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California Cases
Shockingly, New York to date had not definitely addressed whether an insurer, which did not reserve its right to recoup fees expended in defending, settling, or indemnifying an insured, could do so where it established no potential coverage.
Claimants design patent claims were held invalid for failure to survive the on-sale bar one year statute of limitations., i.e, the public use bar as to the `809 patent.
The court independently analyzed and confirmed that the term “Street Surfer” was an “advertising idea.”
The district court, refusing to consider extrinsic evidence in direct contravention of settled rules of California policy construction, determined that the declaratory relief claims for invalidity, non-infringement, and unenforceability, did not assert facts sufficient to evidence potential coverage within the policies, "disparagement" or "abuse of process" offenses.
The court determined that Big 5 satisfied the self-insured retention under both the Hartford and Zurich policies in a zip code liability action and met the requirements to show a potential for coverage under the policies under the pertinent coverage for "personal and advertising injury" for "oral or written publication, in any manner of material that violates a person's right of privacy."
The Ninth Circuit Court of Appeal, in a Memorandum decision, Michael Taylor Designs, Inc. v. Travelers Property Cas. Co. of America, 495 F. App'x 830 (9th Cir. 2012), affirmed Michael Taylor Designs, Inc. v. Travelers Prop. Cas. Co. of Am., 761 F. Supp. 2d 904 (N.D. Cal. (S.F. Div.) 2011).
The court determined that no pre-tender fees were recoverable under California law since no notice of suit would have been provided to the insurer in such circumstances.
The Court of Appeal held that a manufacturer's allegations of price discounts "may" result in a loss that "might" be covered under the "personal injury" coverage provided under a Commercial General Liability policy.
Conceding that the Nova Complaint alleged trademark and trade dress infringement within California's advertising injury offense of "misappropriation of advertising ideas" or "style of doing business" under Kelly's policy
Coverage for explicit disparagement was implicated by the false advertising claims in light of prior authority.
The court found two grounds for evidencing disparagement coverage.
The court's prior finding was thus unaffected when it concluded implicit disparagement based on allegations that E.piphany (Infor's predecessor) "falsely stated that it was the ‘only' producer of ‘all Java' and ‘fully J2EE' software solutions, which was an ‘important differentiator' between competing products, even though some competitors offered products with these exact features."
Judge Werdegar, speaking for a unanimous court, held that: "the relevant discharged with escape of waste from evaporation ponds on the site" and "intentional release of waste to mitigate damage was not excluded from coverage on basis that it was not accidental" .
In case involving cleanup of hazardous waste site, state may recover beyond limits of any one liability insurance policy period.
The court found a duty to defend where the policyholder asserting claims for tortious interference.
Class action by California purchasers alleging false advertising about Akävar
antitrust/unfair competition; trademark infringement insurance coverage
(Expert) Render opinion on whether failure to tender copyright infringement claim to CGL insurers of client was legal malpractice under California law.
Court awarded full amount of fees incurred on appeal as sanctions for pursuit of frivolous appeal.
Denying OneBeacon's request for a continuance under Fed. R. Civ. P. 56(f), the court found that an endorsement which only required assertion against the insured of a copyright infringement action triggered a defense.
The court, finding life insurance benefits due to the Estate of Dr. Gary Parker, who died while on a trip to Cuba on the central highway, found the insurer improperly denied policy benefits.
Limited scope of opinion by persuading Court to add the term "usually" to the definition of "advertising."
Copyright infringement suit brought by world's largest record company against regional distributor claiming sale of gray-market CDs
The court reaffirmed its finding that in an international policy, territory was defined as "worldwide for claim or suit resulting for an occurrence outside the United States of America."
(Order filed Nov. 23, 2003). In the first post-Hameid case to address the meaning of "advertising," the court again denied ACE's Motion for Reconsideration.
(The court found a duty to defend for alleged defects when products were installed in a third party's scanning system and failed in service.
The claimant Penn Fabrication alleged trade dress infringement because El-Com's "marketing" confused customers as to the origin of a speaker unit handle design.
Insurance coverage for "loss of use of tangible property that is not physically injured"
Judge Patel found claims that Fossil violated under Section 43(a) of the Lanham Act and engaged in unfair competition.
Choice of Forum
| Choice of Law | Admission of Extrinsic Evidence | Insurer Allocation | Pre-Tender Fees | Statute of Limitations |
|---|---|---|---|---|
| “Law of Intended Place of Performance” | Facts available to the insurer | If one claim is potentially covered, must defend entire suit. But, right to reimbursement under reservation of rights | Recoverable from breaching insurer | 4 Years |
| Cal. Civ. Code § 1646 Frontier Oil v. RLI Ins. Co, 153 Cal. App. 4th 1436, 1442-43 (2007) | Mariscal v. Old Republic Life Ins. Co., 50 Cal. Rptr. 2d 224, 225 (Ct. App. 1996) Scottsdale Ins. Co. v MV Transp., 36 Cal.4th 643, 654 (2005) (“Moreover, that the precise causes of action pled by the third-party complaint may fall outside policy coverage does not excuse the duty to defend where, under the facts alleged, reasonably inferable, or otherwise known, the complaint could fairly be amended to state a covered liability.”). | Buss v. Transamerica Ins. Co., 939 P.2d 766, 776 (Cal. 1997) Scottsdale Ins. Co. v. MV Transp., 31 Cal. Rptr. 3d 147, 154 (Cal. 2005) | Jamestown Builders, Inc. v. General Star Indem. Co., 77 Cal. App. 4th 341, 346-49 (1999) Shell Oil Co. v. Winterthur Swiss Ins. Co., 12 Cal. App. 4th 715, 763 (1993) | Code Civ. Proc. § 337(1) |
| Pre-Judgment Interest | Late Notice | Public Policy Bar | Independent Counsel | Atty's Fees/Decl. Relief Action |
|---|---|---|---|---|
| 10% | Notice- prejudice | Bar to indemnity not defense | May choose own counsel | Recoverable if bad faith |
| (Civ. Code § 3289(b)) | Shell Oil Co. v. Winterthur Swiss Ins. Co.,, 15 Cal. Rptr. 2d 815, 845-46 (Ct. App. 1993) Truck Ins. Exchange v. Unigard Ins. Co., 94 Cal. Rptr. 2d 516, 522-23 (Ct. App. 2000) | Horace Mann Ins. Co. v. Barbara B., 4 Cal. 4th 1076, 1087 (1993) | Cal. Civ. Code § 2860 San Diego Navy Fed. Credit Union v. Cumis Ins. Soc’y, Inc., 208 Cal. Rptr. 494, 506 (Ct. App. 1984) Golden Eagle Ins. Co. v. Foremost Ins. Co, 25 Cal. Rptr. 2d 242, 256 (Ct. App. 1993) | United Servs. Auto. Ass’n v. Dalrymple, 283 Cal. Rptr. 330, 332 (Ct. App. 1991) Essex Ins. Co. v. Five Star Dye House, Inc., 45 Cal. Rptr. 3d 362, 366 (Cal. 2006) |
In denying National Union Fire Insurance Co. of Pittsburgh, PA’s Motion to Dismiss, the court in Market Lofts Community Association v. National Union Fire Insurance Company Of Pittsburgh, PA, No.: CV15-03093-RGK(MANx), 2015 U.S. Dist. LEXIS 100691 (C.D. Cal. July 30, 2015) granted Plaintiff, Market Lofts Community Association (“the Association”) Motion for Partial Summary Judgment, finding it was entitled to defense in the cross-complaint asserted against it by a developer.