Filed 3/5/15 Bartile Roofs v. Employers Mut. Casualty 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                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                 DIVISION FOUR


BARTILE ROOFS, INC., et al.,                                         B253243

         Plaintiffs and Appellants,                                  (Los Angeles County
                                                                     Super. Ct. No. GC044918)
         v.

EMPLOYERS MUTUAL CASUALTY
COMPANY,

         Defendant and Respondent.



         APPEAL from a judgment of the Superior Court of Los Angeles County, John P.
Doyle, Judge. Affirmed.
         John K. Saur, for Plaintiffs and Appellants.
         Hirsch Closson, Robert V. Closson, and Jodi E. Lambert, for Defendant and
Respondent.
       Appellants Bartile Roofs, Inc. (“Bartile”), its president, Lewis Evans, and its vice-
president, Michael Evans (jointly, the “Evans Brothers”), appeal from a judgment in
favor of respondent Employers Mutual Casualty Company (“EMC”). This case concerns
EMC’s alleged duty to defend the Evans Brothers in an underlying lawsuit against Bartile
in which the Evans Brothers were not named parties. Appellants challenge the trial
court’s order sustaining EMC’s demurrer to appellants’ first amended complaint and
awarding judgment in favor of EMC. We affirm.
                    FACTUAL AND PROCEDURAL SUMMARY
A.     The Underlying Action and Wyoming Action
       Bartile is a roofing subcontractor. In late 2002, general contractor Jacobsen, Inc.
(“Jacobsen”) hired Bartile to install roofing at a resort complex that F.S. Jackson Hole
Development Company, LLC (“FSJH”) was developing in Jackson Hole, Wyoming. A
dispute arose between Jacobsen and FSJH, and in March 2004, Jacobsen filed an action
in Los Angeles Superior Court against FSJH for money due, Jacobsen Construction
Company, Inc. v. F.S. Jackson Hole Development Company, LLC, Case No. BC312011
(the “Underlying Action”). Jacobsen also cross-complained against various
subcontractors, and in a December 2006 Roe amendment to its third amended cross-
complaint, Jacobsen named Bartile, but not either of the Evans Brothers, as a cross-
defendant.1
       Bartile tendered its defense of the Underlying Action to EMC, from which it held
commercial general liability policies (the “Policies”). It is undisputed that EMC provided
a defense for Bartile under a reservation of rights through June 2009. Appellants allege
that the Evans Brothers, who were not named as defendants or mentioned in the third
amended cross-complaint, are insured individuals under the Policies and properly
tendered a defense to EMC. Appellants further allege that EMC provided an



1
       Since only Jacobsen’s cross-complaints in the Underlying Action are at issue in
this appeal, for simplicity’s sake, we hereafter refer to “cross-defendants” as
“defendants.”

                                             2
unconditional defense to the Evans Brothers during the same period EMC provided a
defense for Bartile.
       In August 2007, EMC sought a declaration in the United States District Court for
the District of Wyoming that it owed no duty to defend Bartile, Employers Mutual
Casualty Company v. Bartile Roofs, Inc., Case No. 07-CV-182-D (the “Wyoming
Action”). In August 2008, the district court held that the claims and actions against
Bartile in the Underlying Action did not trigger EMC’s duty to defend. Bartile appealed
to the United States Court of Appeals for the Tenth Circuit, and in September 2010, the
Tenth Circuit affirmed the district court’s order.
       In June 2009, EMC notified Bartile that it was withdrawing from Bartile’s defense
in the Underlying Action. In October 2009, while Bartile’s appeal to the Tenth Circuit
was pending, Jacobsen filed its fourth amended cross-complaint against Bartile, the only
remaining defendant, adding negligence allegations. The Evans Brothers were not named
as defendants. In light of the new allegations, Bartile tendered its defense and indemnity
of the fourth amended cross-complaint to EMC on October 21, 2009. The letter from
Bartile’s lawyers to EMC stated, “our office is representing Bartile Roofs, Inc.,” and
requested that EMC “please allow this correspondence to serve as our tender of defense
and indemnity on behalf of Bartile Roofs, Inc.” Even though the letter by its terms was
sent on behalf of Bartile only, the Evans Brothers alleged that this letter also tendered
their defense and indemnity request to EMC.
       In November 2009, EMC denied Bartile’s tender, stating, “we respond to your
letter of October 23, 2009 [sic] wherein you request that EMC provide defense and
indemnity to Bartile Roofs, Inc. . . . [¶] It is our conclusion . . . that EMC does not owe
Bartile a defense or indemnity for allegations contained in the new cross-complaint.”
EMC’s denial letter was silent as to the Evans Brothers.
       Later in November 2009, EMC filed a petition for further relief in the Wyoming
Action. It thereafter filed a motion for summary judgment. The district court granted
summary judgment in March 2011, holding that EMC had no duty to defend or
indemnify Bartile against the fourth amended cross-complaint. In April 2011, Bartile

                                              3
appealed the order. The Tenth Circuit affirmed in April 2012, again confirming that
EMC had no duty to defend Bartile in the Underlying Action.
       In January 2010, Bartile prevailed against Jacobsen at trial in the Underlying
Action with the fourth amended cross-complaint as the operative pleading.
B.     The Instant Action
       Appellants filed their complaint against EMC in this action on March 25, 2010.
After a long stay, presumably relating to the active litigation in the district court and
Tenth Circuit, the case was returned to the active docket in May 2013.2 EMC demurred
to the complaint, but instead of opposing, appellants filed a first amended complaint on
July 10, 2013. They alleged causes of action for breach of contract and breach of the
implied covenant of good faith and fair dealing based on EMC’s failure to defend the
Evans Brothers in the Underlying Action after withdrawing its defense in June 2009.
       Appellants alleged that, in addition to Bartile, the Evans Brothers were also
defendants in the cross-complaints, that all three appellants tendered their requests for
defense and indemnity, and that EMC did, for a time, defend both Bartile and the Evans
Brothers in the Underlying Action. Appellants also alleged that although EMC’s defense
of Bartile was provided under a reservation of rights, EMC defended the Evans Brothers
unconditionally, without retention of any right to withdraw policy benefits from them.
This unconditional defense, according to appellants, constituted a waiver by EMC of its
right to withdraw policy benefits from the Evans Brothers or, alternatively, estopped
EMC from doing so. Finally, appellants alleged that while Bartile and the Evans
Brothers all tendered their defense and indemnity of the fourth amended cross-complaint
to EMC, EMC’s denial letter was issued only to Bartile and did not refer to the Evans
Brothers.
       On August 23, 2013, EMC filed its demurrer to appellants’ first amended
complaint. EMC argued that appellants’ first amended complaint was barred by the
doctrines of res judicata and collateral estoppel based on the judgments in the Wyoming

2
       It is unclear why the stay was not lifted until May 2013, given that the district
court and Tenth Circuit proceedings were resolved one year earlier.

                                              4
Action, and that the first amended complaint also failed as to the Evans Brothers because
they were not defendants in the Underlying Action and did not tender their defense to
EMC. In support of its demurrer, EMC sought judicial notice of the third and fourth
amended cross-complaints in the Underlying Action, and certain documents filed in the
Wyoming Action, including the district court and Tenth Circuit orders holding that EMC
had no duty to defend Bartile. Along with its reply, EMC also filed a supplemental
request for judicial notice, seeking judicial notice of Jacobsen’s Roe amendment adding
Bartile to the third amended cross-complaint, a declaration appellants’ counsel previously
filed in this action, and appellants’ original complaint in this action.
       The trial court sustained EMC’s demurrer without leave to amend.3 The court
sustained the demurrer as to Bartile because res judicata barred it, a conclusion Bartile
does not dispute. The court further held that, based on the pleadings, the documents
attached to the pleadings, and documents subject to judicial notice, the Evans Brothers’
individual claims also were barred by res judicata: “Any claim for defense costs
expended in the [Underlying Action] on behalf of Bartile, whether by Bartile or[] the
[Evans Brothers], would be subject to the res judicata effect of the [district court and
Tenth Circuit] orders.” The court also found that “the facts from the [first amended
complaint], its attachments, and those judicially noticed establish there was no breach of
a duty to defend the individuals, who were not named in the subject lawsuits individually,
and there was no tender by those parties of the defense to the insurer.”
       Appellants timely appealed.
                                       DISCUSSION
A.     EMC’s Supplemental Request for Judicial Notice
       We first address appellants’ objection to the court’s judicial notice of three
exhibits filed with EMC’s reply brief: the Roe amendment adding Bartile to the third
amended cross-complaint in the Underlying Action; the declaration appellants’ counsel
filed earlier in this action, which attached a report of trial proceedings from the

3
       The court also ruled on EMC’s motion for sanctions, which is not a subject of this
appeal.

                                               5
Underlying Action; and the original complaint in this action. The court expressly
referenced the Roe amendment and appellants’ counsel declaration in support of its
conclusion that the Evans Brothers were never named as parties to the Jacobsen cross-
complaints.4
       Appellants do not contend that judicial notice of these documents was improper as
a general matter, but that their introduction on reply was improper, because it deprived
them of the reasonable opportunity to respond as required by Section 455, subdivision (a)
of the Evidence Code. That section mandates that if the trial court “has been requested to
take . . . judicial notice of such matter, the court shall afford each party reasonable
opportunity . . . to present to the court information relevant to (1) the propriety of taking
judicial notice of the matter and (2) the tenor of the matter to be noticed.”
       EMC counters that both the original complaint and the declaration were already in
the court’s file. EMC concedes that the Roe amendment itself was new, but argues that
Bartile’s identity as a Roe defendant in the third amended cross-complaint was referenced
in the report of trial proceedings attached to counsel’s declaration.
       As EMC has noted, it did not introduce its reply evidence to address substantive
issues in the first instance or to fill gaps created by appellants’ opposition to the
demurrer. Instead, EMC merely introduced the documents to further its argument that
the Evans Brothers were not named defendants in the Underlying Action. But the
documents were not necessary for that determination. In its original uncontested request
for judicial notice, EMC already had sought judicial notice of the third and fourth

4
        Appellants also take issue with the trial court’s supposed “demands for
‘evidence’” on demurrer. Appellants recite a portion of the court’s tentative order, which
states, “In response to the showing by the moving party, plaintiffs have failed to submit
any evidence whatsoever to show that they actually have evidence that there was some
separate defense of these plaintiffs owed or undertaken, which the court construes as an
admission that the individual plaintiffs, who would be in the best position to provide such
evidence, do not in fact have such evidence.” Appellants have taken this statement out of
context. It is unmistakably part of the court’s tentative order granting EMC’s motion for
sanctions and completely separate from the order sustaining the demurrer. Appellants’
suggestion that the court made demands for evidence on demurrer is therefore not well
taken.

                                               6
amended cross-complaints, neither of which named the Evans Brothers as defendants.
Additionally, appellants’ own brief in opposition to the demurrer admits that the Evans
Brothers “were certainly potential defendants” in the Underlying Action. As potential
defendants, the Evans Brothers by definition could not be actual defendants. This
admission is tantamount to a concession that the Evans Brothers were not, in fact, named
defendants in the Underlying Action. (See Federer v. County of Sacramento (1983) 141
Cal.App.3d 184, 186.) Thus, the court had a sufficient basis to conclude that the Evans
Brothers were not parties to the Underlying Action without the documents in EMC’s
supplemental request for judicial notice. Accordingly, the documents were not of
“substantial consequence to the determination of the action” within the meaning of
Evidence Code section 455, subdivision (a), and the court was not required to provide
appellants with an opportunity to be heard.5
B.     Order Sustaining Demurrer
       1. Standard of Review
       The standard of review we apply to the court’s order sustaining the demurrer is
well-settled. “[W]e examine the complaint de novo to determine whether it alleges facts
sufficient to state a cause of action under any legal theory. . . . [Citations.]” (McCall v.
PacifiCare of Cal., Inc. (2001) 25 Cal.4th 412, 415.) “‘“We treat the demurrer as
admitting all material facts properly pleaded, but not contentions, deductions or
conclusions of fact or law. [Citation.] We also consider matters which may be judicially
noticed.” [Citation.] Further, we give the complaint a reasonable interpretation, reading
it as a whole and its parts in their context. [Citation.]’” (Zelig v. County of Los Angeles
(2002) 27 Cal.4th 1112, 1126.) “‘Where written documents are the foundation of an

5
       On appeal, appellants submitted a declaration by their counsel stating that he
objected at the demurrer hearing to EMC’s supplemental request for judicial notice, the
documents, and the related argument presented by EMC on reply. EMC does not contest
the accuracy of the declaration but contends that it constitutes improper new evidence
and contains impermissible hearsay. We agree with EMC that we should not consider
counsel’s declaration. However, appellants’ argument would fail regardless, because the
declaration discloses that appellants did have an opportunity to be heard on the matter.


                                               7
action and are attached to the complaint and incorporated therein by reference, they
become a part of the complaint and may be considered on demurrer. [Citation.]’”
(Qualcomm, Inc. v. Certain Underwriters at Lloyd’s, London (2008) 161 Cal.App.4th
184, 191.)
       “Under the doctrine of truthful pleading, the courts ‘will not close their eyes to
situations where a complaint contains allegations of fact inconsistent with attached
documents, or allegations contrary to facts that are judicially noticed.’ [Citation.] ‘False
allegations of fact, inconsistent with annexed documentary exhibits [citation] or contrary
to facts judicially noticed [citation], may be disregarded. . . .’ [Citations.]” (Hoffman v.
Smithwoods RV Park, LLC (2009) 179 Cal.App.4th 390, 400 (Hoffman).)
       We will affirm a “‘trial court’s decision to sustain the demurrer [if it] was correct
on any theory. [Citation.]’ [Citation.] Accordingly, ‘we do not review the validity of the
trial court’s reasoning but only the propriety of the ruling itself. [Citations.]’ [Citation.]”
(Berg & Berg Enterprises, LLC v. Boyle (2009) 178 Cal.App.4th 1020, 1034-1035 (Berg
& Berg).)
       2.     The Court Properly Sustained EMC’s Demurrer6
       Appellants’ theory of the case may be summarized as follows. The Evans
Brothers, as either defendants or potential defendants in the Underlying Action, tendered
a defense, along with Bartile, to EMC. EMC agreed to and did provide a defense in the
Underlying Action for Bartile and the Evans Brothers. While EMC defended Bartile
under a reservation of rights, EMC provided an unconditional and unqualified defense for
the Evans Brothers. When the district court issued its declaratory judgment, affirmed by
the Tenth Circuit, holding that EMC had no duty to defend Bartile, EMC thereafter

6
        Although not entirely clear, it does not appear that appellants intended to appeal
the trial court’s demurrer order as it applied to Bartile. If appellants did intend to do so,
they have forfeited that appeal by failing to adequately raise and argue the matter.
(Cahill v. San Diego Gas & Elec. Co. (2011) 194 Cal.App.4th 939, 956.) Further,
appellants have not argued on appeal that they should have been given leave to amend,
and, accordingly, they have forfeited that issue. (Kelly v. CB & I Constructors, Inc.
(2009) 179 Cal.App.4th 442, 451-52 (Kelly); Lyons v. Chinese Hospital Assn. (2006) 136
Cal.App.4th 1331, 1336, fn. 2 (Lyons)).

                                               8
wrongfully ceased defending the Evans Brothers because the district court judgment only
applied to Bartile, not the Evans Brothers. Because EMC agreed to provide an
unconditional and unreserved defense to the Evans Brothers, EMC was barred by the
doctrines of waiver and estoppel from withdrawing its defense. EMC continued its
wrongful repudiation of the Evans Brothers’ defense when Jacobsen filed its fourth
amended cross-complaint because, although not expressly named as defendants in that
pleading, the Evans Brothers were either defendants or potential defendants encompassed
within its fictitious defendant allegations. The subsequent decisions by the district court
and Tenth Circuit, again, applied only to Bartile.
       In light of appellants’ pleadings, the documents appellants attached to their
pleadings, and documents subject to judicial notice, we find this theory unavailing. We
conclude that the trial court properly held that the Evans Brothers did not tender a
defense and that EMC did not breach its duty to defend the Evans Brothers. Therefore,
we hold that the court did not err in sustaining EMC’s demurrer.
              a.     Duty to Defend Law
       “‘Liability insurance usually imposes two separate obligations on the insurer: (1)
to indemnify its insured against third party claims covered by the policy (by settling the
claim or paying any judgment against the insured); and (2) to defend such claims against
its insured (by furnishing competent counsel and paying attorney fees and costs.)’
[Citation.] The duty to defend is generally determined ‘from all of the information
available to the insurer at the time of the tender of the defense,’ although later
developments may impact the insurer’s duty to defend. [Citations.] [Citations.] [¶] The
duty to defend is broader than the duty to indemnify. Indemnification is due for claims
actually covered by the policy but an insurer ‘must defend a suit which potentially seeks
damages within the coverage of the policy.’ [Citation, original italics.] ‘[A] bare




                                              9
“potential” or “possibility” of coverage [is] the trigger of a defense duty.’ [Citation.]”
(Howard v. American Nat. Fire Ins. Co. (2010) 187 Cal.App.4th 498, 519-20.)7
       The duty to defend arises when the insured tenders defense to the insurer. (Buss v.
Superior Court (1997) 16 Cal.4th 35, 46 (Buss); OneBeacon America Ins. Co. v.
Fireman’s Fund Ins. Co. (2009) 175 Cal.App.4th 183, 200) (OneBeacon).) “‘Tender can
be either formal or constructive. [Citations.]’ [Citation.] Thus, although the duty to
defend ordinarily arises after receipt of an actual tender of defense, it may arise upon
receipt of ‘constructive notice’ of the contractual duty to defend. [Citation.]” (Ibid.)
Under the doctrine of constructive tender, “given the appropriate circumstances, the law
will charge a party with notice of all those facts which he might have ascertained had he
diligently pursued the requisite inquiry. [Citations.]” (California Shoppers, Inc. v. Royal
Globe Insurance Co. (California Shoppers) (1985) 175 Cal.App.3d 1, 37.)
              b.     The Evans Brothers Did Not Tender Their Defense
       Appellants allege that the Evans Brothers “tendered their request for defense and
indemnity against the Jacobsen cross-complaints to EMC,” and that “[o]n October 21,
2009 . . . the plaintiffs tendered the defense and indemnity of the Jacobsen Fourth
Amended Cross-Complaint to EMC.” Appellants contend that, on demurrer, these
allegations must be accepted as true. We disagree.
       Appellants’ tender allegations are contradicted by the October 21, 2009, letter
tendering the fourth amended cross-complaint to EMC, attached as Exhibit 3 to the first
amended complaint. The letter on its face constitutes a tender by Bartile, not the Evans
Brothers. Appellants nonetheless claim the October 21, 2009, letter actually supports

7
       Based solely on the Tenth Circuit’s choice of law determination, EMC contends
that Wyoming law applies to the analysis of its duty to defend. EMC has not made a
serious attempt to support its argument. It fails to discuss choice of law, conflict of laws,
comity, or full faith and credit and to analyze why, under any of these principles,
Wyoming law, as opposed to California law, should apply. In fact, both EMC and
appellants cite only California law in their duty to defend analysis. Accordingly, we
deem the issue forfeited and apply California law in our duty to defend analysis.
(AICCO, Inc. v. Insurance Co. of North America (2001) 90 Cal.App.4th 579, 595.)


                                             10
their allegations. They argue that the plural possessive in the statement, “please allow
this correspondence to serve as our tender of defense and indemnity on behalf of Bartile
Roofs, Inc.,” indicates inclusion of the Evans Brothers. We reject this argument. The
tender letter was sent by Bartile’s attorneys, who opened the letter with the statement,
“our office is representing Bartile Roofs, Inc. in this matter.” The use of “our” in both
statements clearly refers to Bartile’s attorneys, and not to the Evans Brothers, who are not
mentioned anywhere in the letter. Further, the letter unequivocally states that it shall
serve as a tender “on behalf of Bartile Roofs, Inc.” and makes no reference whatsoever to
the Evans Brothers. Because the October 21, 2009, letter tendering Bartile’s defense of
the fourth amended cross-complaint contradicts the allegations that the Evans Brothers
tendered their defense to EMC, we disregard these allegations. (Hoffman, supra, 179
Cal.App.4th at p. 400.) Accordingly, appellants have not adequately alleged a formal
tender of the Evans Brothers’ defense.
       Alternatively, appellants contend that the doctrine of constructive tender applies.
Appellants appear to argue that even if the Evans Brothers failed to make a formal tender,
EMC should be charged with notice of the supposed fact that the Evans Brothers were
defendants, or at least potential defendants, in the Underlying Action, giving rise to a
duty to defend. We disagree. Even if EMC had engaged in a full investigation, it would
not have been on constructive notice of any duty to defend the Evans Brothers because
they were not defendants in the Underlying Action, and their supposed status as potential
defendants is too speculative to put EMC on notice of a duty to defend.
       Appellants allege that the Evans Brothers “were each defendants in each of the
Jacobsen cross-complaints.” As discussed, these allegations are directly contradicted by
judicially noticed documents, which make plain that only Bartile—and not the Evans
Brothers—was a defendant in the Underlying Action. Moreover, by advancing the
argument that the Evans Brothers were potential defendants in the Underlying Action,
Appellants have conceded that that the Evans Brothers were not named defendants in the
Underlying Action.



                                             11
       Inconsistently with their allegations that the Evans Brothers were actually
defendants, appellants contend on appeal that the Evans Brothers fell “within the group of
fictitiously named cross-defendants” in the fourth amended cross-complaint and were,
“overtly potential cross-defendants” in the Underlying Action. Appellants further note
that “Lew Evans” and a “Mr. Evans” were specifically mentioned in the fourth amended
cross-complaint. Appellants argue that as potential defendants the Evans Brothers faced
potential liability and were entitled to a defense. We reject this argument.
       Appellants’ purported status as potential defendants is too speculative to trigger
the principle of potential liability under an insurance policy. “An insured may not trigger
the duty to defend by speculating about extraneous ‘facts’ regarding potential liability or
ways in which the third party claimant might amend its complaint at some future date.”
(Gunderson v. Fire Ins. Exchange (1995) 37 Cal.App.4th 1106, 1114.) Nor may an
insured “speculate about unpled third party claims to manufacture coverage.” (Hurley
Construction Co. v. State Farm Fire & Casualty Co. (1992) 10 Cal.App.4th 533, 538.)
This is precisely what the Evans Brothers seek to do. Appellants speculate that Jacobsen
could have at any time amended its fourth amended cross-complaint to add the Evans
Brothers. But the law does not impose a duty to defend on insurers based on such
conjecture. And if the law does not impose a duty to defend under such circumstances,
EMC clearly cannot be charged with notice of a duty to defend the Evans Brothers based
upon the same conjecture and speculation. (See California Shoppers, supra, 175
Cal.App.3d at p. 37.) Accordingly, there was no constructive tender of the Evans
Brothers defense.
              c.     EMC Did Not Breach Its Duty to Defend the Evans Brothers
       The duty to defend only arises upon the insured’s tender of a defense. (Buss,
supra, 16 Cal.4th at p. 46; OneBeacon, supra, 175 Cal.App.4th at p. 200). Here, the
Evans Brothers never formally or constructively tendered their defense to EMC.
Therefore, EMC did not have a duty to defend the Evans Brothers.
       Based on our conclusion that the Evans Brothers did not tender their defense and
that EMC accordingly had no duty to defend, we must disregard as unsupported by fact

                                            12
or law appellants’ further allegations that EMC provided and later withdrew its
unconditional and unqualified defense of the Evans Brothers.8 (Hoffman, supra, 179
Cal.App.4th at p. 400. [“‘False allegations of fact, inconsistent with annexed
documentary exhibits [citation] or contrary to facts judicially noticed [citation], may be
disregarded. . . .’ [Citation.]”)
       Appellants’ causes of action for breach of contract and breach of the implied
covenant of good faith and fair dealing are premised on EMC’s alleged failure to defend
the Evans Brothers after its withdrawal of their defense. However, EMC never had a
duty to defend the Evans Brothers, so it could not have breached such a duty. Having
failed to allege a breach in either contract claim, appellants have failed to state facts
sufficient to constitute a cause of action. The court accordingly did not err in sustaining
EMC’s demurrer.9
                                       DISPOSITION
       The judgment is affirmed. EMC is awarded its costs on appeal.
              NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS


                                        COLLINS, J.


We concur:


EPSTEIN, P. J.


WILLHITE, J.



8
       Because we reject appellants’ allegations that EMC provided an unconditional
defense, we also reject their allegations that the doctrines of waiver and estoppel were
triggered by EMC’s supposed withdrawal of its defense.
9
      Because we conclude EMC did not have a duty to defend, we need not address
whether the Wyoming Action is res judicata on this action.

                                              13
