The Hanover Insurance Company et al v. Anova Food, LLC et al

Filing 151

ORDER DISMISSING ALL CLAIMS AGAINST DEFENDANT ANOVA FOOD, INC. AND DENYING PLAINTIFFS THE HANOVER INSURANCE COMPANY AND MASSACHUSETTS BAY INSURANCE COMPANY'S MOTION FOR SUMMARY JUDGMENT (ECF NO. 97) AND GRANTING IN PART, AND DENYING, IN PART, DEFENDANT ANOVA FOOD LLC'S MOTION FOR PARTIAL SUMMARY JUDGMENT (ECF NO. 101) re 97 , 101 , 148 - Signed by JUDGE HELEN GILLMOR on 6/29/2016. " All claims against Anova Inc. are DISMISSED WITH PRE JUDICE. The Hanover Companies' Motion for Summary Judgment (ECF No. 97) is DENIED. Anova LLC's Motion for Partial Summary Judgment (ECF No. 101) is GRANTED, IN PART, and DENIED IN PART. The Hanover Comp anies are not entitled to recover any attorneys' fees from Anova LLC. The Hanover Companies' insurance polices covered Anova LLC for the personal and advertising injury claims asserted in the Underlying Lawsuit. The March 2015 settlement pertaining to Anova LLC included both covered and non-covered claims. Neither the Hanover Companies nor Anova LLC are entitled to recover their contributions to the March 2015 settlement in the Underlying Lawsuit. The Hanover Compa nies are required to pay reasonable attorneys' fees incurred by the Zobrist law firm in defending Anova LLC in the Underlying Lawsuit between October 12, 2012 and December 10, 2013. The only other remaining claim before the Court is Anova LLC's bad faith claim." (emt, )CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII

THE HANOVER INSURANCE COMPANY;
MASSACHUSETTS BAY INSURANCE
COMPANY,
Plaintiffs,
vs.
ANOVA FOOD, LLC; ANOVA FOOD,
INC.
Defendants.
______________________________
ANOVA FOOD, LLC,
CounterClaimant,
vs.
THE HANOVER INSURANCE COMPANY;
MASSACHUSETTS BAY INSURANCE
COMPANY,
CounterDefendants.
______________________________

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Civ. No. 14-00281 HG-RLP

ORDER DISMISSING ALL CLAIMS AGAINST DEFENDANT ANOVA FOOD, INC.
and
DENYING PLAINTIFFS THE HANOVER INSURANCE COMPANY AND
MASSACHUSETTS BAY INSURANCE COMPANY’S MOTION FOR SUMMARY
JUDGMENT (ECF No. 97)
and

1

GRANTING, IN PART, AND DENYING, IN PART, DEFENDANT ANOVA FOOD
LLC’S MOTION FOR PARTIAL SUMMARY JUDGMENT (ECF No. 101)

Plaintiffs/Counter-Defendants The Hanover Insurance
Company and Massachusetts Bay Insurance Company (“Hanover
Companies”) have filed a declaratory judgment action against
Defendant/Counter-Claimant Anova Food, LLC and Defendant Anova
Food, Inc. relating to insurance policies that were in effect
between July 1, 2010 and July 11, 2014.
Defendant/Counter-Claimant Anova Food, LLC (“Anova LLC”)
filed a Counterclaim against the Hanover Companies for breach
of contract and for bad faith relating to the insurance
contracts at issue.
The Court previously ruled that the Hanover Companies
owed Anova LLC a duty to defend in the underlying litigation
against it in the United States District Court for the
District of Hawaii, Kowalski v. Anova Food, LLC, et al., Civ.
No. 11-00795HG-RLP (“Underlying Lawsuit”).
The Underlying Lawsuit was brought in December 2011
against Anova LLC and Anova Food, Inc. for patent infringement
and personal and advertising injury.
The Hanover Companies provided defense counsel for Anova
LLC in the Underlying Lawsuit.

2

Anova Food, Inc. obtained separate counsel and was not
defended by the Hanover Companies in the Underlying Lawsuit.
In September 2014, all claims against Anova Food, Inc.
and all claims against Anova Food, LLC that occurred on or
before July 1, 2010 were settled in the Underlying Lawsuit.
Neither Anova LLC nor the Hanover Companies contributed toward
the September 2014 settlement.
Anova Food, Inc. was dismissed from the Underlying
Lawsuit pursuant to a joint stipulation.
In March 2015, Anova LLC entered into a separate
settlement agreement for the remaining claims against it in
the Underlying Lawsuit.

Both Anova LLC and the Hanover

Companies contributed to the March 2015 settlement.

The

following month the parties entered into a stipulation to
dismiss the remaining claims against Anova LLC in the
Underlying Lawsuit and the case was closed.

MOTIONS CURRENTLY BEFORE THE COURT:
The Hanover Companies’ Motion for Summary Judgment

The Hanover Companies filed a Motion for Summary Judgment
seeking a determination as to their duty to indemnify Anova
LLC relating to the Underlying Lawsuit.

3

The Hanover Companies seek allocation, reimbursement, and
recoupment of money from Anova LLC.
The Hanover Companies provided a defense to Anova LLC in
the Underlying Lawsuit, but they argue that the defense was
provided with a reservation of their rights.
The Hanover Companies assert Anova LLC was not covered by
the insurance policies at issue because the Underlying
Lawsuit’s claims for patent infringement and personal and
advertising injury were outside the scope of the policies’
definition of “personal and advertising injury.”

Anova LLC’s Motion for Summary Judgment

Anova LLC has filed a Motion for Partial Summary
Judgment.

Anova LLC asserts the Hanover Companies owed it a

duty to indemnify based on the insurance policies at issue.
Anova LLC seeks to recover the money it contributed to the
March 2015 settlement.
In addition, Anova LLC seeks summary judgment on Count I
of its Counterclaim for Breach of Contract.

Anova LLC asserts

that the Hanover Companies breached the terms of the insurance
policies for refusing to pay all of Anova LLC’s attorneys’
fees in defending the Underlying Lawsuit.

Anova Food, Inc. Dismissed
4

At the hearing on the Motions for Summary Judgment, the
Parties agreed to dismiss all claims against Anova Food, Inc.
All claims against Anova Food, Inc. are DISMISSED WITH
PREJUDICE.
Plaintiffs/Counter-Defendants the Hanover Companies’
Motion for Summary Judgment (ECF No. 97) is DENIED.
Defendant/Counter-Claimant Anova LLC’s Motion for Partial
Summary Judgment (ECF No. 101) is GRANTED, IN PART, AND
DENIED, IN PART.
The Hanover Companies are not entitled to recover any
attorneys’ fees from Anova LLC.
The Hanover Companies’ insurance polices covered Anova
LLC for the personal and advertising injury claims asserted in
the Underlying Lawsuit.
The March 2015 settlement pertaining to Anova LLC
included both covered and non-covered claims.

Neither the

Hanover Companies nor Anova LLC are entitled to recover their
contributions to the March 2015 settlement in the Underlying
Lawsuit.
The Hanover Companies are required to pay reasonable
attorneys’ fees incurred by the Zobrist law firm in defending

5

Anova LLC in the Underlying Lawsuit between October 12, 2012
and December 10, 2013.

PROCEDURAL HISTORY

On June 19, 2014, the Hanover Companies filed a
Complaint.

(ECF No. 1).

On October 2, 2014, Anova LLC and Anova Food, Inc. filed
an Answer and Counterclaim.

(ECF No. 14).

On May 29, 2015, the Hanover Insurance Companies filed a
First Amended Complaint.

(ECF No. 39).

On June 12, 2015, Anova LLC filed a Counterclaim in
Response to the First Amended Complaint.

(ECF No. 40-1).

On December 23, 2015, Anova LLC filed a MOTION FOR
PARTIAL SUMMARY JUDGMENT ESTABLISHING PLAINTIFFS/COUNTERCLAIM
DEFENDANTS’ DUTY TO DEFEND.

(ECF No. 64).

On March 16, 2016, the Hanover Companies filed a MOTION
FOR SUMMARY JUDGMENT (ECF No. 97) along with a Concise
Statement of Facts.

(ECF No. 99).

On the same date, Anova LLC filed a MOTION FOR PARTIAL
SUMMARY JUDGMENT ESTABLISHING (1) HANOVER’S DUTY TO INDEMNIFY
AND (2) REASONABLENESS OF ZOBRIST LAW’S ATTORNEY FEES (ECF No.

6

101) along with a Concise Statement of Facts (ECF No. 103).

On March 24, 2016, the Court issued an ORDER GRANTING, IN
PART, AND DENYING, IN PART, DEFENDANT/COUNTERCLAIMANT ANOVA
FOOD, LLC’S MOTION FOR PARTIAL SUMMARY JUDGMENT as to the duty
to defend.

(ECF No. 113).

On April 11, 2016, the Hanover Companies filed its
Opposition to Anova LLC’s Motion for Partial Summary Judgment
and its Concise Statement of Facts in Opposition to Anova
LLC’s Motion for Partial Summary Judgment.

(ECF Nos. 123,

124).
On the same date, Anova LLC filed its Opposition to the
Hanover Companies’ Motion for Summary Judgment and its Concise
Statement of Facts in Opposition to the Hanover Companies’
Motion for Summary Judgment.

(ECF Nos. 118, 119).

On April 18, 2016, the Court issued a Minute Order
striking Anova LLC’s April 11, 2016 filings (ECF Nos. 118,
119) for failure to comply with the Local Rules of the
District of Hawaii.

(ECF No. 127).

The Court continued the

briefing schedule to allow Anova LLC to re-file its
Opposition.

(Id.)

On April 25, 2016, Anova LLC filed its Opposition to the
Hanover Companies’ Motion for Summary Judgment and its Concise

7

Statement of Facts in Opposition to the Hanover Companies’
Motion for Summary Judgment.

(ECF Nos. 129, 130).

On April 27, 2016, the Hanover Companies requested a
continuance of the hearing date, which was granted.

(ECF No.

136, 137).
On May 13, 2016, the Hanover Companies filed their Reply.
(ECF No. 145).
On the same date, Anova LLC filed its Reply.

(ECF No.

144).
On June 23, 2016, the Court held a hearing on the Hanover
Companies’ Motion for Summary Judgment (ECF No. 97) and Anova
LLC’s Motion for Partial Summary Judgment (ECF No. 101).
The Parties agreed to the dismissal of Anova Inc. with
prejudice.

BACKGROUND
ANOVA FOOD, LLC
Defendant/Counter-Claimant Anova Food, LLC (“Anova LLC”)
is a company that sells and markets fish.

(Declaration of

Darren Zobrist, Chief Executive Officer of Anova LLC (“Zobrist
Decl.”) at ¶ 2, ECF No. 75).
Anova LLC began operations in May 2010 after it acquired
certain assets from Anova Food, Inc., which had ceased

8

operations the same month.

(Zobrist Decl. at ¶ 2, ECF No.

75).
Anova LLC was covered by the four commercial liability
insurance policies that were in effect between July 1, 2010
and July 11, 2014.

(See Insurance Policies attached as Exs.

B, C, D to Pla.’s First Amended Complaint, ECF Nos. 39-2—6).

ANOVA FOOD, INC.

Anova Food, Inc. (“Anova Inc.”) is a co-defendant in this
case.

Anova Inc. ceased operations in May 2010, before the

July 1, 2010 commencement of the insurance policies at issue.
(Zobrist Decl. at ¶ 2, ECF No. 75).
Anova Inc. had separate insurers and separate counsel
from Anova LLC in the Underlying Lawsuit.

(Id. at ¶¶ 8-9).

Anova Inc. was covered by separate insurance policies that
were in effect before July 1, 2010.

(Id.)

In September 2014, Anova Inc. reached a settlement in the
Underlying Lawsuit.

(Id. at ¶¶ 8-10; September 2014

Settlement attached as Ex. 1 to Zobrist Decl., ECF No. 75-1).
The September 2014 settlement settled all claims against Anova
Inc. and any claims against Anova Food, LLC that occurred on
or before July 1, 2010.

(Id.)

9

In September 2014, the Parties in the Underlying Lawsuit
entered into a joint stipulation to dismiss Anova Inc.
The Hanover Companies’ First Amended Complaint asserts
claims against Anova Inc.

(ECF No. 39).

At the hearing on the Motions for Summary Judgment held
on June 23, 2016, the Parties agreed to dismiss all claims
against Anova Food, Inc.
All claims against Anova Food, Inc. are DISMISSED WITH
PREJUDICE.

INSURANCE POLICIES AT ISSUE

The Declaratory Judgment action filed by the
Plaintiffs/Counterclaim-Defendants The Hanover Insurance
Company and Massachusetts Bay Insurance Company (hereinafter
“Hanover Companies”)1 concerns four commercial liability
insurance policies.
The Parties agree that the Hanover Companies were
responsible for four insurance policies issued to Anova
Holding USA, LLC, which covered Anova LLC.
1

The Massachusetts Bay Insurance Company is wholly owned
by The Hanover Insurance Company. (Plaintiff Massachusetts
Bay Insurance Company’s Corporate Disclosure Statement, ECF
No. 4). The Parties in their briefing refer to
Plaintiffs/Counter-Defendants The Hanover Insurance Company
and Massachusetts Bay Insurance Company collectively as
“Hanover”.
10

The OneBeacon Policies:

The first two policies were a primary commercial
liability policy and an umbrella commercial liability policy
that were issued by OneBeacon Insurance Company to Anova
Holding USA, LLC, Policy No. 713-00-91-51-0002, effective from
July 1, 2010 to July 1, 2011 (“OneBeacon Policies”).
(OneBeacon Policies attached as Exhibit B to Pla.’s First
Amended Complaint, ECF No. 39-2—4).

The Massachusetts Bay Policy:

The third policy at issue is a primary commercial
liability policy issued by Massachusetts Bay Insurance Company
to Anova Holding USA, LLC, Policy No. LDY 9192618 00,
effective July 1, 2011 to July 1, 2012 and renewed through and
including July 11, 2014 (“The Massachusetts Bay Policy”).
(Massachusetts Bay Insurance Company Policy attached as Ex. C
to Pla.’s First Amended Complaint, ECF No. 39-5).

The Hanover Policy:

The final policy at issue is a commercial umbrella
liability policy issued by The Hanover Insurance Company to
Anova Holding USA, LLC, Policy No. UHY 9124369 00, effective
11

from July 1, 2011 to July 1, 2012 (“Hanover Policy”).

(The

Hanover Bay Insurance Company Policy attached as Ex. D to
Pla.’s First Amended Complaint, ECF No. 39-6).

Coverage for “Personal and Advertising Injury”:

Each of the four policies provided coverage for claims of
“personal and advertising injury.”

(OneBeacon Primary Policy

at p. 9, ECF No. 39-3; OneBeacon Umbrella Policy at p. 22, ECF
No. 39-4; Massachusetts Bay Policy at p. 36, ECF No. 39-5;
Hanover Policy at p. 14, ECF No. 39-6).

The definition of

“personal and advertising injury” in the policies contained a
disparagement clause.
Each of the policies included a number of standard
exclusions for personal and advertising injuries.
Specifically, the policies included an exclusion for
intellectual property claims, an exclusion for claims based on
the failure of goods to conform, an exclusion for willful
wrongdoing, and an exclusion for claims arising outside the
policy period.

(See OneBeacon Primary Policy at p. 44, ECF

No. 39-3; OneBeacon Umbrella Policy at p. 33, ECF No. 39-4;
Massachusetts Bay Policy at pp. 36, 44, ECF No. 39-5; Hanover
Policy at pp. 14-15, ECF No. 39-6).

THE UNDERLYING LAWSUIT
12

The coverage dispute arises from allegations in a patent
infringement and personal and advertising injury case that was
filed in the United States District Court for the District of
Hawaii.
On December 29, 2011, the Underlying Lawsuit, William R.
Kowalski; Hawaii International Seafood, Inc. v. Anova Food,
LLC; Anova Food, Inc., et al., Civ. No. 11-00795HG-RLP, was
filed against Anova LLC and Anova Inc.
The First Amended Complaint in Kowalski alleged patent
infringement claims and personal and advertising injury
claims, asserting that “Defendants [Anova Inc. and Anova LLC]
falsely, misleadingly, deceptively advertised, promoted, and
sold fish.”

(Kowalski v. Anova Food, LLC, et al., 11-cv-

00795HG-RLP, First Amended Complaint filed Jan. 2, 2012, ECF
No. 6; attached as Ex. A to Pla.’s First Amended Complaint,
ECF No. 39-1).
The First Amended Complaint brought Count I for patent
infringement, Count II for unfair competition and deceptive
trade practices pursuant to 15 U.S.C. § 1125(a), Count III for
unfair methods of competition pursuant to Haw. Rev. Stat. §
480-2, and Count IV for unfair and deceptive trade practices
in violation of Haw. Rev. Stat. § 481A-3.

13

(Id. at pp. 3-8).

The First Amended Complaint in the Underlying Suit
claimed, “Defendants [Anova LLC’s] use of such words, product
and process descriptions, product labels and packaging,
advertising, etc., constitute a misappropriation or
infringement of advertising ideas, style of doing business,
title and slogan, and also disparagement of Plaintiffs, their
products, their businesses, and the ’401 Patent and/or its
processes.”

(Id. at ¶ 24) (emphasis added).

The plaintiffs in the Underlying Lawsuit set forth a
number of exhibits and depositions to be used at trial that
documented Anova LLC’s publication of materials claiming that
its fish products were made using the “Clearsmoke” process and
that its process was superior to the Kowalski Plaintiffs’
“tasteless smoke” patented process.

(See Anova LLC E-mails

and Marketing Materials attached as Exhibits 10 through 17 to
the Second Declaration of Darren Zobrist (“Zobrist Sec.
Decl.”), ECF No. 105-1—105-7).

ATTORNEYS REPRESENTING ANOVA LLC IN THE UNDERLYING LAWSUIT

The Hanover Companies and Anova LLC dispute the
attorneys’ fees owed to the Zobrist Law Group as a result of
the Hanover Companies’ duty to defend Anova LLC in the
Underlying Lawsuit.

The Court previously ruled that the
14

Hanover Companies had a duty to defend Anova LLC in the
Underlying Lawsuit.

In the Order, the Court explained that

Anova LLC is not entitled to attorneys’ fees incurred before
requesting a defense from the Hanover Companies on October 12,
2012.

Representation Between October 12, 2012 and December 10, 2013

On October 12, 2012, Anova LLC requested the Hanover
Companies provide it a defense to the Underlying Suit pursuant
to the relevant insurance policies.

(Zobrist Decl. at ¶ 6,

ECF No. 75).
Anova LLC was represented by both Attorney Gary Grimmer
and the Zobrist law firm in the Underlying Lawsuit between
October 12, 2012 until December 10, 2013.

(Zobrist Decl. at

¶¶ 5-6, ECF No. 75; Declaration of Craig E. Marshall, member
of the Zobrist Law Group, (“Marshall Decl.) at ¶¶ 6-8, ECF No.
104).
The Hanover Companies agreed to provide a defense to
Anova LLC pursuant to a reservation of rights on December 13,
2012, and agreed to assign Gary Grimmer as defense counsel who
Anova LLC had already retained.

(Letter from Hanover Regional

Liability Adjuster Stephen E. Colville, dated December 13,
2012, ECF No. 75-4).

15

The Hanover Companies acquiesced to Anova LLC’s retention
of the Zobrist law firm and paid for a portion of the Zobrist
law firm’s attorneys’ fees incurred by Anova LLC.

(Marshall

Decl. at ¶¶ 16-35, ECF No. 104; Declaration of Stephen E.
Colville at ¶ 5, ECF No. 123-1).
Anova LLC submitted evidence that the Hanover Companies
approved billing rates for the Zobrist law firm and paid fees
for the Zobrist law firm when it was counsel of record in the
Underlying Lawsuit between October 12, 2012 and December 10,
2013.

(Marshall Decl. at ¶¶ 16, 33, ECF No. 104; see e-mails

and print-outs regarding the Hanover Companies’ acceptance of
billing rates for the Zobrist law firm, attached as Exs. 1, 2,
3 to the Marshall Decl., ECF No. 104-1—104-3; see Bill
Analysis Reports for the Zobrist law firm’s billing to the
Hanover Companies for the Underlying Lawsuit dated 10/11/2013
to 12/31/13, attached as Exs. 5, 6, 7, 8, 9 to the Marshall
Decl., ECF No. 104-5—104-9).

Representation After December 10, 2013

On December 10, 2013, the Hanover Companies sent a letter
to Anova LLC to inform it that they had decided to change
counsel in the Underlying Lawsuit.
letter stated:

16

The December 10, 2013

Hanover is transferring the defense of this matter
on behalf of Anova Food, LLC to attorneys Wesley
H.H. Ching and Leighton K. Chong...Hanover will
continue to defend Anova Food, LLC under its
previously issued reservation of rights and will be
fulfilling that obligation by the retention of
attorneys Ching and Chong.
(Letter from Hanover Regional Liability Adjuster Stephen
E. Colville, dated December 10, 2013, to counsel for Anova LLC
at pp. 4-5, ECF No. 75-5).
Also in the December 10, 2013 Letter, the Hanover
Companies stated:
You have indicated a desire for the Zobrist Law
Group to stay involved in the defense of the claims
asserted in part because of the firm’s history with
intellectual property issues involving Anova Foods,
LLC. Anova Foods, LLC has the right to retain
separate counsel if it so chooses. However, the
continued involvement of the Zobrist Law Group will
need to be funded directly by Anova Foods, LLC.
Hanover’s defense obligation, as set forth in the
previous reservation of rights letter, will be
fulfilled by the retention of and payment to
attorneys Ching and Chong as set forth herein.
(Id. at p. 5).

March 2015 Settlement

On March 3, 2015, a settlement of the Underlying Lawsuit
was held on the record.

(Kowalski v. Anova Food, LLC, et al.,

11-cv-00795HG-RLP, Minutes of Settlement on the Record dated
March 3, 2015, ECF No. 633).

Anova LLC and the Kowalski

Plaintiffs entered into a written Settlement Agreement and
17

Release.

(March 2015 Settlement Agreement and Release,

attached as Ex. 9 to Zobrist Decl., ECF No. 75-9).
The Hanover Companies and Anova LLC agreed to contribute
equally to the settlement amount contained in the March 2015
Settlement Agreement and Release.

(Letter from the Hanover

Companies to Anova LLC dated April 1, 2015, Re: March 2015
Settlement, attached as Ex. 1 to Declaration of Skyler Cruz
(“Cruz Decl.), ECF No. 98-1).
On April 23, 2015, the District Court issued a
Stipulation and Order for Dismissal with Prejudice as to all
claims and parties in the Underlying Lawsuit.

(Kowalski v.

Anova Food, LLC, et al., 11-cv-00795HG-RLP, Stipulation For
Dismissal With Prejudice as to All Claims and Parties, ECF No.
635).
Anova LLC claims that the Hanover Companies have refused
to pay outstanding legal bills it incurred from the Zobrist
law firm between October 12, 2012 and December 10, 2013.

STANDARD OF REVIEW

Summary judgment is appropriate when there is no genuine
issue as to any material fact and the moving party is entitled
to judgment as a matter of law. Fed. R. Civ. P. 56(c). To
defeat summary judgment there must be sufficient evidence that

18

a reasonable jury could return a verdict for the nonmoving
party. Nidds v. Schindler Elevator Corp., 113 F.3d 912, 916
(9th Cir. 1997).
The moving party has the initial burden of "identifying
for the court the portions of the materials on file that it
believes demonstrate the absence of any genuine issue of
material fact." T.W. Elec. Serv., Inc. v. Pacific Elec.
Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987) (citing
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). The
moving party, however, has no burden to negate or disprove
matters on which the opponent will have the burden of proof at
trial.

The moving party need not produce any evidence at all

on matters for which it does not have the burden of proof.
Celotex, 477 U.S. at 325. The moving party must show, however,
that there is no genuine issue of material fact and that he or
she is entitled to judgment as a matter of law.

That burden

is met by pointing out to the district court that there is an
absence of evidence to support the non-moving party’s case.
Id.
If the moving party meets its burden, then the opposing
party may not defeat a motion for summary judgment in the
absence of probative evidence tending to support its legal
theory. Commodity Futures Trading Comm'n v. Savage, 611 F.2d

19

270, 282 (9th Cir. 1979). The opposing party must present
admissible evidence showing that there is a genuine issue for
trial. Fed. R. Civ. P. 56(e); Brinson v. Linda Rose Joint
Venture, 53 F.3d 1044, 1049 (9th Cir. 1995). “If the evidence
is merely colorable, or is not significantly probative,
summary judgment may be granted.” Nidds, 113 F.3d at 916
(quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50
(1986)).
The court views the facts in the light most favorable to
the non-moving party.

State Farm Fire & Casualty Co. v.

Martin, 872 F.2d 319, 320 (9th Cir. 1989). Opposition evidence
may consist of declarations, admissions, evidence obtained
through discovery, and matters judicially noticed.

Fed. R.

Civ. P. 56(c); Celotex, 477 U.S. at 324. The opposing party
cannot, however, stand on its pleadings or simply assert that
it will be able to discredit the movant's evidence at trial.
Fed. R. Civ. P. 56(e); T.W. Elec. Serv., 809 F.2d at 630.

The

opposing party cannot rest on mere allegations or denials.
Fed. R. Civ. P. 56(e); Gasaway v. Northwestern Mut. Life Ins.
Co., 26 F.3d 957, 959-60 (9th Cir. 1994).

When the non-moving

party relies only on its own affidavits to oppose summary
judgment, it cannot rely on conclusory allegations unsupported
by factual data to create an issue of material fact.
20

Hansen

v. United States, 7 F.3d 137, 138 (9th Cir. 1993); see also
National Steel Corp. v. Golden Eagle Ins. Co., 121 F.3d 496,
502 (9th Cir. 1997).

ANALYSIS

The Parties agreed at the hearing held on June 23, 2016
to dismiss all claims against Anova Food, Inc.
All claims against Anova Food, Inc. are DISMISSED WITH
PREJUDICE.
The Court previously ruled that the Hanover Companies had
a duty to defend Anova LLC in the Underlying Lawsuit.
The Parties now each seek summary judgment on the issue
of the Hanover Companies’ duty to indemnify Anova LLC for the
claims asserted against it in the Underlying Lawsuit.
The Hanover Companies and Anova LLC each seek to recover
contributions they made toward the March 2015 settlement of
the Underlying Lawsuit.

Anova LLC also seeks to recover

attorneys’ fees owed to the Zobrist law firm.

I.

The Hanover Companies’ Duty to Indemnify Anova LLC
A.

Duty to Indemnify Pursuant to Florida Law

Florida law governs the interpretation of the insurance
policies at issue.

(Order Granting, In Part, and Denying, In
21

Part, Anova Food, LLC’s Motion for Partial Summary Judgment at
p. 18, ECF No. 113).
Pursuant to Florida law, courts examine the insurance
policy as a whole and give every provision its “full meaning
and operative effect” when determining insurance coverage.
State Farm Fire and Cas. Co. v. Steinberg, 393 F.3d 1226, 1231
(11th Cir. 2004) (quoting Hyman v. Nationwide Mut. Fire Ins.
Co., 304 F.3d 1179, 1186 (11th Cir. 2002)).
Insurance contracts are construed according to their
plain meaning.

Taurus Holdings, Inc. v. U.S. Fidelity and

Guar. Co., 913 So.2d 528, 532 (Fla. 2005).

Ambiguities in

coverage provisions, particularly in exclusionary clauses, are
strictly construed against the insurer and in favor of
coverage.

Trailer Bridge, Inc. V. Ill. Nat. Ins. Co., 657

F.3d 1135, 1141 (11th Cir. 2011); Fayad v. Clarendon Nat’l
Ins. Co., 899 So.2d 1082, 1086 (Fla. 2005).
Pursuant to Florida law, liability of an insurer depends
upon whether the insured’s claim is within the coverage of the
policy.

Spencer v. Assurance Co. of Am., 39 F.3d 1146, 1149

(11th Cir. 1994).

A determination of coverage is a condition

precedent to any recovery against an insurer.

Steil v. Fla.

Physicians’ Ins. Reciprocal, 448 So.2d 589, 592 (Fla. Dist.
Ct. App. 1984).

22

The duty to indemnify is narrower than the duty to defend
and depends upon actual coverage measured by the facts as they
unfolded at trial or are inherent in the settlement agreement.
IDC Constr. v. Admiral Ins. Co., 339 F.Supp.2d 1342, 1349
(S.D. Fla. 2004) (citation and internal quotation marks
omitted); see State Farm Fire & Cas. Co. v. CTC Dev. Corp.,
720 So.2d 1072, 1077n.3 (Fla. 1998).
Facts inherent in a settlement agreement are those facts
which existed at the time the settlement was reached that can
reasonably be inferred to have affected settlement.

Travelers

Indem. Co. of Ill. v. Royal Oak Enters., Inc., 344 F.Supp.2d
1358, 1366 (M.D. Fla. 2004) (citing Travelers Ins. Co. v.
Waltham Indus. Labs. Corp., 883 F.2d 1092, 1099 (1st Cir.
1989)).

B.

The Hanover Companies’ Policies Included Coverage
for “Personal and Advertising Injury”

The Underlying Lawsuit contained claims for patent
infringement and claims for personal and advertising injury.
(Kowalski v. Anova Food, LLC, et al., 11-cv-00795HG-RLP, First
Amended Complaint filed Jan. 2, 2012, ECF No. 6; attached as
Ex. A to Pla.’s Amended Complaint, ECF No. 39-1).
The patent infringement claims in the Underlying Lawsuit
were not covered by the Hanover Companies’ insurance policies.
23

See Gencor Indus., Inc. v. Wausau Underwriters Inc. Co., 857
F.Supp. 1560, 1564 (M.D. Fla. 1994).
The Parties dispute if the evidence set forth in the
Underlying Lawsuit for the remaining claims, generally
referred to as the personal and advertising injury claims,
triggered the Hanover Companies’ duty to indemnify Anova LLC.
The Hanover Companies’ four insurance policies included
coverage for “personal and advertising injury.”

The Hanover

Companies’ policies defined “personal and advertising injury”,
in relevant part, as follows:
“Personal and advertising injury” means injury,
including consequential “bodily injury”, arising out
of one or more of the following offenses:
...
(The Parties agree that sections a., b., and c. are
not applicable in this case)
d.

Oral or written publication of material
that slanders or libels a person or
organization. This does not include any
slander or libel related to the actual or
alleged infringement or violation of any
intellectual property rights or laws;

e.

Oral or written publication of material
that disparages a person’s or
organization’s goods, products or services.
This does not include any disparagement
related to the actual or alleged
infringement or violation of any
intellectual property rights or laws;

f.

Oral or written publication of material
that violates a person’s right of privacy;

24

g.

The use of another’s advertising idea in
your “advertisement”; or

h.

Infringing upon another’s copyright, trade
dress or slogan in your “advertisement”.

(OneBeacon Primary Policy at p. 9, ECF No. 39-3;
OneBeacon Umbrella Policy at p. 22, ECF No. 39-4; see also
Massachusetts Bay Policy at p. 44, ECF No. 39-5; Hanover
Policy at pp. 14-15, ECF No. 39-6) (emphasis added).
The evidence from the Underlying Lawsuit demonstrates
that the plaintiffs in the Underlying Lawsuit, William R.
Kowalski and Hawaii International Seafood, Inc. (“Kowalski
Plaintiffs”), brought their personal and advertising injury
claims, in part, on a theory of disparagement.
The plaintiffs in the Underlying Lawsuit asserted that
the fish products that Anova LLC sold were falsely advertised
as being treated by a “Clearsmoke” process rather than
Kowalski’s “tasteless smoke” process.

(Kowalski First Amended

Complaint at ¶¶ 14-15, ECF No. 6; attached as Ex. A to Pla.’s
First Amended Complaint, ECF No. 39-1).
The First Amended Complaint in the Underlying Suit
claimed, “Defendants [Anova LLC’s] use of such words, product
and process descriptions, product labels and packaging,
advertising, etc., constitute a misappropriation or
infringement of advertising ideas, style of doing business,

25

title and slogan, and also disparagement of Plaintiffs, their
products, their businesses, and the ’401 Patent and/or its
processes.”

1.

(Id. at ¶ 24) (emphasis added).

The Disparagement Clause

Anova LLC argues that the Underlying Lawsuit’s personal
and advertising injury claims were covered based on the
disparagement clause in the definition of “personal and
advertising injury” stated in the Hanover Companies’ insurance
policies.
The disparagement clause in the Hanover Companies’
insurance policies stated that there is insurance coverage for
claims arising out of oral or written publication of material
that disparages a person’s or organization’s goods, products
or services.
A United States District Court in the Southern District
of Florida recently applied Florida law to examine this exact
clause.

E.S.Y., Inc. v. Scottsdale Ins. Co., 139 F.Supp.3d

1341, 1353 (S.D. Fla. 2015).

The federal District Court found

that personal and advertising injury claims are covered by the
disparagement clause when the insured published material
making a comparison of its products to a competitor and
suggested that their competitor’s product was inferior.
26

Id.

Pursuant to Florida law, a claim for personal and
advertising injury is covered by the applicable disparagement
clause even if the insured did not refer to the competitor’s
name specifically.

Vector Products, Inc. v. Hartford Fire

Ins. Co., 397 F.3d 1316, 1319 (11th Cir. 2005); see also
E.piphany, Inc. v. St. Paul Fire & Marine Ins. Co., 590
F.Supp.2d 1244, 1253 (N.D. Cal. 2008) (finding disparagement
may be by implication and does not require the insured to name
the competitor).
It is enough for the insured to compare its product or
service to its competitor’s product or service in order to
detract from the reputation of its competitor.

Vector

Products, Inc., 397 F.3d at 1319; see Acme United Corp. v. St.
Paul Fire & Marine Ins. Co., 214 Fed. Appx. 596, 600 (7th Cir.
2007) (finding that an advertisement that drew comparisons
between its own product and a competitor’s and asserted its
own product was superior constituted a covered advertising
injury claim).
Disparagement can also result from false comparisons
between products in which the comparison dishonors the product
being compared.

E.S.Y., Inc., 139 F.Supp.3d at 1353 (citing

Skylink Techs., Inc. v. Assurance Co. of Am., 400 F.3d 982,

27

985 (7th Cir. 2005) and McNeilab, Inc. v. Am. Home Prods.
Corp., 848 F.2d 34, 38 (2d Cir. 1988)).
The disparagement clause in the Hanover Companies’
policies provided coverage for claims resulting from the
publication of disparaging material.

The publication of the

disparaging material need not be an “advertisement”.

Penzer

v. Transportation Ins. Co., 29 So.3d 1000, 1006 (Fla. 2010)
(interpreting an insurance policy’s definition of “oral or
written publication” broadly).
The insurance policies chose not to limit the
disparagement clause to the publication of an “advertisement”
but instead chose to include any oral or written publication
of material that disparages a person’s or organization’s
goods, products or services.

Other clauses in the definition

of “personal and advertising injury” are limited to the
publication of advertisements, but the disparagement clause is
not so limited.

See E.S.Y., Inc., 139 F.Supp.3d at 1353-56

(distinguishing between the material covered by the
disparagement clause and the “advertising” covered in the
advertising idea clause).
The differences in language are construed to be
intentional as the insurer chose not to limit the
disparagement clause to the advertisement definition.

28

St.

Luke’s Cataract and Laser Institute, P.A. v. Zurich, 506 Fed.
Appx. 970, 978 (11th Cir. 2013) (citing Davis v. Nationwide
Life Ins. Co., 450 So.2d 549, 550 (Fla. Dist. Ct. App. 1984)
(“If an insurer intends to restrict coverage, it should use
language clearly stating its purpose”).
The plain meaning of the policies controls the
interpretation of the disparagement clause.

Taurus Holdings,

Inc., 913 So.2d at 532; Vozzcom, Inc. v. Beazley Ins. Co.,
Inc., 666 F.Supp.2d 1321, 1328 (S.D. Fla. 2009).

The Court

may not rewrite a contract of insurance to extend or limit the
coverage afforded beyond that plainly set forth in the
insurance contract.

AAA Life Ins. Co. v. Nicolas, 603 So.2d

622, 623 (Fla. Dist. Ct. App. 1992).

2.

The Underlying Lawsuit’s Claims for Personal and
Advertising Injury Were Covered by the
Disparagement Clause

There is evidence upon which to have insurance coverage
in this case because Anova LLC made oral and written
publication of disparaging material about the Kowalski
Plaintiffs’ products.

E.S.Y., Inc., 139 F.Supp.3d at 1353;

Foliar Nutrients, Inc. v. Nationwide Agribusiness Inc. Co.,
133 F.Supp.3d 1372, 1382-83 (M.D. Ga. 2015) (finding coverage
based on oral disparagement of a competitor).

29

In preparation for trial, the Kowalski Plaintiffs
provided evidence that they suffered personal or advertising
injuries based on disparagement caused by Anova LLC.

The

Kowalski Plaintiffs submitted evidence of Anova LLC’s oral and
written publication of material that disparaged the fish and
meat products that were produced using the Kowalski
Plaintiffs’ “tasteless smoke” process.
The evidence submitted by the Kowalski Plaintiffs
included oral and written communications that constituted
advertising and promotions made by Anova LLC to its customers.
Anova LLC used focused and directed oral and written
communications at trade shows and through e-mails to
wholesaler buyers in their specific market segments that
constituted commercial advertising or promotions.

E.S.Y.,

Inc., 139 F.Supp.3d at 1355-56; Mid-Continent Cas. Co. v. Kipp
Flores Architects, L.L.C., 602 Fed. Appx. 985, 994 (5th Cir.
2015); Copart, Inc. v. Travelers Ins. Co., 11 Fed. Appx. 815,
816-17 (9th Cir. 2001).
The lead Plaintiff in the Underlying Lawsuit, William R.
Kowalski, testified at his deposition for trial that Anova LLC
had disparaged his “tasteless smoke” products by claiming that
it had developed a superior process called “Clearsmoke.”
Kowalski testified as follows:

30

Attorney:

When was the first time you
complained to anyone at Anova
about their advertising?

Kowalski:

Well, I believe that when I told
Anova that I thought they were
infringing, that they weren’t
really smoking the fish and
taking the smoke out, that-thewould be, in my mind, a complaint
about their advertising.
So because they’re making verbal and
written representations of their
product that’s not true, the customers
wouldn’t have bought the fish if they
would have known the truth.

Attorney:

How do you know that the
customers would not have bought
the fish?

Kowalski:

I believe they wouldn’t have
bought the fish because you have
to make truthful representations.
You can’t make up some sort of a
smokescreen that you’re doing this,
this, and that, when, really, that
you’re infringing on the – on my
patent.
I don’t believe that the customers
would have bought product if they knew
it was infringed and if they knew that
the representations they made about
the product were not true.

Attorney:

And those representations were
what?

Kowalski:

We apply – we smoke the fish,
apply smoke flavor. We take it
out with ozone. We get better
shelf life. The shelf life is
longer than in Kowalski’s fish
because we leave more smoke in
31

the fish. It makes it last
longer. It’s better.
(Deposition of William R. Kowalski at pp. 129-130,
attached as Ex. 10 to Second Declaration of Darren Zobrist
(“Zobrist Sec. Decl.”), ECF No. 105-1) (emphasis added).
The documentary evidence that was submitted as trial
exhibits in the Underlying Lawsuit supported the testimony of
Mr. Kowalski.

There was evidence that wholesale customers

were confused as to the purported differences between Anova
LLC’s “Clearsmoke” products and products that were made using
Plaintiff Kowalski’s “tasteless smoke”.
The evidence included an e-mail dated April 11, 2013 from
Toppits Foods Ltd to Anova LLC asking for it to “explain a bit
more about your version of tasteless smoke to me.”

(E-mail to

Anova LLC from Toppits Food Ltd dated April 11, 2013, attached
as Ex. 11 to Zobrist Sec. Decl., ECF No. 105-2).

On April 12,

2013, Anova LLC responded stating the following,
We have a unique Canadian patent for our
“Clearsmoke” natural, purified wood smoke
preservation process. Our process is similar to the
Sea Delight “tasteless smoke” patent with a few
differences (enough to warrant our own patent). The
basis difference is with the way we filter our wood
smoke and rinse our products with ozonated water
after smoking. This process minimizes oxidation
during freezing and slows bacteria growth upon
defrosting, giving our products a much longer shelf
life after thaw. I have attached a brochure with

32

additional details, and we will gladly answer any
questions during out meeting on May 2nd.2
(E-mail from Anova LLC to Toppits Foods Ltd date April
12, 2013, attached as Ex. 12 to Zobrist Sec. Decl., ECF No.
105-3) (emphasis added).
In an e-mail dated February 21, 2013, Anova LLC told
Empire Seafood that the “Clearsmoke” process was superior
because it used less than 30% of carbon monoxide while the
“tasteless smoke” process used 100% carbon monoxide.

(E-mail

from Anova LLC to Empire Seafood, dated February 21, 2013,
attached as Ex. 13 to Zobrist Sec. Decl., ECF No. 105-3).
The Kowalski Plaintiffs provided evidence that Anova LLC
made other similar written representations that disparaged the
“tasteless smoke” process while claiming Anova LLC’s products
using the “Clearsmoke” process were superior.

(See E-mail

from Anova LLC to Sprouts Farmers Market dated March 26, 2014,
offering to make a full presentation regarding “Clearsmoke” in
response to questions about the differences between Anova
LLC’s “natural wood smoke process” as opposed to the carbon
monoxide “tasteless smoke” products, attached as Ex. 15 to
Zobrist Sec. Decl., ECF No. 105-5).

2

Sea Delight is a licensee of the Kowalski process.
33

The evidence provided by the Kowalski Plaintiffs in the
Underlying Lawsuit supported its position that it suffered a
personal or advertising injury that was caused by Anova LLC’s
disparagement.

Hyman, 304 F.3d at 1192-93 (citing R.C.

Bigelow, Inc. v. Liberty Mut. Ins. Co., 287 F.3d 242, 248 (2d
Cir. 2002)); Limelight Productions, Inc. v. Limelite Studios,
Inc., 60 F.3d 767, 769 (11th Cir. 1995) (finding insurance
covered claim for Lanham Act damages).
The evidence demonstrated that the aforementioned
personal or advertising injury claims asserted against Anova
LLC fell within the definition of “personal and advertising
injury” stated in the Hanover Companies’ policies.

Spencer,

39 F.3d at 1149; see Tria Beauty, Inc. v. Nat’l Fire Ins. Co.
of Hartford, 2013 WL 2181649, *5-*6 (N.D. Cal. May 20, 2013).

C.

The Kowalski Plaintiffs’ Personal and Advertising
Injury Claims Are Not Subject to the Exclusions
Contained in the Insurance Policies

Under Florida law, the insurer has the burden to
establish that a policy’s exclusion applies.

U.S. Liab. Ins.

Co. v. Bove, 347 So.2d 678, 680 (Fla. Dist. Ct. App. 1977).
The Hanover Companies argue in their Opposition to Anova
LLC’s Motion for Summary Judgment that a number of the
policies’ exclusion provisions apply to bar Anova LLC from

34

coverage.

(The Hanover Companies’ Opp. at pp. 24-29, ECF No.

123).

1.

The Intellectual Property Exclusion Does Not
Apply

The Hanover Companies’ policies contain an exclusion that
states that personal and advertising injuries do not include
any disparagement related to the actual or alleged
infringement or violation of any intellectual property rights
or laws.

(OneBeacon Primary Policy at p. 44, ECF No. 39-3;

OneBeacon Umbrella Policy at p. 33, ECF No. 39-4).

The

exclusion clause specifically stated that insurance does not
apply to:
a.

The actual or alleged infringement or violation
of any of the following:
(1)

trade dress;

(2)

trade name;

(3)

trade secrets;

(4)

trademark;

(5)

copyright; but this exclusion does not
apply to infringement of copyrighted
materials or slogans in your
“advertisements”; or

(6)

any other intellectual property rights or
laws.

35

(OneBeacon Primary Policy at p. 44, ECF No. 39-3;
OneBeacon Umbrella Policy at p. 33, ECF No. 39-4; see
Massachusetts Bay Policy at p. 36, ECF No. 39-5; Hanover
Policy at pp. 14-15, ECF No. 39-6).
The Hanover Companies assert that the personal and
advertising injury claims asserted in the Underlying Lawsuit
were related to and arising out of the Kowalski Plaintiffs’
patent infringement claims and should be excluded.
There is Florida case law supporting the conclusion that
the intellectual property exclusion does not apply when there
was an independent basis for the personal or advertising
injury claim to exist.

E.S.Y., Inc., 139 F.Supp.3d at 1358-

59; see Santa’s Best Craft, LLC v. St. Paul Fire & Marine Ins.
Co., 611 F.3d 339, 348 (7th Cir. 2010); see Citizens Ins. Co.
of Am. v. Uncommon, LLC, 812 F.Supp.2d 905, 911 (N.D. Ill.
2011).
The Hanover Companies’ arguments based on Power Corp v.
Amerisure Ins. Co., 2013 WL 4523490, *5, *6 (M.D. Fla. Aug.
26, 2013) are unpersuasive.

In Power Corp., the false

advertising claims against the insured were intertwined with
the intellectual property infringement claim and did not have
a separate basis apart from the intellectual property claim.
The Power Corp. Court explained that the advertising claim was

36

“grounded on the alleged improper use of a trademark” that
formed the basis of the trademark infringement claims.

Id.

In this case, the personal and advertising injury claims
asserted in the Underlying Lawsuit were not dependent or
necessarily related to the patent infringement claim and
existed regardless of the patent infringement claim.
In the Underlying Litigation, the Court found that the
personal and advertising injury claims were not simply
disguised patent infringement claims.

(Order Denying

Defendant Anova Food, LLC’s Motion for Summary Judgment, ECF
No. 432 in 11-cv-795HG-RLP).

The Court issued an Order

finding that the Kowalski Plaintiffs’ advertising claims were
separate and distinct from the patent infringement claims and
denied the Defendants’ Motion for Summary Judgment. (Id. at
pp. 51-53).
The Kowalski Plaintiffs based their personal and
advertising injury claims on evidence that Anova LLC published
material that disparaged the Kowalski Plaintiffs’ “tasteless
smoke” process.

The Kowalski Plaintiffs could have prevailed

on their personal and advertising injury claims without
prevailing on their patent infringement claims.
The claims were not intertwined because a jury could have
determined that Anova LLC had not infringed on the Kowalski

37

Plaintiffs’ patent but simultaneously found that Anova LLC
disparaged the Kowalski Plaintiffs’ “tasteless smoke” process
while claiming that “Clearsmoke” was superior.

See Kia-Tencor

Corp. v. Travelers Indem. Co. of Ill., 2003 WL 21655097, *5
(N.D. Cal. Apr. 11, 2003).
The intellectual property exclusion does not bar coverage
in this case.

The intellectual property exclusion does not

state that all suits that assert a simultaneous intellectual
property claim would be excluded from coverage.

Such

ambiguous insurance policy exclusions are construed against
the drafter and in favor of the insured.

Deni Assoc. of Fla.,

Inc. v. State Farm Fire & Cas. Ins. Co., 771 So.2d 1135, 1138
(Fla. 1998).

Exclusionary clauses are construed even more

strictly against the insurer than coverage clauses.

Hyman,

304 F.3d at 1196 (citing Auto-Owners Ins. Co. v. Anderson, 756
So.2d 29, 34 (Fla. 2000)).

The policies’ intellectual

property exclusion is not so plain and unambiguous to have put
Anova LLC on notice that the policies would not cover personal
and advertising injury claims in a lawsuit that also included
a claim for intellectual property infringement.

Align Tech.,

Inc. v. Fed. Ins. Co., 673 F.Supp.2d 957, 969-970 (N.D. Cal.
2009).

38

The Hanover Companies have not established that the
intellectual property exclusion contained in its policies
precluded coverage.

2.

The Failure of Goods to Conform Exclusion and
the Knowledge of Falsity Exclusion Do Not Apply

The Hanover Companies’ insurance policies exclude
personal and advertising injuries arising out of the “failure
of goods, products or services to conform with any statement
of quality or performance made in your advertisement.”

The

policies also exclude coverage for personal and advertising
injuries arising out of oral or written publication of
material done by or at the direction of the insured with
knowledge of their falsity.

(One Beacon Primary Policy at p.

10, ECF No. 39-3; OneBeacon Umbrella Policy at pp. 22-23, ECF
No. 39-4; Massachusetts Bay Policy at p. 36, ECF No. 39-5;
Hanover Policy at pp. 14-15, ECF No. 39-6).
Specific factual findings as to the quality of the goods
or knowledge of the falsity of a statement are required in
order to prove that these policy exclusions absolutely bar
recovery.

Adolfo House Distributing Corp. v. Travelers Prop.

and Cas. Ins. Co., 165 F.Supp.2d 1332, 1340-1341 (S.D. Fla.
2001); Orlando Nightclub Enters., Inc. v. James River Ins.
Co., 2007 WL 4247875, *5-*9 (M.D. Fla. Nov. 30, 2007).
39

No such findings were made either by a court order,
verdict, judgment, or stipulation.

There were no findings in

the Underlying Lawsuit that Anova LLC products did not conform
to their statement of quality.

There were no findings as to

Anova LLC’s knowledge as to any false statements in their
published materials.

Hyman, 304 F.3d at 1195-96; Lime Tree

Village Comm. Club Assoc., Inc. v. State Farm Gen. Ins. Co.,
980 F.2d 1402, 1406-07 (11th Cir. 1993).
The Florida Supreme Court has explained that the
insurance company has the burden of proving a policy exclusion
applies and it must obtain a judgment from which it may be
determined that there is no coverage.

U.S. Concrete Pipe Co.

v. Bould, 437 So.2d 1061, 1065 (Fla. 1983); Herrera v. C.A.
Seguros Catatumbo, 844 So.2d 664, 668 (Fla. Dist. Ct. App.
2003) (finding that the insurer failed to establish facts that
would have precluded coverage under the policy exclusion);
Royal Oak, 344 F.Supp.2d at 1368.
The Hanover Companies did not provide any basis upon
which the Court could find that the exclusion for failure of
goods to conform or the exclusion for knowledge of false
statements applies.
3.

The Prior Publication Exclusion Does Not Apply

40

The Hanover Companies argue that coverage is precluded
because the first publication of material referring to the
Clearsmoke process took place before the beginning of the
applicable policies.
ECF No. 123).

(The Hanover Companies’ Opp. at p. 27,

The Hanover Companies misunderstand the

exclusion.
First, courts applying Florida law have found that the
first publication exclusion only applies to claims for
slander, libel, and invasion of privacy.

Adolfo House

Distrib. Corp., 165 F.Supp.2d at 1342 (citing Iron Home
Builders Inc. v. Auto-Owners Ins. Co., 839 F.Supp. 1260, 1265
(E.D. Mich. 1993) (applying Florida law to find that the
exclusion did not apply to the claims asserted against the
insured)).
Second, even if the exclusion applies to other types of
claims, the personal and advertising injury claims complained
of in the Underlying Lawsuit were not simply related to
publication of the term “Clearsmoke.”

The personal and

advertising injury claims in the Underlying Lawsuit asserted
that Anova LLC published oral and written material that
disparaged the Kowalski Plaintiffs’ patented “tasteless smoke”
process.

The Hanover Companies have not pointed to

disparaging material published by Anova LLC that took place

41

before the July 1, 2010 effective date of the policies at
issue.
The written evidence submitted by the Kowalski Plaintiffs
was dated between February 2013 and March 2014, while the
policies were in effect.

(E-mail dated February 21, 2013,

attached as Ex. 13 to Zobrist Sec. Decl., ECF No. 105-3; Email dated April 12, 2013, attached as Ex. 12 to Zobrist Sec.
Decl., ECF No. 105-3; E-mail dated March 26, 2014, attached as
Ex. 15 to Zobrist Sec. Decl., ECF No. 105-5).
The Hanover Companies have not met their burden to
establish that a policy exclusion applies to bar coverage as
to the personal and advertising injury claims in the
Underlying Lawsuit.

III.

Allocation of the Claims in March 2015 Settlement

Pursuant to Florida law, the burden of allocating damages
rests with the moving party seeking recovery when the
underlying judgment included claims for which an insurer is
liable and also claims which were beyond the coverage of the
insurance policy.

Mid-Continent Cas. Co. v. Clean Seas Co.,

Inc., 860 F.Supp.2d 1318, 1323 (M.D. Fla. 2012) (citing
Guarantee Ins. Co. v. Gulf Ins. Co., 628 F.Supp. 867, 870
(S.D. Fla. 1986)).

42

The Underlying Lawsuit included claims for patent
infringement and personal and advertising injury claims.

The

patent infringement claims were not covered by the Hanover
Companies’ insurance policies.

The personal and advertising

injury claims were covered pursuant to the disparagement
clause of the policies’ definition of “personal and
advertising injury.”
In March 2015, Anova LLC and the Kowalski Plaintiffs in
the Underlying Lawsuit entered into a settlement to dismiss
the claims against Anova LLC for the events that occurred
after July 1, 2010, during the effective period of the Hanover
Companies’ insurance policies.

Anova LLC and the Kowalski

Plaintiffs signed a written document containing the terms of
their March 2015 settlement.

(March 2015 Settlement Agreement

and Release, attached as Ex. 9 to Zobrist Decl., ECF No. 759).
The Hanover Companies and Anova LLC each contributed the
same amount of money to settle the claims against Anova LLC
pursuant to the March 2015 Settlement Agreement.

(Letter from

the Hanover Companies to Anova LLC dated April 1, 2015, Re:
March 2015 Settlement, attached as Ex. 1 to Cruz Decl., ECF
No. 98-1).

The Hanover Companies and Anova LLC have each

43

moved for summary judgment as to their contribution to the
March 2015 settlement.
The party seeking recovery for money paid toward a
settlement bears the burden to allocate damages between the
claims covered by the insurance policy and the claims outside
the insurance policy.

Keller Indus. Inc. v. Employers Mutual

Liability Ins. Co. of Wisconsin, 429 So.2d 779, 780 (Fla.
Dist. Ct. App. 1983); Metro. Dade Cnty v. Fla. Aviation
Fueling Co., Inc., 578 So.2d 296, 298 (Fla. Dist. Ct. App.
1991) (per curiam); Am. Cas. Co. of Reading Pa. v. Health Care
Indem., Inc., 613 F.Supp.2d 1310, 1320 (M.D. Fla. 2009).
The March 2015 Settlement Agreement provided for a lump
sum settlement payment and did not apportion the payment
between the patent infringement claims and the personal and
advertising injury claims.

(March 2015 Settlement Agreement

and Release, attached as Ex. 9 to Zobrist Decl., ECF No. 759).
Both the Hanover Companies and Anova LLC have the burden
on their respective Motions for Summary Judgment to allocate
damages between the covered and the non-covered claims
pursuant to the March 2015 Settlement Agreement.

Neither

party has provided the Court with a reliable framework for
apportioning damages, which is fatal to their claims.

44

Trovillion Const. & Dev., Inc. V. Mid-Continent Cas. Co., 2014
WL 201678, *9 (M.D. Fla. Jan. 17, 2014); Association for
Retarded Citizens, Dade Cnty., Inc. v. State of Florida Dept.
of Health and Rehabilitative Services, 619 So.2d 452, 454
(Fla. Dist. Ct. App. 1993) (citing Dionese v. City of West
Palm Beach, 500 So.2d 1347, 1351 (Fla. 1987) (the language
contained in the settlement agreement determines postsettlement apportionment)).
In the Underlying Lawsuit, on December 31, 2014, the
Court issued an Order Denying Defendant Anova Food, LLC’s Two
Motions to Strike, and Denying Defendant Anova Food, LLC’s
Motion for Summary Judgment, and Granting, in part, and
Denying, in part, the Kowalski Plaintiffs’ Counter Motion for
Partial Summary Judgment.

(ECF No. 432 in 11-cv-00795HG-RLP).

On January 23, 2015 and February 11, 2015, the Court held
its Final Pretrial Conference and ruled on twenty-three of the
Parties’ Motions in Limine.

(ECF Nos. 548, 581, 585, 586,

587, 588, and 603 in 11-cv-00795HG-RLP).
On February 27, 2015, the Court held a hearing on
Objections to Evidence, Jury Instructions, and Witnesses.
(ECF No. 628

in 11-cv-00795HG-RLP).

on March 3, 2015.

45

Trial was set to begin

On the morning of March 3, 2015, the day trial was
scheduled to begin, the case settled before the jury convened.
(ECF No. 633 in 11-cv-00795HG-RLP).
settlement on the record.

(Id.)

The Parties held a

The Parties now seek to re-

litigate the case in the Underlying Lawsuit because they did
not apportion liability for the various claims in their
settlement documents.
The Parties have not provided any authority that would
allow them to re-litigate the case that they chose to settle
on the day of trial.

Both the Hanover Companies and Anova LLC

had the opportunity to prepare their March 2015 Settlement
Agreement to include apportionment between the patent
infringement and false advertising claims but both Parties
declined to do so.

Limelight Productions, Inc., 60 F.3d at

769; see Gallagher v. Dupont, 918 So.2d 342, 348 (Fla. Dist.
Ct. App. 2005).
The Hanover Companies provided defense counsel to Anova
LLC.

Anova LLC, however, was apprised of the divergence of

interest between the insurer and itself.
contributed to the settlement amount.

Each party

The Hanover Companies

informed Anova LLC that its contribution was subject to a
reservation of its rights to seek reimbursement but no action
was taken by either Party as to their belief as to

46

apportionment.

See Arnett v. Mid-Continent Cas. Co., 2010 WL

2821981, *5 (M.D. Fla. July 16, 2010) (citing Duke v. Hoch,
468 F.2d 973, 979-80 (5th Cir. 1973)).
Both the Hanover Companies and Anova LLC are unable to
recovery any money contributed to the March 2015 Settlement.
Their failure to apportion the settlement amounts between
covered and non-covered claims precludes recovery for
indemnification.

Guarantee Ins. Co. v. Gulf Ins. Co., 628

F.Supp. 867, 870-871 (S.D. Fla. 1986) (citing Jones v. Holiday
Inns, Inc., 407 So.2d 1032, 1034 (Fla. Dist. Ct. App. 1981));
Universal Underwriters Ins. Corp. v. Reynolds, 129 So.2d 689,
691 (Fla. Dist. Ct. App. 1961); Am. Cas. Co. of Reading
Penns., 613 F.Supp.2d at 1321.
The Hanover Companies also seek recovery of the
attorneys’ fees it provided in the Underlying Lawsuit.

The

Court already ruled that they had a duty to defend Anova LLC
for the entire suit and they are not able to apportion the
fees for recovery.

Grissom v. Commercial Union Ins. Co., 610

So.2d 1299, 1307 (Fla. Dist. Ct. App. 1992); Certain
Interested Underwriters at Lloyd’s London v. Halikoytakis, 556
Fed. Appx. 932, 933 (11th Cir. 2014) (per curiam).
The Hanover Companies’ Motion for Summary Judgment (ECF
No. 97) is DENIED.

47

The Hanover Companies are not entitled to recover the
money they contributed to the March 2015 Settlement Agreement
from Anova LLC.
Anova LLC’s Motion for Partial Summary Judgment seeking
to recover the money it contributed to the March 2015
Settlement Agreement is DENIED.
Anova LLC is not entitled to recover the money it
contributed to the March 2015 Settlement Agreement from the
Hanover Companies.

IV.

Anova LLC’s Counterclaim for Attorneys’ Fees

Anova LLC seeks summary judgment against the Hanover
Companies on its Breach of Contract claim as stated in Count I
of its Counterclaim.

Anova LLC claims the Hanover Companies

breached the insurance contract because it did not pay for all
of the attorneys’ fees incurred by the Zobrist law firm for
defending Anova LLC in the Underlying Lawsuit.
Florida law provides that it is possible for an insurance
company to provide a defense under a reservation of rights
without breaching its contract.

Petro v. Travelers Cas. and

Sur. Co. of America, 54 F.Supp.3d 1295, 1303 (N.D. Fla. 2014)
(citing Mid-Continent Cas. Co. v. American Pride Bldg. Co.,
LLC, 601 F.3d 1143, 1149 (11th Cir. 2010)).
48

The Hanover Companies’ December 13, 2012 reservation of
rights letter did not constitute a breach of contract.
Oak Enters., Inc., 344 F.Supp.2d at 1371.

Royal

The Hanover

Companies offered to provide a defense to Anova LLC in its
December 13, 2012 reservation of rights letter.

In the

letter, the Hanover Companies agreed to hire Attorney Gary
Grimmer to provide a defense to Anova LLC.

Anova LLC did not

reject the defense provided by the Hanover Companies.

Western

Heritage Ins. Co. v. Montana, 30 F.Supp.3d 1366, 1372 (M.D.
Fla. 2014).
The Parties agreed that Attorney Grimmer would be
assisted by the Zobrist law firm, and that the Zobrist law
firm would appear as counsel of record in the Underlying
Lawsuit.

(Marshall Decl. at ¶¶ 16-35, ECF No. 104;

Declaration of Stephen E. Colville at ¶ 5, ECF No. 123-1).
The Hanover Companies owe the Zobrist law firm all
reasonable attorneys’ fees incurred by the Zobrist law firm
between October 12, 2012, when Anova LLC requested a defense
from the Hanover Companies until December 10, 2013, when the
Hanover Companies decided to provide different counsel to
Anova LLC.
The Hanover Companies accepted the billing rates for the
Zobrist law firm and paid some of the Zobrist law firm’s fees

49

incurred between October 12, 2012 and December 10, 2013.
(Marshall Decl. at ¶¶ 16, 33, ECF No. 104; see e-mails and
print-outs regarding the Hanover Companies’ acceptance of
billing rates for the Zobrist law firm, attached as Exs. 1, 2,
3 to the Marshall Decl., ECF No. 104-1—104-3).
The record reflects that the Zobrist law firm provided an
invoice to the Hanover Companies on June 30, 2013 for billings
between October 11, 2012 and June 30, 2013.

(Bill Analysis

Report attached as Ex. 5 to Anova LLC’s CSF, ECF No. 104-5).
There is no indication on any of the bill analysis
reports that the Hanover Companies intended to pay the Zobrist
law firm for a limited purpose as now contended by the Hanover
Companies in their Opposition.

The notations made by the

Hanover Companies in the bill analysis reports demonstrate
that the Hanover Companies intended to pay fees for the
Zobrist law firm in the future, and not for one specified,
limited purpose.

(Bill Analysis Reports attached as Exs. 5,

6, 7, 8, and 9, to Anova LLC’s CSF, ECF Nos. 104-5—9).
Anova LLC submitted correspondence between the Zobrist
law firm and the Hanover Companies from October 2013,
concerning billing practices and billing rates.

(E-mails

between the Zobrist Law Group and Hanover Insurance Group’s
Legal Ebilling Coordinator, attached as Ex. 1 to Anova LLC’s

50

CSF, ECF No. 104-1).

The e-mails do not indicate that the

Zobrist law firm was representing Anova LLC for a limited
purpose, for a limited duration, or for limited work.
In November 2013, counsel for the Hanover Companies
informed counsel for Anova LLC that it was looking into
changing the representation for Anova LLC in the Underlying
Lawsuit.

(E-mails between Steve Rawls and John Neeleman dated

November 12 and November 19, 2013, attached as Ex. C-1 to the
Neeleman Decl. in Anova LLC’s Opp., ECF No. 131-3).
Anova LLC responded to the Hanover Companies that it
“desire[d] that Zobrist Law Group remain as lead counsel.”
(Id. at p. 2) (emphasis added).

The Hanover Companies at no

time throughout the correspondence asserted that the Zobrist
law firm was not acting as counsel for Anova LLC in the
Underlying Lawsuit.
On December 10, 2013, the Hanover Companies sent a letter
to Anova LLC informing it that they decided to change counsel
for Anova LLC in the Underlying Lawsuit.

(Letter from Hanover

Regional Liability Adjuster Stephen E. Colville, dated
December 10, 2013, attached as Ex. 5 to Zobrist Decl. at pp.
4-5, ECF No. 75-5).
In the December 10, 2013 Letter, the Hanover Companies
informed Anova LLC that Anova LLC would be responsible for
51

payment of attorneys’ fees for the Zobrist law firm to
continue in the case.

(Id.)

As of December 10, 2013, Anova LLC was no longer entitled
to have attorneys’ fees paid for by the Hanover Companies to
Attorney Gary Grimmer and the Zobrist law firm following the
Hanover Companies’ letter.
An insured may retain its own counsel and recoup
reasonable attorneys’ fees from the insurer if the defense
provided by the insurer is not adequate.

Maronda Homes, Inc.

of Fla. v. Progressive Exp. Ins. Co., 118 F.Supp.3d 1332, 1335
(M.D. Fla. 2015) (citing Carrousel Concessions, Inc. v. Fla.
Ins. Guar. Ass’n, 483 So.2d 513, 517 (Fla. Dist. Ct. App.
1986)).
There is no evidence that the attorneys provided by the
Hanover Companies after December 10, 2013 were inadequate and
therefore Anova LLC was forced to retain separate counsel.
Royal Oak Enterprises, Inc., 344 F.Supp.2d at 1369.
Following the change of counsel, the Parties continued to
correspond regarding the money owed to the Zobrist law firm.
The Hanover Companies paid a lump sum to the Zobrist law firm
in January 2014, but stated that the rest of the payment would
be made following an audit of the invoices.

(E-mails between

counsel for the Hanover Companies and counsel for Anova LLC

52

dated February 9 and 23 of 2014 and January 2, 3, and 22 of
2014, attached as Ex. B-1 to the Neeleman Decl. in Anova LLC’s
Opp., ECF No. 131-2).
Nowhere in the correspondence between the Hanover
Companies, the Zobrist law firm, and Anova LLC did the Hanover
Companies assert that the Zobrist law firm was not owed
attorneys’ fees because they were not approved as defense
counsel for Anova LLC in the Underlying Lawsuit.

Instead, the

Hanover Companies asserted that the invoices needed to be resubmitted.

(Id. at pp. 1-2).

In an e-mail dated January 2, 2014, counsel for the
Hanover Companies stated,
[W]ith respect to the Zobrist Law Group’s invoices,
Mass Bay/Hanover has already made a $50,000.00
payment. The invoices submitted were rejected
because the entries did not contain sufficient
detail, were block billed and not in compliance with
any generally accepted billing practice. Please
have the Zobrist Law Group resubmit its invoices
with sufficient detail and without block billing
entries for Mass Bay/Hanover to review.
(E-mail from Scott A. Markowitz to John Neeleman dated
January 2, 2014, attached as Ex. A-1 to Neeleman Decl. in
Anova LLC’s Opp., ECF No. 131-1) (emphasis added).
In its Opposition to Anova LLC’s Motion for Partial
Summary Judgment, the Hanover Companies submitted an affidavit
from Stephen E. Colville, Regional Liability Adjuster for the
53

Hanover Companies.

(Declaration of Stephen E. Colville dated

April 11, 2016, attached as Ex. 1 to the Hanover Companies’
Opp., ECF No. 123-1).

In the Declaration dated April 11,

2016, Colville stated that it was the Hanover Companies’
understanding that it was only being asked to agree to pay
certain fees of the Zobrist law firm and that it did not agree
to assign the Zobrist law firm as defense counsel.
5-6).

(Id. at ¶¶

There is nothing in the record to support this

statement.
All of the correspondence that occurred at the time of
the Underlying Lawsuit between the Hanover Companies, the
Zobrist law firm, and Anova LLC reflects that the Hanover
Companies agreed that the Zobrist law firm was counsel of
record for Anova LLC and that the Hanover Companies agreed to
pay the attorneys’ fees incurred by the Zobrist law firm
between October 12, 2012 and December 10, 2013.
The Hanover Companies did not refute Anova LLC’s
assertion that the Zobrist law firm served as part of the
defense team.

Nor did the Hanover Companies’ correspondence

ever assert that the Zobrist law firm was not owed additional
fees.
Instead, the Hanover Companies agreed that the Zobrist
law firm was owed attorneys’ fees and the Hanover Companies

54

merely contested the form and manner of the firm’s invoices.
(E-mail from Scott A. Markowitz to John Neeleman dated January
2, 2014, attached as Ex. A-1 to Neeleman Decl. in Anova LLC’s
Opp., ECF No. 131-1; E-mails between counsel for the Hanover
Companies and counsel for Anova LLC dated February 9 and 23 of
2014 and January 2, 3, and 22 of 2014, attached as Ex. B-1 to
the Neeleman Decl. in Anova LLC’s Opp., ECF No. 131-2; E-mails
between Steve Rawls and John Neeleman dated November 12 and
November 19, 2013, attached as Ex. C-1 to the Neeleman Decl.
in Anova LLC’s Opp., ECF No. 131-3)
Anova LLC’s Motion for Partial Summary Judgment as to its
Counterclaim for Breach of Contract is GRANTED, IN PART, and
DENIED IN PART.
The Hanover Companies are required to pay reasonable
attorneys’ fees incurred by the Zobrist law firm in defending
Anova LLC in the Underlying Lawsuit between October 12, 2012
and December 10, 2013.

V.

Anova LLC’s Counterclaim for Bad Faith

The last remaining claim in the lawsuit is Count II for
Bad Faith in Anova LLC’s Counterclaim against the Hanover
Companies.

Anova LLC has not pled bad faith with

particularity and the Motions for Summary Judgment do not
55

address the bad faith claim.

The Court addresses Anova LLC’s

bad faith claim as it appears that it is unable to prevail on
such a claim.
Pursuant to Florida law, there are two types of bad faith
claims brought against an insurer: a first-party bad faith
claim and a third-party bad faith claim.

A first-party bad

faith claim is brought by an insured against its insurer for
alleged bad faith in settlement with its own claim.

Opperman

v. Nationwide Mut. Fire Ins. Co., 515 So.2d 263, 266 (Fla.
Dist. Ct. App. 1987).

A first-party bad faith claim is not

found at common law and is permitted pursuant to Florida
statute, Fla. Stat. § 624.155(1)(b). Id.
Anova LLC does not appear to have brought a first-party
bad faith claim as it did not comply with the required Florida
statute for bringing such a claim.

Talat Enters., Inc. v.

Aetna Cas. And Sur. Co., 753 So.2d 1278, 1283 (Fla. 2000)
(finding Fla. Stat. § 624.155 is the exclusive remedy for
first-party bad faith claims, but such claims are barred
unless written notice is provided to the Florida Department of
Insurance and to the insurer as conditions precedent to filing
an action, Fla. Stat. § 624.155(3)).
A third-party bad faith cause of action seeks to remedy a
situation where a third-party sued the insured and the insured

56

is exposed to an excess judgment because of the insurer’s
failure to properly or promptly defend the claim.

Marcola v.

Gov’t Emps. Ins. Co., 953 So.2d 451, 455 (Fla. 2006).

The

Underlying Lawsuit was settled and there was no excess
judgment entered against Anova LLC.

Perera v. U.S. Fidelity

and Guar. Co., 35 So.3d 893, 904 (Fla. 2010); Marcola, 953
So.2d at 458 (“where the underlying tort action against the
insured no longer exists...the cause of action for third-party
bad faith no longer exists”).
Anova LLC has not demonstrated any causal connection
between the actions of the Hanover Companies and any damages
incurred in the settlement of the Underlying Lawsuit.
Messinese v. USAA Cas. Inc. Co., 622 Fed. Appx. 835, 838 (11th
Cir. 2015) (a valid bad-faith claim must show a causal
connection between the damages claimed and the insurer’s
purported bad faith).
The Court points out to Anova LLC that it appears that
Anova LLC may be unable to proceed on a bad faith claim as a
matter of law.

There are no other outstanding claims

remaining in this action.

57

CONCLUSION

All claims against Anova Inc. are DISMISSED WITH
PREJUDICE.
The Hanover Companies’ Motion for Summary Judgment (ECF
No. 97) is DENIED.
Anova LLC’s Motion for Partial Summary Judgment (ECF No.
101) is GRANTED, IN PART, and DENIED IN PART.
The Hanover Companies are not entitled to recover any
attorneys’ fees from Anova LLC.
The Hanover Companies’ insurance polices covered Anova
LLC for the personal and advertising injury claims asserted in
the Underlying Lawsuit.
The March 2015 settlement pertaining to Anova LLC
included both covered and non-covered claims.

Neither the

Hanover Companies nor Anova LLC are entitled to recover their
contributions to the March 2015 settlement in the Underlying
Lawsuit.
The Hanover Companies are required to pay reasonable
attorneys’ fees incurred by the Zobrist law firm in defending
Anova LLC in the Underlying Lawsuit between October 12, 2012
and December 10, 2013.

58

The only other remaining claim before the Court is Anova
LLC’s bad faith claim.
IT IS SO ORDERED.
DATED:

June 29, 2016, Honolulu, Hawaii.

_________________________________
__
Helen Gillmor
United States District Judge

The Hanover Insurance Company; Massachusetts Bay Insurance
Company v. Anova Food, Inc.; Anova Food, LLC; Counterclaimants
Anova Food, LLC; Anova Food, Inc. v. Counter-Defendants The
Hanover Insurance Company; Massachusetts Bay Insurance
Company; Civ. No. 14-00281HG-RLP; ORDER DISMISSING ALL CLAIMS
AGAINST DEFENDANT ANOVA FOOD, INC. and ORDER DENYING
PLAINTIFFS THE HANOVER INSURANCE COMPANY AND MASSACHUSETTS BAY
INSURANCE COMPANY’S MOTION FOR SUMMARY JUDGMENT (ECF No. 97)
and GRANTING, IN PART, AND DENYING, IN PART, DEFENDANT ANOVA
FOOD LLC’S MOTION FOR PARTIAL SUMMARY JUDGMENT (ECF No. 101)
59