Newark Ins. Co. v. Acupac Packaging Inc

In Newark Ins. Co. v. Acupac Packaging Inc., 328 N.J. Super. 385, 746 A.2d 47 (App.Div.2000), the Court considered the concept of economic loss, business risk, and work performance exclusions against the backdrop of policy provisions similar to those involved in this case, and emphasized the critical distinction between insurance coverage for tort liability for physical damages to other persons or property, and protection from contractual liability of the insured for economic loss caused by improper workmanship. Ordinarily, the coverage is for tort liability for physical damage 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. Id. at 391, 746 A.2d 47. The insured in Newark Ins., supra, contracted with an advertising firm to supply over two million pacquettes to be filled with Revlon skin cream, which pacquettes were to be attached to an advertising card that would be bound in an August 1996 edition of Glamour magazine. Id. at 388-89, 746 A.2d 47. The pacquettes were defective in that they "could not withstand the pressure applied to them in the binding process," causing some of them to leak and damage the printed advertising cards on which they were glued. Id. at 389, 746 A.2d 47. Both Revlon and the advertising agency made claims against the defendant packaging company, which submitted the claims to its insurer, Newark Insurance Company. The claims were denied except for the one asserting physical injury to the cards onto which the lotion pacquettes actually leaked. Id. at 390-91, 746 A.2d 47. The carrier's motion for summary judgment in its declaratory judgment action was granted based upon the business risk exclusion and sistership provisions in the policy. Id. at 391, 746 A.2d 47. Judge Steinberg phrased the question before us as requiring a determination of whether the damages for which the insured sought indemnification were "an economic loss caused by improper workmanship, which is a business risk commonly absorbed as a business expense, or, on the other hand, is the result of an accidental injury to property of others giving rise to tort liability." Id. at 392-93, 746 A.2d 47.