W3i Mobile, LLC v. Westchester Fire Ins. Co., 632 F.3d 432 (8th Cir. (Minn.) 2011

A products exclusion barred a defense under the D&O policy which provided no coverage “arising out of, … directly or indirectly resulting from, … or in any way involving … products … produced, … sold, marketed, distributed, … or developed by [W3i].”  Id. at *3.

The court looked to inferences from the allegations to evidence the applicability of the policy exclusions.

The underlying claims do not exclusively concern W3i’s billing practices in isolation of the mobile content, as W3i suggests. The nature of mobile content allows customers to order and receive the product directly to their cellular telephones. The underlying claims allege “the absence of [ ] signature requirements, age confirmations, or personal code numbers exacerbate the likelihood of unauthorized and false charges.” This implies customers are receiving and using mobile content, but are doing so without fully understanding or authorizing the charges associated with the mobile content. Therefore, the underlying claims involve the use of W3i’s product.

 Id. at *3.



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