Starr Indem. & Liab. Co. v. Miami Chocolates, LLC

337 F. Supp. 3d 1216
CourtDistrict Court, S.D. Florida
DecidedAugust 21, 2018
DocketCASE NO.: 17-CV-23626
StatusPublished
Cited by1 cases

This text of 337 F. Supp. 3d 1216 (Starr Indem. & Liab. Co. v. Miami Chocolates, LLC) is published on Counsel Stack Legal Research, covering District Court, S.D. Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Starr Indem. & Liab. Co. v. Miami Chocolates, LLC, 337 F. Supp. 3d 1216 (S.D. Fla. 2018).

Opinion

PAUL C. HUCK, UNITED STATES DISTRICT JUDGE

This Cause is before the Court upon Plaintiff Starr Indemnity & Liability Company's ("Starr") Motion for Summary Judgment [D.E. 42], and Defendant Peterbrooke Franchising of America, LLC's ("Peterbrooke"), counter Motion for Summary Judgment. [D.E. 64], which Miami Chocolates, LLC, Charles McDonald, and Judy McDonald's (the "MC Defendants") joined [D.E. 67].

I. Overview

Starr, an insurance company, has filed this declaratory action under 28 U.S.C. § 2201, et seq. , requesting that this Court declare that it has no duty to defend or indemnify the MC Defendants against claims that Peterbrooke brought against them in an underlying lawsuit (the "Underlying Suit").1 For context, the Underlying Suit involves an action by Peterbrooke against the MC Defendants, former franchisees, alleging that they had continued operating a previously franchised chocolatier shop as if it remained associated with Peterbrooke even after Peterbrooke had terminated their franchise agreement (the "Agreement"). As a result, Peterbrooke asserted the following claims against the *1219MC Defendants: Count I for trademark infringement in violation of the Lanham Act; Count II for false designations of origin, also in violation the Lanham Act; Count III for trademark infringement in violation of Florida common law; Count IV for common law unfair competition; and Count V2 (alleged against Miami Chocolates alone) for breach of the Agreement.3

The dispute here concerns specifically whether Starr, as the MC Defendants' insurer, must defend and indemnify the MC Defendants against Peterbrooke's abovementioned claims. As to that, Starr contends that each of Peterbrooke's claims in the Underlying Suit is either not covered by or is excluded under the relevant insurance policy (the "Policy").4 And indeed, at a hearing this Court held on July 2, 2018, Peterbrooke and the MC Defendants conceded that all but Count IV, the unfair competition claim, are subject to applicable Policy exclusions. As to Count IV, Peterbrooke and the MC Defendants raised new arguments at the July 2, 2018 hearing for why it is not subject to the same exclusions that they conceded apply to Counts I, II, III, and V. The Court thus allowed the parties to file supplemental briefs regarding coverage of Count IV.

After considering the parties' supplemental briefs, the briefing related to their cross summary judgement motions, the Policy, and the underlying complaint, the Court holds that Starr's Policy also excludes Count IV and that Starr thus has no duty to defend or indemnify the MC Defendants against any claim in Peterbrooke's Underlying Suit.

II. Factual Background

Whether Starr owes a duty to defend the MC Defendants against Peterbrooke's unfair competition claim depends on (A) what coverage, as well as exclusions from coverage, Starr's Policy provides and (B) what facts Peterbrooke alleged in the Underlying Suit to support its claim. These considerations are addressed in turn.

A. The Policy's Relevant Coverage and Exclusion Provisions

Regarding coverage and the relevant exclusions, the Policy provides:

SECTION II-LIABILITY
A. Coverages
1. Business Liability
a. We will pay those sums that the insured becomes legally obligated to pay as damages 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 "bodily injury", "property damage" or "personal and advertising injury to which this insurance does not apply...."
...
B. Exclusions
1. Applicable To Business Liability Coverage
This insurance does not apply to:
...
p. Personal And Advertising Injury
"Personal and advertising injury":
*1220(1) 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";...
(5) Arising out of a breach of contract, except an implied contract to use another's advertising idea in your "advertisement";...
(12) Arising out of the infringement of copyright, patent, trademark, trade secret or other intellectual property right. Under this exclusion, such other intellectual property rights do not include the use of another's advertising idea in your "advertisement". However, this exclusion does not apply to infringement, in your "advertisement", of copyright, trade dress or slogan.

[D.E. 1-2 at 69, 71, 75-76].

Regarding relevant definitions, the Policy provides:

F. Liability And Medical Expenses 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:...
f. The use of another's advertising idea in your advertisement";

[D.E. 1-2 at 81, 83].

B. Peterbrooke's Underlying Unfair Competition Claim against the MC Defendants

Peterbrooke's underlying unfair competition claim, as does its other four claims, arises from and incorporates the following relevant allegations from its underlying complaint:

15. Pursuant to the Agreement, [Peterbrooke] granted Miami Chocolates a limited license and authority to use and display the Peterbrooke Mark, but only in such manner, and at such locations and times, as were expressly authorized by [Peterbrooke]. In no event was Miami Chocolates or its owners or affiliates authorized to use the Peterbrooke Mark after the termination of its franchise. Such unauthorized use was and is expressly prohibited under the terms of the [Franchise] Agreement.
...
28. Section 19 of the Agreement contains provisions that set forth the rights and obligations of the parties in the event of termination.

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Bluebook (online)
337 F. Supp. 3d 1216, Counsel Stack Legal Research, https://law.counselstack.com/opinion/starr-indem-liab-co-v-miami-chocolates-llc-flsd-2018.