                                                                            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                            NOT FOR PUBLICATION                              MAY 24 2012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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