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American Family Mutual Insurance Co. v. St. Louis Heart Center, Inc.

United States District Court, E.D. Missouri, Eastern Division

August 14, 2017

AMERICAN FAMILY MUTUAL INSURANCE COMPANY, Plaintiff,
v.
ST. LOUIS HEART CENTER, INC. and VEIN CENTERS FOR EXCELLENCE, INC., Defendants.

          MEMORANDUM AND ORDER

          Jean C. Hamilton UNITED STATES DISTRICT JUDGE.

         This matter is before the Court on Plaintiff American Family Mutual Insurance Company's Motion for Summary Judgment, and Defendant St. Louis Heart Center, Inc.'s Motion for Summary Judgment, both filed June 23, 2017. (ECF Nos. 65, 68). The motions are fully briefed and ready for disposition.

         BACKGROUND

         Defendant Vein Centers for Excellence, Inc. (“Vein Centers”) provided marketing and graphic design for doctors providing varicose and spider vein procedures. (Plaintiff's Statement of Uncontroverted Facts (“Plaintiff's Facts”), ¶ 1).[1] Plaintiff American Family Mutual Insurance Company (“American Family” or “Plaintiff”) issued a Businessowners Policy to Vein Centers, policy number 24XG853004, with a policy period of October 28, 2007, through October 28, 2008. (Id., ¶¶ 32, 34). American Family later renewed the Businessowners Policy to Vein Centers, with a policy period of October 28, 2008, through October 28, 2009. (Id., ¶ 33).

         As relevant here, the Businessowners Policies contained the following provisions:

         A. Coverages

1 Business liability
a. We will pay those sums that the insured becomes legally obligated to pay as damages because of “bodily injury” or “property damage” or “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 “bodily injury”, “property damage” or “personal and advertising injury” to which this insurance does not apply. We may at our discretion, investigate any “occurrence” and settle any claim or “suit” that may result.
* * * *
b. This insurance applies:
(1) To “bodily injury” and “property damage” only if;
(a) The ‘bodily injury' or ‘property damage' is caused by an ‘occurrence' that takes place in the ‘coverage territory';
(b) The “bodily injury” or “property damage” occurs during the policy period;
* * * *

         B. Exclusions

         1. Applicable To Business Liability Coverage

         This insurance does not apply to:

a. Expected Or Intended Injury
“Bodily injury” or “property damage” expected or intended from the standpoint of the insured. This exclusion does not apply to “bodily injury” resulting from the use of reasonable force to protect persons or property.

(ECF No. 67-11, PP. 38, 40, 132, 134).

         According to American Family, the Businessowners Policies further contained the following relevant exclusion[2]:

s. Distribution of Material in Violation of Statutes
“Bodily injury”, “property damage”, or “personal and advertising injury” arising directly or indirectly out of any action or omission that violates or is alleged to violate:
(1) The Telephone Consumer Protection Act (TCPA), including any amendment of or addition to such law; or
(2) The CAN-SPAM Act of 2003, including any amendment of or addition to such law; or
(3) Any statute, ordinance or regulation, other than the TCPA or CAN- SPAM Act of 2003, that prohibits or limits the sending, transmitting, communicating or distribution of material or information.

(ECF No. 67-11, PP. 44, 138). Finally, the Businessowners Policies contained the following endorsement:

         THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY EXCLUSION - PUNITIVE DAMAGES

         This endorsement modifies insurance provided under the following:

BUSINESSOWNERS COVERAGE FORM
The following is added to Paragraph B. Exclusions in Section II - Liability
This insurance does not apply to:
Punitive Damages
Punitive or exemplary damages.

(ECF No. 67-11, PP. 70, 164).

         American Family further issued Commercial Liability Umbrella Policies to Vein Centers, with policy periods of October 28, 2007, through October 28, 2008, and October 28, 2008, through October 28, 2009. (Plaintiff's Facts, ¶ 44). As relevant here, the Umbrella Policies contained the following provisions:

         COVERAGE A - BODILY INJURY AND PROPERTY DAMAGE LIABILITY

         1. Insuring Agreement

a. We will pay on behalf of the insured the “ultimate net loss” in excess of the “retained limit” because of “bodily injury” or “property damage” to which this insurance applies. . . .
* * * *
b. This insurance applies to “bodily injury” and “property damage” only if:
(1) The “bodily injury” or “property damage” is caused by an “occurrence” that takes place in the ...

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