Superpoweraffiliates.Com, Inc. v. Transportation Insurance

MEMORANDUM **

Superpoweraffiliates.com, Inc. (SPA) appeals the district court’s grant of summary judgment in its action asserting breach of contract and bad faith against Transportation Insurance Company. We have jurisdiction pursuant 28 U.S.C. § 1291 , review the grant of summary judgment de novo, Whitman v. Mineta, 541 F.3d 929, 931 (9th Cir.2008), and affirm.

SPA argues that the insurance company breached its duty to defend by failing to consider extrinsic evidence, its “claim letter,” asserting potentially covered claims of advertising injury. The “claim letter” in this case asserted new facts and claims not asserted in SPA’s underlying action against A-Frame and was faxed to the insurance company after the insurance company declined to defend and indemnify and after the parties had settled the underlying action. The underlying action was not amended to assert these claims. The letter did not create a duty to defend and the insurance company had no continuing duty to investigate or to change its decision after receiving the letter. Safeco Ins. Co. of Am. v. Parks, 122 Cal.App.4th 779 , 19 Cal.Rptr.3d 17, 24-5, 27-8 (2004); Gunderson v. Fire Ins. Exck, 37 Cal.App.4th 1106 ,…