Reinsurance Law Blog

Reinsurance Law Blog

Duty to defend copyright, slogan, advertising claims Eighth Circuit, applying Minnesota law

Posted in Contractual Liability, Duty to Defend, New Case

Selective Insurance Company v. Smart Candle, LLC

The insured, Smart Candle, sells light-emitting diode (LED) flameless candles and commercial lighting systems internationally. Excell sued Smart Candle under the Lanham Act alleging that, among other things, Smart Candle’s use of the trade name and trademark “Smart Candle” infringed rights that Excell had over use of that name and trademark. Excell sought a permanent injunction against Smart Candle’s use of the name, trademark, and domain name “smartcandle.com.”

Selective Insurance Company insured Smart Candle. Smart Candle requested a defense from Selective Insurance but Selective said the claim wasn’t covered and there was no duty to defend. While the policy had “personal and advertising injury” coverage, which covered infringement “upon another’s copyright, trade dress or slogan in your ‘advertisement,’” the policy excluded coverage for any injury “arising out of the infringement of copyright, patent, trademark, trade secret or other intellectual property rights.”

Because the policy required Selective to defend only suits claiming infringement of “copyright, trade dress[,] or slogan,” Selective insisted, Selective had no duty to defend Smart Candle against Excell’s suit for infringement of the “Smart Candle” trademark. Because Excell did not claim infringement of a “slogan” or “copyright,” Selective explained, it had no duty to defend or indemnify Smart Candle. Selective brought a declaratory judgment action on the coverage issues. Selective won on cross motions for summary judgment and the 8th Circuit affirmed, finding the claim was for the use of the name “Smart Candle” and that the name “Smart Candle” was not a slogan. Since there was no claim of slogan infringement, there was no duty to defend.

 

Governmental Tort Claims Act, Uninsured Motorist Coverage and Set Off — Okla law

Posted in Contractual Liability, immunity, New Case, Vehicle

In Mariani v. State ex rel. Oklahoma State University, 2015 OK 1, the issue was whether the governmental tortfeasor was entitled to a set off for the uninsured motorist coverage paid by the injured party’s insurer. Under the Governmental Tort Claims Act (GTCA), the state’s liability is limited to a certain dollar amount– in this case, $175,000.  The trial court refused to reduce the amount owed by the State by the amount paid by the victim’s insurance, and the Oklahoma Supreme Court affirmed.  The Court noted the collateral source rule is still the law in Oklahoma and the statutory language relied upon did not abrogate the collateral source rule.

General attorneys fees statute does not apply to action on insurance policy — Arkansas law

Posted in Contractual Liability, New Case

In Gafford v. Allstate Insurance Company, 2015 Ark. 110, the insureds were the prevailing party in a lawsuit filed after their rental house was damaged by fire.  But the insureds recovered less than 80% of what they claimed was owed.  So they sought attorneys fees under Arkansas’ general attorneys fee statute, 16-22-308 rather than the attorney fee statute which deals specifically with insurance claims, 23-79-208. From a certified question from the Eastern District of Arkansas, the Arkansas Supreme Court held that the specific statute controlled, and the only way to get attorneys fees was under 23-79-208:

Section 23-79-208 applies in actions against an insurance company when a party seeks attorneys’ fees on a policyholder’s claim for loss. Based on the plain language of section 23-79-208, the statutory remedy of attorneys’ fees is available to insureds “in all cases in which loss occurs,” id., conditioned on prevailing and on receiving an award within twenty percent of the amount demanded. Thus, because section 16-22-308 does not contain any such condition on a fee award, section 23-79-208 falls squarely within section 16-22-308’s exception that it does not apply when attorneys’ fees are “otherwise provided by law.” Id.
* * * *
In reading these two statutes together, we conclude that section 23-79-208 provides for an insured’s exclusive means of recovering attorneys’ fees in an action to recover for a loss under an insurance policy.

The concurring opinion relied upon legislative history, rather than the plain language of the statutes to reach the same conclusion.

 

Duty to defend — intent to injure — defamation — 8th Circuit — Minnesota law

Posted in Contractual Liability, Duty to Defend, New Case

In Sletten & Brettin Orthodontics v. Continental Casualty Company, the insured, (Sletten & Brettin) were sued for intentional defamation regarding an on line review of a competitor. There were several counts, but each count claimed that the insured intended to injure the competitor’s reputation.  The insurance policy excluded coverage for acts done with the intent to injure.  Because every claim in the competitor’s complaint pleaded that the insured acted with the intent to injure the competitor, the insurers had no duty to defend. The court found the policy provided coverage for intentional acts but excluded coverage for acts committed with the intent to injure. “Accordingly, the insurance policy here provides coverage for defamation in general, an intentional act, but excludes coverage for defamation committed with the intent to injure.”

The dismissal was affirmed, and the opinion is marked for publication.

Latest issue of Coverage Opinions is now available

Posted in Uncategorized

The latest issue of Coverage Opinions is now available here.

Below is a list of articles available in the latest issue.

 

Declarations: The Coverage Opinions Interview With Frank Shorter – Olympic Gold Medalist And Lawyer
Running From The Law; The Amateur Trust Fund; From The Guns In Munich To The Bombs In Boston; The Fight Against Drugs In Sports; The Covers Of Life And Sports Illustrated; Creator Of The Running Boom; Breaking The Two Hour Marathon

Randy Spencer’s Open Mic
Brian Williams And Insurance Coverage

Coverage Opinions’s Take On Nationwide’s Super Bowl Commercial

The 10 Most Significant Liability Coverage Cases – Of All Time
Ten cases, more than any others, that exerted huge influence over the national coverage landscape.

Born To Litigate: Springsteen Makes A Coverage Case
What do you call a coverage case that quotes lyrics from a Bruce Springsteen song?

NFL Highlights Film: The Best Of Football Litigation
When The Gridiron And Courtroom Collide

Suing Bill Belichick For Cheating – Yes, It Has Been Done
Forget about deflate-gate. Another Patriots scandal got to the United States Supreme Court.

It’s Westminster Time: Show Dogs That Bite

The “Top 10’s” Strangest Moment
A crazy coincidence and the 2014 “Top 10 Coverage Cases of the Year” article.

The ALI Restatement: Status And Upcoming “Summit Meeting”
The Anyone Who’s Anyone Insurance Event

Interesting Case In The “What’s An Accident?” Category

New York Court Says N-O To Reimbursement Of Defense Costs
Most Extensive N.Y. Case To Address The Issue

Construction Defect: Court’s Lesson On Drafting A “Designated Work” Exclusion

Tapas: Small Dishes Of Insurance Coverage News And Notes
“Coverage for Dummies” Case Reversed

Sovereign Immunity waived by purchase of insurance — Missouri law

Posted in immunity, New Case

In Argonaut Great Central Ins. v. Audrain County, a grocery store insured by Argonaut was burgled and then burned down.  The grocery store’s alarm system was monitored through Audrain County.  Argonaut claimed the alarm monitoring by Audrain was defective, causing or contributing to the damages that Argonaut had to pay to its insured grocery store.  Audrain sought summary judgment on sovereign immunity grounds.  The trial court found the County waived sovereign immunity to the extent of its insurance coverage, and there was no evidence to support a reformation claim  (e.g., that the policy should have had a immunity endorsement).

No duty to defend; assault and battery exclusion unambiguous and listed on the declarations page Ark law

Posted in Contractual Liability, Duty to Defend, New Case

In George v. Great Lakes Reinsurance, 2015 Ark App 36, a gunman fired into a crowd at a party room owned by George.  George was sued, and told Great Lakes to defend him.  Great Lakes defended him under a reservation of rights, and filed a declaratory judgment action (dec action) to determine the rights and liabilities of the parties under the policy.  The insurer got summary judgment and George, the insured, appealed.  The Arkansas Court of Appeals affirmed.

First, it found there was no ambiguity in the exclusion.  And, the appellate court did not buy George’s argument that the exclusion was invalid because it wasn’t listed on the first page of the declarations:

George argues on appeal that this endorsement is not part of the insurance contract because it was not listed on the first page of the policy, which is captioned “Common Policy Declarations.” The endorsement is, however, listed as one of the forms and endorsements in the commercial general-liability-coverage declarations page. And George initialed and dated each page of the insurance contract, including the one containing the endorsement with the assault-or-battery exclusion. Although the endorsement was not listed on one declarations page, it was listed on a separate declarations page; it was attached to the policy when it was issued; and George dated and initialed each page. We affirm the circuit court’s decision that the assault-or-battery endorsement was part of the insurance contract’s terms.

No stacking of automobile liability coverage, Missouri law.

Posted in Contractual Liability, New Case, Vehicle

Hiles had two cars, insured under different policies.  Hiles was at fault in an accident that hurt Dutton. Dutton claimed his damages exceeded the minimum limits required by Missouri’s financial responsibility law (MVFRL), which were the limits on Hiles’ policy.  Dutton claimed the MVFRL required payment under the policy of Hiles’ other car, which was not involved in the accident.  The MVFRL requires coverage for cars that the insured designates, and any car the insured drives but does not own.   The MVFRL does not require coverage on cars owned by the insured but not designated.  Thus, insurance on one car does not have to cover a different car.  “That is, one cannot simply buy a policy of insurance on one vehicle and then argue that the policy covers other vehicles that the insured also owns but chose not to insure.”
Adam Dutton, Appellant vs. American Family Mutual Insurance Company, Respondent.
Missouri Supreme Court – SC94075

Dispute Remains as to Coverage — Missouri law

Posted in Contractual Liability, New Case

On motion for summary judgment, movants established most of their claim for equitable garnishment against insurer except whether policies covered defendant in underlying action.  Verified petition does not establish facts because a verified petition does not require first-hand knowledge as an affidavit does.  Insurer’s offer of defense, with or without reservation of rights, did not establish, beyond any contrary inference, an implied or express waiver of the right to deny coverage.   The more formalities required of insurer’s notice, the more material facts—absence of those formalities—movants must establish to prevail on summary judgment.  Ruling on summary judgment on which circuit court certifies no just reason for delay is subject to appeal.
JOSEPH SMITH, Plaintiff-Respondent, vs. MARYLAND CASUALTY COMPANY, Defendant-Appellant, and ANDREW SHAYATOVICH, Defendant-Respondent.
Missouri Court of Appeals, Southern District – SD33341

Life insurance proceeds are not marital property; Arkansas law

Posted in Contractual Liability, New Case

In Hargrove v. Hargrove, the trial court’s division of life insurance proceeds was error in light of an Arkansas statute which  excluded from the definition of “marital property” “property acquired prior to marriage or by gift or by reason of the death of another, including, but not limited to, life insurance proceeds.” Thus, life insurance proceeds on a spouse’s child by a previous marriage was not marital property, even if marital property was used to pay the premiums.

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