NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

KITCHING, J.

INTRODUCTION

Pacific Environmental Resources Corporation (appellant), appeals from the grant of summary judgment in favor of defendant insurance brokers1 in appellant's suit for professional negligence arising from its insurance brokers' failure to obtain insurance for appellant's participation in the construction of a wastewater treatment facility. Appellant alleged that its insurance broker obtained an insurance policy that failed to identify appellant as a named insured and did not require the insurer to defend appellant against any claim. The trial court granted summary judgment because the two-year statute of limitations of Code of Civil Procedure section 339(1) barred the action as untimely. We find that appellant discovered, or should have discovered, its brokers' negligence not later than October 16, 2006, and that appellant sustained damages more than two years before filing its complaint on November 20, 2008. We reject appellant's argument that the statutory limitations period was equitably tolled until a formal, written denial of coverage by the insurer, because the equitable tolling doctrine does not apply to insurance brokers, such as the defendants. We affirm the grant of summary judgment on the ground that the statute of limitations barred the action.

FACTUAL AND PROCEDURAL HISTORY

Appellant's Contract With Engineering Firm:

On March 5, 2003, appellant and Trimark Communities LLC entered into a contract for the design and building of the modernization and expansion of a wastewater treatment facility (the facility) in Tracy, California. Appellant and Pacific Advanced Civil Engineering, Inc. (Engineering) entered into a contract for Engineering to provide the design and engineering services for the facility.

At that time the headquarters of appellant and of Engineering were located in the same building, and appellant and Engineering had some common shareholders.

The Insurance Policy:

Appellant's complaint alleges that Engineering was contractually obligated to obtain a project "specific `design team' errors and omissions insurance" policy that also named appellant as an additional insured. Appellant contacted Craig M. Houck of Interwest Insurance Services Inc. (Interwest) to assist it in obtaining insurance for the project. Appellant, Houck and Interwest admit that Houck and Interwest were appellant's agents for purposes of obtaining this insurance. Houck contacted RA&MCO Insurance Services, a dba of Inspro Corporation (RA&MCO) on behalf of appellant and Engineering to attempt to obtain insurance for the project. RA&MCO is an agent for Great American Assurance Company (Great American) with authority to bind insurance. Brian Cullen, the president of appellant, sent an application for the insurance policy to Interwest and RA&MCO. Mark Krebs, the president of Engineering, signed that application, which listed Engineering as the applicant. The application listed appellant as the client/contractor/general contractor, specifies that the "general contractor to be included for vicarious liability," and stated that a member of the Design/Professional Team planned to act as general contractor on the project.

In a February 28, 2003, letter to RA&MCO, Houck instructed that "[i]n addition to providing coverage for the entire design team, coverage should be included for the general contractor's ([appellant's]) vicarious liability." RA&MCO's March 19, 2003, letter to Houck provides a quote for the insurance and identifies a "Vicarious Interest Endorsement." On March 20, 2003, appellant's president Cullen instructed Houck and RA&MCO to bind the policy, and stated that "the design team policy shall be in the name of [Engineering] and they will be responsible for the deductible. [Appellant] needs to be listed on the policy for vicarious liability purposes." On March 20, 2003, the policy was bound and RA&MCO informed appellant's agent, Houck, that the policy was bound with a Vicarious Interest Endorsement. The policy was issued and sent to appellant/Engineering on June 20, 2003, via Houck. The cover letter requested that Houck review the policy to ensure that the coverage provided is as requested.

The policy, effective from March 1, 2003, to November 30, 2004, provided a $3,000,000 limit insuring against negligent acts, errors or omissions of the policyholder, Engineering (as designer and engineer). Endorsement No. 3, "Additional Named Insured As Respects a Specific Project," listed additional named insureds as: a structural engineering company; an electrical engineering company; a geotechnical engineering company; and an architectural firm. The Vicarious Interest Endorsement provided that "[w]e shall indemnify the [appellant] Pacific Environmental Resources Corporation for liabilities, damages and/or judgments, and reasonable attorney's fees and related costs (a) to the proportionate extent caused by the negligent acts, errors or omissions of insureds and (b) in excess of the deductible obligation and subject to all of the terms, conditions and exclusions of the policy." The Vicarious Interest Endorsement further provided that "[e]xcept as specifically stated in this Endorsement, we shall have no duties and/or obligations to [appellant] nor does [appellant] become an insured under this coverage."

Appellant Contracts With Construction Company:

On April 9, 2004, appellant entered into a subcontract with ARB, Inc. (ARB) to construct water tanks, operations buildings, and other parts of the facility. ARB performed construction work on the facility from April 2004 through March 2005. In mid-2005 ARB sent a "Request for Equitable Adjustment" to appellant requesting that appellant pay more than $1.3 million to ARB.

ARB Sues Appellant and the Matter Is Sent to Arbitration:

On August 23, 2005, ARB filed a civil complaint against appellant for damages and equitable relief in superior court. ARB's complaint alleged that it had not been fully paid for its work on the facility under the contract with appellant, that appellant authorized at least $1.3 million in additional work and change orders for which ARB had not been paid, and that appellant's scheduling and coordination had caused ARB substantial delays in construction of the facility. The superior court ordered binding arbitration before the American Arbitration Association (AAA) and stayed the action pending conclusion of the arbitration.

Appellant Pays Attorney's Fees to Defend Itself in the Arbitration:

In early 2006, before tendering to Great American, appellant began incurring defense costs in the arbitration. Between January 17, 2006 and July 17, 2006, appellant paid AAA $43,060 in administrative expenses and fees.

Defendant insurance brokers stated in their separate statement that between January and December 2006, appellant incurred approximately $312,428.18 in attorney's fees and other costs, and a substantial portion of that amount was attributable to its attorneys' performance of pre-hearing discovery and motion practice in preparation for the AAA hearing scheduled to begin in late 2006. Appellant disputed this allegation, citing the same evidence as that cited by defendants, without explanation of how or why the evidence was disputed. Defendant insurance brokers alleged that a portion of these defense costs was not subject to reimbursement under the Vicarious Interest Endorsement, because they did not relate to design issues.

Appellant Evaluates Coverage Under the Subject Policy:

On September 1, 2006, appellant's attorneys reviewed the policy and related documentation, and billed appellant for reviewing e-mails and documentation relating to insurance and reviewing the design policy regarding possible coverage for appellant.

Appellant Tenders Claim to Insurer Great American:

On September 19, 2006, appellant's new insurance broker, Mr. Nitzen of Milestone Risk Management & Insurance Services, first tendered to Great American, via RA&MCO, its defense and indemnity for ARB's claims. Nitzen's letter enclosed a document, "General Liability Notice of Occurrence/Claim," dated September 12, 2006, stating that appellant's president had reported the claim to Milestone. In the "remarks" section of the document, Nitzen stated: "Dispute is between ARB and [appellant]. [Appellant] has coverage for vicarious liability through the E&O policy of [Engineering]."

Great American assigned Michael Conradson to handle appellant's claim. On September 25, 2006, Nitzen forwarded a binder containing ARB's Request for Equitable Adjustment at issue in the arbitration. Nitzen's cover letter enclosing the binder stated: "Attached, you will find ARB's Request for Equitable Adjustment. This spells out the entire claim against our mutual client, [Engineering] (and vicariously, [appellant])."

Great American Tells Nitzen There Is No Defense Obligation:

On October 2, 2006, Conradson told Nitzen there was no claim against Engineering. Nitzen said appellant was the entity claiming coverage. Conradson told Nitzen that "[appellant] was not an insured under the [Engineering] policy and that the policy provided no defense obligation to [appellant] for the [claim by ARB]."

Appellant Requests That Great American Advance Defense Costs:

On October 10, 2006, appellant's attorney requested that Great American "advance defense costs and provide coverage under any portion of the [insurance policy]."

Great American Denies Coverage:

On October 16, 2006, Conradson wrote to Mark Krebs of Engineering, who forwarded the letter to appellant and its attorneys. Conradson's letter states: "On 9/26/06 I received a three-ring binder containing the REA (Request for Equitable Adjustment) . . . . I reviewed the REA and while it clearly made allegations that some of the damages claimed were the result of alleged design error by [Engineering] and/or [Engineering's] sub-consultants, it clearly did not make any claims for recovery against [Engineering]—presumably because ARB, Inc. was in contractual privity with only [appellant]." Conradson's letter further states: "Mr. Nitzen [talked by] phone on 10/02/06. I told Mr. Nitzen that I'd reviewed the REA and that I saw no claim therein against [Engineering] by ARB, Inc. Clearly the REA makes references to alleged design errors but no direct claim was included in the REA against [Engineering], or any of the sub-consultants, who were also insureds on the captioned policy. I specifically inquired of Mr. Nitzen just who was making a claim for coverage under the policy, and he informed me that it was [appellant] that was seeking coverage under the captioned policy." Conradson's letter further stated: "I informed Mr. Nitzen that [appellant] was not an insured under the captioned policy and that the policy provided no defense obligation to [appellant] for the REA (I did not yet know of the existence of the captioned AAA Arbitration at this point). ¶ That led to a joint call with [Nitzen and other Milestone employees] to discuss the effect of the Vicarious Interest Endorsement that is part of the captioned policy."2

In his October 16, 2006, letter to Krebs of Engineering, Conradson continued: "I pointed out that while the Vicarious Interest Endorsement does, indeed, provide coverage for indemnifying [appellant], on a proportional basis to the extent of the design team's negligent acts, errors or omissions, the endorsement clearly and unambiguously states that [Great American] has the right to defend [appellant], if it so chooses, but that it has no separate duty or obligation to defend [appellant]. The Vicarious Interest Endorsement also ends with the clear, and unambiguous, statement that . . . nor does [appellant] [become] an insured under this coverage."

Engineering forwarded Conradson's October 16, 2006, letter to appellant and its attorneys.

Appellant Files the Subject Lawsuit:

Appellant filed its action against defendants on November 20, 2008. Appellant's complaint named as defendants Interwest Insurance Services, Inc., dba Noack & Dean; Craig M. Houck; Inspro Corporation, dba RA&MCO Insurance Services; and Great American Assurance Company. The complaint alleged causes of action for breach of contract against Interwest for professional negligence and for negligent misrepresentation against Houck, Interwest, RA&MCO, and Great American; and for breach of contract and breach of the implied covenant of good faith and fair dealing against Great American.3

On September 21, 2009, RA&MCO moved for summary judgment on the ground that the two-year statute of limitations applied to appellant's causes of action against RA&MCO, which accrued more than two years before appellant filed its complaint and were therefore barred. On November 24, 2009, Interwest and Houck moved for summary judgment on this ground. Before Interwest's motion was heard, the trial court granted RA&MCO's motion.

Judgment was entered in favor of RA&MCO on appellant's complaint on December 22, 2009.

In a stipulated judgment, defendants Interwest and Houck and appellant stipulated that RA&MCO, Houck, and Interwest were similarly situated, that Houck and Interwest had filed a motion for summary judgment asserting that Code of Civil Procedure section 339 barred all causes of action that appellant had alleged against them for the same reasons the trial court granted summary judgment in favor of RA&MCO, and that if the trial court properly granted summary judgment in favor of RA&MCO, that Houck and Interwest were also entitled to judgment in their favor. To expedite the filing of appellant's appeal on the issue of the statute of limitations, appellant, Houck, and Interwest stipulated that judgment on all causes of action brought against Houck and Interwest may be granted on the grounds that Code of Civil Procedure section 339 barred those causes of action. The stipulated judgment was entered on January 15, 2010.

Appellant filed a timely notice of appeal from both judgments.

ISSUE

Appellant claims that the statute of limitations begins to run upon discovery of negligence and resulting damages, and the brokers' negligence did not cause damage until the insurer denied a defense.

STANDARD OF REVIEW

"A trial court properly grants summary judgment where no triable issue of material fact exists and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).) We review the trial court's decision de novo, considering all of the evidence the parties offered in connection with the motion (except that which the court properly excluded) and the uncontradicted inferences the evidence reasonably supports. [Citation.] In the trial court, once a moving defendant has `shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established,' the burden shifts to the plaintiff to show the existence of a triable issue; to meet that burden, the plaintiff `may not rely upon the mere allegations or denials of its pleadings . . . but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to that cause of action . . . .' [Citations.]" (Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 476-477.)

DISCUSSION

The theory of appellant's complaint was that its insurance brokers negligently failed to procure an insurance policy providing appellant with the right to a defense, and instead erroneously procured a policy giving the insurer the option, but not the obligation, to defend appellant.

Specifically, appellant's complaint alleged that as a result of the decision by the insurer, Great American, not to defend appellant, appellant was forced to defend itself in the arbitration of ARB's claim and to incur substantial defense fees and costs. Appellant's complaint alleged that "[appellant] would not have incurred any defense fees and costs had the brokers not breached their contractual and/or professional duties to [appellant] by failing to procure the required insurance with [appellant] as an `additional insured' under the `design team' errors and omissions Policy, and by misrepresenting to [appellant] that they had in fact done so. If [appellant] had been named as an `additional insured,' it would have had an absolute right to a defense of the ARB claim under the Policy."

The parties agree that the two-year statute of limitations for professional negligence in Code of Civil Procedure section 339(1) applies to this complaint. The issue in this appeal is when the statutory limitations period began to run.

A. Commencement of the Statutory Limitations Period

A civil action can only be commenced after the cause of action has accrued. Generally a cause of action accrues on the date the cause of action is complete with all its elements, that is, when the wrongful act is done or the wrongful result occurs and the consequent liability arises. (Hydro-Mill Co. Inc. v. Hayward, Tilton & Rolapp Ins. Associates, Inc. (2004) 115 Cal.App.4th 1145, 1160. (Hydro-Mill)) "`In a professional malpractice context, accrual of the cause of action does not await the plaintiff's discovery that the facts constituting the wrongful act or omission constitute professional negligence, i.e., the plaintiff's discovery that a particular legal theory is applicable based on the known facts. If one has suffered appreciable harm and knows or suspects that professional blundering is its cause, the fact that the professional has not yet advised the plaintiff [of the mistake] does not postpone commencement of the limitations period.'" (Ibid.)

" `A cause of action for professional negligence does not accrue until the plaintiff (1) sustains damage and (2) discovers, or should discover, the negligence.'" (Hydro-Mill, supra, 115 Cal.App.4th at p. 1161.)

B. Appellant Discovered, or Should Have Discovered, Its Broker's Negligence Not Later Than October 16, 2006

The basis for appellant's claim against its insurance brokers is that these defendants failed to procure "design team" errors and omissions insurance coverage in accordance with the terms of the appellant-Engineering contract requiring that appellant be named as an additional insured on any design team errors and omissions insurance policies and in accordance with appellant's desire to be provided a defense and indemnity for any claims made against it arising out of the professional conduct of appellant and/or its sub-consultants.

The policy, effective from March 1, 2003, to November 30, 2004, provided a $3 million limit insuring against negligent acts, errors or omissions of the policyholder, appellant (as designer and engineer). Endorsement No. 3, "Additional Named Insured As Respects A Specific Project," listed other companies not involved in this appeal as additional named insureds. The Vicarious Interest Endorsement provides that "[w]e shall indemnify [appellant] for liabilities, damages and/or judgments, and reasonable attorney's fees and related costs (a) to the proportionate extent caused by the negligent acts, errors or omissions of insureds and (b) in excess of the deductible obligation and subject to all of the terms, conditions and exclusions of the policy." The Vicarious Interest Endorsement further provides that "[e]xcept as specifically stated in this Endorsement, we shall have no duties and/or obligations to [appellant] nor does [appellant] become an insured under this coverage."

Thus the policy did not list appellant as an additional named insured. The Vicarious Interest Endorsement specified that other than the duty of indemnification of appellant, the insurers had no duties or obligations to appellant, and that appellant was not an insured. When the policy was issued it was sent to appellant on June 20, 2003. Thus appellant discovered or should have discovered that it was not a named insured and that the insurer did not have a duty to defend appellant on June 20, 2003, or shortly thereafter.

Great American informed appellant's attorney on October 2, 2006, that the Vicarious Interest Endorsement provided that Great American had no separate duty or obligation to defend appellant. Appellant's attorney, on October 10, 2006, made a written demand that Great American advance defense costs and provide coverage under the policy.

Great American received notice of the ARB arbitration action in the form of appellant's demand for coverage under the policy. In an October 16, 2006, letter Great American notified Krebs of Engineering that the ARB Request for Equitable Adjustment made no claims against Engineering as an insured under the policy, that appellant was not an insured under the policy, and that the policy provided no defense obligation to appellant. Krebs forwarded this letter to appellant.

Thus appellant discovered, or should have discovered, the negligence of its insurance brokers no later than October 16, 2006, more than two years before appellant filed the complaint on November 20, 2008.4

C. Appellant Sustained Damages More Than Two Years Before Filing Its Complaint

The second requirement for accrual of a cause of action is that the plaintiff must sustain damages. The evidence shows that appellant sustained damages well before November 20, 2006.

In mid-2005, ARB sent its Request for Equitable Adjustment to appellant requesting that appellant pay more than $1.3 million, and filed a civil complaint against appellant on August 23, 2005. The case was ordered to arbitration. It was undisputed that appellant began incurring defense costs in that arbitration. Between January 17, 2006 and July 17, 2006, appellant paid the American Arbitration Association $43,060 in administrative expenses and fees related to the arbitration. Defendants allege that between January and December 2006, appellant incurred approximately $312,428.18 in attorney's fees and other costs, and a substantial portion of that amount was attributable to its attorneys' performance of pre-hearing discovery and motion practice in preparation for the AAA hearing scheduled for late 2006. Appellant denied this allegation, citing the same evidence that defendants cited, without explaining how or why the evidence was disputed. From the evidence of appellant's demand to Great American for payment of defense costs in the arbitration, it appears that appellant incurred attorney's fees of $129,850.00, costs of $4,637.16, and AAA costs of $64,180.00 between January and October of 2006 in the arbitration.

It was undisputed that in September 2006, appellant's attorney billed appellant for reviewing documentation, e-mails, and the policy relating to insurance and possible coverage for appellant. There were other attorney's fees billed to appellant for review of documents, e-mails, and policies regarding insurance coverage during September 2006.

Thus the evidence shows that appellant sustained damages, in the form of attorney's fees and costs in defending the arbitration, more than two years before appellant filed the complaint on November 20, 2008.

D. The Equitable Tolling Doctrine Does Not Apply to Insurance Brokers, and the Statutory Limitations Period Was Not Tolled in This Case

Appellant claims that it did not sustain damages until December 5, 2006, when Great American informed appellant's attorney of its election not to defend appellant in the arbitration. Appellant argues that it did not know, and could not have known, that it had sustained damage resulting from the brokers' failure to procure a policy providing a defense until Great American decided whether it would defend appellant.

Appellant first relies on Walker v. Pacific Indemnity Co. (1960) 183 Cal.App.2d 513 (Walker), in which an insurance broker negligently secured $15,000 of automobile liability insurance instead of the $50,000 amount ordered by Merrill, the vehicle owner. After Merrill's truck collided with an automobile and injured Walker, Walker obtained a judgment for $100,000 against Merrill, whose insurer paid only $15,000 of that judgment. Merrill's broker was sued for negligently procuring only $15,000 of insurance instead of $50,000, and judgment was against the broker for $35,000. In the trial court, and on appeal, the broker asserted the bar of the statute of limitations. The issue was when the cause of action accrued. It was clear that the breach of duty occurred when the broker negligently procured a $15,000 policy instead of the requested $50,000 policy. Walker held, however, that there was no injury or damage until judgment against plaintiff, for an amount in excess of his $15,000 policy, was entered in Walker's action against Merrill. That was because "it is uncertainty as to the fact of damage, rather than its amount, which negatives the existence of a cause of action [citations]. In the case at bar, the fact of any damage at all was completely uncertain until judgment in the personal injury action." (Id. at p. 519)

It is in this respect that Walker differs from this appeal. Even though his broker negligently secured the insurance policy for an amount less than Merrill requested, that policy entitled Merrill both to indemnification and to a defense. (Walker, supra, 183 Cal.App.2d at p. 516.) Because his insurer provided Merrill with a defense to Walker's personal injury action, he sustained no damage until entry of a judgment against him which exceeded the amount which the insurer was bound to indemnify him. Appellant here, by contrast, sustained damage during the arbitration by incurring attorney's fees and costs, not paid for by Great American, during the pendency of that arbitration. As Walker states, "it is uncertainty as to the fact of damage, rather than its amount, which negatives the existence of a cause of action[.]" (Id. at p. 517.) Here defense fees and costs made the fact of damage certain, and caused the cause of action to accrue when appellant incurred them.

Appellant also relies on Hydro-Mill. Hydro-Mill, an aircraft parts manufacturer, requested its broker to obtain earthquake insurance (including coverage for damage to equipment and building contents, losses from business interruption, and extra expenses) for its three locations, but requested that the insurance also cover physical damage to the facility Hydro-Mill owned but not cover physical damage to two of those locations which Hydro-Mill leased and did not own. The insurance broker erroneously obtained a policy that covered only the location owned by Hydro-Mill and omitted any coverage for the two leased locations. Thereafter the Northridge earthquake damaged all three of Hydro-Mill's facilities and their equipment and contents, and caused interruptions in Hydro-Mill's operations, a reduction in profits, and extra expenses. On December 9, 1994, the insurer offered to pay $270,000 for Hydro-Mill's losses at the insured location, and made clear that this compensation excluded losses related to the two leased locations. Hydro-Mill asserted that the insurance broker was liable for the unpaid losses at the two uninsured locations. The broker contacted its errors and omissions insurer, which, by a letter to Hydro-Mill on May 9, 1996, stated that Hydro-Mill had been properly compensated except for a payment of 9 percent of the cost of a machine. Hydro-Mill sued the broker for negligence, negligent misrepresentation, breach of oral contract, and breach of fiduciary duty. Judgment was entered for Hydro-Mill and against the broker. The broker appealed, claiming that the statute of limitations applicable to malpractice claims (Code Civ. Proc. § 339(1)) against an insurance broker barred the suit. (Hydro-Mill, supra, 115 Cal.App.4th at pp. 1148-1152, 1162.)

Hydro-Mill cited the rule that a cause of action for professional negligence did not accrue until the plaintiff sustained damage and discovered, or should have discovered, the negligence. (Hydro-Mill, supra, 115 Cal.App.4th at p. 1161.) Within hours of the Northridge earthquake, Hydro-Mill knew that the earthquake had caused damage to Hydro-Mill's equipment and operations. Within two days of the earthquake, Hydro-Mill also learned that its broker's mistake would result in harm. By December 9, 1994, when the insurer offered to pay $270,000, and clarified that losses at leased locations were being excluded, Hydro-Mill's cause of action accrued. Thus Hydro Mill agreed with the trial court that the statutory limitations period began to run on December 9, 1994. Hydro Mill, however, concluded that the trial court erroneously ruled that the running of the limitations period as to the broker was tolled until the insurer denied Hydro-Mill's claim in writing. (Id. at pp. 1161-1162.)

In an action by an insured against an insurer, the limitations period is tolled from the time the insured files a timely notice to the time the insurer denies the claim in writing. (Hydro-Mill, supra, 115 Cal.App.4th at p. 1162.) This is because "`[i]t would be "unconscionable" to permit the limitations period to run while the insured is pursuing its rights in the claims process, as required by the policy.'" (Id. at p. 1163.) Because the insurer never notified Hydro-Mill in writing that the insurance claim was resolved, the limitations period as to the insurer was tolled until the insurer filed its answer in Hydro-Mill's lawsuit.

Hydro-Mill, however, held that the limitations period was not tolled as to the insurance broker, for several reasons. An insurance policy requires an insured to submit a timely claim to the insurer, which then investigates that claim, and suit should not be brought against an insurer before it completes its investigation and notifies the insured of the result. An insured should not be penalized for deferring litigation against an insurer unless and until the insurer denies the claim. A claim against an insurance broker, by contrast, does not involve processing a claim, and thus there is no rationale for tolling the limitations period while a claim is being processed. Hydro-Mill added that public policy did not support tolling an action "against a broker based on whether and when an insurer denies a claim in writing. The broker has no control or influence over that process. In this case, for example, the insurer did not give written notice before the insured filed suit. But the broker admitted fault early on. It would be inequitable to hold that the statute of limitations against an insurance broker is tolled indefinitely if an insurer never denies a claim in writing." (Hydro-Mill, supra, 115 Cal.App.4th at p. 1164.) Therefore Hydro-Mill reversed the judgment for Hydro-Mill and directed entry of judgment in favor of the broker. (Id. at p. 1168.)

Appellant argues that this appeal is factually similar to Hydro-Mill, that Hydro-Mill should govern, and that the insurer's denial of coverage should cause the statutory limitations period to commence. Appellant argues that in both cases the broker's negligence was known well before the insured sustained actual damage. This is not true of Hydro-Mill, in which the actual damage was sustained before the broker's negligence was known. Appellant also argues that in both cases there was no actual damage before the insurer's decision with respect to payment. In Hydro-Mill, however, the insured sustained damage in the earthquake, which occurred nearly 11 months before the insurer paid the insured claim and excluded uninsured locations from that payment. In this case, appellant sustained damage in the form of attorney's fees and costs to defend in the arbitration, which occurred before the insurer stated in October 2006 that it had no duty to defend appellant and that appellant was not an insured under the coverage. These differences aside, the crucial point is that Hydro-Mill holds that equitable tolling does not apply to an insurance broker, such as the defendants in this case. Thus the defendants cannot rely on a formal written denial of coverage by the insurer to equitably toll the statutory limitations period.

DISPOSITION

The judgments are affirmed. Costs on appeal are awarded to defendants and respondents Interwest Insurance Services, Inc., Craig M. Houck, and Inspro Corporation.

We concur:

CROSKEY, Acting P. J.

ALDRICH, J.