Glenn Sherard; v. Safeco Insurance Company of America

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
GLENN SHERARD; et al.,
Plaintiffs-Appellants,
v.
SAFECO INSURANCE COMPANY OF
AMERICA,
Defendant-Appellee.
No. 16-35246
D.C. No. 2:14-cv-00840-MJP
MEMORANDUM*
Appeal from the United States District Court
for the Western District of Washington
Marsha J. Pechman, District Judge, Presiding
Submitted March 8, 2018**
Seattle, Washington
Before: RAWLINSON and CHRISTEN, Circuit Judges, and FREUDENTHAL,***
Chief District Judge.
FILED
MAR 13 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
*** The Honorable Nancy Freudenthal, Chief United States District Judge
for the District of Wyoming, sitting by designation.

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Glenn and Carol Sherard and Erin and Fred Schlect (collectively,
“plaintiffs”) appeal the district court’s grant of summary judgment in favor of
Safeco Insurance Company of America (Safeco). We have jurisdiction under 28
U.S.C. § 1291, and we affirm.
1. The district court did not err by finding that the Sherards’ assignment of
the replacement cost holdback was invalid. According to their insurance policy
with Safeco, the Sherards were only entitled to the replacement cost holdback if
they actually replaced or repaired the damaged property. Because the Sherards did
not replace or repair the property, they had no right to the replacement cost
holdback. See Hess v. N. Pac. Ins. Co., 859 P.2d 586, 589 (Wash. 1993) (en banc).
2. The district court did not err by granting summary judgment in favor of
Safeco on the Schlects’ contractual and extra-contractual claims. Because the
assignment was invalid, the Schlects had no rights under the Sherards’ insurance
policy.
3. Plaintiffs did not argue before the district court that Safeco should be
estopped from challenging their assignment on grounds that Safeco did not raise
when it originally denied the assignment. Thus, they may not raise the argument
for the first time on appeal. See Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir.
1999).
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4. Plaintiffs’ remaining claims were voluntarily dismissed with prejudice.
We do not address plaintiffs’ arguments to the extent they are based upon these
claims.
AFFIRMED.
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