Allstate Insurance Company, an Illinois Corporation v. Richard Thacher, an individual

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ALLSTATE INSURANCE COMPANY,
an Illinois Corporation,
Plaintiff-counter-defendant -
Appellee-Cross-Appellant,
v.
RICHARD THACHER, an individual;
VALERIE ANN THACHER, an
individual; GUADALUPE TRUJILLO, an
individual,
Defendants-counter-claimants
-Cross Appellants- Appellees.
Nos. 11-56208, 11-56321
D.C. No. 2:08-cv-03326-RSWL-
FMO
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
Ronald S.W. Lew, Senior District Judge, Presiding
Argued and Submitted February 5, 2013
Pasadena, California
Before: PREGERSON, W. FLETCHER, and NGUYEN, Circuit Judges.
FILED
MAR 26 2013
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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Richard and Valerie Thacher (Thachers) and Guadalupe Trujillo (Trujillo)
appeal the district court’s grant of summary judgment in favor of Allstate on their
counterclaims for breach of contract, bad faith, and punitive damages. Allstate
cross-appeals the jury verdict underlying the district court judgment in favor of the
Thachers and Trujillo and denying Allstate’s claim for declaratory relief. The
United States District Court for the Central District of California had diversity
jurisdiction over this action pursuant to 28 U.S.C. § 1332. We have jurisdiction
pursuant to 28 U.S.C. § 1291. We affirm both the jury verdict and the summary
judgment order.
I. Allstate’s challenge to the three-part jury verdict
A jury verdict in a civil case is reviewed for substantial evidence. George v.
City of Long Beach, 973 F.2d 706, 709 (9th Cir. 1992). The jury was presented
with sufficient “relevant evidence as reasonable minds might accept as adequate to
support a conclusion”: (1) that Allstate did not send the notice of non-renewal
regarding the Comprehensive Policy to the Thachers, (2) that Allstate denied the
Thachers coverage under the Umbrella Policy, and (3) that the arbitration award
between the Thachers and Trujillo was not unreasonable or the product of fraud or
collusion. Id.

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Specifically, as to the notice of non-renewal and the denial of coverage
under the Umbrella Policy, the jury was presented with conflicting witness
testimony and chose to believe the Thachers’ and Trujillo’s witnesses’ accounts.
With respect to the reasonableness of the arbitration award, the jury considered the
expert reports that had been submitted to the arbitrator, as well as Trujillo’s
testimony on direct and cross-examinatrion.
Accordingly, the district court’s judgment upholding the jury verdict against
Allstate is proper.
II. The Thachers’ and Trujillo’s challenge to the summary judgment dismissal
of their counterclaims for breach of contract, bad faith, and punitive damages
An appeal from the dismissal of a claim at summary judgment is reviewed de
novo. Travelers Cas. & Sur. Co. of Am. v. Brenneke, 551 F.3d 1132, 1137 (9th Cir.
2009).
1. Breach of contract counterclaim
The district court properly granted summary judgment to Allstate on the
Thachers’ and Trujillo’s breach of contract counterclaim because Allstate had not yet
breached its duty to defend or indemnify the Thachers pursuant to the Umbrella Policy
when Allstate filed for declaratory relief. After Allstate learned of the $515,073.98
arbitration award, it reserved its rights, provided the Thachers with counsel, and

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properly filed a declaratory relief action to determine its obligations under the
Comprehensive Policy and the Umbrella Policy. See Cal. Civ. Proc. Code § 1060
(providing insurers like Allstate a statutory right to seek declaratory relief to
determine their rights and obligations under a contract after a final judgment is
entered); see also George F. Hillenbrand, Inc. v. Ins. Co. of N. Am., 128 Cal. Rptr. 2d
586, 599 (Ct. App. 2002). The district court only determined that Allstate had a duty
to indemnify the Thachers under the Umbrella Policy after the jury found that the
underlying primary Comprehensive Policy was in effect at the time of Trujillo’s
accident, and that Allstate had effectively denied Umbrella Policy coverage to the
Thachers in 2005.
Allstate’s failure to defend or indemnify the Thachers before they sought
declaratory relief was not a breach of contract as to Allstate’s Umbrella Policy.
Accordingly, the Thachers’ and Trujillo’s breach of contract counterclaim was
properly dismissed at summary judgment.
2. Bad faith counterclaim
A party has acted in bad faith when it breaches the implied covenant of good
faith and fair dealing. The implied covenant of good faith and fair dealing prevents
a party from doing anything that “injure[s] the right of the other to receive the benefits
of the agreement.” Comunale v. Traders & Gen. Ins. Co., 328 P.2d 198, 200 (Cal.

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1958); see also Chateau Chamberay Homeowners Ass’n. v. Associated Int’l Ins. Co.,
108 Cal.Rptr.2d 776, 90 Cal. App. 4th at 347 (“the reasonableness of the insurer’s
decisions and actions must be evaluated as of the time that they were made”). Under
the genuine dispute doctrine, an insurer has not acted “in bad faith when it mistakenly
withholds policy benefits, if the mistake is reasonable or is based on a legitimate
dispute as to the insurer’s liability.” Century Sur. Co. v. Polisso, 43 Cal.Rptr.3d 468,
478 (2006). Because there was a legitimate dispute as to Allstate’s obligations under
the Umbrella Policy at the summary judgment stage, the district court’s dismissal of
the Thachers’ and Trujillo’s bad faith claim was proper.
3. Punitive damages counterclaim
A claim for punitive damages is established when an insurer takes an
unreasonable position, and has an intent to harm. See Beck v. State Farm Mut. Auto.
Ins. Co., 126 Cal.Rptr. 602, 54 Cal. App. 3d 347, 355 (1976). Because Allstate did
not act unreasonably as a matter of law, the counterclaim for punitive damages was
also properly dismissed at summary judgment. See id.
III. Conclusion
In sum, we affirm the district court’s rulings across the board. The three-part
district court jury verdict in favor of the Thachers and Trujillo is supported by

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The district court verdict and judgment uphold the underlying arbitration1
award confirmed by the Los Angeles County Superior Court.
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substantial evidence. The grant of summary judgment in favor of Allstate as to the1
Thachers’ and Trujillo’s breach of contract, bad faith, and punitive damages
counterclaims is also proper.
AFFIRMED.

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