Toro-Aire, Inc. v. Federal Insurance Company , 473 F. App'x 708 ( 2012 )

FILED
NOT FOR PUBLICATION MAY 24 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
TORO-AIRE, INC., a California No. 10-56880
corporation,
D.C. No. 2:08-cv-05784-SVW-
Plaintiff - Appellant, JTL
v.
MEMORANDUM *
FEDERAL INSURANCE COMPANY, an
Indiana corporation,
Defendant - Appellee.
Appeal from the United States District Court
for the Central District of California
Stephen V. Wilson, District Judge, Presiding
Argued and Submitted May 7, 2012
Pasadena, California
Before: PREGERSON, GRABER, and BERZON, Circuit Judges.
Plaintiff Toro-Aire, Inc., appeals from the district court’s grant of summary
judgment to Defendant Federal Insurance Company in this diversity action arising
under California law. Reviewing de novo, Lovell v. Chandler, 303 F.3d 1039,
1052 (9th Cir. 2002), we affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
1. The district court correctly granted summary judgment to Defendant on
the contract claim. After the district court’s evidentiary rulings, which Plaintiff
does not challenge on appeal, no evidence supported Plaintiff’s assertion that the
hospital suffered a loss of use or that the defective coils caused water damage.
Evidence supported Plaintiff’s assertion that the defective coils caused
repairs to other property, such as drywall. But, under California law, Plaintiff’s
commercial general liability insurance policy does not cover the costs of repairs in
situations such as this one. See, e.g., N.H. Ins. Co. v. Vieira, 930 F.2d 696, 701
(9th Cir. 1991) (applying California law). Plaintiff relies on cases that interpret
insurance policies with different text, see, e.g., St. Paul Fire & Marine Ins. Co. v.
Sears, Roebuck & Co., 603 F.2d 780 (9th Cir. 1979), and on cases involving
hazardous materials not at issue here, see, e.g., Armstrong World Ind., Inc. v.
Aetna Cas. & Sur. Co., 52 Cal. Rptr. 2d 690 (Ct. App. 1996) (asbestos insulation).
2. The district court correctly granted summary judgment to Defendant on
the claim of breach of the covenant of good faith and fair dealing. The parties, and
we, agree that no such claim lies in the absence of a viable breach of contract
claim.
AFFIRMED.
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