Spencer Press, Inc. v. Utica Mutual Insurance

679 N.E.2d 236, 42 Mass. App. Ct. 631, 1997 Mass. App. LEXIS 101
CourtMassachusetts Appeals Court
DecidedMay 16, 1997
DocketNo. 95-P-2017
StatusPublished
Cited by6 cases

This text of 679 N.E.2d 236 (Spencer Press, Inc. v. Utica Mutual Insurance) is published on Counsel Stack Legal Research, covering Massachusetts Appeals Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Spencer Press, Inc. v. Utica Mutual Insurance, 679 N.E.2d 236, 42 Mass. App. Ct. 631, 1997 Mass. App. LEXIS 101 (Mass. Ct. App. 1997).

Opinion

Kass, J.

We decide that the errors and omissions insurance carried by Spencer Press, Inc. (Spencer), did not cover as an insured loss the cost to Spencer of defective mail order catalogs returned, or not paid for, by Spencer’s customer, Deerskin Trading Post (Deerskin), or refunds that Spencer had to pay to Deerskin. That conclusion accords with a judgment for the insurer ordered by the judge of the Superior Court who heard the case. As she put it: “The exclusion [632]*632clause prohibits both the named insured and customers of the named insured from making a claim for damage to work product.”

From that general conclusion, we return to the genesis of the controversy. Spencer is a commercial printer. For the year running from January 14, 1980, to January 14, 1981, it bought a “Commerical Umbrella Liability” policy jointly underwritten by Utica Mutual Insurance Company and Graphic Arts Mutual Insurance Company, which we shall refer to collectively as “Utica.”2 The policy included errors and omissions coverage to a limit of $25,000,000. In September of 1980, during the policy period, Spencer printed a sales catalog for Deerskin, a mail order leather goods business, as it had regularly since the early 1970’s. On a run of 4,000,000 fall sales catalogs for 1980, Spencer failed to trim spots of excess glue from order form inserts, causing pages of the catalog to stick together and, consequently to hide, not only some of the copy and art work but, in most of the catalogs, also the mail order forms. That mishap, over the course of the considerable litigation it spawned, became known as “the glue problem.”

Deerskin claimed $891,612 in damages from Spencer, based on profits lost from customers who did not place orders because they could not find the order blanks, as well as other categories of consequential damages. That claim was not successful.3 Deerskin did succeed, however, after jury trial, in recovering a refund of $175,000 it had paid to Spencer on account of the catalog. It is that amount for which Spencer seeks indemnity from Utica in the action we currently consider.

1. Coverage. The insurance policy Spencer had bought from Utica insured against liability “arising out of any negligent act, error, or omission . . . which happens in the course of providing printing services during the policy period.” There was in the policy, however, the following exclusion:

“This policy does not apply:
[633]*633(h) with respect to work performed by or on behalf of the insured and with respect to damages or expenses claimed by the named insured (1) to any property damage to such work which arises out of any part or portion thereof or out of any materials, parts or equipment furnished in connection therewith . . .”

Spencer acknowledges that the exclusion denies it coverage of damage to its own work product such as might occur, for example, from the printing machinery chewing up a run of catalogs so that they were all tattered and could not be delivered to the customers. The case stands differently, Spencer argues, if, as here, the catalogs emerge from the printing run apparently in good condition but containing a flaw which causes the customer, when it discovers the flaw after delivery, to want — and be entitled to — its money back. After all, Spencer reasons, it must pay damages, i.e., a refund to its customer for the defective catalogs, an obligation that flows from an error, exactly what it bought insurance against.

Spencer is mistaken, as becomes apparent as soon as one pauses to reflect that had Spencer discovered the glue problem before the catalogs left its plant or warehouse, the loss is in-contestibly not an insured loss. A difference in coverage does not occur because the customer was the first to discover the glue problem. The limitation of coverage worked by the exclusion does not make the insurance policy illusory. The purpose, among others, of the policy is to insure Spencer against claims arising consequentially out of a printing error. For example, had a printing error advertised gloves for sale at $5.00 per pair instead of an intended $50 per pair, and had Deerskin been obliged to deliver 10,000 pairs of gloves at the lower price, and had Spencer become liable4 to Deerskin for its $450,000 loss, that liability would be covered by the Utica policy.

The distinction made by the illustrations was marked relatively recently in Commerce Ins. Co. v. Betty Caplette Builders, Inc., 420 Mass. 87, 90-93 (1995), which considered the “product exclusion” in the context of a house built and sold by a real estate developer. A similar “product exclusion” in the developer’s comprehensive general liability insurance [634]*634policy did not cover the developer’s obligation to make good four defective septic systems. It is worth repeating in this context an explanation by a text writer, set out in the Betty Caplette Builders, Inc. opinion at 91, about the scope of product liability coverage as commonly written:

“The risk intended to be insured is the possibility that the goods, products or work of the insured, once relinquished or completed, will cause bodily injury or damage to property other than the product or completed work itself, and for which the insured may be found liable. The insured, as a source of goods or services, may be liable as a matter of contract law to make good on products or work which is defective or otherwise unsuitable because it is lacking in some capacity. This may even extend to an obligation to completely replace or rebuild the deficient product or work. This liability, however, is not what the coverages in question are designed to protect against. The coverage is for tort liability for physical damages to others and not for contractual liability of the insured for economic loss because the product or completed work is not that for which the damaged person bargained.” Henderson, Insurance Protection for Products Liability and Completed Operations — What Every Lawyer Should Know, 50 Neb, L. Rev. 415, 441(1971).

The last sentence of the quoted portion from the Henderson article may not be applied literally to the coverage Spencer bought from Utica, because that policy contained “printer’s catastrophe coverage” which insured Spencer for contractual liability derivative to the defective printed product, i.e., damages of the sort described in the erroneous glove price example. By reason of. the exclusion — and the exclusion appears to be a garden variety one — repair or replacement of the defective product itself or having to give money back to a customer because the product was defective becomes an uninsured business risk. Discussion of uninsured business risks appears in Sterilite Corp. v. Continental Cas. Co., 17 Mass. App. Ct. 316, 321-322 & n.13 (1983).

We have considered Spencer’s arguments about: the insurance buyer’s reasonable expectations (see Hazen Paper Co. v. United States Fid. & Guar. Co., 407 Mass. 689, 700 [1990]); [635]*635construing the policy strictly against the insurer (see Camp Dresser & McKee, Inc. v. Home Ins. Co., 30 Mass. App. Ct. 318, 323-324 [1991]); and resolution of ambiguities against the insurer (Ibid).

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Bluebook (online)
679 N.E.2d 236, 42 Mass. App. Ct. 631, 1997 Mass. App. LEXIS 101, Counsel Stack Legal Research, https://law.counselstack.com/opinion/spencer-press-inc-v-utica-mutual-insurance-massappct-1997.