- violation of the federal Lanham Act, 28 U.S.C. § 1125(a)(1);

- unauthorized publication of name or likeness in violation of Fla. Stat. § 540.08;

- common law invasion of privacy-misappropriation;

- civil theft;

- common law conversion;

- violation of the Florida Deceptive and Unfair Trade Practices Act (the “FDUTPA”);

- unfair trade competition;

- defamation;

- fraudulent misrepresentation;

- unjust enrichment;

- negligence and respondeat superior; and

- negligence.

The Princeton Excess and Surplus Lines Insurance Company subsequently brought a declaratory judgment action seeking a determination as to whether CGL policies issued by Princeton to Dirty Martini required Princeton to defend and indemnify Dirty Martini in the underlying action. In particular, Princeton sought a declaration that the policies' “Field of Entertainment” exclusion precluded the duty to defend or indemnify Dirty Martini for the claims in the underlying action.

For its part, Dirty Martini argued that the Field of Entertainment exclusion excluded entire categories of coverage that were specifically provided for in the policy and, therefore, created an ambiguity that had to be interpreted in favor of coverage. Dirty Martini also argued that the exclusion made coverage illusory and, therefore, was ineffective.

The insurer moved for judgment on the pleadings.

The Princeton Policies

Coverage B of the policies provided:

Section I – Coverages, Coverage B Personal and Advertising Injury, 1. Insuring Agreement a.:

We will pay those sums that the insured becomes legally obligated to pay as damages because of “personal and advertising injury” to which this insurance applies. We will have the right and duty to defend the insured against any “suit” seeking those damages. However, we will have no duty to defend the insured against any “suit” seeking damages for “personal and advertising injury” to which this insurance does not apply.

The policies provided:

“Personal and advertising injury” means injury, including consequential “bodily injury”, arising out of one or more of the following offenses:

a. False arrest, detention or imprisonment;

b. Malicious prosecution;

c. The wrongful eviction from, wrongful entry into, or invasion of private occupancy of a room, dwelling or premises that a person occupies, committed by or on behalf of its owner, landlord or lessor;

d. Oral or written publication, in any manner, of material that slanders or libels a person or organization or disparages a person's or organization's goods, products or services;

e. Oral or written publication, in any manner, of material that violates a person's right of privacy;

f. The use of another's advertising idea in your “advertisement”; or

g. Infringing upon another's copyright, trade dress or slogan in your “advertisement”. 

They also provided:

“Advertisement” means a notice that is broadcast or published to the general public or specific market segments about your goods, products or services for the purpose of attracting customers or supporters. For the purposes of this definition:

a. Notices that are published include material placed on the Internet or on similar electronic means of communication; and

b. Regarding web-sites, only that part of a web-site that is about your goods, products or services for the purposes of attracting customers or supporters is considered an advertisement. 

An endorsement entitled:

General Policy Changes

provided:

EXCLUSION- FIELD OF ENTERTAINMENT

This insurance does not apply to any loss, claim, “suit”, cost, expense, or liability for damages, directly or indirectly based on, attributable to, arising out of, involving, resulting from or in any way related to:

a. Actual or alleged activity which is claimed to be an intellectual property infringement or violation of any of the following rights or laws: copyright, patent, trade dress, trade secrets, trade name, trademark or service mark;

b. Actual or alleged invasion of privacy;

c. Actual or alleged libel, slander, or any form of defamation;

d. Actual or alleged unauthorized use of titles, slogans, names, formats, ideas, characters, artwork, theme, plots or other material;

e. Actual or alleged infringement of copyright or common law rights in literary, artistic or musical material, or actual or alleged infringement of literary, artistic or musical rights codes … 

The district court, applying Florida law, denied the insurer's motion.

In its decision, the district court explained that, as written, the Field of Entertainment exclusion excluded coverage for injuries arising out of anything listed in (d) through (g) listed under Personal and Advertising Injuries, “directly contradict[ing] the coverage for advertising injury.”

The district court then declared that the exclusion “essentially eliminate[d] all advertising injury coverage.” It said that because the policies provided that they covered advertising injury, and then the exclusion provided that advertising injury was excluded, the provisions were “completely contradicted.” It stated that the exclusion did not carve out a “particular type of advertising injury” – such as those that violated a statute – but, instead, excluded “all advertising injury.”

Giving effect to the exclusion, the district court held, would make the advertising injury coverage “illusory,” which was prohibited by Florida law.

The district court concluded that the result should be no different simply because the exclusion was in an endorsement rather than in the policies themselves.

The case is Princeton Express and Surplus Ins. Co. v. DM Ventures USA LLC, No. 15-CV-81685-MIDDLEBROOKS/BRANNON (S.D. Fla. July 19, 2016).