ORDER
This insurance coverage dispute arises out of the contributory trademark infringement action brought by Luxottica Group, S.p.A., and Oakley, Inc.
I. BACKGROUND
At all times relevant to this action, Respondents had Commercial General Liability Policies issued by Allstate to Yes Assets, LLC, Policy No. 648564370, and to Airport Mini Mall, LLC, Policy No. 648129676 (collectively “Policies”) in connection with their ownership and operation of the Old National Discount Mall (“discount mall”). (Allstate SMF ¶ 19; Resp. SMF ¶ 19.) The Policies provide coverage for “Personal and Advertising Injury
COVERAGE B PERSONAL AND ADVERTISING INJURY
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. We may, at our - discretion, investigate any “occurrence” or any offense and settle any claim or “suit” that may result.
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b. This insurance 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.
(Allstate SMF 1120; Resp. SMF ¶ 20.) The Policies define “advertising injury” as injury “arising out of one or more” specifically identified offenses, including “the use of another’s advertising idea in your ‘advertisement’;” and “infringing upon another’s copyright, trade dress or slogan in your ‘advertisement.’.” (Id.) “Advertisement” is defined as “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.” (Id.)
The Policies contain certain coverage exclusions:
2. Exclusions
This insurance does not apply to:
a. Knowing Violations Of Rights Of Another
“Personal and advertising injury” caused by or at the direction of the insured with the knowledge that the act would violate the rights of another and would inflict “personal and advertising injury;
b. Material Published With Knowledge Of Falsity
“Personal and advertising injury” arising out of oral or written publication of material, if done by or at the direction of the insured with knowledge of its falsity.
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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. Under this exclusion, such other intellectual property rights do not include the use of another’s advertising idea in your “advertisement.” - ■
However, this exclusion does not apply to infringement, in your “advertisement,” of copyright, trade dress or slogan.
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1. Unauthorized Use Of Another’s Name Or Product
“Personal and advertising injury” arising out of the unauthorized use of another’s name or product in your e-mail address, domain name, or metatag or any other similar tactics to mislead another’s potential customers.
(Id.)
Finally, the Policies also include the following notice provision:
SECTION IV — COMMERCIAL GENERAL LIABILITY CONDITIONS
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2. Duties In The Event Of Occurrence, Offense, Claim Or Suit
a. You must see to it that we are notified as soon as practicable of an. “occurrence” or an offense which may result in a claim. To the extent possible, notice should include:
(1) How, when and where the “occurrence” or offense took place;
(2) The names and address of any injured persons and witnesses; and
(3) The nature and location of any injury or damage arising out of the “occurrence” or offense.
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On November 21, 2014, officers from the United States Department of Homeland Security ánd the College Park Police Department raided the Discount Mall and seized several thousand counterfeit items, including counterfeit Ray-Ban and Oakley products. (Compl, Ex. A, Doc, 2-1 ¶ 36; Allstate SMF ¶ 8; Resp. SMF ¶ 8.) The raid resulted in the arrest of 16 of the discount mall’s tenants. (Compl, Ex. A, Doc. 2-1 ¶ 36.),
On December 9, 2014, Luxottica sent a cease and desist letter to Respondents AMM, Jerome Yeh and Donald Yeh. (Allstate SMF ¶ 9; Resp. SMF ¶ 9; Ex. A, Allstate MSJ, Doe. 51-4 at 34-37.)
On April 22, 2015, Luxottica sent Respondents a second cease and desist letter.
On April 29, 2015, Luxottica filed a Complaint against Respondent's AMM, Yes, Jerome Yeh, and Donald Yeh’ for contributory trademark infringement under the Lanham Act.
The Complaint, as amended, alleged that Respondents engaged in contributory trademark infringement through their “ownership, operation, control, and management” of the discount mall. (Allstate SMF ¶ 2; Resp. SMF ¶2.) On several occasions Luxottica “discovered multiple vendors advertising, displaying, offering for sale, and/or selling in plain view counterfeit Ray-Ban and Oakley merchandise on property jointly owned, managed and operated by” the Respondents. (Id. ¶¶ 34-43; Allstate SMF ¶ 11; Resp. SMF ¶ 11.) Luxottica alleged that the discount mall vendors had engaged in direct trademark infringement and that Respondents’ conduct constituted “contributory trademark infringement.” (Allstate SMF ¶ 12; Resp. SMF ¶ 12.)
Specifically, Luxottica alleged that Respondents were “contributorily liable for the infringing activities” of their tenants because Respondents: (1) facilitated the counterfeiting activities of its tenants' at the discount mall by supplying the means for the tenants to infringe ' Luxottica’s trademarks and “with knowledge of such activities, deliberately or recklessly willfully blinded themselves to' th[e] illegal conduct” in order to profit from the revenues it produced; (2) “acted with reckless disregard for, arid in bad faith and with willful blindness toward Luxottica Group and Oakley’s trademarks;” and (3) “either intentionally and deliberately, or with reckless disregard and willful blindness, benefitted from the illegal counterfeiting activities described herein.” (Compl., Ex. A, Doc.,2-1; Allstate SMF. ¶¶ 13-15; Resp. SMF ¶¶ 13-15.)
Respondents contracted with Greg Dickerson to provide property management services for the discount mall, and in that role Dickerson was responsible for overseeing the mail’s day to day operations. (Add’l SMF ¶¶ 1-2; Allstate Resp. ¶¶ 1-2; Dickerson Dep. at 13.) Mr. Dickerson receives and opens.any mail delivered to the discount mall, addressed to the “owner” and/or “manger.” (Dickerson Dep. at 32.) All incoming mail is placed into a large container and Dickerson goes through the mail once a week. (Id.) Mr. Dickerson received both of Luxottica’s cease and desist letters. Dickerson testified that he became aware of Luxottica’s claim that thousands of counterfeit Ray-Ban and Oakley products were being sold at the discount mall and were seized during the November 2014 raid upon his receipt of Luxottica’s December 2014 letter sent within a few days of the raid. (Dickerson Dep. at 27-32.) As soon as he opened both the December 2014 letter and the second April 2015 letter, • Dickerson immediately passed the letters: on to Respondents' and their attorney Louis Bridges. (Id. at 36-40.) Respondents admitted to having received Luxotti-ea’s December 2014 and April 2015 cease and desist letters. (Luxottica Group, S.p.A., et al v. Airport Mini Mall, LLC, et al, Civil Action No. 1:15-cv-01422-AT, Answer, Doc. 15 ¶ 40; Am. Answer, Doc. 85 ¶¶ 40, 43.)
Mr. Dickerson was also responsible for using a “Public Address (P.A.)” system for advertising to the patrons of the discount mall. (Add’l SMF ¶3; Allstate Resp. ¶3.) Depending on Mr. Dickerson’s schedule in the day to day management of the discount mall, the frequency of the announcements ranged from multiple arinouncements each day to once a week. (Add’l SMF ¶ 4; Allstate Resp. ¶ 4.) Mr. Dickerson customarily made the following announcements on the P.A. system:
1.. “Dear ladies and gentleman in the International Discount Mall,' we appreciate you coming in and shopping with us today. We have over 100 businesses with merchandise from all over the world, so be sure to browse through the Mall as you will see merchandise you may not have ever seen. We appreciate you coming in today and wish you a good day!”
2. “Ladies and gentleman in the International Discount Mall. We appreciate you coming in today and hope you enjoy the more than 100 businesses in the Mall with merchandise from all over the world. Also be sure to stop in with one of the snack shops and smoothy shop for some really good food. Thank you for coming in and hope you have a good day!”
(Add’l SMF ¶ 5; Allstate Resp. ¶ 5.)
Allstate first received notice of the claim and the Luxottica lawsuit on June 26, 2015 when Respondents forwarded copies of the lawsuit to its agent, who contacted Allstate. (Allstate SMF ¶ 16; Resp. SMF ¶ 16.) By the time Allstate was notified, Respondents had already filed their answer in the underlying lawsuit. (Allstate SMF ¶ 17; Resp. SMF ¶ 17.) While asserting a reservation of rights, Allstate retained counsel to defend the lawsuit and represent Respondents through trial. (Allstate SMF ¶ 18; Resp. SMF ¶ 18.)
Luxottica’s lawsuit against Respondents was tried before a jury from February 13, 2017 to February 28, 2017. The jury found that Respondents engaged in contributory trademark infringement of 19 of Luxotti-ca’s trademarks, but that Respondents had not acted willfully in contributing to their vendors’ direct trademark infringement. (Civil Action No. l:15-cv-1422, Doc. 160, Jury Verdict.) The jury awarded Luxottica $100,000 per trademark violation for a total judgment of $1,900,000. (Civil Action No. l:15-cv-1422, Doc. 161, Judgment.)
II. STANDARD FOR SUMMARY JUDGMENT
The Court must grant summary judgment if the record shows “that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A factual dispute is genuine only if there is sufficient evidence for a reasonable jury to return a verdict in favor of the non-moving party. See Anderson v. Liberty Lobby, Inc.,
The moving party “bears the initial responsibility of informing the district court of the basis for its motion and identifying those portions of ‘the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any’ which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett,
When ruling on a motion for summary judgment, the Court must view all the evidence in the record in the light most favorable to Respondents, as the non-moving party, and resolve all factual disputes in their favor. See Reeves v. Sanderson Plumbing Prods., Inc.,
III. ANALYSIS
Allstate seeks judgment in its favor, as a matter of law, that Luxottica’s claims in the underlying action are not covered under the Policies because Luxottica’s complaint did not allege an “advertising injury” to which the insurance applied. Alternatively, assuming there was an “advertising injury,” Allstate argues that the Policies, exclude coverage for damages caused by the insured’s intentional conduct, criminal acts, publication of material with knowledge of its falsity, and for injury arising out of trademark infringement — all of which apply to Luxottica’s claims against Respondents. Finally, Allstate contends that even if some coverage obligation did exist, Respondents failed to comply with the Policies’ notice provision, which is a condition precedent to coverage. Thus, according to Allstate, it had no duty to defend or indemnify Respondents against Luxottica’s claims in the underlying lawsuit.
Respondents assert that the Court should only address the narrow issue of Allstate’s duty to defend because, at the time Allstate filed its motion, the underlying Luxottiea action had not yet been litigated, tried or otherwise determined on its merits triggering Allstate’s duty to indemnify. Respondents do not offer any authority for this' contention, and the Georgia Court of Appeals has expressly rejected the argument that the issue of an insured’s duty to indemnify is not ripe for determination prior to a finding of liability in an underlying action. See ALEA London Ltd. v. Woodcock,
A. Georgia Law Applies to Issues of Insurance Contract Construction
The parties agree that the Policies at issue are governed by Georgia contract law. “In Georgia, insurance is a matter of contract, and the parties to an insurance policy are bound by its plain and unambiguous terms.” Hays v. Georgia Farm Bureau Mut. Ins. Co.,
To determine whether a claim against an insured falls within the insured’s coverage requires a comparison of the provisions of the policy against the allegations of the underlying complaint. See Travelers Prop. Cas. Co. of Am. v. Kansas City Landsmen, L.L.C.,
In' Georgia, an insurers duty to indemnify and its duty to defend “are separate and independent obligations.” Penn-Am. Ins. Co. v. Disabled Am. Veterans, Inc.,
To determine whether an insurer has a duty to defend, the court must examine the allegations of the complaint in conjunction with the relevant policy language “to determine whether a liability covered by the policy is asserted.” Penn-America Ins. I,
In construing an. insurance policy under Georgia daw, the court is required to “consider the policy as a whole, to give effect to each provision, and to interpret each provision to harmonize with each other.” Woodcock,
B. Whether Luxottica’s Underlying Claims Against Respondents are Covered by the Allstate Policies
No Georgia case has directly addressed the issue faced by this Court: whether Respondents’ liability for contributory infringement of Luxottica’s trademarks is a covered “advertising injury” under the Allstate Policies.
The Policies at issue here contain standard qommercial general liability (“GCL”) insurance policy coverage provisions for advertising injury. See Berry, Stephen J., Georgia Property and Liability Insurance Law § 4:20 (2013 ed.) (discussing standard GCL policies offered by the Insurance Service Office (“ISO”)); Haigh, James L,, Historical Analysis op the Changes To Coverage B (Clarion Legal’s Insurance Law Institute 2003); Westerlind, James M., Insurance Coverage por Lanham Act Claims Under Section B op Standard CGL Policies, Mealey’s Emerging Insurance Disputes, Vol. 16 (August 18, 2011)., Over the years since these standard policies have been adopted by insurance companies, the provisions for advertising injury coverage have undergone significant revision. See State Farm Fire & Cas. Co. v. Steinberg,
Allstate’s Policies insure Respondents against liability for “damages because of [ ] advertising injury,” caused by an “offense” arising out of Respondent’s business and obligate Allstate to defend “against any suit seeking those damages.” (Allstate SMF ¶ 20; Resp. SMF ¶ 20.) The Policies define “advertising injury” in the context of two offenses: (1) injury arising out of “the use' of another’s advertising idea in your' ‘advertisement,’ ”
At the same time, the Policies contain an exclusion for “Infringement of Copyright, Patent, Trademark or Trade Secret,” that provides that the insurance “does not apply to ‘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,” of copyright, trade dress or slogan.” (Policies, Coverage B, § 2(i).) The Policies further state that “[u]nder this exclusion, such ‘other intellectual property rights’ do not include the use of another’s advertising idea in your ‘advertisement.’” Id. Thus, the Policies cover advertising injury arising out of trade dress infringement but not injury arising out of trademark infringement.
A claim falls within the coverage of the Policies for “advertising injury” if: (1) the underlying suit “alleged a cognizable advertising injury;” (2) Respondents “engaged in advertising;” (3) “there [is] some causal connection between the advertising injury and the advertising,” and (4) coverage is not negated by an applicable policy exclusion. See Steinberg,
In response, Respondents contend that Mr. Dickerson’s “acts of advertising the Old National Discount Mall’s goods and services to the patrons of the Mall by regular public address announcements,” satisfies the Policies’ definition of “advertisement.” (Resp. at 20-21.) As a result, Respondents argue that this “advertising” conducted on behalf of Respondents renders them “potentially liable” for “advertising injury” as defined by the Policies, sufficient under Georgia law to trigger Allstate’s duty to defend Respondents in the Luxottica action. (Id. at 21.) Respondents offer nothing more in opposing Allstate’s summary judgment motion and completely fail to address the applicability of the various coverage exclusions identified by Allstate. Indeed, Respondents concede that “[i]t is entirely possible that Allstate may owe only a duty of defense, but not indemnity, to the Airport Mini Mall Respondents. It is entirely possible that one or more of the stated policy exclusions may preclude Allstate’s duty of indemnity.” (Id.) Respondents hang their hats on the meritless argument that a determination of Allstate’s duty of indemnity would be premature pending litigation of the merits of Luxottica’s underlying action.
In short, and as explained below, the Court finds that it is clear from the provisions of the Policies as a whole that Luxot-tica’s contributory trademark infringement claim is not “advertising injury” covered under the Policies. Luxottica’s claim for contributory trademark infringement did not arise out of any advertisement by Respondents of their goods and services as defined by the Policies as necessary to invoke coverage for. the underlying judgment. And because the claim for trademark infringement is expressly excluded from coverage under the Policies, the allegations in Luxottica’s underlying complaint are insufficient to trigger Allstate’s duty to defend.
To fall within the Policies’ coverage provisions, the Court must first find that Lux-ottica’s claim in the underlying suit alleges either an (1) injury arising out of the use of Luxottica’s “advertising idea” in Respondents’ “advertisement,” or (2) injury arising out of infringement of Luxottica’s “copyright, trade dress or slogan” in Respondent’s “advertisement.” (Policies, Coverage B, §§ V(14)(f) & .(g).) While the Policies define the term “advertisement,” they do not define the term “advertising idea.”
Taking these in reverse, Luxottica?s complaint alleges that Respondents are liable for contributory trademark infringement. Luxottica does not allege injury, arising out of “infringement of a copyright, trade dress or .slogan” as defined by the Policies. Although trademark and trade dress are similar and may overlap in some circumstances,
Trade dress, on the other hand, is defined as “the total image of a product and may include features such as size, shape, color or color combinations, texture, graphics, or even particular sales techniques.” Afterburner,
Neither the Georgia courts nor the Eleventh Circuit’s cases interpreting a policy under Georgia law have expressly addressed whether “the use of another’s advertising idea” encompasses a claim for trademark infringement for the purpose of determining coverage for an “advertising injury.” Other courts have differed on this issue under the various versions of the CGL policies. Compare Sport Supply Group,
The Eleventh Circuit construed the term “advertising idea” broadly to potentially include trade dress in Hyman v. Nationwide Mut. Fire Ins. Co.,
Hyman involved a prior version of the standard CGL policy for advertising injury than the one at issue here.
Construing the provisions of the Allstate Policies as a whole, to give effect to each provision, as required under Georgia law, the Court finds that the Policies’ coverage for “advertising injury” does not apply to Luxottica’s claim for contributory trademark infringement. See Woodcock,
Even assuming Luxottica’s trademarks come within the scope of “advertising idea,” in order to fall under the coverage provisions of the Policies, “the injury for which coverage is sought must be caused by the advertising itself.” E.g. Hyman,
Luxottica’s original complaint, filed on April 29, 2015, contains no allegation that Respondents or their vendors engaged in any advertising. Luxottica’s thirty page amended complaint, filed on March 4, 2016, makes two vague references to advertising:
¶ 35. On November 13, 2014, [Luxotti-ca’s] investigator canvassed the Discount Mall and discovered multiple vendors advertising, displaying, offering for sale, and/or selling in plain view counterfeit Ray-Ban and Oakley merchandise on property jointly owned, managed and operated by the [Respondents].
¶ 37. [Luxottica’s] investigator, who had accompanied the law enforcement officers during the raid, discovered that [Respondents] were distributing, advertising, publicly displaying, offering for sale, and/or selling 1,924 pair of sunglasses bearing logos and source-identifying indicia that are imitations of the Ray-Ban Trademarks and 1,514 pair of sunglasses bearing logos and source7identifying indicia that are imitations of the Oakley Trademarks (hereinafter collectively referred to as the “Counterfeit Product”).
(Ex. A, MSJ) (emphasis added).
Despite broadly construing “advertising” in the context of the particular policy provision at issue, the Hyman court recognized that selling does not equal advertising. Compare Hyman,
A bare allegation of advertising alone does not constitute an allegation of “advertising injury” where there is no causal connection between the alleged advertising and the alleged injury. See Ekco Grp., Inc.,
Allstate asserts that neither the vague reference to Respondents’ “advertising” in paragraph 37 of Luxottica’s underlying amended complaint nor Mr. Dickerson’s PA announcements at the discount mall are sufficient to trigger coverage for “advertising injury” under the Policies. The Court agrees. Luxottica’s alleged injuries were the result of the sale of counterfeit Luxottica merchandise by Respondent’s tenants, not from any .“advertisement” by Respondents — as that term is defined in the Policies — as demonstrated by the lack of any argument or evidence of such advertisements at the trial. (See Am. Gompl,, Prayer for Relief at 28 (seeking “statutory damages per counterfeit mark per type of good offered for sale”); Jury Instructions, Doc. 155 at 20-21 (providing instructions for jury on statutory damages allowable to Luxottica for counterfeit goods sold, offered for sale, or distributed by the tenants at the Old Discount Mall).) Cf., Hyman,
Respondents’ assertion that Mr. Dickerson’s use of a PA announcement triggered Allstate’s duty to defend, is unpersuasive. Mr. Dickerson’s announcements do not publicize Respondents’ goods or services, but simply thanked the customers for shopping and encouraged them to visit the 100 businesses selling various merchandise and food. (See Add’l SMF ¶5; Allstate Resp. ¶ 5.) No mention was made of any of Luxottica’s products in the PA announcements. Thus, these PA announcements cannot form the basis for any alleged “advertising injury” arising out of Respondents’ “advertisements” under the express terms of the Policies.
This case is similar to Colony Ins. Co. v. Frison Flea Mkt., Inc. and Marvisi v. Greenwich Ins. Co., and the courts’ decisions on identical policy provisions in those cases are instructive.
In Colony Ins. Co. v. Frison Flea Mkt., Inc., the owner of a flea market was found liable in an underlying action for contributory copyright infringement for facilitating its vendors’ sale of counterfeit Coach merchandise.
In Marvisi v. Greenwich Ins. Co., the owner/landlord of a shopping center was sued by Louis Vuitton for contributory trademark infringement based on allegations that he induced and aided the infringement by providing his tenants with a safe haven and marketplace in which counterfeit goods could be sold.
The Court is persuaded by the reasoning of these cases in finding that Luxotti-ca’s claim for contributory trademark infringement based on the sale of counterfeit merchandise by Respondent’s tenants does not fall within the scope of “advertising injury” under the Allstate Policies. Because the facts supporting Luxottica’s contributory infringement claim created no potential liability for any cause of action enumerated under the policy, the Luxotti-ca action created no duty on the part of Allstate to defend or indemnify Respondents.
C. Whether Respondents Complied with Allstate’s Notice Provision
Even assuming coverage under the Policy is available, Allstate is still entitled to summary judgment. As indicated above, the Policies require as a condition of coverage that the insured give notice to its insurer “as soon as practicable of an ‘occurrence’ or an offense which may result in a claim.” (Policy § IV(2), Doc. 2-2 at 78.) Failure to comply with such a notice provision bars coverage under Georgia law. See, e.g., Eells v. State Farm Mut. Auto. Ins. Co.,
Respondents’ property manager, Greg Dickerson, testified that he became aware of Luxottica’s claim that tenants at the discount mall were selling counterfeit Ray-Ban and Oakley products upon receipt of a cease and desist letter from Luxottica in early December 2014. Luxotti-ca’s letter arrived a few weeks after the November 21st raid conducted by federal and local law enforcement agents during which thousands of items of accused counterfeit merchandise were seized and vendors were arrested. Luxottica sent a second cease and desist letter on April 22, 2015, after its investigator made purchases of counterfeit Ray-Ban products from 4 different vendors at the discount mall. Respondents did not, however, notify Allstate of Luxottica’s claims until June 26, 2015, after Luxottica’s lawsuit was filed and Respondents had already filed an answer. Allstate asserts that Respondents’ seven
The notice requirement at issue is set forth in Section IV of the Policies as follows:
Section IV — COMMERCIAL GENERAL LIABILITY CONDITIONS
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2. Duties In The Event Of Occurrence, Offense, Claim or Suit
a. You must see to it that we are notified as soon as practicable of an “occurrence” or an offense which may result in a claim .,.
b. If a claim is made or “suit” is brought against any insured, you must:
(1) Immediately record the specifics of the claim or “suit” and the date received; and
(2) Notify us as soon as practicable.
(Policy § IV(2), Doc. 2-2 at 78-79.) The Policies’ requirement that notice be provided “as soon as practicable” has been interpreted by Georgia Courts as requiring “immediate” notice based on the reasonable diligence of the insured under, the circumstances. Advocate Networks, LLC. v. Hartford Fire Ins. Co.,
Georgia courts have repeatedly held that a notice provision such as the one in Allstate’s Policies is a condition precedent to coverage. See Res. Life Ins. Co. v. Buckner,
Notice is made a condition precedent to coverage “so that insurers can be certain that they are given the opportunity to investigate the facts surrounding an incident promptly and to prepare a defense or settlement while the facts , are still fresh and. witnesses are still available.” Illinois Union Ins. Co. v. Sierra Contracting Corp.,
The insured bears the burden of showing justification for a delay in providing notice to the insurer, which.is generally a question of fact. Kay-Lex Co.,
Courts applying Georgia law have held that delays of as little as three to four months preclude recovery as a matter of law. See Diggs v. S. Ins. Co.,
In addressing whether an insured’s purported compliance with a notice requirement can be determined as a matter of law, courts look to the reasons provided by the insured for the delay. Advocate Networks, LLC,
But, an insured cannot avoid the notice requirement by relying on its subjective belief that it has no liability. E.g., Coody,
Respondents assert that genuine issues of material fact remain to be tried as to whether their delay in providing notice to Allstate was justified. Specifically, Respondents contend the following “undisputed” facts warrant denial of summary judgment in Allstate’s favor: .
,(1),. Prior to the November 21, 2014 “raid” of the premises, Respondents had never received any notice from law enforcement or Luxottica about any, alleged issues regarding alleged counterfeit goods at the Discount Mall; •
(2) Respondents (as opposed to their tenants) were not the subject of the November 21, 2014 raid and were not charged or cited by law enforcement for any wrongdoing;
(3) Luxottica’s December 9, 2014 and April 22, 2015 letters: (a) were not addressed to any of the Respondents, but were instead sent to the Discount Mall Shopping Center and addressed only to: “Dear Sir/Madam;” (b) were not sent to the business address or home address or registered agent of the Respondents; (c) provided no actual evidence that the allegations contained in the letters were true; (d) did not identify any subtenant who allegedly was selling counterfeit products bearing the mark of Luxottica’s merchandise at the Discount Mall; and (e) did not include any demand or claim for damages. (Resp. at 22-23.) Respondents further argue that questions exist over whether there was an “occurrence,” or “offense” as those terms are defined in the Policies requiring notice to Allstate — though they offer no evidence or support for their assertions. Respondents also argue that absent a demand for money by Luxottica in the December 2014 and April 2015 letters, there was no “claim” for which Allstate required notice. (Resp. at 24 (citing Insite-Properties, Inc. v. Jay Phillips, Inc.,
Coverage for advertising injury under Coverage B differs from Coverage A for bodily injury and property damage because it is not dependent on an “occurrence,” i.e. an accident. Berry, Stephen J., Georgia Property and Liability Insurance Law § 4:20 (2013 ed.) Rather, Coverage B insurance “applies to ‘personal and adveri tising injury’ caused by an offense arising out of [the insured’s] business,” and “advertising injury” is defined as injury arising out of one or more enumerated “offenses.” (Policy, Coverage B § 1, Doc. 2-2 at 74.) The Court therefore rejects Respondents’ assertion that disputes of fact exist regarding whether there' was an “occurrence” triggering Respondent’s duty under the notice provision because whether there was an “occurrence” is irrelevant under the circumstances of this case.
Although the term “claim” is not a defined term in the Policies, the Court declines to interpret the term as narrowly as Respondents suggest. In interpreting similar notice provisions, Georgia courts have consistently held that the insured’s duty to give notice “as soon as practicable of an occurrence or an offense which may result in a claim,” is triggered when the potential for liability related to an occurrence or offense is objectively known to the insured. See, e.g. Forshee,
For example, in Travelers Indemnity Co. of Conn. v. Douglasville Development, LLC, the court rejected the insured’s argument that it had no notice of a “claim” until it received the complaint in the underlying suit because its prior communications with the claimants had been about requests for non-monetary relief from soil and sediment damages resulting from increased stormwater from the insured’s upstream development site.
Similarly, in cases involving advertising injury arising out of alleged intellectual property infringement, Georgia courts have found that a notice letter from a potential claimant is sufficient evidence from which the court can find that an insured should have known of an offense triggering the duty to notify his insurer. Evercare Co.,
Despite their attempt to call into question their receipt of Luxottica’s cease and desist letters,
Respondents’ remaining contentions imply that their failure to notify Allstate of Luxottica’s claims until after the lawsuit was filed was because there was no indication Respondent's could be held responsible for the alleged sale of counterfeit goods at the discount mall by their tenants. Essentially, the crux of Respondents’ justification for failing to notify Allstate after receiving Luxottica’s cease and desist letters is that Respondents did not believe they were liable for the alleged infringing acts of their tenants. This was the same defense Respondents raised unsuccessfully in the underlying litigation with Luxottica. Luxottica’s cease and desist letters provided Respondents with information from which they should have known of the potential for liability and cited applicable legal authority for imposing contributory liability on Respondents as landlords sufficient to trigger the duty to provide notice to Allstate of “an offense which may result in a claim.” See Evercare Co.,
The Policies contain separate obligations for providing notice: (1) the insured must notify Allstate “as soon as practicable of an ‘occurrence’ or an offense which may result in a claim,” and (2) the insured must subsequently notify Allstate “as soon as practicable” “[i]f a claim is made or ‘suit’ is brought.” (Policy § IV(2)(a)&(b), Doc. 2-2 78-79.) Thus, the fact that Respondents notified Allstate of the underlying lawsuit within one month of being served does not obviate Respondents of their obligation in providing pre-suit notice of Luxottica’s claims raised in the two cease and desist letters.
The Court finds Respondents’ proffered justification insufficient as a matter of law to defeat Allstate’s motion for summary judgment on the lack of timely notice as a condition precedent to coverage. Respondents have failed to create a genuine dispute of material fact regarding whether they had a legally sufficient reason or excuse for not providing prompt notice to Allstate of the circumstances giving rise to Luxottica’s contributory trademark infringement claim. Accordingly, Allstate was not obligated to provide coverage for the claim at issue and summary judgment is warranted in its favor.
IV. CONCLUSION
For the foregoing reasons, the Court GRANTS Allstate’s Motion for Summary Judgment [Doc. 51]. The Clerk is DIRECTED to enter judgment in Allstate’s favor and close the case.
IT IS SO ORDERED this 26th day of September, 2017.
Notes
. As Oakley, Inc. is a subsidiary of Luxottica, the Court will refer to Luxottica and Oakley jointly as “Luxottica” for simplicity.
. Although the Policies combine "personal injury" and “advertising injury” together, this case only involves an alleged advertising injury. Therefore, the Court will discuss only those portions of the Policies dealing with "advertising injury” for ease of reference and will omit any discussion of the portion of the Policies dealing strictly with “personal injury.” See Beriy, Stephen J., Georgia Property and Liability Insurance Law §§ 4:20, 4:26 (2013 ed.) (discussing the combination of "personal injury” and "advertising injury” into one definition in standard commercial general liability insurance policies and enumerating the offenses falling under "personal” versus those falling under "advertising” injury).
, The letter is addressed to "Old National Discount Mall” and cc’d to Airport Mini Mall, LLC, Donald Yeh and Jerome Yeh. ‘
. The letter is addressed to "Old National Discount Mall, Attn: Owner/Manager” and is cc’d to Airport Mini Mall, LLC and Yes Assets, LLC.
.On March 4, 2016, Luxottica was granted leave to amend the underlying complaint to add Jenny Yeh and Alice Jamison as additional defendants. (Allstate SMF ¶ 6; Resp. SMF ¶ 6; Ex. A, Allstate MSJ, Doc. 51-4.)
.As summarized by the Eleventh Circuit in Steinberg:
Advertising injury coverage was first introduced into .CGL policies in 1973 in the form of an endorsement, In 1986, ISO moved advertising injury coverage into the main policy form and made significant changes to-the coverage by, among other things, introducing the four enumerated offenses defining "advertising injury” ... In 1998, ISO changed the much-litigated "misappropriation of advertising ideas or style of doing business” clause to “use of another’s advertising idea” and changed "infringement of copyright, title or slogan” to "infringing upon another’s copyright, trade dress or slogan.” The 1998 revision also defined "advertisement” for the first time: "a notice that is broadcast or published in the general public or specific market segments about your goods, products or services for the purpose of attracting customers or supporters.” In 2001, an intellectual property exclusion was added that barred coverage for "infringement of copyright, patent, trademark or trade secret,”
. This provision in the standard GCL policy for "advertising injury” was changed in 1998 from "misappropriation of advertising ideas or style of doing business” as an enumerated offense to the current version contained in the Allstate Policies. Some of the cases discussed herein were based on the prior policy language dealing with misappropriation.
. The prior version of this provision defined "advertising injury” to include “infringement of copyright, title, or slogan.” The standard policy language was modified in 1998 to replace "title” with “trade dress” as a covered' offense.
. Trademark and trade dress infringement claims are subject to the same analysis and the same protections under the Lanham Act.
. The Eleventh Circuit criticized the separate reasoning of the Sixth Circuit in Advance Watch that the term "misappropriation of advertising ideas or style of doing business,” did not refer to a category or grouping of actionable conduct that includes trademark or trade dress infringement. See Hyman v. Nationwide Mut. Fire Ins. Co.,
. The policy at issue in Hyman was purchased in 1992. The standard CGL policy was revised in 1998 to specifically define for the first time the term “advertisement,” to modify the enumerated offenses under the definition of "advertising injury,” and to exclude coverage for certain types of infringement, including trademarlv infringement. The table below summarizes the differences between the relevant policy provisions at issue here and in Hyman:
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. In contrast, the policy in Hyman defined "advertising injury” to include the offense of "infringement of copyright, title, or slogan.” The standard policy language was subsequently modified to replace "title” with "trade dress” as a covered offense.
. Having found that the policy exclusion for trademark infringement applies, the Court need not address the applicability of the remaining policy exclusions raised by Allstate in its Motion for Summary Judgment.
. Luxottica was permitted by the Court to amend the complaint a year later to add Jenny Yeh and Alice Jamison as individual defendants based on evidence obtained during discovery that both- Ms. Yeh and. Ms. Jamison jointly manage, control £gid. operate Yes and AMM along with Jerome and Donald Yeh'.
. Though not a separate/independent reference to advertising, the amended complaint further alleges that Respondents “have no license, authority, or other permission from Luxottica Group or Oakley to use any of the Ray-Ban or Oakley Trademarks in connection with the advertising, promoting, distributing, publicly displaying, selling, and/or offering for sale of the Counterfeit Product.” (Id. ¶ 46.)
. Allstate calculates the seven month delay from the date of the November 21, 2014 police raid.
. The December 2014 letter is addressed principally to "Old National Discount Mall” but copies were also sent to Airport Mini Mall, LLC’s "Legal Department” at a P.O. Box and to "Donald Yeh & Jerome Yeh, Registered Agent” at an address on Tilly Mill Road.' Similarly, the April 2015 letter sent to "Owner/Manager" of the Old National Discount Mall” was sent by carbon copy to Airport Mini Mall, LLC care of Donald Yeh and Jerome Yeh, and to Yes Assets, LLC care of Jerome Yeh at an address on "Clearview Pkwy" in McDonough, Georgia.
. The fact that Respondents may have timely notified their attorney of their receipt of Lux-ottica’s two cease and desist letters (who in turn did not notify Allstate before June 22, 2015) is not a sufficient justification for their failure to provide, immediate notice to Allstate. See Bituminous Cas. Corp.,