SHERARD v. SAFECO INSURANCE COMPANY OF AMERICA (2018)

MEMORANDUM ***

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., 122 Wash.2d 180, 859 P.2d 586, 589 (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).

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.