                                                                           F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                         January 20, 2006
                             FOR THE TENTH CIRCUIT                      Elisabeth A. Shumaker
                                                                           Clerk of Court

    TRIPLE M FINANCING, CO., a
    Michigan corporation,

              Plaintiff-Appellant,
                                                          No. 05-3142
     v.                                            (D.C. No. 04-CV-2194-CM)
                                                            (D. Kan.)
    UNIVERSAL UNDERWRITERS
    INSURANCE COMPANY, a Kansas
    corporation,

              Defendant-Appellee.


                             ORDER AND JUDGMENT *


Before KELLY, PORFILIO, and BRORBY, Circuit Judges.



          After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.




*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
      In this insurance contract dispute, plaintiff Triple M Financing, Co. appeals

from the district court’s order granting summary judgment to defendant Universal

Underwriters Insurance Co. At issue is whether Universal Underwriters is

obligated to defend Triple M in a lawsuit alleging patent infringement.

Following careful review of the record and examination of the policy language in

light of the case law, we conclude that the insurance contract does not require

Universal Underwriters to defend Triple M in the patent infringement action. We

therefore affirm the judgment of the district court.

                                    Background

      Defendant Universal Underwriters issued a general commercial liability

policy to Triple M, providing insurance coverage for sums the insured legally

must pay as damages attributable to six groups of injuries. Under the policy,

Universal Underwriters assumed the duty to defend any suit asking for covered

damages, but no duty to defend suits asking for uncovered damages.

      At the time, Triple M financed high-risk borrowers’ purchase or lease of

automobiles. As Triple M explained to prospective borrowers, a computerized

device would be installed in the ignition system of the car. The device would

prevent the car from starting if the borrower failed to make a timely payment.

Driver ID, Inc., which held a patent for a security system designed to allow




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selective operation of a vehicle, sued Triple M for direct and willful infringement

of the patent.

      Triple M then filed this action against Universal Underwriters, seeking a

declaratory judgment that Universal Underwriters had a duty to defend Triple M

in the patent infringement action. Triple M maintained that the claims fell within

coverage for “invasion of . . . possession of personal property” under group 3.

This group of injuries is composed of “false arrest, false imprisonment, wrongful

eviction, wrongful detention, malicious prosecution, abuse of process, libel,

slander, defamation of character, private nuisance (except pollution), invasion of

rights of privacy or possession of personal property.” Aplt. App., Vol. 2 at 361. 1

After reviewing cross-motions for summary judgment, the district court granted

Universal Underwriters’ motion and denied that of Triple M.

                                     Discussion

      We review the district court’s ruling de novo, applying the same standard

as the district court. E.g., Roberts v. Printup, 422 F.3d 1211, 1214 (10th Cir.

2005). Summary judgment is appropriate where the “pleadings, depositions,

answers to interrogatories, and admissions on file, together with the affidavits, if


1
       On appeal, Triple M has abandoned its theory that patent infringement
should be considered “misappropriation of advertising ideas” under the group 4
provision, which includes “plagiarism, misappropriation of advertising ideas or
style, infringement of copyright, title, slogan or trademark.” Aplt. App., Vol. 2 at
361.

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any, show there is no genuine issue of any material fact and that the moving party

is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). We draw all

reasonable inferences in favor of the non-moving party. Roberts, 422 F.3d at

1214. Here, the parties agree that Kansas state law applies and we review the

district court’s determinations of state law de novo, id. at 1215.

      Under Kansas law, the interpretation of a written contract is a question of

law. First Fin. Ins. Co. v. Bugg, 962 P.2d 515, 519 (Kan. 1998). Insurance

policies are to be read as a whole, id. at 521, and “construed according to the

sense and meaning of the terms used,” id. at 519. “[I]f the language is clear and

unambiguous, it must be taken in its plain, ordinary, and popular sense.” Id.

Insurers “have a duty to defend if there is a potential for liability,” but no “duty

exists after a finding that there is no coverage under the insurance policy.”

S. Cent. Kan. Health Ins. Group v. Harden & Co. Ins. Servs., Inc., 97 P.3d

1031, 1035 (Kan. 2004).

      Triple M does not argue that Universal Underwriter’s policy is ambiguous.

Instead, it asserts that the policy’s coverage of a claimed injury for invasion of

possession of personal property extends to Driver ID’s claims. Like the district

court, however, we are “unwilling, from the plain language of the policy, and

especially in light of the underlying claims, to construe the phrase ‘invasion of

possession of personal property’ as covering patent infringement claims.” Aplt.


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App., Vol. 5 at 1079. Read in context, the “reasonable meaning” of the phrase

“does not tend toward inclusion of patent infringement.” Id. Further, it is

significant that “[s]pecific coverage for patent infringement is noticeably absent

from the policy” and that “there were separate insurance policies available to

Triple M that would have provided specific coverage for patent infringement.”

Id. Under the terms of the policy, Universal Underwriters has no duty to defend

Triple M against Driver ID’s claims. 2

      We conclude that Triple M has shown no reversible error in this case. We

therefore AFFIRM the challenged decision for substantially the same reasons

stated by the district court in its thorough order dated February 23, 2005.

                                                    Entered for the Court



                                                    Paul J. Kelly, Jr.
                                                    Circuit Judge




2
      Because we conclude that Universal Underwriters has no duty to defend
against the patent infringement lawsuit, we need not reach Triple M’s issues
regarding the propriety of its tender of claim to Universal.

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