                                                                           FILED
                           NOT FOR PUBLICATION
                                                                           MAY 26 2016
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


GEORGE MORELLO,                                  No. 14-16219

              Plaintiff - Appellant,             D.C. No. 3:11-cv-06623-WHO

 v.
                                                 MEMORANDUM*
AMCO INSURANCE COMPANY,

              Defendant - Appellee.


                   Appeal from the United States District Court
                      for the Northern District of California
               William Horsley Orrick, III, District Judge, Presiding

                        Argued and Submitted May 13, 2016
                             San Francisco, California

Before: KLEINFELD, IKUTA, and WATFORD, Circuit Judges.

      George Morello appeals from the district court’s order granting summary

judgment to AMCO Insurance Company on Morello’s claims for breach of the

implied covenant of good faith and fair dealing, intentional infliction of emotional

distress, unfair business practices, and violations of the Unruh Act. Morello also



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
appeals the district court’s order denying Morello’s motion for reconsideration of

its summary judgment order. We have jurisdiction under 28 U.S.C. § 1332, and

we affirm.

         Viewing the evidence in the light most favorable to Morello, the record does

not raise a genuine issue of material fact that AMCO breached the implied

covenant of good faith and fair dealing in its handling of Morello’s insurance

claim.

         There is no substantial evidence that AMCO engaged in an unreasonable

investigation. AMCO undertook persistent efforts to obtain information from

Morello and others, and employed experts to review the evidence and examine

Morello, so it is inconsequential that in hindsight there may have been other

avenues to explore. See Othman v. Globe Indem. Co., 759 F.2d 1458, 1464–65

(9th Cir. 1985).

         It was reasonable for AMCO to rely on Dr. Soong’s expert opinion that

Morello was not entitled to future medical care, particularly since Nurse Powell

and Dr. Strassberg reached a similar conclusion. See Fraley v. Allstate Ins. Co., 81

Cal. App. 4th 1282, 1292–93 (2000). There is no evidence in the record that Dr.

Soong acted in bad faith in reaching his conclusion or in destroying the documents

provided by AMCO after he completed his report. Because there was a genuine


                                           2
dispute as to liability, no reasonable juror could conclude that AMCO

unreasonably withheld benefits due under Morello’s policy. See Pyramid Techs.,

Inc. v. Hartford Cas. Ins. Co., 752 F.3d 807, 823 (9th Cir. 2014).

      To the extent we may consider the expert reports of Thomas Corridan and

Guy Kornblum, see Fed. R. Civ. P. 56(c)(1), (c)(4), their conclusory opinions that

AMCO mishandled Morello’s claim are rebutted by the record, so they cannot

defeat summary judgment. See In re Worlds of Wonder Sec. Litig., 35 F.3d 1407,

1425–26 (9th Cir. 1994). The district court fully considered Morello’s admissible

evidence,1 and the record does not raise a genuine issue of material fact that

AMCO unreasonably delayed in making a settlement offer while engaging in

mediation and arbitration proceedings.

      Because the district court did not err in granting summary judgment to

AMCO on bad faith, it likewise did not err in granting summary judgment to

AMCO on Morello’s claims for intentional infliction of emotional distress, unfair

business practices, and violation of the Unruh Act, which were premised on the

same grounds as the bad faith claim.




      1
      Morello’s evidence of AMCO’s communications during mediation is not
admissible for his bad faith claim. See Foxgate Homeowners’ Ass’n, Inc. v.
Bramalea Cal., Inc., 26 Cal. 4th 1, 14–15 (2001).

                                          3
      The district court did not abuse its discretion in denying Morello’s motion

for reconsideration of its summary judgment order. The court committed no “clear

error” in granting summary judgment in favor of AMCO, and our decision in

Pyramid Techs. created no “intervening change in the controlling law” warranting

reconsideration. See Kona Enters., Inc. v. Estate of Bishop, 229 F.3d 877, 890 (9th

Cir. 2000).

AFFIRMED.




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