• The Hanover Ins. Co. v. Urban Outfitters, Inc.
  • January 6, 2016 | Author: Paul R. Walker
  • Law Firm: Thomas, Thomas & Hafer LLP - Harrisburg Office
  • United States Court of Appeals for the Third Circuit

    No. 14-3705, 2015 WL 6405763

    Decided: October 23, 2015

    Third Circuit upholds finding of no duty to defend insured for alleged advertising injury, based on exclusions for publication before start of policy period, and observes insured cannot obtain coverage for known loss prior to policy period.

    Background


    Navajo Nation sued Urban Outfitters in New Mexico for trademark infringement, and the Complaint alleged that infringement since at least 2009. Hanover provided commercial general liability insurance to Urban Outfitters beginning July 7, 2010 which included coverage for “personal and advertising injury,” but the policy excluded liability “arising out of oral or written publication of material whose first publication took place before the beginning of the policy period.”

    Hanover provided a defense under reservation and filed a declaratory judgment action in the Eastern District of Pennsylvania. Hanover’s motion for judgment on the pleadings was granted with the District Court finding that, because the alleged injuries stemmed from advertisements published prior to the policy inception date, any resulting injury fell within the “prior publication” exclusions.

    Holding

    The Third Circuit affirmed. Urban Outfitters argued on appeal that subsequent publications were covered as “fresh wrongs.” Finding no Pennsylvania case law on point, the Court looked to a Ninth Circuit case in which that court defined “fresh wrongs” as “new matter,” not materially and substantially similar to prior publications. Using this standard, the Third Circuit found the initial publications shared a common objective with those that followed, although the publications were not identical. It held that Hanover had no duty to defend Urban Outfitters. The Court also observed that an insured cannot insure against something that has already begun and which is known to have begun.