Keating Dental Arts, Inc. v. Hartford Casualty Insurance Co , 627 F. App'x 671 ( 2015 )

FILED
NOT FOR PUBLICATION
DEC 24 2015
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
KEATING DENTAL ARTS, INC., a No. 13-56775
California Corporation,
D.C. No. 8:13-cv-00419-DOC-AN
Plaintiff - Appellant,
v. MEMORANDUM*
HARTFORD CASUALTY INSURANCE
COMPANY; SENTINEL INSURANCE
COMPANY, LTD.,
Defendants - Appellees.
Appeal from the United States District Court
for the Central District of California
David O. Carter, District Judge, Presiding
Argued and Submitted December 10, 2015
Pasadena, California
Before: REINHARDT, LUCERO,** and NGUYEN, Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Carlos F. Lucero, Circuit Judge for the U.S. Court of
Appeals for the Tenth Circuit, sitting by designation.
Keating Dental Arts (“Keating”) appeals the district court’s entry of
summary judgment in favor of Hartford Casualty Insurance Company (“Hartford”)
and Sentinel Insurance Company, Ltd. (“Sentinel”). Exercising jurisdiction under
28 U.S.C. § 1291, we affirm.
The district court held that a liability policy issued by Hartford to Keating
excused Hartford from defending Keating in an underlying lawsuit. We review de
novo the interpretation of the insurance policy and make an “independent
determination of the meaning of the relevant contract language.” Conestoga Servs.
Corp. v. Exec. Risk Indem., Inc., 312 F.3d 976, 981 (9th Cir. 2002).
At the time of the underlying suit, Keating was insured under a general
liability policy from Hartford. The policy provided liability coverage for “personal
and advertising injury” arising out of “publication of material that . . . disparages a
person’s or organization’s goods, products, or services.” However, the policy did
“not apply to . . . [p]ersonal and advertising injur[ies] . . . [a]rising out of any
violation of any intellectual property rights such as copyright, patent, trademark,
trade name, trade secret, service mark or other designation of origin or
authenticity” (the “IP exclusion”).
In the underlying lawsuit, all of the stated claims against Keating are based
on trademark infringement, and all of the factual allegations in the complaint track
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the elements of a trademark claim. Keating argues that the facts alleged are also
sufficient to support an implied disparagement claim. Assuming, but not deciding,
that the underlying complaint supports an implied disparagement claim, any such
claim nonetheless arises out of potential consumer confusion caused by the alleged
trademark violation. See, e.g., Indust. Indem. Co. v. Apple Computer, Inc., 79
Cal.App.4th 817, 833 (1999). Construing the policy coverage exclusion narrowly,
MacKinnon v. Truck Ins. Exchange, 73 P.3d 1205, 1213 (Cal. 2003), we hold the
IP exclusion exempts Hartford from defending against such claims.
The judgement of the district court is AFFIRMED.
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