Everest Indem. Ins. Co. v. Allied Int'l Emerg., LLC No. 4:08-CV-678-Y, 2009 WL 2030421 (N.D. Tex. July 14, 2009)
Applying Texas law, none of the operative offenses were within the policy. Claims for copyright, trade dress or slogan were implicated, but not asserted. And that the offense arising out of the insured’s business must in turn cause personal or advertising injury. The term “arising out of” requires proof of “but-for causation”. Utica Nat’l Ins. Co. v. Am. Indem. Co., 141 S.W.3d 198, 203 (Tex.2004). Where there was no
causal connection between the alleged patent infringement of the 336 Patent and any advertisement by defendants, this was sufficient to bar coverage. Citing Hyman v. Nationwide Mut. Ins. Co., 304 F.3d 1179, 1191 (11th Cir. 2002) (stating, in interpreting a policy with similar language to that at issue here, that “the injury for which coverage is sought must be caused by the advertising.”). Id. at *6.
There were no enumerated offenses arising out of the insured, Allied’s business even if the causal nexus could be satisfied. Looking to the other operative offense, the court observed:
[T]he underlying Suit does not allege that Defendants made use of another’s advertising idea.
Id. at *7.
Notably, nothing about the character with patent in issue is explained that would make an advertising idea implicated as the pertinent patent covers the method for fighting fire in confined areas using nitrogen expanded foam.
