                                                                           FILED
                           NOT FOR PUBLICATION                              FEB 26 2010

                                                                       MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



INTEGON PREFERRED INSURANCE                      No. 09-15072
COMPANY,
                                                 D.C. No. 2:07-cv-00526-TMB-
             Plaintiff - Appellee,               KJM

  v.
                                                 MEMORANDUM *
FRANCESCA EISENBRANDT;
CONNIE EISENBRANDT; SCOTT
EISENBRANDT, SR.,

             Intervenors - Appellants,

SUSANA ISZTOJKA, DBA California
Gold Star Hauling,

             Defendant.



                    Appeal from the United States District Court
                       for the Eastern District of California
                   Timothy M. Burgess, District Judge, Presiding

                     Argued and Submitted February 11, 2010
                            San Francisco, California




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Before: O’SCANNLAIN, TROTT and PAEZ, Circuit Judges.

      Francesca, Connie, and Scott Eisenbrandt (collectively “the Eisenbrandts”),

Defendant-Intervenors, appeal the district court’s grant of summary judgment in

favor of Plaintiff Integon Preferred Insurance Company (“Integon”). We have

jurisdiction under 28 U.S.C. § 1291. We affirm in part and reverse in part.

      We reverse the district court’s grant of summary judgment regarding Jeff

Mangelli’s status as Integon’s agent and whether Susana Isztojka made material

misrepresentations because material issues of fact remain. See Fed. R. Civ. P.

56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986).

      A reasonable jury could find that Jeff Mangelli acted as both Integon’s agent

and Susana Isztojka’s broker because (1) Integon twice referred to Mangelli as its

agent in the complaint, indicating that Integon at one point believed Mangelli acted

as its agent in the transaction; and (2) according to Susana Isztojka’s declaration,

Mangelli filled out and submitted her application to Integon, conducted a

background check on Ian Isztojka and authorized him as an additional driver, and

computed an increased premium which Integon accepted in June 2006. See Fraser-

Yamor Agency, Inc. v. County of Del Norte, 137 Cal. Rptr. 118, 125-26 (Ct. App.

1977) (describing an insurance agency’s dual role as an agent and broker in one

insurance transaction); Maloney v. R.I. Ins. Co., 251 P.2d 1027, 1030-31 (Cal. Ct.


                                          -2-
App. 1953) (holding that in a given transaction, “[t]he actual relationship is

determined by what the parties do and say, not by the name they are called”)

(citations omitted).

      The district court erred in finding that Susana Isztojka’s alleged material

misrepresentations were irrelevant because this finding was premised upon the

district court’s earlier finding that Mangelli did not act as Integon’s agent.

      The district court erred in concluding that the defense to rescission set forth

in Barerra v. State Farm Mutual Automobile Insurance Co., 456 P.2d 674 (Cal.

1969) (in bank), is unavailable to the Eisenbrandts, and in the alternative, that

Integon could not have conducted a reasonable investigation as to Ian Isztojka’s

insurability. The district court relied on its conclusion that Ian was never added to

the policy, which is a genuine issue of material fact given Mangelli’s disputed

status. If it is found on remand that Ian was indeed an insured under the policy,

then the Barerra defense applies, and it will be up to the trier of fact to determine

whether Integon made “a reasonable investigation within a reasonable time after

the issuance of the policy” as to Ian’s insurability. Id. at 689.

      Lastly, we affirm the district court’s conclusion that Integon is not equitably

estopped from rescinding the contract under a provision of the California Fair

Claims Settlement Practices Regulations, California Administrative Code, title 10,


                                           -3-
sections 2695.7(b), (c)(1). Integon’s failure to accept or deny the Eisenbrandts’

claim within 40 days is not related to whether or not Susana Isztojka made

misrepresentations and therefore cannot equitably estop Integon’s request for

rescission. See Spray, Gould & Bowers v. Assoc. Int’l Ins. Co., 84 Cal. Rptr. 2d

552, 556-57 (Ct. App. 1999); see also City of Hollister v. Monterey Ins. Co., 81

Cal. Rptr. 3d 72, 99 (Ct. App. 2008).

      We have considered and reject all other issues raised on appeal.

      Intervenors-Appellants shall recover their costs on appeal.

      AFFIRMED in part, REVERSED in part.




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