                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 12a0699n.06

                                            No. 11-3818
                                                                                            FILED
                           UNITED STATES COURT OF APPEALS                              Jun 29, 2012
                                FOR THE SIXTH CIRCUIT
                                                                                 LEONARD GREEN, Clerk
EXPRESS PACKAGING OF OH, INC.,

       Plaintiff-Appellant,
                                                       ON APPEAL FROM THE UNITED
v.                                                     STATES DISTRICT COURT FOR THE
                                                       NORTHERN DISTRICT OF OHIO
AMERICAN STATES INSURANCE CO.,

       Defendant-Appellee.

                                                /


BEFORE:        DAUGHTREY and CLAY, Circuit Judges; CLELAND, District Judge.*

       CLAY, Circuit Judge. Plaintiff Express Packaging of OH, Inc. appeals an order granting

summary judgment to Plaintiff’s insurer, Defendant American States Insurance Company, on its

claim that Defendant breached its duty to indemnify Plaintiff under the terms of its insurance policy.

For the reasons that follow, we AFFIRM.

                                         BACKGROUND

       Plaintiff is an Ohio corporation “engaged in the business of wrapping and packaging products

for various food producers.” Plaintiff insured its business through a commercial general liability

(CGL) insurance policy with Defendant. In 2008, Plaintiff was hired to package cans of dog food

for its customer, Mars Petcare US (“Mars”). Plaintiff was invited to Mars’ factory, where it was

given a portion of the factory to set up its equipment and perform its packaging services. Mars

       *
       The Honorable Robert H. Cleland, United States District Judge for the Eastern District of
Michigan, sitting by designation.
                                            No. 11-3818

prepared and canned the dog food, grouped the food into cases consisting of a single layer of twenty-

four cans, wrapped the cases in cellophane to prevent the cans from shifting, and transported the

cases to Plaintiff’s workspace. Once Plaintiff received the cases, it would first remove the

cellophane overlay with a machine it created and owned, called the “automated cutting conveyor

system.” The machine operated as a table fitted with blades on each side that were designed to cut

away the cellophane but leave the cans untouched. Plaintiff’s contracted employees would then

remove the cans from the cases, combine the cans into variety-flavored packages, and re-wrap the

packages with consumer-ready plastic wrap containing Mars’ brand and advertising information.

       Sometime between July to September 2008, Plaintiff’s automated cutting conveyor system

malfunctioned and punctured Mars’ cans in the course of removing the cellophane from around the

cans. Once cut open, the dog food spoiled and the cans exploded. Mars recalled approximately

821,424 cases of dog food and destroyed 13,261 of them. Plaintiff voluntarily compensated Mars

for the $241,524 loss it suffered, though the parties never determined the cause of the machine’s

malfunction. Prior to compensating Mars, Plaintiff notified Defendant of Mars’ liability claim and

ultimately sought full indemnification under its insurance policy for the amount it had paid to Mars.

When Defendant refused to indemnify Plaintiff on the ground that Mars’ claim was not covered in

the policy, Plaintiff filed the present action. The case was removed to federal court based on

diversity jurisdiction, where the court granted summary judgment to Defendant. Plaintiff timely

appealed.




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                                           DISCUSSION

       We review de novo a district court’s order granting summary judgment. Holloway v. Brush,

220 F.3d 767, 772 (6th Cir. 2000) (en banc). Summary judgment is appropriate where “there is no

genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”

Fed. R. Civ. P. 56(a). We view the facts and reasonable inferences in the light most favorable to

Plaintiff as the nonmoving party. Holloway, 220 F.3d at 772.

       Under Ohio law, which the parties agree governs this case, the interpretation of an insurance

contract is a question of law. United Nat’l Ins. Co. v. SST Fitness Corp., 182 F.3d 447, 449 (6th Cir.

1999); Lager v. Miller-Gonzalez, 896 N.E.2d 666, 669 (Ohio 2008). “A policy of insurance is a

contract and like any other contract is to be given a reasonable construction in conformity with the

intention of the parties as gathered from the ordinary and commonly understood meaning of the

language employed.” Dealers Dairy Prods. Co. v. Royal Ins. Co., 164 N.E.2d 745, 747 (Ohio 1960);

Andersen v. Highland House Co., 757 N.E.2d 329, 332 (Ohio 2001). Policy exclusions must be

clear to combat the general presumption that a claim is included in a policy. Andersen, 757 N.E.2d

at 332 (citing Home Indemn. Co. of N.Y. v. Plymouth, 64 N.E.2d 248 (Ohio 1945)). “Where

provisions of a contract of insurance are reasonably susceptible of more than one interpretation, they

will be construed strictly against the insurer and liberally in favor of the insured.” Lane v. Grange

Mut. Cos., 543 N.E.2d 488, 490 (Ohio 1989). “[I]n order to defeat coverage, the insurer must

establish not merely that the policy is capable of the construction it favors, but rather that such an

interpretation is the only one that can fairly be placed on the language in question.” Andersen, 757

N.E.2d at 332 (internal quotation marks omitted). “Ambiguity exists only where a term cannot be


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determined from the four corners of the agreement or where contract language is susceptible to two

or more reasonable interpretations.” Potti v. Duramed Pharm., Inc., 938 F.2d 641, 647 (6th Cir.

1991); see Sunoco, Inc. v. Toledo Edison Co., 953 N.E.2d 285, 292 (Ohio 2011).

       Plaintiff argues that Defendant must indemnify it for the losses it suffered in the Mars dog

food incident, because that accident is covered under Coverage A of the insurance policy for

“property damage caused by an occurrence that takes place within the coverage territory.”

Defendant, however, points to Coverage A exclusions j (subsections 4 and 6), k, l, and n. The

district court found that Plaintiff’s claim initially fell within Coverage A, but that exclusion j(6)

ultimately precluded its recovery.

       Exclusion j(6) of the policy provides, in relevant part, that Defendant will not indemnify loss

for “property damage” to:

       [t]hat particular part of any property that must be restored, repaired, or replaced
       because “your work” was incorrectly performed on it.

“Property damage” is defined in relevant part as “[p]hysical injury to tangible property, including

all resulting loss of use of that property.” The policy also defines the term “your work” to mean “(1)

[w]ork or operations performed by you or on your behalf; and (2) [m]aterials, parts or equipment

furnished in connection with such work or operations.”

       We find that the cans of dog food were tangible property that was physically injured when

they were nicked, thus fitting within the “property damage” requirement. We also find that

Plaintiff’s work involved the service of handling the cans and removing the cellophane casing from

the cans. In the process of performing this service, Plaintiff’s equipment malfunctioned and

damaged the cans. Its work on the cans was thus “incorrectly performed.” The policy language

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appears unambiguous as applied to the facts of Plaintiff’s claim, and a straightforward reading of that

language demonstrates that the damage to the cans is excluded from coverage by exclusion j(6). See

Andersen, 757 N.E.2d at 332.

       As noted by the district court, several decisions of the Ohio Court of Appeals support our

holding. Most analogous is the decision in Welfle, Inc. v. Motorist Insurance Group, which held that

a CGL j(6) exclusion applied where, in the course of removing asphalt from a bridge surface, the

insured’s rotomill malfunctioned and damaged the underlying bridge concrete deck. No. 06CA0063-

M, 2007 WL 1174652, at *3 (Ohio Ct. App. Apr. 23, 2007) (explaining that the exclusion applied

because the insured “misused its rotomill while using it to remove asphalt from the bridge deck

thereby damaging the bridge deck”). In another factually similar case, LISN, Inc. v. Commercial

Union Insurance Cos., the Ohio Court of Appeals found that a CGL j(6) exclusion applied where,

in the course of removing old cable wires, the insured accidentally cut new cable wires in the

process. 615 N.E.2d 650, 653–54 (Ohio Ct. App. 1992) (noting that the j(6) exclusion is a “business

risk” exclusion, and the possibility of damaging some wires while removing others was a risk

“inherent to performing a particular type of work”). In the case before us, Plaintiff was hired to work

with the cans, did in fact work on the cans by removing the cellophane around them and repackaging

them, and improperly performed its service when its machine came into direct contact with the cans,

nicked the cans, and damaged the cans. In light of Welfle and LISN, we find unpersuasive Plaintiff’s

argument that the exclusion cannot apply because it was not hired to “work on” the cans, but only

to work on the cellophane around the cans. See Welfe, 2007 WL 1174652, at *3 (holding that an

insured who misuses a tool to remove something from around an object and thereby damages the


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                                            No. 11-3818

object leads to the conclusion that the insured “worked on” the object itself). In conformity with

these persuasive Ohio appellate court decisions, we conclude that the j(6) exclusion applies and

precludes Plaintiff’s recovery.

       Other Sixth Circuit and Ohio decisions cited by Plaintiff are distinguishable. In Beaverdam

Contracting, Inc. v. Erie Insurance Co., an insured was hired to clear a parcel of land but mistakenly

cleared land belonging to a third party who was not the insured’s client. No. 1-08-17, 2008 WL

4378153, at *1 (Ohio Ct. App. Sept. 29, 2008). The court rejected the insurance company’s claim

that the CGL j(6) exclusion applied, because the claim involved “accidental damage to the property

of a third party who was not in any way involved with the contracted work project.” Id. at *10. The

court upheld but distinguished LISN and Welfle, because, in those cases:

       the contractors were in the process of doing the job they were hired to do, they were
       working on their customers’ property, and the damages were sustained by the
       customer—not a third party. Essentially, the insured parties incorrectly performed the
       work they were hired to do for their customers, and the customers sought
       compensation for damages.

Id. at *8. We believe that the present case is more analogous to LISN and Welfle, because Plaintiff

was performing the work that it was hired to do, but performed it improperly. Plaintiff was not

performing work on property belonging to a non-client, third party as was the case in Beaverdam.

       Plaintiff also cites our decision in Fortney & Weygandt, Inc. v. American Manufacturers

Mutual Insurance Co., where an insured had laid a defective foundation, resulting in damage to the

foundation and underground utility lines as well as the structure later built above. 595 F.3d 308, 309

(6th Cir. 2010). We found that the CGL j(6) exclusion barred the insured’s recovery for damage to

the foundation, but permitted recovery for damage to the building, because the exclusion “applies


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only to the cost of repairing or replacing distinct component parts on which the insured performed

defective work.” Id. at 311 (citing Mid-Continent Cas. Co. v. JHP Dev., Inc., 557 F.3d 207, 215–17

(5th Cir. 2009)). Because the work on the structure was performed correctly, coverage was not

excluded even though the insured’s “incorrect work” on the foundation was the proximate cause of

the damage to the building. Id. Fortney’s holding is in harmony with the Ohio cases, but is factually

distinguishable from those cases and the case before us. As discussed above, Plaintiff’s work on the

actual cans was defective, so this case falls on the other side of the factual distinction drawn by

Fortney.

       Because we agree that exclusion j(6) applies to Plaintiff’s claim, we need not decide the

applicability of other exclusions or the issue of coverage, generally.

                                         CONCLUSION

       For the reasons discussed above, we AFFIRM the district court order granting summary

judgment to Defendant.




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