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Peerless Ins. Co. v. Conifer Holdings, Inc.

United States District Court, E.D. Michigan, Southern Division

January 24, 2018

PEERLESS INS. CO., et al., Plaintiffs,
v.
CONIFER HOLDINGS, INC., et al., Defendants.

          OPINION & ORDER DENYING PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT (DKT. 13)

          Hon. Mark A. Goldsmith, Judge

         This matter is now before the Court on Plaintiffs Peerless Insurance Company (“Peerless”) and Indiana Insurance Company's motion for summary judgment (Dkt. 13). The issues have been fully briefed, and a hearing was held on September 14, 2017. For the reasons stated below, Plaintiffs' motion is denied.

         I. BACKGROUND

         Peerless issued a commercial general liability policy (the “Policy”) to Defendant Conifer Holdings, Inc. (“Conifer”), covering the period from February 17, 2015 to February 17, 2016.[1] In relevant parts, the Policy provided:

SECTION 1 - COVERAGES
COVERAGE A BODILY INJURY AND PROPERTY DAMAGE LIABILITY
1. Insuring Agreement
a. We will pay those sums that the insured becomes legally obligated to pay as damages because of “bodily injury” or “property damage” 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” or “property damage” to which this insurance does not apply. [. . .]
b. This insurance applies to “bodily injury” and “property damage” only if:
(1) The “bodily injury” or “property damage” is caused by an “occurrence” that takes place in the “coverage territory”;
(2) The “bodily injury” or “property damage” occurs during the policy period; and [. . .]
COVERAGE B PERSONAL AND ADVERTISING INJURY LIABILITY
1. Insuring Agreement
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 “personal and advertising injury” to which this insurance does not apply. [. . .]
2. Exclusions
This insurance does not apply to:
[. . .]
i. Infringement of Copyright, Patent, Trademark or Trade Secret “Personal and advertising injury” arising out of the infringement of copyright, patent, trademark, trade secret or other intellectual property rights.
However, this exclusion does not apply to infringement, in your “advertisement”, or copyright, trade dress or slogan.

Commercial General Liability Coverage Form, Ex. 1 to Pls. Mot., at 1, 5-6 (Dkt. 13-2). The Policy also provided the following 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. [. . .]
3. “Bodily injury” means bodily injury, sickness or disease sustained by a person, including death resulting from any of these at any time. [. . .]
13. “Occurrence” means an accident, including continuous or repeated exposure to substantially the same ...

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