Unifoil Corp. v. CNA Ins. Co

In Unifoil Corp. v. CNA Ins. Co., 218 N.J. Super. 461, 528 A.2d 47 (App.Div.1987) the Court held that the claims asserted against Unifoil, the insured, were essentially for breach of warranty which fell within the business risk exclusion and, consequently, Unifoil was not entitled to coverage. The insured was a producer of foil-laminated paper used in the manufacture of lottery tickets. A supplier and sub-supplier of the insured were apparently responsible for defective lacquer furnished to the insured which, in turn, caused the insured's product to be defective. When tickets were further processed by the insured's customer, the tickets' surface would not retain pre-printing after an opaque covering was scraped off. Thus, the purchasers of the tickets were unable to read the symbols beneath the covering and determine whether they had won prizes. The final recipient of the allegedly defective foil-coated paper brought suit against the insured's customer asserting breaches of warranty under the Uniform Commercial Code. In turn, the insured's customer filed a third-party complaint against the insured, Unifoil, asserting both breaches of warranty and negligence on Unifoil's part. Correctly recognizing that if physical injury is shown the business risk exclusion does not apply, we concluded that the facts presented "no more than a warranty claim made against Unifoil by a customer who suffered economic damages allegedly due to the failure of Unifoil's product to perform as specified". Unifoil, supra, 218 N.J. Super. at 471, 528 A.2d 47. Although the allegedly unusable coated paper sold by Unifoil was changed in appearance, we concluded that it was merely enhanced by the services of others in the manufacturing process. The Court thus concluded that although the original product was printed, coated, cut and distributed, it did not constitute "tangible property physically injured or destroyed" and the claims were, therefore, outside the coverage of the policy. Id. at 471, 528 A.2d 47. Significantly, we recognized that there would be coverage if the defective product caused damage to other tangible property, not merely to intangible enhancements of the original item. Id. at 470, 528 A.2d 47. In disposing of Unifoil's argument that if coverage is not afforded the policy for which it paid substantial premiums was illusory, we observed that if the laminate had proved toxic, or if the foil had separated and cut the holder of the ticket, or if a defect in the ticket caused the material to injure a processor's printing machines or other equipment, the insurer would have been responsible under its policy. Id. at 472, 528 A.2d 47.