Insurance Claim – Duty to Defend

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WI Supreme Court

Case Name: West Bend Mutual Insurance Company v. Ixthus Medical Supply, Inc., et al.

Case No.: 2019 WI 19

Focus: Insurance Claim – Duty to Defend

In this duty to defend case, West Bend Mutual Insurance Company asks us to reverse the court of appeals’ decision holding that the allegations in Abbott Laboratories’ complaint against Ixthus Medical Supply, Inc. alleged a potentially covered advertising injury, and as a result, triggered West Bend’s duty to defend under the commercial general liability policy West Bend issued to Ixthus. West Bend argues the court of appeals erred when it determined: (1) Abbott’s complaint2 alleged a causal connection between the advertising activity and injury; and (2) the knowing violation exclusion did not apply. West Bend further contends that the criminal acts exclusion applies, thereby removing any duty to defend, or alternatively that application of the fortuity doctrine, public policy, and the reasonable expectation of an insured each independently eliminates its duty to defend.

We hold the allegations in Abbott’s complaint fall within the initial grant of coverage under the “personal and advertising injury liability” provision of the commercial general liability insurance policy West Bend issued to Ixthus. We further hold that neither the knowing violation nor the criminal acts exclusions apply to remove West Bend’s duty to defend. Finally, we do not address West Bend’s argument that the fortuity doctrine, public policy, and the reasonable expectation of an insured eliminate its duty to defend because West Bend failed to adequately raise or develop these contentions. We affirm the decision of the court of appeals.

Affirmed

Concur:

Dissent:

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Derek A Hawkins is trademark corporate counsel for Harley-Davidson. Hawkins oversees the prosecution and maintenance of the Harley-Davidson’s international trademark portfolio in emerging markets.