Euroconcepts, Inc. v. Hartford Casualty Insurance Co , 378 F. App'x 716 ( 2010 )

FILED
NOT FOR PUBLICATION MAY 11 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
EUROCONCEPTS, INC., a California No. 08-56515
corporation; JOSEPH ELIHU; PARVIZ
ELIHU; DANIEL ELIHU; ALBERT D.C. No. 2:05-cv-04042-CAS-
ELIHU; HAYADEH ELIHU; AMIR PJW
CONSTRUCTION INC., a California
corporation,
MEMORANDUM *
Plaintiffs - Appellants,
v.
HARTFORD CASUALTY INSURANCE
COMPANY, an Indiana corporation,
Defendant - Appellee.
Appeal from the United States District Court
for the Central District of California
Christina A. Snyder, District Judge, Presiding
Argued and Submitted April 5, 2010
Pasadena, California
Before: KOZINSKI, Chief Judge, D.W. NELSON, Circuit Judge, and GERTNER,
District Judge.**
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Nancy Gertner, United States District Judge for the
District of Massachusetts, sitting by designation.
Unlike some commercial general liability policies, the Policy’s definition of
advertising does not include information “directed at specific market segments.”
Hameid v. Nat’l Fire Ins. of Hartford, 71 P.3d 761, 766 n.3 (Cal. 2003). And,
rather than broadcast a message out to the general public, Euroconcepts, Inc.
(“Euroconcepts”) passively distributed the flyer at issue only to those potential
customers who happened to walk into its showroom. The flyer thus cannot fall
within the Policy’s definition of advertising, see id. at 766, 769–70; Rombe Corp.
v. Allied Ins. Co., 27 Cal. Rptr. 3d 99, 107 (Cal. Ct. App. 2005), so Hartford
Casualty Insurance Company (“Hartford”) had no duty to defend the underlying
action. See Montrose Chem. Corp. v. Superior Court, 861 P.2d 1153, 1157 (Cal.
1993); Gray v. Zurich Ins. Co., 419 P.2d 168, 176 n.15 (Cal. 1966).
We further reject Euroconcepts’ argument that Hartford had a duty to defend
because some suppliers who installed products in the allegedly infringing residence
used photographs of those products in magazines or other publications. The Policy
expressly covers only Euroconcepts’ own advertisements.
The underlying action alleged only that Euroconcepts palmed off
copyrighted designs. Hartford therefore had no duty to defend based on the
Policy’s coverage of injury from the “publication of material that slanders or libels
a person or organization or disparages a person’s or organization’s goods, products
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or services.” See Microtec Research, Inc. v. Nationwide Mut. Ins. Co., 40 F.3d
968, 972 (9th Cir. 1994).
AFFIRMED.
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