Lemko Corp. v. Federal Insurance

70 F. Supp. 3d 905, 2014 U.S. Dist. LEXIS 138667, 2014 WL 4924403
CourtDistrict Court, N.D. Illinois
DecidedSeptember 30, 2014
DocketNo. 12 C 03283
StatusPublished
Cited by14 cases

This text of 70 F. Supp. 3d 905 (Lemko Corp. v. Federal Insurance) is published on Counsel Stack Legal Research, covering District Court, N.D. Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Lemko Corp. v. Federal Insurance, 70 F. Supp. 3d 905, 2014 U.S. Dist. LEXIS 138667, 2014 WL 4924403 (N.D. Ill. 2014).

Opinion

MEMORANDUM OPINION AND ORDER

JOHN J. THARP, Jr., United States District Judge

In this insurance coverage dispute, the plaintiff, Lemko Corporation, seeks to impose a duty to defend on two of its liability-insurers with respect to a lawsuit filed against Lemko by Motorola, Inc., that has since settled. Lemko, a cellular technology company and competitor of Motorola, was sued for a range of torts and civil statutory violations stemming from the alleged theft of copyrighted material and other confidential information by Motorola employees who were also working (allegedly) for or on behalf of Lemko. The defendant insurers declined coverage, concluding that their policies either did not provide or expressly excluded coverage for the events at issue in the Motorola lawsuit. All parties have now moved for partial or total summary judgment as to their liability. For the reasons that follow, Lemko’s motion is denied, and the insurers’ motions are granted.

FACTS

Motorola first brought suit against Lem-ko and five individuals on September 23, 2008. Compl., Dkt. # 1, N.D. Ill. Case No. 08 C 5487. The complaint was amended three times; the third amended complaint (TAC) of July 16, 2010, contains largely the same substantive claims against a total of 16 defendants. The TAC sets forth nineteen counts seeking relief under the following theories: (1) violation of the' Computer Fraud and Abuse Act; (2) misappropriation of trade secrets; (3) breach of fiduciary duty; (4) usurpation of corporate opportunity; (5) patent ownership; (6) breach of contract, namely, employment agreements; (7) tortious interference with contract; (8) fraudulent concealment; (9) spoliation of evidence; (10) copyright infringement; and (11) civil conspiracy. TAC, Dkt. # 473, N.D. Ill. Case No. 08 C 5487. All of these counts are based on the same underlying facts — namely, the accessing of Motorola computers without authorization, or in excess of existing authorization, to obtain Motorola’s trade secrets' and confidential information, including source code, and their transfer to Lemko, during a period running from approximately 2002 to 2007.

When it was sued by Motorola, Lemko turned to its insurers for coverage — to Federal beginning with the original complaint, and to Cincinnati beginning with the Second Amended Complaint. Each denied Lemko’s claim. Lemko entered into a standstill agreement with Cincinnati ■but not Federal; Federal, however, did not seek a declaratory judgment regarding its duty to defend, nor did it defend under a reservation of rights.

The Policies

A. Cincinnati Commercial General Liability and Umbrella Policy

Under the Cincinnati CGL policy, Lem-ko has coverage for “bodily injury and property damage liability” during the policy period.1 The coverage- applies to the extent Lemko is liable to pay damages because of “bodily injury” or “property damage” that occurs during the policy period and that is “caused by an ‘occurrence’ that takes place in the ‘coverage territory.’ ” An “occurrence,” under the policy, is “an accident, including continuous or [910]*910repeated exposure to substantially the same general harmful conditions.” And “property damage” is defined as:

a. Physical injury to all tangible property, including all resulting loss of use of that property. All such loss of use shall be deemed to occur at the time of the physical injury that caused it; or
b. Loss of use of tangible property that is not physically injured. All such loss of use shall be deemed to occur at the time of the “occurrence” that caused it. For the purposes of this insurance, “electronic data” is not tangible property-

The property damage coverage is subject to an exclusion for “expected or intended injury,” namely: “ ‘property damage’ which may reasonably be expected to result from the intentional or criminal acts of the insured or which is in fact expected or intended by the insured, even if the injury or damage is of a different degree or type than actually expected or intended.”

The same Cincinnati policy also covers Lemko for “personal and advertising injury liability.” The coverage applies to such injuries committed in “the coverage territory” during the policy period, and “caused by an offense arising out of your business.” Personal and advertising injury is injury arising out of, inter alia: “infringing upon another’s copyright, trade dress or slogan in [the insured’s] ‘advertisement.’ ” And, in turn, an “advertisement” is defined as:

a notice that is broadcast, telecast or published to the general public or specific market segments about your goods, products or services for the purpose of attracting customers or supporters. ‘Advertisement’ includes a publicity article. For purposes of this definition:
a. Notices that are published include material placed on the Internet or on similar electronic means of communication; and
b. Regarding web-sites, only that part of a web-site that is about your goods, products or services for the purposes of attracting customers or supporters is considered an “advertisement.”

As relevant in this case, the advertising injury coverage is subject to three exclusions — for “knowing violation of rights of another,” for “breach of contract,” and for “infringement.” The first of these exclusions applies to “ ‘personal and advertising injury’ caused by or at the direction of the insured with the knowledge that the act would violate the rights of another and would inflict ‘personal and advertising injury.’ ” The second excludes coverage for injury “arising out of a breach of contract, except an implied contract to use another’s advertising idea in your ‘advertisement.’ ” Finally, the coverage does not apply to “ ‘personal and advertising injury’ arising out of the infringement of copyright, patent, trademark, trade secret or other intellectual property rights”; except that “this exclusion does not apply to infringement, in your ‘advertisement’ of copyright, trade dress or slogan.”

B. Federal General Liability Policy and Excess and Umbrella Policy

Lemko’s coverage under its Federal CGL and Excess and Umbrella policies also extended to “bodily injury or property damage caused by an occurrence” during the policy period.2 And as with the Cin[911]*911cinnati CGL policy, under the Federal CGL policy an “occurrence” is “an accident, including continuous or repeated exposure to substantially the same harmful conditions.” “Property damage” is defined as follows:

physical injury to tangible property, including resulting loss of use of that property. All such loss of use shall be deemed to occur at the time of the physical injury that caused it; or loss of use of tangible property that is not physically injured. All such loss of use shall be deemed to occur at the time of the “occurrence” that caused it. Tangible property does not include any software, data or other information that is in electronic form.

Lemko also had coverage for liability for “advertising injury,” caused by “an offense that is first committed during the policy period.” “Advertising injury” is defined in the Federal CGL policy as “injury ...

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70 F. Supp. 3d 905, 2014 U.S. Dist. LEXIS 138667, 2014 WL 4924403, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lemko-corp-v-federal-insurance-ilnd-2014.