Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 06CC06279
ORDER MODIFYING OPINION AND DENYING PETITION FOR REHEARING; NO CHANGE IN JUDGMENT
IKOLA, J.
It is ORDERED that the opinion filed herein on February 25, 2010, be modified as follows:
1. Delete the first three lines on page 29, beginning with the words, “Similarly, whether an insurer....”
2. Delete the entire section with the heading “Bad Faith and the Genuine Dispute Doctrine” commencing on page 29 and ending on page 31.
3. Delete the first three paragraphs under the heading “The Court Erred by Granting Summary Judgment on the Bad Faith Claim” as follows:
Delete the paragraph commencing on page 31 beginning with the words “Mid-Century’s interpretation of its own policy language....”;
Delete the paragraph commencing on page 31 beginning with the words “Reiterating Mid-Century’s promise of insurance....”;
Delete the paragraph commencing on page 32 beginning with the words “Notably, the insuring clause....”
Replace the deleted paragraphs described above with the following three paragraphs:
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.)
Mid-Century based its motion for summary judgment upon its contention that the insurance policy did not cover any of the credit union’s claims. Alternatively, “at a minimum,” Mid-Century argued that even if some of the credit union’s claims were covered, a genuine dispute nevertheless existed regarding the existence of that coverage, thereby exonerating Mid-Century from bad faith liability. (See, e.g., Wilson v. 21st Century Ins. Co. (2007) 42 Cal.4th 713, 723 [“‘[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’”].)
We have demonstrated that Mid-Century’s interpretation of its policy was incorrect. Accordingly, as to the coverage issue, Mid-Century did not meet its burden of persuasion on its summary judgment motion, and the burden never shifted to Vinci to demonstrate the existence of a triable issue of fact. (See Code Civ. Proc., § 437c, subd. (p)(2) [“Once the defendant... has met [its burden of persuasion], the burden shifts to the plaintiff... to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto”].) As to the genuine dispute doctrine, Mid-Century “has failed to cite any cases that apply the genuine dispute doctrine to the duty to defend and our research has not disclosed any.” (Century Surety Co. v. Polisso (2006) 139 Cal.App.4th 922, 951.) Moreover, Mid-Century has failed to discuss the genuine dispute doctrine in its argument on appeal, much less suggest that the genuine dispute doctrine should be extended under the facts of this case to the duty to defend. Accordingly, Mid-Century has forfeited any argument on appeal that its summary judgment may be affirmed on this basis. (Horowitz v. Noble (1978) 79 Cal.App.3d 120, 139 [“‘[E]very brief should contain a legal argument with citation of authorities on the points made. If none is furnished on a particular point, the court may treat it as waived, and pass it without consideration’”]; Dabney v. Dabney (2002) 104 Cal.App.4th 379, 384 [“We need not consider an argument for which no authority is furnished”].)
4. Delete the first sentence in the second full paragraph on page 32, beginning with the words “Further, triable issues of fact...” and replace with the following sentence: “Further, even if Mid-Century had shifted the burden on its summary judgment motion to Vinci, triable issues of fact remain as to whether Mid-Century’s handling of this claim was adequate and in good faith.”
5. Replace the citation to the Jordan case in the second full paragraph of page 32 with the following full citation: “(See Jordan v. Allstate Ins. Co. (2007) 148 Cal.App.4th 1062, 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].)”
The petition for rehearing is DENIED.
The modification does not change the judgment.
WE CONCUR: BEDSWORTH, ACTING P. J.ARONSON, J.