three or four things that can now did or didn't do that you think warrant to trial on that day on bad faith in regard to the advice of counsel defense or in regard to the genuine issue through your thr contract damages i think the primary thing would have to be failure to even consider california law in california rules of contract interpretation here we have a case of a california insured with a california claim handled by south carolina insurance company who hires a new york coverage counsel who renders an opinion based upon louisiana law from which she contrives an argument for denial of coverage in the case nowhere did the coverage council from new york consider california law or california rules of interpretation incest specially the rule that requires coverage clauses to be interpreted broadly and exclusions to be interpreted narrow canal also had an obligation under the policy in case to know california law and apply it but when we deposed coverage counsel she said she didn't know when she wrote the opinion if she knew whether california law had those requirements requiring her to construe coverage clauses broadly and ironically it's that same law all those same rules of contract interpretation that this court relied upon in two thousand for the first time we were here on the first appeal well  in two thousand and four in its opinion this court said the policy language was at best and big u s and this court said the district court impermissibly construed the coverage was narrowly violating the very defines the distance between those two well really it's a factual issue in most cases the law that has developed under cases like chateau shamba re and hand gardner and other cases applying the genuine dispute doctrine s that it can become an issue of law under certain circumstances where the facts are undisputed and only one reasonable inference can be drawn from those facts but the same case is say on the other hand and insurer is not entitled to summary 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 under reasonable we're not appealing here from a final judgment and a jury verdict or a determination by the court we're appealing from a ruling on a summary adjudication motion and the issue here is not is there conclusive evidence that canal acted in bad faith or convincing evidence the canal ac are two issues are there any disputed facts from which a reasonable jury could draw the conclusion the canal acted in bad faith and there are a lot of disputed facts here that would support that conclusion the first w failure to apply california law the second is willfully concealing information from their coverage counsel tim allen had a has set of photographs from the original investigator mr bruno these programs depicted couches on the glass on the wing window of the truck they depicted other gadgets in the rubber trim around the window of that truck and the stripper now wrote on the caption this is where most break ins in older tractors of this type of  they also had evidence that the trailer itself was sealed by a pin bolt with the serial number that was put on there by the shipper that owned the cargo and evidence that the only way for that to be removed so that the trailer could be information disappears none of it was given good coverage counsel instead mr grinnell's boss mr galloway quoted dr with what she called the first report which of course wasn't the first report it was information you allege was missing or withheld that their opinion would have been different well the interesting thing that i asked for can you start with a yes or no we did ask your honor and they said it was the response they said no because they didn't give an opinion on the issues about breaking and entering into the truck the advice in this case was limited to one issue and one issue only was their physical attachment between the tractor and the trailer however can now deny coverage on three grounds on physical attachment to lack of evidence of forcible entry and three the trailer wasn't a scheduled vehicle on the policy now in this case mr mccarty who was designated as the person most knowledgeable of can now and the sole claims handler responsible for handling the claim and who made the ultimate decision to deny coverage testified that cowan never schedules trailers on cargo polic so one of the grounds for denying coverage in this case contravened canals established pattern and practice of not scheduling trailers on the on the policy if they had denied simply on the basis of attachment and hired liability depends firm that in in california that regularly did liability work for this carrier but they've been in good faith your honor i don't believe so because you're you're you're changing the facts of course but then we still have the question of was there an adequate investigation of the claim they didn't follow up on the information probably you've already seen it would have been bad faith to simply say the policy requires attachment there was no attachments end of story quite well and well that of course i'm having trouble with that hypothetical your honor because that is not what i want to ask him in this case of course canal said it wasn't it couldn't be attached by thief and it had to be attached before the theft so hypothetically had they said there was no attachment i would say yes there would be bad faith here because as this court decided in two thousand and four hypothetical that really you're just saying there's no way unless they paid the climb that they could have under your theory that the could have been in good things for your honor with with all due respect your hypothetical leaves out the fact th believe that there are circumstances where it would be bad faith if you failed to get advice of counsel here you have an issue that's that is an issue of first impression they couldn't find any case law on point i think they had an obligation under the circumstances to hire company i'm just kind of cutting to the chase of some of the issues that were raised the notion that no consideration was given to california law by coverage council's not accurate coverage counsel that was retained in these cases nationally recognized b canalis expert coverage council on cargo and they testified that they were aware of the contract interpretation loss in california you can find that in the excerpts of record you know there's coverage council and then there's coverage accounts i have a good friend who's you know i really think if there is evidence and there was a case where and i am me case that was one of the disability cases that's been cited in the briefs either him guard or i think it's him gardner and in that case they retain an expert and me and there is i am eason there's i am nice but in that case there was evidence that that i am me thirteen for thirteen cases always said there is no disability and in that case there was evidence of a practice by the company of designing a claims pract retaining that i am me and others like him to achieve a result of always denying coverage your woman is that's not the case and absolutely if they don't have some some evidence of a biased retention then whether it's new york council or  to larry county council they're entitled to rely on advice that they have and council comes up here and says there is no california law on the topic this piece came to canal with long mccarty the claims examiner saying in my view i don't think there's coverage if he had done nothing else but deny coverage there they would have claimed bad faith because he says gee if there's no law you have to get legal advice here they got legal advice and that legal advice was there's no other law on the topic in california let me see if there's one anywhere else and they found three cases out of state and they said based on these cases and based on our experience you have apple ample information information from which to deny coverage judge  court said that regardless of what happened with this particular thief in this particular case there is no coverage but i can imagine there are situations where a thief would do something that could avoid coverage but under the facts of this case th the language team sharing agreement says it made no difference so but the advice that canal got was yes that's the answer that thief couldn't change the result here you have a sufficient information relief well then and the law was well even if you get coverage counsel to tell you in their opinion you can deny and the law is well you can't you have a five deck really then they'll never be in denial you'll always going to have to make a decision where there is no definitive answer and the law says if you're faced with that scenario and you act reasonably even if you are wrong it's ok it's not a bad thing bad faith requires something more than negligence so here you c yes they knew there was a chance that they would be wrong that was the case from the moment there was no california case directly on point but if they reasonably believe that this was the right solution to do then the law says ok maybe liable for breach  contract which are not liable for bad faith bad faith requires something more than that and the evidence here this idea that there was an investigation and stuff all of that had to do with another issue the forced entry issue and this case the dinar was based on the attachment issue and on the attachment issue coverage counsel had all the information they needed from which to reach a conclusion on that it was undisputed that at the time of the tractors taking it was not attached to the vehicle that he stole the tractor attached to an unscheduled trailer that was undisputed and based on that understated evidence coverage council render an opinion thursday gardener in house with i'm sorry the letters and i'm average listing it doesn't list it because under the law if there are any reasons that you're going to rely on that you might rely on you have to set it forth because failing to do so then you'll be argued that you haven't identified everything exactly but how can you say now you didn't rely on that at all i'm not saying we get rely on that at all what i'm what i'm saying is you reserve the right to rely on that in the events one of your other coverage defenses don't work but that's not the way the letter as i understand it you want to communicate in a reservation price letter or a denial out are the basis upon which you're denying coverage or at least reserving your rights but there's no indication here that you're saying on the notion that coverage counsel is saying i think on the attachment issue you have ample evidence from which to deny coverage and they do deny coverage on that and all the information they needed to make that conclusion was undisputed and was provided to counsel there was no dispute about them all they needed to know to render that opinion was that the tractor was not attached to the trailer at the time the thief stole the tractor this court disagreed that that was a correct analysis but that's the facts that they have and all these other facts about the fourth century are facts about issues that are insignificant that issues that issue the facts were under speed and were known i was making reference to  declaratory faction in utah because in the application the application indicated that t j s principles place of business was utah and then it got removed in the name change of venue to hear one of the comment counsel on that judgment motion it said that you know the issue of genuine issue or advice of counsel those are factual issues that have to be determined factually the law says that objective fully reasonable germination of genuine issue i judge thomas asked if you can now rely upon these grounds including the lack of forcible entry they certainly relied upon it in the utah declaratory relief action they sued my client for three grounds including lack of forcible entry they sued him on two grounds for which they did not seek advice and counsel and mr wilkins indicated that coverage counsel testified she was aware of california law page one after the i'm confused of what happened as you talking regard to ms gardner's knowledge page ninety five of her deposition she was asked at the time of the may eighteenth opinion letter was it your understanding that california law requires an insurer to interpret the insuring provisions of the liability policy broadly in favor of coverage and her answer i don't know i don't know that i have been it in writing the may eighteenth letter oh forget it she testified she was not aware of those requirements which are the same requirements this court applied in two thousand and four to california rules of insurance policy interpretation if there is no case on point where do you go to where you go to move that there was no case on point right and then you have to go to rules of interpretation which is what this court did in two thousand and four to argue it will be submitted for a decision and will proceed to store against paul revere life