Unpublished Disposition, 915 F.2d 1581 (9th Cir. 1989)

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US Court of Appeals for the Ninth Circuit - 915 F.2d 1581 (9th Cir. 1989)

Edward BACKMAN and Birgitta Backman, husband and wife,Plaintiffs-Appellants,v.FARMERS INSURANCE EXCHANGE, a Foreign Corporation Defendant-Appellee.

No. 90-35321.

United States Court of Appeals, Ninth Circuit.

Submitted Oct. 3, 1990* Decided Oct. 9, 1990.

Before KOZINSKI, O'SCANNLAIN and FERNANDEZ, Circuit Judges.


MEMORANDUM** 

Facts

In December of 1987, a building owned by plaintiff Backman and insured by defendant Farmers Insurance Exchange burned down. Farmers paid Backman $71,000, the policy limit. Because the damage to the building exceeded that sum, Backman began to repair the building himself. Before he completed the repairs, however, on October 31, 1988, a second fire destroyed the building. The fire department determined that the second fire was caused by arson, and Backman was the primary suspect.

Backman once again filed a claim. Farmers' field representative requested information concerning his losses, which Backman provided. Upon learning that the fire was of suspicious origins, Farmers retained counsel, who on February 14, 1989, requested that financial information, including all books, records and documents pertaining to Backman's personal finances, be handed over or made available to Farmers' accounting firm. Despite repeated requests, Backman did not produce the documents. Backman brought suit on October 30, one day before the policy's deadline.

Farmers moved for summary judgment on the grounds that Backman's failure to provide the requested documents precluded recovery under the policy, and the district court granted the motion. Backman appeals.

Discussion

Endorsement DP-300 to Backman's insurance policy states that after a loss, an insured must "provide us [insurer] with records and documents we request and permit us to make copies." DP-300, at 1, Condition 4d(2), ER 107.1  The base contract, form DP-1, provides that " [n]o action shall be brought unless there has been compliance with the policy provisions." DP-1, at 7, Condition 11, ER 35. Backman does not contest that he failed to allow Farmers access to the documents as required by the DP-300 endorsement; and he concedes that, under Washington law, failure to comply with the provisions of the policy generally precludes recovery. However, Backman asserts numerous defenses and excuses for his failure to comply. None have merit.

A. Backman alleges that a letter dated November 28, 1988, ER 81-82, is inconsistent with later letters demanding access to financial documents because it (1) doesn't assert a right to see financial documents and (2) included a copy of the insurance contract, DP-1, and no copy of the DP-300 endorsement. He argues that this inconsistency estops Farmers from demanding that he produce the financial documents as required under the DP-300 endorsement.

Equitable estoppel requires a showing of detrimental reliance on the allegedly inconsistent prior statement. Kirk v. Moe, 114 Wash. 2d 550, 789 P.2d 84, 88 (1990). There has been no suggestion that the November 28 letter precluded Backman from later producing the financial documents when Farmers requested them; nor has Backman indicated any way in which his position changed between the November 28 request for proof of loss and the later request for financial documents.

B. Similarly, Backman has not raised a material issue of fact with respect to his claim that Farmers waived its right to see the financial documents. Waiver is the voluntary relinquishment of a known right; when waiver is inferred from conduct, the conduct in question must be inconsistent with any other intent. See Public Utility Dist. No. 1 v. Washington Public Power Supply System, 104 Wash. 2d 353, 705 P.2d 1195, 1204-05 (1985). Nothing in the November 28 letter suggests that Farmers intended to waive its right of access to documents under the DP-300 endorsement and Backman has presented no other evidence that Farmers intended such a waiver.

C. Backman claims that Farmers' demand for the financial documents was a bad-faith attempt to stall until the period for asserting his claim had run. The undisputed facts are to the contrary: Farmers first requested the financial documents eight months before the deadline for filing suit, and sent no fewer than five letters requesting access to the documents. Backman has made no showing of bad faith that would defeat a motion for summary judgment.

D. Finally, Backman asserts that requiring him to comply with Farmers' request for financial documents infringes upon his fifth amendment privilege. Backman neither raised this issue in the court below nor in his correspondence with Farmers. Given the complexity of Backman's state action theory,2  his failure to even mention it or the fifth amendment to the district court precludes him from raising it on appeal. See Image Technical Service, Inc. v. Eastman Kodak Co., 903 F.2d 612, 615 n. 1 (9th Cir. 1990); 10 C. Wright, A. Miller & M. Kane, Federal Practice & Procedure Sec. 2716, at 650-54 (2d ed. 1983).

We recognize that where the issue is a purely legal one and requires no further factual development, we have discretion to address it on appeal even if it was not raised below. Animal Protection Institute v. Hodel, 860 F.2d 920, 927 (9th Cir. 1988). However, this is not such a case: Backman concedes that if he has a legitimate fifth amendment claim, the district court must balance the interests of the parties, and in particular consider whether denying access to the requested documents will prejudice the insurer. Appellant's Brief at 15. There has been no factual development that would support such balancing. We don't know the extent to which Farmers would be prejudiced by partial or total noncompliance, and there is no indication of whether Backman could partially comply without risking self-incrimination.

AFFIRMED.

 *

The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a); 9th Cir.R. 34-4

 **

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3

 1

Although Backman asserts that there is a dispute over which policy was in effect at the time of the fire, this dispute need not be resolved. Each and every policy issued to Backman included endorsement DP-300. ER 123-126

 2

Backman alleges that because the state (1) prescribes the form contract that gives the insurance company the right to see the documents and (2) requires insurance companies to hand evidence of arson over to the state, the act of demanding access is properly attributable to the state. He does not address the issue of whether the state can be responsible where it gives a right but does not compel its e ercise. See Flagg Bros. v. Brooks, 436 U.S. 149, 165-66 (1978)