In a prior post, we discussed Cornhusker Cas. Ins. Co. v. Kachman, No. 06-35106 (9th Cir. Jan. 30, 2008). In the initial Cornhusker decision, the Ninth Circuit certified to the Washington Supreme Court the issue of whether a cancellation letter sent by certified mail but never received by the insured was effective under Washington law. On December 18, 2008, the Washington Supreme Court answered, "no." See Cornhusker Cas. Ins. Co. v. Kachman, 2008 Wash. LEXIS 1226 (Wash. Sup. Ct. Dec. 18, 2008).
Thereafter, the Ninth Circuit issued an Order amending its prior opinion. Cornhusker Cas. Ins. Co. v. Kachman, No. 06-35106 (9th Cir. Jan. 13, 2009)(Order Amended Opinion and Amended Opinion). The amended opinion notes that the Washington Supreme Court determined that sending a notice of cancellation by certified mail does not satisfy the "mailed" requirement of the statute. In order for certified mail to meet the statutory notice requirement, the notice must be "actually delivered." Cornhusker Cas. Ins. Co., 2008 Wash. LEXIS 1226, at *13. Consequently, the Ninth Circuit's amended opinion held that because the insureds did not receive delivery of the cancellation letter, the insurer did not provide an effective cancellation notice.
It is an open question whether Hawai`i law would adopt a similar position. Haw. Rev. Stat. 431:10-226.5 says nothing about receipt of a cancellation notice. It only states, "Cancellation . . . shall not be deemed valid unless evidence of mailing is provided."
My Damon Key colleague Robert Thomas, author of inversecondemnation.com, gave me notice of the first Cornhusker decision rendered by the Ninth Circuit. My Damon Key colleague Mark Murakami, author of hawaiioceanlaw.com, gave me notice of this recent Cornhusker order. They both do their best to keep me on my toes.
