Netscape Communications Corp. v. Federal Ins. Co., No. 08-15120, 2009 WL 2634945 (9th Cir. (Cal.) Aug. 27, 2009)
The court reversed the finding in favor of St. Paul Mercury. The court agreed that there was a personal injury offense implicated because “AOL had made known to any person or organization material that violated a person’s right of privacy.” It reasoned:
Although the underlying claims against AOL were not traditional breach of privacy claims, given that coverage provisions are broadly construed, . . . the underlying complaints sufficiently alleged that AOL had intercepted and internally disseminated private online communications. While some cases have stated that coverage is triggered by a disclosure to a third party, they do so in dicta while deciding whether the personal injury clause covers invasion of “seclusion privacy” claims. See, e.g., ACS Sys., Inc. v. St. Paul Fire & Marine Ins. Co., 53 Cal.Rptr.3d 786, 795-96 (Cal.Ct.App.2007).
Id. at *1.
The court found that an exclusion relied upon by the district court to avoid a defense was too broadly interpreted.
The SmartDownload utility does not provide an Internet connection, and, in fact, is useless without one; AOL therefore did not provide Internet access in making the SmartDownload utility available. Since the other enumerated activities included in the “online activities” exclusion also do not apply to the SmartDownload program, we reverse the district court's grant of summary judgment and remand for further proceedings.
Id. at *1.
