                                                                            FILED
                           NOT FOR PUBLICATION
                                                                            MAR 13 2018
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


GLENN SHERARD; et al.,                           No.   16-35246

              Plaintiffs-Appellants,             D.C. No. 2:14-cv-00840-MJP

 v.
                                                 MEMORANDUM*
SAFECO INSURANCE COMPANY OF
AMERICA,

              Defendant-Appellee.


                   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.




      *
             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.
      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).


                                          2
      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.




                                         3
