Aroa Marketing, Inc. v. Hartford Insurance
130 Cal. Rptr. 3d 466
Cal. Ct. App.2011Background
- Hartford issued a commercial general liability policy to Aroa for 2006–2007 covering personal and advertising injury arising from Aroa’s business, with an exclusion for injuries arising from violations of IP rights.
- Radcliffe v. Aroa Marketing, Inc. alleged misappropriation of likeness, breach of contract, unjust enrichment, and unfair competition due to use of Radcliffe’s image beyond the contract; Radcliffe sought damages and Aroa settled the suit.
- Hartford disclaimed coverage in August 2009, arguing misappropriation of likeness falls under IP rights exclusion; Aroa then filed a complaint for breach of defense/indemnity in May 2010.
- The trial court sustained Hartford’s demurrer without leave to amend in September 2010; Aroa appealed.
- The appellate court held that misappropriation claims are within the policy’s right of privacy coverage, but are excluded by the IP-rights exclusion; leave to amend denied; judgment for Hartford affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether misappropriation of likeness falls within coverage for right of privacy | Aroa views misappropriation as right of privacy | Hartford says claims are right of publicity, not privacy | Yes, within coverage as right of privacy (no separate exclusion applies) |
| Whether IP-rights exclusion applies to right of publicity | Exclusion not explicitly listing right of publicity | Right of publicity is an IP right and excluded | Yes, exclusion applies to right of publicity |
| Whether leave to amend should have been granted | Possibility to allege facts fitting coverage | No applicable amendments would state a claim | No abuse of discretion; leave to amend denied |
Key Cases Cited
- Comedy III Prods., Inc. v. Saderup, 25 Cal.4th 387 (Cal. 2001) (right of publicity derived from privacy; publicity falls under IP rights exclusion)
- KNB Enters. v. Matthews, 78 Cal.App.4th 362 (Cal. App. 2000) (right of publicity as subset of privacy rights)
- Shaddox v. Bertani, 110 Cal.App.4th 1406 (Cal. App. 2003) (interpretation of ‘such as’ in exclusions)