COURT OF APPEALS DECISION DATED AND FILED March 4, 2009 David
R. Schanker Clerk of Court of Appeals |
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This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports. A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See Wis. Stat. § 808.10 and Rule 809.62. |
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APPEAL
from an order of the circuit court for
Before Brown, C.J., Snyder and Neubauer, JJ.
¶1 PER CURIAM. Belva Zocher-Burke appeals from the order of the circuit court that dismissed Acuity, a Mutual Insurance Company, from the underlying action. Zocher-Burke argues that Acuity is required to defend her in this action under the terms of Acuity’s insurance policy with her employer. Because we agree with the circuit court that the insurance policy does not provide coverage to Zocher-Burke for this action, we affirm.
¶2 Quality Addiction Management, Inc. (“QAM”), sued Zocher-Burke
and her employer, Wisconsin Community Mental Health Counseling Centers, Inc.,
d/b/a Addiction Recovery Treatment Center (“ARTC”), alleging that Zocher-Burke
breached a confidentiality agreement with them by providing confidential information
to ARTC. QAM owns and operates narcotic
maintenance clinics in
¶3 After QAM filed the suit against Zocher-Burke and ARTC, ARTC’s counsel notified Acuity, ARTC’s insurer, of the action. Acuity moved the circuit court to intervene, bifurcate, and stay the proceedings to determine the insurance coverage issues, and eventually for summary judgment arguing that it was not required to provide coverage for any of the claims. Acuity argued that its policy with ARTC does not provide coverage because the complaint does not allege bodily injury, property damage, personal injury, or advertising injury. Acuity also argued that the failure of ARTC and Zocher-Burke to notify it of the claim in a timely manner, prejudiced Acuity and abrogated its duty to defend them in this suit.
¶4 Zocher-Burke argued in response that the complaint alleged misappropriation of “style of doing business” and “trade dress,” both of which are advertising injury within the meaning of the policy. She also argued that she timely notified Acuity of the action.
¶5 The circuit court granted summary judgment to Acuity. The court stated: “It is clear from an examination of the policy in question that no language in it speaks directly to coverage for the kind of conduct complained of.” The court concluded that the claim against Zocher-Burke was a claim for theft, and Acuity did not have a duty to defend under the policy. ARTC did not appeal from this order.
¶6 We review the circuit court’s grant of summary judgment using
the same methodology as the circuit court.
M & I First Nat’l Bank v. Episcopal Homes Mgmt., Inc., 195
¶7 The interpretation of an insurance contract is a matter that
we review on a de novo basis. Folkman
v. Quamme, 2003 WI 116, ¶12, 264
¶8 Our review involves a three-step process.
¶9 We agree with the circuit court that the insurance policy
does not contain an initial grant of coverage.
Zocher-Burke argues that the claim alleged against her is one for an
advertising injury. She asserts that the
complaint alleges that ARTC misappropriated QAM’s style of doing business and
infringed its trade dress. We consider
three factors to determine whether there is coverage for an advertising
injury: (1) whether the complaint states
an offense covered under the advertising injury provision of the insurance
policy; (2) whether the complaint alleges that the insured engaged in the
advertising injury; and (3) whether the complaint alleges a causal connection
between the injury alleged and the insured’s advertising activity. Fireman’s Fund Ins. v. Bradley Corp.,
2003 WI 33, ¶26, 261
¶10 The insurance policy provides coverage for an advertising injury “caused by an offense committed in the course of advertising your goods, products or services.” The policy defines an advertising injury, in pertinent part, as “[m]isappropriation of advertising ideas or style of doing business.” The policy also provides that the insurance does not apply to an advertising injury arising out of: “(1) Breach of contract, other than misappropriation of advertising ideas under an implied contract.”
¶11 The claim in the complaint against Zocher-Burke is that she signed a confidentiality agreement that stated that QAM’s materials were not to be shared or distributed outside of QAM or select regulatory/accreditation bodies, and that by distributing QAM’s materials to ARTC, Zocher-Burke breached the terms of this agreement. Zocher-Burke claims that because the forms she took from QAM were used by ARTC to get new licensing from the State, this is a form of advertising. We do not agree. The policy provides coverage for an injury that occurs “in the course of advertising your goods or products.” Submitting an application for licensing is not an activity done “in the course of advertising.” We conclude, as did the circuit court, that the claim against Zocher-Burke was for breach of contract by theft, and not for an advertising injury as defined by the policy.
¶12 Because we conclude that the circuit court properly granted summary judgment on the issue of whether the insurance policy provided the initial grant of coverage, we need not address the question of whether Zocher-Burke and ARTC timely notified Acuity of the action against them. For the reasons stated, we affirm the order of the circuit court.
By the Court.—Order affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5. (2007-08).