                            NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                             FILED
                            FOR THE NINTH CIRCUIT                              SEP 04 2013

                                                                            MOLLY C. DWYER, CLERK
                                                                             U.S. COURT OF APPEALS

AGRAKEY SOLUTIONS, LLC, and                      No. 12-35269
JOHN REITSMA,
                                                 D.C. No. 1:10-cv-00570-EJL-REB
              Plaintiffs - Appellants,

  v.                                             MEMORANDUM*

MID-CONTINENT CASUALTY
COMPANY,

              Defendant - Appellee.


                    Appeal from the United States District Court
                              for the District of Idaho
                     Edward J. Lodge, District Judge, Presiding

                      Argued and Submitted August 28, 2013
                               Seattle, Washington

Before: HAWKINS, McKEOWN, and CLIFTON, Circuit Judges.

       AgraKey Solutions, LLC and John Reitsma (collectively, “AgraKey”) appeal

the district court’s grant of summary judgment to Mid-Continent Casualty Company

(“Mid-Continent”) on AgraKey’s claim that Mid-Continent breached its contractual



       *
        This disposition is not appropriate for publication and is not precedent except
as provided by Ninth Circuit Rule 36-3.
duty to defend AgraKey. We review the entry of summary judgment de novo,

applying Idaho law and, in the absence of a governing decision from the Idaho

Supreme Court, “using intermediate appellate court decisions, decisions from other

jurisdictions, statutes, treatises, and restatements as guidance.” Trishan Air, Inc. v.

Fed. Ins. Co., 635 F.3d 422, 426–27 (9th Cir. 2011). We affirm.

      Mid-Continent had no duty to defend AgraKey against allegations made by

BioMagic, Inc. (“BioMagic”) in an underlying arbitration action, because those

allegations did not “reveal[] a potential for liability that would be covered by

[AgraKey’s insurance] policy.” Idaho Cntys. Risk Mgmt. Program Underwriters v.

Northland Ins. Cos., 205 P.3d 1220, 1224 (Idaho 2009) (quoting Hoyle v. Utica Mut.

Ins. Co., 48 P.3d 1256, 1264 (Idaho 2002)) (internal quotation marks omitted).

      Specifically, the arbitration action revealed no potential for liability falling

within the policy’s coverage for “disparagement” because BioMagic did not allege

that AgraKey made any “[o]ral, written, or electronic publication of material that . . .




                                           2
disparage[d] [BioMagic’s] goods, products or services,” even impliedly,1 as required

by the policy.

      The arbitration action likewise revealed no potential for liability for “the use of

another’s advertising idea in your advertisement,” because AgraKey was not alleged

to have used any other entity’s advertising idea in its advertisement. Perhaps more

importantly, considering BioMagic’s allegations in context, it is clear that any

reference to AgraKey’s advertising activities was made to expose AgraKey’s alleged

unlicensed use of BioMagic’s product, not to claim damage caused by those activities

themselves. See Constr. Mgmt. Sys., Inc. v. Assurance Co. of Am., 23 P.3d 142, 145

(Idaho 2001); see also Microtec Research, Inc. v. Nationwide Mut. Ins. Co., 40 F.3d

968, 971 (9th Cir. 1994).

      Because BioMagic made no claims that would even potentially be covered by

AgraKey’s insurance policy, the arbitration action did not trigger Mid-Continent’s

duty to defend.

      AFFIRMED.

      1
        BioMagic did not claim, for example, that AgraKey made any publication
regarding the quality of BioMagic’s products, cf. Michael Taylor Designs, Inc. v.
Travelers Prop. Cas. Co. of Am., 495 F. App’x 830, 831 (9th Cir. 2012); Travelers
Prop. Cas. Co. of Am. v. Charlotte Russe Holding, Inc., 207 Cal. App. 4th 969,
972–73 (Ct. App. 2012), nor that AgraKey claimed exclusive ownership of a
BioMagic product, cf. Burgett, Inc. v. Am. Zurich Ins. Co., 830 F. Supp. 2d 953,
963–64 (E.D. Cal. 2011); E.piphany, Inc. v. St. Paul Fire & Marine Ins. Co., 590 F.
Supp. 2d 1244, 1253 (N.D. Cal. 2008); Liberty Mut. Ins. Co. v. OSI Indus., Inc., 831
N.E.2d 192, 199 (Ind. Ct. App. 2005).

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