Blue Isle of California, Inc. v. Hartford
Blue Isle of California, Inc. v. Hartford
Opinion of the Court
MEMORANDUM
Plaintiff-Appellant Blue Isle of California appeals the district court’s grant of summary judgment in favor of Defendant Appellee Hartford Casualty Insurance Company. Because the parties are familiar with the facts, we recite them only as necessary. We affirm.
The district court, relying on New Hampshire Ins. Co. v. Vieira, 930 F.2d 696 (9th Cir. 1991), determined that any injury caused by JN’s zippers did not constitute “property damage” as that term is defined by the policy. That conclusion may have been called into question by a decision of our court announced after the district court’s decision here, Anthem Electronics, Inc. v. Pacific Employers Ins. Co., 302 F.3d 1049 (9th Cir. 2002). But we need not reach that issue. This court may affirm summary judgment on any ground sup
The versions of exclusions “m” and “n” that apply here are the modified versions which appear in the Special Broad Form Commercial General Liability Endorsement. As so modified, exclusion “m’
Coverage is also precluded because of exclusion “n,” which denies coverage in the event of, inter alia, withdrawal or recall from the market of a product of which the insured’s product forms a part.
As the assignee of JN’s claims against Hartford, Blue Isle argues that Hartford had a duty to defend JN, even in the absence of an ultimate duty to indemnify. The duty to defend is broader than the duty to indemnify. Montrose Chemical Corp. of Calif. v. Superior Court (Canadian Universal Ins. Co.), 6 Cal.4th 287, 295, 24 Cal.Rptr.2d 467, 861 P.2d 1153 (1993). But this duty to defend is not limitless.
Finally, Blue Isle contends that there were issues of fact requiring a jury determination. We have reviewed the factual issues alleged to be in dispute and conclude that either they were not genuinely disputed or they were not material to the grounds for granting summary judgment.
AFFIRMED.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.
. "This insurance does not apply to:
(m) Loss of use of tangible property which has not been physically injured or destroyed, resulting from: (1) A delay in or lack of performance by you or on your behalf of any contract or agreement; or (2) the failure of 'your product’ or ‘your work’ to meet the level of performance, quality, fitness or durability warranted or represented by you or on your behalf. This exclusion does not apply to loss of use of other tangible property resulting from the sudden and accidental physical injury to or physical destruction of: (1) ‘Your product;' or (2) ‘Your work;’ after such product or work has been put to its intended use.”
. "This insurance does not apply to:
(n) Damages claimed for any loss, cost or expense incurred by you or others for the loss of use, withdrawal, recall, inspection, repair, replacement, adjustment, removal or disposal of: (1) ‘Your product;’ (2) 'Your work;’ (3) Any property of which ‘your product’ or 'your work’ forms a part; if such product, work, or property is withdrawn or recalled from the market or from use by any person or organization because of a known or suspected defect, deficiency, inadequacy or dangerous condition in it.”
Case-law data current through December 31, 2025. Source: CourtListener bulk data.