Alterra Excess & Surplus v. Estate of Buckminster Fuller
184 Cal. Rptr. 3d 831
Cal. Ct. App.2015Background
- Alterra insured Maxfield & Oberton Holdings, LLC under CG 00 01 12 07 (June 4, 2010–July 25, 2011) with a Commercial General Liability coverage form that included Coverage B for personal and advertising injury.
- Estate is the successor in interest to Fuller and has licensed Fuller’s rights, including his image and nickname, to various entities (Apple Think Different campaign, USPS stamp, Xerox).
- Maxfield allegedly used Fuller’s name and likeness in Buckyball/Buckycube products and related materials without authorization, prompting underlying U.S. district court litigation.
- Alterra defended Maxfield under a reservation of rights and Cumis counsel; the underlying action involved Lanham Act, misappropriation of name/likeness, and related UCL/privacy claims.
- Alterra filed a coverage action in San Francisco Superior Court seeking a declaration that there was no duty to defend or indemnify; the case involved settlement dynamics and Maxfield’s dissolution/formation of a Liquidating Trust; the trial court granted judgment on the pleadings in favor of Alterra based on an intellectual property exclusion, leading to this appeal.
- The judgment on the pleadings held Alterra had no duty to defend or indemnify Maxfield; Estate appeals the ruling.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does the IP exclusion bar coverage for the underlying claims? | Estate argues exclusion is not plain/conspicuous and Aroa should apply. | Alterra contends IP exclusion plainly bars coverage for any IP rights claims. | Yes; IP exclusion applies and bars coverage. |
Key Cases Cited
- Aroa Marketing, Inc. v. Hartford Ins. Co. of the Midwest, 198 Cal.App.4th 781 (Cal.App.4th 2011) (IP exclusion applies to right of publicity and similar claims within 'any intellectual property rights')
- S.B.C.C., Inc. v. St. Paul Fire & Marine Ins. Co., 186 Cal.App.4th 383 (Cal.App.4th 2010) (IP exclusion precludes coverage for misappropriation/ IP-related claims)
- Aroa Marketing, Inc. v. Hartford Ins. Co. of the Midwest, 198 Cal.App.4th 781 (Cal.App.4th 2011) (reiterates conspicuous plain language and nonexclusive IP rights listing)
- Travelers Prop. Cas. Co. of America v. Sup. Ct. (Braum), 215 Cal.App.4th 561 (Cal.App.2013) (exclusions must be conspicuous, plain and clear)
- North Counties Engineering, Inc. v. State Farm General Ins. Co., 224 Cal.App.4th 902 (Cal.App.2014) (duty to defend guidance: potential for coverage governs; exclude if no conceivable theory of coverage)