-
dure rules and due process when the sheriff’s office sent him
four notices by certified mail requiring him to appear for
arraignment, all of which were returned “unclaimed,” because
no presumption of receipt exists where certified mail, instead
of regular first-class mail, is used to send notice), rev. denied,
919 P.2d 600 (Wash. 1996). Unlike RCW § 48.18.290, the
statutes involved in Marriage of McLean and Baker clearly
classified certified mail as “mail,” but these cases neverthe-
less hold, contrary to what Samples argues, that certified mail
is effective to provide notice even where the mailing is not
actually received.
Our uncertainty regarding the role of certified mail under
RCW § 48.18.280 is heightened by the public policy consid-
erations that underlie insurance regulations and the Washing-
ton State Supreme Court’s holding that such policy
considerations must be considered when interpreting statutes
that regulate insurance policies. See Olivine Corp. v. United
Capitol Ins. Co., 52 P.3d 494, 501 (Wash. 2002) (“The pur-
pose of the notice requirements in the insurance code [RCW
§ 48.18.290] is to enable the insureds—all of them—to take
appropriate action in the face of impending cancellation of an
existing policy . . . . enabl[ing] the insured to adjust by either
making the payments in default, obtaining other insurance
protection, or preparing to proceed without insurance protec-
tion.”) (citations omitted); see also Arborwood Idaho, L.L.C.
v. City of Kennewick, 89 P.3d 217, 221 (Wash. 2004) (“The
court’s fundamental objective in construing a statute is to
ascertain and carry out the legislature’s intent.”). The Wash-
ington State Supreme Court has stated that insurance policies
“abound with public policy considerations, one of which is
that the risk-spreading theory of such policies should operate
1524 CORNHUSKER CASUALTY INS. v. SAMPLES
to afford to affected members of the public—frequently inno-
cent third persons—the maximum protection possible conso-
nant with fairness to the insurer.” Oregon Auto. Ins. Co. v.
Salzberg, 535 P.2d 816, 819 (Wash. 1975).
Moreover, a majority of other jurisdictions that have con-
sidered whether certified mail qualifies as mail for purposes
of notice of insurance cancellation have held that notice sent
by certified mail, when not actually received, is insufficient to
effect cancellation.5 See, e.g., Conrad v. Universal Fire &
Cas. Ins. Co., 686 N.E.2d 840, 842-43 (Ind. 1997) (holding
that where a policy’s cancellation provision “neither required,
authorized, nor prohibited the use of certified mail” but sim-
ply stated that proof of mailing was sufficient to establish
notice, certified mail was not an effective form of notice
because it requires someone to be present to sign for it and
thus “is not reasonably calculated to ensure receipt” and “is
not a sufficiently reliable means of notifying the insured of
the need to find new coverage”); Larocque v. R.I. Joint Rein-
surance Ass’n, 536 A.2d 529, 530, 532 (R.I. 1988) (holding
that under a Rhode Island statute requiring insurers to “give
notice” of cancellation to insureds, actual receipt of such
notice is required and “may be presumed by proof of an ordi-
nary mailing” but not where an insurer, “by sending notice via
certified mail instead of regular postage, increased the risk of
nondelivery”); Fidelity & Cas. Co. of N.Y. v. Riley, 178 A.
250, 253 (Md. 1935) (holding that where a policy’s cancella-
tion clause allowed for “written notice [to be either] delivered
to the insured or mailed to his last address,” sending cancella-
tion notices by registered mail to two addresses on file for the
insured constituted an attempt of actual delivery, which,
because neither was actually received, “failed of its purpose”
and so did not cancel the policy). But see Westmoreland v.
Gen. Accident Fire & Life Assurance Corp., 129 A.2d 623,
5
In jurisdictions where no statute is at issue, the cases concerning insur-
ance cancellation interpret the meaning of “mail” in the insurance policy
itself.
CORNHUSKER CASUALTY INS. v. SAMPLES 1525
626 (Conn. 1957) (“When the provision in a policy is that
notice by mail is sufficient, that provision is broad enough to
cover all the kinds of mail which are commonly used to con-
vey messages. Registered mail is just as much mail as ordi-
nary mail. The sending of a notice of cancellation by
registered mail is compliance with the requirement of the pol-
icy that the notice shall be mailed.”).
Because the controlling question of state law is not entirely
settled, we have concluded that an appropriate course of
action is to certify this issue to the Washington State Supreme
Court and request that it provide the dispositive answer.6 If
the Washington State Supreme Court concludes that notice
sent by certified mail qualifies as “mailed” for purposes of
RCW § 48.18.290 such that proof of mailing satisfies the
notice requirements of the statute, we will affirm the district
court on that basis. If, however, the Washington State
Supreme Court determines that notice sent by certified mail
does not qualify as “mailed” for purposes of RCW
§ 48.18.290, we will reverse the district court’s order granting
summary judgment to Cornhusker and denying Samples sum-
mary judgment.
ORDER
In light of our foregoing discussion, and because the
answer to this question is “necessary to ascertain the local law
of this state in order to dispose” of this appeal, RCW
§ 2.60.020, we respectfully certify to the Washington State
Supreme Court the following question:
Does sending notice of cancellation by certified mail
satisfy the “mailed” requirement of RCW
§ 48.18.290 (1997) and give sufficient notice of can-
6
The Washington State Supreme Court has the discretion to decide
whether to answer the certified question. Broad v. Mannesmann Anlagen-
bau AG, 10 P.3d 371, 374 (Wash. 2000).
1526 CORNHUSKER CASUALTY INS. v. SAMPLES
cellation to comply with RCW § 48.18.290, even if
there is no proof that the cancellation letter was
received by the insured?
We do not intend our framing of this question to restrict the
Washington State Supreme Court’s consideration of any
issues that it determines are relevant. If the Washington State
Supreme Court decides to consider the certified question, it
may in its discretion reformulate the question. Broad v. Man-
nesmann Anlagenbau AG, 196 F.3d 1075, 1076 (9th Cir.
1999).
If the Washington State Supreme Court accepts review of
the certified question, we designate appellant Samples as the
party to file the first brief pursuant to Washington Rule of
Appellate Procedure (“WRAP”) 16.16(e)(1).
The clerk of our court is hereby ordered to transmit forth-
with to the Washington State Supreme Court, under official
seal of the United States Court of Appeals for the Ninth Cir-
cuit, a copy of this order and all relevant briefs and excerpts
of record pursuant to RCW §§ 2.60.010, 2.60.030 and WRAP
16.16.
Further proceedings in our court on the certified question
are stayed pending the Washington State Supreme Court’s
decision whether it will accept review, and if so, receipt of the
answer to the certified question. This case is withdrawn from
submission until further order from this court. The panel will
resume control and jurisdiction on the certified question upon
receiving an answer to the certified question or upon the
Washington State Supreme Court’s decision to decline to
answer the certified question. When the Washington State
Supreme Court decides whether or not to accept the certified
question, the parties shall file a joint report informing this
court of the decision. If the Washington State Supreme Court
accepts the certified question, the parties shall file a joint sta-
CORNHUSKER CASUALTY INS. v. SAMPLES 1527
tus report every six months after the date of the acceptance,
or more frequently if circumstances warrant.
It is so ORDERED.
_________________________________
RONALD M. GOULD
Circuit Judge, United States Court of
Appeals for the Ninth Circuit
Presiding Judge of the Certifying Panel
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