452 Mass. 690 | Mass. | 2008
This case requires us to construe an exclusion bar
1. Standard of review. The parties’ motions as to coverage, although brought under different rules,
2. Facts. The following facts are drawn from the complaint and supplemented by undisputed facts in the record.
“[t]o pay on behalf of the Insured all sums which the Insured shall become legally obligated to pay as Damages resulting from any claim or claims first made against the Insured and reported to the Company during the Policy Period for any Wrongful Act of the Insured or of any other person for whose actions the Insured is legally responsible, but only if such Wrongful Act first occurs during the Policy Period and solely in the conduct of the Insured’s Profession as stated in Item 6 of the Declarations.”
Item 6, which amended the last sentence of the coverage provision, states: “Soley [szc] in the performance of providing records management, document imaging, litigation support, graphics and trial support, and electronic printing services for others for a fee.”
The policy defined “Wrongful Act” as “any actual or alleged breach of duty, neglect, error, misstatement, misleading statement or omission committed solely in the conduct of” Uniscribe’s profession as specified above.
Indorsement 6 to the policy provided that coverage did not apply to “to any claim arising out of any misappropriation of trade secret or infringement of patent, copyright, trademark, trade dress or any other intellectual property right.”
In 2002, the Los Angeles office of the law firm Jones Day
In September, 2002, when the employees were unable to meet Jones Day’s deadlines, a Uniscribe supervisor authorized an employee working on the DirecTV project to bring his nephew to assist the Uniscribe employees in meeting Jones Day’s deadlines. The nephew worked for approximately ten days and was paid cash by his uncle, who recorded the nephew’s hours as overtime. During this period, the nephew came across documents containing confidential trade secret information from DirecTV and sent that information to a Web site to help the “hacker” community.
In January, 2003, Jones Day notified Uniscribe of the disclosure. Uniscribe promptly notified National Union of the incident, indicating that Jones Day had written off a substantial legal fee for services it had performed for DirecTV and that Jones Day “may eventually look to [Uniscribe] to compensate them for this matter.” National Union, through its claims handler, A.I.G. Technical Services (A.I.G.), disclaimed coverage based on the intellectual property exclusion.
In March, 2003, a Jones Day attorney wrote to Uniscribe, demanding that Uniscribe reimburse Jones Day for $1,471,992.84 in losses it had sustained as a result of the disclosure. In May, 2003, Uniscribe urged A.I.G. to reconsider its position that the intellectual property exclusion barred coverage. A.I.G. again disclaimed coverage.
By November, 2004, Jones Day’s patience with Uniscribe’s efforts to resolve the coverage dispute with National Union had been exhausted. Jones Day informed Uniscribe by letter that it would no longer defer pursuit of its claims against Uniscribe and gave Uniscribe five days to consider a settlement proposal under which Uniscribe would pay Jones Day $1.5 million over a five-year period. Uniscribe forwarded Jones Day’s letter to A.I.G. A.I.G. did not respond. Given the time constraints on Jones
3. Discussion. At issue is whether the intellectual property exclusion unambiguously excludes coverage where a third party has misappropriated a trade secret.
In the interpretation of insurance contracts, we are guided by several well-established principles. “Language in an insurance policy must be given its ordinary meaning . . . and construed in the sense that the insured will reasonably understand to be the scope of his coverage.” Slater v. United States Fid. & Guar. Co., 379 Mass. 801, 803 (1980). Although an exclusionary clause is construed narrowly, see Commerce Ins. Co. v. Betty Caplette Bldrs., Inc., 420 Mass. 87, 93 (1995), “[w]e are not free to revise it or change the order of the words." Continental Cas. Co. v. Gilbane Bldg. Co., 391 Mass. 143, 147 (1984). Thus, “[a] policy of insurance whose provisions are plainly and definitely expressed in appropriate language must be enforced in accordance with its terms.” Hyfer v. Metropolitan Life Ins. Co., 318 Mass. 175, 179 (1945), quoting Stankus v. New York Life Ins. Co., 312 Mass. 366, 369 (1942). “If in doubt, we ‘consider what an objectively reasonable insured, reading the relevant policy language, would expect to be covered.’ ” A.W. Chesterton Co. v. Massachusetts Insurers Insolvency Fund, 445 Mass. 502, 518 (2005), quoting Trustees of Tufts Univ. v. Commercial Union Ins. Co., 415 Mass. 844, 849 (1993).
We have considered whether the language of a particular exclusion extends to third-party conduct on two prior occasions. See Bagley v. Monticello Ins. Co., 430 Mass. 454 (1999); Liquor Liab. Joint Underwriting Ass’n of Mass. v. Hermitage Ins. Co., 419 Mass. 316 (1995).
In Liquor Liab. Joint Underwriting Ass’n of Mass. v. Hermit
We reached the opposite result in Bagley v. Monticello Ins. Co., supra, which involved a suit by the victim of a brutal rape and beating by another patron to reach and apply insurance policy proceeds to satisfy a judgment she had obtained against the establishment. The exclusion in that case provided:
“All coverage is excluded hereunder for any claim which arises wholly or in part out of allegations of violation of any federal, state, or local statute, ordinance, or law. This exclusion shall specifically include but not be limited to any sexual misconduct committed or alleged to have been committed by any Insured or Additional Named Insured” (emphasis added).
Id. at 456. We held that the exclusion “read as a whole, by its
The relevant language of the intellectual property exclusion, “any claim arising out of any misappropriation of trade secret,” requires us to decide whether the absence of any language as to whose acts may trigger the exclusion results in ambiguity. National Union, laying emphasis on the words “any claim arising out of,” asserts that the exclusion unambiguously covers all claims alleging misappropriation of a trade secret. Uniscribe responds that the exclusion is silent as to whether it applies to third-party conduct and therefore is ambiguous.
The plain language of the intellectual property exclusion precludes coverage. “The phrase ‘arising out of’ must be read expansively, incorporating a greater range of causation than that encompassed by proximate cause under tort law.” Bagley v. Monticello Ins. Co., supra. The breadth of the phrase “arising out of,” in conjunction with the words “any claim,” unambiguously encompasses claims based on third-party conduct. The expansiveness of the phrase “any claim arising out of” obviates the need to specify that the exclusion applies “whether committed by or at the direction of the insured or third parties.” Liquor Liab. Joint Underwriting Ass’n of Mass. v. Hermitage Ins. Co., supra at 320. Cases from other jurisdictions are in accord.
We need not consider Uniscribe’s reasonable expectations as
A more difficult issue is whether the injury suffered by Jones Day arose out of the nephew’s misappropriation of DirecTV’s trade secrets. Uniscribe contends that Jones Day’s damages (consisting primarily of forgone legal fees) are not the sort of damages normally sought in a misappropriation claim, and consequently the requisite causal connection between the prohibited conduct and injury is lacking. As we noted in Bagley v. Monticello Ins. Co., supra at 457, “arising out of” denotes “a causation more analogous to ‘but for’ causation, in which the court examining the exclusion inquires whether there would have been personal injuries, and a basis for the plaintiff’s suit, in the absence of the objectionable underlying conduct.” While Uniscribe’s argument has some force, there is no indication in the record on appeal that Jones Day would have incurred any loss in the absence of the nephew’s misappropriation. Thus, we conclude that Jones Day’s claim arose out of the nephew’s misappropriation.
4. Conclusion. For the foregoing reasons, we affirm the order allowing National Union’s motion for judgment on the pleadings and denying Uniscribe’s motion for summary judgment. Because National Union had neither a duty to defend nor a duty
So ordered.
Uniscribe sought recovery of certain sums it already had paid pursuant to the settlement agreement and the remainder it was obligated to pay over a five-year period, as well as costs and fees incurred in negotiating the settlement of the claim.
Count I sought a declaratory judgment that National Union Fire Insurance Company of Pittsburgh, Pennsylvania (National Union), was obligated to defend and indemnify Uniscribe. Count II alleged that National Union breached its contractual obligations under the policy by refusing to defend and indemnify Uniscribe. Count III claimed that National Union breached the implied covenant of good faith. Counts IV and V, which asserted that principles of waiver and estoppel precluded National Union from asserting that the knowing wrongful acts exclusion and the criminal acts exclusion applied, also were rejected by the judge, but no judgment was entered on these counts. The judge did not address Counts VI and VII, and the parties do not address them on appeal. We express no opinion concerning Counts VI and VII. Count VI, which claims that Uniscribe and its claims handler, A.I.G., violated G. L. c. 93A, § 11, alleges in part:
“The unfair and deceptive acts and practices committed by National Union and AIG include, but are not limited to, their assertion of the*692 Wrongful Act and Criminal Act exclusions in this action pending in Massachusetts as a basis for denying coverage for the Jones Day claim, without having investigated the claim asserted by Jones Day against Uniscribe, which investigation would have demonstrated that the Wrongful Act and Criminal Act exclusions do not apply to the Jones Day claim.”
Count VII, which alleges violation of the Connecticut Unfair Trade Practices Act, recited the same allegation as in Count VI, but also claims that National Union and A.I.G. “misrepresent[ed] that the newly added Intellectual Property Exclusion would not change the coverage provided under the policies previously written without the exclusion, and then applying the Exclusion in a manner that reduced coverage under the Policy.”
Because the intellectual property exclusion bars coverage, we find it unnecessary to address National Union’s alternative argument that the criminal acts exclusion applies.
A motion brought pursuant to Mass. R. Civ. P. 12 (c), 365 Mass. 754 (1974), is a motion to dismiss “argu[ing] that the complaint fails to state a claim upon which relief can be granted.” Jarosz v. Palmer, 436 Mass. 526, 529 (2002), quoting J.W. Smith & H.B. Zobel, Rules Practice § 12.16 (1974). All facts pleaded by the nonmoving party must be taken as true. Jarosz v. Palmer, supra at 530. “Judgment on the pleadings may be entered if a plaintiff fails to present sufficient facts in the complaint to support the legal claims made.” Flomenbaum v. Commonwealth, 451 Mass. 740, 742 (2008).
A motion for summary judgment, although similar to a rule 12 (c) motion, does not challenge the validity of the pleading, but rather focuses on the merits of the controversy. Smith v. Massimiano, 414 Mass. 81, 85 (1993). A grant of summary judgment is appropriate when, “viewing the evidence in the light most favorable to the nonmoving party, all material facts have been established and the moving party is entitled to a judgment as a matter of law.” Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117, 120 (1991). “[A] party moving for summary judgment in a case in which the opposing party will have the burden of proof at trial is entitled to summary judgment if he demonstrates, by reference to material described in Mass. R. Civ. P. 56 (c), unmet by countervailing materials, that the party opposing the motion has no reasonable expectation of proving an essential element of that party’s case.” Kourouvacilis v. General Motors Corp., 410 Mass. 706, 716 (1991).
The facts disputed by the parties are not relevant to the disposition of this appeal.
Neither the judge below nor the parties on appeal address whether the nephew could be considered an “insured” under the policy. Under the policy, the term “[i]nsured means the individual, partnership, corporation or other entity named in Item 1 of the Declarations and shall include any partner, director, officer or employee thereof while acting within the scope of his duties as such." The policy does not define “employee." Therefore, we assume without deciding that the nephew was not an insured.
See Kinsella v. Wyman Charter Corp., 417 F. Supp. 2d 159, 166-167 (D. Mass. 2006) (“any liability arising out of the ownership, maintenance, operation, use, entrustment to others, loading or unloading of any watercraft” unambiguously excluded liability even where insured did not own watercraft); Capitol Indem. Corp. v. Blazer, 51 F. Supp. 2d 1080, 1087-1089 (D. Nev. 1999) (exclusion barring coverage for “injury arising out of assault, battery or assault and battery” not ambiguous for omitting reference to third-party conduct); Capitol Indem. Corp. v. L. Carter Post 4472 Veterans of Foreign Wars, Inc., 225 Ga. App. 354, 355 (1997) (same); Gaspard v. Northfield Ins. Co., 649 So. 2d 979, 982 (La. Ct. App. 1994) (absence of specific language barring coverage for assault and battery by third parties in exclusion precluding coverage for damage “arising out of assault and battery, or out of any act or omission in connection with the prevention or suppression of an assault and battery,” did not render exclusion ambiguous); Hunt v. Capitol Indem. Corp., 26 S.W.3d 341, 344 (Mo. Ct. App. 2000) (exclusion barring coverage for “injury arising out of assault, battery or assault and battery” included assault and battery committed by third parties); Stafford v. T.H.E. Ins. Co., 309 N.J. Super. 97, 104-105 (1998) (exclusion barring coverage for injury “arising out
Similarly, the judge correctly ruled that, where the policy contained a merger provision that stated the policy contained the entire agreement of the parties, and where the intellectual property exclusion was not ambiguous, parol evidence would not be considered to vary the meaning of that exclusion. See Imper Realty Corp. v. Riss, 358 Mass. 529, 534-535 (1970); Kesslen Shoe Co. v. Philadelphia Fire & Marine Ins. Co., 295 Mass. 123, 129 (1936).