SUPERIOR INTEGRATED SOLUTIONS, INC. VS. MERCER INSURANCE COMPANY OF NEW JERSEY, INC. (L-1518-16, MIDDLESEX COUNTY AND STATEWIDE)

S
                                NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
     internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.




                                                        SUPERIOR COURT OF NEW JERSEY
                                                        APPELLATE DIVISION
                                                        DOCKET NO. A-1027-18T4

SUPERIOR INTEGRATED
SOLUTIONS, INC.,

          Plaintiff-Respondent,

v.

MERCER INSURANCE COMPANY
OF NEW JERSEY, INC.,

          Defendant/Third-Party
          Plaintiff-Appellant,

v.

EVANSTON INSURANCE
COMPANY a/k/a MARKEL
CORPORATION,

     Third-Party Defendant-Respondent.
___________________________________

                   Submitted March 16, 2020 – Decided July 10, 2020

                   Before Judges Fasciale and Rothstadt.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Middlesex County, Docket No. L-1518-16.
             Thomas, Thomas & Hafer, LLP, attorneys for appellant
             (Mark R. Sander and Charles W. Skriner, on the briefs).

             The Killian Firm, P.C., attorneys for respondent
             Superior Integrated Solutions, Inc. (Eugene Killian, Jr.
             on the brief).

PER CURIAM

      In this dispute over an insurer's duty to defend, defendant Mercer

Insurance Company of New Jersey, Inc. (Mercer), appeals from the Law

Division's July 10, 2018 order granting summary judgment to Mercer's insured,

plaintiff Superior Integrated Solutions, Inc. (Superior) and to third-party

defendant Evanston Insurance Company a/k/a Markel Corporation (Evanston);

a September 14, 2018 order denying in part Mercer's reconsideration motion;

and from the September 21, 2018 entry of a final judgment against Mercer in

the amount of $337,495.73 in favor of Superior. Superior's complaint arose from

Mercer's refusal to defend Superior against claims made by a competitor, Reynolds

& Reynolds Company (Reynolds) in a 2012 lawsuit. In that action, Reynolds alleged

that Superior infringed upon Reynolds's copyrighted computer program in its

attempt to solicit Reynolds's customers and persuade them to use Superior's services.

      On appeal, Mercer argues that it had no duty to defend Superior under the

"advertising injury" coverage provided in its policy and, even if covered,

Reynolds's claims against Superior were excluded from coverage by other policy

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                                         2
provisions because Superior's acts were intentional and related to computer

programing activities.     In addition, Mercer argues that Superior's activities

began before Mercer's policy was in force, and the motion judge miscalculated

the amount of fees and costs incurred by Superior during the underlying action.

We affirm.

                                         I.

                                         A.

      Superior coordinates and integrates software applications for car dealers '

use in managing their financial and customer information. Superior purchased

a liability policy from Mercer in 2011, which it renewed for an additional year

beginning in November 2012.

     Under section 1 of Part II B of the policy, Mercer was obligated to defend

Superior in any action brought against it for, among other claims, "damages for . . .

advertising injury covered by this insurance." That obligation expressly excluded

"suits seeking damages not covered by this policy or allegations within a suit which

are not covered by this policy."

      Section 11 of Part II B further explained the coverage for an "advertising

injury." It stated the following:

             We pay for the benefit of insureds, up to the limit of
             liability shown in the Declarations or Declarations

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                                         3
             Supplement, those sums that insureds become legally
             liable to pay as damages because of:

             1. Advertising Injury; . . . as described and covered by this
             policy, arising out of a covered offense.

                    ....

             This Supplemental Coverage applies only to the
             following:

             1. Advertising Injury arising out of an offense committed
             in the course of advertising goods, products, or services of
             your business/operations covered by this policy.

      Under the policy, "[a]dvertising injury" is defined as:

             1. Infringement of copyright, slogan, title or trade dress.

             2. Misappropriation of advertising ideas or style of doing
             business.

             3. Oral or written publication of material that: slanders or
             libels a person or organization; disparages a person's or
             organization's goods, products, or services.

             4. Oral or written publication of material that violates a
             person's right of privacy.

                    ....

             Advertising Injury . . . [does] not include bodily
             injury or property damage.

      The policy also contained a number of exclusions from coverage, including

claims for "[i]njury arising out of oral or written publication of material, done by or


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                                          4
at the direction of any insured with knowledge that such is false or such would

violate the rights of another and would inflict the injury," and for "[i]njury arising

out of oral or written publication of material whose first publication took place prior

to the beginning of this policy or such coverage under this policy."

      The policy also excluded "Computer Software Professional Activities." That

exclusion stated the following:

             Under Part II B, the Contractual Supplemental Coverage
             and the Personal Injury/Advertising Injury Supplemental
             Coverages do not apply to damages arising out of the
             rendering of, or failure to render, any professional advice,
             product or service by you or on your behalf in connection
             with the selling, licensing, franchising, creation of,
             modification of, integration of, or furnishing of internet
             access, website design, or computer software including
             electronic data processing programs, downloadable
             programs, designs, specifications, manuals and
             instructions.

                                          B.

     While Mercer's policy was in force, on November 1, 2012, Reynolds filed its

lawsuit against Superior in the United States District Court for the Southern District

of Ohio.1     According to its complaint, Reynolds developed and provided

"automobile dealer management systems" (DMS) to automobile retailers. DMS


1
  See Reynolds & Reynolds Co. v. Superior Integrated Sols., Inc., Docket No.
1:12-cv-00848 (United States District Ct. for the Southern District of Ohio,
Western Division).
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                                          5
allowed dealers to organize and use inventory, customer contacts, financial and

insurance information, and to perform other tasks in order to manage an automotive

dealership. Reynolds's primary DMS was a program called ERA through which its

customers were provided with a "hosted data server" located at either "the

dealership, or 'in the cloud,'" and "a licensed terminal emulator software solution . . .

which serve[d] as a secure gateway through which data [could] be transmitted

between the ERA server(s) and the end-user computers (i.e. "PCs") at the

dealership."

      Reynolds alleged that shortly after providing a July 2012 software update, its

customers began to complain about problems with the system. Reynolds discovered

that Superior made an unauthorized copy of a Reynolds-authored file that Superior

made available to its customers on its website. Reynolds further alleged that

Superior "directed its customers to make such unauthorized copies in violation of

the Reynolds Customer Agreement" and that Superior engaged in a "scheme to make

and distribute unauthorized copies of" Reynolds's file. According to Reynolds,

Superior "actively solicited and induced Reynolds'[s] customers to provide

[Superior] with access to ERA and/or to allow [Superior] to integrate with ERA in

violation of the Reynolds Customer Agreements."




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                                           6
      Reynolds stated that Superior's services had "little or no value to Reynolds'[s]

customers unless [Superior had] access to the DMS and/or [could] integrate to the

DMS."     Reynolds concluded that Superior "actively persuaded Reynolds'[s]

customers to breach their promise to Reynolds, so that [Superior] could peddle their

unauthorized services to these customers for a fee."

      Reynolds also alleged that Superior's copyright infringement and inducement

of Reynolds's customers to breach the Reynolds Customer Agreement "substantially

injured" Reynolds, "[a]t a minimum," by causing "serious technical and performance

problems" for Reynolds's customers and Reynolds having had to divert significant

resources to diagnose and solve the technical problems. It further alleged that

Superior "profited from its theft of Reynolds'[s] intellectual property by selling

integration services made possible only by its copyright infringement and

unauthorized and contractually prohibited hostile integration." (Emphasis added).

The complaint also alleged Superior's "motive was profit-driven." Based on those

allegations, Reynolds sought an injunction and damages for: (1) direct copyright

infringement; (2) contributory copyright infringement; (3) tortious interference with

contract; and (4) violation of the Computer Fraud and Abuse Act, 18 U.S.C. § 1030.2


2
   Reynolds amended its complaint in 2013 to allege that Superior advertised
that it had an allegedly infringing computer program available on its website


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                                         7
                                         C.

    Superior notified Mercer of the lawsuit and demanded coverage and a defense.

Thereafter, in an exchange of communications, Mercer denied coverage and a

defense, citing a number of exclusions in support of its decision.          Superior

challenged Mercer's reliance on the cited exclusions, but Mercer did not change its

position.

    Superior settled Reynolds's claim, without any payment to Reynolds, but only

after having incurred $591,353.83 in costs by defending the action. However,

Superior was able to recover from Evanston $337,500 of its costs under a separate

"Information Technology Professional Liability and Data Breach and Privacy

Liability Insurance Policy" it purchased from Evanston.

      Superior then filed its complaint for breach of contract in this action against

Mercer. It later amended the complaint to include a claim for breach of the duty of

good faith and fair dealing. Mercer filed responsive pleadings, including a third-

party complaint for indemnification and contribution against Evanston, and

Evanston filed its answer denying liability.




that customers could download. However, Superior never gave Mercer a copy
of that amended pleading or renewed its demand for a defense and coverage.
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                                          8
      On April 27, 2018, Superior and Mercer filed motions for summary judgment.

Evanston later filed a cross-motion for summary judgment as to Mercer's claim.

After considering the parties' oral arguments, the motion judge entered an order on

July 10, 2018, granting Superior's motion against Mercer, denying Mercer's motion

against Superior, ordering Mercer to pay Superior $253,853.83 in damages, granting

Evanston's cross-motion for summary judgment against Mercer, and dismissing with

prejudice Mercer's third-party complaint. The judge set forth his reasons in a nearly

thirty-page written decision.

     In his decision, and contrary to Mercer's position, the motion judge found that

Superior's conduct underlying the Reynolds action constituted "advertising" because

Reynolds alleged Superior infringed its copyright by copying, distributing, and

selling Reynolds's program and by instructing Reynolds's customers on how to

install the software, which Superior made available for download on its website. The

motion judge concluded that Reynolds's complaint asserted a claim that Superior

caused Reynolds an "advertising injury," as contemplated by Mercer's policy,

through copyright infringement.

     Next, the judge found that the "Computer Software Professional Activities

Exclusion" relied upon by Mercer was inapplicable. Although the policy stated this

exclusion applied to Part II B, "Part II B lists a host of different areas of coverage,


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                                          9
many of which would be rendered meaningless if this [exclusion] were applied—

including the provision that provides coverage for advertising injuries." Therefore,

because there was "no way to apply [that e]xclusion to the portion of supplemental

coverage that covers advertising injuries without rendering that coverage

meaningless," the judge found the exclusion inapplicable. Although the judge also

found that Mercer's "Statutory Communication Violation Exclusion" applied to deny

coverage as to Reynolds's claims relating to the Consumer Fraud and Abuse Act, the

judge found that Mercer still had a duty to defend Superior because "the duty to

defend will attach" as long as some claims were covered.

    Addressing the claims against Evanston, the judge found that the Evanston

policy and Mercer's policy were to be treated as "co-primary," meaning Mercer

would be responsible for the balance of the defense costs, after Evanston and

Superior's settlement, which amounted to less than the fifty percent Mercer should

have paid. Therefore, Mercer owed Superior $253,853.83. Last, the judge found on

Mercer's motion that Mercer did not breach the implied duty of good faith and fair

dealing.

      Thereafter, Superior filed a motion for an award of attorney's fees under Rule

4:42-9(a)(6) and for entry of final judgment.         Mercer filed a motion for

reconsideration of the July 10, 2018 order. On September 14, 2018, the motion judge


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                                        10
entered an order granting Mercer's motion for reconsideration in part to correct a

mathematical error, thereby reducing Superior's defense costs in the Reynolds action

by $17,931.79, but denying the remainder of the motion, explaining his reasons in

an attached statement in which he found that Mercer's motion was an attempt at "a

second bite of the apple because it disagree[d] with the [c]ourt's decision."

Addressing the amount awarded to Superior, the judge stated that although Mercer

had originally sought a reduction of $31,847.12, it did not challenge Superior's

calculation of the error to be $17,931.79. The judge concluded by stating that Mercer

was required to pay forty-one percent of Superior's defense costs, "far less than it

could have been responsible to pay if the costs had been split equally between

Mercer and Evanston."

      On September 21, 2018, the motion judge granted Superior's application for

attorney's fees, awarded $101,573.69 in such fees, and entered a final judgment in

Superior's favor in the total amount of $337,495.73, inclusive of fees. The judge

stated his reasons in another statement attached to the judgment. This appeal

followed.

                                         II.

      Our review of a ruling on summary judgment is de novo, applying the same

legal standard as the trial court. Lee v. Brown, 

232 N.J. 114

, 126 (2018). Where a


                                                                             A-1027-18T4
                                        11
motion judge determines on summary judgment that an insurer had duty to defend,

"the judge's conclusions and interpretation of the record are not entitled to our

deference." Wear v. Selective Ins., 

455 N.J. Super. 440

, 453 (App. Div. 2018); see

also R. 4:46-2.

                                       III.

      We first address Mercer's contention that summary judgment should not

have been granted to Superior because Reynolds's claims were not covered as

Superior never engaged in "advertising" or they were excluded by the policy's

"intentional acts exclusion," which the motion judge overlooked, the

"personal/advertising injury exclusion," the "Computer Software Professional

Activities Exclusion," and the "prior publication" exclusion.

                                       A.

      First, Mercer argues that the Reynolds's complaint never alleged a covered

"advertising injury" because Reynolds never alleged that Superior engaged in

any "advertising." Citing to different sources, both parties agree that the plain

meaning of "advertising" involves not merely the sale of an item or service, but

also drawing the public's attention to the service or product for the purpose of

attracting customers. Their disagreement focuses on whether the Reynolds's

complaint alleged advertising or only uncovered tortious acts by Superior.


                                                                          A-1027-18T4
                                       12
Primarily relying on the Supreme Court's opinion in Information Spectrum, Inc.

v. Hartford, 

182 N.J. 34

(2004), Mercer contends that "selling" is not

"advertising" and the Reynolds's complaint never alleged any advertising by

Superior sufficient to trigger its duty to defend. We disagree.

      The duty to defend derives from the language of the policy. Hartford Accident

& Indem. Co. v. Aetna Life & Cas. Ins., 

98 N.J. 18

, 22 (1984). Whether that duty

exists is dependent upon "[t]he interpretation of [the] insurance policy upon

established facts[, which] is a question of law for the court to determine." 

Wear, 455 N.J. Super. at 453

. "In considering the meaning of an insurance policy, we interpret

the language 'according to its plain and ordinary meaning.'" Flomerfelt v. Cardiello,

202 N.J. 432

, 441 (2010) (quoting Voorhees v. Preferred Mut. Ins., 

128 N.J. 165

,

175 (1992)). "If the terms are not clear, but instead are ambiguous, they are

construed against the insurer and in favor of the insured, in order to give effect to

the insured's reasonable expectations."

Ibid. Disputes about an

insurer's duty to defend are "generally determined by a

side-by-side comparison of the policy and the complaint, and [the duty] is

triggered when the comparison demonstrates that if the complaint's allegations

were sustained, an insurer would be required to pay the judgment." 

Wear, 455 N.J. Super. at 453

(citing Sears Roebuck & Co. v. Nat'l Union Fire Ins. Co. of


                                                                              A-1027-18T4
                                        13
Pittsburgh, 

340 N.J. Super. 223

, 241-42 (App. Div. 2001)). "In making that

comparison, it is the nature of the claim asserted, rather than the specific details

of the incident or the litigation's possible outcome, that governs the insurer's

obligation."

Ibid. (quoting Flomerfelt, 202

N.J. at 444).

      "The duty to defend is not abrogated by the fact that the claim may have

no merit and cannot be maintained against the insured, either in law or in fact,

because the cause of action is groundless, false, or fraudulent." Sears Roebuck

& 

Co., 340 N.J. Super. at 241-42

. "If the complaint is ambiguous, doubts should

be resolved in favor of the insured and thus in favor of coverage." 

Voorhees, 128 N.J. at 173-74

(citing Cent. Nat'l Ins. v. Utica Nat'l Ins., 

232 N.J. Super. 467

, 470 (App. Div. 1989)). The analysis of the allegations is not limited to the

complaint itself, but rather "facts outside the complaint may trigger the duty to

defend." SL Indus., Inc. v. Am. Motorists Ins., 

128 N.J. 188

, 198 (1992). If

after conducting its analysis, an insurer decides that it will not provide a defense for

a claim, its decision is subject to "an obligation to reimburse for defense costs to the

extent that the defense is later determined to have been attributable to the covered

claims and, if coverage is not determinable in the underlying action, it is later

determined that there was in fact coverage." 

Wear, 455 N.J. Super. at 455

(quoting




                                                                               A-1027-18T4
                                         14
Muralo Co. v. Emp'rs Ins. of Wausau, 

334 N.J. Super. 282

, 289-90 (App. Div.

2000)).

      In Information Spectrum, the insured was accused of direct copyright

infringement (the sale of infringing software) and the copyright holder never

alleged that advertising engendered that injury. Info. 

Spectrum, 182 N.J. at 36

-

38. In affirming our earlier opinion, Information Spectrum, Inc. v. Hartford,

364 N.J. Super. 54

(App. Div. 2003), the Court held "[f]or the 'advertising injury'

provision[s] of [a] policy to apply, the harm alleged must be 'caused by' the

advertising act itself and not by the underlying purloinment." Info. 

Spectrum, 182 N.J. at 38

.

      Quoting with approval from our opinion, the Court stated that in order to

            resolv[e] whether a duty to defend attaches in this
            context requires not only that the injury fall within one
            of the four categories [defined in the policy] (which
            only the copyright infringement does) but also a
            determination of whether the claimant asserts that an
            injury was caused by the insured's advertising of its
            good[s] and services.

            [Id. at 37 (quoting Info. 

Spectrum, 364 N.J. Super. at 66

).]

"[T]he advertising activities must cause the injury—not merely expose it." Ibid.

(quoting Info. 

Spectrum, 364 N.J. Super. at 66

). Under Information Spectrum,

the test is whether the relationship between the advertising activity and the


                                                                           A-1027-18T4
                                       15
copyright holder's injury is causal or incidental.

Id. at 38.

If it is causal, there

is coverage; if the advertising activity is only incidental, then there is no

coverage.

Ibid. In Information Spectrum,

an insured under a policy with similar

provisions was sued for selling a counterfeit "computerized police reporting

system" and demonstrating that system at a police convention.3 Info. 

Spectrum, 364 N.J. Super. at 59-61

. That caused the filing of a lawsuit against the insured

for "infring[ing a] copyright, violat[ing] the Lanham Act (15 U.S.C. § 1125(a)),

misappropriat[ing]     trade     secrets, . . .   breach[ing]    the     marketing

agreements[,] . . . quantum meruit, fraud, tortious interference with contractual

and prospective economic relationships, and intentional spoliation of evidence."

Id. at 61.

The pleading "alleged a claim of 'reverse passing off,'" and stated that

the insured "marketed, and continues to market, its computer assisted dispatch

and reporting system by misrepresenting it as a product of [the insured's] sole



3
  Although "[w]e assume[d] without deciding that such a demonstration would
constitute an act of advertising within the meaning of this policy[, s]ee Elan
Pharm. Research Corp. v. Emp'rs Ins. of Wausau, 

144 F.3d 1372

, 1377 (11th
Cir. 1998) (defining advertising as '[a]ny oral, written, or graphic statement
made by the seller in any manner in connection with the solicitation of
business.')," we concluded the demonstration occurred outside the policy period
and therefore was not a covered advertising injury. Info. Spectrum, 364 N.J.
Super. at 66.
                                                                            A-1027-18T4
                                        16
design and development."

Id. at 65

(alteration in original). The copyright holder

"never alleged that the insured advertised the offending product."                  Info.

Spectrum, 182 N.J. at 38

.

      "We conclude[d] that [while] only the copyright infringement claim f[ell]

within the policy's enumerated offenses[,] . . . because the [pleading]

contain[ed] no assertion that any of the pleaded injuries, including the copyright

infringement claim, were caused by any advertising by the insured, no obligation

to defend was triggered." Info. 

Spectrum, 364 N.J. Super. at 63

. As we stated,

and the Supreme Court affirmed, "falsely advertising that a product created by

another was designed and manufactured by the advertiser," was not an

advertising injury under the policy.

Id. at 65

. Further, we noted that in order

for advertising injury coverage to apply, the underlying action must allege "a

discre[te] piece of advertising."

Id. at 66

(alteration in original).

      Contrary to Mercer's argument here, what occurred in Information

Spectrum is different than this case. Reynolds alleged that Superior profited from

its theft of Reynold's intellectual property and was able to sell its integration services

"only by its copyright infringement and unauthorized and contractually prohibited

hostile integration." It did not allege that Superior was representing Reynolds's

product as its own. Rather, through its infringement, Reynolds alleged that Superior


                                                                                 A-1027-18T4
                                          17
was able to inform potential customers that they would be able to continue to

integrate with Reynolds's system while using Superior's services.

     Comparing the plain language of the policy to Reynolds's allegation that

Superior "profited from its theft of Reynolds'[s copyrighted] intellectual property by

selling integration services made possible only by its copy infringement," we

conclude that Reynolds's complaint asserted a "discrete piece of advertising" giving

rise to a covered claim of an advertising injury which triggered Mercer's duty to

defend. Here, not only was Superior charged with "purloining" Reynolds's protected

intellectual property, but also with soliciting customers services that it would not

have been able to promote without including in its information that they could

interface with Reynolds's program while using Superior's services.             Because

Reynolds specifically claimed that Superior infringed by incorporating Reynolds's

protected intellectual property in making its product known to Reynolds's customers

and others, Superior demonstrated the requisite causal link between the advertising

activity and the offense (copyright infringement). That "advertising," and the

infringement employed in that advertising gave rise to colorable claim of an

"advertising injury" under Mercer's policy. See Elan Pharm. Research 

Corp., 144 F.3d at 1377

(stating that "[a]ny oral, written, or graphic statement made by the seller

in any manner in connection with the solicitation of business" constitutes advertising


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                                         18
(quoting Black's Law Dictionary 54 (6th ed. 1990))); see also 

Flomerfelt, 202 N.J. at 444

(stating that "if a complaint includes multiple or alternative causes of action,

the duty to defend will attach as long as any of them would be a covered claim and

it continues until all of the covered claims have been resolved").

     Moreover, although an insured's advertising activities must be a cause of the

claimant's injury, it does not necessarily mean such advertising activities must be the

only cause of the injury. Info. 

Spectrum, 182 N.J. at 37

. Information Spectrum does

not suggest that the infringement must be contained within the "four corners" of the

advertisement.

     Also, the language of the insurance policy does not demand that copyright

infringement occur in the advertising itself. To the contrary, the language of the

policy is broad, defining "advertising injury," in part, as:         "[i]nfringement of

copyright, slogan, title or trade dress."

                                                 B.

     Mercer next argues that even if Reynolds's complaint sufficiently alleged that

Superior advertised, the complaint never alleged that the copyright infringement was

caused by plaintiff's advertising. We find no merit to this assertion.

     "[I]n ascertaining whether a duty to defend has been triggered by a claim against

the insured, the claim must be examined for allegations of injuries caused by the


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                                            19
insured's advertising." Info. 

Spectrum, 364 N.J. Super. at 66

. "[C]overage under

the advertising injury provision requires 'a causal connection between the

advertising and the injury . . . .'"

Id. at 65

-66 (quoting Tradesoft Techs., Inc. v.

Franklin Mut. Ins., 

329 N.J. Super. 137

, 152 (App. Div. 2000)).

     Here, Reynolds's complaint alleged that but for Superior's infringement it would

not have had any ability to successfully solicit Reynolds's customers, who already

had Reynolds's programs in place. Those allegations satisfied the requirement that

the injury be causally related. Whether those allegations are later proven to be untrue

is irrelevant to our determination. Because the duty to defend is broader than the

duty to indemnify, see Hofing v. CNA Ins., 

247 N.J. Super. 82

, 88 (App. Div. 1991),

we will not relieve an insurer of the duty to defend where a "'potentially coverable'

claim[] require[s] a defense," Abouzaid v. Mansard Gardens Assocs., LLC, 

207 N.J. 67

, 80 (2011) (quoting Stafford v. T.H.E. Ins., 

309 N.J. Super. 97

, 103 (App. Div.

1998)), regardless of whether "the cause of action stated cannot be maintained

against the insured either in law or in fact—in other words, because the cause is

groundless, false or fraudulent."

Id. at 81

(quoting Danek v. Hommer, 

28 N.J. Super. 68

, 77 (App. Div. 1953), aff'd, 

15 N.J. 573

(1954)).




                                                                              A-1027-18T4
                                         20
                                           C.

      Our conclusion that the claims were covered as "advertising injuries,"

requires us to next consider whether the claims were otherwise excluded by

other provisions of the policy. We conclude they were not excluded.

       "[I]f an excluded claim is made, the insurer has no duty to undertake the

expense and effort to defeat it, however frivolous it may appear to be." 

Wear, 455 N.J. Super. at 456

(quoting Grand Cove II Condo. Ass'n v. Ginsberg, 

291 N.J. Super. 58

, 72 (App. Div. 1996)). However, "exclusions must be narrowly

construed; the burden is on the insurer to bring the case within the exclusion ."

Flomerfelt, 202 N.J. at 442

(quoting Am. Motorists Ins. v. L-C-A Sales Co., 

155 N.J. 29

, 41 (1998)). "[E]xclusions are ordinarily strictly construed against the

insurer, and if there is more than one possible interpretation of the language,

courts apply the meaning that supports coverage rather than the one that limits

it."

Ibid. (citations omitted). Courts

will find "a genuine ambiguity to arise where the phrasing of the

policy is so confusing that the average policyholder cannot make out the

boundaries of coverage." 

Wear, 455 N.J. Super. at 454

(quoting Weedo v.

Stone-E-Brick, Inc., 

81 N.J. 233

, 247 (1979)).              But, "[f]ar-fetched




                                                                         A-1027-18T4
                                      21
interpretations of a policy exclusion are insufficient to create an ambiguity

requiring coverage."

Ibid. (quoting Stafford, 309

N.J. Super. at 105).

      Moreover, exclusions "are presumptively valid and enforceable 'if they

are "specific, plain, clear, prominent, and not contrary to public policy."'"

Ibid. at 454 (quoting


Flomerfelt, 202 N.J. at 441

).           "[I]f the words used in an

exclusionary clause are clear and unambiguous, 'a court should not engage in a

strained construction to support the imposition of liability.'" Mem'l Props., LLC v.

Zurich Am. Ins., 

210 N.J. 512

, 528 (2012) (quoting 

Flomerfelt, 202 N.J. at 442

).

"Courts must be careful, however, 'not to disregard the "clear import and intent"

of a policy's exclusion . . . .'"   

Wear, 455 N.J. Super. at 454

(alteration in

original) (quoting 

Flomerfelt, 202 N.J. at 442

).

                                         (i).

     With those guiding principles in mind, we turn to Mercer's argument that its

"intentional acts" exclusion relieved it of its duty to defend. The exclusion appeared

in section 11 of Part II B and stated the following:

             Advertising Injury Exclusions.

             We do not insure any of the following:

             1. Injury arising out of oral or written publication of
                material, done by or at the direction of any insured with
                knowledge that such is false or such would violate the
                rights of another and would inflict the injury.

                                                                              A-1027-18T4
                                         22
             [Emphasis added.]

      Mercer contends that this provision excluded coverage for claims arising out

of Superior's "intentional acts" and that since "it is clear that all of Reynolds's claims

in its [c]omplaint alleged intentional conduct" by Superior, the claim was excluded

and therefore Mercer had no duty to defend. We disagree.

      The exclusion states that intentional injuries, rather than intentional acts,

caused by the insured are excluded from coverage where publication is made with

knowledge it is false or violative of another's rights. The burden was on Mercer to

establish that Reynolds's complaint alleged an intentionally caused injury. See

Hammer v. Thomas, 

415 N.J. Super. 237

, 249 (App. Div. 2010) (stating that the

insurer has the burden to bring the matter within the policy exclusion). Mercer failed

to meet its burden because it cannot cite to any allegation made by Reynolds that

Superior intended to injure Reynolds with its conduct.

      A claimant's mere allegation of intentional harm does not alone justify an

insurer's refusal to provide a defense. In order to bring the insured's conduct within

the exclusion there must be evidence that the insured subjectively intended to injure

the claimant. See SL 

Indus., 128 N.J. at 212

. "Absent exceptional circumstances

that objectively establish the insured's intent to injure, we will look to the insured's

subjective intent to determine intent to injure." 

Voorhees, 128 N.J. at 185

.


                                                                                 A-1027-18T4
                                          23
      Here, Reynolds never alleged that it suffered an intentional injury. Reynolds

never alleged Superior intended to harm Reynolds. Rather, the complaint stated

Superior's copyright infringement was profit-driven. Reynolds alleged it was injured

when Superior, while promoting its services in pursuit of realizing profits, used

Reynolds's protected intellectual property to assure customers they could still use

Reynolds's system. The exclusion did not apply to bar coverage or relieve Mercer

of its duty to defend.

      We are not persuaded by Mercer's contention that the allegation of Superior's

intentional copyright infringement was sufficient to establish an intentional injury.

The coverage provided for an "advertising injury," in the form of copyright

infringement, did not limit the coverage to only negligent acts. Even if it did, by its

nature, copyright infringement is a strict liability tort, and intent to injure is not

relevant. See Major League Baseball Promotion Corp. v. Colour-Tex, Inc., 729 F.

Supp. 1035, 1039 (D.N.J. 1990); see also Shapiro, Bernstein & Co. v. H. L. Green

Co., 

316 F.2d 304

, 308 (2d Cir. 1963). To allege a claim for copyright infringement,

a plaintiff must state: "(1) ownership of a valid copyright; and (2) unauthorized

copying of original elements of plaintiff's work." Kay Berry, Inc. v. Taylor Gifts,

Inc., 

421 F.3d 199

, 203 (3d Cir. 2005). Intent is not an element of the claim.




                                                                               A-1027-18T4
                                         24
                                        (ii).

       Next, we address Mercer's argument that coverage was excluded under the

Computer Software Professional Activities Exclusion.         As the motion judge

correctly found,4 that exclusion does not exclude coverage for Superior's alleged

conduct. Construing the exclusion narrowly, this exclusion applies specifically to

Superior's rendering of service or advice to its customers or other covered persons.

It does not apply to a claim made by a third party for injuries caused by Superior

where Superior was not selling computer software programs to that party.

    Moreover, as the motion judge also found, adopting Mercer's interpretation would

render numerous coverages provided under in Part II B meaningless, including the

one provided for an advertising injury. According to the judge, there was "no way

to apply [that e]xclusion to the portion of supplemental coverage that covers

advertising injuries without rendering that coverage meaningless." "A contract

'should not be interpreted to render one of its terms meaningless.'" Porreca v. City

of Millville, 

419 N.J. Super. 212

, 233 (App. Div. 2011) (quoting Cumberland Cty.




4
  Mercer misconstrues the motion judge's conclusion, stating he concluded that
the policy would be left covering nothing if the computer software professional
activities exclusion applied. However, the motion judge never stated the policy
would cover nothing. Instead, he concluded that the coverages listed in Part II
B would be meaningless if this exclusion applied.
                                                                            A-1027-18T4
                                        25
Improvement Auth. v. GSP Recycling Co., 

358 N.J. Super. 484

, 497 (App. Div.

2003)).

                                         (iii).

     Next, Mercer argues it was justified in denying coverage based on its policy's

"prior publication" exclusion.5 The "prior publication" exclusion states that Mercer

does not insure "[i]njury arising out of oral or written publication of material whose

first publication took place prior to the beginning of [the] policy or such coverage

under [the] policy." Mercer contends that an advertisement published by Superior

on its website in 2009 triggered the "prior publication" exclusion, thus warranting

relief from its duty to defend the 2012 complaint. We find no merit to this contention

as Reynolds never alluded to the 2009 publication and, in any event, it has no relation

to the copyright infringement alleged in Reynolds's 2012 complaint. In order for

Mercer's prior publication exclusion to apply, the injury alleged in the complaint had

to have arisen out of those prior publications. There is no evidence that it did.

                                         III.

     Mercer also contends that the motion judge did not make adequate findings of

fact and conclusions of law when he approved the total amount of Superior's defense



5
  Although defendant raised this exclusion below, the motion judge did not
address it in his statement of reasons.
                                                                               A-1027-18T4
                                         26
costs in the Reynolds action, and that he did not properly allocate Mercer's

responsibility between covered and non-covered claims. We disagree.

             "The general rule is that when the insurer has wrongfully
             refused to defend an action and is then required to
             reimburse the insured for its defense costs, its duty to
             reimburse is limited to allegations covered under the
             policy, provided that the defense costs can be apportioned
             between covered and non-covered claims."

             [SL 

Indus., 128 N.J. at 214-15

.]

     The burden of establishing the claimed fees' reasonableness is on the insured,

but "the burden of [proving] . . . whether those fees can be allocated and, more

importantly, how they should be allocated, . . . fall[s] upon the insurer who allowed

the difficulties of allocation to accrue through its refusal to defend." Hebela v.

Healthcare Ins., 

370 N.J. Super. 260

, 280 (App. Div. 2004).

     Here, Mercer never challenged the reasonableness of Superior's revised

defense cost. Rather, Mercer challenged Superior's initial calculations, which were

later corrected in response to Mercer's reconsideration motion. Mercer never raised

any issue as to allocation and offered no proof suggesting a different allocation than

determined by the judge. Under these circumstances, Mercer failed to meet its

burden. We have no cause to disturb the result.




                                                                              A-1027-18T4
                                        27
                                            IV.

     Finally, because we agree with the motion judge's granting Superior summary

judgment, we need not address Mercer's arguments about the denial of its motion for

reconsideration of that judgment.

     Affirmed.




                                                                           A-1027-18T4
                                       28

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