United States District Court, S.D. Florida
CECILIA M. ALTONAGA UNITED STATES DISTRICT JUDGE
CAUSE came before the Court on
Plaintiff/Counter-Defendant, AIX Specialty Insurance
Company's Motion for Final Summary Judgment [ECF No. 61],
submitted with a Statement of Material Facts ("PL's
SOF") [ECF No. 62]. The Court has carefully reviewed the
Complaint [ECF No. 1], the parties' submissions,
record, and applicable law.
an insurance coverage dispute. (See generally Mot.)
Plaintiff seeks summary judgment declaring its Commercial
Lines Policy ("Insurance Policy") [ECF No. 1-3]
does not provide coverage for the claims asserted in an
underlying lawsuit - Dginguerian v. Porky's
Cabaret, Case No. 18-cv-22231 (S.D. Fla. filed June 5,
2018) ("Underlying Litigation") - brought by the
Model Defendants against Cabaret. (See Mot. 2).
Cabaret and the Model Defendants argue the Model
Defendants' claims are covered. (See generally
Models' Resp.; Cabaret Resp.).
The Underlying Litigation
Model Defendants commenced the Underlying Litigation against
Cabaret on June 5, 2018, each stating separate claims for (1)
violations of the Lanham Act, 15 U.S.C. section 1125(a), for
"False Advertising" and "False
Endorsement" (Counts I and II); (2) violation of section
540.08, Florida Statutes, "Right of Publicity" and
"Unauthorized Misappropriation of Name/Likeness"
(Count III); (3) violation of the "Common Law Right of
Publicity" for "Unauthorized Misappropriation of
Name and Likeness" (Count IV); (4) conversion (Count V);
and (5) unjust enrichment (Count VI). (PL's SOF ¶ 3;
see generally Complaint, Underlying Litigation
(hereinafter the "Underlying Complaint") [ECF No.
1] ¶ 18-cv-22231). The Model Defendants claim Cabaret
used their images to promote its business without their
authorization. (See PL's SOF ¶ 4). The
parties agree the claims of only one Model Defendant - Sarah
Underwood - fall within the time period covered by the
Insurance Policy. (See Cabaret Resp. 2; Models'
Resp. 4 n.2; Underlying Complaint 221-233).
Underwood is a model, actress, and television host.
(See Underlying Compl. ¶¶ 281, 283). She
has modeled for Playboy magazine and appeared in
films and several episodes of reality television programs.
(See Id . ¶¶ 282-283). Ms. Underwood
alleges Cabaret posted a stolen image of her to its Facebook
page on August 26, 2014, to advertise for a "back to
school party, " implying Ms. Underwood was a stripper at
Cabaret. (Id. ¶ 286). She further alleges
Xcitement magazine posted an image of her on August
26, 2014 as part of an advertisement for Cabaret, insinuating
Ms. Underwood was a stripper for Cabaret. (See id.).
According to Ms. Underwood, Cabaret did not seek permission
to use her image, and she was never hired by nor compensated
to advertise for Cabaret. (See Id . ¶¶
The Insurance Policy
October 15, 2013 through October 15, 2014, Cabaret was
insured under the Insurance Policy issued by Plaintiff.
(See PL's SOF ¶ 1). Under the Insurance
Policy, Plaintiff must pay for damages the insured
"becomes legally obligated to pay . . . because of
'personal and advertising injury.'" (Insurance
Policy § I.B.I.a. (alteration added)). The Insurance
Policy defines "personal and advertising injury" to
include injury arising out of:
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
g. Infringing upon another's copyright, trade dress or
slogan in your "advertisement".
(Id. §§ V.l4.d-g). Plaintiff has the
"right and duty to defend" the insured against any
action seeking damages for personal or advertising injury.
(Id. LB. 1 .a).
all policies, there are several exclusions to coverage.
(See generally Id . § LB.2). Under the
"Infringement of Copyright Patent, Trademark or Trade
Secret, " exclusion ("IP Exclusion"),
insurance does not apply to "[p]ersonal and advertising
injury" arising out of the infringement of copyright,
patent, trademark, trade secret or other intellectual
property rights." (Id. I.B.2.i (alteration
and emphasis added)).
are exceptions to the IP Exclusion. First, "other
intellectual property rights do not include the use of
another's advertising idea in [insured's]
'advertisement.'" (Id.). Second, the IP
Exclusion does not apply to "infringement, in
[insured's] 'advertisement', of copyright, trade
dress or slogan." (Id. (alterations added)).
together, coverage for personal advertising injury
includes damages arising from (1) oral or written
publication that slanders or libels a person or organization
or disparages a person's or organization's goods,
products or services; (2) violations of privacy; (3) use of
another's idea in the insured's advertisement; and
(4) copyright, trade dress or slogan infringement. And read
together, coverage for personal advertising injury
excludes damages arising from (1) patent, trade
mark, and trade secret infringement; and (2) other
intellectual property rights. (See Id . §§
I.B.1.b, I.B.2.i, V.15).
noted, Plaintiff filed its Motion for Final Summary Judgment
on May 17, 2019. (See generally Mot.) Neither
Cabaret nor the Model Defendants filed cross-motions for
summary judgment. On July 9, 2019, Cabaret filed its
Sur-Reply to Plaintiffs Motion requesting the Court
"deny in its entirety [Plaintiffs] Motion for Final
Summary Judgement and, instead, grant summary judgment to
Cabaret and order [Plaintiff] to defend and indemnify Cabaret
in the Underlying Litigation." (Id. 8
(alteration added)). No party suggests there are any triable
issues of fact.