 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Schaefer/Karpf Productions v. CNA Insurance Companies6/18/1998
aging the other product. Each of these cases held directly or indirectly the injury occurs upon incorporation. In Armstrong, the court held "the mere presence of ACBM" caused physical injury to the buildings. (45 Cal.App.4th at p. 91.) In the Geddes cases, the court held the injury to the houses occurred when the defective doors were installed. The cost of removing the doors was an allowable item of damages but there was no Discussion in either case of injury or damage to the houses as a result of removing the doors. (51 Cal.2d at p. 565; 63 Cal.2d at p. 609.) In Eljer, Judge Posner used the example of a chair which could be removed from a house without damaging the house to illustrate his distinction between incorporation and containment but he did not say an incorporation-related injury requires a showing removal of the defective product will damage the recipient product. To the contrary, his holding was "the incorporation of a defective product into another product inflicts physical injury in the relevant sense on the latter at the moment of incorporation." (972 F.2d at p. 814; italics added.) Finally, we note the reference in Hauenstein to the injury to the walls and ceilings as one which "can be rectified," not exacerbated, "by removal of the defective plaster." (65 N.W.2d at p. 125; italics added.)
In summary, we conclude "physical injury " within the meaning of the standard CGL policy includes the incorporation of a defective or harmful product into the product of another. Of course, the product affected must be "tangible property" for either the physical injury or loss of use provisions to apply. We turn to the "tangible property" issue next.
V. SCHAEFER DID NOT SUFFER PHYSICAL INJURY TO "TANGIBLE PROPERTY."
CNA maintains Schaefer did not suffer physical injury to, or loss of use of, "tangible property." The only tangible property involved in this case was the videotapes themselves and, assuming they were defective by reason of containing pornographic material, then they were defective when Schaefer purchased them. The tapes did not cause injury through linkage to any tangible property of Schaefer's. They did not harm the "master tape" of the Pageant; it could still be used to make as many more copies of the Pageant as Schaefer wanted. Even if the defective tapes injured Schaefer's profits or its goodwill, these are intangibles not covered by a CGL policy. (Geddes I, supra, 51 Cal.2d at pp. 565-566; cf. Fresno Economy Import Used Cars, Inc. v. United States Fid. & Guar. Co. (1977) 76 Cal.App.3d 272, 284 [no property damage coverage for insured's sale of car with broken head gasket absent showing other parts of car damaged thereby].)
Schaefer concedes there was no physical injury to its master tape but argues it suffered injury to, or loss of use of, its production of "The Best Christmas Pageant Ever" and the videotapes themselves.
It is undisputed the videotapes were "tangible property," but Schaefer cannot base coverage on physical injury to the videotapes because they were defective when Schaefer bought them. (Cf. Geddes I, supra, 51 Cal.2d at 564-565 [no coverage for injury or destruction of the doors themselves].) Nor is there coverage for loss of use of the defective tapes. Exclusion (n) of the policies issued to Matrix and TVC excludes coverage for " amages for any loss, cost or expense incurred by you or others for the loss of use . . . of your product." "Your product" is defined as " ny goods or products . . . manufactured, sold, handled, distributed or disposed of by ."
The only way we can conceive of Schaefer's loss being covered would be if its production of "The Best Christmas Pageant Ever" is "tangible property" sepa
Page 1 2 3 4 5 6 7 8 9 10 11 12 California Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|