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Thane International, Inc. v. Hartford Casualty Insurance Co.

February 19, 2009

THANE INTERNATIONAL, INC., A DELAWARE CORPORATION, PLAINTIFF,
v.
HARTFORD FIRE INSURANCE COMPANY, A CONNECTICUT CORPORATION; AND HARTFORD CASUALTY INSURANCE COMPANY, AN INDIANA CORPORATION, DEFENDANTS



The opinion of the court was delivered by: VIRGINIA A. Phillips United States District Judge

FINDINGS OF FACT AND CONCLUSIONS OF LAW AFTER COURT TRIAL

This case was tried to the Court without a jury on December 2 and 10, 2008; the parties thereafter filed post-trial briefs and the Court deemed the matter submitted. Having considered all the evidence presented by the parties, as well as the argument and briefing by counsel, the Court makes the following Findings of Fact and Conclusions of Law pursuant to Federal Rule of Civil Procedure 52.

FINDINGS OF FACT

1. Plaintiff Thane International, Inc. ("Thane") is a Delaware corporation whose principal place of business is in La Quinta, within the County of Riverside, California, within the Central District of California. Admitted Facts in Final Pretrial Conference Order ("PTCO Adm. Facts") ¶ 2.

2. Defendant Hartford Casualty Insurance Company ("Hartford Casualty") is an Indiana corporation whose principal place of business is in Connecticut. PTCO Adm. Facts ¶ 2. Defendant Hartford Fire Insurance Company ("Hartford Fire") is a Connecticut corporation whose principal place of business is in Connecticut. Id.

A. The Insurance Policies

3. Hartford Casualty issued Plaintiff a "Special Multi-Flex Policy" of insurance that included commercial general liability coverage for the period August 1, 2000 to August 13, 2001. PTCO Adm. Facts ¶ 5(a).

4. Hartford Fire issued Plaintiff a "Special Multi-Flex Policy" of insurance that included commercial general liability coverage for the period August 13, 2001 to August 13, 2002. PTCO Adm. Facts ¶ 5(b).

5. Both the Hartford Casualty and the Hartford Fire policies contained the following provision for coverage for "personal and advertising injury": "We will pay those sums that the insured becomes legally obligated to pay as damages because of 'personal injury' or advertising injury' to which this insurance applies. We will have the right and duty to defend any 'suit' seeking those damages. However, we will have no duty to defend the insured against any 'suit' seeking damages for 'personal injury' or 'advertising injury' to which this insurance does not apply. PTCO Adm. Facts ¶ 5(c).

6. The Hartford Casualty policy also stated: "This insurance applies to (1) 'Personal injury' caused by an offense arising out of your business. . . ." PTCO Adm. Facts ¶ 5(d).

7. The Hartford Casualty policy defined "personal injury" as "injury, other than 'bodily injury', arising out of one or more of the following offenses: . . . Oral, written, or electronic publication, including unauthorized access, of material that violates a person's right of privacy[.]" PTCO Adm. Facts ¶ 5(f). The Hartford Fire policy defined "personal injury" as "injury, including consequential 'bodily injury', arising out of one or more of the following offenses: . . . Oral, written or electronic publication, including unauthorized access, of material that violates a person's right of privacy[.]" PTCO Adm. Facts ¶ 5(f).

B. Thane's Marketing of the "Strike Jacket EFL"

8. In 1995, Christopher Atkins, an actor, invented a fishing lure called the "Strike Jacket E.F.L. (Extreme Fishing Lure) ("EFL") that was designed "to look and behave like a real fish in the water." PTCO Adm. Facts ¶ 5(i), (j). In approximately October 1996, Atkins formed a corporation known as Rocky River Outdoor Products, Inc. corporation to develop the EFL for sale. Exh. 26 at ¶¶ 12, 14.

9. IMT and Rocky River allegedly entered into an oral agreement for the former to manufacture and market the EFL; the marketing effort was to include the production and release of an infomercial using Atkins's name and likeness. PTCO Adm.

Facts

¶ 5(k), (l). The EFL product packaging displayed Atkins's name and likeness. 10. IMT allegedly entered into a separate agreeement with Thane, "transfer[ring] the EFL project to Thane" under terms that conflicted with IMT's agreement with Rocky River. PTCO Adm. Facts ¶ 5(m).

11. In the first six months of 2001, Thane purchased more than 100,000 units of the EFL product from Sekwang Fishing International in South Korea for a total price of $501,010.02, or $5.01 per unit. PTCO Adm. Facts ¶ 5(w).

12. Thane sold the EFL at both retail and wholesale levels. It sold the EFL units on a wholesale basis for $11.00 apiece. It sold the EFL units on a retail basis at varying price levels, from $39.90 plus $6.95 for shipping charges to $19.95 plus $6.95 in shipping charges. Exh. 128, 132.

C. The Underlying Lawsuit

13. On August 17, 2001, Interactive Marketing Technology, Inc. ("IMT") filed suit in the California Superior Court for the County of Los Angeles against Christopher Atkins and Rocky River Outdoor ...


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