Lead Opinion
Plaintiff Raymond Corporation manufactures sideloader forklifts.
I.
In 1994, Arbor sold Joseph T. Ryerson & Son, a steel distributor, two new Raymond sideloaders for installation in its Philadelphia facility. Because its new cantilever rack system
Ryerson subsequently located a second Raymond sideloader in Chicago. Ryerson rented this unit, which was disassembled and shipped to its facility in Philadelphia. Arbor sent two service technicians to reassemble and adjust the sideloader, which was configured for use in a rail-guided system where the guide rails were both closer together and higher than at Ryerson’s facility.
Arbor’s technicians did not properly fit the sideloader’s guide rollers within the rails at Ryerson’s facility. As a result, the sideloader tended to wobble from side to side and to jam. A Ryerson employee sustained serious head and brain injuries while operating it. The parties do not dispute that Arbor’s negligence—not any defect in Raymond’s product, the sideloader— caused this accident.
The injured worker sued Raymond and Arbor, among others, for damages. During discovery, one of the two Arbor technicians essentially admitted that he knew the sideloader was unsafe when he placed it into service. Arbor and Raymond settled the action prior to trial for $6 million, and Arbor’s primary liability insurer contributed $3 million toward the settlement. Raymond looked to National for the balance, contending that the vendor’s endorsement, which listed Arbor as an additional insured, provided coverage. National contested coverage. Ultimately, however, National and Raymond agreed to contribute $2.5 million and $500,000 respectively, while reserving their rights to resolve their coverage dispute in a separate action.
Raymond and Arbor brought this action seeking judgment against National for Raymond’s $500,000 contribution towards the settlement of the underlying action. National сounterclaimed for judgment against Raymond in the amount of its $2.5 million contribution. After discovery, both parties moved for summary judgment. Supreme Court denied Raymond’s motion and granted National summary judgment, dismissing Raymond’s complaint and issuing judgment on National’s counterclaim. The court concluded that the vendor’s endorsement was limited to personal injury claims arising out of a product defect.
The Appellate Division, unlike Supreme Court, read the vendor’s endorsement as broad enough to cover claims arising out of the vendor’s negligence. Accordingly, the Appellate Division reversed, on the law, denied National’s motion, and granted Raymond summary judgment, declaring that Arbor is an ad
II.
The vendor’s endorsement (Endorsement 5 [“Additiоnal Insured—Vendors Schedule”]) in the policy states that,
“ ‘[s]ection III—Who is An Insured’ is amended to include as an Insured any person or organization (referred to below as ‘vendor’) shown in the schedule, but only with respect to ‘Bodily Injury’ or ‘Property Damage’ arising out of ‘Your Products’ [Raymond’s products] shown in the schedule which are distributed, sold, repaired, serviced, demonstrated, installed or rented to others in the rеgular course of the vendor[’]s business, subject to” several exclusions.
“In determining a dispute over insurance coverage, we first look to the language of the policy. We construe the policy in a way that affords a fair meaning to all of the language employed by the parties in the contract and leaves no provision without force and effect” (Consolidated Edison Co. of N.Y. v Allstate Ins. Co.,
Here, the policy covers vendors, such as Arbor,
“only with respect to ‘Bodily Injury’ or ‘Property Damage’ arising out of [Raymond’s products] . . . which are distributed, sold, repaired, serviced, dеmonstrated, installed or rented to others in the regular course of the vendor[’]s business” (emphasis added).
We conclude that bodily injuries “arising out of [Raymond’s products]” means injuries arising out of defects in the products, rather than arising out of the vendor’s negligence. The modifying phrase, “which are distributed, sold, repaired, serviced, demonstrated, installed or rented to others in the regular course of the vendor[’]s business,” on which Raymond places so much
This phrase reflects that Arbor is not only a vendor of Raymond’s products, but also repairs, services, demonstrates, installs and tents them. A vendor’s endorsement “ extend [s] cоverage to distributors of [the vendor’s] product who may be sued for breach of warranty or for strict products liability should the product turn out to be defective or unreasonably dangerous and cause an injury” (Hartford Fire Ins. Co. v St. Paul Surplus Lines Ins. Co.,
The dissent would discover coverage for vendor negligence in negative inferences from the policy’s exclusions, but “an exclusion from insurance coverage cannot create coverage” (Continental Cas. Co. v Pittsburgh Corning Corp., 917 F2d 297, 300 [7th Cir 1990]; see also Weedo v Stone-E-Brick, Inc., 81 NJ 233, 247,
Exclusion 1 (A) excludes coverage for claims “for which the Insured is obligated to pay ‘damages’ by reason of the assumption of liability in a contract or agreement.” For example, in order to obtain business or other favorable contract terms from a customer, Arbor might agree to assume liability in any product-defect suit brought against the customer by Arbor’s еmployee who installed or repaired Raymond’s product, or by the customer’s employee. By excluding coverage for “[a]ny Express Warranty unauthorized by [Raymond],” exclusion 1 (B) simply provides that the policy’s coverage for product defects is unavailable where the plaintiffs claim is based on an express warranty made by Arbor—for example, in a marketing or sales brochure—when this warranty was unauthorized by Raymond.
Exclusion 1 (D) excludes coverage for Arbor’s failure to make promised or normally-performed “inspections, adjustments, tests or servicing ... in connection with distribution or sale of the products.” Thus, this exclusion provides that, while
Under exclusion 1 (E), the coverage afforded Arbor does not apply to ‘ ‘ [d] emonstration, installation, servicing or repair operations except such operations performed by the Vendor” (еmphasis added). Thus, there is no coverage where the defective product causing the injury was being demonstrated, installed, serviced, repaired or rented by someone other than Arbor, Raymond’s vendor. This exclusion ensures that Raymond—rather than a nonvendor third party—created the allegedly injury-causing product defect. Exclusions 1 (D) and 1 (E) both supply incentives for Arbor to maintain and demonstratе Raymond’s products itself rather than farm out these activities to third parties who may lack Arbor’s expertise or knowledge.
The vendor’s endorsement has its genesis in products liability law. Accordingly, “[s]uch an endorsement covers the vendors’ liability arising out of their role in passing the manufacturer’s product on to customers, but does not cover vendors for their own negligence. Coverage under the vеndor’s endorsement is limited to injuries arising out of a defect in the manufacturer’s product” (9 Couch on Insurance 3d § 130:3 [1997]).
As the Seventh Circuit Court of Appeals elaborated in Hartford,
“the purpose of a vendor’s endorsement is to protect the vendor (i.e., dealer or other distributor) against the expense of being dragged as an additional defendant into a lawsuit arising from a defect in a product that it distributes. It makes sense for the manufacturer to buy the insurancе, as he has a better sense of the risk that there will be suits complaining about defects in his products. This assumes, however, that the vendor’s role in the distribution of the product is passive. The manufacturer would be unlikely to insure the vendor against defects introduced by the vendor himself, . . . the risk of those defects being better known to the vendor than to the manufacturer. ...
“Beyond that, the vendor’s endorsement is inapplicable if the vendor, whether by participаting in the creation of the product or by altering or repairing it, may be responsible for the alleged defect out of which the products liability suit arises. That at least is the majority view” ( 280 F3d at 746-747 [citations omitted and emphasis added]).
The court further remarked upon the “improbability of supposing that the manufacturer’s insurer intends to protect others against the risks that the others create” (id. at 747), and noted the
“further consideration . . . that vendor’s endorsement pоlicies are cheap add-ons to products liability policies . . . and their cheapness makes the most sense if they’re limited to the case in which the vendor, being completely passive in relation to the harm giving rise to liability rather than the active author of the harm, would be entitled to indemnity from the manufacturer in the event that he (the vendor) was sued and held liable and made to pay damages. For in such a case the vendor’s endorsement would be unlikely to impose a big loss on the insurance company even if the vendor was hit with a damages judgment” (id. [citation omitted]).
In sum, the vendor’s endorsement in this case covers Arbor for defective-product suits arising out of its distribution, sale, repair, servicing, demonstration or rental of Raymond’s products. Nothing in the wording of the endorsement (or the exclusions, for that matter) suggests that bodily injuries “arising out of’ Raymond’s products encompasses the vendor’s independent acts of negligence. Our interpretation of the endorsement follows its language and comports with the traditional majority view, the origins of the vendor’s endorsement as an outgrowth of products liability law, and common and economic sense.
Accordingly, the order of the Appellate Division should be reversed, with costs, and the order of Supreme Court reinstated.
Notes
. Sideloader forklifts have forks on the side, and they run on rail systems in the aisles of warehouses.
. Cantilever racks have arms cantilevered off a vertical column, and loads are placed either directly on the arms or on shelves supported hy them. Their long, unobstructed shelves with no uprights are well suited for storage of long and varied loads.
. When asked what he meant by this representation, Arbor’s sales manager explained that Arbor typically would not service a competitor’s unit installed in a customer’s facility; however, “because of the unusual circumstances, with [Arbor] not being able to acquire a unit, if [Ryerson] . . . acquire[d] the unit, [Arbor] would fix the unit, should it break down, and . . . provide parts. And[ ] not tell [Ryerson] to fly someone in from Chiсago to fix the unit that they rented from someone else.”
Dissenting Opinion
(dissenting). I agree that the “purpose of a vendor’s endorsement,” as it is described in Hartford Fire Ins. Co. v St. Paul Surplus Lines Ins. Co. (
The vendor’s endorsement contains six exclusions, of which four are rendered pointless by the majority’s interpretation. Those four provide:
“The Coverage afforded the Vendor does not apply to:
“A. ‘Bodily Injury’ or ‘Property Damage’ for which the Insured is obligated to pay ‘damages’ by reason of the assumption of liability in a contract or agreement;
“This exclusion does not apply to liability for ‘damage’ that the ‘Insured’ wоuld have in absence of the contract or agreement;
“B. Any Express Warranty unauthorized by ‘YOU’;
“D. Any failure to make such inspections, adjustments, tests or servicing as the Vendor has agreed to make or normally undertakes to make in the usual course of business, in connection with distribution or sale of the products;
“E. Demonstration, installation, servicing or repair operations except such operations performed by thе Vendor . . . .”
If, as the majority says, the vendor’s endorsement applies only in cases arising out of product defects, why did the author
I find the majоrity’s attempts to give these exclusions some meaning that is consistent with its interpretation of the endorsement completely unpersuasive. It is far-fetched to think that exclusion A was intended to cover the very rare case where a manufacturer would not be liable for a product defect but for its assumption of liability in a contract; I am impressed that the majority can come up with a single example—an agreement to waive workers’ compensation protection (majority op at 163)— but I cannot believe that is what the author of the endorsement had in mind. The majority simply restates exclusion B, mentioning that express warranties might be contained “in a marketing or sales brochure,” but making no attempt to explain why claims based on such warranties would be excluded from аn endorsement that did not cover them in the first place (id.). I think the majority is simply wrong in saying that exclusion D “makes sense because neglect to maintain a product properly may eventually cause it to become defective” (id. at 164); that is not what “product defect” means (see Black’s Law Dictionary 450 [8th ed 2004] [“An imperfection in a product that has a manufacturing defect or design defect, or is faulty because of inadequate instructions or warnings”]). The majority is no doubt right that a product defect caused by poor maintenance, or any other imaginable piece of illogie, “might be alleged in a product-defect lawsuit” (majority op at 164), but it is highly unlikely that exclusion D was written to provide against that possibility. The majority’s explanation of exclusion E is that it is designed to insure “that Raymond—rather than a nonvendor third party—created the allegedly injury-causing product defect” (id.). But defects are not product defects unless the manufacturer “created” them, and if the endorsement were limited to claims based on product defects, there would be no reason either to exclude
Thus, I read the vendor’s endorsement here as applicаble to a case, like this one, arising out of an injury caused by a Raymond product, whether the product was defective or not. Cases from other jurisdictions support this reading. Pep Boys v Cigna Indent. Ins. Co. of N. Am. (300 NJ Super 245,
The majority relies on Hartford but, while Judge Posner’s opinion contains general remarks about vendor’s endorsements that are consistent with the result thé majority reaches, Hartford was quite a different case. The vendor there had not only sold the product in question—a diet pill—but had “designed the contents of the label, including the warnings” (
The majority also relies on Couch’s treatise, which says that coverage under vendor’s endorsements “is limited to injuries arising out of a defect in the manufacturer’s product” (9 Couch on Insurance 3d § 130:3 [1997], quoted at majority op at 164). But the treatise does not offer this comment as an interpretation of any рarticular policy language. The treatise, I believe, must be read as describing what vendor’s endorsements often say, or what its author believes they ought to say. This one does not say it.
I therefore conclude that the Appellate Division correctly held that the claim against Arbor was within the coverage provided by the vendor’s endorsement, and I would affirm the Appellate Division’s order.
Order reversed, etc.