Vitamin Health, Inc. v. Hartford Casualty Insurance Co.

186 F. Supp. 3d 712, 2016 U.S. Dist. LEXIS 60858, 2016 WL 2622353
CourtDistrict Court, E.D. Michigan
DecidedMay 9, 2016
DocketCase No. 15-10071
StatusPublished
Cited by4 cases

This text of 186 F. Supp. 3d 712 (Vitamin Health, Inc. v. Hartford Casualty Insurance Co.) is published on Counsel Stack Legal Research, covering District Court, E.D. Michigan primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Vitamin Health, Inc. v. Hartford Casualty Insurance Co., 186 F. Supp. 3d 712, 2016 U.S. Dist. LEXIS 60858, 2016 WL 2622353 (E.D. Mich. 2016).

Opinion

OPINION AND ORDER GRANTING HARTFORD’S SUMMARY JUDGMENT MOTION & DENYING VITAMIN HEALTH’S PARTIAL SUMMARY JUDGMENT MOTION

Sean F. Cox, United States District Judge

This is an insurance coverage case. On January 1, 2015, Plaintiff/Counter-Defendant Vitamin Health, Inc. (“Vitamin Health”) filed a Complaint for declaratory relief and breach of contract against Defendant/Counter-Plaintiff Hartford Casualty Insurance Co. (“Hartford”). (D.E. No. 1). In it, Vitamin Health seeks an order from this Court declaring that: Hartford is required to defend Vitamin Health in an- action currently pending against Vita[714]*714min Health in U.S. District Court of the Western District of New York (“Underlying Action”); and that Hartford is required to indemnify Vitamin Health for any judgment it may face as a result of the Underlying Action’s false advertisement claim against it. On February 25, 2015, Hartford filed a Counter-Claim for declaratory relief, seeking an order from this Court declaring that Hartford does not owe Vitamin Health any defense or indemnity obligations for the Underlying Action. (D.E. No. 4).

This matter is before the Court on Hartford’s Motion for Summary Judgment (D.E. No. 15) and Vitamin Health’s Cross-Motion for Partial Summary Judgment (D.E. No. 17). For the reasons set forth below, the Court shall GRANT Hartford’s Motion and DENY Vitamin Health’s Motion.

BACKGROUND

In order to provide context, the Court shall first briefly discuss the Underlying Action, which Vitamin Health alleges Hartford is obligated to defend and indemnify.

1. The Underlying Action

Vitamin Health is in the business of manufacturing supplements for eye health. (Pl.’s Stmt. ¶ 6). Vitamin Health’s products are intended to reduce the risk of developing age-related macular generation. (Def.’s Stmt. ¶ 1). Vitamin Health advertises its products as AREDS 2-compliant, indicating to consumers that the products contain the combination of vitamins recommended by the second Age-Related Eye Disease Study (AREDS) conducted by the National Eye Institute of the National Institutes of Health. (Def.’s Stmt. ¶ 1).

On September 16, 2013, Bausch & Lomb (“Bausch”) filed a complaint against Vitamin Health in the United States District Court for the Western District of New York, alleging patent infringement. (Compl. Ex. A). Like Vitamin Health, Bausch also manufactures supplements for eye health. (Pl.’s Stmt. ¶ 6). In an amended complaint filed on April 21, 2014, Bausch allegpd two counts of patent infringement and a third count of false advertising. (Def.’s Stmt. ¶ 3). Bausch’s false advertising claim was based on conduct allegedly undertaken by Vitamin Health after the filing of Bausch’s initial complaint. Specifically, Bausch alleged that Vitamin Health “purported to change the formulation” of its product to contain a vitamin combination that allegedly does not comport with the AREDS 2 formula. (Def.’s Stmt. ¶ 3). Vitamin Health allegedly continues to falsely advertise its products as AREDS 2 compliant, despite the fact that they are not.

The following factual allegations are relevant to the false advertising claim:

37. After Bausch & Lomb filed its original Complaint, Vitamin Health purported to change the formulation of its AREDS 2 products to contain 25 mg of zinc, rather than the AREDS 2 recommended formula containing 80 mg of zinc...

38. On information and belief, despite no longer containing the AREDS 2 recommended 80 mg of zinc, Vitamin Health markets Vitamin Health’s Vi-teyes® AREDS 225 mg zinc products with the term “AREDS 2” prominently displayed on their labels

39. On information and belief, Vitamin Health markets and promotes the Viteyes® AREDS 2 25 mg zinc products as based on the results of the AREDS 2 study carried out by the National Institutes of Health. The 2013 JAMA journal article by Dr. Chew et ah, discussed above in Paragraph 35, is cited on the Vi-[715]*715teyes® website as source material for its claims..

40. Vitamin Health’s labeling, promotion and marketing of ■' its Viteyes® AREDS 2 25 mg zinc products as the AREDS 2-recommended formulations are false and/or likely to mislead or confuse consumers

41. Vitamin Health’s Viteyes® AREDS 2 25 mg zinc products are marketed as competing products to Bausch & Lomb’s PreserVision® products. The distribution and sale of the Vi-teyes® AREDS 2 25 mg zinc products has caused and will continue to cause Bausch <& Lomb to lose sales of its PreserVision® AREDS 2 products, to both existing and future Bausch & Lomb customers

42. Vitamin Health’s marketing and promotional statements for its Viteyes® AREDS 2 25 mg zinc products, stating that these products are based on the recommendations made by NEI researchers following the results of the AREDS 2 study, are materially false statements that are likely to cause consumer confusion, mistake, or deception as to the quality and content of the Viteyes® AREDS 2 25 mg products. These are. material misrepresentations upon which customers or potential customers have relied, and will rely. Vitamin Health’s actions therefore mislead and harm customers and consumers in violation of Section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a).

(D.E. No. 1, Compl. Ex. B ¶¶ 37-42).

Vitamin Health tendered defense of the Underlying Action’s amended complaint to Hartford. (Def.’s Stmt. ¶ 6). Vitamin Health sought coverage from Hartford under annual insurance policies issued to Vitamin Health over the course of nine years. .(Def.’s Stmt. ¶ 7). Vitamin Health specifically asserted that the false advertising claim fell within the policies’ .definition of “personal and advertising injury.” (Def.’s Stmt. ¶-8). Hartford disagreed and denied defense.

2. Applicable Insurance Provisions

It is undisputed that the only policies at issue here are the policies in effect beginning on December 27, 2012 through December 27, 2013 and December 27, 2013 through December 27, 2014. (“Hartford Policies” or “Policies”). Subject to their stated conditions and exclusions, the Hartford Policies provided both business liability and umbrella liability insurance coverage to Vitamin Health. (PL’s Stmt. ¶2).

Business liability coverage (defense and indemnity) extends to: (1) bodily injury; (2) property damage; and (3) personal and advertising injury. At the center of the parties’ dispute is the “personal and advertising injury” provision, which reads, in pertinent part, that insurance coverage applies to “ ‘personal and advertising injury’ caused by an offense arising out of your business, but only if the offense was committed in the ‘coverage territory’ during the policy period.” Personal and advertising injury is defined, inter alia, as:

Oral, written or electronic publication of material that slanders or libels a person or organization or disparages a person’s or organization’s goods, products or services
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Copying, in your “advertisement”, a person’s or organization’s “advertising idea” or style of “advertisement”

(Def.’s Ex. 12 at HC000111).

Coverage Exclusions

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Cite This Page — Counsel Stack

Bluebook (online)
186 F. Supp. 3d 712, 2016 U.S. Dist. LEXIS 60858, 2016 WL 2622353, Counsel Stack Legal Research, https://law.counselstack.com/opinion/vitamin-health-inc-v-hartford-casualty-insurance-co-mied-2016.