                                                                                   [PUBLISH]

                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT
                             ________________________
                                                                 FILED
                                    No. 10-13913        U.S. COURT OF APPEALS
                             ________________________ ELEVENTH CIRCUIT
                                                          SEPTEMBER 19, 2011
                       D.C. Docket No. 3:09-cv-01135-HES-MCR JOHN LEY
                                                                CLERK

TRAILER BRIDGE, INC.,
a Delaware corporation,
                                                                          Plaintiff-Appellant,


                                            versus


ILLINOIS NATIONAL INSURANCE COMPANY,
an Illinois corporation,

                                                                        Defendant-Appellee.
                               ________________________

                      Appeal from the United States District Court
                          for the Middle District of Florida
                            ________________________


                                   (September 19, 2011)

Before HULL and ANDERSON, Circuit Judges, and VINSON,* District Judge.

PER CURIAM:

       *
         Honorable C. Roger Vinson, United States District Judge for the Northern District of
Florida, sitting by designation.
      Trailer Bridge, Inc., appeals the district court’s grant of summary judgment

in favor of Defendant Illinois National Insurance Co. on Plaintiff Trailer Bridge’s

complaint alleging that Illinois National failed to defend Trailer Bridge in an

underlying antitrust action and thereby breached its commercial general liability

insurance policy (the “Policy”) issued to Trailer Bridge for the year July 2004 to

July 2005.

      Subject to certain conditions, Illinois National agreed in the Policy to pay

any sums that Trailer Bridge became legally obligated to pay as damages because

of “personal and advertising injury” and to defend Trailer Bridge against any suit

seeking such damages. The Policy defines “personal and advertising injury” as

“injury, including consequential ‘bodily injury,’ arising out of . . . [t]he use of

another’s advertising idea in your ‘advertisement.’” Although failing to define

“advertising idea,” the Policy defines “advertisement” as “a notice that is

broadcast or published to the general public or specific market segments about

your goods, products or services for the purpose of attracting customers or

supporters.”

      In 2008, various entities sued Trailer Bridge and other defendants for

conspiring to fix prices of cabotage services between the United States and Puerto

Rico in violation of the Sherman Antitrust Act. In a section titled “Fraudulent

                                           2
Concealment,” the underlying antitrust complaint alleges that, between 2002 and

April 2008, the defendants affirmatively concealed their unlawful activity. The

complaint alleges that the defendants met in secret and issued materially false

public statements about the reasons for rate and surcharge increases. As an

example, the complaint alleges that Trailer Bridge’s CEO noted in an interview

“that customer decisions were driven by ‘[p]rice in an all-inclusive sense, which

starts with the freight rate,’ implying that Defendants could not rig bids or set and

increase rates, surcharges or fees, and therefore were not doing so, or otherwise

acting anti-competitively.” The complaint asserts that this allegedly misleading

statement was an attempt to conceal Trailer Bridge’s ability to rig bids and effect

supra-competitive rates.

      In this case before the district court, Trailer Bridge argued that Defendant

Illinois National owed a duty to defend the antitrust action under the Policy’s

coverage for “personal and advertising injury.” Trailer Bridge pointed out that the

CEO’s interview was published in The Wall Street Transcript, a newsletter

targeted at long-term investors. Trailer Bridge argued that the interview was an

“advertisement” within the meaning of the Policy and that the CEO’s statement

deployed the “advertising idea” of “another” because the CEO’s misleading




                                          3
justifications for price increases must have originated with Trailer Bridge’s

competitors (and alleged co-conspirators).

       Granting summary judgment, the district court concluded1 that Defendant

Illinois National had no duty to defend Trailer Bridge because (1) the CEO’s

allegedly misleading statement – made in an interview aimed at investors and

describing general market conditions – was not an “advertisement” for the

company, (2) even if the statement constituted an advertisement, the CEO’s brief

description of market conditions did not involve the use of an “advertising idea,”

(3) even if the CEO’s statement was an advertising idea, the antitrust complaint

failed to allege that the advertising idea “belonged to another,” and (4) even if the

antitrust complaint alleged an advertising injury under the Policy, the injury did

not cause the antitrust plaintiffs’ damages because the antitrust plaintiffs sought

relief only for antitrust violations, not for misappropriation of an advertising idea.2

       In this appeal, Trailer Bridge asserts an array of arguments on why the

district court erred. But the arguments all stem from the central issue of whether

the CEO’s statement triggered the duty to defend under the “personal and

       1
        The district court concluded, and neither party disputes, that Florida law applies to the
construction and application of the Policy.
       2
        The district court declined to address any exclusion in the Policy because it concluded,
for purposes of summary judgment, that Illinois National had conceded that none of the
exclusions was applicable.

                                                 4
advertising injury” provision in the Policy. After review and oral argument, we

conclude that the district court did not err in granting summary judgment for

Illinois National for the reasons set forth in the district court’s thorough and well-

reasoned order, which we adopt as our own.3 For the convenience of the reader,

we reproduce the district court’s order as an appendix to this opinion.

       In particular, we agree with the district court’s rejection of Trailer Bridge’s

convoluted argument that the CEO’s statement deployed the advertising idea of

“another.” The Policy defines “advertising injury” as an injury arising from “[t]he

use of another’s advertising idea in your ‘advertisement.’” We reject Trailer

Bridge’s contention that the use of a co-defendant’s (and alleged co-conspirator’s)

idea – as opposed to the idea of a plaintiff in the underlying antitrust action –

could qualify as an “offense” under the Policy. See Rose Acre Farms, Inc. v.

Columbia Cas. Co., 772 F. Supp. 2d 994, 1003 (S.D. Ind. 2011) (rejecting a

similar argument and noting that research revealed no case in which “an

underlying complaint for antitrust injury triggered an insurer’s duty to defend for

an advertising injury caused by . . . ‘the use of another’s advertising idea in your



       3
         We note that the district court considered the entirety of the interview given by Trailer
Bridge’s CEO, and not just the part thereof referred to in the complaint. Even if that were error,
see Jones v. Fla. Ins. Guar. Ass’n, Inc., 908 So.2d 435 (Fla. 2005), and even if we too accepted
Trailer Bridge’s invitation to consider the entire interview, our decision would be unchanged.

                                                 5
advertisement’”). The underlying plaintiffs sought only antitrust damages; they

did not seek to impose any legal obligation upon the insured to pay them damages

“because of . . . advertising injury.” No facts were alleged in the underlying

complaint on the basis of which the underlying plaintiffs might have recovered

damages “because of . . . advertising injury”; and the underlying plaintiffs could

not have recovered such damages because the allegedly misappropriated

“advertising idea” was not that of the underlying plaintiffs, but rather was alleged

to have been the advertising idea of other parties altogether.

      AFFIRMED.4




      4
          Trailer Bridge’s request for certification to the Florida Supreme Court is DENIED.

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