"Personal," "Advertising Injury" Claims "Arising Out Of" Infringement, Excluded.

   In Sanderson v. Zurich American Insurance Co., Download Sanderson v. Zurich Am. Ins. Co. (M.D. Fla. Case No. 8.09.cv.1755, Order Filed December 6, 2010) PUBLIC ACCESS, also published as 2010 WL 5058519 (M.D. Fla. December 6, 2010)(authorized password required to access Westlaw), a Federal Court was faced with Claims alleged in an Underlying Complaint against the Insured for alleged Trademark Infringement and Copyright Infringement.

   The several Insurance Policies at issue in that case all provided Coverage for "Personal and Advertising Injury".  However, each Policy also contained an Exclusion of otherwise covered Personal and Advertising Injury "[a]rising out of" Copyright Infringement and Trademark Infringement, and each Policy also contained another Exclusion of Personal and Advertising Injury "[a]rising out of the unauthorized use of another's" domain name, in pertinent part.  Sanderson v. Zurich American Insurance Co., 2010 WL 5058519 at *2-*3.  

   The Federal Judge in that Case held that the Underlying Claims alleged against the Policyholder are excluded under Florida Law:  "Each claim is predicated upon the bad faith, deceptive, or misleading use of a registered trademark."  Id. at *7.  In addition, "each claim that consists of the same elements as a trademark infringement claim falls comfortably with [the Trademark Infringement Exclusion's] 'arising out of' language."  Id.

Exclusions under Liability Insurance Policies, including Exclusions of Claims "Arising Out Of" various conduct, are addressed in the context of Coverage and alleged Insurance Bad Faith Claims by  Dennis J. Wall, "Litigation and Prevention of Insurer Bad Faith" (Shepard's/McGraw-Hill Second Edition; West Publishing Company 2010 Supplement).  See generally id., Chapter 5, "Insurer's Defenses Against Action by Insured":  first, in § 5:14 (Settlement); next, in  § 5:24 (Defense), and finally, in § 5:49 (Inadequacy of Defense).

Please Read The Disclaimer.  See also the analysis of other features of the above Sanderson v. Zurich American Insurance Company decision on Insurance Bad Faith Law Blog posted today.

Comments

[Andrew]

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Andrew
http://www.jrlaw.org/

[Dallas Trademark Attorney]

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