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Simantob, Hoshide, and Morrow Granted Summary Judgment for Insurer in IP Coverage and Bad Faith Case

July 12, 2021

Los Angeles team David Simantob (Partner), Linda Hoshide (Partner), and David Morrow (Of Counsel) were granted summary judgment, and defeated the insured’s motion for summary judgment, in the United States District Court, District of Utah. The insured was sued for breach of contract as well as trademark and trade name infringement, with allegations it copied and misrepresented the claimant’s products themselves. David, Linda Hoshide, and David Morrow argued that the allegations did not come within the “advertising injury” insuring agreement of the client's policies, and the breach of contract and intellectual property exclusions in the policy excluded coverage. The District Judge ruled in their favor, finding Wilson Elser’s client had no duty to defend or indemnify the insured in the underlying action.  The order is significant because it clarified that insurers evaluating a duty to defend under Utah law cannot consider facts outside of the policy and the underlying complaint if a policy conditions a defense on a “suit” alleging covered liability.  The order is also important because it broadly applied the breach of contract exclusion to bar coverage for any claims made “in connection with” a breach of contract, rejecting the argument that the exclusion only applies if injury was caused by a breach of contract.  Further, the order is significant because it held the intellectual property exclusion broadly excludes coverage for an entire suit if it includes any claims for infringement of intellectual property rights.

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