CDS v. Zurich Ins. Co.

862 A.2d 560, 373 N.J. Super. 480
CourtNew Jersey Superior Court Appellate Division
DecidedDecember 16, 2004
StatusPublished
Cited by19 cases

This text of 862 A.2d 560 (CDS v. Zurich Ins. Co.) is published on Counsel Stack Legal Research, covering New Jersey Superior Court Appellate Division primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
CDS v. Zurich Ins. Co., 862 A.2d 560, 373 N.J. Super. 480 (N.J. Ct. App. 2004).

Opinion

862 A.2d 560 (2004)
373 N.J. Super. 480

CUSTOMIZED DISTRIBUTION SERVICES, Plaintiff-Appellant,
v.
ZURICH INSURANCE COMPANY and Campbell Soup Company, Defendants-Respondents.

Superior Court of New Jersey, Appellate Division.

Argued October 19, 2004.
Decided December 16, 2004.

*561 Kenneth R. Rothschild, Bridgewater, argued the cause for appellant (Golden, Rothschild, Spagnola, Lundell, Levitt & Boylan attorneys; Mr. Rothschild, of counsel; Julia C. Talarick, on the brief).

William J. Schmidt, Pennsylvania, PA, argued the cause for respondent (White and Williams, attorneys; Edward M. Koch, on the brief).

Before Judges KESTIN, ALLEY and FALCONE.

The opinion of the court was delivered by

ALLEY, J.A.D.

In June 2000, Campbell Soup Company (Campbell) filed a complaint against Customized Distribution Services, Inc. (CDS) which operated a warehouse in Wharton, New Jersey. The claim arose from the warehousing of a Campbell beverage product named "Splash." According to Campbell, CDS failed to rotate and ship the Splash in a timely manner and was liable for Campbell's resultant damages, including those flowing from Campbell having to dispose of the product at reduced prices.

CDS sought insurance coverage for the claim from its insurer, defendant Zurich Insurance Company (Zurich). Zurich's denial *562 of coverage to CDS triggered the declaratory judgment action now before us, and the focus of this appeal is on whether CDS is entitled to coverage under the policy for Campbell's damages. The trial court granted summary judgment in favor of Zurich. The action by Campbell has been settled.

The underlying facts are straightforward. On January 29, 1999, Campbell notified CDS that "Splash products [that had been stored at CDS] were shipped out of turn with expiration dates exceeding a twenty day window." Campbell informed CDS that this misrotation would result in it "be[ing] forced to sell [the affected product] to secondary markets as lower grade product and at less than 50 percent of Bulletin Price." In an apparent effort to mitigate damages, Campbell sold the misrotated product in secondary markets and donated the remaining portion to charity. Campbell claimed that because it was unable to ship the misrotated product in its usual retail supply chain, it sustained a loss of $1,384,727.00.

In February 1999, CDS notified Zurich of the potential claim based on the alleged misrotation of the Campbell Splash products. CDS had obtained insurance from Zurich that included a Comprehensive General Liability ("CGL") policy, and a Commercial Inland Marine policy containing a Warehouseman's Liability ("WL") form. The WL form provided liability coverage to the CDS warehouse located in Wharton, New Jersey where the Splash product was kept prior to shipment. On February 18, 1999, Zurich acknowledged receipt of CDS' claim, noting that it would begin its investigation and review of the claim immediately.

On February 22, CDS Vice President John Fisher provided Zurich with correspondence between CDS and Campbell regarding "the potential misrotation of Campbell `Splash' product." Fisher stated in the letter, "[o]ur discussions with Campbell, since mid-August, have been based on the fact that the `Splash' inventory we received was not selling, therefore causing us to use far more space then [sic] we anticipated. As a result, this put our entire operation in jeopardy from a rotational standpoint."

On May 6, 1999, Zurich claims manager Randy Wilburn denied coverage on the basis that Campbell's loss was due to the product not being sold and stated that no determination had yet been made regarding the impact of any misrotation on the product's impending expiration date. According to Wilburn,

We understand that on or around January 22, 1999, Campbell's Soup Company requested 50,000 square feet of space to store a product called "Splash." The product did not sell very well, and Campbell's Soup Company ended up using over 350,000 square feet of space in your warehouse. Due to the extreme volume of incoming shipments, we understand that it was almost impossible to keep track of the product, and some of the product may have been misrotated by the warehouse. However, the majority of the product went bad simply because the product did not sell. It is undetermined at this time if the possible misrotation had any effect on the product going bad.

Wilburn also cited two "exclusion" provisions in the WL policy, which read as follows:

B. EXCLUSIONS
....
2. We will not pay for a "loss" caused by or resulting from any of the following:
a. Delay, loss of use, loss of market, or any other consequential loss.
*563 ....
g. Wear and tear, any quality in the Covered Property that causes it to damage or destroy itself, hidden defect, gradual deterioration, depreciation, mechanical breakdown, insects, vermin, rodents, corrosion, rust, dampness, dryness, cold, or heat.

CDS then informed Zurich in a letter dated May 14, 1999, that it had "received new correspondence from Campbell's showing that 100 percent of the claim is due to misrotation, and not because the product was not selling."

As we have indicated, Campbell brought its suit against CDS in June 2000. It alleged negligence, breach of contract, and conversion based upon the misrotation of its product, namely, the failure to properly distribute it according to its manufacture or expiration date. Although CDS tendered its defense to Zurich, the insurer denied coverage in a letter dated June 28, 2000.

The parties' communications on the coverage issue included an October 11, 2000, notice from Wilburn to CDS that it was covered for "direct physical loss," not "gradual deterioration," and that any role misrotation may have played was irrelevant for purposes of coverage. CDS then instituted this declaratory judgment action, after which a consent judgment was entered in Campbell's suit.

When Zurich moved for summary judgment in this action, it contended that there was no coverage under the WL form because the alleged misrotation did not cause a "direct physical loss." The relevant provisions as to coverage in the WL form issued by Zurich state:

A. Coverage
1. We will pay on your behalf all sums that you become legally obligated to pay as a warehouseman or bailee as damages for "loss" caused by a Covered Cause of Loss to COVERED PROPERTY contained in your "premises."
....
5. Covered Causes of Loss
Covered Causes of Loss means RISKS OF DIRECT, PHYSICAL "LOSS" to Covered Property during the policy period, except those causes of "loss" listed in the Exclusions.
....
F. DEFINITIONS
1. "Loss" means accidental loss or damage.

Zurich further asserted that if the product's impending expiration was a "loss" as defined in the policy, it was expressly excluded by the coverage exemption for loss based on gradual deterioration.

In connection with the summary judgment hearing, the trial court considered the meaning and scope of the term "direct, physical loss" as it defines the covered causes of loss in paragraph (A)(5) of the WL form just quoted.

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Cite This Page — Counsel Stack

Bluebook (online)
862 A.2d 560, 373 N.J. Super. 480, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cds-v-zurich-ins-co-njsuperctappdiv-2004.