{ "id": 6137705, "name": "TRI-STATE INSURANCE COMPANY v. B & L PRODUCTS, INC., d/b/a Bycin Industries, Inc.", "name_abbreviation": "Tri-State Insurance v. B & L Products, Inc.", "decision_date": "1998-03-11", "docket_number": "CA 97-389", "first_page": "78", "last_page": "88", "citations": [ { "type": "official", "cite": "61 Ark. App. 78" }, { "type": "parallel", "cite": "964 S.W.2d 402" } ], "court": { "name_abbreviation": "Ark. Ct. App.", "id": 13370, "name": "Arkansas Court of Appeals" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "53 Ark. App. 250", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6141366 ], "weight": 4, "year": 1996, "opinion_index": 0, "case_paths": [ "/ark-app/53/0250-01" ] }, { "cite": "52 Ark. App. 35", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6136814 ], "weight": 2, "year": 1996, "opinion_index": 0, "case_paths": [ "/ark-app/52/0035-01" ] }, { "cite": "328 Ark. 23", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 50389 ], "weight": 2, "year": 1997, "opinion_index": 0, "case_paths": [ "/ark/328/0023-01" ] }, { "cite": "250 Ark. 35", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1636885 ], "weight": 2, "year": 1971, "pin_cites": [ { "page": "41-42", "parenthetical": "cita-tions omitted" }, { "page": "655", "parenthetical": "cita-tions omitted" } ], "opinion_index": 1, "case_paths": [ "/ark/250/0035-01" ] }, { "cite": "54 Ark. App. 1", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6136015 ], "weight": 3, "year": 1996, "pin_cites": [ { "page": "3" } ], "opinion_index": 1, "case_paths": [ "/ark-app/54/0001-01" ] }, { "cite": "832 S.W.2d 816", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 1898914, 1898934 ], "year": 1992, "pin_cites": [ { "page": "819" } ], "opinion_index": 1, "case_paths": [ "/ark/310/0164-01", "/ark/310/0187-01" ] }, { "cite": "310 Ark. 164", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1898914 ], "year": 1992, "pin_cites": [ { "page": "170" } ], "opinion_index": 1, "case_paths": [ "/ark/310/0164-01" ] }, { "cite": "20 S.W.2d 611", "category": "reporters:state_regional", "reporter": "S.W.2d", "year": 1929, "pin_cites": [ { "page": "613", "parenthetical": "emphasis supplied" } ], "opinion_index": 1 }, { "cite": "180 Ark. 140", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1393525 ], "year": 1929, "pin_cites": [ { "page": "145", "parenthetical": "emphasis supplied" } ], "opinion_index": 1, "case_paths": [ "/ark/180/0140-01" ] }, { "cite": "53 Ark. App. 250", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6141366 ], "weight": 2, "year": 1996, "pin_cites": [ { "page": "362", "parenthetical": "citations omitted" } ], "opinion_index": 1, "case_paths": [ "/ark-app/53/0250-01" ] }, { "cite": "929 F.2d 413", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 10542538 ], "year": 1991, "opinion_index": 2, "case_paths": [ "/f2d/929/0413-01" ] }, { "cite": "696 F.Supp. 434", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 7399168 ], "year": 1988, "opinion_index": 2, "case_paths": [ "/f-supp/696/0434-01" ] }, { "cite": "794 F.Supp. 611", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 9048533 ], "year": 1992, "opinion_index": 2, "case_paths": [ "/f-supp/794/0611-01" ] }, { "cite": "820 F.Supp. 489", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 7404880 ], "year": 1993, "opinion_index": 2, "case_paths": [ "/f-supp/820/0489-01" ] }, { "cite": "264 N.W.2d 385", "category": "reporters:state_regional", "reporter": "N.W.2d", "case_ids": [ 10688663 ], "year": 1978, "opinion_index": 2, "case_paths": [ "/nw2d/264/0385-01" ] }, { "cite": "618 N.E.2d 1365", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1993, "opinion_index": 2 }, { "cite": "855 P.2d 77", "category": "reporters:state_regional", "reporter": "P.2d", "case_ids": [ 1509907 ], "year": 1993, "opinion_index": 2, "case_paths": [ "/kan/253/0198-01" ] }, { "cite": "839 P.2d 537", "category": "reporters:state_regional", "reporter": "P.2d", "case_ids": [ 370568 ], "year": 1992, "opinion_index": 2, "case_paths": [ "/kan-app-2d/17/0492-01" ] }, { "cite": "769 F.2d 425", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 361355 ], "year": 1985, "opinion_index": 2, "case_paths": [ "/f2d/769/0425-01" ] }, { "cite": "559 N.E.2d 7", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1990, "opinion_index": 2 }, { "cite": "833 P.2d 545", "category": "reporters:state_regional", "reporter": "P.2d", "year": 1992, "opinion_index": 2 }, { "cite": "529 N.W.2d 421", "category": "reporters:state_regional", "reporter": "N.W.2d", "year": 1995, "opinion_index": 2 }, { "cite": "674 A.2d 798", "category": "reporters:state_regional", "reporter": "A.2d", "case_ids": [ 1160145 ], "year": 1996, "opinion_index": 2, "case_paths": [ "/vt/165/0069-01" ] }, { "cite": "617 A.2d 1163", "category": "reporters:state_regional", "reporter": "A.2d", "case_ids": [ 2344776 ], "weight": 2, "year": 1993, "pin_cites": [ { "page": "1173" } ], "opinion_index": 2, "case_paths": [ "/md-app/94/0505-01" ] }, { "cite": "811 S.W.2d 345", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 6647710 ], "year": 1991, "opinion_index": 3, "case_paths": [ "/ark-app/35/0085-01" ] }, { "cite": "3 Ark. App. 85", "category": "reporters:state", "reporter": "Ark. App.", "year": 1991, "opinion_index": 3 } ], "analysis": { "cardinality": 829, "char_count": 18376, "ocr_confidence": 0.759, "pagerank": { "raw": 7.892440347244973e-08, "percentile": 0.4604438328257748 }, "sha256": "3507cf526832917ca3ee5685d5599093849c191d7ae32b26c19da31863db2951", "simhash": "1:686cc3f425415f66", "word_count": 2904 }, "last_updated": "2023-07-14T22:49:17.261540+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Meads, J., agrees.", "Robbins, C.J., and Arey, J., concur.", "Jennings and Roaf, JJ., dissent." ], "parties": [ "TRI-STATE INSURANCE COMPANY v. B & L PRODUCTS, INC., d/b/a Bycin Industries, Inc." ], "opinions": [ { "text": "John F. Stroud, Jr., Judge.\nThis appeal arises from a summary judgment entered in a declaratory judgment action in Garland County, Arkansas, in favor of appellee, B&L Products, Inc., against appellant, Tri-State Insurance Company. We attempted to certify this appeal to the supreme court, but certification was refused. We affirm.\nAppellant issued a commercial general liability (CGL) insurance policy to appellee in 1994. The policy provides coverage for any \u201c \u2018 [a] dvertising injury\u2019 caused by an offense committed in the course of advertising [appellee\u2019s] goods, products, or services.\u201d In 1995, a company called Geographies, Inc., filed the underlying copyright-infringement action against appellee in federal court in the State of Washington. The copyright action involves paper products produced by appellee that are known as \u201cKoolnotes\u201d and paper products produced by Geographies that are known as \u201cGeo-Notes.\u201d Geographies learned that OfficeMax, a large retailer of office and school supplies, was selling appellee\u2019s Koolnotes, which according to Geographies were virtually identical to its GeoNotes.\nAppellant refused to defend the underlying lawsuit on behalf of appellee, contending that the claim did not arise out of \u201cadvertising\u201d as provided in the insurance policy. On March 8, 1996, appellee filed a complaint for declaratory judgment in the circuit court of Garland County, Arkansas, asking that the court declare that appellant must provide a full defense in the underlying copyright-infringement case and that appellant must fully indemnify appellee with respect to the underlying action, including costs, attorney\u2019s fees, expenses, and any judgment that might issue in the underlying action.\nOn October 7, 1996, appellant filed its motion for summary judgment, asserting that there were no genuine issues of material fact and that it was entitled to summary judgment as a matter of law. Appellee responded to the motion for summary judgment and filed its own countermotion for the same, agreeing that there were no genuine issues of material fact but asserting that it, rather than appellant, was entitled to summary judgment. The trial judge entered summary judgment in favor of appellee.\nAppellant raises three points of appeal: (1) appellee failed to introduce in the declaratory judgment action the insurance policy and underlying copyright-infringement complaint as required by Rules 10(d) and 56(c) of the Arkansas Rules of Civil Procedure; (2) the underlying copyright-infringement complaint contains no allegation that appellee engaged in advertising activities; and (3) the underlying copyright-infringement complaint contains no allegation that appellee\u2019s copyright infringement was caused by advertising activities.\nUnder the first point, appellant argues that Rule 10(d) of the Arkansas Rules of Civil Procedure requires that a copy of the written instrument be attached as an exhibit to the pleading that asserts a claim or defense based upon the written instrument. Since appellee failed to attach the insurance policy and the underlying copyright-infringement complaint to its complaint for declaratory judgment, appellant argues that the trial court erred in granting summary judgment pursuant to Rule 56(c) of the Arkansas Rules of Civil Procedure. We disagree.\nNeither party argued to the trial court that any pertinent language from the policy or the underlying complaint was missing. Moreover, in oral arguments before this court appellant\u2019s counsel was candid in responding to our questions on this point and acknowledged that the pertinent language from the policy and the underlying complaint was before us. In short, both parties moved for summary judgment in this case, alleging that there were no genuine issues of material fact, and both have acknowledged to this court that all pertinent provisions of the underlying complaint and insurance policy are before this court. We find no prejudicial error that would require us to reverse on this point. See Jefferson v. State, 328 Ark. 23, 941 S.W.2d 404 (1997).\nUnder the second point, appellant argues that the term \u201cadvertising\u201d includes only promotional activities that are directed to the public at large; that it does not include a salesperson\u2019s one-on-one solicitation for sales; and that the underlying complaint in the Washington case did not allege that appellee engaged in \u201cadvertising\u201d activities. We disagree.\nThe pertinent policy language provided coverage against any \u201c \u2018 [a] dvertising injury\u2019 caused by an offense committed in the course of advertising [appellee\u2019s] goods, products, or services.\u201d The term \u201cadvertising injury\u201d is defined in the policy as:\n[an] injury arising out of one or more of the following offenses: (a) Oral or written publication of material that slanders or libels a person or organization or disparages a person\u2019s or organization\u2019s goods, products or services; (b) Oral or written publication of material that violates a person\u2019s right of privacy; (c) Misappropriation of advertising ideas or style of doing business; or (d) Infringement of copyright, title or slogan.\nThe term \u201cadvertising\u201d is not defined in the policy, and we have found no Arkansas cases defining the term in the context of a CGL policy.\nAppellee\u2019s product promotion was not aimed at the general public, but rather at a small, targeted market of large retailers. Appellant contends that appellee\u2019s one-on-one sales solicitation cannot constitute \u201cadvertising\u201d because it is not aimed at the public at large. Appellant acknowledges in its reply brief, however, that \u201csome dictionaries include definitions of \u2018advertising\u2019 that require public dissemination and other definitions that do not.\u201d In attempting to give this term its plain, ordinary, and popular meaning in the context of this case, members of this court have also viewed the term differently. We therefore regard the term as ambiguous in the context of this case and construe it against the appellant as the drafter of the policy. Hartford Fire Ins. Co. v. Carolina Cas. Ins., 52 Ark. App. 35, 914 S.W.2d 324 (1996). Construing the term \u201cadvertising\u201d in the manner urged by the dissent would mean that appellee could never recover under this provision of the insurance policy because its product market is a relatively small group of large retailers, not the public at large. Accordingly, under the circumstances presented in this case, we find no error in the trial court\u2019s finding that the manner in which appellee promoted its product falls within the meaning of the term \u201cadvertising\u201d under the policy, even though the product advertising was not aimed at the public at large.\nMoreover, appellant acknowledges that the pleadings in the underlying action generally determine an insurance company\u2019s duty to defend. Madden v. Continental Cas. Co., 53 Ark. App. 250, 922 S.W.2d 731 (1996). An insurer must defend the case if there is any possibility that the injury or damage may fall within the policy coverage. Id. It is the allegations made against the insured, however groundless, false, or fraudulent such allegations may be, that determine the duty of the insurer to defend the litigation against its insured. Id.\nParagraph nine of the underlying copyright-infringement complaint provided in pertinent part:\nOn information and belief, since at least as early as July 13, 1995, B&L, with full knowledge of Geographies\u2019 rights, has been infringing Geographies\u2019 copyrights in and relating to the Subject Works by using, reproducing, displaying, distributing, marketing, and offering for sale unauthorized copies of each of the Subject Works. Among other things, B&L has been manufacturing, distributing, and offering to sell memo pads under the mark KOOLNOTES which are copies of the Subject Works ....\nThe prayer for relief in the underlying complaint provided in pertinent part:\n[That appellee] be enjoined from . . . marketing, offering, selling, disposing of, licensing, leasing, transferring, displaying, advertising, reproducing, developing, or manufacturing any work derived or copied from any of the Subject Works ....\nWe find no error in the trial court\u2019s finding that the underlying complaint contained sufficient allegations of appellee engaging in \u201cadvertising\u201d activities.\nUnder its last point, appellant argues that the underlying complaint contains no allegation that appellee\u2019s copyright infringement was caused by advertising activities. Appellant argues that coverage only extends to an advertising injury that is \u201ccaused by an offense committed in the course of advertising [the insured\u2019s] goods, products or services,\u201d and that the policy\u2019s causation requirement was not satisfied in this case because the in-person sales talk, even if regarded as \u201cadvertising,\u201d was not the cause of the alleged copyright infringement.\nParagraph nine of the underlying complaint alleges that appellee \u201chas been infringing Geographies\u2019 copyrights in and relating to the Subject Works by using, reproducing, displaying, distributing, marketing, and offering for sale unauthorized copies of each of the Subject Works.\u201d (Emphasis added.) The prayer for relief asks that appellee \u201cbe enjoined from . . . marketing, offering, selling, disposing of, licensing, leasing, transferring, displaying, advertising, reproducing, developing, or manufacturing any work derived or copied from any of the Subject Works . . . .\u201d\nOnce again, we find no error in the trial court\u2019s finding that the underlying complaint contained sufficient allegations that appellee\u2019s copyright infringement was caused by its advertising activities.\nAffirmed.\nMeads, J., agrees.\nRobbins, C.J., and Arey, J., concur.\nJennings and Roaf, JJ., dissent.", "type": "majority", "author": "John F. Stroud, Jr., Judge." }, { "text": "D. Franklin Arey, III, Judge,\nconcurring. I agree that this matter should be affirmed. This court is not empowered to ignore the rules of construction established by the supreme court. We should therefore affirm on the basis that we cannot construe the insurance policy since it is not in the record before us.\nThe commercial general liability insurance policy at issue has not been abstracted, nor does the policy appear in the record. As the prevailing opinion indicates, apparently the policy was not even produced before the trial court.\nThe applicable rules of construction set out by our supreme court require us to examine the insurance policy as a whole, in order to construe any part of it.\n[I]t may be said to be a setded rule in the construction of contracts that the interpretation must be upon the entire instrument and not merely on disjointed or particular parts of it. The whole context is to be considered in ascertaining the intention of the parties, even though the immediate object of inquiry is the meaning of an isolated cause.\nFowler v. Unionaid Life Ins. Co., 180 Ark. 140, 145, 20 S.W.2d 611, 613 (1929)(emphasis supplied). Our supreme court has \u201cconsistently adhered\u201d to the notion that the entire contract should be before it, in order to construe any part of the contract. See First National Bank v. Griffin, 310 Ark. 164, 170, 832 S.W.2d 816, 819 (1992).\nThis court adhered to the requirement that we review the entire contract in Hartford Ins. Co. v. Brewer, 54 Ark. App. 1, 922 S.W.2d 360 (1996).\nIt is axiomatic that, to determine the rights and duties under a contract, we must determine the intent of the parties .... It is well settled that the intent of the parties is to be determined from the whole context of the agreement; the court must consider the instrument in its entirety. Clearly, it is an appellant\u2019s burden to bring up a record sufficient to demonstrate error. Without the contract in question, which may have spoken in any number of ways to the issue of the person or persons entitled to the policy proceeds, we cannot determine whether the trial court erred.\nId. at 3, 922 S.W.2d at 362 (citations omitted)(emphasis supplied). In Harford, the insurance contract did not appear in the abstract or the record. Based upon the rules quoted, we concluded that the appellant had failed in its burden to produce a record sufficient to demonstrate error, and we affirmed. Id.\nIn the instant case, we cannot construe the term \u201cadvertising,\u201d because the entire policy is not before us. \u201cThe rights and liabilities of the parties to an insurance contract must be determined by considering the language of the entire policy .... Whatever the construction of a particular clause standing alone may be, it must be read in connection with other clauses limiting or extending the insurer\u2019s liability.\u201d Continental Casualty Co. v. Davidson, 250 Ark. 35, 41-42, 463 S.W.2d 652, 655 (1971)(cita-tions omitted). The prevailing opinion neither cites authority for the proposition that we can ignore this mandate nor cites any authority for the proposition that these rules can somehow be \u201cwaived\u201d by the parties. Since the appellant failed to bring up a record sufficient to demonstrate error, the judgment should be affirmed.\nRobbins, C.J., joins.", "type": "concurrence", "author": "D. Franklin Arey, III, Judge," }, { "text": "John E. Jennings, Judge,\ndissenting. While I agree with Judges Stroud and Meads that the absence of the insurance policy itself from the record does not preclude our reaching the merits in this case, I cannot agree to affirm. The issue posed is whether one-on-one sales solicitations may constitute advertising under the terms of a commercial general liability insurance policy. This was precisely the question for decision in Monumental Life Ins. Co. v. United States Fidelity and Guar. Co., 617 A.2d 1163 (Md. Ct. Spec. App. 1993). There, the court held that a reasonable lay person would not construe \u201cadvertising activity\u201d in the context of the CGL policies to include the one-on-one sales activity of Monumental\u2019s agents. The court held that \u201cadvertising\u201d means advertising, i.e., \u201cwidespread distribution or announcements to the public.\u201d Monumental Life Ins. Co., 617 A.2d at 1173.\nThe Supreme Court of Vermont has reached the same conclusion. Select Design, Ltd v. Union Mut. Fire Ins. Co., 674 A.2d 798 (Vt. 1996). See also Tschimperle v. Aetna Casualty & Surety Co., 529 N.W.2d 421 (Minn. Ct. App. 1995); Bank of the West v. Superior Court, 833 P.2d 545 (Cal. 1992); International Ins. Co. v. Florists\u2019 Mut. Ins. Co., 559 N.E.2d 7 (Ill. App. Ct. 1990); Playboy Enter., Inc. v. St. Paul Fire & Marine Ins. Co., 769 F.2d 425 (7th Cir. 1985); MGM, Inc. v. Liberty Mut. Ins. Co., 839 P.2d 537 (Kan. Ct. App. 1992), aff'd 855 P.2d 77 (Kan. 1993); Smartfoods, Inc. v. Northbrook Property & Casualty Co., 618 N.E.2d 1365 (Mass. App. Ct. 1993); Fox Chem. Co., Inc. v. Great Am. Ins. Co., 264 N.W.2d 385 (Minn. 1978).\nThere are cases to the contrary: New Hampshire Ins. Co. v. Foxfire, Inc., 820 F.Supp. 489 (N.D. Cal. 1993); Merchants Co. v. American Motorists Ins. Co., 794 F.Supp. 611 (S.D. Miss. 1992); John Deere Ins. Co. v. Shamrock Indus., Inc., 696 F.Supp. 434 (D. Minn. 1988), aff'd 929 F.2d 413 (8th Cir. 1991).\nIn rejecting the view taken in the three federal cases and adopting what it described as the \u201cmajority view,\u201d the Vermont Supreme Court said:\nAlthough we strictly construe the policy provisions against the insurer, we must read the policy provisions according to their plain, ordinary meaning. The majority view does so. Our conclusion is not undercut by the fact that there is some disagreement among courts as to the proper meaning of advertising.\nSelect Design, 61A A.2d at 802 (citations omitted). I agree with both the reasoning of and the conclusion reached by the Supreme Court of Vermont and therefore respectfully dissent.", "type": "dissent", "author": "John E. Jennings, Judge," }, { "text": "Andree Layton Roaf, Judge,\ndissenting. I agree with the majority and the concurring judge that the absence of the insurance policy from the record does not prevent us from reaching the merits of this case. We have in the record, and properly abstracted, everything the trial judge had before him when he determined that summary judgment should be granted to B & L Products, Inc. The issue is thus whether the trial court properly granted summary judgment based on the information available to him at the time. I do not believe that he did, and would reverse and remand for entry of summary judgment in favor of the appellant, Tri-State Insurance Company.\nIt is abundandy clear that B & L Products was being sued for copyright infringement \u2014 the willful appropriation of the product design of Geographies, Inc. Had the object allegedly copied by B & L Products been a device rather than a notepad, the action against it would have been for patent infringement rather' than copyright infringement. In the context of the litigation against B & L Products, the two terms are thus synonymous, and the act complained of clearly falls outside the definition of \u201cadvertising injury.\u201d\nThe trial court, in granting summary judgment, found that \u201cthe infringing activities of B & L Products, Inc., arose out of advertising activities of B & L Products.\u201d This is certainly not correct, for advertising did not and could not cause this copyright infringement. The injury to Geographies arose from the sales of products bearing its copyrighted designs, however, those products might have found their way onto the shelves of the Office Max stores. Consequently, it is irrelevant how advertising is defined, for it is not an advertising offense that is complained of.\nMoreover, although I agree that the term advertising should be construed broadly and given its plain, ordinary and popular meaning, this is precisely what the trial court failed to do. See, e.g., Columbia Mut. Cas. Ins. Co. v. Coger, 3 Ark. App. 85, 811 S.W.2d 345 (1991). Here, the offense complained of was not committed in the course of advertising B & L Product\u2019s goods, products or services, it was committed when the goods were manufactured. I cannot read the language setting forth as a covered offense, the \u201c[infringement of copyright, title or slogan,\u201d to extend beyond an advertising campaign or scheme to the product itself.\nFor the foregoing reasons, I would reverse and remand for entry of summary judgment in favor of Tri-State Insurance Company.", "type": "dissent", "author": "Andree Layton Roaf, Judge," } ], "attorneys": [ "Wright, Lindsey & Jennings, by: James M. Moody, Jr., and J. Charles Dougherty, for appellant.", "Bachelor, Newell & Oliver, by: C. Burt Newell, for appellee." ], "corrections": "", "head_matter": "TRI-STATE INSURANCE COMPANY v. B & L PRODUCTS, INC., d/b/a Bycin Industries, Inc.\nCA 97-389\n964 S.W.2d 402\nCourt of Appeals of Arkansas Divisions II and III\nOpinion delivered March 11, 1998\nWright, Lindsey & Jennings, by: James M. Moody, Jr., and J. Charles Dougherty, for appellant.\nBachelor, Newell & Oliver, by: C. Burt Newell, for appellee." }, "file_name": "0078-01", "first_page_order": 102, "last_page_order": 112 }