H.P. Hood LLC v. Allianz Global Risks US Insurance Co. , 88 Mass. App. Ct. 613 ( 2015 )

NOTICE: All slip opinions and orders are subject to formal
revision and are superseded by the advance sheets and bound
volumes of the Official Reports. If you find a typographical
error or other formal error, please notify the Reporter of
Decisions, Supreme Judicial Court, John Adams Courthouse, 1
Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-
1030; SJCReporter@sjc.state.ma.us
14-P-1605 Appeals Court
H.P. HOOD LLC vs. ALLIANZ GLOBAL RISKS US INSURANCE COMPANY.
No. 14-P-1605.
Suffolk. September 2, 2015. - November 2, 2015.
Present: Meade, Wolohojian, & Milkey, JJ.
Contract, Insurance. Insurance, "All risk" policy, Construction
of policy, Coverage, Property damage. Practice, Civil,
Summary judgment.
Civil action commenced in the Superior Court Department on
November 5, 2010.
The case was heard by Christine M. Roach, J., on motions
for summary judgment.
Steven L. Schreckinger for the plaintiff.
Kristin A. Heres for the defendant.
MILKEY, J. Plaintiff H.P. Hood LLC (Hood) suffered various
losses when a bottled beverage it was producing for another
company failed certain quality control measures. At issue is
whether those losses are covered by the "all risks" property
insurance policy that Hood had purchased from the defendant,
2
Allianz Global Risks US Insurance Company (Allianz). On cross
motions for summary judgment, a Superior Court judge ruled in
Allianz's favor, concluding that Hood's losses fell within
certain exclusions to the policy. Because we agree that any
potentially covered losses are excluded, we affirm.
Background. The product. The essential facts are not in
dispute. The product at issue is a milk-based specialty drink
marketed by Abbott Laboratories (Abbott) under the trade name
Myoplex. Myoplex is a "shelf stable" beverage, meaning that it
is designed to require refrigeration only after its bottles are
opened. In order to ensure that the product does not spoil
before that, it must be manufactured and bottled under strict
aseptic conditions, and its bottles must stay hermetically
sealed until consumers open them.
The contract between Hood and Abbott. In November of 2008,
Abbott and Hood entered into a contract under which Hood would
produce at least forty million bottles of Myoplex in the first
year. The contract, which was termed a "contract packaging
agreement," required Hood to conduct quality control testing.
Attachments to the contract, and subsequent written and oral
agreements, added specificity to the particular tests and
protocols that Hood agreed to use. Some of the required testing
was designed to ensure that the Myoplex was contaminant-free
during the production and bottling process (that is, up until
3
the point the bottles were ready for distribution). None of
that testing revealed any contamination or other problems in any
of the relevant bottles.
Other testing was designed to ensure that the Myoplex
bottles would stay hermetically sealed after they left the
bottling plant and faced the rigors of transport to eventual end
users. One such test, known as the secure seal test, examined
whether bottles submerged in water retained their seals even
after the pressure inside the bottles was increased. Because
this test involved puncturing the bottles (to increase the
pressure inside them), it is known as a destructive test.
The May, 2009, production run. Hood began a production run
of Myoplex on May 14, 2009. Two days later, a bottle in that
run failed the secure seal test, meaning that the bottle did not
sustain its hermetic seal after the pressure inside the bottle
was increased. Production therefore was suspended. After
tentatively concluding that the problem likely was isolated,
Hood resumed production. However, on May 18, 2009, another
bottle failed the secure seal test. As a result, production was
suspended again, and Hood conducted extensive investigation in
accordance with its quality control protocols. By May 26, 2009,
further secure seal testing indicated a failure rate of
approximately seven percent. Hood utilized a nondestructive
4
test known as Taptone testing to try to isolate the problem, but
it was unable to do so.
On May 27, 2009, Hood reported its preliminary results to
Abbott, which responded that it would not accept bottles from
the May, 2009, production run. Hood then conducted additional
testing and investigation. In all, Hood performed secure seal
tests on 5,994 bottles, with 538 failures (a nine percent
failure rate). Hood also confirmed that it could not isolate
the bottles that were potentially problematic from those that
were not. Based on such results, Hood and Abbott agreed that
none of the almost two million bottles from the May, 2009,
production run could be marketed, and those bottles were
destroyed.
Subsequent investigation revealed that the problem had to
do with the bottle caps that Hood was using. Specifically, Hood
discovered that the liner in the caps became more slippery over
time, something that affected the amount of torque needed to
seal the bottles properly. Because the production process used
during the May, 2009, run did not take into account the
particular age of the bottle caps that were being used at any
given time, this meant that some bottle caps did not receive
optimal torque when the bottles were capped.
Discussion. Whether the insurance policy here provided
coverage is a legal question amenable to resolution on summary
5
judgment. See Cody v. Connecticut Gen. Life Ins. Co., 387 Mass.
142, 146 (1982).
The policy in question delineated its coverage as follows:
"Subject to the terms, conditions, exclusions and
limitations contained herein or endorsed hereon and in
consideration of the premium paid, this 'policy' covers all
risks of direct physical loss or damage to Insured Property
at Insured Location(s), provided such physical loss or
damage occurs during the Policy Period."
Allianz argues, as it did below, that based on this language,
actual property damage must occur before coverage is triggered
and that only such damage is covered by the policy. It points
out that there was no evidence that even one Myoplex bottle lost
its hermetic seal or otherwise sustained physical damage (other
than those bottles that went through the secure seal testing)
before Hood made a business decision to destroy the May, 2009,
production run. According to Allianz, the secure seal testing
showed, at most, a higher probability that bottles from the May,
2009, run later could become damaged in transit.1 Allianz
1
As Allianz notes, there is material in the record that
raises doubts about the accuracy of secure seal testing as a
predictor of whether bottles of Myoplex would have lost their
hermetic seals during distribution and transport. In fact,
after Hood's bottle supplier questioned the appropriateness of
using secure seal testing on noncarbonated beverages, Hood
stopped using such testing. In addition, without questioning
the reasonableness of Hood's business decision acquiescing to
Abbott's refusal to accept bottles from the May, 2009,
production run, Allianz does maintain that the bottles in fact
legally and safely could have been released to the market. For
this proposition, Allianz cites to material from the Food and
6
contends that, as a matter of law, a mere increased risk of
future property damage is not itself covered by the policy here.
See Tocci Bldg. Corp. v. Zurich Am. Ins. Co., 659 F. Supp. 2d
251, 259 (D. Mass. 2009) ("It is impossible to read the ['all
risks'] insurance policy [at issue there] as providing coverage
for 'risk' in the absence of a 'damage'"). See also HRG Dev.
Corp. v. Graphic Arts Mut. Ins. Co., 26 Mass. App. Ct. 374, 377
(1988) (defect in title to boat not covered by "all risks"
policy because policy covered only "physical losses and
damages").
In response, Hood argues in effect that special
considerations should apply in cases that involve products
designed for human consumption.2 In that context, Hood contends,
the requisite property damage has occurred once doubts have been
raised as to the product's fitness for that purpose and the
Drug Administration, National Food Lab (a private company that
Hood hired to assess such issues), and Hood itself.
2
Hood additionally argues that the policy was intended to
cover increased risk of future physical loss or damage, not
merely actual physical loss or damage that occurs within the
policy period. That argument, which the motion judge seems to
have accepted, is at odds with the language quoted above. The
reference in that language to "all risks" being covered does not
change that conclusion, because in this context, that reference
signifies that the policy was intended to cover property damage
whatever its cause (subject to exclusion). See Audubon Hill S.
Condominium Assn. v. Community Assn. Underwriters of America,
Inc., 82 Mass. App. Ct. 461, 467 (2012) (analyzing whether
insurance policy covers loss for "all risks" or only for
"enumerated risks").
7
product thereby has lost value. For this proposition, Hood
cites to a string of cases from other jurisdictions.3 Allianz
seeks to distinguish such cases based on the particular language
of the insurance policies at issue in them, or the specific
facts regarding what prevented the product's marketability.
Allianz has also cited to cases that rejected the legal
proposition that Hood has put forward.4
Ultimately, we need not decide which side has the more
persuasive argument on whether property damage occurred, because
we agree with the motion judge that, in any event, any losses at
issue here fell within an exclusion to the subject policy. That
3
See S. Wallace Edwards & Sons v. Cincinnati Ins. Co., 353
F.3d 367, 374-375 (4th Cir. 2003) (destruction of product due to
safety concerns constitutes direct physical damage); Pillsbury
Co. v. Underwriters of Lloyd's, London, 705 F. Supp. 1396, 1399-
1400 (D. Minn. 1989) (insured's reasonable determination that
product may not be fit for human consumption equates to direct
physical loss); General Mills, Inc. v. Gold Medal Ins. Co., 622
N.W.2d 147, 150-152 (Minn. Ct. App. 2001) (inability to lawfully
distribute products because of failure to meet Food and Drug
Administration regulations establishes direct physical loss).
4
See Source Food Tech., Inc. v. United States Fid. & Guar.
Co., 465 F.3d 834, 838 (8th Cir. 2006) ("To characterize [the
insured's] inability to transport its truckload of beef product
across the border and sell the beef product in the United States
as direct physical loss to property would render the word
'physical' meaningless"). See also Silgan Containers, LLC vs.
National Union Fire Ins. Co. of Pittsburg, P.A., U.S. Dist. Ct.,
No. C 09-5971 RS, slip op. at 5-6 (N.D. Cal. Oct. 3, 2011),
revd. and remanded on other grounds, 543 Fed. Appx. 635 (9th
Cir. 2013) (decision to destroy cans of tomatoes because of a
"'risk' that they would develop problems" is not "physical
injury to tangible property").
8
policy included an express exclusion for "faulty workmanship,
material, construction or design, from any cause." We agree
with the motion judge that the plain language of this exclusion
applies to the bottle cap liner issue, whether that problem be
viewed as one of faulty "material" (the fact that the
characteristics of the bottle cap liners changed as they aged),
faulty "workmanship" (the failure by Hood to apply the correct
torque), or faulty "design" (the fact that the bottling process
did not take into account the changes to the liners as they
aged).5 When a company "assumes the obligation of completing
[its work] in accordance with plans and specifications and fails
to perform properly, [it] cannot recover under the all-risk
policy for the cost of making good [its] faulty work." Allianz
Ins. Co. v. Impero, 654 F. Supp. 16, 18 (E.D. Wash. 1986).6
5
Hood argues that the exclusion does not apply because the
defect here was not to its "product" but only to the product's
"packaging." In this regard, it places great reliance on the
fact that the agreement between Abbott and Hood defines the
"product" that Hood is producing as the Myoplex itself, and not
the packaged bottles of Myoplex. We agree with Allianz that
this definition is beside the point in determining the scope of
the relevant exclusion in the insurance contract between Hood
and Allianz (which makes no use of the term "product").
Moreover, regardless of why Abbott and Hood chose to define the
term "product" in a particular way in their contract packaging
agreement (something on which the parties have shed no light),
there is no doubt that Hood was producing bottled Myoplex for
Abbott and that the bottling was an essential aspect of what
Hood was producing.
6
The exclusionary language at issue in Impero, excluding
coverage for the "[c]ost of making good faulty or defective
9
Our analysis is not yet complete, because Hood additionally
argues that even if the defective workmanship exclusion applies,
it applies only to a limited extent. Specifically, Hood argues
that the exclusion at most precludes coverage only for the
bottle caps themselves and that other losses, such as the loss
of the product inside the bottles, are covered. It bases this
argument on the following language that precedes the language of
the exclusion:
"This 'policy' does not cover the following, but if
physical loss or damage not otherwise excluded by this
'policy' to Insured Property at Insured Location(s)
results, then only such resulting physical loss or damage
is covered by this 'policy.'"
The quoted language raises some interpretive challenges, and the
case law reveals the frustration that judges have felt in trying
to make sense of provisions that include such language (commonly
workmanship, material, construction or design," was similar to
the language that is before us. Most cases that have examined
the scope of defective workmanship exclusions similar to the one
before us have done so in the context of commercial general
liability (CGL) policies. Such cases have concluded that by
containing such an exclusion, the CGL policy was not intended to
cover "the risk that an insured's product will not meet
contractual standards." Thommes v. Milwaukee Mut. Ins. Co., 622
N.W.2d 155, 158-159 (Minn. Ct. App. 2001), affd, 641 N.W.2d 877(Minn. 2002). See Hartford Acc. & Indem. Co. v. Pacific Mut.
Life Ins. Co., 861 F.2d 250, 253 (10th Cir. 1988) (policy "is
not intended to serve as a performance bond or a guaranty of
goods or services"). Although a CGL policy is aimed at
protecting against harm to third parties (and therefore presents
a different context from an all-risks property damage policy),
Hood has presented no convincing reason why the cases construing
the scope of similarly worded defective workmanship exclusions
should turn on the type of policy at issue.
10
known as "ensuing loss" or "resulting loss" provisions).7 On its
face, the language does not purport to reduce the breadth of the
exclusion; it states only that losses that are not excluded are
still covered, but only to that extent. At the same time, the
language does appear to recognize that some kinds of "resulting
physical loss[es] or damage" will be covered even though an
exclusion precludes recovery for other losses. Notably, Hood
does not argue that the resulting loss language sweeps back into
coverage all losses caused by faulty workmanship and, in any
event, such a reading would render the exclusion of no effect
(something the parties are presumed not to have intended).
Instead, the dispute is over what boundary the policy intended
to draw between those property losses caused by faulty
workmanship that are excluded from coverage, and those
"resulting" losses that are not, and on which side of that
boundary the losses here fall.
Existing cases characterize the scope of ensuing loss
language in somewhat different respects. Some cases emphasize
that such provisions provide coverage only with regard to
property damage that is "wholly separate" from the damage
directly caused by the excluded event without a break in the
7
For example, one appellate court has commented that "[a]t
first glance, the exclusion at issue here appears to be self-
contradictory gibberish." Lake Charles Harbor & Terminal Dist.
v. Imperial Cas. & Indem. Co., 857 F.2d 286, 288 (5th Cir.
1988).
11
chain of causation. Montefiore Med. Center v. American
Protection Ins. Co., 226 F. Supp. 2d 470, 479 (S.D.N.Y. 2002)
(claimed loss is not "wholly separate" where "collapse of the
very portion of the building that [was] . . . designed
defectively" constitutes damage). Other cases hold that there
can be coverage even as to damage that is not wholly separate
and independently caused, where that damage is different in
kind. Dawson Farms, L.L.C. v. Millers Mut. Fire Ins. Co., 794
So. 2d 949, 950-953 (La. Ct. App. 2001) (condensation damage to
crops stored in refrigerated facility covered as ensuing loss,
even though cost to repair facility's faulty construction
causing condensation was excluded).
Hood argues with significant force that it is entitled to
the benefit of a lenient interpretation, because the relevant
language at a minimum is ambiguous. See generally Hakim v.
Massachusetts Insurers' Insolvency Fund, 424 Mass. 275, 281-282
(1997) (when interpreting ambiguous exclusion to insurance
policy, insured is particularly entitled to benefit of such
construction). In the end, however, such an argument does not
aid Hood's cause. On the particular facts of this case, Hood
cannot prevail under any reasonable interpretation of the
resulting loss language. Even the case on which Hood places the
greatest reliance recognizes that "damage that falls under the
exclusion and the ensuing damage [that is covered] must be
12
separable events in that the damage and the ensuing loss must be
different in kind, not just degree." Holden vs. Connex-Metalna,
U.S. Dist. Ct., No. 98-3326, slip op. at 21 (E.D. La. Dec. 22,
2000), affd. in part, revd. in part on other grounds sub nom
Holden v. Connex-Metalna Mgmt. Consulting GmbH, 302 F.3d 358(5th Cir. 2002). Whatever else can be said about the case
before us, it is not one where an excluded occurrence involving
initial property damage led to other property damage of a
different kind. To the extent that Hood suffered property
damage potentially subject to coverage, that loss was directly
caused by, and completely bound up in, the increased risk of
future spoilage indicated by the secure seal testing. Both
conceptually and practically, the losses entailed here cannot
reasonably be characterized as "separable."8 Instead, a problem
with the bottle cap liners directly rendered the entire product
8
Some argument can be made that "ensuing" losses are the
same as "indirect" losses. See Hanover New England Ins. Co. v.
Smith, 35 Mass. App. Ct. 417, 419 (1993). The policy before us
covered only "direct" physical losses and it included a separate
exclusion for "indirect or remote loss or damage," thus
potentially rendering the debate about the scope of the ensuing
loss provision beside the point. Allianz has not pressed this
argument, and we decline to reach it.
13
unsaleable. The loss of that product falls squarely within the
exclusion language.9
Judgment affirmed.
9
The judge also found that the losses here were excluded
under the separate "latent defect" exclusion. We need not reach
that issue. Similarly, we need not reach Allianz's argument
that the judge erred in ruling that a separate "recall"
exclusion was inapplicable.