Westfield Ins. Co. v. Robinson Outdoors, Inc., 700 F.3d 1172 (8th (Minn.) Cir. 2012)

The court, for purposes of its analysis, conceded that "the claims in the underlying lawsuits are covered by the insurance policies," id. at 1174-75, where the coverage for "use of another's advertising idea in your ‘advertisement'" was allegedly implicated by class action suits for false advertising. Although deciding that the exclusion for failure to conform barred a defense, the court departed from settled law in not articulating why each of the grounds for denial necessarily eviscerated otherwise available coverage under the asserted offenses. Indeed, mis-focusing on the gravamen of the asserted claims, rather than any potential for coverage, the court stated, "[t]hese allegations in the underlying lawsuits highlighted by Robinson merely provide a background to Robinson's misleading marketing tactics, not an individual or separate basis for a claim[,]" id. at 1175, thereby reversing the normal analysis requisite in analyzing a duty to defend. Notably, the court did not take into account case law, which would find the failure to conform exclusion inapplicable to coverage for disparagement. A subsequent case best articulated this point. Safety Dynamics, Inc. v. Gen. Star Indem. Co., 475 F. App'x 213, 214 (9th (Az.) Cir. 2012) ("The non-conforming goods exception does not apply because ShotSpotter's injury claimed in the underlying action does not arise out of the failure of Safety Dynamics's product to conform to its advertisements. Rather, it is a competitive injury. This exception ‘is directed to the failure of goods, not the failure of advertising.' 4 Jeffrey E. Thomas, New Appleman on Insurance Law Library Edition § 30.08[2][a] (2009).").