Thane Int'l, Inc. v. Hartford Fire Ins. Co., No. EDCV 06-1244 VAP (OPx), 2009 WL 453106 (C.D. Cal. Feb. 19, 2009)
The seventh cause of action in the Atkins Cross-Complaint alleged a claim against Thane and IMT for invasion of privacy, misappropriation of name and likeness, and alleged with specificity,
“Without Atkins' valid authority or informed consent, IMT and Thane have invaded and continue to invade Atkins' privacy by appropriating Atkins' name and likeness by using Atkins' name and image on the EFL package and Atkins' name and image in at least one infomercial which was aired on television. Atkins' image on the EFL package and in the infomercial is readily identifiable in that any person viewing these images with the naked eye can reasonably determine that the person depicted in these images is Atkins because Atkins' face is clearly visible and distinguishable, the image depicting Atkins on the EFL package is situated next to Atkins name on the package and the image depicting Atkins in the EFL infomercial is shown with a verbal statement of Atkins' name.”
Id. at *3.
A duty to defend these fact assertions was owed by Hartford.
All causes of action were covered because the defendant refused to defend citing, Buss v. Superior Court, 16 Cal. 4th 35, 48-50 (1997).
The fair market value of the goods, i.e., the EFL units, or $492,793.62, that Thane agreed to relinquish in consideration for the settlement of all claims against it in the underlying lawsuit is recoverable as damages arising from Defendants’ breach. Earth Elements, Inc. v. Nat'l Am. Ins. Co. of Calif., 41 Cal.App.4th 110, 116-17, 48 Cal.Rptr.2d 399 (1995); McMahan's of Santa Monica v. City of Santa Monica, 146 Cal.App.3d 700-701 (1983), disapproved on other grounds, Bunch v. Coachella Valley Water Dist., 15 Cal.4th 432, 63 Cal.Rptr.2d 89, 935 P.2d 796 (1997).
Id. at *6.
The court also found 10% prejudgment interest was recoverable on the fair market value of the goods relinquished as well as on defense fees from the date incurred.
