Ouimet v. USAA Casualty Insurance

MEMORANDUM ^*

John and Jan Ouimet appeal from the grant of summary judgment in favor of USAA Casualty Insurance Company on the basis that USAA had not breached its duty to defend. We have jurisdiction pursuant to 28 U.S.C. § 1291, and affirm.

USAA had no duty to defend the Oui-mets because the facts known at the time of tender establish that the underlying action for nuisance and emotional distress did not contain allegations of bodily injury or property damage resulting from an occurrence that would give rise to coverage under the Ouimets’ policy. See Waller v. Truck Ins. Exch., 11 Cal.4th 1, 44 Cal.Rptr.2d 370, 900 P.2d 619, 627-28 (1995); Gunderson v. Fire Ins. Exch., 37 Cal.App.4th 1106, 44 Cal.Rptr.2d 272, 280 (1995). Correspondence between the Ouimets and USAA clarifies that no claim for bodily injury or property damage ever surfaced in the underlying case. Despite USAA’s investigation and the Ouimets’ counsel’s vigorous litigation strategy in that case, the only mention of possible bodily injury came in the deposition of the underlying plaintiffs counsel in connection with this lawsuit. Indeed, until that tidbit surfaced, nearly three years of litigation in the underlying action and in this case had adduced no evidence to support any allegation of bodily injury or property damage.

Nor did the district court abuse its discretion in denying the Ouimets’ discovery motion; the Ouimets have failed to show that the denial of discovery actually and substantially prejudiced them. See Hallett v. Morgan, 287 F.3d 1193, 1212 (9th Cir. 2002).

AFFIRMED.

* This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.