this is our second go around here with the ninth circuit in this case we already established that the insurer's decision to deny the defense was incorrect and the ninth circuit analyzed the policy analyzed the exclusion that that i was based on and decided that the insurers decision to then i was based on an position which is clear when you look at i mean it's the law of the case now is that denial was based on an untenable position and reviewing the terms of the policy and understanding california law with regard to interpret ing insurance policies it's obvious why the court reached that conclusion we back up a second all we're talking about now is bad faith right right hubbard yes and  no longer duty to defend just bad faith in the laying of knowledge in a duty to defend those those things yes your honor i could i gather sentries are you reimburse your client what around three hundred sixty two thousand dollars for the cost of the fence they finally did your honor after i don't know how many years if they do their duty and your client is saddled with his sister for what about one point one million my client had to pay fit the the cross to fit the cross complaint in the underlying action as a result of having to defend himself and paying hundreds of thousands of dollars and attorney's fees he couldn't afford he had to pay circuit is that it's the law of the case in this case based on the prior decision by the ninth circuit that the nile was based on a position that was untenable that well sure but that's not the test for bad fa th the test for bad faith is whether the insurance company and reasonably ad took the position that it had no duty to defend not whether the position was incorrect we are here based on the trial court's granting of a motion for summary judgment based on the genuine dispute doctrine the supreme court in wilson has stated very clearly what the law is with regard to what the insurance company has to prove in order to establish a genuine dispute defense the reason i answer your question that way is that at trial the issue would be establishing that the insurance company  acted on reasonably at the summary judgment stage it's different the burden is on the insurance company to prove two things prove that the undisputed facts do not leave any tribal issue with regard to whether the denial was based on a position that was on reasonable or that was in good faith it had to be a reasonable position objective leigh and it had to be done on grounds that were in good faith and that has to be there can be no tribal issue with regard to that so that's the focus when we're talking about the genuine dispute doctrine and in our case the the law that was the facts that were presented by the insurer here on their motion but dispute about the facts you know and that's why i want to say i want to point out that there are not the only dispute is about what interpretation would be reasonable and whether it was genuinely held but i don't think we have a dispute about genuineness either i don't think you produced any evidence that the insurance company was saying yeah we're reasonable or which would shield them from punitive zur whether it just plain wasn't there out in my field in which case they could be exposed to be errors what am i missing there yes part of it part of it is was their decision based on a reasonable interpretation but there's also the factor of whether they were acting in good faith and were but i didn't see any evidence here sometimes you do see a position that's deliberately held in bad faith by the insurance company they say the insurance didn't cover the period issue and had their internal documents acknowledge in all the documents acknowledge that it was within the policy term but you don't see that here two things that are interesting in this case going to your point first of all the insurance company when they filed their motion for summary judgment in the end in the trial court the initial back when we were trying to do the discovery to get the information with regard to whether their conduct was reasonable and whether they believed in their position they did they took the attorney client privilege and refused to produce their coverage opinion that the that the coverage counsel provided to the insured i didn't see what was the matter with that well i mean those of us who done insurance defense work we write letters to the companies where we don't just say this is what you have to do we write letters saying you're authorities going this way and that way and i think the chances that you win the chances at the other side  or maybe disperse enage at the facts here make your case an unattractive one to take up or they make it a good one to take up with the superior court gets it wrong i mean there's all kinds of traditionally confidential stuff there sure they have the right they have the absolute right to take the attorney client privilege but when they do that they are withholding the key critical evidence that goes right to determine whether they're withholding the most critical evidence well not from the attorney though i mean the cases you cite they all go to things like the crime fraud exception or the defense of acting on counsel's advice case where a an insurance company was allowed to raise a defense of reasonable conduct while asserting the attorney client privilege in withholding the very evidence that would establish whether their conduct was actually in good faith i myself have done lots of work for insurance companies in the past i have written more than one hundred coverage opinions for insurance companies and i'm well aware of the procedure you write a coverage opinion to the to the to the carrier and you say these are the pros and the cons of whatever we're doing here and then if the kerry decides to deny th claim based on the advice that i've given them then there is a denial letter written to the insured well in our case all we have is the denial letter we don't have the real evidence which all that i want to ask you about eleven  you know in the sentries and i letter to your client they cite an eleventh circuit case of universal underwriters versus folks are really where it was almost identical language about the meaning of the word intentional and it says quote the policy exclusion on ambiguously excludes from coverage all intentional acts giving rise to live military regardless of whether the insurers objectively intended the resulting damages or injury and that's partly what the sentry ride on and they told you that sure isn't reasonable about relying on the eleventh circuit interpretation of almost identical language that would have justified them denying coverage well because first of all the policy in that case was was distinguish their earlier donica exclusion line the case that you're talking about doesn't even help even if even if it was a political it doesn't help center because in that case it was a an accident policy not like in our case ours is a specific x specified x policy where the insurance company wasn't but he's also about the interpretation of the term intentional yes and and so citing to case their position is look here is how we interpret it here's a case that supports that albeit under alabama law there's no reason to think that the same thing wouldn't apply in california we can't find the cases says the contrary when you're so you know getting back to jones question what's reasonable about taking that position and relying on that universal in the writer's case to to interpret the term intentional because that case was an it was an accident policy there was no there would be no reasonable expectation of the insured the club this seminal case in california for determining whether there's a duty to defend based on the language of a policy is grey versus iraq and that case the court explained that in california look first at the coverage language the coverage language first and then we look at the exclusion we broadly construe the coverage language and in a specified acts policy such as we have in this case there is an expectation based on the language of the policy the insurance company in this case promised to cover intentional acts to find as a wrongful termination and harassment promised to do it and so then when you and you have to broadly construe that because that was the promise of coverage then when you look at the exclusion you have to narrowly you are required to narrowly construe the solution so the word intentional cannot be taken in a vacuum you have to look at the overall language of the policy and in the accident policy in the alabama case all they said was that they were going to cover an accident an accident is far different then an intentional act which was promised to be covered in our case and in fact this century even didn't wasn't quite honest about what was available even under the alabama case under that case they didn't say that they would never cover any evolution will conduct in that case they said that they wouldn't cover intentional conduct well there's a big difference between intentional which is here and volitional which is here it leaves room for coverage for negligen conduct there's plenty of evidence that it was not intentional wrongful conduct he had every reason he was justified in terminating this client like fact this is sued him for a million  would maybe out of the money that's what she maybe but that's the beautiful thing about the duty to defend in the duty to defend it is an immediate duty that arises upon the time that you are  the insurance company has an immediate duty if there's any potential for coverage the insurance company is required to immediately agree and if the policy has  exclusion that is capable of more than one reasonable interpretation under the didn't defend the insurance company has a duty to immediately agree to defend even if there is an even if there were five reasonable interpretations about exclusion that would allow the insurance company to deny the defend if there is just one that's a reasonable interpretation that would allow for the defense the insurance company has to as a matter of law defend regardless of whether there are other reasonable interpretations and so that's why the case law is the appellate court decisions in california that have come down in the in the last few years last number of years say they don't believe that the gent that the genuine dispute doctrine even applies to the do to defend because it's contradictory on the one hand under california law you have to defend whenever there's any potential and that includes if you have a situation where language with regard to what the duty to defend is in california when you have to defend regardless of whether there's a an objective expectation of reasonable expectation by the by the insurance company that  they have an interpretation that would allow them to them to deny but then you have another interpretation that's reasonable that that wouldn't allow them to why they have to they have to defend so it doesn't make a difference whether there's some cases  or well remember that under wilson which is the only california supreme court case that talks about what the law is with regard to the genuine dispute doctrine they have to insurance company has the burden on the summary judgment motion sorry in summary on this part of it because the duty to defend the long california requires the insurance company to immediately defend whenever there is at least one interpretation that is that it's reasonable that would require them to defend they must immediately defend thank you was correct and should be affirmed on appeal and of course based on the brief she know it's based on the application a genuine issue doctrine in this case your honor centuries coverage position was based on a straightforward application of the policy language it was based on undisputed facts as your honor noted it was based on supporting legal authority there was in fact one case the chandler case which we cited in what which was in the opinion which was in the position letter which is on all fours looked at the exact same language  also your honor although it's not dispositive the district court's granting of summary judgment with respect to the coverage issue the initial granting of summary judgment also support centrist position the it in the initial opinion of this court with respect to the duty to defend issue the court recognize that were that there were interpretations there is case law supporting centuries interpretation regarding the meaning of the word intentional and which goes toward the issue of centuries reasonable is so we have you know all the things i just mentioned we have a district court judge agreeing with our essentially asking this court to restrict or eliminate the genuine the general dispute doctrine in the third party insurance context and to change california law today there is not a single appellate court decision which has held the doctrine in a playable third party context i recognize there's been some decisions where the courts in dicta question the put the building the doctrine but in all those court all those lee confirmed it well your honor i think that the mere fact that the court on its own to a sponsor looked at that issue and made a ruling based on the application the doctrine tells us that it is something that the court considered and in fact numerous courts have cited lunsford's sense then district court district courts and i believe also the ninth circuit as well and have applied the the genuine issue doctrine in the third this is this reasonable a standard your honor is the same whether it's applied by a judge on summary judgment or whether it's applied by a jury there's a jury instruction which looks at this and the jury instruction talks about reasonability what was the insurance carrier unreasonable so the doctrine does apply in a third party context in california also where there is no factual dispute and it's purely a question of law before the court a carriage can reasonably relyin case law and it reasonable interpretation of the policy that supports a coverage position and not be in bad faith there are situations many situations where the carrier just gets it wrong they you know they had a reasonable position they relied on the policy language in the case law and the judge disagrees with them under the appellant's analysis the carrier is always going to be in bad faith if that happens but that's just not the law it's not the case so on the one hand there's this duty to defend standard and if a court finds that the carrier was incorrect with respect to its converse position then we get to the second tier the nalla says was the carers decision reasonable and and the decision thousand or something including about one hundred nine hundred thousand dollars in interest in contract cases the measure of damages are contract damages the insurance in the insurance context is the only context i'm aware of where there is a position was reasonable does not eliminate the contract based damages it just it says that the care is reasonable it got it wrong but the court makes a decision that the enhanced remedies support based remedies are documents between adjusters and claims superintendents that sort of thing where they say yeah we probably owe the money yeah the claim for policy limits is pretty strong but let's make them work for or maybe we'll get lucky or something along those lines and those pretty typically turn into bad faith claims in this case was there any documentation earlier the facts in this case were very straightforward and not in dispute in terms of the facts that were material on the documents or the documents in our case what i'm interested in is the full record because i didn't read everything but there is there were there was there was for the insurance carrier wave attorney client privilege my next question what that looked to me is like is well i haven't seen anything yet but if there is some it's in the attorney communications where the attorney might say there's a smoking gun there in that memo of september eighteenth and we're dead in the water if they get that a copy of that memo and in that sort of not going to be able to break through the attorney client privilege unless the carrier puts it in the issue the character who put it in issue by dealing itself to the advice of counsel defense which is a defense to bad faith and it can be one factor in a bad faith defense but we made a point of not asserting the advice of counsel defense and in the briefs the appellant complains that we just sort of the privilege and that they claim we had produced our coverage and we said well you know a carrier like any any party has a right to defend itself has a right to avail itself of the attorney client privilege and we objected to their discovery request and they never compelled it and now they're they're complaining that they didn't get they didn't move to compel discovery of the attorney client they did not i missed that they did not motion to compel there was not so has the attorney client privilege come before i don't think it should of sanctity of contract if if in every situation where an insured didn't like the result of a coverage a determination they just you know came out after the fact in this case long after the fact and said oh yeah you're agent told me this was covered insurers would would have to leave the state of california if that were the law the broker's alleged misinterpretation does not impact the plain meaning of the policy and we're coverage turns on policy language alone there's no need to further investigate and it doesn't matter if the broker misinterpreted the policy as opinion evidence is not relevant to interpret the policy and that's from the brender sen newberg court relied on in support of her position so it's the language of the policy that controls your honor and their peers there's no reason to go beyond the language of the policy in this case particularly when the facts are clear and not reserved by me or actually you ran out of time we've got the argument it's well briefed we've got it thank you