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Schaefer/Karpf Productions v. CNA Insurance Companies6/18/1998
for the system). The recovery Lucker sought was for the loss of use of the design itself-for the loss in usefulness of the original concept of the LMS. The loss of use of this concept, however, was not loss of use of something which could be touched or felt. For this reason, we hold that Lucker's loss of use of the LMS design was not loss of use of tangible property." (Id. at p. 820.)
For the reasons stated above, we conclude Schaefer did not suffer physical injury to or the loss of use of "tangible property" within the meaning of the CGL policies.
Disposition
The judgment is affirmed.
I concur in the majority decision, but do not join in part IV of the majority opinion captioned "The Incorporation of a Defective Product or Harmful Product Into the Product of Another Causes 'Physical Injury ' to Tangible Property Within the Meaning of Property Damage Coverage in the Standard Comprehensive General Liability Policy." This Discussion is not necessary for the decision.
Were it necessary to decide this issue to resolve the appeal, I am inclined to think the majority's Conclusion is incorrect. There was no "damage" to the videotapes or to the artistic material. There was simply some offensive surplusage on the undamaged tapes. The injury was in the nature of lost profits or goodwill, not property damage.
However, it is not necessary to decide the issue today, because, as the majority correctly concludes, there was in any event no physical injury to tangible property, as required for coverage under the policy. In my view we should assume for the sake of argument, without deciding, that there was property damage, and then correctly decide the case on the narrower ground that if there was damage, it was not to tangible property. This approach would eliminate many pages of dicta, and yet decide the case on sound ground.
The utility of analyses on non-determinative points, even when both learned and correct, is dubious, because such analyses are not binding. As the California Supreme Court said in Hart v. Burnett (1860) 15 Cal. 530, 598:
"A decision is not even authority except upon the point actually passed upon by the court and directly involved in the case. But even then, the mere reasoning of the court is not authority. The point decided by the Court, and which the reasoning illustrates and explains, constitutes a judicial precedent. The books are full of cases in which learned Judges have deprecated the attempt to urge that the mere dicta, or the arguments of Judges, as authoritative expositions of the law." (Hart, p. 598, emphasis in original) I would save the question whether there is "property damage" under circumstances such as presented here for a day when the analysis is necessary to decide the case.
NEAL, J.
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