Failure to Conform Exclusion Not Applicable
/"The non-conforming goods exception does not apply"
Read MorePrice Discounting Evidenced Implicit Disparagement
/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.
Read MoreSettled Claims Did Not Include Infringement of Slogan
/The court presumed that the only basis for liability was trade dress infringement.
Read MoreWine Advertisement Caused Trade Dress Injury
/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
Read MoreImplicit Disparagement Implicated by Unfair Competition
/Coverage for explicit disparagement was implicated by the false advertising claims in light of prior authority.
Read MoreKnowing Violation Implicit in Antitrust Claims
/Affirming the district court on narrower ground, the court misstates that the reason for the change from misappropriation in the predecessor ISO coverage for offense (d) transitioning to offense (f) was simply to render the prior coverage for misappropriation broader than common law misappropriation.
Read MorePress Release Not an Advertisement
/Affirming the District Court's decision with additional analysis, the court presumed that no false advertising claims were asserted and that use of a co-defendant's idea was not actionable without explanation is what policy language compels such review.
Read MoreRetailer Settlement Covered by Manufacturer's Policy
/An exception to the breach of contract exclusion applied based on the retailer and manufacturer's potential "joint and several liability for trade dress infringement.
Read MoreUse of Co-Defendant Animal Husbandry Guidelines Not Covered
/Relying on her earlier decision in Heritage Mut. Ins. Co. v. Advance Palmer Tech, 97 F. Supp. 2d 913, S.D. Ind., 2000, Judge Barker concluded that misrepresenting that price increases were as a result of husbandry concerns and "animal husbandry guidelines."
Read MoreBait and Switch in Furniture Showroom Triggered Coverage
/The court found two grounds for evidencing disparagement coverage.
Read MoreJean Pocket Design Was Covered Trademarked Slogan
/Distinguished Hugo Boss Fashions, Inc. v. Federal Ins. Co., 252 F.3d 608, 616 (2d Cir. 2001) which construed the legal phrase "trademarked slogan" to include "words or phrases used to promote particular products or product lines" not "[h]ere, by contrast, the relevant policy language is ‘infringement of ... title, or slogan.' . . .
Read MoreTrade Dress Label no Bar to Christmas Light Slogan Coverage
/The appellate court affirmed a judgment that St. Paul owed $1.3 million to defend companies sued in Ohio for alleged infringement of a competitor's slogans used on packages of Christmas lights ("Patent-pending ‘Stay-on' feature keeps bulbs lit," "New Technology," "String Stays Lit even if a bulb is loose or missing!" and "worry-free lighting.").
Read MoreCoverage Attorneys' Fees Recoverable
/The court found no issue of law to preclude a judicial finding in favor of the insured in its suit for attorneys' fees following adjudication of a duty to defend.
Read MoreAppointed Counsel Cannot Discharge Insurer's Defense Duty
/AISLIC, having denied a defense, cannot claim that counsel appointed by Truck who associated in as defense counsel discharged its duty to defend as such counsel did not displace independent counsel selected by Jaco to defend it and such fees remain unreimbursed requiring AISLIC to pay the sums remaining
Read MoreTotal Call No Bar to Implicit 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."
Read MoreEvaporation Pond Waste Discharge Covered
/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" .
Read MoreSingular Policy Limits No Bar to Full Recovery
/In case involving cleanup of hazardous waste site, state may recover beyond limits of any one liability insurance policy period.
Read MoreImplicit Disparagement Triggered by Important Differentiator Moniker
/The court found a duty to defend where the policyholder asserting claims for tortious interference.
Read MoreBroad Range of Slogans Implicated
/Reconsideration Denied Where Broad Range of Slogans Found Implicated Even Though Nested Within Trade Dress Counts Otherwise Excluded
Read MoreNo Right to Reimbursement Under Texas Law
/In the first decision nationally to expressly address an issue of Texas law, the Court predicted that the Texas Supreme Court would, consistent with its prior precedent, find that "a unilateral reservation of rights letter cannot create rights not contained in the insurance policy which include the right to seek reimbursement of defense fees where there was no potential for coverage".
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