Wisconsin Pharmacal Co. v. Nebraska Cultures of California, Inc.

2014 WI App 111, 358 Wis. 2d 673
CourtCourt of Appeals of Wisconsin
DecidedOctober 29, 2014
DocketCase No. 2013AP613; Case No. 2013AP687; Nos. 2013AP613, 2013AP687
StatusPublished
Cited by3 cases

This text of 2014 WI App 111 (Wisconsin Pharmacal Co. v. Nebraska Cultures of California, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals of Wisconsin primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Wisconsin Pharmacal Co. v. Nebraska Cultures of California, Inc., 2014 WI App 111, 358 Wis. 2d 673 (Wis. Ct. App. 2014).

Opinions

NEUBAUER, EJ.

¶ 1. This is an insurance coverage dispute in which the insureds supplied an incorrect ingredient for incorporation into a dietary supplement. The question presented is whether the insured suppliers' negligent provision of an ingredient that renders the other ingredients and the final product unusable when incorporated constitutes an occurrence resulting in property damage under the insureds' commercial general liability (CGL) policies. We conclude that it does. We reverse and remand for proceedings not inconsistent with this opinion.

FACTS

¶ 2. The underlying facts, as described in the complaint, are largely undisputed. Wisconsin Fharmacal Company, LLC (Fharmacal) was to supply a feminine health probiotic supplement to be sold under the label of a major retailer. The product called for Lactobacillus rhamnosus A (hereinafter rhamnosus) as an ingredient. Pharmacal contacted Nutritional Manufacturing Services, LLC (NMS) to locate a supplier of rhamnosus and to manufacture the supplement tablets. NMS contacted Nebraska Cultures of California, Inc. [680]*680(Nebraska Cultures) to locate the rhamnosus, and Nebraska Cultures in turn arranged with Jeneil Bio-tech, Inc. (Jeneil) to supply the rhamnosus.

¶ 3. Pharmacal ordered a "substantial quantity" of rhamnosus tablets from NMS. NMS purchased the rhamnosus from Nebraska Cultures to manufacture these tablets, and the certificate of analysis representing that the probiotic was rhamnosus "appeared to have originated" from Jeneil. NMS used the probiotic to manufacture the chewable tablets for Pharmacal, which sold the tablets to the retailer as part of the daily probiotic feminine supplement. The retailer later informed Pharmacal that the supplement tablets did not contain rhamnosus, but rather contained Lactobacillus acidophilus (hereinafter acidophilus), and Pharmacal confirmed this through independent testing. The retailer recalled Pharmacal's daily probiotic feminine supplement.

¶ 4. NMS assigned its claims to Pharmacal, and Pharmacal filed suit against Nebraska Cultures, and its insurer, Evanston Insurance Company (Evanston), and Jeneil, and its insurer, Netherlands Insurance Company (Netherlands). Pharmacal alleged various tort and contract causes of action. In response to motions to dismiss from Jeneil, Netherlands, and Nebraska Cultures, the circuit court dismissed (1) all Pharmacal's causes of action against Nebraska Cultures, (2) all of Pharmacal's causes of action against Jeneil, (3) all of NMS's causes of action against Jeneil, and (4) NMS's tort and statutory causes of action against Nebraska Cultures. After the circuit court's order dismissing these causes of action, the remaining claims were (1) NMS's contract claims against Nebraska Cultures, including claims for breach of contract, breach of duty of good faith and fair dealing, breach of implied war[681]*681ranty of merchantability, breach of implied warranty of fitness for a particular purpose, breach of implied warranty under the Uniform Commercial Code1 and (2) Nebraska Cultures' and Jeneil's cross-claims for contribution or indemnification.

¶ 5. Netherlands and Evanston moved to bifurcate and stay proceedings pending a coverage decision, and the court granted the motion. Netherlands and Evanston then moved for summary judgment on coverage. The circuit court deferred deciding the summary judgment and allowed the parties sixty days in which to conduct discovery. Ultimately, the circuit court granted summary judgment in favor of the insurers. The insurers argued that there was no coverage under their policies because there was no occurrence and there was no property damage. Furthermore, they argued, even if there were a covered occurrence, coverage was excluded by the business risk exclusions.

¶ 6. The circuit court ruled that there was no coverage, concluding that there was no damage to property other than the integrated product into which the mistaken ingredient had been incorporated and that this did not constitute property damage other than to the product itself, and there was not an occurrence. The circuit court went on to say that even if there were an initial grant of coverage, the impaired property and recall exclusions would preclude coverage. Finally, "under the facts of this particular case ... there's no duty to defend." Jeneil and Nebraska Cultures appealed, and their appeals were consolidated.

[682]*682DISCUSSION

Summary Judgment Standard

¶ 7. We review a grant of summary judgment de novo, applying the same methodology as the circuit court. American Family Mut. Ins. Co. v. American Girl, Inc., 2004 WI 2, ¶ 22, 268 Wis. 2d 16, 673 N.W.2d 65. Summary judgment "shall be rendered if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Wis. Stat. § 802.08(2) (2011-12).2 The materials submitted for summary judgment are viewed in the light most favorable to the nonmoving party. Summers v. Touchpoint Health Plan, Inc., 2008 WI 45, ¶ 15, 309 Wis. 2d 78, 749 N.W.2d 182. Like our review of a motion for summary judgment, the interpretation of an insurance policy is also a question of law we review de novo. American Girl, 268 Wis. 2d 16, ¶ 23.

General Insurance Law

¶ 8. Insurance contracts typically impose a duty to defend against claims and a duty to indemnify against losses. Olson v. Farrar, 2012 WI 3, ¶ 27, 338 Wis. 2d 215, 809 N.W.2d 1. Under Wisconsin law, if the allegations in the complaint, liberally construed, give rise to coverage, then the insurer is required to provide a defense until coverage is determined. Id., ¶ 30 (citing [683]*6832 Arnold Anderson, Wisconsin Insurance Law § 7.41 (6th ed. 2011)). This initial determination of the duty to defend is based on the four-corners rule: "[w]hen a complaint alleges facts that, if proven, would constitute a covered claim, the insurer must appoint defense counsel for its insured without looking beyond the complaint's four corners." Estate of Sustache v. American Family Mut. Ins. Co., 2008 WI 87, ¶ 27, 311 Wis. 2d 548, 751 N.W.2d 845 (alteration in original). The insurer may decide to provide a defense while the coverage question is pending. In that case, the circuit court may consider extrinsic evidence beyond the four corners of the complaint when making its coverage decision. Olson, 338 Wis. 2d 215, ¶¶ 35, 38.

¶ 9. Here, the circuit court allowed additional discovery before deciding the coverage questions, and none of the parties argues that deciding indemnity coverage at this juncture on summary judgment was error.3

¶ 10. Our procedure in analyzing this coverage question potentially involves three steps. American Girl, 268 Wis. 2d 16, ¶ 24. First, we examine the facts [684]*684and the policies to determine if there is an initial grant of coverage. Id. If there is an initial coverage grant, we move to the policies' exclusions to see if they preclude coverage. Id. Finally, if any exclusion applies, we look to see whether there is any applicable exception to that exclusion that would restore coverage. Id.

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2014 WI App 111, 358 Wis. 2d 673, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wisconsin-pharmacal-co-v-nebraska-cultures-of-california-inc-wisctapp-2014.