Street Surfing v. Great Am. E&S Ins. Co., No. 12-55351 (9th Cir. 2014)
Annotate this CaseThis case arose from general liability insurance policies, including advertising injury coverage, that Great American issued to Street Surfing. At issue was whether those policies obligated Great American to defend Street Surfing in an action alleging trademark infringement, unfair competition, and unfair business practices under federal and California law (Noll action). The court accepted Great American's concession that the Noll action potentially falls within coverage for use of another's advertising idea, but rejected Street Surfing's argument that the action would also fall within the policies' coverage for slogan infringement. The court held that the prior publication exclusion relieves Great American of its duty to defend Street Surfing in the Noll action because the extrinsic evidence available to Great American at the time of tender conclusively establishes: (1) that Street Surfing published at least one advertisement using Noll's advertising idea before coverage began; and (2) that the new advertisements Street Surfing published during the coverage period were substantially similar to that pre-coverage advertisement. Accordingly, the court affirmed the district court's grant of summary judgment in favor of Great American.
Court Description: California Insurance Law. The panel affirmed the district court’s summary judgment in favor of Great American E&S Insurance Company in a diversity insurance coverage action. Great American’s insured was sued in an underlying action alleging trademark infringement, unfair competition and unfair business practices under federal and California law. The insurance policies at issue covered, among other things, personal and advertising liability. The coverage was limited by several exclusions including a prior publication exclusion which disclaimed coverage for “‘[p]ersonal and advertising injury’ arising out of oral or written publication of material whose first publication took place before the beginning of the policy period.” The panel held that the underlying action potentially fell within the policies’ coverage, triggering Great American’s duty to defend under the advertising injury provision, but not under the slogan infringement provision. The panel concluded that the prior publication exclusion in the insurance policies relieved Great American of any duty to defend its insured in the underlying action.
The court issued a subsequent related opinion or order on November 14, 2014.
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