                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 09a0517n.06

                                          No. 08-4131

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT
                                                                                        FILED
                                                                                     Jul 28, 2009
                                                                              LEONARD GREEN, Clerk
PICA CORPORATION,                                        )
                                                         )
       Plaintiff-Appellant,                              )
                                                         )   ON APPEAL FROM THE UNITED
v.                                                       )   STATES DISTRICT COURT FOR
                                                         )   THE SOUTHERN DISTRICT OF
C LA R E N D O N A M E R IC A IN S U R A N C E           )   OHIO
COMPANY; FIRST MERCURY INSURANCE                         )
COMPANY,                                                 )
                                                         )
       Defendants-Appellees.                             )
                                                         )
                                                         )



       Before: KEITH, GIBBONS, and KETHLEDGE, Circuit Judges.

       KETHLEDGE, Circuit Judge. PICA Corporation (“PICA”) appeals the district court’s grant

of summary judgment in favor of two of PICA’s former insurers, Clarendon America Insurance

Company (“Clarendon”) and First Mercury Insurance Company (“Mercury”). PICA sued Clarendon

and Mercury seeking a declaration that they had a duty to defend PICA in a separate lawsuit brought

by MMCA Group LTD (“MMCA”). We affirm.

                                                I.

       Clarendon insured PICA under a Commercial General Liability policy that ran from October

15, 2003 through October 15, 2004. Mercury insured PICA under a substantially identical policy

that ran from October 15, 2004 through October 15, 2005. Both policies included identical Errors
No. 08-4131
PICA v. Clarendon

and Omissions endorsements requiring the companies to “pay those sums that [PICA] becomes

legally obligated to pay as damages resulting from errors or omissions in the practices of [PICA’s]

business.” Clarendon and Mercury Errors and Omissions Endorsements at 1. The endorsements

gave the companies “the right and duty to defend any ‘suit[’] seeking those damages.” Id.

       The relevant coverage applied only to “injury, other than ‘bodily injury,’ ‘property damage,’

‘personal injury’ or ‘advertising injury,’ which is caused by an ‘occurrence’ that occurs during the

policy period and that takes place in the ‘coverage territory.’” Id. An “occurrence,” according to

the policies, meant “an accident, including continuous or repeated exposure to substantially the same

general harmful conditions.” Clarendon and Mercury Commercial Gen. Liab. Coverage Forms at

12 (emphasis added). The policies also enumerated several exceptions to coverage, one of which

was “damages arising out of . . . [PICA’s] employment or personnel practices[.]” Clarendon and

Mercury Errors and Omissions Endorsements at 2.

       MMCA sued PICA in federal court in California, asserting, inter alia, claims for interference

with a prospective economic advantage and misappropriation of trade secrets. The complaint

specifically alleged that PICA unlawfully “contacted and solicited” MMCA employees to work for

PICA. Complaint at 25, MMCA Group, Ltd. v. Hewlett-Packard Co., No. 06-7067 (N.D. Cal. Feb.

20, 2007). MMCA further alleged that PICA was “aware of the employment status of the MMCA

employees and associates being contacted and solicited[.]” Id. This conduct allegedly resulted in

the loss of several “key employees and associates” to competitors, which damaged MMCA. Id.

       PICA tendered its defense of the suit to Clarendon and Mercury, arguing that the injury

alleged in MMCA’s complaint was subject to coverage under the Errors and Omissions

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No. 08-4131
PICA v. Clarendon

endorsements. Both companies denied coverage, however, explaining that MMCA’s claims did not

stem from an “occurrence,” i.e., an “accident.”

       PICA then sued Clarendon and Mercury in the Franklin County Court of Common Pleas,

seeking a declaration that the companies had a duty to defend PICA. Defendants removed the case

to federal court, and the parties thereafter filed motions for summary judgment. The district court

granted summary judgment in favor of Clarendon and Mercury, finding that “occurrence” meant

“accident” as defined in the agreement, that MMCA’s lawsuit did not allege injury due to an

accident, and that, as a result, Clarendon and Mercury had no duty to defend PICA from MMCA’s

lawsuit.

       This appeal followed.

                                                  II.

       We review the district court’s grant of summary judgment de novo. Northup Props., Inc. v.

Chesapeake Appalachia, LLC, 567 F.3d 767, 771 (6th Cir. 2009). “Summary judgment is

appropriate if a party who has the burden of proof at trial fails to make a showing sufficient to

establish the existence of an element that is essential to that party’s case.” Muncie Power Prods.,

Inc. v. United Techs. Auto., Inc., 328 F.3d 870, 873 (6th Cir. 2003).

       The policies state that the law of the insured’s chosen forum governs their interpretation,

which in this case is Ohio. Thus we interpret the policies under Ohio law.

       PICA argues that the district court erred when it limited the definition of “occurrence” to

“accident.” “Occurrence,” PICA contends, is “commonly understood to have a broader meaning

than accident because it includes events that happen in any way at all.” PICA’s Br. at 17. But the

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PICA v. Clarendon

term’s “broader meaning” is irrelevant; “[w]hen a contract term is defined in the policy, that

definition controls what the term means.” Watkins v. Brown, 646 N.E.2d 485, 487 (Ohio Ct. App.

1994). Here, the policies define “occurrence” as “accident.” The Ohio Supreme Court holds that

where an insurance contract defines “occurrence” as “accident,” the term was “intended to mean just

that[:] an unexpected, unforeseeable event.” Randolf v. Grange Mut. Cas. Co., 385 N.E.2d 1305,

1307 (Ohio 1979). PICA must establish, therefore, that MMCA’s complaint alleges injury as the

result of an unexpected, unforeseen event.

        PICA contends it meets this test because MMCA’s interference and misappropriation claims

do not include an express allegation that PICA intended harm, and because California law—which

is what governs MMCA’s claims—does not require such intent. But those contentions too are

ultimately beside the point. MMCA’s complaint alleges that PICA knowingly raided MMCA of

employees who themselves had knowledge of important trade secrets. Whether that allegation has

merit is beyond the scope of this appeal; but what is entirely clear is that neither the alleged conduct

nor the alleged resultant injury to MMCA was at all unexpected or unforeseeable to PICA. And that

means MMCA’s claims do not even arguably fall within the scope of PICA’s Errors and Omissions

coverage. There simply is no genuine issue as to that fact.

        The district court’s judgment is affirmed.




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