Ouimet

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. *395 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…