WHY LOOK FOR “BURIED TREASURE”? Part Two of a Three Part Series Intellectual Property Lawsuits Are Expensive It is not uncommon, pursuant to AIPLA surveys for companies to expend $500,000 to $1,000,000 for defense of trademark and copyright infringement lawsuits. More than five times that sum may be expended for patent infringement lawsuits. Where insurer…
“BURIED TREASURE” – SECURING REIMBURSEMENT FOR MONIES EXPENDED IN PAST INTELLECTUAL PROPERTY LAWSUITS Part One of a Three-Part Series Introduction Companies looking for extra money in these tough economic times may have an answer from the past. The vast majority of insurer denial letters for intellectual property lawsuits lack merit. Therefore, companies who have litigated…
Rose Acre Farms, Inc. v. Columbia Cas. Co., No. 4:09-cv-00135-SEB-WGH, 2011 WL 693601 (S.D. Ind. Feb. 18, 2011) Allegations that Rose Acre “marketed” its shell egg products which did not specifically reference Rose Acre’s advertisement of its eggs as properly priced in light of animal husbandry concerns in accordance with a United Egg Products (“UEP”)…
Welch Foods, Inc. v. National Union Fire Ins. Co., No. 09-12087-RWZ, 2011 WL 576600 (D. Mass. Feb. 9, 2011) The Court followed American & Foreign Ins. Co. v. Jerry’s Sport Center, Inc., 2 A.3d 526, 541 (2010) which embraced the better rule that an insurer is not entitled to reimbursement where it did not reserve…
Fieldston Prop. Owners Ass’n, Inc. v. Hermitage Ins. Co., Inc., 16 N.Y.3d 257, 945 N.E.2d 1013 (2011) The New York Court of Appeals, answering a certified question from the New York Appellate Division concluded that under the terms of Federal’s D & O policy “other insurance” exists which would cover the ‘loss’ arising from the…
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…
Advance Watch Co., Ltd. v. Travelers Prop. Cas. Co. of Am., No. 10 Civ. 3305 (NRB), 2011 WL 446271 (S.D.N.Y. Jan. 21, 2011) The agreement, allegedly breached, was the touchstone for all claims so that the suit could not be understood as one for violation of intellectual property rights. Rather, it referred to the failure…
Gilbert Texas Constr., L.P. v. Underwriters at Lloyd’s London, 327 S.W.3d 118, 130 (Tex. 2010) CONTRACTUAL LIABILTY EXCLUSION BARS COVERAGE BEYOND NARROW CIRCUMSTANCES WHERE THE INSURED ASSUMES LIABILITY OF ANOTHER PERSON EXCEPTED The underwriter’s interpretation of the policy was the only reasonable one. Its scope was not limited to indemnity and hold harmless…
Nutter v. St. Paul Fire & Marine Ins. Co., No. 3:10-CV-63, 2011 WL 240458, at *6 (N.D.W. Va. Jan. 24, 2011) The “injury … that result[s] from …[f]ireworks displays or exhibition” endorsement was not concealed in the lengthy policy nor part of buried “fine print” requiring “painstaking study of the policy” to uncover a causal…
Wintermute v. Kansas Bankers Surety Co., 630 F.3d 1063, 1069 (8th Cir. (Mo.) 2011) (Arkansas law) Reversing district court, “personal profit” exclusion did not bar indemnity for a “loss” for a “wrongful act” because of “in-fact” language which required adjudication against insured despite the insured’s conviction for a criminal act.
Gauntlett on IP Insurance 
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