United States District Court, W.D. Virginia, Charlottesville Division
K. MOON SENIOR UNITED STATES DISTRICT JUDGE
matter is before the Court upon Plaintiff Hanover Insurance
Company's (“Hanover”) motion for partial
summary judgment, (dkt. 40), and Defendants Castle Hill
Studios LLC, Castle Hill Holding LLC, and Ironworks
Development LLC's (“Castle Hill”)
cross-motion for partial summary judgment. (Dkt. 53). Hanover
filed an action for declaratory judgment pursuant to 28
U.S.C. § 2201, seeking declarations that it has no duty
to defend or indemnify Castle Hill in an underlying trademark
infringement suit pending in the Northern District of
Oklahoma (“underlying action”). The parties
agreed to stay all issues pending resolution of the
underlying action except one: whether Hanover must indemnify
Castle Hill under three primary businessowners policies or
whether exclusions for “personal and advertising
moves for partial summary judgment, arguing it is entitled to
a declaratory judgment that the businessowners policies
exclude “personal and advertising injury, ” and
that Castle Hill is therefore not entitled to coverage in the
underlying action under these policies. Castle Hill contends
that the businessowners policies are ambiguous on this issue
because, although one provision purports to exclude
advertising injury coverage, other conflicting exclusions and
endorsements appear to provide for such coverage. (Dkt. 53).
Castle Hill cross-moves for partial summary judgment, arguing
it is entitled to a declaration that Hanover has a duty to
indemnify Castle Hill under the businessowners policies.
(Id. at 5).
Court finds that the businessowners policies unambiguously
exclude coverage for personal and advertising injury.
Accordingly, the Court will grant Hanover's motion for
partial summary judgment and deny Castle Hill's
cross-motion for partial summary judgment.
judgment is particularly well-suited for resolution of
insurance coverage disputes because the construction of
insurance contracts is a legal question.” Mount
Vernon Fire Ins. Co. v. Adamson, No. 3:09-cv-817, 2010
WL 3937336, at *1-2, (E.D. Va. Sept. 15, 2010) (citations
omitted). Fed.R.Civ.P. 56(a) provides that a court should
grant summary judgment “if the movant shows that there
is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.” “A
dispute is genuine if a reasonable jury could return a
verdict for the nonmoving party, ” and “[a] fact
is material if it might affect the outcome of the suit under
the governing law.” Variety Stores, Inc. v.
Wal-Mart Stores, Inc., 888 F.3d 651, 659 (4th Cir.
2018). The nonmoving party must “show that there is a
genuine dispute of material fact for trial . . . by offering
sufficient proof in the form of admissible evidence.”
Id. (quoting Guessous v. Fairview Prop. Invs.,
LLC, 828 F.3d 208, 216 (4th Cir. 2016)). The district
court must “view the evidence in the light most
favorable to the nonmoving party” and “refrain
from weighing the evidence or making credibility
Factual Background & Legal Principles
Game Technologies, Inc. and Castle Hill are
“competitors in the Native American bingo-based gaming
market.” (Dkts. 41 at 1; 41-1 ¶ 2). In August
2017, Video Gaming Technologies sued Castle Hill in the
Northern District of Oklahoma for, among other things,
trademark and trade dress infringement stemming from
“class II bingo-based games” developed by Castle
Hill with features closely resembling games produced by Video
Game Technologies. (Dkt. 41-1). Castle Hill tendered the
underlying action to Hanover for defense and indemnity, and
“Hanover admits it accepted the duty to defend under
certain of the Umbrella policies” discussed below
“under a full reservation of rights.” (Dkt. 56 at
2014 to 2017, Hanover insured Castle Hill via primary
businessowners policies with collective coverage limits of
$3, 000, 000 and, starting in 2015, via umbrella policies
with collective coverage limits of $3, 000, 000. (Dkts. 41-3;
41-4; 41-5; 41-6).
II of the businessowners coverage form provides, in pertinent
part, that Hanover will defend the insured “against any
‘suit' . . . damages” for
“‘bodily injury,' ‘property
damage,' or ‘personal and advertising injury'
to which this insurance applies, ” and indemnify the
insured for any damages in such suits. The policy provides
that it applies to “‘personal and advertising
injury' caused by an offense arising out of your
business, but only if the offense was committed in the
‘coverage territory' during the policy
period.” The policy defines “personal and
advertising injury” as “injury, including
consequential ‘bodily injury', arising out of . . .
“[t]he use of another's advertising idea in our
‘advertisement'; or . . . “[i]nfringing upon
another's copyright, trade dress or slogan in your
‘advertisement.'” (See, e.g., dkt.
41-3 at 69, 84-85).
II of the businessowners coverage form is amended by the
“advertising injury exclusion, ” which reads, in
pertinent part: “The following is added to
Section II - Liability and supersedes any
provision to the contrary: The insurance provided under
Paragraph A. Coverages does not apply to
‘personal and advertising injury.'” (Dkt.
41-7). The businessowners policies were also
contemporaneously amended by other exclusions and
endorsements, some of which mention personal and advertising
injury. The parties now dispute whether these other
provisions render the policies ambiguous with respect to
coverage for personal and advertising injury.
Virginia Contract Interpretation Principles
Virginia law,  courts are to construe insurance policies
according to standard principles of contract interpretation.
“Virginia strictly adheres to the ‘plain
meaning' rule: ‘where an agreement is complete on
its face and is plain and unambiguous in its terms, the court
is not at liberty to search for its meaning beyond the
instrument itself . . . because the writing is the repository
of final agreement between the parties.”
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