Suwannee American Cement LLC v. Zurich Insurance

885 F. Supp. 2d 611, 2012 WL 3155897, 2012 U.S. Dist. LEXIS 109316
CourtDistrict Court, S.D. New York
DecidedAugust 3, 2012
DocketNo. 11 Civ. 3899 (LLS)
StatusPublished

This text of 885 F. Supp. 2d 611 (Suwannee American Cement LLC v. Zurich Insurance) is published on Counsel Stack Legal Research, covering District Court, S.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Suwannee American Cement LLC v. Zurich Insurance, 885 F. Supp. 2d 611, 2012 WL 3155897, 2012 U.S. Dist. LEXIS 109316 (S.D.N.Y. 2012).

Opinion

OPINION AND ORDER

LOUIS L. STANTON, District Judge.

Plaintiff cement manufacturers seek declaratory relief and damages from defendant insurers’ refusal to defend them against two antitrust suits prosecuted in the U.S. District Court for the Southern District of Florida, which alleged that plaintiffs fixed prices, allocated customers, restricted supply, and concealed their conspiracy in violation of the Sherman Act, Clayton Act, and the Florida Deceptive and Unfair Trade Practices Act. Defendants’ and plaintiffs’ cross-motions for summary judgment raise the dispositive question whether clauses covering liability for inflicting “personal and advertising injury” required the insurers to defend the manufacturers against allegations that to conceal their antitrust conspiracy they publicly misstated that market forces, rather than anticompetitive conduct, drove them to increase their prices.

BACKGROUND

In the fall of 2009, direct purchasers and indirect purchasers of cement and concrete filed class action antitrust lawsuits against manufacturers of concrete in Florida, charging them with conspiratorial price-fixing, The direct purchaser class actions were consolidated into the “Direct Purchaser Action,” and the indirect purchaser class actions into the “Indirect Purchaser Action,” both in the U.S. District Court for the Southern District of Florida. The present plaintiffs (or a predecessor) were among the defendants in both actions, although Suwannee and YCNA were later dismissed from both suits. Both consolidated class actions (the “Underlying Actions”) were settled while this motion was pending, so this case concerns only whether the insurers must bear all or part of the costs of defending them.

A. Allegations in the Underlying Actions

The Direct Purchaser Action alleges that the manufacturers engaged in the following anticompetitive actions:

1. This case arises from an unlawful conspiracy among vertically-integrated manufacturers of Portland cement (“Cement”) and ready-mix concrete and concrete block (together, “Concrete”), to fix, raise, stabilize, and/or maintain prices of and allocate customers and markets for Cement and Concrete in the State of Florida, in violation of Section 1 of the Sherman Act and Section 4 of the Clay[613]*613ton Act. As a result of this illegal conspiracy, Defendants charged supra-competitive prices for Cement and Concrete sold throughout the State of Florida, thereby injuring Plaintiffs and members of the proposed Classes (defined below) ....
5. Defendants conspired to fix the prices of Cement and Concrete at artificially-inflated levels by agreeing on the amount and timing of price increases, restricting supply, allocating customers and territories, and attempting to eliminate competition from the ICPs, among other anticompetitive acts.

Direct Purchaser Second Am. Compl. ¶¶ 1, 5. That complaint in paragraphs 100 through 144 elaborates (as does the third amended complaint of the Indirect Purchasers, ¶¶ 1-3, 5, 124) on the manufacturers’ anticompetitive acts and describes the purpose of their false statements on which this present case rests:

212. During the Class Period, Defendants repeatedly attributed dramatic price increases to rising fuel and input costs, when in fact these costs did not justify the price increases, or to Cement and Concrete shortages or plant shutdowns, which were in fact artificially-created or nonexistent. These statements were a pretext to conceal Defendants’ conspiracy to fix prices of Cement and, Concrete.
213. Defendants’ purported reasons for price increases of Cement and Concrete were materially false and misleading and were made for the purpose of concealing Defendants’ anticompetitive scheme as alleged in this Complaint.
214. Plaintiffs and members of the Classes reasonably relied on the Defendants’ materially false or misleading explanations for increases in the prices of Cement and Concrete, and plaintiffs and members of the Classes were lulled into believing that the increases were the result of normal competitive market forces, rather than the product of Defendants’ collusive activity.

Id. at ¶¶ 212-214 (emphases added).

Those allegations are echoed in the Indirect Purchasers’ complaint, ¶¶ 225-26 and particularly ¶ 224 (emphasis added):

224. During the Class Period, Defendants repeatedly attributed dramatic price increases to rising fuel and input costs, when in fact these costs did not justify the price increases. These statements were a pretext to conceal Defendants’ conspiracy to fix prices of Cement and Concrete.

The Underlying Actions claimed that the manufacturers’ statements concealed the anticompetitive conspiracy; not that they were misappropriated from some other author, or published to stimulate sales. Yet the latter is the rationale concocted by the manufacturers to require the insurance companies to defend them against the conspiracy charges in the Underlying Actions.

B. The Insurance Policies

All of the plaintiffs seek coverage under two sets of insurance policies: a master commercial general liability policy issued by defendant Zurich Insurance Company (“Zurich”) covering the years November 1, 2003 through November 1, 2009, and local commercial general liability policies issued by defendant Zurich American Insurance Company, Ltd. (“Zurich American”) covering the period August 1, 2005 through November 1, 2009. Suwannee also seeks coverage under a general commercial liability policy issued by defendant Amerisure Insurance Company (“Amerisure”) covering the period April 30, 2004 through April 30, 2005.

1. The Zurich American and Amerisure Policies

The policies issued by Zurich American and Amerisure both define “personal and [614]*614advertising injury” in the following provision (in identical language because it is an industry standard form):

14. “Personal and advertising injury” means injury, including consequential “bodily injury”, arising out of one or more of the following offenses:

a. False arrest, detention or imprisonment;
b. Malicious prosecution;
c. The wrongful eviction from, wrongful entry into, or invasion of the right of private occupancy of a room, dwelling or premises that a person occupies, committed by or on behalf of its owner, landlord or lessor;
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;
e. Oral or written publication, in any manner, of material that violates a person’s right of privacy;
f. The use of another’s advertising idea in your “advertisement”; or
g. Infringing upon another’s copyright, trade dress or slogan in your “advertisement”.

Facially, none of those include violations of the federal antitrust laws.

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Bluebook (online)
885 F. Supp. 2d 611, 2012 WL 3155897, 2012 U.S. Dist. LEXIS 109316, Counsel Stack Legal Research, https://law.counselstack.com/opinion/suwannee-american-cement-llc-v-zurich-insurance-nysd-2012.