ATTORNEY ADVERTISING PURSUANT TO NEW YORK DR 2 101(F).

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2 This article is for general information only and is not intended to give, and should not be relied on for, legal advice in any particular circumstance or fact situation. The reader is advised to consult with an attorney to address any particular situation. The opinions expressed herein are those of the authors and do not reflect the views of Tressler LLP or any of its clients. ATTORNEY ADVERTISING PURSUANT TO NEW YORK DR 2 101(F). 2 The Personal And Advertising Injury Liability Coverage 2013 Tressler LLP

3 PERSONAL AND ADVERTISING INJURY LIABILITY COVERAGE: AN ANALYTICAL APPROACH TO CLAIMS UPDATE COVERING CASES FROM JANUARY 2012 THROUGH JANUARY 2013 I. GENERAL REQUIREMENTS OF THE PERSONAL AND ADVERTISING INJURY COVERAGE A. THE INJURY MUST ARISE OUT OF ONE OF THE ENUMERATED OFFENSES In Wilson Works, Inc. v. Great Am. Ins. Group, No , 2012 U.S. App. Lexis (4th Cir. Oct. 23, 2012) (applying West Virginia law), the insured was alleged to have manufactured, sold, and marketed tools that infringed upon the claimant s patents. With little discussion, the Fourth Circuit held that the insurer had no duty to defend or indemnify the insured because the allegations did not fall within any of the policies advertising injury offenses. In USF Ins. Co. v. Guin, No. 7:10 cv 00464, 2012 U.S. Dist. Lexis (N.D. Ala. May 3, 2012) (applying Alabama law), the insured was sued for promissory fraud, fraudulent misrepresentation, and breach of contract. The claims were based on allegations that the insured breached a binding estimate to move the claimants household goods across the state by demanding the claimants sign a bill of lading that was more than double the estimate after it had already loaded moving trucks with the claimants goods. The court summarily concluded that the claims did not fall within one of the policy s enumerated as personal and advertising injury offenses and, thus, the insurer had no duty to defend or indemnify. In State Auto Prop. & Cas. Ins. Co. v. Wohlfeil, No. 5:11cv100, 2012 U.S. Dist. Lexis (N.D.W.V. Aug. 27, 2012) (applying West Virginia law), the insured, a restaurant owner, was alleged to have assaulted and wrongfully terminated his employee. The court concluded that the alleged conduct did not fall within any of the offenses defined as personal and advertising injury. Because the insured s conduct was allegedly committed with the knowledge that it would violate the claimant s rights, the court held that knowing violation exclusion further precluded any defense or indemnity obligation. B. THE OFFENSE MUST BE COMMITTED DURING THE POLICY PERIOD In Chicago Ins. Co. v. The City of Council Bluffs, IA., 859 F.Supp.2d 967 (S.D. Ia. 2012) and Genesis Ins. Co. v. City of Council Bluffs, 677 F.3d 806 (8th Cir. 2012) (an appeal of a related case) (applying Iowa law), the claimants were exonerated for the 1977 murder of a police officer and were released from prison in The claimants then sued the insured city, alleging that it had wrongfully instituted legal process against them in violation of their constitutional rights. At issue was whether the personal injury coverage for malicious prosecution was triggered under policies in effect from 1978 through The court first found that the trigger of coverage for the personal injury offense of malicious prosecution is when the claimants injuries became manifest. In doing so, the court rejected a continuous 2013 Tressler LLP The Personal And Advertising Injury Liability Coverage 3

4 trigger theory as being contrary to Iowa law and the majority of case law addressing malicious prosecution claims. The court concluded that because the claimant s injuries became apparent no later than when they were convicted and incarcerated in 1978, only the policies in effect during that year were implicated. In Alticor, Inc. v. National Union Fire Ins. Co. of Pennsylvania, No. 1:07 cv 1079, 2013 U.S. Dist. Lexis 5407 (W.D. Mich. Jan. 4, 2013) (applying Michigan law), the insured was sued for certain antitrust violations, tortious interference, civil conspiracy and injurious falsehood. The insurer argued that, although the disparagement offense was alleged, the underlying complaint did not allege that the insured made any false statements during the policy period of the subject policy. The court agreed. However, the court noted that the interrogatory answers in the underlying suit revealed that the allegedly false statements occurred during the policy period. Therefore, the court found that the insurer had a duty to defend. In Employers Mut. Cas. Co. v. Raddin, No. 5:10 cv 137, 2012 U.S.Dist.Lexis (S.D. Miss. Mar. 30, 2012) (applying Mississippi law), the insured medical clinic faced claims including invasion of privacy and negligent supervision and entrustment based on allegations that a primary school s dean and football coach sexually molested students at the clinic from 1995 through The complaint alleged that the claimants first discovered the coach s improper conduct at the medical center in The court held that the clinic s policies in effect from 2005 through 2008 were not triggered by the claims and, thus, the insurer had no duty to defend or indemnify the clinic. The court reasoned that the trigger of coverage for the personal and advertising injury offense of invasion of the right of private occupancy is when the plaintiffs discovered or reasonably should have discovered the injury because that is when a tort claim for invasion of privacy accrues. At issue in American Family Mut. Ins. Co. v. Beasley, No. 2:10 cv 2090, 2012 U.S. Dist. Lexis (D. Nev. Feb. 6, 2012) (applying Nevada law), was whether a policy which incepted in November of 2010 provided coverage to the insured under the personal and advertising injury offense of use of another s advertising idea in your advertisement. The insured was a former insurance agent of the claimant, American Family Insurance, who created her own agency. From February through March of 2009, the insured allegedly used improperly retained customer information to induce American Family policyholders to transfer their business. The court found that while the complaint alleged an ongoing injury to American Family Insurance, the insured s wrongful conduct occurred completely before the policy s inception. Thus, the court held the complaint failed to allege any personal and advertising injury committed during the policy period and the insurer had no duty to defend or indemnify. 4 The Personal And Advertising Injury Liability Coverage 2013 Tressler LLP

5 C. THE OFFENSE MUST OCCUR IN THE NAMED INSURED S BUSINESS D. CERTAIN OFFENSES MUST BE COMMITTED IN THE NAMED INSURED S ADVERTISEMENT In Feldman Law Group, P.C. v. Liberty Mut. Ins. Co., No cv, 2012 U.S. Dist. Lexis 7787 (2d Cir. Apr. 18, 2012) (unpublished) (applying New York law), the insured was alleged to have designed, manufactured, and sold jewelry that infringed upon the claimant s copyright and trade dress in its jewelry designs. The Second Circuit held that the allegations did not fall within the scope of the policy s advertising injury coverage for copyright and trade dress infringement because they did not allege infringement resulting from the insured s advertisement. In so doing, the court rejected the insured s argument that because the complaint s prayer for relief sought the destruction of advertisements promoting the infringing jewelry the complaint also alleged infringement separate and apart from the insured s sale of jewelry. In Hartford Cas. Ins. v. Softwaremedia.com, No. 2:10 CV 01098, 2012 U.S. Dist. Lexis (D. Utah Mar. 20, 2012) (applying Utah law), the insured was alleged to have intentionally engaged in a fraudulent bait and switch scheme in which it switched customer orders for Microsoft software licenses with a less expensive Software Assurance, which was not a license and did not create any license rights. The court found that the complaint did not seek damages because of personal and advertising injury because the insured s alleged conduct did not occur in its advertisement and the claimant s injuries were not caused by an advertisement. Rather, the claimant s injuries were caused by the insured s fraudulent baitand switch scheme, which led buyers to use Microsoft s software without valid licenses. In Agrakey Solutions, LLC v. Mid Cont l Cas. Co., No. 1:10 CV S EJL, 2012 U.S. Dist. Lexis (D. Idaho Mar. 14, 2012) (applying Idaho law), the insured was alleged to have wrongfully manufactured, marketed and sold the claimant s proprietary products after termination of an exclusive license to do so. The claimant also alleged that the insured wrongfully represented that it held proprietary rights in the claimant s products and that the insured s continued unauthorized sale of the products created confusion in the marketplace. With respect to allegations that the insured used certain customer testimonials on its website and represented that its product was the subject of certain research and field trials, the court concluded there was no alleged use of another s advertising idea in the insured s advertisement. Rather, the court found that the testimonials were being used by the insured to demonstrate that the product it was currently selling was the same as the one it sold under the licensing agreement. The court further reasoned that there was no causal connection between the insured s advertising and the claimant s alleged injuries, as the underlying claim was based on the insured s sale of the claimant s products, not the insured s advertisement of those products Tressler LLP The Personal And Advertising Injury Liability Coverage 5

6 In Tool Touring, Inc. v. The American Ins. Co., B230136, 2012 Cal. App. Unpub. Lexis 3461 (Cal. App. May 8, 2012) (unpublished) (applying California law), the band Tool sought a defense and indemnity for claims of copyright infringement and defamation asserted by a graphic designer who created many pieces of artwork for the band. The complaint alleged that Tool only held a license in the copyrighted works, which the claimant revoked in Tool allegedly continued to use the artwork on its merchandise, products, promotional flyers, and its website after the license was revoked. The court concluded that, by using the artwork on its merchandise and website, Tool was alleged to have infringed upon the claimant s copyright in the band s advertisement, which was defined in the policy as a notice that is broadcast or published to the general public... about your goods, products or services for the purpose of attracting customers or supporters. Thus, the court held the insurer must defend the band. In Air Engineering, Inc. v. Industrial Air Power, LLC, No. 2012AP103, 2013 Wisc. App. Lexis 9 (Wis. App. Jan. 3, 2013) (applying Wisconsin law), the insured was sued for trade secret misappropriation, breach of contract, breach of fiduciary duty and unjust enrichment for allegedly using the same website source code and content as found on the claimant s website and for misappropriating an Internet Advertising System ( IAS ). This IAS was allegedly developed by the claimant to advertise its products to the public in order to facilitate sales. The IAS was designed to direct persons to the claimant s advertising and links detailing product information, based on certain Google search terms entered by such persons. The court first determined that the complaint alleged the use of another s advertising idea, based on the allegations that the insured misappropriated the claimant s IAS and the claimant s website source code and content. The court then determined that such misappropriation occurred in the insured s advertisement because the IAS and the insured s website gave potential customers notice about the insured s goods, products and services. The court further determined that there was a causal connection between the insured s advertising activity and the claimant s advertising injury, as the complaint alleged that the insured s conduct drew present and prospective customers away from the claimant. Accordingly, the court found that the insurer had a duty to defend. (PRE 1998 FORMS) CERTAIN OFFENSES MUST BE COMMITTED IN THE COURSE OF ADVERTISING 1. What Is Advertising? In State Farm Fire & Cas. Co. v. Wier, No. A127243, 2012 Cal. App. Unpub. Lexis 7842 (Cal. App. Oct. 26, 2012) (unpublished) (applying California law), the insureds were sued for misappropriation of trade secrets, conversion and breach of contract for allegedly using policyholder lists from their former employer and soliciting those policyholders to purchase insurance from their new employer. The insureds were alleged to have engaged in a "mass mailing" to the policyholders through extensive broadcast and print advertising in various media, including thousands of direct mail advertisements." The court found such conduct did not constitute "advertising" because the "mass mailings" were not issued to the general public. The mass mailings were individual solicitations personalized to each policyholder based on 6 The Personal And Advertising Injury Liability Coverage 2013 Tressler LLP

7 the confidential information that the insureds took from their former employer. Accordingly, the court concluded that the insurer did not have a duty to defend or indemnify. 2. In The Course Of Advertising In Comprehensive Microfilm and Scanning Servs., Inc. v. The Main Street Am. Group, No. 3:11 cv 498, 2012 U.S. Dist. Lexis (M.D. Penn. Apr. 18, 2012) (applying Pennsylvania law), the insured was alleged to have unlawfully copied and sold microfilm versions of journals published by the claimant without its permission. The policy provided coverage for infringement of copyright, title or slogan, committed in the course of advertising [the insured s] goods, products, or services. The court held that the complaint failed to allege conduct falling within the advertising injury coverage because the insured was only alleged to have copied journals on microfilm and to have sold them. It was not alleged to have advertised the microfilm, let alone to have done so in a manner that infringed upon the claimant s copyrights. Thus, the court held the insurer had no defense or indemnity obligation. In State Farm Fire & Cas. Co. v. Wier, No. A127243, 2012 Cal. App. Unpub. Lexis 7842 (Cal. App. Oct. 26, 2012) (unpublished) (applying California law), the insureds were sued for misappropriation of trade secrets, conversion and breach of contract, for allegedly using policyholder lists from their former employer to solicit those policyholders to purchase insurance from their new employer. The court found that the policy's requirement that "advertising injury" be committed "in the course of advertising" was not satisfied. According to the court, the insureds were sued for misappropriating proprietary information (i.e., customer lists and coverage information), not for causing injury in the course of the insureds' advertising. Accordingly, the court concluded that the insurer did not have a duty to defend or indemnify. E. THE OFFENSE MUST BE COMMITTED IN THE COVERAGE TERRITORY F. THE SUIT MUST SEEK DAMAGES In Standard Mut. Ins. Co. v. Lay, 975 N.E.2d 1099 (Ill. App. 2012), appeal granted, 2012 Ill. Lexis 1408 (Ill., Sept. 26, 2012) (applying Illinois law), the Illinois Appellate Court held that the Telephone Consumer Protection Act s ( TCPA ) $500 statutory damages are not insurable as a matter of Illinois public policy. The insured was alleged to have sent unsolicited facsimile advertisements in violation of the TCPA, for which the complaint sought statutory damages of $500 per violation and treble damages. The court first found that the $500 liquidated damages provided by the TCPA are penal because the damages are imposed automatically, are predetermined, and are imposed without regard to any actual damages suffered by the plaintiff. The court further reasoned that the $500 penalty is far in excess of the actual cost to a recipient of an unwanted fax. Because insurance coverage for punitive damage and penalties is prohibited by Illinois public policy, the court concluded that the insurer had no duty to defend or indemnify. In reaching its decision, the court noted that the insured and others would have little incentive to comply with the TCPA if they knew that any fines resulting therefrom could be shifted to their insurers Tressler LLP The Personal And Advertising Injury Liability Coverage 7

8 In TNI Packaging, Inc. v. Hanover Ins. Co., No , 2012 Ill. App. Unpub. Lexis 2330 (Ill. App. Sept. 21, 2012) (unpublished) (applying Illinois law), the insured was sued for allegedly passing off the claimant's products as its own by including photographs of those products in the insured's advertising. The insured and the claimant entered into a settlement agreement, which was incorporated into a consent order. The terms of the consent order required the insured to desist from infringing the claimant's trademark and patent. However, the insured continued to use the infringing photographs in its advertising. The claimant filed a motion for civil contempt seeking attorneys fees, costs, $200 per day from the date of infringement to the date when the insured ceased distribution of the offending advertisement, and $2,500 per day for the 30 day period during which the insured's offending advertisement had run. The court rejected the insurer s argument that it had no duty to defend against the motion for civil contempt because contempt sanctions are uninsurable under Illinois law and are not "damages" as the term is used in the policy. The court found that attorneys fees, costs and the request for $2,500 per day for the 30 day period of infringement constituted compensatory not punitive damages and thus are damages covered under the policy. In Olsen v. American Family Mut. Ins. Co. 371 S.W.3d 93 (Mo. App. 2012) (applying Missouri law), the Missouri Court of Appeals held that the $500 statutory damages provided under the Telephone Consumer Protection Act ( TCPA ) are not sums payable as damages as that term is used in liability policies. The court reasoned that the TCPA s $500 statutory damages are not compensatory but, rather, are penal in nature, while the term damages as used in insurance policies does not incorporate fines or penalties. The court explained that the TCPA gives a recipient of an unsolicited facsimile two options: it can seek to recover damages for actual monetary loss or statutory damages in the amount of $500 per violation. To the extent that a claimant only seeks to recover its actual pecuniary loss, the statute is remedial and provides recovery for damages as used in liability policies. However, when a claimant seeks statutory damages of $500 per violation, the statute is penal in nature. For this reason, the court held that the insurer had no duty to defend or indemnify the insured against claims seeking statutory damages under the TCPA. G. THE CLAIM MUST FALL OUTSIDE THE EXCLUSIONS FOR PERSONAL AND ADVERTISING INJURY 1. The Exclusions Contained In The 1998 And Post 1998 CGL Policy Forms (a) Knowing Violation Of Another s Rights In Colony Ins. Co. v. Mid Atlantic Youth Servs. Corp., 485 Fed. Appx. 536 (3d Cir. 2012) (unpublished), and Alea London v. W. PA Child Care, LLC, No. 3:09 CV 2256, 2012 U.S. Dist. Lexis (M.D. Pa. Mar. 19, 2012), the insureds, the manager and owner of several juvenile detention facilities in the state of Pennsylvania, were accused of paying millions of dollars in bribes to two state judges in exchange for committing juveniles to the insured s detention facilities. The complaint brought a claim for false imprisonment against the insureds, an 8 The Personal And Advertising Injury Liability Coverage 2013 Tressler LLP

9 enumerated personal injury offense in the insureds policies. The courts held that the knowing violation exclusion precluded a defense and indemnity because the insureds were alleged to have knowingly conspired to violate the minors constitutional rights in order to ensure maximum profit. In Navigators Specialty Ins. Co. v. Beltman, No. 11 cv 00715, 2012 U.S. Dist. Lexis (D. Colo. Nov. 1, 2012) (applying Colorado law), the insured was allegedly involved in a criminal conspiracy to extort money from the claimant, Chevron. Chevron alleged that the insured filed environmental litigation against it in Ecuador based on fabricated evidence concerning an oil spill and groundwater contamination. The insured allegedly intimidated Ecuadorian court officials, colluded with the Ecuadorian government, and conducted a public relations campaign designed to spread false and misleading information about Chevron. The insured also allegedly fabricated studies concluding that Chevron had caused environmental damage which it then presented to the Ecuadorian courts as the findings of an independent expert. The court concluded that a defense and indemnity were precluded by the knowing violation exclusions, because the insured was alleged to have committed fraud and to have acted with the intent to mislead. The insured in Markel Int'l Ins. Co. v. W. PA Child Care, LLC, No. 3:10 cv 1156, 2012 U.S. Dist. Lexis (M.D. Penn. Mar. 8, 2012) (applying Pennsylvania law), owned and operated juvenile detention centers in the state of Pennsylvania. The insureds were alleged to have participated in a conspiracy to pay judges kickbacks for maintaining high rates of occupancy at their detention facilities. The insureds were sued for violations of the RICO act, deprivation of the juveniles constitutional rights, and false imprisonment. The court held that there was no duty to defend the claims under the personal injury offense of false arrest because the claims implicated the knowing violation exclusion. In reaching its decision, the court found that the individual owners of the insured corporations were acting as agents of the corporations and, thus, their intent could be imputed to the insured corporations. In State Auto Prop. & Cas. Ins. Co. v. Lagrotta, No. 2:11 cv 00457, 2012 U.S. Dist. Lexis (W.D. Penn. Aug. 14, 2012) (Magistrate report and recommendations), adopted at 2012 U.S. Dist. Lexis (Sept. 12, 2012) (applying Pennsylvania law), the insured, a member of the Pennsylvania House of Representatives, faced claims of tortious interference with contract and prospective business relations arising out of the state s failed sale of a nursing home. The state health department rescinded its preliminary approval of the sale to the claimant after the congressman s office released two press releases stating that the claimant had improper relations with organized crime. The statements in the press releases were allegedly made maliciously and with intent to harm the claimant and to convince the county not to consummate the sale. The court held that based on the intentional conduct alleged, coupled with the fact that an element of the causes of action alleged is the intent to harm, the knowing violation and knowledge of falsity exclusions precluded both a duty to defend and indemnify the congressman Tressler LLP The Personal And Advertising Injury Liability Coverage 9

10 In Regent Ins. Co. v. Strausser Enterps., Inc., No. 09 cv 03434, 2012 U.S. Dist. Lexis (E.D. Penn. Sept. 28, 2012) (applying Pennsylvania law), the insured filed the underlying suit to stop the transfer of property to the claimant based on a purported contractual right of first refusal. The claimant filed suit against the insured alleging the insured s action constituted a wrongful use of civil proceedings in violation of the Dragonetti Act, 42 Pa.C.S.A The complaint alleged that the insured s action was filed without probable cause because it knew it did not have a right to first refusal and that their contract was subject to mandatory arbitration. Finding that the policy was ambiguous as to whether the knowing violation exclusion precluded coverage for the wrongful use of civil proceeding claim against the insured, the Court held that the insurer had a duty to defend because the claim implicated the personal and advertising injury offense of malicious prosecution. The court reasoned that in order to violate the Dragonetti Act, a defendant must have an improper motive in filing legal proceedings. If such an intent were sufficient to fall within the scope of the knowing violation exclusion, a claim for malicious prosecution under Pennsylvania law would automatically be barred from coverage by the exclusion, making the coverage for malicious prosecution illusory. In State Auto Prop. & Cas. Ins. Co. v. Wohlfeil, No. 5:11cv100, 2012 U.S. Dist. Lexis (N.D.W.V. Aug. 27, 2012) (applying West Virginia law), the insured, a restaurant owner, was alleged to have assaulted and wrongfully terminated his employee. With little discussion, the court concluded that the alleged conduct did not fall within any of the offenses defined as personal and advertising injury. Because the insured s conduct was allegedly committed with the knowledge that it would violate the claimant s rights, the court also held that knowing violation exclusion additionally barred a defense and indemnity. In Federal Ins. Co. v. Steadfast Ins. Co., 209 Cal. App. 4th 668 (2012) (applying California law), the insureds were sued by the United States for allegedly violating the Fair Housing Act by engaging in discrimination relating to the rental of certain dwellings. Because the underlying suit included a claim for vicarious liability, the court found that the "knowing violation" exclusion in the Liberty policy did not apply to preclude a duty to defend. Ultimately however, the Court determined that Liberty did not have a duty to defend because: (1) the Liberty policy's definition of "personal and advertising injury" did not expressly include a claim for discrimination; and (2) the wrongful eviction, wrongful entry and invasion of the right of private occupancy offenses in the definition of "personal and advertising injury" required that a tenant assert such claims whereas in this case the United States asserted housing discrimination in violation of the Fair Housing Act. The insured landlord in Freedman v. U.S. Liab. Ins. Co., 972 N.E.2d 1059 (Mass. App. 2012) (applying Massachusetts law), allegedly harassed its tenant, threatened to do her bodily harm, and yelled at her in front of customers. The tenant brought suit alleging claims for intentional infliction of emotional distress and interference with business relations. In addition to concluding that the alleged conduct did not constitute personal and advertising injury, the court held that the knowing violation exclusion precluded a defense and indemnity obligation under the policy. The court reasoned the allegations that the landlord made incessant calls to 10 The Personal And Advertising Injury Liability Coverage 2013 Tressler LLP

11 the tenant s home, threatened to do her bodily harm, and yelled at her all constituted intentional conduct within the scope of the exclusion. In Sawyer v. West Bend Mut. Ins. Co., 821 N.W.2d 250 (Wis. App. 2012) (applying Wisconsin law), the insured sought a defense for claims that it sent unsolicited facsimile advertisements in violation of the Telephone Consumer Protection Act ( TCPA ). The court held there was a duty to defend the TCPA claims under the personal and advertising injury coverage for oral or written publication, in any manner, of material that violates a person s right of privacy. Concluding that the knowing violation exclusion did not preclude coverage, the court reasoned that even though the insured intended to send the facsimiles, it was alleged to have known or should have known that it did not have permission to send them. Thus, it could be found liable even if it was negligent. In Air Engineering, Inc. v. Industrial Air Power, LLC, No. 2012AP103, 2013 Wisc. App. Lexis 9 (Wis. App. Jan. 3, 2013) (applying Wisconsin law), the insured was sued for trade secret misappropriation, breach of contract, breach of fiduciary duty and unjust enrichment for allegedly using the same website source code and content as found on the claimant s website and for misappropriating an Internet Advertising System. The court determined that the underlying suit alleged the use of another s advertising idea offense. The court found that the knowing violation exclusion did not apply to preclude a defense obligation because the underlying suit included claims for trade secret misappropriation, breach of fiduciary duty and unjust enrichment, which do not require a showing of actual knowledge or intent. Accordingly, the court found that the insurer had a duty to defend. (b) Knowing Publication Of Falsehoods In Pennsylvania Nat l Mut. Cas. Ins. Co. v. Sharpe Images, Inc., No. 3:11 cv 150, 2012 U.S. Dist. Lexis (W.D.N.C. Sept. 11, 2012) (applying North Carolina law), the insured was alleged to have conspired to obtain proprietary information concerning the claimant s business, which it then provided to the claimant s competitor so it could make a competing product. The insured was also alleged to have marketed and advertised the product for the claimant s competitor. Each of the claims in the complaint alleged that the insured committed intentional conduct, including making knowing misrepresentations about the claimant s product, stealing the claimant s proprietary information, and intending to deceive customers and harm the claimant through its promotional and advertising materials. Based on these allegations, the court held that the knowledge of falsity exclusion precluded a defense and indemnity. In so doing, the court rejected the insured s argument that there was coverage because the claim for unfair trade practices could be proven without intent or knowledge of the material s falsity. According to the Court, the insured s argument ignored the fact that the complaint only alleged intentional conduct. In State Auto Prop. & Cas. Ins. Co. v. Lagrotta, No. 2:11 cv 00457, 2012 U.S. Dist. Lexis (W.D. Penn. Aug. 14, 2012) (Magistrate report and recommendations), adopted at 2012 U.S. Dist. Lexis (Sept. 12, 2012) (applying Pennsylvania law), the insured, a member of 2013 Tressler LLP The Personal And Advertising Injury Liability Coverage 11

12 the Pennsylvania of the House of Representatives, faced claims of tortious interference with contract and prospective business relations arising out of the state s failed sale of a nursing home. The state health department rescinded its preliminary approval of the sale to the claimant after the congressman s office released two press releases stating that the claimant had improper relations with organized crime. The statements in the press releases were allegedly made maliciously and with intent to harm the claimant and to convince the county not to consummate the sale. The court held that based on the intentional conduct alleged, along with the fact that an element of the causes of action alleged is the intent to harm, the knowing violation and knowledge of falsity exclusions precluded both a duty to defend and indemnify the congressman. (c) Publication Of Material Before Inception Of Policy The insured in C.R. Bard, Inc. v. Liberty Mut. Ins. Co., 437 Fed. Appx. 128 (3d Cir. 2012) (unpublished) (applying New Jersey law), sought coverage for claims that it disparaged its competitor s hospital catheter products by telling prospective customers the catheters could foster the spread of antibiotic resistant pathogens. At issue was whether coverage under the disparagement offense was barred by the prior publication exclusion due to the fact that the insured began making statements concerning the catheters in 1997, while the policies at issue incepted in The Third Circuit predicted that the New Jersey Supreme Court would interpret the prior publication exclusion as requiring the insured to publish material during the policy period that is substantively similar, but not identical, to material published prior to the policy period. Because the disparaging statements allegedly made by the insured prior to 2003 and after 2003 both referred to the lack of effectiveness of the competitor s catheter in preventing the spreading of disease, the court found that the statements were substantively similar. The exclusion thus precluded both a defense and indemnity. In Tudor Ins. Co. v. First Advantage Litig. Consulting, LLC, 11 Civ 3567, 8923, 2012 U.S. Dist. Lexis (S.D.N.Y. Aug. 21, 2012) (applying California law), the insured, a company that conducts background investigations of hedge funds and other businesses for potential investors, was alleged to have made defamatory statements concerning the claimant s employees. The insured first made the alleged statements in a 2002 interview, a transcript of which was included in reports sent to investors from 2002 through The court held that the prior publication exclusion precluded a defense against the allegations under the policy in effect from In so doing, the court rejected the insured s argument that the exclusion should not apply because the reports made in 2005 and 2006 included material different than those sent prior to the policy period. The court found that the alleged defamatory statements included in the report were the same as those made in previous reports. The fact that the reports also contained new material that was not alleged to be defamatory was inconsequential. 12 The Personal And Advertising Injury Liability Coverage 2013 Tressler LLP

13 (d) (e) Criminal Acts Contractual Liability In FLM, LLC v. Daimler Chrysler Corp., 973 N.E.2d 1167 (Ind. App. 2012) (applying Indiana law), the insured stored foundry sand on the claimant s ( FLM ) property which began to migrate onto a neighbor s property after the insured s lease with FLM terminated. FLM and the insured both received Notices of Violation ( NOVs ) from the city and state government ordering the parties to remove the sand. FLM sought indemnity for the NOV from the insured pursuant to the parties lease agreement. The insured, in turn, sought a defense and indemnity for both NOVs under the personal and advertising injury coverage of its policy. First, the court held that the NOVs fell within the scope of the wrongful entry offense. It then concluded that the exclusion for injury for which the insured had assumed liability in a contract or agreement, did not preclude a duty to defend the insured. The court reasoned that while FLM s claim against the insured for indemnity was based on the liability assumed in the parties contract, the insured also faced liability for the NOV in which it was named independent of any contractual obligations owed to FLM. In Columbia Cas. Co. v. HIAR Holdings, LLC, No. ED98253, 2012 Mo. App. Lexis 1334 (Mo. App. Oct. 23, 2012) (applying Missouri law), the insured settled a claim for violation of the Telephone Consumer Protection Act ( TCPA ) for an amount less than what the claimant could have fully recovered under the TCPA. The insured argued that the settlement amount constituted covered damages under the Columbia policy and did not constitute statutory damages or a penalty. The court determined that even if such settlement amount did not constitute a penalty and was otherwise covered under the Columbia policy, the contractual liability exclusion would apply to preclude coverage. In making this determination, the court found that the exception to the contractual liability exclusion did not apply because TCPA statutory damages are penalties, not "damages" covered by the policy, and therefore the liability assumed by the insured by virtue of the settlement contract was for something other than "damages" that it would have had absent the settlement agreement. (f) Breach Of Contract In Looney Ricks Kiss Architects, Inc. v. State Farm & Cas. Co., 677 F.3d 250 (5th Cir. 2012) (applying Louisiana law), the insured entered into a contract with the claimant architecture firm to build an apartment complex, but then allegedly used the claimant s designs to build other apartment complexes without the claimant s permission. Based on these allegations, the insured was sued for copyright infringement and breach of contract. The insured s carriers denied a defense and indemnity based on the exclusion for personal and advertising injury... arising out of a breach of contract. The Fifth Circuit held that the exclusion did not preclude a duty to defend because the insured s alleged conduct would have infringed upon the claimant s copyrights even in the absence of the parties contractual agreement. In so doing, the court predicted that the Louisiana Supreme Court would interpret the exclusion as being limited to personal and advertising injury that would not have arisen but for a breach of contract Tressler LLP The Personal And Advertising Injury Liability Coverage 13

14 In Tower Ins. Co. v. Capurro Enters. Inc., No. C , 2012 U.S. Dist. Lexis (N.D. Cal. Apr ) (applying California law), the insured faced claims including trademark infringement, unfair competition, breach of contract, and unjust enrichment. The claims alleged that although the insured s franchise agreement had terminated, the insured continued to use the franchisor s proprietary marks in the promotion of its painting business. For example, the insured represented itself on its website, e mail address, and telephone greeting as a former franchisee who had received training from the franchisor. The court held that the breach of contract exclusion did not preclude a duty to defend the claims because the insured s alleged conduct would constitute trade dress infringement even if a contract between the parties never existed. The court reasoned that the arising out of language in the exclusion should be interpreted narrowly and the infringement claims at issue made no mention of the franchise agreement. In Axiom Ins. Managers, LLC v. Capitol Specialty Ins. Corp., No. 11 cv 4736, 2012 U.S. Dist. Lexis (N.D. Ill. June 21, 2012) (applying Illinois law), the insured, an insurance program administrator, was sued several times by one of its competitors for allegedly disseminating false information about the competitor s financial condition in an attempt to siphon the competitor s business. One of the underlying complaints alleged only a breach of contact claim based on allegations that the insured breached a 2010 settlement in which the parties agreed not to disparage one another. The complaint sought liquidated damages and attorneys fees pursuant to the terms of the settlement agreement. Because the claims alleged in the complaint and damages sought were based solely upon the insured s alleged breach of settlement agreement, the court held that a defense and indemnity for the suit was barred by the breach of contract exclusion. The insured in Hartford Fire Ins. Co. v. Vita Craft Corp., No , 2012 U.S. Dist. Lexis (D. Kan. Dec. 3, 2012) (applying Kansas law), a licensee of the claimant s patented cookware technology, allegedly infringed upon the claimant s patents and breached the parties licensing agreements by applying for its own patents in the same technology. The court held that allegations that the insured also spread false rumors concerning other licensees of the claimant s technology implicated a duty to defend under the policy s personal and advertising injury coverage for libel, slander and disparagement. The court further held that the disparagement claims did not fall within the exclusion for injury arising out of a breach of contract. The court reasoned that the arising out of language in the exclusion must be interpreted narrowly. The disparagement claims would exist regardless of the licensing agreements between the insured and the claimant and thus did not arise out of the agreements. In TNI Packaging, Inc. v. Hanover Ins. Co., No , 2012 Ill. App. Unpub. Lexis 2330 (Ill. App. Sept. 21, 2012) (unpublished) (applying Illinois law), the insured was sued for allegedly passing off the claimant's products as its own by including photographs of the claimant's products in its advertising. The insured and the claimant entered into a settlement agreement, which was incorporated into a consent order, the terms of which required the insured to desist from infringing the claimant's trademark and patent. However, the insured 14 The Personal And Advertising Injury Liability Coverage 2013 Tressler LLP

15 continued to publish infringing photographs in its advertising. The claimant filed a motion for civil contempt. In addressing the Breach of Contract exclusion, the court noted that consent orders entered by courts to effectuate settlements are considered contracts. The court also found that the exclusion precluded a defense obligation because the motion for civil contempt sought recovery based on the insured's breach of the consent order. In Natural Organics, Inc. v. OneBeacon America Ins. Co., No , 2013 N.Y. App. Div. Lexis 202 (N.Y. App. Jan. 16, 2013), the insured was sued for unfair competition under the Lanham Act. The underlying complaint alleged that the insured, after wrongfully terminating an exclusive distributorship agreement with the claimant, issued a press release announcing that a third party was the exclusive distributor of the insured s products. The complaint alleged that the press release caused confusion, mistake and deception as to the claimant s distribution of the insured s products. The court determined that the allegations constituted the written publication of material that disparages a person s or organization s goods, products or services, because the press release could be construed as implying that the claimant s inventory of the insured s products was unauthorized. The court held that the breach of contract exclusion did not apply because the product disparagement claim did not necessarily arise out of the insured s alleged breach of the exclusive distributorship agreement. The court noted that the claimant can establish a product disparagement claim under the Lanham Act by relying on the press release and without reference to the exclusive distributorship agreement. Accordingly, the court found that the insurer had a duty to defend. (g) Quality Of Goods In Westfield Ins. Co. v. Robinson Outdoors, Inc., No , 2012 U.S. App. Lexis (8th Cir. Nov. 30, 2012) (applying Minnesota law), the insured sought a defense and indemnity for class action claims that it misled customers into purchasing hunting clothes that did not perform as advertised. Specifically, the claimants alleged that the insured falsely marketed its camouflage products as eliminating human scent so that wild game would not detect a hunter s presence. The court did not address whether the claims fell within the scope of the policy s personal and advertising injury coverage in the first instance because it concluded that they were precluded by the exclusion for injury arising out the failure of goods... to conform with any statement of quality or performance made in [the insured s] advertisement. The Eighth Circuit found that the exclusion was unambiguous and directly applied to the advertised performance of the insured s hunting clothing. In AMCO Ins. Co. v. Inspired Techs., Inc., No , 2012 U.S. Dist. Lexis (D. Minn. June 25, 2012), on remand from 648 F.3d 875 (8th Cir. 2011) (applying Minnesota law), the insured was alleged to have misled customers by falsely depicting its tape products to be of superior quality to those of its competitor s. The allegations included the insured s overstatement of the width of its tape and its false claim that its tape had a clean release. The district court concluded that these allegations fell within the exclusion for the failure of goods, products or services to conform with any statement of quality or performance made in your advertisement. Because the district court and Eighth Circuit had previously ruled that all of 2013 Tressler LLP The Personal And Advertising Injury Liability Coverage 15

16 the other allegations in the complaint were precluded from coverage by the policies personal and advertising injury exclusions, the district court concluded that the insurer had no duty to defend or indemnify. (h) Infringement Of Copyright, Patent, Trademark Or Trade Secret ( IP Exclusion ) The insured in Hartford Fire Ins. Co. v. Vita Craft Corp., No , 2012 U.S. Dist. Lexis (D. Kan. Dec. 3, 2012) (applying Kansas law), a licensee of the claimant s patented cookware technology, allegedly infringed upon the claimant s patents and breached their licensing agreements by applying for its own patents in the same technology. The insured also allegedly spread false rumors concerning other licensees of the claimant s technology, which the court found implicated a duty to defend under the policy s personal and advertising injury coverage for libel, slander, and disparagement. The court further concluded that the disparagement allegations did not fall within the exclusion for injury arising out of any violation of intellectual property rights such as... patent. In doing so, the court rejected the insurer s argument that the exclusion applied to the disparagement allegations because they were set forth under a claim for unfair competition, which the insurer argued is a cause of action limited to traditional intellectual property infringement under Kansas law. In Comprehensive Microfilm and Scanning Services, Inc. v. The Main Street Am. Group, No. 3:11 cv 498, 2012 U.S. Dist. Lexis (M.D. Penn. Apr. 18, 2012) (applying Pennsylvania law), the insured faced claims of copyright infringement, trademark infringement, and unfair competition based on allegations that it copied and sold microfilm versions of journals published by the claimant without its permission. The court held that there was no defense or indemnity owing under the advertising injury coverage for infringement of copyright, title or slogan because the insured was not alleged to have infringed upon the claimant s copyrights in the course of advertising [the insured s] goods, products, or services. The court also held that the policy s broad IP exclusion, which applied to any suit seeking damages arising, in whole or in part, out of any allegation of infringement or violation of copyright, patent, trademark or other intellectual property law, additionally precluded any coverage obligation. The court reasoned that the exclusion barred coverage for a suit if it included a claim of copyright infringement regardless of whether the suit also included allegations that did not fall within one of the exclusion s enumerated categories of conduct. (i) (j) (k) (l) Media And Internet Business Exclusion (Publishing, Advertising) Electronic Chat Rooms Or Bulletin Boards Unauthorized Use Of Another s Name Pollution Exclusion 16 The Personal And Advertising Injury Liability Coverage 2013 Tressler LLP

17 2. Other Exclusions or Provisions (a) Willful Violation Of A Penal Statute In Colony Ins. Co. v. Mid Atlantic Youth Servs. Corp., Nos & , 2012 U.S. App. Lexis (3d Cir. June 21, 2012) (applying Pennsylvania law), the insured, a manager of several juvenile detention facilities in the state of Pennsylvania, was accused of paying millions of dollars in bribes to two state judges in exchange for committing juveniles to the insured s detention facilities. The Third Circuit held that while the allegations potentially fell within the policies personal and advertising injury coverage for false arrest, detention, or imprisonment, the knowing violation and penal statute exclusions precluded any defense and indemnity obligation. The court explained that the exclusion for injury arising out of the willful violation of a penal statute applied because the complaint alleged a causal link between the minors injuries and the insured s alleged criminal conduct, which included wire fraud, criminal conspiracy, and other criminal acts. In Suwannee Am. Cement LLC v. Zurich Ins. Co., Ltd., 11 Civ. 3899, 2012 U.S. Dist. Lexis (S.D.N.Y. Aug. 2, 2012) (applying New York law), the insured sought a defense and indemnity for claims that it conspired to fix the price of concrete in the state of Florida. The insured allegedly carried out the price fixing conspiracy by making false statements to customers that the high cost of concrete was the result of increasing fuel costs and reduced supply. The court held that the antitrust claims did not fall within the scope of the policies personal and advertising injury coverage in the first instance. It further held that coverage was precluded by the exclusion for injury arising out of willful violation of criminal or penal statute, regulation or ordinance committed by or with the knowledge or consent of the insured. The court reasoned that participation in a conspiracy to violate federal antitrust laws is both deliberate and criminal. While the antitrust claims against the insured were only pursued in civil litigation, the conspiracy alleged constituted a felony under the Sherman Act. In Alea London v. W. PA Child Care, LLC, No. 3:09 CV 2256, 2012 U.S. Dist. Lexis (M.D. Pa. Mar. 19, 2012) (applying Pennsylvania law), the insureds were alleged to have participated in a conspiracy to pay judges kickbacks in exchange for maintaining high rates of occupancy in juvenile detention facilities owned and operated by the insureds. Concluding that the willful violation of a penal statute exclusion precluded a duty to defend, the court explained that the insured s alleged actions violated penal statutes forbidding the giving or taking of compensation to public officials in an attempt to influence their decisions. (b) Employment Related Practices Exclusion In Firemen s Ins. Co. of D.C. v. Wenventure, Inc., No. 3:10 cv 185, 2012 U.S. Dist. Lexis (W.D. Penn. Mar. 29, 2012) (applying Pennsylvania law), the insured, a Wendy s franchisee, was alleged to have negligently hired employees who falsely imprisoned and raped the claimant in a bathroom and walk in cooler. The court held that the claims triggered a duty to defend under the personal and advertising injury offense of false imprisonment. The 2013 Tressler LLP The Personal And Advertising Injury Liability Coverage 17

18 court rejected the insurer s argument that coverage was precluded by the policy s exclusion for injury to a person arising out of any... employment related practices, policies, acts or omissions,... directed at that person. The court concluded that the exclusion applied only to policies and practices of the insured concerning the conduct of the injured person, while at issue was the conduct of the employees that caused the injury. In George S. May Int'l Co. v. Arrowpoint Capital Corp., 97 So. 3d 1167 (La. App. Aug. 10, 2012) (applying Louisiana law), the insured was hired by Commercial Flooring to provide management consulting services, which included the interviewing of Commercial Flooring s employees to determine the best position for them at the company. During and after one of the interviews the insured allegedly made unwanted sexual advances to a Commercial Flooring employee, which she refused. The complaint alleged that as a result, the employee received a negative evaluation and failed to receive a deserved promotion. Without determining whether the insured s conduct fell within the scope of the personal and advertising injury coverage in the first instance, the court held that both a defense and indemnity were precluded by the exclusion for injury arising out of employment related practices, or acts or omissions, such as coercion, demotion, evaluation, reassignment, discipline, defamation, harassment, humiliation, or discrimination directed at that person. The court found that the interviewer s conduct clearly concerned the claimant s employment at Commercial Flooring and, therefore, was employment related. It further noted that under the plain language of the exclusion, which stated that it applied whether the insured may be liable as an employer or in any other capacity, it did not matter that the claimant was not an employee of the insured. (c) Professional Services Exclusion In Navigators Specialty Ins. Co. v. Beltman, No. 11 cv 00715, 2012 U.S. Dist. Lexis (D. Colo. Nov. 1, 2012) (applying Colorado law), the insured was allegedly involved in a criminal conspiracy to extort money from the claimant, Chevron. Chevron alleged that the insured filed environmental litigation against it in Ecuador based on fabricated evidence concerning an oil spill and groundwater contamination. The insured allegedly intimidated Ecuadorian court officials, colluded with the Ecuadorian government, conducted a public relations campaign designed to spread false and misleading information about Chevron, and fabricated a study it presented to the Ecuadorian courts as that of an independent expert. The court found that the knowing violation and knowledge of falsity exclusions precluded a coverage obligation. The policy also contained an exclusion for injury arising out of the rendering or failure to render any professional services. The court concluded that this professional services exclusion also precluded any coverage obligation because the allegations arose out of the conduct of the insured s lawyer in the Ecuadorian lawsuit and thus the rendering of professional services. In Axiom Ins. Managers, LLC v. Capitol Specialty Ins. Corp., No. 11 cv 4736, 2012 U.S. Dist. Lexis (N.D. Ill. June 21, 2012) (applying Illinois law), the insured, an insurance program administrator, was sued several times by one of its competitors for allegedly disseminating false information about the competitor s financial condition in an attempt to 18 The Personal And Advertising Injury Liability Coverage 2013 Tressler LLP

19 siphon the competitor s business. The complaints alleged claims of defamation, tortious interference with business relationships, disparagement, civil conspiracy, and violations of the Texas Insurance Code. The policy contained an exclusion which precluded coverage for claims arising out of professional services, including advising, inspecting, reporting or making of recommendations in the insured s capacity as an insurance company or effecting insurance, reinsurance, or suretyship coverages. While the court held that most of the insured s alleged conduct fell within the scope of the exclusion, it found that the exclusion did not apply to allegations that the insured told a New York Times reporter that the claimant had committed fraud. The court concluded that because the professional services and all other applicable exclusions did not preclude coverage for all of the claims, the insurer had a duty to defend the suits. In Employers Mut. Cas. Co. v. Raddin, No. 5:10 cv 137, 2012 U.S. Dist. Lexis (S.D. Miss. Mar. 30, 2012) (applying Mississippi law), a dean and football coach of a primary school was alleged to have sexually molested students at the insured s medical clinic. The complaint alleged that the clinic allowed the dean to perform professional medical services without being properly licensed. The policy contained a professional services exclusion, which applied to injury caused by the rendering or failure to render any professional services including medical treatment and physical therapy. With little discussion, the court concluded that the exclusion precluded a defense and indemnity obligation owing to the clinic. In Heaven Massage and Wellness Ctr. v. Continental Cas. Co., No. B237987, 2012 Cal. App. Unpub. Lexis 4653 (Cal. App. June 21, 2012) (unpublished) (applying California law), the insured faced claims that it was vicariously liable for an assault, battery, and false imprisonment committed by one of its employees a masseuse who was alleged to have sexually assaulted the claimant during a massage. The court held that the exclusion for personal and advertising injury caused by the rendering or failure to render any professional services, including health and therapeutic services, did not preclude a duty to defend. While the parties agreed that a massage constitutes a professional service, the court concluded that the claimant s injuries were not caused by the massage but, rather, inappropriate conduct which took place during the massage. (d) Distribution of Material in Violation of Statute In Axiom Ins. Managers, LLC v. Capitol Specialty Ins. Corp., No. 11 cv 4736, 2012 U.S. Dist. Lexis (N.D. Ill. June 21, 2012) (applying Illinois law), the insured, an insurance program administrator, was sued several times by one of its competitors for allegedly disseminating false information about the competitor s financial condition in an attempt to siphon the competitor s business. The complaints alleged claims of defamation, tortious interference with business relationships, disparagement, civil conspiracy, and violations of the Texas Insurance Code. The court held that the policy s exclusion for personal and advertising injury arising out of a violation of any statute, ordinance or regulation... that prohibits the sending, transmitting, communicating or distribution of material information, applied to the Texas Insurance Code claims but not the defamation claim. While the defamation claim was 2013 Tressler LLP The Personal And Advertising Injury Liability Coverage 19

20 based on the same conduct as the Texas Insurance Code claim, the court stated that it was not aware of any case law supporting the proposition that the exclusion may apply to non statutory claims based on conduct which violates a statute concerning the transmission of material information. The court concluded the insurer had a duty to defend the underlying suits. In Collective Brands, Inc. v. National Union Fire Ins. Co. of Pittsburgh, P.A., No JTM, 2013 U.S. Dist. Lexis 1338 (D. Kan. Jan. 4, 2013) (applying Kansas law), the insured was sued for violation of the Telephone Consumer Protection Act ( TCPA ) for allegedly sending unauthorized pre recorded telephone messages and text messages that advertised the insured s products. The court found that the allegations triggered the oral or written publication, in any manner, of material that violates a person s right of privacy offense. However, the court determined that the insurer did not have a duty to defend or indemnify because the claims fell within the policy s exclusion for liability arising out of any act that violates any statute, ordinance or regulation of any federal, state or local government that prohibits or limits the sending, transmitting or communicating of material or information. In MDC Acquisition Co. v. North River Ins. Co., No. 5:10 cv 2855, 2012 U.S. Dist. Lexis (N.D. Ohio May 15, 2012) (Magistrate's report and recommendations), adopted by 2012 U.S. Dist. Lexis (Sept. 27, 2012) (applying Ohio law), the insured sought coverage for claims that it sent unsolicited facsimile advertisements in violation of the Telephone Consumer Protection Act ( TCPA ). The policies contained an Unsolicited Communications Endorsement, precluding coverage for personal injury and advertising injury arising out of unsolicited communications by or on behalf of any insured, including facsimiles which are made in violation of the [TCPA] and any amendments and or local or state statutes that bar, prohibit, or penalize such communications. The court held that the exclusion barred a defense and indemnity obligation for the suit. It rejected the insured s argument that the exclusion did not apply to claims asserted pursuant to the 2006 Junk Fax Act, which amended the TCPA, and the FCC s codified rules and regulations implementing the TCPA. In GM Sign, Inc. v. Auto Owners Ins. Co., No , 2012 Mich. App. Lexis 1983 (Mich. App. Oct. 11, 2012) (applying Michigan and Illinois law), the insured was alleged to have sent unsolicited fax advertisements and was sued for conversion, violation of the Telephone Consumer Protection Act, and violation of the Illinois Consumer Fraud and Deceptive Trade Practices Act. The court found that the policy s exclusion for the personal and advertising injury arising out of the distribution of material that violates the Telephone Consumer Protection Act or any statute ordinance or regulation that prohibits or limits the sending, transmitting, communicating or distribution of material or information applied to preclude coverage for all claims, not just the TCPA cause of action. The court explained that the conversion and consumer fraud claims arose from the same conduct that underlies the TCPA claim and, therefore, the exclusion applied to also preclude coverage for those claims. In Oregon Mut. Ins. Co. v. Rain City Pizza, LLC, No , 2013 Wash. App. Lexis 46 (Wash. App. Jan. 14, 2013), the insured was sued for violation of the Telephone Consumer Protection Act, violation of Washington statutes relating to unsolicited text messages, and 20 The Personal And Advertising Injury Liability Coverage 2013 Tressler LLP

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