Silgan Containers, LLC v. National Union Fire Insurance Company of Pittsburgh, Pennsylvania

MEMORANDUM

Silgan Containers, LLC, appeals from the district court’s summary judgment in favor of National Union Fire Insurance Company, Silgan’s excess insurer. We have jurisdiction pursuant to 28 U.S.C. § 1291 and reverse and remand.

“[Pjroperty damage is not established by the mere failure of a defective product to perform as intended,” F & H Constr. v. ITT Hartford Ins. Co., 118 Cal.App.4th 364, 372 , 12 Cal.Rptr.3d 896 (2004), unless the third party’s property becomes damaged at the point of incorporation with the defective product. See, e.g., Shade Foods, Inc. v. Innovative Prods. Sales & Mktg., Inc., 78 Cal.App.4th 847, 865-66 , 93 Cal.Rptr.2d 364 (2000); Armstrong World Indus., Inc. v. Aetna Cas. & Sur. Co., 45 Cal.App.4th 1, 90-94 , 52 Cal.Rptr.2d 690 (1996). Therefore, the district court did not err in rejecting Silgan’s argument that, as a matter of law, Del Monte’s tomato product was injured at the moment it was put into the defective cans.

Nevertheless, drawing all inferences in favor of Silgan, the record indicates that Del Monte’s tomato product in at least some of the cans suffered a physical injury during the policy period, and therefore there is a genuine…