RECENT COVERAGE CASES
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.
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."
Denying cross-motions for summary judgment because fact issues needed to be the subject of discovery in this diversity action, the court elected to delay addressing conflict of law issues respecting the insurer's quest for reimbursement of monies paid in settlement until discovery occurred in the action because it was unable to determine as a matter of law whether UUIC was entitled to pursue a remedy of reimbursement.
The court denied UUIC's motion to transfer venue to the Central District of California addressing each of the factors attendant on that motion, concluding that plaintiff's choice of forum weighed against transfer and conceded that the principal facts about coverage - the policy, the underlying complaint, Universal's promise to defend the suit, Universal's settlement of the suit - are undisputed.
Affirming the trial court, the court conceded, contrary to that tribunal that specifically, "Basic Research asserts that the phrase ‘use of another's advertising idea in your advertisement' should not be limited to claims of misappropriation or wrongful taking of another's advertising idea, but should rather include any form of ‘misuse,' including deceitful advertising.
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
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).
Affirming on narrower grounds the rulings of Judge Weinstein, 751 F. Supp. 2d 444 and 777 F. Supp. 2d 454, the court determined that the coverage for infringement of title was implicated requiring a defense.
Affirming the district court on different and narrower grounds, the Seventh Circuit parted company with that by agreeing that no exclusions relied upon by the district court barred a defense.
After a three-day trial, Gauntlett & Associates obtained judgment against Continental Casualty Company, a CNA company, in the aggregate sum of $2,152,587.60 in principal and prejudgment interest- the entire amount sought - against an insurer that had refused to settle a copyright infringement/trade secrets infringement case against its insureds
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.
Characterizing the action is limited to antitrust claims. The court determined that they did not implicate potential coverage, relying on the analysis of Rose Acre Farms, Inc. v. Columbia Cas. Co., 662 F.3d 765, 768-69 (7th Cir. (Ind.) 2011).
Affirming in a magistrate district, the magistrate court's order, 773 F. Supp. 2d 799 on narrower grounds, the court parted company with the scope of coverage for infringement of a title more broadly defining it as agreeing that it could be Nature's Own if used as a title of the claimant's bread wrappers but finding that there was no evidence to clarify that that's the manner in which they were used because, "[t]he mere appearance of the trademarked phrase on the packaging does not allow us to assume that it is being used as the ‘heading' or ‘distinctive designation' of the wrapper. See Merriam-Webster's at 184, 823." Id. at 545.
"The non-conforming goods exception does not apply"
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.
The court presumed that the only basis for liability was trade dress infringement.