PENTAIR, INC., — v. AMERICAN GUARANTEE AND LIABILITY INSURANCE COMPANY, —

400 F.3d 613, 2005 U.S. App. LEXIS 4062, 2005 WL 562761
CourtCourt of Appeals for the Eighth Circuit
DecidedMarch 11, 2005
Docket03-3236
StatusPublished
Cited by101 cases

This text of 400 F.3d 613 (PENTAIR, INC., — v. AMERICAN GUARANTEE AND LIABILITY INSURANCE COMPANY, —) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eighth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
PENTAIR, INC., — v. AMERICAN GUARANTEE AND LIABILITY INSURANCE COMPANY, —, 400 F.3d 613, 2005 U.S. App. LEXIS 4062, 2005 WL 562761 (8th Cir. 2005).

Opinions

LOKEN, Chief Judge. '

An earthquake struck Taiwan in September 1999, disabling a substation that provided electric power to two Taiwanese factories. Lacking power, the factories could not manufacture products they were supplying to a subsidiary of Pentair, Inc. When production resumed two weeks la.ter, Pentair shipped orders from Taiwan via airfreight to meet its customers’ needs for the Christmas season, resulting in additional costs of $634,731. Pentair filed a claim for this loss under the “Contingent Time Element” provision- of the all-risk manuscript property insurance policy issued to Pentair by American Guarantee and Liability Insurance Company. American, Guarantee denied coverage, and Pen-tair commenced this diversity action. The district court1 granted American Guarantee’s motion for summary judgment. Pentair Inc. v. Am. Guar. & Liab. Ins. Co., 2003 WL 21804874 (D.Minn.2003). Pentair appeals. Applying Minnesota law, like the district court, and reviewing the grant of summary judgment de novo, we affirm.

Section 10(a)(1) of the American Guarantee policy provided that the policy insures “all real and personal property ... owned, used, or intended for use by” Pen-tair. Section 11 provided that the policy covers “all risk of direct physical loss of or damage to property described herein.” Section 10(d)(1) extended the policy’s business interruption coverages2 to extra expenses incurred by Pentair in order “to continue as nearly as practicable the normal operation of [Pentair’s] business following loSs ... by the perils insured herein” to property described in Section 10(a). The Taiwanese factories and their electric power supplier were not property described in Section 10(a). However, Pen-tair relies for coverage on Section 10(h)(2), the “Contingent Time Element” provision, which further extended the business interruption coverages to include losses incurred by Pentair as the result of “damage” to “property of a supplier of goods and/Or services to the Insured” that is caused by a covered peril, here, an earth[615]*615quake.3 Though few reported cases have construed this type of extended business interruption coverage, it has doubtless become more common and significant as companies increasingly out-source component parts manufacturing and rely on so-called “just in time” inventory systems.

The parties agree that the Taiwanese factories were Pentair suppliers located within a covered territory for purposes of Section 10(h)(2). The district court concluded that the “direct physical loss or damage” limitation in Section 11 applies to the contingent time element coverage in Section 10(h)(2). On appeal, Pentair does not challenge this conclusion. The district court then held that Pentair’s extra expense loss is not covered under Séction 10(h)(2) because (1) the electric substation, though physically damaged by the earthquake, was not a Pentair supplier for purposes of Section 10(h)(2); and (2) the resulting power outages did not cause direct physical loss or damage to the Taiwanese factory suppliers. On appeal, Pentair challenges both conclusions, arguing that the Taiwanese substation was a Pentair supplier within the meaning of Section 10(h)(2) and, in any event, its Taiwanese factory suppliers suffered “direct physical loss” when power outages rendered them unable to perform their “intended function” of manufacturing products for Pen-tair.

1. We agree with the district court that the power substation was not “a supplier of goods and/or services” to Pentair within the plain meaning of Section 10(h)(2). Pentair relies on two cases holding that Midwest farmers who sold grain to a licensed grain dealer, which in turn resold grain to the insured, were suppliers of the insured for purposes of a policy’s contingent business interruption coverage. Archer-Daniels-Midland Co. v. Phoenix, 936 F.Supp. 534 (S.D.Ill.1996), followed in Archer Daniels Midland Co. v. Aon Risk Services, Inc., 2002 WL 31185884 (D.Minn.2002). Pentair draws an analogy between the Midwest farmers in the ADM cases and the electrical substation that serviced the Taiwanese factories in this case. But the analogy is inapt. In Phoenix, each farmer supplied a product (grain) that a dealer then resold to the insured, ADM. The court held that the policy covered business interruption losses to ADM caused by property damage to the farmers because the policy did not limit this coverage to suppliers in direct contractual privity with ADM. Phoenix, 936 F.Supp. at 544. Here, on the other hand, though the substation supplied power to the Taiwanese factories, the Taiwanese power company did not supply a product or service ultimately used by Pentair. Thus, it was not a Pentair supplier for purposes of Section 10(h)(2) because it supplied no goods or services to Pentair, directly or indirectly.

2. The question whether Section 10(h)(2) covered the extra expenses incurred by Pentair because its Taiwanese suppliers suffered power outages is more difficult. Pentair initially argues that, under an all-risk policy, once it proves that a fortuitous loss occurred, American Guarantee must prove “that an express exception to the coverage applies.” Pillsbury Co. v. Underwriters at Lloyd’s, London, 705 F.Supp. 1396, 1399 (D.Minn.1989). However, while an all-risk policy simplifies the insured’s burden tp prove that a loss was caused by a covered peril, the insured must prove the loss was covered before the [616]*616burden shifts to the insurer to prove that coverage is barred by a policy exclusion. See Witcher Const. Co. v. St. Paul Fire & Marine Ins. Co., 550 N.W.2d 1, 4 (Minn.App.1996). Here, the extra expense loss was no doubt fortuitous, but the issue is whether it fell within the Contingent Time Element coverage provided by Section 10(h)(2). The district court concluded that Pentair failed to prove coverage because the power outages caused no injury to the Taiwanese factories other than a shutdown of manufacturing operations, and this did not constitute “direct physical loss or damage” to a supplier’s property within the meaning of Section 10(h)(2) as limited by Section 11.

On appeal, Pentair argues that its Taiwanese suppliers’ inability to function after the loss of power constituted direct physical loss or damage. Pentair cites np case holding that mere loss of use or function constitutes “direct physical loss or damage” within the meaning of a provision like Section 11 of the American Guarantee policy. . Pentair relies on two Minnesota Court of Appeals opinions that emphasized the functional impairment of insured property in concluding that the insureds had established “direct physical loss.” Sentinel Mgt. v. N.H. Ins. Co., 563 N.W.2d 296, 300 (Minn.App.1997), followed in General Mills, Inc. v. Gold Medal Ins. Co., 622 N.W.2d 147, 152 (Minn.App.2001). But in those cases, insured property was physically contaminated—a building by the release of asbestos fibers in Sentinel, and grain by application of an unapproved pesticide in General Mills. Once physical loss or damage is established, loss of use or function is certainly relevant in determining the amount of loss, particularly a business interruption loss.

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400 F.3d 613, 2005 U.S. App. LEXIS 4062, 2005 WL 562761, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pentair-inc-v-american-guarantee-and-liability-insurance-company-ca8-2005.