XL Insurance awarded full damages in a case involving defective child-proof lids

Attorney Torben Bondrop represented XL Insurance (on behalf of Gerresheimer Vaerloese A/S, the former Superfos Pharma Pack A/S) in a claim for contribution in the pharmaceutical industry before the Maritime and Commercial Court in Copenhagen and the Danish Supreme Court. Mr Bondrop was able to convince the Danish Supreme Court to reverse the judgment by the Maritime and Commercial Court in Copenhagen so that XL Insurance was awarded full damages from Emballator Växjöplast AB.

In 2000 Emballator Växjöplast supplied millions of child-proof lids to the former Superfos Pharma Pack A/S to be used in the packaging of for instance the type 2 diabetes medication Prandin. Because Emballator Växjöplast AB's newly acquired lid-assembling machine had been incorrectly set, 10% of the lids were damaged and about 1.5% of the lids were so damaged that it would be very difficult or impossible to open the packaging in the usual manner.

XL Insurance paid damages to Novo Nordisk for the repackaging expenses as the error was discovered before the packaging was released to be sold on primarily the American market. However, Emballator Växjöplast AB and the company's insurance company, Zürich Forsikring, were of the opinion that Emballator Växjöplast AB was not to blame. As a result, they would not reimburse XL Insurance the amount that had been paid as damages to Novo Nordisk.

Despite the incorrectly set lid-assembling machine, the Maritime and Commercial Court in Copenhagen did not find that the supplied lids were defective as the position of the Maritime and Commercial Court in Copenhagen was that the parties did not have sufficiently clear agreements that specified the acceptance criteria for defective lids.

The Danish Supreme Court reverses the judgment by the Maritime and Commercial Court in Copenhagen

However, the Danish Supreme Court laid down that despite the quality agreement between the former Superfos Pharma Pack A/S and Novo Nordisk that had been accepted by Emballator Växjöplast AB not expressly specifying the quality requirements, the nature and the scope of the defects in the lids meant that damages could be claimed, see Section 43(3) of the Danish Sale of Goods Act. The Supreme Court also had regard to the fact that the packaging was to be used in the pharmaceutical industry. The objections that the former Superfos Pharma Pack A/S had not given due notice of the lack of conformity and had not made a comprehensive examination of the pre-delivery samples were dismissed. Moreover, the Supreme Court did not find that the former Superfos Pharma Pack A/S had set aside its duty of mitigation and the entire claim for damages was consequently successful.

The eleventh successful appearance at the Supreme Court

Torben Bondrop is one of Plesner's most experienced litigators and this is his eleventh consecutive successful appearance before the Supreme Court.

If you have any questions about the case, please contact Torben Bondrop at tbo@plesner.com or tel: (+ 45) 33 12 11 33.