New Hampshire Insurance Company, a Foreign Corporation, Appellee, v. Power-o-peat, Inc., a Minnesota Corporation; Todd Leoni Andkay Kaubsky, Each Individually and D/b/a Gardener Kay, Inc.;organic Conversion Corporation, a Minnesota Corporation, Appellant,sidney Seplowing; Garden Marketing Associates, Inc.; Hyponex, Inc, 907 F.2d 58 (8th Cir. 1990)

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US Court of Appeals for the Eighth Circuit - 907 F.2d 58 (8th Cir. 1990) Submitted June 14, 1990. Decided June 22, 1990

Bruce C. Recher, Minneapolis, Minn., for appellant.

Robert W. Ketterin, Jr., Minneapolis, Minn., for appellee.

Before MAGILL, Circuit Judge, ROSS, Senior Circuit Judge, and BEAM, Circuit Judge.


Power-O-Peat, Inc. is a Minnesota corporation engaged in the business of packaging and distributing soil additive products. New Hampshire Insurance Company (New Hampshire) provided various forms of insurance for Power-O-Peat from 1985 to 1988, including a policy of comprehensive general liability insurance which provided, among other things, advertising injury liability coverage.

In 1986, Organic Conversion Corporation (Organic) filed suit against Power-O-Peat alleging various violations of the Lanham Act, 15 U.S.C. § 1125(a), and unfair competition under Minnesota law. Organic's complaint essentially alleged that Power-O-Peat had mislabeled its composted cow and sheep manure products. On May 22, 1989, Organic and Power-O-Peat entered into a settlement agreement whereby Power-O-Peat consented to an injunction and entry of judgment against it in the amount of $200,000, payable solely from insurance proceeds. Power-O-Peat assigned its rights and claims under its insurance policy with New Hampshire to Organic.

New Hampshire contends that no coverage existed under its policy for the claims made by Organic because the actions of Power-O-Peat were excluded under exclusion II.B(6) (c) of the policy. Exclusion II.B(6) (c) states: "This insurance does not apply to advertising injury arising out of incorrect description or mistake in advertised price of good [sic], products or services sold, offered for sale or advertised." New Hampshire argues that the exclusion covers both incorrect description of goods and mistake in advertised price of goods. Because Organic's complaint essentially states that Power-O-Peat falsely described the contents of its product, New Hampshire concludes that Power-O-Peat's actions fall within the scope of the exclusion.

Organic contends, on the other hand, that the ambiguous language of exclusion II.B(6) (c) can be read to exclude only an incorrect description in price or a mistake in price and does not exclude an incorrect description of goods.

The district court concluded that the plain language of the exclusion in question unambiguously excluded both incorrect description of goods and mistake in advertised prices. The court reasoned, first, that Organic's restricted interpretation of the exclusion language would render the use of either "incorrect description" or "mistake" redundant if both referred to "advertised prices." Second, the court stated that Organic's suggested interpretation would result in the misuse of the preposition "in" when coupled with the word "description." The court held that Organic's claim fell within the II.B(6) (c) exclusion and concluded that New Hampshire had no duty to indemnify its insured.

We have carefully studied the record and the briefs and arguments of the parties and conclude that the district court did not err in granting summary judgment in favor of New Hampshire. Accordingly, the judgment of the district court is affirmed.