Opinion
11738 Index 652103/18
07-02-2020
CONTINENTAL CASUALTY COMPANY, Plaintiff–Respondent, v. KB INSURANCE CO., LTD. doing business as Kookmin Best Insurance Company (U.S. Branch), formerly known as Leading Insurance Group Insurance Co., Ltd., Defendant–Appellant.
Chartwell Law, New York (Matthew Kraus of counsel), for appellant. CNA Coverage Litigation Group, New York (Marian S. Hertz of counsel), for respondent.
Chartwell Law, New York (Matthew Kraus of counsel), for appellant.
CNA Coverage Litigation Group, New York (Marian S. Hertz of counsel), for respondent.
Richter, J.P., Kapnick, Webber, Gesmer, Moulton, JJ.
Order, Supreme Court, New York County (Melissa Crane, J.), entered May 31, 2019, which granted plaintiff's motion for summary judgment declaring that defendant has a duty to defend Value Wholesale, Inc. (Value) in an underlying action and reimburse plaintiff for the defense costs, unanimously affirmed, with costs.
Defendant has a duty to defend Value because the allegations contained in the underlying complaint fall within the protection purchased under the insurance policy (see BP A.C. Corp. v. One Beacon Ins. Group, 8 N.Y.3d 708, 714, 840 N.Y.S.2d 302, 871 N.E.2d 1128 [2007] ). Defendant issued a commercial general liability insurance policy to Value, which was in effect during the relevant time period. Under the terms of the policy, defendant agreed to "pay those sums that the insured becomes legally obligated to pay as damages because of ‘personal and advertising injury.’ " "Personal and advertising injury" includes an injury arising out of the infringement "upon another's copyright, trade dress or slogan in [the] ‘advertisement.’ " Defendant's contention that the claims in the underlying action are excluded from coverage is unpersuasive because there is no evidence conclusively showing that Value's conduct was to intentionally or knowingly advertise Abbott's unapproved products domestically (see e.g. Cosser v. One Beacon Ins. Group, 15 A.D.3d 871, 873, 789 N.Y.S.2d 586 [4th Dept. 2005] ; PG Ins. Co. of N.Y. v. Day Mfg. Co., 251 A.D.2d 1065, 674 N.Y.S.2d 199 [4th Dept. 1998] ).
We have considered defendant's remaining contentions and find them unavailing.