Westfield Insurance Company v. Robinson Outdoors, Inc.
Filing
283
MEMORANDUM OPINION AND ORDER granting as moot defendant's 214 Motion for Partial Summary Judgment; granting plaintiff's 221 Motion for Summary Judgment; denying as moot plaintiff's 225 Motion to Exclude Expert Testimony (Written Opinion). Signed by Judge John R. Tunheim on November 17, 2011. (DML)
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
WESTFIELD INSURANCE COMPANY,
Civil No. 10-151 (JRT/JJG)
Plaintiff,
MEMORANDUM OPINION
AND ORDER GRANTING
PLAINTIFF’S MOTION FOR
SUMMARY JUDGMENT
v.
ROBINSON OUTDOORS, INC.,
Defendant.
Eric J. Steinhoff and Brian A. Wood, LIND JENSEN SULLIVAN &
PETERSON, PA, 150 South Fifth Street, Suite 1700, Minneapolis, MN
55402, for plaintiff/counter defendant.
Michael C. Mahoney, MAHONEY ANDERSON LLC, 125 West Lake
Street, Suite 201, Wayzata, MN 55391, for defendant/counter claimant.
After consumers sued Robinson Outdoors, Inc. (―Robinson‖) in multiple
jurisdictions for false representations of the attributes of odor-eliminating clothing
(―underlying actions‖), Robinson sought defense and indemnification from Westfield
Insurance Co (―Westfield‖), which was denied.
In this action, Westfield seeks a
declaratory judgment that it is not obligated to defend and indemnify Robinson for the
underlying actions. The Court will grant summary judgment to Westfield because the
claims in the underlying consumer actions against Robinson are not covered by the
Westfield insurance policies or are specifically excluded from the policies. Robinson‘s
summary judgment motion seeking dismissal of Westfield‘s affirmative defenses to
24
Robinson‘s counterclaims and Westfield‘s motion to exclude testimony will both be
denied as moot.
BACKGROUND
I.
ROBINSON
Robinson is a Delaware corporation formed in 2002 that sold odor eliminating
products, clothing, and hunting gear. (Def.‘s Mem. in Supp. of its Mot. for Partial
Summ. J. at 1, Docket No. 216.)1 Although Robinson ceased doing business in 2005, it
operates today as Robinson Outdoor Products, LLC. (Id.)
Robinson sold its odor eliminating products under a license granted by ALS
Enterprises, Inc. (―ALS‖). (Id. at 3.) Under the license, Robinson was contractually
obligated to use the advertising, logos, brands and marks provided by ALS, and ALS
created or approved all Robinson advertising. (Id.)
II.
UNDERLYING ACTIONS/COMPLAINTS
In 2009, consumers sued Robinson2 (along with several other parties, including
ALS) in multiple jurisdictions. (Compl. at 3, Docket No. 1; Compl., Ex. B, Docket
No. 1-5 to 1-8 [hereinafter ―underlying complaints‖].)
The consumers bought
1
Although the Court cites to several documents that were filed under seal, the Court has
not used any of the underlying material encompassed by the protective order (Docket No. 124).
Therefore, this Order is not filed under seal.
2
The complaints originally named Robinson Outdoors, Inc. f/k/a Robinson Laboratories,
Inc. as a defendant. (Compl., Ex. B, Underlying Compls., Docket No. 1-5 to 1-8.) Robinson
Outdoor Products, LLC was later added as an additional defendant in amended complaints.
(Def.‘s Mem. in Supp. of its Mot. for Partial Summ. J. at 5.)
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Robinson‘s hunting clothing based on representations regarding the clothing‘s ability to
eliminate odor.
(Compl. at 3-4).
The complaints alleged that Robinson falsely
represented the attributes of odor-eliminating clothing, deceiving consumers into
purchasing the clothing. (Pl.‘s Mem. Supp. Summ. J., Docket No. 223.)
Robinson summarized the claims of the underlying complaints in this way:
In [the class action complaint by Jonathan] Lange, the plaintiff contended
he had five separate counts . . . (1) false advertising in violation of
California Business & Professions Code -5 § 17500;3 (2) violations of the
California Consumer Legal Remedies Act; Civil Code § 1750, et seq.;4
(3) violations of the California Business and Professions Code § 17200;5
(4) violations of common law unjust enrichment;6 and (5) civil conspiracy.7
3
―Defendants‘ advertisements for Defendants‘ odor eliminating clothing contain untrue
or misleading statements concerning the quality of Defendants‘ advertised products. The actual
odor eliminating capability of Defendants‘ odor eliminating clothing is much less, if any, than
Defendants represented. . . . Defendants knew, or, in the exercise of reasonable care, should
have known that the statements . . . were false and misleading.‖ (Compl., Ex. B, Lange Compl.
¶¶ 118, 121, Docket No. 1-5.)
4
―Defendants violated Civil Code § 1770(a)(7) because they falsely and uniformly
represented to consumers that the purported odor eliminating clothing was of the particular
standard described in their advertising and marketing materials, i.e., they uniformly represented
that the clothing eliminated odor and could be ‗reactivated‘ when neither was true.‖ (Lange
Compl. ¶ 140.)
5
―Unlawful, as proscribed by Cal. Bus. & Prof. Code § 17500, in that Defendants‘
advertisements contain unfair, deceptive, untrue or misleading statements of material fact which
were and are known by Defendants, or which by the exercise of reasonable care should be
known to be untrue or misleading . . . .‖ (Lange Compl. ¶ 153.)
6
―Defendants knowingly advertised and sold to Plaintiff and members of the Class
clothing that was not as Defendants represented. . . . As a result . . . Defendants have realized
substantial revenues . . . .‖ (Lange Compl. ¶¶ 162-63.)
7
Alleging that Defendants conspired to misrepresent the odor-eliminating properties of
their clothing in advertisements and the ―conspiracy was furthered and protected by each
Defendant‘s knowledge of the misrepresentations being made by other defendants‖ and
―concerning their odor eliminating clothing.‖ (Lange Compl. ¶¶ 168-172.)
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The complaints in the other Five Actions make the same factual allegations
but tailor their consumer actions to the particular state where the action is
filed.
(Def.‘s Mem. Supp. Partial Summ. J. at 20.) Each claim in the underlying complaints
depends, at least in part, on the Defendants‘ misrepresentations of the odor-eliminating
capabilities of their products.
Robinson sought defense and indemnification from Westfield for the underlying
actions under insurance policies it had purchased from Westfield. (Pl.‘s Mem. Supp.
Summ. J. at 2.) Westfield denied coverage on multiple grounds. (Def.‘s Mem. Supp.
Partial Summ. J. at 5.) First, Westfield asserted that the allegations of the underlying
complaints did not fall within its policies.
(Id.)
Second, Westfield contended two
exclusions in the policies barred coverage – specifically (1) that the advertisements were
published prior to the policy period and (2) that the injuries alleged in the underlying
complaints arose from the failure of Robinson‘s products to conform with statements of
quality or performance made in Robinson‘s advertisements. (See id.)
Robinson and Robinson Outdoor Products, LLC eventually settled the claims in
the underlying actions with a sealed settlement agreement that was reduced to formal
written agreements in June 2010.
(Aff. of Eric J. Steinhoff, June 1, 2011, Ex. 7,
Stipulated Confidential Final Order for Settlement (Monetary Terms) at 1-2, Docket
No. 224.)
After settlement, Westfield again refused Robinson‘s request for
indemnification. (Def.‘s Mem. Supp. Partial Summ. J. at 5.)
-4-
III.
WESTFIELD’S INSURANCE POLICIES
At issue in this case is whether the terms of the insurance policies issued by
Westfield cover the attorney and settlement costs of the underlying actions. Westfield
issued two Commercial General Liability insurance policies to Robinson, effective
December 30, 2004 to December 30, 2005 and December 30, 2005 to December 30, 2006
(―Westfield Policies‖). (Compl. at 2 & Corrected Ex. A, Insurance Policies.) The policy
effective from December 30, 2004 to December 30, 2005 also contained umbrella
coverage. (Id.)
The General Liability Coverage Form contains the following provisions:
SECTION I—COVERAGES . . .
COVERAGE B PERSONAL AND ADVERTISING INJURY LIABILITY
1.
Insuring Agreement
a.
2.
We will pay those sums that the insured becomes legally
obligated to pay as damaged because of “personal and
advertising injury” to which this insurance applies. We will
have the right and duty to defend the insured against any
―suit‖ seeking those damages. However, we will have no duty
to defend the insured against any suit seeking damages for
―personal and advertising injury‖ to which this insurance does
not apply. . . .
Exclusions
This insurance does not apply to:
b.
Material Published With Knowledge of Falsity
―Personal and advertising injury‖ arising out of oral and
written publication of material, if done at the direction of the
insured with knowledge of its falsity.
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c.
Material Published Prior to Policy Period
―Personal and advertising injury‖ arising out of oral or
written publication of material whose first publication took
place before the beginning of the policy period. . . .
g.
Quality Or Performance Of Goods – Failure To Conform
To Standards
―Personal and advertising injury‖ arising out of the failure of
goods, products or services to conform with any
statement of quality or performance made in your
“advertisement”. . . .
SECTION V—DEFINITIONS
1.
―Advertisement‖ means a notice that is broadcast or published to the
general public or specific market segments about your goods,
products or services for the purpose of attracting customers or
supporters. . . .
14.
―Personal and advertising injury‖ means injury, including
consequential ―bodily injury‖, arising out of one or more of the
following offenses: . . .
d. Oral or written publication, in any manner, of material that
slanders or libels a person or organization or disparages a
person’s or organization’s goods, products or services; . . .
f.
The use of another’s
―advertisement‖; or
g.
Infringing upon another‘s copyright, trade dress or slogan in
your ―advertisement‖.
advertising
idea
in
your
(Compl., Corrected Ex. A, Insurance Policies, Docket No. 1-10 at 29, 33-34, 40, 43
(emphasis added).)
The umbrella coverage policy effective December 30, 2004 to December 30, 2005
contains the following provisions:
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SECTION I—COVERAGES . . .
1.
INSURING AGREEMENT
(1)
We will pay ―ultimate net loss‖ in excess of the ―retained
limit‖ that the insured becomes legally obligated to pay as
damages because of ―personal injury‖ or ―property damage‖
to which this insurance applies. We will have the right and
duty to defend the insured against any suit seeking those
damages. However, we will have no duty to defend the
insured against any ―suit‖ seeking damages for ―personal
injury‖ or ―property damage‖ to which this insurance does not
apply. . . .
(2)
This insurance applies only if the ―personal injury‖ or
―property damage‖ occurs during the policy period and is
caused by ―an occurrence‖ and prior to the policy period, no
insured . . . knew that the “personal injury” or “property
damage” had occurred . . .
(3)
―Personal injury‖ or ―property damage‖ which occurs during
the policy period and was not, prior to the policy period,
known to have occurred by any insured listed under
Paragraph 1. of Section II – Who Is An Insured . . .
(4)
―Personal injury‖ or ―property damage‖ will be deemed to
have been known to have occurred at the earliest time when
any insured listed under Paragraph 1. of Section II – Who Is
An Insured or any ―employee‖ authorized by you to give or
receive notice of an ―occurrence‖ or claim‖
(1)
Reports all, or any part, of the ―personal injury‖ or
―property damage‖ to us or any other insurer.
(2)
Received a written or verbal demand or claim for
damages because of the ―personal injury‖ or ―property
damage‖; or
(3)
Becomes aware by any other means that ―personal
injury‖ or ―property damage‖ has occurred or has
begun to occur. . . .
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2.
EXCLUSIONS . . .
f.
Personal And Advertising Injury
This insurance does not apply to:
(2)
Material Published With Knowledge of Falsity
―Personal and advertising injury‖ arising out of oral
and written publication of material, if done at the
direction of the insured with knowledge of its falsity.
(3)
Material Published Prior To Policy Period
―Personal and advertising injury‖ arising out of oral or
written publication of material whose first publication
took place before the beginning of the policy
period. . . .
(7)
Quality Or Performance of Goods – Failure To
Conform To Statements
―Personal and advertising injury‖ arising out of the
failure of goods, products or services to conform
with any statement of quality or performance made
in your “advertisement”. . . .
SECTION V—DEFINITIONS . . .
16.
―Occurrence‖ means an accident or offense resulting in ―personal
injury‖ or ―property damage‖.
b.
With respect to subsections b., c., e., f., g., and h. of the
definition of ―personal injury‖, an offense includes a series of
offenses of the same or similar nature.
c.
With respect to subsections e., f., g., and h. of the definition
of ―personal injury‖, an offense includes a series of offenses
in which the same or similar advertising material is used
regardless of the number or kind of media used.
All ―personal injury‖ and ―property damage‖ resulting from an
accident or offense shall be considered as resulting from one
―occurrence‖. . . .
-8-
17.
―Personal and advertising injury‖ means injury . . . arising out of one
or more of the following offenses: . . .
d.
Oral or written publication, in any manner, of material that
slanders or libels a person or organization or disparages
a person’s or organization’s goods, products or services;
...
f.
g.
24.
The use of another‘s
―advertisement‖; or
Infringing upon another‘s copyright, trade dress or slogan in
your ―advertisement‖.
advertising
idea
in
your
―Suit‖ means a civil proceeding in which damages because of
―personal injury‖ or ―property damage‖ to which this insurance
applies are alleged . . .
(Id. at Docket No. 1-12 at 3-4, 6, 14, 16-18 (emphasis added).)
IV.
DECLARATORY JUDGMENT ACTION
In January 2010, Westfield filed this action seeking a declaratory judgment that it
had no duty to defend or indemnify Robinson in the underlying actions. (Docket No. 1.)
In February 2010, Robinson brought a counterclaim seeking coverage and monetary
damages for Westfield‘s breach of contract for failing to defend and indemnify Robinson
in the underlying actions.8 (Docket Nos. 7, 19.) Westfield answered by alleging nine
affirmative defenses. (Docket No. 35.)
8
Robinson also brought a bad faith claim (Docket No. 7) which it later attempted to
revise to a breach of contract claim (Docket No. 19). This Court dismissed that claim. (Docket
No. 33.)
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ANALYSIS
I.
WESTFIELD’S MOTION FOR SUMMARY JUDGMENT ON DUTY TO
DEFEND
Westfield has now moved for summary judgment against Robinson, seeking a
declaration that Westfield has no duty to defend or indemnify Robinson in the underlying
actions. The Court finds that the Westfield Policies do not cover the underlying claims.
Moreover, even if there were coverage for the underlying claims, the Court finds the
claims are excluded from coverage by specific exclusions in the Westfield Policies.
Accordingly, the Court will grant Westfield‘s motion.
A.
Standard of Review
Summary judgment is appropriate where there are no genuine issues of material
fact and the moving party can demonstrate that it is entitled to judgment as a matter of
law. Fed. R. Civ. P. 56(a). A fact is material if it might affect the outcome of the suit,
and a dispute is genuine if the evidence is such that it could lead a reasonable jury to
return a verdict for either party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). A court considering a motion for summary judgment must view the facts in the
light most favorable to the non-moving party and give that party the benefit of all
reasonable inferences that can be drawn from those facts. Matsushita Elec. Indus. Co.,
Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
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B.
Westfield Policies’ Coverage of the Claims
A federal court exercising diversity jurisdiction construes an insurance contract in
accordance with state law. Langley v. Allstate Ins. Co., 995 F.2d 841, 844 (8th Cir. 1993).
The parties agree that Minnesota law governs this action. Under Minnesota law, an
insurer‘s obligation to defend is contractual. Meadowbrook, Inc. v. Tower Ins. Co., 559
N.W.2d 411, 415 (Minn. 1997). Interpretation of an insurance policy is a matter of law.
Travelers Indem. Co. v. Bloomington Steel & Supply Co., 718 N.W.2d 888, 894 (Minn.
2006). If the language of the insurance contract is unambiguous, it is given its plain and
ordinary meaning; if the language is ambiguous, it is construed narrowly against the
insurer. Id. Robinson, as the insured, bears the initial burden of establishing coverage,
and Westfield, as the insurer, bears the burden of demonstrating that a policy exclusion
applies. See id.
At issue is whether any of the claims in the underlying actions are covered by the
Westfield Policies. See AMCO Ins. Co. v. Inspired Techs. Inc., 648 F.3d 875, 880 (8th
Cir. 2011) (noting that under Minnesota law, the duty to defend even a single claim
―creates a duty to defend all claims‖). In order for coverage to attach, the underlying
complaints must allege one of the types of ―personal or advertising injury‖ covered by the
Westfield Policies. Robinson argues that the underlying complaints sufficiently allege
two types of covered ―personal or advertising injury‖ because they allege that Robinson
published advertising material that libeled, slandered or disparaged the goods and
products of other manufacturers and that Robinson used the advertising ideas of another.
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1.
Libel, Slander or Disparagement
Robinson asserts that coverage should attach because the underlying complaints
allege sufficient facts to establish a claim for defamation (either libel or slander) or
disparagement. The Westfield Policies provide coverage for ―Personal or advertising
injury . . . arising out of one or more of the following offenses: . . . Oral or written
publication, in any manner, of material that slanders or libels a person or organization or
disparages a person‘s or organization‘s goods, products or services.‘‖
(Insurance
Policies, Docket No. 1-10 at 43.) The Court finds that the Westfield Policies do not
provide coverage because the underlying complaints did not bring a claim for libel,
slander, or disparagement; and the complaints were brought by consumers, not
Robinson‘s competitors.
Critically, Robinson fails to identify any claim in the underlying complaints that
explicitly alleges slander, libel or disparagement.
Because ―the underlying factual
circumstances recited by a plaintiff . . . should not be converted into possible, but not
asserted, causes of action,‖ a factual assertion in a complaint without a claim is not
sufficient to give rise to coverage. Id. at 1134; see also Ross v. Briggs and Morgan, 540
N.W.2d 843, 848 (Minn. 1995) (holding that taking allegations pled to allege one claim
and equating them with an unpled claim is ―to engage in a far too generous reading of the
complaint‖). Although Robinson points to an allegation in the Lange complaint that the
defendants ―disparage[d] those that disagreed with their claims‖ (Lange Compl. at ¶ 90.),
no claim in any of the underlying complaints pled slander, libel or disparagement. Cf.
Miller v. ACE USA, 261 F. Supp. 2d 1130, 1133 (D. Minn. 2003) (noting that a court
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must focus on the claims that are pled, not the conduct being asserted to prove the
claims).
Furthermore, Robinson fails to identify any assertion in the underlying complaints
that a defamatory statement harmed the plaintiffs’ reputations. ―To establish a
defamation claim, a plaintiff must prove three elements: (1) the defamatory statement is
‗communicated to someone other than the plaintiff,‘ (2) the statement is false, and (3) the
statement ‗tend[s] to harm the plaintiff‘s reputation and to lower [the plaintiff] in the
estimation of the community.‘‖ Bahr v. Boise Cascade Corp., 766 N.W.2d 910, 919-20
(Minn. 2009) (quoting Steumpges v. Parke, Davis & Co., 297 N.W.2d 252, 255 (Minn.
1980)). Because the plaintiffs in the underlying actions did not plead damage to their
reputations, they would be unable to plead a defamation claim. Consequently, Robinson
has not met its burden of showing that the underlying complaints should elicit coverage
because they allege defamation.
Robinson also contends the underlying complaints allege that sales of the
defendants‘ odor-eliminating products were enhanced by defendants‘ disparagement of
other manufacturers of odor-dampening hunting clothing.
However, in order to be
actionable, defamatory words must refer to the plaintiff. See MSK EyEs Ltd. v. Wells
Fargo Bank, Nat’l Ass’n 546 F.3d 533, 542 (8th Cir. 2008) (quoting Brill v. Minn. Mines,
274 N.W.2d 631, 633 (Minn. 1937)). Because the underlying actions were brought by
consumers, not other manufacturers, the underlying complaints cannot be interpreted to
state a claim for disparagement against the manufacturers. The Court concludes that
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Robinson has failed to demonstrate that the Westfield Policies should apply because the
injury to Robinson arose from slander, libel, or disparagement.
2.
Use of “Another’s Advertising Idea”
Robinson also asserts that the Westfield Policies apply because the underlying
complaints concern the veracity of its advertising. Because Robinson‘s advertising was
provided by ALS, Robinson asserts its injury arose from the ―use of another‘s advertising
idea.‖ The Westfield Policies define covered ―personal or advertising injury‖ as ―injury
. . . arising out of one or more of the following offenses: . . . The use of another‘s
advertising idea in your ‗advertisement‘.‖ (Insurance Policies, Docket No. 1-10 at 43
(emphasis added).) The Court finds that Robinson has not used another‘s advertising
idea within the meaning of the Westfield Policies.
Other courts have interpreted the offense of using of ―another‘s advertising idea‖
to mean the ―wrongful taking of the manner by which another advertises its goods or
services.‖ Champion Labs., Inc. v. Am. Home Assurance Co., No. 09-C-7251, 2010 WL
2649848, at *5 (N.D. Ill. June 30, 2010) (internal quotation marks omitted). See also
Greenwich Ins. Co. v. RPS Prods., Inc., 882 N.E.2d 1202, 1211 (Ill. App. Ct. 2008)
(finding that use of an advertising idea requires misappropriation of the advertising
ideas or style of doing business).9
Robinson‘s use of ALS‘s advertising ideas was not
9
Westfield presents no case law to support its assertion that this language would cover
the licensed use of another‘s advertising idea. Moreover, the underlying complaints did not
allege that Robinson took the advertising ideas of any of the plaintiffs in the underlying actions.
See, e.g., Rose Acre Farms, Inc. v. Columbia Cas. Co., 772 F. Supp. 2d 994, 1003 (S.D. Ind.
(Footnote continued on next page.)
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wrongful and did not constitute an offense because it was done under a license granted by
ALS.
Robinson further alleges that the Westfield Policies‘ language was ambiguous and
should be construed narrowly and strictly against Westfield. To the extent that Robinson
identified an ambiguity, it asserts that particular terms within the Westfield Policies are
undefined.10 The Court finds, upon reviewing the Westfield Policies‘ language as a
whole, that the clause‘s language, when read in context, is unambiguous and refers to the
misappropriation of another‘s advertising idea. See Smitke v. Travelers Indem. Co., 118
N.W.2d 217, 218 (Minn. 1962) (―[T]he pertinent provisions must be read and studied
independently and in context with all relevant provisions and the language of the policy
as a whole.‖) The Court concludes that Robinson has failed to demonstrate that the
Westfield Policies should apply because injury to Robinson arose out the ―use of
another‘s advertising idea.‖
C.
The Underlying Claims are Specifically Excluded from Coverage
Even if Robinson had met its burden of establishing coverage under the Westfield
Policies, the claims in the underlying complaints are specifically excluded from coverage
____________________________
(Footnote continued.)
2011) (―We are hard-pressed to understand how use of a co-defendant‘s idea, as opposed to one
of the plaintiff[‘]s, could be considered an ‗offense.‘‖).
10
Specifically, Robinson asserts the clause is ambiguous because ―advertising‖
―advertising idea‖ ―first publication‖ ―oral‖ ―material‖ and ―written‖ are not defined in the
Westfield Policies.
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by the policy exclusion for ―Quality Or Performance of Goods – Failure To Conform To
Statements.‖11 The ―Failure to Conform‖ clause states, ―This insurance does not apply to
. . . ‗personal and advertising injury‘ arising out of the failure of goods, products, and
services to conform with any statement of quality or performance made in your
‗advertisement.‘‖ (Insurance Policies, Docket No. 1-10 at 33-34 & Docket No. 1-12 at
6.) The Minnesota Supreme Court has held that if ―the policy contains an exclusion
clause,‖ the burden is on the insurer ―to prove the applicability of the exclusion . . . .‖
SCSC Corp. v. Allied Mut. Ins. Co., 536 N.W.2d 305, 313 (Minn. 1995). ―Exclusions are
narrowly interpreted against the insurer.‖ Id.
All of the claims asserted by the plaintiffs in the underlying complaints relate to
Robinson‘s products‘ failure to conform to statements concerning the performance of the
products. In Minnesota, a court is instructed to focus on the ―claims set forth, not the
‗conduct being asserted to prove the claim[s].‘‖
Miller, 261 F. Supp. 2d at 1133
(emphasis in original) (quoting Meadowbrook, 559 N.W.2d at 420). Robinson asserts
that there are statements in the underlying complaints that do not allege the products
failed to perform as advertised. However, because the claims asserted by the plaintiffs in
11
Westfield also asserts that coverage is barred under the Westfield Policies under the
policy exclusion for ―Material Published Prior to the Policy Period.‖ Although Westfield
provided examples of advertisements like those complained of in the underlying complaints that
were published before the coverage date (Steinhoff Aff., Ex. 3 & Ex. 4), it is not clear that every
type of advertisement complained of was published prior to the policy period. Viewing the facts
in the light most favorable to Robinson, this exclusion is not broad enough to exclude all claims
in the underlying complaints.
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the underlying complaints all relate to failure to conform with quality or performance,
other factual assertions in the underlying complaints do not matter.
In sum, even if the Court was to find that Robinson had met its burden of
establishing coverage under the Westfield Policies, Westfield has adequately
demonstrated that the claims in the underlying complaints are excluded from coverage by
the failure to conform exclusion. As a result, the Court will grant summary judgment to
Westfield.
II.
ROBINSON’S PARTIAL MOTION FOR SUMMARY JUDGMENT
In response to Robinson‘s counterclaim seeking insurance coverage and monetary
damages for Westfield‘s failure to defend and indemnify it, Westfield filed nine
affirmative defenses. In its motion for partial summary judgment, Robinson requests
dismissal of all of Westfield‘s affirmative defenses. Because Westfield is entitled to
summary judgment, the Court need not resolve the motion and will deny it as moot.
III.
WESTFIELD’S MOTION TO EXCLUDE
Westfield has moved to exclude the expert testimony of Aaron Hasler and Scott
Shultz. Because Westfield is entitled to summary judgment, the Court will deny this
motion as moot.
ORDER
Based on the foregoing, and the files, records, and proceedings herein, IT IS
HEREBY ORDERED that:
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1.
Plaintiff‘s Motion for Summary Judgment [Docket No. 221] is
GRANTED.
2.
Defendant‘s Motion for Summary Judgment [Docket No. 214] is DENIED
as moot.
3.
Plaintiff‘s Motion to Exclude Expert Testimony [Docket No. 225] is
DENIED as moot.
LET JUDGMENT BE ENTERED ACCORDINGLY.
DATED: November 17, 2011
at Minneapolis, Minnesota.
____s/
____
JOHN R. TUNHEIM
United States District Judge
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