                                                                                                                           Opinions of the United
2002 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-5-2002

Limited Inc v. Cigna Ins Co
Precedential or Non-Precedential:

Docket 1-2078




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Recommended Citation
"Limited Inc v. Cigna Ins Co" (2002). 2002 Decisions. Paper 101.
http://digitalcommons.law.villanova.edu/thirdcircuit_2002/101


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                                                  NOT PRECEDENTIAL

                THE UNITED STATES COURT OF APPEALS
                      FOR THE THIRD CIRCUIT

                           ___________

                           No. 01-2078
                           ___________

                        THE LIMITED, INC.;
                    BATH AND BODYWORKS, INC.,

                                    Appellants,

                               v.

                     CIGNA INSURANCE COMPANY
                           ___________

         ON APPEAL FROM THE UNITED STATES DISTRICT COURT
             FOR THE EASTERN DISTRICT OF PENNSYLVANIA

                   (D.C. Civil No. 00-cv-03766)
       District Judge: The Honorable Clarence C. Newcomer
                           ___________

            Submitted Under Third Circuit LAR 34.1(a)
                         JANUARY 22, 2002


         BEFORE: NYGAARD and STAPLETON, Circuit Judges,
                   and CAPUTO, District Judge.



                     (Filed February 5, 2002)

                           ___________

                MEMORANDUM OPINION OF THE COURT
                          ___________


NYGAARD, Circuit Judge.
         The appellants, The Limited Inc., and Bath and Bodyworks, Inc.,
brought an
action for declaratory judgment against appellee, Cigna Insurance Company,
now known
as ACE USA Insurance Company, for insurance coverage under a policy that
appellants
had purchased from it. The District Court granted summary judgment to the
defendant,
Cigna. Appellants contend that the District Court erred, raising the six
issues listed in
Section I below, taken from its brief. We will affirm.
                            I. ISSUES
1.       Did the District Court err in interpreting coverage under the
terms of a
         Project Tampering and Accidental Contamination Insurance Policy
by
         failing to give the policyholder, The Limited, the benefit of any
reasonable
         interpretation of the provisions?
2.       Did the District Court err by failing to give proper weight to
the evidence
         that the Food and Drug Administration, one of only two agencies
authorized
         to conduct product recalls, required the recall of the Bath and
Bodywork's
         product based on a finding that the product was "adulterated?"
3.       Did the District Court improperly make factual findings on cross-
motions
         for summary judgment?
4.       Did the District Court fail to give adequate weight to the
evidence of
         Cigna's bad faith?
5.       Did the District Court improperly deny The Limited the
opportunity to take
         discovery on new, relevant matters that were not revealed until
after the
         close of discovery?
6.       Did the District Court improperly deny The Limited's motion for
         reconsideration?
                               II.
         We need not discuss each issue. Essentially, the facts are that
The Limited
purchased a "Product Tampering and Accidental Contamination Policy" in
which ACE
agreed to pay The Limited for "losses cased by or resulting from any
product tampering
or accidental contamination of a covered product." The policy contained
definitions for
both "accidental contamination" and "covered product." One of the
products in the
personal care products line is known as "Foam Burst Moisturizing Body
Wash." It is a
fragrant flower gel that produces a cleansing lather when dispensed from
its container and
exposed to water. It is packaged under pressure and its contents are
dispensed by
depressing a button on the canister.
         Appellants began receiving complaints from consumers that they
had
suffered eye injuries resulting from their use of Foam Burst. Apparently,
the dispensing
mechanism or button allowed the product to get into their eyes, irritating
them, and could
not be simply washed away because water actuated further foaming. The
Limited sought
to recover from ACE under the aforementioned policy. ACE refused to pay
and denied
coverage for these losses.
         The fundamental issue is legal: does this policy provide coverage
under
these facts? For appellant to meet its burden of proof in coverage for an
"accidental
contamination" it was required to establish under the terms and
definitions of the policy:
(1) an accidental or unintentional adulteration; (2) of a covered product;
(3) that occurred
while Foam Burst was being manufactured, produced, processed, prepared,
packaged, or
labeled; (4) by plaintiff or anyone acting on plaintiff's behalf with whom
plaintiff had a
written agreement.
         It is apparent from an examination of the record that appellant's
policy
simply does not fit the loss it incurred here. The District Court
painstakingly went
through the various definitions, both in the contract and the general
meaning of words not
specifically defined by the contract, and it concluded that appellant had
failed to
demonstrate that the Foam Burst product was adulterated or accidentally
contaminated
under the provisions of the policy. We agree with the District Court that
the plain
language of the policy (and its title) indicates that the parties intended
to have coverage
only for those instances of actual product tampering and accidental
contamination. This
product performed as it was supposed to, but caused unintended injury, and
had to be
recalled   much to appellant's financial detriment. Nonetheless,
appellant's policy with
Cigna simply does not cover this loss. We find no merit in the other
issues raised by
appellant and will affirm.

_________________________


TO THE CLERK:

         Please file the foregoing opinion.
/s/ Richard L. Nygaard
Circuit Judge
