Transportation Ins. Co. v. Pennsylvania Mfrs.' Ass'n Ins. Co., No. 08-4815, 2009 WL 3022151 (3d Cir. (Pa.) Sept. 21, 2009)
Consistently injurious publications allegedly first began in 1999, pre-dating PMIC’s insurance coverage as respects otherwise potentially covered personal and advertising injury claims for patent infringement.
As all relevant conduct was injurious and was the same conduct, Maddox v. St. Paul Fire & Marine Ins. Co., 179 F. Supp. 2d 527, 530 (W.D. Pa. 2001) compelled a finding that PMIC was not obligated to pay half the cost of defense incurred in the underlying suit.
Disparagement coverage was implicated by allegations that G & B had been contacting customers and clients of POHL and misrepresenting that “POHL [was] infringing [on] Norfolk [Southern’s] [p]atents”; “Pohl [was] selling railroad switch stand designs that [were] stolen from G & B and Norfolk [Southern]”; and “past and future purchase of Pohl's switch stands constituted [patent] infringement ... for which those customers and clients would be liable....” Id. at *2.
The court reversed the district judge’s finding, which had concluded that both insurers were equally obligated to pay defense fees.
