Sola Basic Industries, Inc. v. U.S. Fidelity & Guaranty Co.

• Decision Date: 29 June 1979
• Docket Number: No. 76-574,76-574
• Citation: 90 Wis.2d 641,280 N.W.2d 211
• Parties: SOLA BASIC INDUSTRIES, INC., Plaintiff-Respondent, v. UNITED STATES FIDELITY & GUARANTY COMPANY, Defendant-Appellant.
• Court: Wisconsin Supreme Court

Page 211

280 N.W.2d 211

90 Wis.2d 641

SOLA BASIC INDUSTRIES, INC., Plaintiff-Respondent, v. UNITED STATES FIDELITY & GUARANTY COMPANY, Defendant-Appellant.

No. 76-574.

Supreme Court of Wisconsin.

Submitted on Briefs May 31, 1979.

Decided June 29, 1979.

John A. Kluwin, Eric J. Van Vugt and Kluwin, Dunphy, Hankin & McNulty, Milwaukee, for defendant-appellant.

Robert A. Christensen and Foley & Lardner, Milwaukee, for plaintiff-respondent.

DAY, Justice.

This case presents a question on the construction of an insurance policy issued by United States Fidelity & Guaranty Company. The insurer appeals from a judgment entered on December 22, 1976 and amended February 1, 1977 by the circuit court for Milwaukee county, awarding the insured, Sola Basic Industries, Inc., $23,121.60. Sola Basic filed a notice of review seeking review of the order for amended judgment, entered February 1, 1977, reducing the judgment from $25,872.43 to $23,121.60.

The questions on appeal are:

1. Is the economic loss suffered by a person other than the insured as the result of negligent repair work by the insured on a product originally sold by the insured excluded from coverage by the standard definitions and exclusions in this comprehensive general liability policy of insurance?

2. Did the parties stipulate to damages so as to preclude Sola Basic from recovering prejudgment interest?

Sola Basic brought this action to recover under a comprehensive general liability insurance policy issued to Sola Basic by United States Fidelity & Guaranty Company (hereafter insurer).

The case arises out of a lawsuit brought by Thunder Bay Manufacturing Corporation against Sola Basic's Hevi-Duty Electric Division. Sola Basic had sold Thunder Bay a transformer for use in its manufacturing process. When Thunder Bay experienced problems with the operation of the transformer, a Sola Basic employee came to Thunder Bay's plant to perform repair work. Thunder Bay's complaint alleged that the repairman negligently repaired the tap changer switch on the transformer by dropping material into the transformer resulting in damage to the windings of the transformer. The damage to the transformer required that it be removed from the plant and be completely rebuilt. This Sola Basic did at its own expense, and it has made no claim upon the insurer for those costs.

Thunder Bay's complaint alleges that while the transformer was out for repairs, it could not use its electric furnaces, and that it sustained damages in that it had to operate by another method. It claimed $60,000 damages against Sola Basic for the cost of additional raw materials, labor, electricity, freight, crane rental, liner bricks and the cost of removing and replacing the transformer.

Sola Basic tendered the defense of Thunder Bay's claim to the insurer which denied coverage and refused to defend. Sola Basic settled with Thunder Bay for $20,000, after notifying the insurer of the proposed settlement, and then brought this suit against the insurer to recover the $20,000 and an additional $5,000 in legal fees.

The insurer filed a motion for summary judgment and supporting affidavit. Sola Basic filed its own motion for summary judgment, which the trial court rejected as untimely. However, the trial court denied the insurer's motion for summary judgment, determining that there was coverage under the insurance policy. The trial court granted Sola Basic's oral motion for summary judgment under sec. 802.08(6), Stats., (1975). ¹

QUESTION # 1: IS THE ECONOMIC LOSS SUFFERED BY A PERSON OTHER THAN THE INSURED AS THE RESULT OF NEGLIGENT REPAIR WORK BY THE INSURED ON A PRODUCT ORIGINALLY SOLD BY THE INSURED EXCLUDED FROM COVERAGE BY THE STANDARD DEFINITIONS AND EXCLUSIONS IN THIS COMPREHENSIVE GENERAL LIABILITY POLICY OF INSURANCE?

The sections of the comprehensive general liability insurance policy pertinent to this appeal are the following:

"Coverage B Property Damage Liability. The Company will pay on behalf of the Insured all sums which the Insured shall become legally obligated to pay as damages because of

"A. bodily injury or

"B. property damage

to which this insurance applies, caused by an occurrence, . . . .

"Definitions: 'damages' includes damages for death and for care and loss of services resulting from bodily injury and damages for loss of use of property resulting from property damage;

" 'property damage' means injury to or destruction of tangible property.

"Exclusions: This insurance does not apply:

"(l) to property damage to the Named Insured's products arising out of such products or any part of such products;

"(m) to property damage to work performed by or on behalf of the Named Insured arising out of the work or any portion thereof, or out of materials, parts or equipment furnished in connection therewith; . . ."

The insurer asserts that the only property damage involved in this case was the damage to the transformer itself, and that such property damage was excluded from coverage by either or both exclusions (l) and (m). It argues that in the absence of injury to or destruction of tangible property other than Sola Basic's own product, no property damage liability coverage was afforded. ²

To determine whether an insurer is obligated to assume the defense of a third-party suit, it is necessary to determine whether the complaint alleges facts which, if proven, would give rise to liability covered under the terms and conditions of the policy. Grieb v. Citizens Casualty Company of New York, 33 Wis.2d 552, 557, 148 N.W.2d 103 (1967). Doubts about coverage must be resolved by the insurer in favor of the insured. Capitol Indemnity Corp. v. St. Paul Fire & Marine Ins. Co., 357 F.Supp. 399, 412-13 (W.D.Wis.1972).

Thunder Bay alleged that it was damaged because it incurred additional costs to operate its plant when the removal of the transformer rendered its electric furnaces unusable. Under the policy, damages were defined to include "damages for loss of use of property." The policy obligated the insurer to pay all sums which Sola Basic became obligated to pay as damages because of "property damage to which this insurance applies, caused by an occurrence, . . ." Property damage is defined by the policy as "injury to or destruction of tangible property." The insurer argues that under exclusions (l) and (m), the insurer had no obligation to pay for damage to the transformer itself, and no claim is made for such damage.

Assuming the insurer is correct as to the effect of subsections (l) and (m), the question is whether Thunder Bay suffered injury to or destruction of tangible property other than the Sola Basic transformer.

An analysis of comprehensive general liability insurance policies, standardized by the National Bureau of Casualty Underwriters and the Mutual Insurance Rating Bureau in 1966, made the following comments about the definition of "property damage" in this type of policy:

"The new definition omits any requirement of physical injury as a prerequisite for coverage. The National Bureau states that the policy will cover the insured's legal liability if no specific exclusion applies even though the tangible property is not physically damaged but is made useless by the act of an insured. An example would be the breaking down of a large piece of contractor's equipment on a public street in such a manner that the street must be closed off for a period of time and the public has limited or no access to the stores located in the block affected. Under the definition of 'damages' loss of use claims from the operators of these stores would be covered. There is no prerequisite of physical injury to the stores. It seems sufficient that the stores sustained damage when they could not be used for the purpose for which they were designed or intended." Obrist, The New Comprehensive General Liability Insurance Policy. A Coverage Analysis. (Defense Research Institute, 1966).

Although decided under a different form of policy, the case of Hauenstein v. St. Paul-Mercury Indemnity Co., 242 Minn. 354, 65 N.W.2d 122 (1954) is frequently cited for its analysis of the concept of injury to property. Under the policy in force, the insurer agreed "to pay any loss by reason of the liability imposed by law or contract upon the insured for damages because of injury to or destruction of property, including the loss of use thereof, caused by accident." The policy excluded liability for "injury to or destruction of . . . any goods or products manufactured, sold, handled or distributed by the Insured . . .."

In Hauenstein, the insured sold plaster to a contractor who used it on a construction job. The plaster shrank and cracked after application, making it necessary for the contractor to remove it and replaster the walls and ceilings. There was no physical injury to any part of the building other than the plaster. While the plaster itself fell within the exclusionary clause of the policy as a product handled, sold and distributed by the insured, the court went on to find injury to the third party's property, stating:

"No one can reasonably contend that the application of a useless plaster, which has to be removed before the walls can be properly replastered, does not lower the market value of a building. Although the injury to the walls and ceilings can be rectified by removal of the defective plaster, nevertheless, the presence of the defective plaster on the walls and ceilings reduced the value of the building and constituted property damage. The measure of damages is the diminution in the market value of the building, or the cost of removing the defective plaster and restoring the building to its former condition plus any loss from deprival of use, whichever is the lesser." Id. at 358, 65 N.W.2d at 125.

Liberty Building Co. v. Royal Indemnity Co., 177 Cal.App.2d 583, 2 Cal.Rptr. 329 (1960), involved a policy exclusion similar to the one now before the court. In that case, defective stucco material...