Filed 11/13/14 Siegfried v. Pacific Specialty Ins. CA2/4
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   SECOND APPELLATE DISTRICT

                                                DIVISION FOUR


ELAINE SIEGFRIED,                                                    B250192

         Plaintiff and Appellant,                                    (Los Angeles County
                                                                      Super. Ct. No. BC477969)
         v.

PACIFIC SPECIALTY INSURANCE
COMPANY et al.,

         Defendants and Respondents.




         APPEAL from a judgment of the Superior Court of Los Angeles County,
Rolf M. Treu, Judge. Affirmed in part, reversed in part and remanded.
         Losh & Khoshlesan and Stephen M. Losh for Plaintiff and Appellant.
         Shoecraft and Burton, Devin T. Shoecraft and Michelle L. Burton for
Defendant and Respondent Pacific Specialty Insurance Company.
         Lewis Brisbois Bisgaard & Smith, Michael B. Magloff and Brian Slome for
Defendant and Respondent Cappuccino Insurance Agency, Inc.
      In this insurance coverage dispute, Elaine Siegfried appeals from the judgment
entered following the trial court’s orders granting summary judgment in favor of
Pacific Specialty Insurance Company (Pacific Specialty) and Cappuccino Insurance
Agency (Cappuccino). Appellant purchased a homeowner’s insurance policy from
Pacific Specialty through Cappuccino. She filed a claim with Pacific Specialty after
her home was destroyed in a fire, but she requested an appraisal when Pacific
Specialty paid an amount less than the policy limit. After Pacific Specialty paid the
policy limit, appellant sought payment under her extended replacement cost coverage.
Pacific Specialty denied the claim. Appellant filed a complaint asserting negligence
by Cappuccino and breach of contract and breach of the implied covenant of good
faith and fair dealing by Pacific Specialty. She appeals from the judgment entered
following the trial court’s orders granting summary judgment in favor of Pacific
Specialty and Cappuccino. We affirm the judgment in favor of Cappuccino but
reverse the judgment in favor of Pacific Specialty and remand for further proceedings.


               FACTUAL AND PROCEDURAL BACKGROUND1
The Homeowner’s Insurance Policy
      Appellant purchased residential property in West Hills, California in 1994 and
has maintained homeowner’s insurance on the property since she purchased it.



1
        “‘Because this case comes before us after the trial court granted a motion for
summary judgment, we take the facts from the record that was before the trial court when
it ruled on that motion. [Citation.]’” (Wilson v. 21st Century Ins. Co. (2007) 42 Cal.4th
713, 716-717 (Wilson).) The trial court sustained Cappuccino’s objections to portions of
appellant’s declaration and to exhibits submitted by appellant in opposition to
Cappuccino’s summary judgment motion. The court sustained Pacific Specialty’s
objections to portions of the declarations of appellant and of David Lettiere, a public
insurance adjuster, as well as objections to exhibits submitted by appellant. We do not
rely on evidence to which the court sustained objections.

                                            2
In 2008, appellant purchased a homeowner’s insurance policy for the property
from Pacific Specialty through Joey Cappuccino (Joey), whom she knew through
his work as a mortgage broker. Appellant had occasionally worked for Joey as a
real estate appraiser, and she considered him a work colleague. Joey told appellant
that he was an insurance agent and would like the opportunity “to run the numbers
for her” when her homeowner’s insurance policy was up for renewal.
       Appellant contacted Joey when her policy came up for renewal, and he
asked appellant for the address and size of her home “so he could run the
numbers.” Other than giving him the address and size of her home, appellant did
not speak with Joey about the amount of insurance she needed. She did not ask
Joey about the amount of insurance she needed, and she did not recall him asking
her how much insurance she wanted. Appellant trusted Joey and assumed he
would choose the correct amount of coverage for her. Appellant signed an
application for insurance from Pacific Specialty in July 2008. Appellant did not
recall having any discussions with Joey regarding the insurance application or the
amount of insurance she needed, and she did not ask for a specific amount of
coverage.
       Susan Valencia, a Senior Vice President for Pacific Specialty, explained in a
declaration that a dwelling can be classified as “Standard,” “Standard Plus,”
“Deluxe,” or “Deluxe Plus.” Appellant’s application for the insurance policy
described her home as “Standard,” which resulted in an estimated value of
$144,375, based on Pacific Specialty’s cost estimator. Including estimates for a
garage and fireplace, the total estimated replacement cost was $171,000.2 The
application included “Extended Replacement Cost Dwelling” coverage of 20

2
       In her deposition, appellant noted that she did not have a fireplace, but she did not
notice this in the policy because she did not read it carefully.

                                             3
percent at a cost of $34.3 It was undisputed that Joey did not explain the insurance
policy, the replacement cost, or the extended replacement cost coverage to
appellant.
       The application contained a statutorily-mandated “Replacement Cost
Disclosure,” which stated that “Limited Replacement Cost Coverage” applied to
appellant’s policy, and explained as follows: “In the event of any covered loss to
your home, the insurance company will pay to repair or replace the damaged or
destroyed dwelling with like or equivalent construction up to a specified
percentage over the policy’s limits. See the declarations page of your policy for
the limit that applies to your dwelling. Your policy will specify whether you must
actually repair or replace the damaged or destroyed dwelling in order to recover
this benefit. The amount of recovery will be reduced by any deductible you have
agreed to pay. To be eligible for this coverage, you must insure the dwelling to its
full replacement cost at the time the policy is issued, with possible periodic
increases in the amount of coverage to adjust for inflation; you must permit an
inspection of the dwelling by the insurance company; and you must notify the


3
        “Unlike basic or limited replacement cost coverage, extended replacement cost
coverage is not limited by the dollar amount of coverage listed in the declarations page.
Rather, if necessary to fully repair or replace damaged or destroyed property, the policy
will extend compensation up to an additional percentage (e.g., 125 percent) above the
stated limits in the declaration for the dwelling.” (Barron et al., Cal. Property Insurance:
Law and Litigation (CEB) § 12.15B; see Ins. Code, § 10102 [setting forth requisite
language for replacement cost disclosure]; see also Croskey et al., Cal. Practice Guide:
Insurance Litigation (The Rutter Group 2014) ¶ 6:359.4, p. 6B-80 [“Extended
replacement cost coverage provides indemnity up to a specified percentage (e.g., 10%) or
specific dollar amount above the policy limit.”].) Thus, if, for example, the policy limit
was $171,000, the 20 percent extended replacement cost provided for an extra $34,200 in
coverage, resulting in a coverage limit of $205,200. (See Major v. Western Home Ins.
Co. (2009) 169 Cal.App.4th 1197, 1204 (Major) [calculating the amount of coverage
where the extended replacement cost was 25 percent over the policy limits].)

                                             4
insurance company about any alterations that increase the value of the insured
dwelling by a certain amount (see your policy for that amount). Read your
declaration page to determine whether your policy includes coverage for building
code upgrades.” 4 (See former Ins. Code, § 10102 (2008 version), amended in
2010.)
       Pacific Specialty inspected the property in August 2008, and required
appellant to trim some trees in order to comply with its guidelines. After appellant
had the trees trimmed, Pacific Specialty reinspected the property.5
       Appellant received a homeowner’s insurance policy from Pacific Specialty
for the term of July 22, 2008 to July 22, 2009. The estimated replacement cost was
$171,000, and the limit in coverage was $171,000 for the home. Appellant’s
premium was $565 for the $171,000 in coverage on the dwelling, plus $34 for 20


4
       The phrase “full replacement cost” does not appear to be defined in the policy, and
neither party has pointed us to any definition. Insurance Code section 2051.5 addresses
how replacement cost is measured, stating that, “Under an open policy that requires
payment of the replacement cost for a loss, the measure of indemnity is the amount that it
would cost the insured to repair, rebuild, or replace the thing lost or injured, without a
deduction for physical depreciation, or the policy limit, whichever is less.” (Ins. Code,
§ 2051.5, subd. (a).) “An open policy is one in which the value of the subject matter is
not agreed upon, but is left to be ascertained in case of loss.” (Id., § 411.) The other type
of insurance policy is a valued policy, which “expresses on its face an agreement that the
thing insured shall be valued at a specified sum.” (Id., § 412.) As noted above, the
provision at issue here is for extended replacement cost coverage, which provides for
coverage above the policy limit.
5
       Neither party points out that the August 7, 2008 inspection report states that
“Coverage” is $171,000, and “Replacement Cost” is $201,375. This is inconsistent with
the $171,000 estimated replacement cost in the policy. Nonetheless, Pacific Specialty
does not rely on this report as evidence of the estimated replacement cost. To the
contrary, Pacific Specialty cites Valencia’s deposition to argue that the inspection that it
requires of its insureds’ properties does not include any evaluation of whether the
property is properly classified or whether the policy limits are properly set.

                                              5
percent extended replacement cost coverage for the dwelling. The policy stated:
“The limit of liability for this structure (Coverage A) is based on an estimate of the
cost to rebuild your home, including an approximate cost for labor and materials in
your area, and specific information you have provided about your home.” The
policy further warned that “it is ultimately the insured’s responsibility to obtain
adequate insurance coverage. If you feel that the dwelling replacement cost
estimated above is insufficient, you should increase the coverage to the appropriate
amount.”
      Appellant scanned the policy and did not read the details. She did not look
at the policy to see the amount of the insurance. Appellant stated in her deposition
that she did not recall receiving the entire insurance policy before signing it,
pointing out that the fax indicated that she received only two pages, both of which
were only the signature pages.
      Appellant renewed the homeowner’s insurance policy in May 2010.6 She
paid for the renewal without examining the policy, based on the assumptions that
the insurance was “working . . . fine so far,” and that she could trust Joey and
Pacific Specialty. The renewed policy is at issue here.
      The renewed policy increased the estimated replacement cost to $184,000.
As pertinent here, the renewal provided a limit of $190,000 under Coverage A,
Dwelling, plus 25 percent extended replacement cost coverage.7 Appellant’s


6
        According to Valencia, appellant also renewed the policy in 2009, but that renewal
is not in the record.
7
        An endorsement entitled “Inflation Guard” stated that “A 3% increase to the limit
of liability shown on the Declarations page of the policy for the insured dwelling
(Coverage A) will be applied at renewal.” Adding a 3 percent increase to the $171,000
policy limit from 2008 to 2009 and then again from 2009 to 2010 results in a limit of
$181,413.90.
                                             6
premium included payments of $611 for the $190,000 coverage and $37 for the 25
percent extended replacement cost coverage. The 25 percent extended replacement
cost coverage meant that the $190,000 coverage limit for the dwelling was
increased by $47,500 to $237,500. (See Major, supra, 169 Cal.App.4th at p. 1204
[where the policy provided coverage of $193,000 for the dwelling, a 25 percent
extended replacement cost policy meant coverage of $241,250].)


The Insurance Claim
        On December 19, 2010, a fire caused extensive damage to appellant’s home.
Appellant submitted a claim for the loss to Pacific Specialty.
        Appellant hired a public insurance adjuster, David Lettiere, to act as her
claim representative. In a March 11, 2011, letter to Lettiere, Pacific Specialty
stated that the undisputed repair value of the home was $181,720.17. Pacific
Specialty deducted $14,795.94 for depreciation and a $500 deductible, resulting in
a payment of $166,244.68 to settle the dwelling portion of appellant’s claim.
Lettiere submitted a replacement cost value of approximately $270,000 for the
home.
        In May 2011, Lettiere requested an appraisal pursuant to the policy’s
appraisal clause. In November 2011, the appraisal panel determined the
replacement cost value of the home to be $273,813.04. Based on the appraisal,
Pacific Specialty paid an additional $8,742.07 to reach the policy limit of
$190,000, but stated that it would not make any further payments.
        In December 2011, appellant sought payment under her extended
replacement cost coverage. In a January 2012 letter, Pacific Specialty denied
appellant’s claim for extended replacement cost coverage, stating that it “must



                                           7
respectfully deny coverage under the Extended Replacement Cost endorsement
because the home was not insured to its full replacement cost immediately prior to
the loss.” The letter also cited language in the policy that “‘to be eligible to
recover extended replacement cost coverage, you must insure the dwelling to its
full replacement cost at the time the policy is issued.’” The letter explained that
appellant’s “home was insured with Coverage A dwelling limits of $190,000,
based on her broker’s selection of Standard level construction costs for the
dwelling. The fire loss caused damage to approximately 80% of the dwelling. We
understand that the appraisal award for replacement of 80% of the dwelling is in
excess of $270,000. This would indicate that the full replacement cost at the time
the policy was issued was well in excess of the $190,000 dwelling limits. The
house was not insured to its full replacement cost at the time the policy was issued,
and as a result [appellant] is not eligible for Extended Replacement Cost coverage
under the endorsement.”


The Lawsuit
      Appellant filed a first amended complaint, asserting causes of action for
breach of contract and breach of the implied covenant of good faith and fair
dealing against Pacific Specialty, and broker negligence against Cappuccino. She
alleged that Pacific Specialty breached the policy by failing to pay her the proper
amount of benefits and engaged in bad faith conduct in handling her claim.
Appellant alleged that Cappuccino was obligated to use reasonable care in
procuring insurance coverage and that it breached its duty by failing to obtain
adequate coverage and failing to discuss the extended replacement cost coverage
with her.



                                           8
      Pacific Specialty filed a motion for summary judgment or summary
adjudication, arguing that there was no breach of contract because appellant
underinsured her property and thus was not eligible for the extended replacement
cost benefits. Pacific Specialty further argued that it did not breach the implied
covenant of good faith and fair dealing because it did not unreasonably deny or
delay payment of benefits. At a hearing, the trial court expressed the opinion that
Pacific Specialty was entitled to summary adjudication as to the breach of contract
cause of action, but that there may have been an issue regarding the covenant of
good faith and fair dealing. Following another hearing, the court granted the
summary judgment motion as to both causes of action and entered judgment in
favor of Pacific Specialty.
      Cappuccino filed a motion for summary judgment on the basis that it did not
owe appellant a duty of care to provide her an insurance policy with sufficient
policy limits. After holding a hearing, the trial court granted Cappuccino’s
summary judgment motion and entered judgment in favor of Cappuccino.
Appellant filed a timely notice of appeal.


                                   DISCUSSION
I.    Standard of Review
      On appeal from the grant of a summary judgment motion, “‘“‘[w]e review
the trial court’s decision de novo, considering all the evidence set forth in the
moving and opposing papers except that to which objections were made and
sustained.’” [Citation.] We liberally construe the evidence in support of the party
opposing summary judgment and resolve doubts concerning the evidence in favor
of that party. [Citation.]’ [Citation.]” (Wilson, supra, 42 Cal.4th at p. 717.)



                                             9
      “‘A trial court properly grants a motion for summary judgment only if no
issues of triable fact appear and the moving party is entitled to judgment as a
matter of law. [Citations.] The moving party bears the burden of showing the
court that the plaintiff “has not established, and cannot reasonably expect to
establish,”’ the elements of his or her cause of action. [Citation.]” (Wilson, supra,
42 Cal.4th at p. 720.)


II.   Negligence Claim Against Cappuccino
      Appellant contends that the trial court erred in granting summary judgment
in favor of Cappuccino on her negligence claim. “To establish negligence,
[appellant] must prove (1) [Cappuccino’s] legal duty of care towards [appellant],
(2) [Cappuccino’s] breach of that duty, (3) injury to [appellant] as a proximate
result of the breach, and (4) damage to [appellant]. [Citation.] Whether a duty of
care exists is a question of law for the court. [Citation.]
      “Ordinarily, an insurance agent ‘assumes only those duties normally found
in any agency relationship. This includes the obligation to use reasonable care,
diligence, and judgment in procuring the insurance requested by an insured.
[Citation.] The mere existence of such a relationship imposes no duty on the agent
to advise the insured on specific insurance matters. [Citations.]’ [Citation.]
Instead, in the ordinary case, ‘the onus is . . . squarely on the insured to inform the
agent of the insurance he requires.’ [Citation.]” (Wallman v. Suddock (2011) 200
Cal.App.4th 1288, 1308-1309 (Wallman).)
      “[A]n insurance agent generally has no duty to volunteer that an insured
should obtain different or additional insurance coverage. ‘The rule changes,
however, when – but only when – one of the following three things happens: (a)
the agent misrepresents the nature, extent or scope of the coverage being offered or

                                           10
provided . . . , (b) there is a request or inquiry by the insured for a particular type or
extent of coverage . . . , or (c) the agent assumes an additional duty by either
express agreement or by “holding himself out” as having expertise in a given field
of insurance being sought by the insured . . . .’ [Citation.]” (Roberts v. Assurance
Co. of America (2008) 163 Cal.App.4th 1398, 1403-1404 (Roberts).) Thus, “while
agents do not generally have a duty to advise insureds regarding the sufficiency of
their liability limits, once agents elect to respond to these inquiries, ‘a special duty
ar[ises] requiring them to use reasonable care.’ [Citation.]” (Wallman, supra, 200
Cal.App.4th at p. 1309.)
      Appellant contends that she has raised triable issues of fact as to whether
Cappuccino assumed a special duty to obtain adequate insurance for her by
initiating the procurement of the insurance and choosing the type and amount of
insurance without consulting her or explaining the provisions to her.8 We disagree.
There is no evidence that Cappuccino assumed a greater duty to appellant by
express agreement or by holding itself out as having special expertise. (See
Roberts, supra, 163 Cal.App.4th at p. 1404.) We therefore conclude that appellant
has failed to submit evidence sufficient to establish a triable issue of material fact
as to Cappuccino’s alleged negligence.
      Appellant argues that Cappuccino assumed a special duty to obtain adequate
insurance for her by acting unilaterally in selecting the insurance without
explaining any of it to her. She relies on the undisputed evidence that, when she
purchased the policy, she did not have any discussions with Joey regarding the

8
        An insurance agent may be found negligent by breaching the ordinary duty of care
by failing to procure agreed-upon coverage. (Wallman, supra, 200 Cal.App.4th at p.
1309.) Appellant does not argue that Cappuccino breached its ordinary duty of care by
failing to procure agreed-upon coverage, relying only on the doctrine of a special duty of
care.

                                            11
insurance, but merely assumed that Cappuccino would obtain the correct amount
of insurance for her. She repeatedly testified in her deposition that she did not ask
Joey any questions about the insurance policy because she trusted him to obtain the
correct amount of insurance for her. Joey never told appellant he would insure the
home for a specific amount, and appellant never asked about the amount of the
coverage because she assumed she would “be fully covered if there was a
disaster.”
      Although appellant presented evidence that she never questioned Joey or
asked him any questions because she trusted him and assumed he would provide
adequate coverage for her, she presented no evidence that he assumed a special
duty to her. Despite her testimony that she assumed he would provide her “full”
coverage in case of a loss, she never testified that she communicated to Joey what
her expectations were regarding the coverage. Nor did she ask him any questions
regarding the coverage. “[A]lthough an agent ‘“‘may point out to [the insured] the
advantages of additional coverage and may ferret out additional facts from the
insured applicable to such coverage, . . . he is under no obligation to do so.’”’
[Citation.]” (Wallman, supra, 200 Cal.App.4th at p. 1310.)
      The facts here are different from Free v. Republic Ins. Co. (1992) 8
Cal.App.4th 1726, 1729-1731 (Free), in which the court found that the plaintiff
sufficiently alleged that the insurance agents assumed a special duty of care to
defeat a demurrer. There, the plaintiff homeowner contacted the defendant
insurance agencies every year to ask whether the coverage limits of his policy were
adequate to rebuild his home. Each time he was informed that they were. The
court thus held that, although the defendants were “not required under the general
duty of care they owed plaintiff to advise him regarding the sufficiency of his
liability limits or the replacement value of his residence,” “once they elected to

                                          12
respond to his inquiries, a special duty arose requiring them to use reasonable
care.” (Id. at p. 1729.)
      Unlike Free, in which the homeowner specifically asked if his coverage was
sufficient to rebuild his home, it is undisputed that appellant never asked
Cappuccino if her coverage was adequate to rebuild her home, neither when the
policy first was issued nor when she renewed the policy in 2009 and 2010. Thus,
appellant presented no evidence that a special duty arose.
      This court found a triable issue of material fact as to the insurance agent’s
negligence in Butcher v. Truck Ins. Exchange (2000) 77 Cal.App.4th 1442
(Butcher). However, in that case, the plaintiff gave the insurance agent a copy of
his current insurance policies and specifically instructed him to obtain the same
coverage but at higher limits. The plaintiff’s former policy included personal
injury coverage, but, according to the plaintiff, the insurance agent neglected to tell
him that the new policy he secured did not include personal injury coverage.
Instead, the agent indicated to him that the new policy provided the same coverage
as the former policy. Under those circumstances, we found a triable issue of
material fact as to whether the agent misled the plaintiff, thus precluding summary
judgment. (Id. at p. 1462.)
      In Butcher, the plaintiff presented evidence that the agent not only failed to
obtain the type of insurance he requested but also misled him as to the coverage he
received. By contrast, appellant has not presented any evidence that she requested
a certain type or amount of coverage or that Cappuccino misled her regarding the
coverage she received. Rather, her own testimony is that she did not have any
conversations with Joey about the adequacy of her coverage and did not ask for a
specific amount, instead assuming the insurance would fully cover any loss. (See
Wallman, supra, 200 Cal.App.4th at p. 1310 [finding no negligent failure to

                                          13
procure agreed-upon coverage where, “by plaintiffs’ own admissions their
statements to [the insurance agent] about the kind of coverage they wanted were
extremely general in nature”].)
      Appellant relies on Westrick v. State Farm Insurance (1982) 137 Cal.App.3d
685 (Westrick), but we find Westrick distinguishable. There, the plaintiff
previously had been told that his insurance policy contained a 30-day automatic
coverage clause for a newly purchased truck, although he did not buy the vehicle at
that time. Two months later, he bought two different trucks. When he called his
insurance agent to secure insurance for the vehicles, he offered the agent the
trucks’ serial numbers and license information, but he was told that was not
necessary. That night, one of the vehicles was involved in an accident, but it was
not in fact insured. The agent did not recall ever telling the plaintiff about
automatic coverage on the truck.
      The trial court in Westrick entered a directed verdict on the plaintiff’s
negligence claim against the insurance company and insurance agent. The
appellate court reversed, stating that “while an insurance agent who promises to
procure insurance will indeed be liable for his negligent failure to do so [citations],
it does not follow that he can avoid liability for foreseeable harm caused by his
silence or inaction merely because he has not expressly promised to assume
responsibility.” (Westrick, supra, 137 Cal.App.3d at p. 691.) The court reasoned
that a jury could find that the insured had been told a new vehicle would
automatically be insured and so reasonably believed that his new trucks were
insured. (Id. at p. 690.) The court further reasoned that a jury could find that the
agent knew that the plaintiff sought to obtain insurance, but ignored the situation
by declining to obtain the trucks’ identification information and failing to tell the



                                          14
insured about the specific policy provision that excluded the new vehicles from
coverage. (Ibid.)
       The plaintiff in Westrick thus presented evidence raising a triable issue of
fact as to the insurance agent’s knowledge of the coverage sought by the plaintiff
and his failure to respond to the request. Unlike Westrick, appellant has not
presented evidence sufficient to raise a triable issue of fact as to Cappuccino’s
knowledge of the extent of coverage she sought or its failure to obtain coverage for
her.
       Appellant has presented no evidence that Joey or Cappuccino ever did or
said anything to make her believe that Cappuccino was an expert in homeowner’s
insurance or was assuming a special duty of care to her. (See Wallman, supra, 200
Cal.App.4th at p. 1312 [“Notably missing from [the insureds’] statements are what
[the agent] said to give rise to the [insureds’] purported belief that he was an expert
in insurance matters.”].)
       “To defeat summary adjudication, [appellant] could not rely on assertions
that are ‘conclusionary, argumentative or based on conjecture and speculation,’ but
rather [was] required to ‘make an independent showing by a proper declaration or
by reference to a deposition or another discovery product that there is sufficient
proof of the matters alleged to raise a triable question of fact . . . .’ [Citation.]”
(Roberts, supra, 163 Cal.App.4th at p. 1404.) She presented no deposition of Joey
or any other evidence to raise a triable issue of fact whether Cappuccino assumed a
special duty of care. We therefore affirm the trial court’s grant of summary
judgment in favor of Cappuccino.




                                            15
III.   Claims Against Pacific Specialty
       A.    Breach of Contract
       Appellant contends that Pacific Specialty breached the contract by failing to
pay her the additional $47,500 in coverage based on the 25 percent extended
replacement cost coverage provision. She contends that Pacific Specialty
erroneously relied on the replacement cost determined in the November 2011
appraisal to find that her home was not insured to its full replacement cost in
denying the claim. The extended replacement cost provision states that the
dwelling must be insured to its full replacement cost “at the time the policy is
issued.” Pacific Specialty has not submitted sufficient evidence of the replacement
cost at the time the policy was issued to shift the burden to appellant to show a
triable issue of fact as to that issue. (Roberts, supra, 163 Cal.App.4th at p. 1408.)
Pacific Specialty thus has not established that it was entitled to summary judgment
on the breach of contract claim.
       The standard elements of a breach of contract claim are: (1) the existence of
a contract, (2) the plaintiff’s performance or excuse for nonperformance, (3) the
defendant’s breach, and (4) resulting damage to the plaintiff. (Abdelhamid v. Fire
Ins. Exchange (2010) 182 Cal.App.4th 990, 999.) Pacific Specialty sought and
obtained summary adjudication on appellant’s breach of contract claim on the
ground that she could not establish the third element, that Pacific Specialty
breached the contract.
       “An insurer may ‘seek[] summary judgment on the ground the claim is
excluded,’ in which case it has ‘the burden . . . to prove that the claim falls within
an exclusion. [Citation.]’ [Citation.]” (Roberts, supra, 163 Cal.App.4th at p.
1406.) If the insurer satisfies its initial burden, the burden shifts to the insured to
“‘show the existence of a triable issue of material fact on that issue. [Citation.]’

                                           16
[Citation.]” (Id. at p. 1408.) “‘“The insurer is entitled to summary adjudication
that no potential for indemnity exists . . . if the evidence establishes as a matter of
law that there is no coverage. [Citation.] . . .” [Citations.]’” (Wallman, supra,
200 Cal.App.4th at p. 1303.)
       There is no dispute that appellant’s premium payments always included
payments for the extended replacement cost coverage. The endorsement
addressing the Extended Replacement Cost Coverage provided as follows:
       “In the event of a covered loss to your home, we will pay to repair or replace
the damaged or destroyed dwelling with like or equivalent construction, up to 25%
over the policy’s limits of liability. Your policy will specify whether you must
actually repair or replace the damaged or destroyed dwelling in order to recover
extended replacement costs. The amount of recovery will be reduced by any
deductible you have agreed to pay.
       “To be eligible to recover extended replacement cost coverage, you must
insure the dwelling to its full replacement cost at the time the policy is issued, with
possible periodic increases in the amount of coverage to adjust for inflation. You
must also notify us about any alterations that increase the value of the insured
dwelling by a certain amount (see your policy for that amount). Read your
declaration page to determine whether your policy includes coverage for building
code upgrades.” (Italics added.)
       The “Conditions” section of the policy contained the following provisions:9
“(1) If, at the time of loss, the amount of insurance in this policy on the damaged
building is 80% or more of the full replacement cost of the building immediately

9
       The “Conditions” section addressed the conditions for a settlement under
appellant’s regular coverage, not the extended replacement cost coverage. We set forth
the language because Pacific Specialty apparently referred to similar language in its letter
denying appellant’s claim for extended replacement cost coverage.
                                            17
before the loss, we will pay the cost to repair or replace, after application of
deductible and without deduction for depreciation, but not more than the least of
the following amounts: [¶] (a) The limit of liability under this policy that applies
to the building, [¶] (b) The replacement cost of that part of the building damaged
for like construction and use on the same premises; or [¶] (c) The necessary
amount actually spent to repair or replace the damaged building. . . . [¶] (2) If, at
the time of loss, the amount of insurance in this policy on the damaged building is
less than 80% of the full replacement cost of the building immediately before the
loss, we will pay the actual cash value of that part of the building damaged, but not
more than the limit of liability under this policy that applies to the building.”
(Italics added.)
      Pacific Specialty’s January 2012 letter denying appellant’s claim under the
extended replacement cost coverage cited two different times at which the
replacement cost was to be assessed, which appeared to be based on both
provisions set forth above. The letter initially stated that Pacific Specialty “must
respectfully deny coverage under the Extended Replacement Cost endorsement
because the home was not insured to its full replacement cost immediately prior to
the loss.” (Italics added.) The letter subsequently stated that “‘to be eligible to
recover extended replacement cost coverage, you must insure the dwelling to its
full replacement cost at the time the policy is issued.’” (Italics added.)
      At the time the policy was issued in 2008, the policy stated that the
estimated replacement cost was $171,000, and the insured value was $171,000. At
the time of the May 2010 renewal, the policy stated that the estimated replacement
cost was $184,000, and the policy limit was $190,000.




                                          18
      Pacific Specialty argues that it was appellant’s responsibility to ensure she
had adequate coverage.10 We do not disagree with this general principle. (See
Everett v. State Farm General Ins. Co. (2008) 162 Cal.App.4th 649, 660 [“It is up
to the insured to determine whether he or she has sufficient coverage for his or her
needs.”] (Everett).) Nonetheless, Pacific Specialty does not address appellant’s
argument that the extended replacement cost provision required the home to be
insured to its full replacement cost “at the time the policy is issued.” Instead,
Pacific Specialty relies on the replacement cost determined at the time of the
November 2011 appraisal to argue that appellant did not have adequate coverage.
Nor does Pacific Specialty offer any evidence that establishes that the dwelling
was not insured to its full replacement cost at the time the policy was issued. On
this record, we cannot say that Pacific Specialty has submitted sufficient evidence
to shift the burden to the insured to show the existence of a triable issue of material
fact on the issue. (Roberts, supra, 163 Cal.App.4th at p. 1408.)
      Pacific Specialty argues that the November 2011 determination by the
appraisal panel that the replacement cost was over $270,000 conclusively
established the “full replacement cost” for purposes of the extended replacement
cost provision. The appraisal, however, was in November 2011, almost a year
after the fire, and a year-and-a-half after the policy was issued.11 This replacement




10
        Pacific Specialty’s argument that appellant admitted her dwelling was not insured
to its full replacement cost at the time the policy was issued is specious. The record
citations Pacific Specialty cites to support this contention do not support it.
11
        Pacific Specialty’s own assessment of the “undisputed repair value” of the home
in a March 2011 letter was $181,720.17, a figure lower than the estimated replacement
cost in the policy and lower than the policy limit.

                                           19
cost value accordingly is not pertinent to whether appellant’s home was insured to
its full replacement cost at the time the policy was issued.
       Pacific Specialty also relies on the low cost of the extended replacement cost
premium to argue that appellant could not reasonably have expected to be entitled
to the coverage. However, “the insured’s objectively reasonable expectations
cannot ordinarily be gleaned from the premium cost alone. [Citation.]” (Golden
Eagle Ins. Co. v. Insurance Co. of the West (2002) 99 Cal.App.4th 837, 849.)
Appellant surely expected to receive some benefit from her payment of the extra
premium for the 25 percent replacement cost coverage.
       Pacific Specialty argues that appellant “completely remodeled” her home;
however, the evidence Pacific Specialty relies on is too vague to satisfy its initial
burden. (See Roberts, supra, 163 Cal.App.4th at pp. 1406, 1408 [if insurer
satisfies its initial burden to show the claim is excluded, the burden shifts to the
insured to show triable issue of fact].) The extended replacement cost coverage
endorsement states that the insured “must also notify [Pacific Specialty] about any
alterations that increase the value of the insured dwelling by a certain amount (see
your policy for that amount).” Appellant acknowledged in her deposition that she
remodeled her home prior to the fire.12 However, other than the general statement
that appellant remodeled her home at some unspecified time, Pacific Specialty has
not provided any other evidence, such as the amount the alterations increased the
value of the dwelling or the amount that would nullify the extended replacement
cost coverage, to establish that there was no coverage under the extended
replacement cost provision. (See Wallman, supra, 200 Cal.App.4th at p. 1303

12
       We note that a page is missing from the deposition, such that it is impossible to
tell when appellant actually remodeled her home. The cited excerpt also contains no
evidence about the amount the alterations increased the value of the home.

                                            20
[“‘“The insurer is entitled to summary adjudication that no potential for indemnity
exists . . . if the evidence establishes as a matter of law that there is no coverage.
[Citation.] . . .” [Citations.]’”].)
       Pacific Specialty relies on Minich v. Allstate Ins. Co. (2011) 193
Cal.App.4th 477 (Minich), to support its position, but Minich is distinguishable.
The policy in Minich provided that the insurer would pay the insureds “the ‘actual
cash value’ of their house, in an amount not to exceed the ‘limit of liability shown
on the Policy Declarations,’ if the house were damaged or destroyed.” (Id. at p.
479.) A “Building Structure Reimbursement” provision provided for a payment in
excess of the actual cash value if the insureds were to “repair, rebuild or replace”
their house. (Ibid.) After the house was destroyed by a fire, the insurer paid the
limit of liability, but it refused to pay the additional amount until the insureds
provided evidence that they were in fact rebuilding their house. After the insureds
provided the insurance company with building permits, informed the insurer that
the foundation had been completed, and the insurer confirmed this information, the
insurer paid the amount provided for in the building structure reimbursement
provision.
       The insureds in Minich argued that they reasonably believed the building
structure reimbursement provision extended their policy limit, without regard to
whether they rebuilt their house. The court relied on Insurance Code section
10102 in reasoning that the provision did not increase the policy’s limit on
liability. (Minich, supra, 193 Cal.App.4th at pp. 489-490.)
       Unlike in Minich, appellant does not claim that the extended replacement
cost coverage increased her policy limit. Rather, appellant’s claim is consistent
with the court’s observation in Minich that extended replacement cost coverage is



                                           21
defined as a specified percentage above the policy limit, not an increase in the
policy limit itself. (Minich, supra, 193 Cal.App.4th at p. 490.)
       Pacific Specialty’s reliance on Everett is unavailing because the policy
provision there differed from that at issue here. The policy in Everett contained a
replacement cost provision that stated that the insurer “‘will pay up to the
applicable limit of liability shown in the Declarations, the reasonable and
necessary cost to repair or replace with similar construction and for the same use
on the premises shown in the Declarations, the damaged part of the property
covered under Section I – Coverages, Coverage A – Dwelling.’” (Everett, supra,
162 Cal.App.4th at p. 657.) The replacement cost provision in Everett accordingly
was limited to the policy’s limit of liability. Here, by contrast, the extended
replacement cost provision stated that Pacific Specialty “will pay to repair or
replace the damaged or destroyed dwelling with like or equivalent construction, up
to 25% over the policy’s limits of liability.” (Italics added.)
       In Desai v. Farmers Ins. Exchange (1996) 47 Cal.App.4th 1110 (Desai), the
insurance agent told the plaintiff his policy provided 100 percent coverage for the
cost of repairing or replacing improvements to real property, as requested. After
two structures were destroyed, the insurance company relied on language in the
policy that it was responsible for the smaller of either the replacement costs or the
limit of liability under the policy. The plaintiff’s loss was $546,757, but the policy
limit was $150,000. The insured agreed to pay $158,734 on the ground that this
was the limit of its liability.
       On appeal, the court relied on a “Value Protection Clause” in the policy,
which provided “‘automatic protection against inflation so that the coverage
amounts are increased as the costs of replacing your home or Personal Property
increase.’” (Desai, supra, 47 Cal.App.4th at p. 1116, italics deleted.) The court

                                          22
reasoned that “[a] reasonable policyholder could readily construe that to mean that
he or she need not demand increased coverage each year because Farmers would
‘automatically’ take increased costs into account in fixing the coverage and
premium.” (Id. at pp. 1117-1118.) The court concluded that “an objectively
reasonable insured layperson would believe the policy guaranteed replacement
coverage, regardless of what the purported policy limits were,” and that the trial
court erred in construing the policy in the insurer’s favor and in sustaining the
insurer’s demurrer to the breach of contract cause of action. (Id. at p. 1118.)
       Here, the extended replacement cost coverage promised payment for repair
or replacement “up to 25% over the policy’s limits of liability” if the dwelling was
insured “to its full replacement cost at the time the policy is issued, with possible
periodic increases in the amount of coverage to adjust for inflation.” Appellant
presented evidence that the home was insured to its full replacement cost in 2008
and at the time of the May 2010 renewal. She paid the premium, with adjustments
for inflation, and her policy limit and estimated replacement cost in the policy were
adjusted for inflation. Similar to Desai, an objectively reasonable insured
layperson would believe the policy guaranteed the 25 percent payment over the
policy’s limits of liability.
       The fact that the replacement cost value of the home was determined to be
$273,813.04 by the appraisal panel in November 2011, nearly a year after the fire,
does not establish that the home was not insured to its full replacement cost at the
time the policy was issued, as required by the endorsement for the extended
replacement cost coverage. Pacific Specialty has not presented evidence that the
home was not insured to its full replacement value at the time the policy was issued
sufficient to shift the burden to appellant. (Roberts, supra, 163 Cal.App.4th at p.
1408.) In fact, in its brief, Pacific Specialty does not address the phrase, “at the

                                          23
time the policy is issued,” when it discusses appellant’s obligation under the
endorsement. We therefore reverse the grant of summary judgment in favor of
Pacific Specialty on appellant’s breach of contract claim.


       B.     Breach of the Implied Covenant of Good Faith and Fair Dealing
       Appellant contends that the trial court erred in granting summary judgment
in favor of Pacific Specialty on her claim for breach of the implied covenant of
good faith and fair dealing because Pacific Specialty has failed to establish that its
withholding of benefits was legitimate.13
       “‘The law implies in every contract, including insurance policies, a covenant
of good faith and fair dealing. “The implied promise requires each contracting
party to refrain from doing anything to injure the right of the other to receive the
agreement’s benefits. To fulfill its implied obligation, an insurer must give at least
as much consideration to the interests of the insured as it gives to its own interests.
When the insurer unreasonably and in bad faith withholds payment of the claim of
its insured, it is subject to liability in tort.”’ [Citation.] Thus, ‘[a]n insurer’s
obligations under the implied covenant of good faith and fair dealing with respect
to first party coverage include a duty not to unreasonably withhold benefits due
under the policy. [Citation.] An insurer that unreasonably delays, or fails to pay,


13
        We acknowledge Pacific Specialty’s argument that appellant failed to provide
citations to the record in the section of her brief addressing this claim. Nonetheless, we
exercise our discretion to “[d]isregard the noncompliance” pursuant to California Rules
of Court, rule 8.204(e)(2)(C), because we have already examined the record in the breach
of contract claim, and many of the same facts support the bad faith claim. We further
note that we disagree with Pacific Specialty’s contention that appellant did not fully make
this argument in the trial court. Appellant’s opposition to Pacific Specialty’s summary
judgment motion raised the issues she raises on appeal as to this claim – that is, that
Pacific Specialty improperly delayed resolution of the claim and improperly denied
benefits under the extended replacement cost provision.
                                               24
benefits due under the policy may be held liable in tort for breach of the implied
covenant. [Citation.]’ [Citation.]” (Maslo v. Ameriprise Auto & Home Ins. (2014)
227 Cal.App.4th 626, 633 (Maslo).)
      “An insurer is said to act in ‘bad faith’ when it breaches its duty to deal
‘fairly’ and ‘in good faith’ with its insured. [Citation.] The term ‘bad faith’ does
not connote ‘positive misconduct of a malicious or immoral nature’ [citation]; it
simply means the insurer acted deliberately.” (Major, supra, 169 Cal.App.4th at p.
1209.) “[A]n insured plaintiff need only show, for example, that the insurer
unreasonably refused to pay benefits or failed to accept a reasonable settlement
offer; there is no requirement to establish subjective bad faith. [Citations.]”
(Bosetti v. United States Life Ins. Co. in City of New York (2009) 175 Cal.App.4th
1208, 1236 (Bosetti).)
      “[T]o establish the insurer’s ‘bad faith’ liability, the insured must show that
the insurer has (1) withheld benefits due under the policy, and (2) that such
withholding was ‘unreasonable’ or ‘without proper cause.’ [Citation.] The
actionable withholding of benefits may consist of the denial of benefits due
[citation]; paying less than due [citation]; and/or unreasonably delaying payments
due [citation].” (Major, supra, 169 Cal.App.4th at p. 1209.)
      Pacific Specialty relies on the “genuine issue” or “genuine dispute” doctrine,
which “enables an insurer to obtain summary adjudication of a bad faith cause of
action by establishing that its denial of coverage, even if ultimately erroneous and
a breach of contract, was due to a genuine dispute with its insured. [Citation.]”
(Bosetti, supra, 175 Cal.App.4th at p. 1237.) In order to rely on this doctrine,
“[t]he dispute, however, must be genuine. An insurer cannot claim the benefit of
the genuine dispute doctrine based on an investigation or evaluation of the
insured’s claim that is not full, fair and thorough. [Citation.]” (Ibid.)

                                          25
      Moreover, to be entitled to summary judgment pursuant to the genuine issue
rule in the context of bad faith claims, it must be “‘undisputed or indisputable that
the basis for the insurer’s denial of benefits was reasonable . . . . [Citation.] . . .
On the other hand, an insurer is not entitled to 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 unreasonably.’ [Citation.] Thus, an insurer is entitled to
summary judgment based on a genuine dispute over coverage or the value of the
insured’s claim only where the summary judgment record demonstrates the
absence of triable issues (Code Civ. Proc., § 437c, subd. (c)) as to whether the
disputed position upon which the insurer denied the claim was reached reasonably
and in good faith.” (Wilson, supra, 42 Cal.4th at p. 724.)
      Applying these principles, we conclude that appellant has presented
evidence sufficient to raise a triable issue of fact as to whether Pacific Specialty
acted in bad faith in processing her claim. As discussed above, Pacific Specialty
has essentially ignored the requirement in the endorsement that the dwelling be
insured to its full replacement cost at the time the policy was issued, relying instead
on the estimated replacement cost at the time of the November 2011 appraisal. In
addition, its letter to appellant denying her claim for extended replacement cost
coverage gave as reasons both that “the home was not insured to its full
replacement cost immediately prior to the loss,” and that the home was not insured
to its full replacement cost at the time the policy was issued, raising a question of
the actual basis for Pacific Specialty’s denial of the claim.
      Appellant also presented evidence that Pacific Specialty initially estimated
the repair cost to be $181,720.17, and therefore based her payment on that amount,
rather than the $190,000 policy limit. Only after appellant invoked the policy’s
appraisal clause and paid for an appraisal did Pacific Specialty pay the additional

                                            26
amount to reach the $190,000 policy limit. Then, when it was confronted with
appellant’s claim under the extended replacement cost coverage, Pacific Specialty
decided to rely on the appraisal panel’s determination of an estimated replacement
cost over $270,000 to deny the claim.
        Given these facts, a reasonable jury could find that Pacific Specialty acted
unreasonably in its dealings with appellant. (See Maslo, supra, 227 Cal.App.4th at
p. 634 [concluding the insured stated an insurance bad faith cause of action where
the insurer rejected a demand for payment without an adequate investigation, made
no offer of settlement despite clear evidence of liability, and agreed to pay the
claim only after arbitration]; Wilson, supra, 42 Cal.4th at p. 721 [affirming denial
of summary judgment of insurance bad faith claim where insurer’s claims
examiner rejected insured’s treating physician’s medical conclusion with no
medical basis for doing so].) If believed by the jury, the evidence that Pacific
Specialty relied on a low replacement cost to initially offer appellant a settlement
below her policy limit, then relied on a higher replacement cost estimate to deny
her extended replacement cost coverage, could support a finding that Pacific
Specialty acted in bad faith. Moreover, appellant’s evidence that Pacific Specialty
relied on the estimated replacement cost a year after the fire to deny her extended
replacement cost coverage, in contravention of the language in the policy, raises a
triable issue “as to whether the disputed position upon which the insurer denied the
claim was reached reasonably and in good faith.” (Wilson, supra, 42 Cal.4th at p.
724.)
        “If an insurer is to avoid liability for bad faith, its actions and position with
respect to the claim of an insured, and the delay or denial of policy benefits, must
be ‘founded on a basis that is reasonable under all the circumstances.’ [Citation.]”
(Bosetti, supra, 175 Cal.App.4th at p. 1237.) The evidence presented by appellant

                                            27
raises a triable issue of material fact whether Pacific Specialty’s delay in paying up
to the policy limit and its denial of the extended replacement cost coverage was
objectively reasonable. We therefore reverse the grant of summary judgment in
favor of Pacific Specialty on the bad faith cause of action.


                                  DISPOSITION
             The judgment in favor of Cappuccino is affirmed. The judgment in
favor of Pacific Specialty is reversed and the matter remanded for further
proceedings. Cappuccino is entitled to costs on appeal. As to the causes of action
against Pacific Specialty, each party is to bear its own costs on appeal.
             NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                                               WILLHITE, Acting P. J.




             We concur:




             MANELLA, J.




             COLLINS, J.



                                          28
