Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County No. 06CC06279, James P. Gray, Judge.
Vivoli & Associates and Michael W. Vivoli for Defendant and Appellant.
Berger Kahn, Lance A. LaBelle and Richard W. Zevnik, for Plaintiff and Respondent.
OPINION
IKOLA, J.
In this scope of insurance coverage case, defendant Vinci Investment Company, Inc. (Vinci), which did business as Honda Santa Ana, appeals from a judgment in favor of plaintiff Mid-Century Insurance Company, wherein the court found Mid-Century had no duty to defend or indemnify Vinci in the underlying lawsuit brought by Santa Ana Federal Credit Union (the credit union) against Vinci. The credit union’s lawsuit involved its purchase from Vinci of installment sale contracts for vehicles sold by Vinci to retail customers. On appeal Vinci contends the court erred by (1) ruling the insurance policy did not cover the credit union’s claims against Vinci and that Mid-Century had no duty to defend Vinci against those claims, and (2) granting summary adjudication and judgment on the pleadings in Mid-Century’s favor on Vinci’s bad faith claim in its cross-complaint against Mid-Century. We reverse the judgment on the scope of the insurance coverage because the truth in lending errors and omissions liability endorsement and the title errors and omissions liability endorsement potentially covered some of the credit union’s claims against Vinci. We also reverse the court’s summary resolution of Vinci’s bad faith claim against Mid-Century and therefore remand the case to the trial court for further proceedings.
The parties agree that the automobile dealership currently operating under the name “Honda Santa Ana” is not owned or operated by Vinci.
Vinci stipulated to sever and stay its cross-complaint against Farmers Group, Inc., which Vinci alleged was Mid-Century’s parent company. No judgment was entered as to Farmers. Since Farmers is not a party to this appeal, we do not mention its involvement in the litigation in this recitation of facts.
Under a commercial general liability policy (the CGL policy), Mid-Century insured defendant from October 1, 2003 to October 1, 2004. Coverage under the CGL policy was modified by an automobile dealers specific liability coverage endorsement (the Endorsement) drafted by Mid-Century’s alleged affiliate. As applicable here, the Endorsement provided coverage for “Truth In Lending or Leasing Errors and Omissions Liability” and “Title Errors and Omissions Liability.” The truth in lending and the title errors and omissions coverages insured defendant up to an annual aggregate limit of $100,000 and $50,000, respectively, against liability for damages “involving” defendant’s negligent truth in lending violations or misidentifications of mortgagee, respectively.
In September 2003, Vinci “commenced a business relationship” with the credit union “by which Vinci would sell to the Credit Union auto loan contracts between Vinci and its retail customers.”
The Credit Union’s Lawsuit Against Vinci
In March 2004, the credit union brought the underlying lawsuit against Vinci, alleging six causes of action, including breach of contract (count two), interference with contract (count five), and, under Business and Professions Code section 17200 et seq., unfair business practices (count six). The credit union alleged that, pursuant to a retail installment contract purchase agreement between the credit union and Vinci (the Agreement), the credit union bought from Vinci automobile sale contracts which Vinci was required to buy back upon a buyer’s failure to make the first or second payment. The credit union alleged Vinci “failed and refused to comply with the repurchase provisions of the Agreement.” The credit union sought “damages” under its breach of contract and interference with contract causes of action, and other remedies under its remaining claims.
In its breach of contract claim, the credit union alleged the adjusted value of contracts for which vehicles had been repossessed or for which repossession had been ordered, or as to which Vinci had accepted the return of vehicles from buyers without paying the credit union, was over $1,490,399.
As to all causes of action, the credit union alleged Vinci warranted in the Agreement, inter alia, that: “all contracts assigned to the CREDIT UNION are in compliance with all applicable federal, state and local laws and ordinances”; “amounts inserted [in the assigned contracts] are correct”; the down payment shown on each assigned contract “was received in cash or trade and no part thereof was advanced directly or indirectly by [Vinci], and that there are no undisclosed, uncashed checks or promissory notes of a buyer held by [Vinci]”; the “buyer [of the vehicle] has no known defense or counterclaim to payment of the obligation evidenced by the contract”; and “the facts set forth in the contract are true.”
Paragraph 13 of the credit union’s complaint (which was included or incorporated into all six causes of action) contained numerous allegations against Vinci. As pertinent to our holdings here, the credit union alleged in paragraph 13 that Vinci breached the Agreement by “assigning to the CREDIT UNION contracts that are not in compliance with all applicable federal, state and local laws and ordinances;... assigning to the CREDIT UNION contracts in which statements and amounts inserted therein are not correct; assigning to the CREDIT UNION contracts in which the down payment shown on the contract is not correct; [and] assigning contracts to the CREDIT UNION in which the buyer has a defense or counterclaim to payment of the obligation evidenced by the contract....”
The credit union also alleged in paragraph 13 of its complaint that Vinci breached its agreement with the credit union by: “failing to complete all forms and documents, and failing to pay all fees necessary to properly perfect the CREDIT UNION’S security interest in vehicles that are collateral for contracts purchased from [Vinci]”; by “failing to process and to provide the CREDIT UNION with information regarding the status of the DMV title work [Vinci] is required to process under the Agreement which has prevented the CREDIT UNION from enforcing its rights against the collateral on contracts that are in default”; and by “assigning to the CREDIT UNION contracts in which the CREDIT UNION’S security interest does not constitute a valid first lien on the collateral and the necessary DMV paper work has not been filed or recorded according to law to preserve the priority of each lien.”
The credit union alleged that as “a direct and proximate result of the foregoing [breaches], the CREDIT UNION agreed to purchase certain contracts from [Vinci] that it would not have agreed to purchase if it had known the true facts.”
In its unfair business practices claim, the credit union repeated the foregoing alleged breaches verbatim and further alleged the “foregoing acts and practices violate, among other things, 18 U.S.C. section 1344 which prohibits defrauding or obtaining money from a financial institution ‘by means of false or fraudulent pretenses, representations or promises’ and the Automobile Sales Financing Act, Civil Code section 2981, et seq.”
Neither Mid-Century nor Vinci contends section 1344 of title 18 of the United States Code is a truth in lending law.
Vinci’s Tender to Mid-Century
One and a half years later, on August 8, 2005, Vinci notified Mid-Century “of a potential for coverage” of the credit union’s claims against Vinci, and sought a defense and indemnification from Mid-Century. Vinci’s letter stated: “As relevant to the [CGL policy], the [credit union’s] complaint alleges [in the unfair business practices cause of action], that [Vinci] violated, ‘among other things, 18 U.S.C. section 1344 which prohibits defrauding or obtaining money from a financial institution “by means of false [or] fraudulent pretenses, representations or promises” and the Automobile Sales Financing Act, Civil Code section 2981, et seq.’” Vinci further stated that through discovery, it had “learned of additional allegations which may give rise to coverage under the policy.” “On March 18, 2005, for instance,” in an interrogatory response, the credit union had alleged Vinci violated “‘express or implied disclosure requirements of the Auto Sales Finance Act (Civ. Code, § 2982) and Civil Code section 1170.’” Vinci interpreted the credit union’s interrogatory response as an allegation that Vinci violated “California’s Truth in Lending laws.” Vinci provided Mid-Century with a copy of the credit union’s complaint and “two sets of interrogatory responses served on Vinci by the Credit Union.” Thus, in its letter, Vinci appeared to base its insurance claim on the credit union’s unfair business practices cause of action and the truth in lending liability coverage.
Around September 28, 2005, Vinci sent Mid-Century a copy of the credit union’s September 2, 2005 responses to interrogatories propounded by Vinci. In that supplemental set of responses, the credit union provided a more detailed allegation of how Vinci “failed ‘to remain in compliance with all applicable federal, state and local laws and ordinances’”: “Discovery received from [Vinci] reveals that it failed to remain in compliance with all applicable federal, state and local laws and ordinances and engaged in a fraudulent and unlawful business practice by, among other things, failing to disclose deferred down payments on the face of Retail Installment Sale Contracts sold to the CREDIT UNION and falsely inflating the value of vehicles by... adding accessories to booking sheets that were not on vehicles, in violation of... the Automobile Sales Finance Act.... Attached hereto is a summary of the Retail Installment Sales Contracts containing undisclosed deferred down payments, falsified accessories, and other misrepresentations. [Vinci’s] unlawful and fraudulent business practice violates the Automobile Sales Finance Act [and] 12 C.F.R. section 226.18 (Regulation Z).”
The credit union used the word “misrepresentations” in this response, as alleged in its interference with contract claim of the complaint that Vinci acted “intentionally,” and alleged “intentional” acts and omissions and “misrepresentations” in paragraph 13 of the complaint. Although the truth in lending liability insurance covers only damages involving Vinci’s “negligent” truth in lending violations, Mid-Century does not argue on appeal that all of Vinci’s violations were intentional, nor does it dispute that the credit union’s “claim arose out of an ‘occurrence,’” defined in the policy as an “unintended” event. In any case, an “insurer cannot avoid its duty to defend based on a coverage defense that depends on facts in dispute in the underlying lawsuit (e.g., when the complaint alleges that the insured engaged in particular conduct and the issue is whether that conduct was intentional (excluded) or negligent (covered).” (Croskey et al., Cal. Practice Guide: Insurance Litigation (The Rutter Group 2008) [¶] 7:524, p. 7B-11.) Moreover, as to the breach of contract allegations, the existence of the cause of action does not depend upon a showing that the breaches were intentional.
During Mid-Century’s investigation of Vinci’s claim, its claims adjuster “took the recorded statement” of Vinci’s general manager on September 30, 2005. In that interview, the general manager (and occasionally defense counsel) made the following statements about Vinci’s conduct of business with the credit union during the relevant time period: The credit union, in deciding whether to purchase contracts, “sent a Vice President of lending” into Vinci’s dealership, who reviewed documents prepared by Vinci in its “normal fashion.” These documents included “normal State and DMV regulated forms” published by Reynolds & Reynolds. Vinci assigned to the credit union those contracts that the credit union approved. In early 2004, the credit union “fired their CEO and their Vice President of Lending” and stopped doing business with Vinci. The credit union’s current lawsuit against Vinci involved 200 loans out of over 1,400 contracts Vinci assigned to the credit union. (Initially, the credit union had claimed buyers defaulted on over 700 to 800 loans, but amended that claim after “iron[ing] out problems” concerning the credit union’s failure to send payment coupon books to buyers, so that buyers did not know when or where to send payments.) In June or July of 2005, the credit union began contending that the “face of the contract... did not disclose in some instances that a portion of the down payment had been deferred.” The credit union contended a deferred down payment “should appear on the payment schedule... on the face of the contract.” These deferred down payments resulted when Vinci’s sales manager agreed to hold a customer’s check for various reasons (e.g., when a customer needed “to transfer funds from savings to checking,” or to “get [their] funds together,” or to wait until pay day). In those instances, Vinci’s finance manager would record the checks as a down payment, using the Reynolds & Reynolds software program, which would then “type[] the contract.” Because Vinci had guaranteed the funds, from its perspective the check represented “immediately available funds.” A “separate agreement” showed the check was “a hold check” and that Vinci had agreed to hold the check for “‘X’ amount of days.” The hold agreement was contained in the “loan file” the credit union reviewed.
On October 13, 2005, Vinci informed Mid-Century that the credit union had made a final settlement demand of $1.3 million. Vinci demanded that Mid-Century “honor its coverage obligations....”
On October 18, 2005, six days before the trial date for the credit union’s lawsuit, defense counsel sent Mid-Century’s claims adjuster “a sample copy of a Retail Installment Sales Contract that does list a deferred down payment.” In his cover letter, defense counsel stated: “On the second page of the enclosure, at Paragraph no. 6, entitled ‘Total Downpayment,’ you will note that subparagraph D contains a [$]716.00 deferred downpayment. Once that [$]716 is placed in that box, a [$]716 payment is automatically inserted into the ‘Federal Truth-in-Lending Disclosures’ box on the first page of the enclosure. That is why the negligent failure to include a deferred downpayment in the Itemization of the Amount Financed box does — very clearly — constitute a truth in lending claim.... [T]he Credit Union’s counsel... explained... that the Credit Union intends to assert that very argument against [Vinci] at trial.”
The sample contract was not one of Vinci’s contracts. The sample contract was subsequently admitted into evidence at the coverage trial as exhibit 23.
Around October 22, 2005, Vinci and the credit union “signed a Settlement Agreement that contemplated a future payment by” Vinci.
On October 25, 2005, Mid-Century responded to Vinci’s request for “a $450,000 settlement contribution” and “issued its written denial of coverage with respect to the Credit Union’s action.” Mid-Century declined any duty to defend or indemnify Vinci. Mid-Century argued that, as to the credit union’s unfair business practices claim against Vinci, damages were “not an available remedy for violations of Business & Professions Code section 17200”; hence, under Bank of the West v. Superior Court (1992) 2 Cal.4th 1254, 1266 (Bank of the West), there was no “truth in lending [liability] coverage” for that claim. Mid-Century contended the credit union’s remaining causes of action against Vinci (including the breach of contract and interference with contract claims) were “based solely on the contractual relationship and sale/assignment of auto loan transactions between” Vinci and the credit union, and did not involve any truth in lending statute or regulation.
In November 2005, Vinci paid the credit union $1.4 million to settle the credit union’s lawsuit.
Six months later, on May 4, 2006, Vinci first took the position that coverage also existed under the title errors liability provision.
The Instant Coverage Litigation
In May 2006, Mid-Century filed an action for declaratory relief against Vinci, seeking a judicial declaration that it had no duty to defend or indemnify Vinci with respect to the credit union’s action under the truth in lending errors and omissions coverage, the title errors and omission liability coverage, or the CGL bodily injury or property damage coverage. Vinci cross-complained against Mid-Century for breach of contract and breach of the implied covenant of good faith and fair dealing. Mid-Century moved for summary judgment or adjudication in its favor on Vinci’s cross-complaint, seeking, inter alia, summary adjudication as to Vinci’s “causes of action for breach of contract and for breach of the implied covenant of good faith and fair dealing, as well as VINCI’S claim for punitive damages against MID-CENTURY.”
In Mid-Century Insurance Co. v. Vinci Investment Co., Inc. (Feb. 26, 2007, G037404 [nonpub. opn.]), we affirmed the trial court’s denial of Vinci’s anti-SLAPP motion against Mid-Century.
The court denied Mid-Century’s motion for summary adjudication on its duty to defend or indemnify and on “the breach of contract issue,” but granted Mid-Century’s summary adjudication motion as to Vinci’s bad faith claim, thereby rendering “moot” the punitive damages issue. As pertinent to this appeal, the court ruled Mid-Century did not breach the implied covenant of good faith and fair dealing as a matter of law because a “genuine issue” existed as to the scope of coverage, and “no reasonable jury, under these facts,... could find in favor of [Vinci] for a bad-faith case under these circumstances.”
Vinci subsequently moved the court to reconsider its grant of summary adjudication on Vinci’s bad faith claim. Vinci argued that because the court had ruled the credit union’s claims were potentially covered under the CGL policy, Mid-Century owed “a defense duty as a matter of law,” yet Mid-Century still refused to pay Vinci’s “post-tender defense fees and costs....” The court ruled Vinci’s motion did not “satisfy the criteria for a reconsideration.” Instead, the court treated Vinci’s motion for reconsideration as a motion to amend its cross-complaint to allege facts occurring after the court denied summary adjudication on insurance coverage; the court then granted such motion to amend. Mid-Century moved the court to clarify its previous denial of summary adjudication on insurance coverage, explaining that a dispute existed between the parties about whether the court had ruled Mid-Century had a duty to defend as a matter of law. The court clarified it had denied summary adjudication of the coverage issue on the procedural ground that Mid-Century’s separate statement was insufficient. The court had therefore rendered “no substantive ruling” on the issue. Mid-Century moved for judgment on the pleadings on Vinci’s amended bad faith claim. The court granted judgment on the pleadings, again clarifying it had denied Mid-Century’s “prior motion for summary adjudication on the [breach of contract claim] on procedural grounds only” and had discussed certain case law only as “dicta,” and that the coverage issue “has still not been resolved or even officially addressed by the Court.” Although Vinci questions the court’s interpretation of its own ruling, “[c]omments made by the trial court are not rulings to be reviewed on appeal.” (Marich v. MGM/UA Telecommunications, Inc. (2003) 113 Cal.App.4th 415, 431.)
On Mid-Century’s motion, the court severed the action to address first the insurance coverage issues. At the May 2008 bench trial on the scope of insurance coverage, the court examined whether Vinci’s liability to the credit union was covered under the CGL policy. After listening to counsel’s arguments, the court addressed the plain meaning of the endorsement’s coverages, noting that “perfection in drafting is not required.” The court noted the title errors and omissions provision “does mention a mortgagee,” i.e., a lender. The court also addressed the following question: If the plain meaning of the CGL policy agreement “is not determined, what were the objectively reasonable expectations of the insured at the time that the policy was purchased?” The court found Vinci did not believe, at the time it bought the insurance, that the policy covered an action like the credit union’s lawsuit, based on breach of contract, especially given “that these are sophisticated parties” and that the standard is “the reasonable[] objective expectation of the insured.” The court ruled the truth in lending liability insurance covered Vinci only for lawsuits brought by customers, not for an action filed by the credit union for breach of contract. The court concluded and found that no coverage existed under the CGL policy for the credit union’s claims against Vinci.
DISCUSSION
I.
Vinci’s Coverage Claims Under the Truth in Lending and Title Errors Endorsement to the CGL Policy
The trial court ruled the CGL policy did not cover the credit union’s claims against Vinci, and impliedly determined that no “potential for liability within the coverage” existed and therefore Mid-Century bore no duty to defend Vinci against the credit union’s lawsuit. Vinci contends the court erred because the Endorsement’s truth in lending clause and title error clause covered the credit union’s claims against Vinci. We recite the relevant language of the Endorsement.
Paragraph 1 of the Endorsement added “the following coverage extensions” to the CGL policy:
“c. Truth in Lending or Leasing Errors and Omissions Liability. We will pay all sums for which the ‘insured’... becomes legally obligated to pay as damages resulting solely from an ‘occurrence’ involving any negligent act, error or omission in failing to comply with U.S. Code, Title 15, Chapter 41, Section 1640, or any State law on Truth in Lending.”
“e. Title Errors and Omissions Liability. We will pay all sums for which the ‘insured’... becomes legally obligated to pay as damages arising solely from an ‘occurrence’ involving any negligent act, error or omission committed by the ‘insured’ in failing to correctly or properly specify, on title papers, the mortgagee or ‘legal owner’ of a ‘Motor Vehicle’ sold by the ‘insured.’”
The Endorsement defined “occurrence” as “an unintended event or series of related events in the conduct of the ‘insured’s’ business.”
Under the Endorsement, Mid-Century bore a “duty to defend any ‘insured’ against a ‘suit’ seeking damages resulting from negligent acts, errors or omissions covered under” the truth in lending or title errors and omissions liability insurance. The Endorsement defined “suit” as “a civil proceeding to recover damages due to alleged ‘injury’ to which this insurance applies.”
Interpretation of an Insurance Policy; Duty to Defend
Insurance policies are contracts “to which the ordinary rules of contractual interpretation apply.” (Bank of the West, supra,2 Cal.4th at p. 1264.) Interpreting an insurance policy and determining whether it provides a potential for coverage are judicial functions, unless interpretation “‘“turns upon the credibility of extrinsic evidence.”’” (Silva & Hill Constr. Co. v. Employers Mut. Liab. Ins. Co. (1971) 19 Cal.App.3d 914, 921; Powerine Oil Co., Inc. v. Superior Court (2005) 37 Cal.4th 377, 390 (Powerine).)
“‘A policy provision is ambiguous only if it is susceptible to two or more reasonable constructions despite the plain meaning of its terms within the context of the policy as a whole.’” (Atlantic Mutual Ins. Co. v. Ruiz (2004) 123 Cal.App.4th 1197, 1203.) “Courts will not strain to create an ambiguity where none exists.” Waller v. Truck Ins. Exchange, Inc. (1995) 11 Cal.4th 1, 18-19 (Waller).) “‘The fact that a term is not defined in the policies does not make it ambiguous. [Citations.] Nor does... “‘the fact that a word or phrase isolated from its context is susceptible of more than one meaning.’” [Citation.] “‘[L]anguage in a contract must be construed in the context of that instrument as a whole, and in the circumstances of that case, and cannot be found to be ambiguous in the abstract.’” (Powerine, supra, 37 Cal.4th at pp. 390-391.) “‘“[T]he fact that language could be more explicit does not render it ambiguous.”’” (Great Western Drywall, Inc. v. Interstate Fire & Cas. Co. (2008) 161 Cal.App.4th 1033, 1042.)
“With respect to the issue of an insurer’s duty of defense, the applicable law is well settled. ‘An insurer must defend its insured against claims that create a potential for indemnity under the policy.’” (Golden Eagle Ins. Corp. v. Cen-Fed, Ltd. (2007) 148 Cal.App.4th 976, 984.) “[T]he duty to defend is broader than the duty to indemnify; an insurer may owe a duty to defend its insured in an action in which no damages ultimately are awarded.” (Horace Mann Ins. Co. v. Barbara B. (1993) 4 Cal.4th 1076, 1081.) The potentially covered claim need not predominate the third party action to trigger the insurer’s duty to defend. (Id. at p. 1084.) “Once the defense duty attaches, the insurer is obligated to defend against all of the claims involved in the action, both covered and noncovered, until the insurer produces undeniable evidence supporting an allocation of a specific portion of the defense costs to a noncovered claim.” (Id. at p. 1081.) “‘On the other hand, “in an action wherein none of the claims is even potentially covered because it does not even possibly embrace any triggering harm of the specified sort within the policy period caused by an included occurrence, the insurer does not have a duty to defend.”’” (Golden Eagle Ins. Corp., at p. 985.)
“[T]he insurer must look to the facts of the complaint and extrinsic evidence, if available, to determine whether there is a potential for coverage under the policy and a corresponding duty to defend.” (Waller, supra, 11 Cal.4th at p. 25.) “‘The determination whether the insurer owes a duty to defend usually is made in the first instance by comparing the allegations of the complaint with the terms of the policy. Facts extrinsic to the complaint also give rise to a duty to defend when they reveal a possibility that the claim may be covered by the policy.’” (Montrose Chemical Corp. v. Superior Court (1993) 6 Cal.4th 287, 295.)
We review the trial court’s interpretation of the CGL policy de novo. (Powerine, supra, 37 Cal.4th at p. 390.) “Appellate courts apply an independent standard of review to decisions interpreting, constructing, and applying insurance policies to determine the scope of actual or potential coverage.” (Food Pro Internat., Inc. v. Farmers Ins. Exchange (2008) 169 Cal.App.4th 976, 984-985.)
Federal Truth in Lending Law and the Automobile Sales Finance Act
Before moving to Vinci’s truth in lending coverage claim, we summarize the relevant aspects of the federal truth in lending statute and the Automobile Sales Finance Act, since they are part of the circumstances of the underlying case. The federal statute — the Truth in Lending Act (TILA) (15 U.S.C. § 1601 et seq.) — “promote[s] the ‘informed use of credit’ by consumers.” (Household Credit Services, Inc. v. Pfennig (2004) 541 U.S. 232, 235.) “TILA regulates, inter alia, the substance and form of disclosures that creditors... must make to consumers... and provides a civil remedy for consumers who suffer damages as a result of a creditor’s failure to comply with TILA’s provisions.” (Ibid.) TILA does not apply to credit transactions primarily for business or commercial purposes. (15 U.S.C. § 1601(1).)
A creditor who violates TILA is liable to the consumer for the “actual damage” suffered by the consumer and twice the “finance charge in connection with the transaction.” (15 U.S.C. § 1640(2)(A).) “Under TILA, a “‘finance charge’ is an amount ‘payable directly or indirectly by the person to whom the credit is extended, and imposed directly or indirectly by the creditor as an incident to the extension of credit.’” (Household Credit Services, Inc. v. Pfennig, supra, 541 U.S. at p. 236.)
An assignee of a consumer credit contract (such as the credit union) may, under some circumstances, suffer liability under TILA. A civil action “which may be brought against a creditor may be maintained against any assignee of such creditor only if the [TILA] violation... is apparent on the face of the disclosure statement, except where the assignment was involuntary.” (15 U.S.C. § 1641(a).)
TILA is implemented by Regulation Z (12 C.F.R. § 226.1 et seq.) promulgated by the Federal Reserve Board pursuant to 15 U.S.C. § 1604. Regulation Z requires a creditor to disclose the identity of the creditor, the amount financed (calculated by subtracting any down payment from the cash price), the finance charge (“the dollar amount the credit will cost you”), the annual percentage rate, the payment schedule, and the total of payments (“the amount you will have paid when you have made all scheduled payments”). (12 C.F.R. § 226.18.)
A creditor must also provide the consumer with an “[i]temization of amount financed,” but Regulation Z contains no express disclosure requirement for a deferred down payment. (12 C.F.R. § 226.18(c).)
Under the Automobile Sales Finance Act (Civ. Code, § 2981 et seq.) (the Finance Act) — a state truth in lending law — any conditional sale contract governed by the statute must “contain the disclosures required by Regulation Z,” as well as other specified disclosures, itemizations and subtotals. (Civ. Code, § 2982.) The Finance Act governs vehicle financing by a commercial seller. (Civ. Code § 2981, subd. (b).) As pertinent here, the Finance Act requires the seller to itemize components of the buyer’s down payment “to show the following:... (D) The amount of any portion of the downpayment to be deferred until not later than the due date of the second regularly scheduled installment under the contract and that is not subject to a finance charge.... [¶] (F) The remaining amount paid or to be paid by the buyer as a downpayment. [¶] (G) The total downpayment [which, if greater than zero] shall be stated as the total downpayment.” (Civ. Code § 2982, subd. (a)(6), italics added.) The contract must contain an “itemization of the amount financed,” calculated by computing the sum of the total cash price, taxes, and government fees, and then subtracting there from the total down payment. (Civ. Code § 2982, subd. (a)(8).)
The Finance Act contains three provisions governing enforcement of a conditional sale contract by an automobile seller’s assignee. If the seller violates Civil Code section 2982, subdivision (a), the conditional sale contract is unenforceable, except by a bona fide assignee, until the violation is corrected. (Civ. Code, § 2983.) A holder of a conditional sale contract may enforce the contract if the holder lacks actual knowledge of the seller’s Civil Code section 2982, subdivision (a) violation; however, “the buyer is excused from payment of the unpaid finance charge” unless the violation is corrected. (Civ. Code, § 2983.1.) An “assignee of the seller’s right [who is not a bona fide assignee] is subject to all equities and defenses of the buyer against the seller.” (Civ. Code, § 2983.5.)
Confusingly, section 2983.1 also states that if the holder of a conditional sale contract has acquired the contract with knowledge of the violation, the contract is unenforceable except by a bona fide purchaser. A treatise attempts to reconcile this seeming inconsistency in the statute by explaining: “Presumably, [this provision of] the statute refers to enforceability by a subsequent taker, since a holder with knowledge cannot be a bona fide purchaser.” (4 Witkin, Summary of Cal. Law (10th ed. 2005) Sales, § 256, p. 235.)
The “buyer may recover... three times the amount of any finance charge paid” only if the seller violates Civil Code section 2982, subdivision (l), which sets forth required disclosures concerning prepayment of the loan. (Civ. Code, § 2983.1.)
The sample retail installment sales contract Vinci provided Mid-Century (not one of Vinci’s contracts) conforms to the requirements of TILA and the Finance Act. The contract contains two pages. Consistent with TILA, the first page of the sample installment contract contains Regulation Z’s required disclosures in five boxes titled “ANNUAL PERCENTAGE RATE,” “FINANCE CHARGE,” “Amount Financed,” “Total of Payments,” and “Total Sale Price,” followed by a “PAYMENT SCHEDULE” showing number of payments, amount of payments, and when payments are due. Included in the PAYMENT SCHEDULE are line items for two payments followed by regular monthly payments.
In its November 2007 opposition to Mid-Century’s summary judgment motions, Vinci asserted that pursuant to TILA, a deferred down payment is to be recorded as a separate payment on the first line entry of the required payment schedule on the first page of the credit contract. It would appear that entry is intended for the first installment payment due under the contract. In any case, deferred down payments, “arrived at in the normal course of every day, good-faith established business procedure, are exempt from the strict reporting requirements of the Truth in Lending Act..., when evidenced by short term, noninterest-bearing notes.” (Redhouse v. Quality Ford Sales, Inc. (1975) 511 F.2d 230, sub. opn. on rehg., 523 F.2d 1.)
The sample installment contract also conforms to state truth in lending law. As required by the Finance Act, the sample installment contract contains an “ITEMIZATION OF THE AMOUNT FINANCED” — a detailed itemization and calculation of line entries and subtotals supporting the total figures highlighted in the five TILA boxes. On the second page of the sample installment contract are seven line items for portions of the buyer’s down payment, which are added together at the bottom of paragraph (6) to arrive at the total down payment. Line item (D) is for any deferred down payment and line item (G) is for the cash down payment paid by the buyer. The total down payment is recorded, along with the total cost of the purchase, in the TILA Disclosure box for the “Total Sale Price” on the sample installment contract’s first page.
The Truth in Lending Endorsement Potentially Covers Some of the Credit Union’s Claims Against Vinci
On appeal Vinci argues the credit union’s breach of contract and interference with contract claims “sought damages for conduct that allegedly also constituted a truth in lending violation.” According to Vinci, the credit union’s primary claim “in this regard was that Vinci failed to disclose deferred down payments, and other required disclosures, on the face of retail installment sales contracts.” Vinci notes the Finance Act qualifies as a state truth in lending law and requires disclosure of the amount of any deferred down payment. Vinci further argues that, “directly relevant to [the credit union’s] interference with contract claim and its truth in lending theory of liability, [the credit union’s] complaint alleged that [Vinci] had warranted ‘that the buyer has no known defense or counterclaim to payment of the obligation evidenced by the contract.’” Vinci concludes the “admitted ‘occurrence’ at issue in the case (i.e. the preparation and sale of a series of contracts by [Vinci] to [the credit union]) therefore ‘involved’ (because they arose out of) [Vinci’s] negligent acts, errors or omissions in failing to comply with a state law on truth in lending.” Vinci further asserts “the Truth in Lending coverage broadly promises coverage for any damages resulting from an occurrence involving any negligent act, error or omission in failing to comply with truth in lending laws.” According to Vinci, because of the “use of the broad term involving,” the coverage “is not limited to any damages awarded under such laws” or only to claims “brought by consumers who have standing to assert such claims.”
Mid-Century counters that the “only cause of action that could arguably relate to truth in lending violations was [the credit union’s] cause of action for violation of Business and Professions Code [section] 17200.” In Bank of the West, supra, 2 Cal.4th 1254, our Supreme Court held that coverage for an insured’s liability for “damages” does not extend to the insured’s payment of restitution under Business and Professions Code section 17200 et seq. Mid-Century notes the underlying complaint’s lone reference to truth in lending appears in the unfair business practices cause of action. Mid-Century also points out that the credit union’s September 2005 interrogatory response alleged Vinci “failed to remain in compliance with all applicable federal, state and local laws and ordinances and engaged in a fraudulent and unlawful business practice by” failing to record deferred down payments. (Italics added.)
On appeal Vinci clarifies its current position that Mid-Century’s truth in lending liability “coverage obligations” were not triggered by the credit union’s unfair business practices claim, acknowledging that Bank of the West, supra, 2 Cal.4th 1254, is controlling on this issue. In Bank of the West, our Supreme Court observed that the “only nonpunitive monetary relief available under the Unfair Business Practices Act is the disgorgement of money that has been wrongfully obtained....” (Id. at p. 1266.) “The purpose of such orders is ‘to deter future violations of the unfair trade practice statute and to foreclose retention by the violator of its ill-gotten gains.’” (Id. at p. 1267.) “If insurance coverage were available for monetary awards under the Unfair Business Practices Act, a person found to have violated the act would simply shift the loss to his insurer and, in effect, retain the proceeds of his unlawful conduct. Such a result would be inconsistent with the act’s deterrent purpose.” (Ibid.)
But although the credit union’s complaint and its interrogatory response specifically alleged Vinci engaged in an unfair business practice by violating truth in lending laws, such violations were also implicated in the credit union’s contract-based claims (as discussed in further detail below). Nothing prevented the credit union from alleging Vinci’s conduct harmed the credit union in separate ways and under different theories. In other words, the predicate truth in lending violations were not exclusive to the unfair business practices claim of the underlying complaint.
On appeal Vinci premises its truth in lending coverage claim on the credit union’s breach of contract and interference with contract causes of action, relying on Vandenberg v. Superior Court (1999) 21 Cal.4th 815 and Golden Eagle, supra, 148 Cal.App.4th at page 981. In Vandenberg, our Supreme Court held “the coverage phrase ‘legally obligated to pay as damages,’ as used in a CGL insurance policy, may provide an insured defendant with coverage for losses pleaded as contractual damages.” (Vandenberg, at pp. 824-825.) Vandenberg disapproved the line of cases “distinguishing contract from tort liability for purposes of the CGL insurance coverage phrase ‘legally obligated to pay as damages.’” (Id. at p. 841 & fn. 13.) To interpret the phrase “‘legally obligated to pay as damages,’” a court must “focus on the nature of the risk and the injury, in light of the policy provisions.” (Id. at p. 840; see also Golden Eagle, supra, 148 Cal.App.4th at p. 989 [“[C]overage under a liability policy does not depend on the form of the action or the legal theories asserted by claimant. Rather, coverage is determined by the nature of the loss (e.g., ‘property damage’) and the risk that caused the loss (i.e., ‘accident’ or ‘occurrence’)”].) Thus, if the credit union’s contract-based claims sought damages “for a risk of the nature and kind covered by the policy,” a potential for coverage existed. (Continental Casualty Co. v. Superior Court (2001) 92 Cal.App.4th 430, 441-442 (Continental Casualty).)
Although Vinci focused at the time of tender on the credit union’s unfair business practice claim, during the coverage litigation it asserted coverage based on the credit union’s contract-based claims.
But Mid-Century asserts the credit union’s breach of contract and interference with contract claims did not seek truth in lending damages. According to Mid-Century, the breach of contract claim “prayed for sums due under the [assigned] auto loan contracts... and/or the amount of any deficiencies after the cars had been repossessed and sold, leaving an unpaid loan balance.” As to the interference with contract claim, Mid-Century asserts the cause of action effectively prayed “for recovery of the outstanding loan balances after cars had been repossessed and sold for sums less than the amount of the loans.” Finally, Mid-Century asserts the credit union “did not seek indemnity from Vinci for any truth in lending damages paid by [the credit union] to any of the auto purchasers who were parties to the [assigned] auto loan contracts....”
An examination of the complaint reveals Mid-Century’s argument lacks merit because, ostrich-like, it ignores several of the credit union’s significant allegations. Paragraph 13 of the complaint was incorporated into every cause of action and the credit union alleged therein that Vinci breached the warranties contained in their Agreement by assigning to the credit union contracts (1) not in compliance with applicable laws, (2) as to which buyers had defenses and counterclaims to payment of their contractual obligations, and (3) in which the down payments shown on the face of the contracts were not correct. Each of these descriptive categories apply to contracts where Vinci violated the Finance Act by omitting deferred down payments. Under the Finance Act, buyers were excused from paying any unpaid finance charge to the credit union (in its status as Vinci’s assignee), even if the credit union were a bona fide purchaser of the contracts, at least until the violation was corrected. (Civ. Code, § 2983.1.) Such unpaid finance charges were sums due under the automobile loan contracts and, in fact, represented the benefit of the credit union’s bargain with Vinci. Thus, in its action against Vinci, the credit union may well have sought damages resulting from Vinci’s arguably negligent misreporting of deferred down payments.
The complaint also alleged the credit union would not have acquired “certain contracts” from Vinci had it known the “true facts,” including the concealed deferred down payments. The credit union, in reviewing which conditional sales contracts it wished to purchase, would surely have deemed it material to the credit risk it would assume upon purchase of the contract, to know that the buyer of the vehicle had not actually paid the entire down payment reflected on face of the contract. The credit union asserted in its interrogatory responses that some 180 out of 237 acquired conditional sale contracts contained a breach of Vinci’s warranty regarding the accuracy of the down payment reflected on the face of each conditional sale contract.
But in Mid-Century’s view, such a causal connection (i.e., that the credit union sued Vinci for damages suffered as an assignee of loan contracts that violated state truth in lending law) is insufficient to trigger coverage under the truth in lending insurance clause. Instead, Mid-Century interprets the clause to cover only claims brought by a consumer against Vinci under a truth in lending law.
We turn to the language of the truth in lending clause. The clause promised coverage for “damages resulting solely from an ‘occurrence’ involving any negligent” violation of truth in lending law. The parties disagree on the import and significance of the term “involving.” In Mid-Century’s view, the word “involving” does not create a sufficient “causal nexus” to result in coverage. Mid-Century quotes the following passage from Waller, supra, 11 Cal.4th at page 16: “[C]ourts will not indulge in a forced construction of a policy’s insuring clause to bring a claim within the policy’s coverage.” Relying on Mez Industires, Inc. v. Pacific Nat. Ins. Co. (1999)76 Cal.App.4th 856, 868-869 (Mez), Mid-Century argues Vinci’s “interpretation of the truth in lending insuring agreement is not objectively reasonable,” because it “ignores the plain language of the insuring agreement, the context of the policy as a whole (which includes the [truth in lending] statutes incorporated by reference), the facts and circumstances of the case, and common sense.” According to Mid-Century, Vinci “asks this Court to read this single word ‘involving’ in complete isolation from these other determinative contextual factors.”
In weighing and interpreting the word “involving” in the insurance provision, we are guided by the principle that “the ordinary rules of contractual interpretation apply” to insurance policies. (Bank of the West, supra,2 Cal.4th at p. 1264.) The language of a policy governs its interpretation and every part of the contract is to be given effect, if possible. (Civ. Code, §§ 1638, 1641.) “The words of a contract are to be understood in their ordinary and popular sense, rather than according to their strict legal meaning,” unless used in a technical sense, or with a special meaning. (Civ. Code, § 1644.)
The most pertinent definition for the verb “involve” in Webster’s Third New International Dictionary (2002) at page 1191 is “to relate closely: CONNECT, LINK.” Other definitions include to “CONTAIN,” to “ENTAIL,” or to “AFFECT.” The use in Mid-Century’s insurance clause of the comparatively broad term “involving” can be contrasted with narrower provisions in two out-of-state cases, where the insurer’s truth in lending language was more tightly and precisely drafted to limit coverage. In John Markel Ford, Inc. v. Auto-Owners Ins. Co. (Neb. 1996) 543 N.W.2d 173, the Nebraska Supreme Court affirmed the district court’s ruling as a matter of law that an insurer had no obligation to either defend or indemnify an automobile dealership based on the language of a truth in lending errors and omissions endorsement. (Id. at p. 176.) The endorsement stated in relevant part that the insurer would pay on the insured’s behalf all sums the insured became “legally obligated to pay as damages in an action brought solely under 15 U.S.C. Sec. 1640 (Consumer Credit Protection Act...), because of error or omission during the policy period in complying with any requirement imposed under 15 U.S.C., Section 1631 et seq.” (Ibid.)
15 Mid-Century also relies on Continental Casualty, supra, 92 Cal.App.4th 430. There, the Court of Appeal concluded a general liability policy did not cover any of the claims made in a third party lawsuit against the insured and thus the insurer had no duty to provide a defense. (Id. at p. 433.) The policy obligated the insurer to “‘pay those sums that the insured becomes legally obligated to pay as damages because of... “property damage” to which this insurance applies....’” (Id. at p. 435, fn. 8.) The appellate court held the third party action sought to enforce a claim for intangible economic losses resulting from the operation of a partnership business, not for property damage. (Id. at p. 439.) “Nowhere in its complaint did [the third party] allege that it had sustained property damage. Rather, it sought a declaration that [the insured] was ‘wholly’ liable for certain obligations incurred by the partnership, that is, the construction defect claims.” (Id. at pp. 439-440.) “[M]ost significantly, the only asserted construction defect claims that would necessarily be involved in the [underlying] action were those claims that were not covered under [the insurance] policy.” (Id. at p. 440.)
Another more restrictive truth in lending liability insurance provision was at issue in Fredericks v. Universal Underwriters Ins. Co. (Or. Ct. App. 1996) 915 P.2d 472, 475, where the provision covered defense costs in suits filed “BY OR ON BEHALF OF A CUSTOMER ARISING OUT OF GARAGE OPERATIONS BECAUSE OF AN ALLEGED VIOLATION OF ANY FEDERAL, STATE OR LOCAL... TRUTH-IN-LENDING... LAW....”
The choice of a single word that fulfills an important function in an insurance provision has consequences. The truth in lending clause at issue here was not a standard ISO form, but rather was drafted by Mid-Century’s alleged parent company. Interpreted in its ordinary and popular sense, the word “involving” is a broad and open term meaning “connected with” or “concerning.” It is certainly broader than other, more restricted prepositions or prepositional phrases often used in insurance policies, such as “under,” “because of,” “arising from,” or “resulting from.” (See, for example, Palacin v. Allstate Ins. Co. (2004) 119 Cal.App.4th 855, 858; Continental Casualty, supra, 92 Cal.App.4th at p. 435, fn. 8; Mez, supra, 76 Cal.App.4th at p. 862; Wilshire Ins. Co., Inc. v. Sentry Select Ins. Co. (2004) 124 Cal.App.4th 27, 31; St. Paul Fire and Marine Ins. Co. v. American Dynasty Surplus Lines Ins. Co. (2002) 101 Cal.App.4th 1038, 1042.)
Here, the truth in lending clause is not ambiguous; objectively, its meaning is plain: Mid-Century promised to cover Vinci’s liability for “damages resulting solely from an ‘occurrence’ involving any negligent” violation of federal or state truth in lending law. The damages alleged by the credit union involve Vinci’s possibly negligent violation of a state truth in lending statute.
Because the truth in lending liability insurance clause potentially covered some of the credit union’s claims against Vinci, Mid-Century owed Vinci a defense. And, if Vinci can establish that it became legally obligated to pay damages to the credit union because (1) the credit union purchased contracts containing embedded state law truth in lending violations, with the consequent breach of warranty, or (2) that it suffered losses because vehicle buyers withheld finance charges because of such violations, indemnity would be owed. The court erred in ruling otherwise.
The Title Errors and Omissions Liability Insurance Also Potentially Covered Some of the Credit Union’s Claims Against Vinci
The title liability insurance provision covered Vinci’s liability for negligently “‘failing to correctly or properly specify, on title papers, the mortgagee or ‘legal owner’ of a “Motor Vehicle” sold by the [insured].’” Vinci points out “the Title Error coverage is specifically drafted to apply to [the credit union], as a mortgagee.” Mid-Century, however, counters that the credit union did not allege Vinci “failed to correctly specify [the credit union] as lienholder on title papers for vehicles covered by the financing contracts Vinci sold to” the credit union.
Vinci asserts that the credit union’s complaint and “its discovery responses made clear that its claims ‘involved’ allegedly negligent acts, errors and/or omissions by Vinci in failing to correctly or properly specify, on title papers, [the credit union] as the ‘legal owner’ or mortgagee of ‘Motor Vehicles’ sold by Vinci.” Vinci is correct. The credit union had alleged in its complaint, inter alia, that Vinci breached its agreement with the credit union by: “failing to complete all forms and documents, and failing to pay all fees necessary to properly perfect the CREDIT UNION’S security interest in vehicles that are collateral for contracts purchased from [Vinci]”; by “failing to process and to provide the CREDIT UNION with information regarding the status of the DMV title work [Vinci] is required to process under the Agreement which has prevented the CREDIT UNION from enforcing its rights against the collateral on contracts that are in default”; and by “assigning to the CREDIT UNION contracts in which the CREDIT UNION’S security interest does not constitute a valid first lien on the collateral and the necessary DMV paper work has not been filed or recorded according to law to preserve the priority of each lien.”
The credit union’s discovery responses also made clear it was asserting claims against Vinci for failing to properly name the credit union as the “legal owner” of the vehicles that were the subject of a conditional sale contract assigned to the credit union. At the coverage trial, the parties stipulated that “[i]n addition to a copy of the complaint against it, Vinci provided Mid-Century with two sets of interrogatory responses served on Vinci by the Credit Union. These sets of interrogatory responses were served on Vinci on March 18, 2005 and September 2, 2005, respectively. Vinci provided the March 18, 2005 interrogatory responses to Mid-Century as an enclosure to its August 8, 2005 tender letter. Vinci provided the September 2, 2005 interrogatory responses under cover of Vinci’s September 28, 2005 letter to Mid-Century.” Turning to the credit union’s March 18, 2005 interrogatory responses provided to Mid-Century, Vinci had asked the credit union to state the facts supporting its contentions that Vinci failed “to complete all forms and documents” and all facts supporting its contention that Vinci had failed “‘to pay all fees necessary to properly perfect Plaintiff’s security interest in vehicles that are collateral for contracts purchased from [Vinci].’” The credit union’s March 18, 2005 response to these questions, provided to Mid-Century with Vinci’s tender, stated: “[The credit union] produced documents on October 15, 2004 including a spreadsheet titled ‘SA Honda Litigation.’ Refer to the worksheet titled ‘DMV/KSR Title Issues,’ column titled ‘DMV Status.’ This worksheet lists all the loans for which [the credit union] was not properly transferred title [or paid the fees].”
The spreadsheet referred to in this interrogatory response was received in evidence as exhibit 33 during the coverage trial. The column titled “DMV Status” lists names of certain lienholders other than the credit union associated with vehicles subject to conditional sale contracts assigned to the credit union. Manifestly, there was a potential for coverage on these title claims under the title errors endorsement, and, accordingly, Vinci was owed a defense. And if Vinci can establish that it became legally obligated to pay damages to the credit union because title was not properly perfected, indemnity would similarly be owed.
II.
Vinci’s Bad Faith Claim
Vinci contends the court erred “when it granted summary adjudication of [Vinci’s] bad faith claim because triable issues of material fact clearly existed with regard to whether [Mid-Century’s] denial of [Vinci’s] tender was unreasonable and/or without proper cause.” According to Vinci, its separate statement of additional disputed facts presented evidence that Mid-Century “waited almost three months” to take a coverage position, violated its agreement not to contact the credit union and thereby prejudiced Vinci’s settlement negotiations with the credit union, and ignored Vinci’s request for contribution to the settlement.
Because the trial court denied summary adjudication of the coverage issue strictly on procedural grounds, that denial has no bearing on the merits of the ruling on Mid-Century’s summary judgment motion on the bad faith claim.
Mid-Century argues a genuine dispute existed “between Mid-Century and Vinci as to whether the Truth in Lending Errors and Omissions insuring agreement afforded coverage for the breach of contract and [Business and Professions Code section] 17200 claims....” According to Mid-Century, the dispute involved a “pure question of law: the interpretation of the Truth in Lending Errors and Omissions insuring agreement in light of the allegations of the [credit union’s] complaint and [the credit union’s] two sets of interrogatory responses.” Mid-Century contends its “coverage position with respect to the Truth in Lending coverage was objectively reasonable both at the time its claim decision was communicated, and at all times since then.”
Mid-Century disputes “Vinci’s claim that a triable issue of material fact existed as to its original bad faith cause of action based on Mid-Century’s alleged delay in responding to its tender”; Mid-Century asserts that Vinci itself unreasonably delayed in tendering its defense to Mid-Century and unreasonably delayed Mid-Century’s investigation.
Summary Judgment
“[T]he party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) A moving “defendant bears the burden of persuasion that ‘one or more elements of’ the ‘cause of action’ in question ‘cannot be established,’ or that ‘there is a complete defense’ thereto.” (Ibid.) In ruling on a summary judgment motion, the court must view the evidence and inferences “in the light most favorable to the opposing party.” (Id. at p. 843.)
An appellate court reviews the trial court’s decision on summary judgment de novo, “considering all of the evidence the parties offered in connection with the motion (except that which the court properly excluded) and the uncontradicted inferences the evidence reasonably supports.” (Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 476.)
Similarly, whether an insurer acts in bad faith when it interprets its policy to preclude coverage is a “pure question of law” to be reviewed de novo by an appellate court. (Morris v. Paul Revere Life Ins. Co. (2003) 109 Cal.App.4th 966, 973 (Morris).)
Bad Faith and the Genuine Dispute Doctrine
There “‘is an implied covenant of good faith and fair dealing in every contract [including insurance policies] that neither party will do anything which will injure the right of the other to receive the benefits of the agreement.’” (Gruenberg v. Aetna Ins. Co. (1973) 9 Cal.3d 566, 573.) “That responsibility is not the requirement mandated by the terms of the policy itself — to defend, settle, or pay. It is the obligation, deemed to be imposed by the law, under which the insurer must act fairly and in good faith in discharging its contractual responsibilities.” (Id. at pp. 573-574.)
“Before an insurer can be found to have acted in bad faith for its delay or denial in the payment of policy benefits, it must be shown that the insurer acted unreasonably or without proper cause.” (Jordan v. Allstate Ins. Co. (2007) 148 Cal.App.4th 1062, 1072.) Conduct prompted “‘by an honest mistake, bad judgment or negligence’” is not enough. (Chateau Chamberay Homeowners Assn. v. Associated Internat. Ins. Co. (2001) 90 Cal.App.4th 335, 346 (Chateau).) Rather what is required is “‘a conscious and deliberate act, which unfairly frustrates the agreed common purposes and disappoints the reasonable expectations of the other party thereby depriving that party of the benefits of the agreement. Just what conduct will meet these criteria must be determined on a case by case basis and will depend on the contractual purposes and reasonably justified expectations of the parties.’” (Ibid.) “‘[T]he reasonableness of the insurer’s decisions and actions must be evaluated as of the time that they were made; the evaluation cannot fairly be made in the light of subsequent events that may provide evidence of the insurer’s errors.’” (Jordan, at p. 1073.) We examine whether the insurer’s conduct “was objectively reasonable,” without regard to its subjective intent. (Morris, supra, 109 Cal.App.4th at p. 973.)
“One of the ways an insurer can negate an insured’s claim that it has acted unreasonably or without proper cause is to demonstrate the existence of a ‘genuine dispute’ regarding coverage....” (Jordan v. Allstate Ins. Co., supra, 148 Cal.App.4th at p. 1072.) “‘[A]n insurer denying... the payment of policy benefits due to the existence of a genuine dispute with its insured as to the existence of coverage liability... is not liable in bad faith even though it might be liable for breach of contract.’ [Citation.] This ‘genuine dispute’ or ‘genuine issue’ rule was originally invoked in cases involving disputes over policy interpretation, but in recent years courts have applied it to factual disputes as well.” (Wilson v. 21st Century Ins. Co. (2007) 42 Cal.4th 713, 723 (Wilson).) “In the insurance bad faith context, a dispute is not ‘legitimate’ unless it is founded on a basis that is reasonable under all the circumstances.” (Id. at p. 724, fn. 7.)
“There is no known case applying the ‘genuine dispute’ doctrine to a bad faith claim based on the insurer’s refusal to defend its insured.” (Croskey et al., Cal. Practice Guide: Insurance Litigation, supra, [¶] 12:618.5, p. 12B-104.)
“The genuine dispute rule does not relieve an insurer from its obligation to thoroughly and fairly investigate, process and evaluate the insured’s claim. A genuine dispute exists only where the insurer’s position is maintained in good faith and on reasonable grounds.” (Wilson, supra, 42 Cal.4th at p. 723.)
“‘The genuine issue rule... allows a [trial] court to grant summary judgment when it is undisputed or indisputable that the basis for the insurer’s denial of benefits was reasonable — for example, where even under the plaintiff’s version of the facts there is a genuine issue as to the insurer’s liability under California law. [Citation.]... On the other hand, an insurer is not entitled to judgment as a matter of law where, viewing the facts in the light most favorable to the plaintiff, a jury could conclude that the insurer acted unreasonably.’ [Citation.] Thus, an insurer is entitled to summary judgment based on a genuine dispute over coverage... only where the summary judgment record demonstrates the absence of triable issues [citation] as to whether the disputed position upon which the insurer denied the claim was reached reasonably and in good faith.” (Wilson, supra, 42 Cal.4th at p. 724.)
The Court Erred by Granting Summary Judgment on the Bad Faith Claim
Mid-Century’s interpretation of its own policy language was unreasonable as a matter of law. The dispute as to the duty to defend was not genuine. Mid-Century’s stubborn insistence that its truth in lending clause covered only those claims made against Vinci by automobile buyers based on truth in lending violations simply cannot be reconciled with an objective reading of the plain language of the insuring clause. We read the truth in lending clause to say what it says, not what Mid-Century wishes it says. Nowhere, either in the trial court or on appeal, does Mid-Century parse the language of the insuring clause and explain why it does not cover the claims made by the credit union. We do so here.
Reiterating Mid-Century’s promise of insurance, the clause reads as follows: “We will pay all sums for which [Vinci]... becomes legally obligated to pay as damages resulting solely from an ‘occurrence’ involving any negligent act, error or omission in failing to comply with [any State law on Truth in Lending].” Was Vinci exposed to claims for damages in the credit union’s complaint? Yes it was. The causes of action for breach of contract and interference with contract made claims for damages. Did the alleged damages potentially result from an “occurrence,” i.e., “an unintended event or series of related events in the conduct of [Vinci’s] business? Yes they did. Vinci’s counsel explained to Mid-Century’s adjuster that the credit union was claiming damages resulting from the negligent failure of Vinci’s employees to “type information into the Reynolds & Reynolds computer system at the dealership; a program which then creates the contracts at issue in [the] lawsuit.” Did the claims made by the credit union “involve” a violation of the Finance Act? Yes, of course. The credit union’s complaint alleged it would not have purchased certain of the contracts had it known that a portion of the down payment had been deferred, and its interrogatory responses disclosed it was claiming a breach of warranty in that regard. Further the alleged violation also potentially exposed the credit union directly to losses it sought to collect from Vinci in the event the automobile buyers exercised their right under the Finance Act to be excused from the payment of finance charges while the violation remained uncorrected.
Notably, the insuring clause does not limit coverage to only those claims made by consumers based on a statutory remedy under the truth in lending laws. Rather, it covers damages Vinci became legally obligated to pay for claims involving a truth in lending violation. Mid-Century’s obstinate failure to recognize the breadth of its own insurance policy, choosing instead to rely on an out-of-state case arising out of far more restrictive coverage language was unreasonable.
Further, triable issues of fact remain as to whether Mid-Century’s handling of this claim was adequate and in good faith. (See Jordan v. Allstate Ins. Co., supra, 148 Cal.App.4th at p. 1066 [even if insurer’s interpretation of its policy is reasonable, insurer must still fully and fairly investigate other bases presented by insured for her claim].) In Vinci’s statement of additional undisputed material facts in opposition to Mid-Century’s summary judgment motions, Vinci asserted “Mid-Century rejected Vinci’s tender, 78 days after tender,” despite the fact that Mid-Century’s “practices for claims handling contemplates a preferred 30-day time within which to make a coverage determination.” Mid-Century responded that recitation of the 78-day delay after tender “contain[ed] inadmissible editorialized argument.” And on appeal, Mid-Century strenuously argues Vinci “was the engineer of any delay.” Nonetheless, the facts are disputed as to the reasonableness of Mid-Century’s handling of Vinci’s claim.
Because we find triable issues of material fact exist, we do not address Vinci’s arguments concerning the judgment on the pleadings on its amended bad faith claim.
DISPOSITION
The judgment is reversed. Vinci shall recover its costs on appeal.
WE CONCUR: BEDSWORTH, ACTING P. J., ARONSON, J.
Mid-Century further relies on Mez, supra, 76 Cal.App.4th 856. There, the Court of Appeal concluded “the advertising injury provisions of [the] policy did not provide coverage... for inducement of patent infringement,” “no potential for coverage existed as a matter of law and thus no duty to defend ever arose.” (Id. at p. 861.) The policy promised the insurer would “‘pay those sums that the insured becomes legally obligated to pay as damages because of... “advertising injury” to which this coverage part applies.’” (Id. at p. 862-863, fn. 5.) “‘“Advertising Injury”’” was defined to include: “‘Misappropriation of advertising ideas or style of doing business,’” and “‘Infringement of copyright, title or slogan.’” (Ibid.) The appellate court determined that, in “the context of the facts and circumstances of this case, the policy terms ‘misappropriation of an advertising idea or style of doing business’ and ‘infringement of copyright, title or slogan’ simply could not be reasonably read by a layperson to include either patent infringement or the inducement thereof.” (Id. at p. 872.)