Housing Group v. PMA Capital Ins. Co., 123 Cal. Rptr. 3d 603, 609 (2011)

The court equated a failure to defend with a denial of a defense because it evidenced non-performance precluding it from securing a right to arbitrate a dispute over the reasonableness of rates under Cal. Civ. Code §2860(c), citing Atmel Corp. v. St. Paul Fire & Marine Ins. Co., 426 F. Supp. 2d 1039, 1047 (N.D. Cal. 2000).

[A]n acceptance of Caliber One’s position-that “insurers always can take advantage of [section] 2860 despite immediately failing to meet their burden to defend,”-would encourage insurers to reject their Cumis obligations for as long as they chose because they knew they could invoke the limitations and remedies of section 2860 at any time.