                                                                             FILED
                           NOT FOR PUBLICATION                                SEP 02 2011

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


COWICHE GROWERS, INC., a                        No. 10-36072
Washington corporation,
                                                D.C. No. 2:09-cv-03093-RMP
              Plaintiff - Appellant,

  v.                                            MEMORANDUM*

CONTINENTAL CASUALTY
COMPANY, a foreign insurance company,

              Defendant - Appellee.



                  Appeal from the United States District Court
                     for the Eastern District of Washington
             Rosanna Malouf Peterson, Chief District Judge, Presiding

                           Submitted August 30, 2011**
                              Seattle, Washington


Before: HAWKINS, McKEOWN, and BEA, Circuit Judges.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
       Cowiche Growers, Inc. (“Cowiche”) appeals from the district court’s grant of

summary judgment in favor of Continental Casualty Co. (“Continental”) in this

“boiler and machinery” insurance coverage dispute. We affirm.

       The district court properly granted summary judgment to Continental because

the policy did not provide coverage for the type of incident which occurred here,

which did not satisfy the policy definition of “breakdown.” Although Cowiche tries

to create an ambiguity based on differing definitions of “breakdown” in the original

contract and an endorsement, the original definition was unambiguously “deleted and

replaced in its entirety” by the language of the endorsement. The endorsement defines

“breakdown” as a “sudden and accidental direct physical loss to Covered Equipment,

which manifests itself by physical damage, necessitating its repair or replacement.”

Cowiche’s proofs did not raise a triable issue that such “breakdown” occurred. See

McDonald v. State Farm Fire and Cas. Co., 837 P.2d 1000, 1003-04 (Wash. 1992)

(“The insured must show the loss falls within the scope of the policy’s insured

losses.”).1



       1
        Cowiche argues that the apples suffered “physical damage,” but it is clear
from the context that the endorsement is referring to physical damage to the Covered
Equipment “necessitating its repair or replacement.” The endorsement is not “fairly
susceptible” to Cowiche’s interpretation, and the policy is therefore not ambiguous.
See Lynott v. Nat’l Union Fire Ins. Co., 871 P.2d 146, 152 (Wash. 1994) (quoting
McDonald, 837 P.2d at 1004).
                                         2
      Moreover, both the original definition and the endorsement specifically recite

that a “breakdown” does not include “leakage at any valve, fitting, shaft seal, gland

packing, joint or connection” in the grant of coverage. Such limited grant of coverage

alternatively precludes any claim in this case, as Cowiche consistently describes the

incident as a “leak” from the “connection” (gasket) between the refrigerant piping and

the new valve.

      Because there is no coverage under the policy, the remaining issues presented

for review are moot. See, e.g., Shields v. Enter. Leasing Co., 161 P.3d 1068, 1074

(Wash. App. 2008) (“A reasonable basis for denial of an insured’s claim constitutes

a complete defense to any claim that the insurer acted in bad faith or in violation of

the Consumer Protection Act.”) (internal citation and quotation omitted).

      AFFIRMED.




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