NAHMIAS, Justice.
Appellee AGCO Corporation (AGCO) manufactured and sold a self-propelled, agricultural spray applicator called the RoGator. In 2005, AGCO began offering an Extended Protection Plan (EPP) to its RoGator customers. Appellant Lloyd's Syndicate No. 5820 d/b/a Cassidy Davis (Cassidy Davis) provided the master policy of insurance for the EPP program, which covered AGCO for certain liability to customers who purchased the RoGator EPP. Glynn General Corporation administered the plans. Between 2005 and 2008, AGCO enrolled about 2,050 RoGator machines in the EPP program. Beginning in 2008, a number of customers presented claims under the EPP based on the failure of wheel motors on the RoGator. In September 2008, after it had paid about 25 claims related to this failure, Cassidy Davis invoked the Epidemic Failure Clause of the master insurance policy and refused to pay for any more claims.
On June 26, 2009, AGCO sued Cassidy Davis and others asserting various claims, including claims against Cassidy Davis for breach of contract and bad faith denial of insurance coverage. The trial court granted partial summary judgment to AGCO and denied partial summary judgment to Cassidy Davis on a breach of contract issue, holding that the EPP covered failures caused by design and engineering defects in the RoGators. The trial court also denied Cassidy Davis's motion for summary judgment on the bad faith claim, rejecting the insurer's argument that it was not obligated to indemnify AGCO until a court entered a judgment establishing AGCO's legal liability to its customers. The Court of Appeals affirmed the trial court on both issues. See Lloyd's Syndicate No. 5820 v. AGCO Corp., 319 Ga.App. 260, 262-263, 265, 734 S.E.2d 899 (2012).
1. The RoGator Extended Protection Plan provides that AGCO will repair or replace covered parts "if required due to a MECHANICAL BREAKDOWN or FAILURE that is the result of a true defect in material or workmanship." The EPP defines a covered "mechanical breakdown or failure" as
It has not yet been established whether the RoGator wheel motor failures were caused by defects in the manufacture of particular machines or rather from the machine's design. To determine whether the cause needs to be identified, both parties moved for partial summary judgment, asking the trial court to decide whether defects in the RoGator's design or engineering are covered by the EPP.
(a) In advocating coverage of design defects, AGCO argues first that the phrase "manufacturing defects" as used in the EPP covers both manufacturing and design defects. For this argument, AGCO relies solely on United States v. Western Electric Co., 894 F.2d 1387 (D.C.Cir.1990). That reliance is misplaced. Western Electric involved a consent decree in an antitrust case, and the D.C. Circuit looked primarily to antitrust and patent cases and to the antimonopoly purpose and intent of the decree in reaching its decision; the court did not consider cases dealing with defective products. See id. at 1391-1392.
For example, in Rose v. Figgie International, 229 Ga.App. 848, 495 S.E.2d 77 (1997), our Court of Appeals explained that "a design defect necessarily results in all products
(b) AGCO next argues that the EPP's reference to "workmanship or materials" in the definition of a covered "mechanical breakdown or failure" is broad enough to include design defects. The cases on the meaning of "workmanship or materials" are more evenly divided.
(c) AGCO also argues that the EPP's use of the phrase "arising from" broadens the contract's coverage to include design defects.
We can assume, without deciding, that the use of the phrase "arising from" means that the EPP provides coverage if there is "`nothing more than a slight causal connection,'" id. (citation omitted), between a manufacturing defect and the failure of a RoGator. But there can be no causal connection at all without such a manufacturing defect; the use of the phrase "arising from" does not transform a product that was correctly manufactured in accordance with a defective design into a defectively manufactured product. See Jones, 231 F.Supp.2d at 1236 (distinguishing between a manufacturing defect, where the defect is revealed by comparing the manufactured product to the product's design, and a design defect, where the court must determine how the product should have been designed).
(d) Finally, AGCO contends that, because design defects are not listed in the section of the EPP entitled "What is Not Covered," they are not excluded from coverage. There was no reason to exclude such design defects, however, because they plainly are not covered in the first place.
Because the EPP does not cover design defects, Cassidy Davis was entitled to partial summary judgment on that issue, and the trial court and Court of Appeals erred in ruling otherwise.
2. The second contract at issue in this case is the master policy of insurance between Cassidy Davis and AGCO, in which Cassidy Davis promised "to indemnify [AGCO] for all sums which [AGCO] shall be held legally liable to pay in respect of [AGCO's] contractual liability" to its customers under the Extended Protection Plan. After paying for approximately 25 EPP claims based on RoGator wheel motor failures, Cassidy Davis notified AGCO in September 2008 that it would pay no more. In April 2009, AGCO sent the insurer a letter demanding payment of $410,000 in unreimbursed wheel motor claims and invoking OCGA § 33-4-6.
Cassidy Davis moved for summary judgment on this claim, arguing, among other things, that AGCO's demand letter was premature because no payment to AGCO was due under the policy at the time the demand was made and "`[i]t has long been the law that in order to serve as a bad faith demand, the demand must be made at a time when immediate payment is due.'" Stedman v. Cotton States Ins., 254 Ga.App. 325, 327, 562 S.E.2d 256 (2002) (citation omitted). The trial court denied this summary judgment motion, and the Court of Appeals affirmed that ruling. It held that AGCO was liable to pay claims under the EPP "when customers filed claims in accordance with the EPP," and that the term "`indemnify' is broad enough to include any liability, not just liability resulting from a judgment." Lloyd's, 319 Ga.App. at 265, 734 S.E.2d 899. The Court of Appeals failed, however, to read the word "indemnify" in its contractual context.
The Court of Appeals correctly noted that "`indemnify' has been defined as to `reimburse another for a loss suffered because of a third party's or one's own act or default.'" Id. (quoting Certain Underwriters at
Instead, the contract requires Cassidy Davis to indemnify AGCO only for sums that AGCO has been "held legally liable" to pay. Cassidy Davis contends that the contract therefore requires a court to have determined that AGCO was actually liable for the EPP claims it paid before being entitled to reimbursement. See Permasteelisa CS Corp. v. Columbia Cas. Co., 377 Fed.Appx. 260, 263, 267 (3d Cir.2010) (holding that a commercial insurance policy that provided coverage of amounts for which the insured became "legally obligated to pay" required "the presentation of proofs in a court of competent jurisdiction and a finding by the court or jury of [such] liability"); Builders Mut. Ins. Co. v. Dragas Mgmt. Corp., 793 F.Supp.2d 785, 794-797 (E.D.Va.2011) (collecting cases and concluding that "the majority of courts to have considered the question have held that in order for an insured to be `legally obligated,' there must have been either a final judgment or a settlement as the result of a suit"), vacated on other grounds, 497 Fed.Appx. 313 (4th Cir.2012). In response, AGCO argues that the phrase "legally liable" does not necessarily require that a legal judgment of liability actually be rendered, only that such liability would be recognized if the issue was brought to a court. See Steven Plitt et al., Couch on Insurance § 103:14 (3d ed. 2013) ("The term `legal liability,' as used in a policy of insurance, means a liability such as a court of competent jurisdiction will recognize and enforce between parties litigant.").
Once again, we need not decide what "legally liable" would mean standing alone, because AGCO's argument again ignores the context in which that phrase is used, namely, the word in this contract right before "legally liable." The policy does not provide indemnification for EPP claims for which AGCO is "legally liable," only claims for which AGCO has been "held legally liable." Thus, Cassidy Davis is required to indemnify AGCO only when there has been an actual holding of legal liability by a court, not merely the possibility of such a holding or the prediction of such a holding by the insured.
AGCO finally asserts that "the intent of the policy" is to establish a system whereby Glynn General Corporation, the administrator of the EPP program, would pay customer claims from funds provided by Cassidy Davis. There is evidence that Cassidy Davis followed this arrangement by providing funds to pay for the initial 25 or so RoGator wheel motor claims, although no court judgment requiring payment of those claims had been entered. AGCO contends that this conduct proves that the parties intended that Cassidy Davis's obligation to indemnify AGCO would be triggered as soon as a customer made a claim in accordance with the EPP. See Scruggs v. Purvis, 218 Ga. 40, 42, 126 S.E.2d 208 (1962) ("The construction placed upon a contract by the parties thereto, as shown by their acts and conduct, is entitled to much weight and may be conclusive upon them.").
Cassidy Davis's voluntary reimbursement for the initial RoGator EPP claims does not prove, however, that the contract requires those payments before the entry of a judgment establishing AGCO's legal liability under the EPP — just as AGCO's payment of some EPP claims in order to generate customer goodwill does not make AGCO legally liable for all claims presented under the EPP.
Thus, AGCO's claim for indemnification from Cassidy Davis did not — and will not — accrue until AGCO's legal liability for EPP claims has been established by a court holding. Because Cassidy Davis was therefore entitled to summary judgment on the bad faith claim, the trial court and Court of Appeals erred in ruling to the contrary.
3. We close by noting that neither of our rulings ends this case. On remand, AGCO could still prevail by showing that the RoGator wheel motor failures were in fact caused by a manufacturing defect, bringing those claims under the EPP's coverage. And if the court so holds, then Cassidy Davis's duty to indemnify AGCO for all sums paid on such claims for which AGCO had been held legally liable to its customers would be triggered.
Judgment reversed and case remanded.
All the Justices concur.