10-1317-cv
Gartner, Inc. v. St. Paul Fire & Marine Ins. Co.

                                    UNITED STATES COURT OF APPEALS
                                        FOR THE SECOND CIRCUIT

                                                   SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN
CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE
EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
“SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY
PARTY NOT REPRESENTED BY COUNSEL.

       At a stated term of the United States Court of Appeals for the Second Circuit, held
at the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of
New York, on the 17th day of March, two thousand eleven.

PRESENT: PIERRE N. LEVAL,
                 REENA RAGGI,
                 PETER W. HALL,
                         Circuit Judges.
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GARTNER, INC.,
                         Plaintiff - Counter-Defendant - Appellant,

                                  v.                                            No. 10-1317-cv

ST. PAUL FIRE AND MARINE INSURANCE CO.,
                         Defendant - Counter-Claimant - Appellee.
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APPEARING FOR APPELLANT:                               STEVEN L. SCHRECKINGER, Lynch, Brewer,
                                                       Hoffman & Fink, LLP, Boston, Massachusetts.

APPEARING FOR APPELLEE:                                ROBERT L. CIOCIOLA (Melicent B. Thompson,
                                                       Kathleen F. Adams, on the brief), Litchfield
                                                       Cavo, LLP, Avon, Connecticut.


           Appeal from the United States District Court for the District of Connecticut (Janet

Bond Arterton, Judge).
       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment entered on March 11, 2010, is AFFIRMED.

       Plaintiff Gartner, Inc., appeals from an award of summary judgment in favor of

defendant St. Paul Fire and Marine Insurance Co. (“St. Paul”) on Gartner’s duty-to-defend

claim. We review an award of summary judgment de novo, see El Sayed v. Hilton Hotels

Corp., 627 F.3d 931, 933 (2d Cir. 2010), and we affirm only where “the movant shows that

there is no genuine dispute as to any material fact and the movant is entitled to judgment as

a matter of law,” Fed. R. Civ. P. 56(a). We assume the parties’ familiarity with the facts and

record of prior proceedings, which we reference only as necessary to explain our decision

to affirm.

       Gartner submits that the district court erred in concluding as a matter of law that St.

Paul had no duty to defend Gartner in an action filed by Expert Choice, Inc. (“ECI”)

asserting various claims with respect to ECI’s intellectual property. Gartner asserts that

ECI’s complaint can be construed to allege personal and/or advertising injuries, triggering

St. Paul’s duty to defend. Under Connecticut law, which controls this action, an insurer’s

duty to defend, being much broader in scope and application than its duty to indemnify,

depends not on the manner in which the injured’s complaint is drafted, but rather on its

“substantive thrust” and the facts alleged therein. R.C. Bigelow, Inc. v. Liberty Mut. Ins.

Co., 287 F.3d 242, 245-46 (2d Cir. 2002) (citing QSP, Inc. v. Aetna Cas. & Sur. Co., 256

Conn. 343, 376, 773 A.2d 906, 927 (2001), and Springdale Donuts, Inc. v. Aetna Cas. & Sur.

Co. of Ill., 247 Conn. 801, 807, 724 A.2d 1117, 1120 (1999)). We adhere to “broad

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interpretation” standards in construing an insurance policy under Connecticut law. QSP, Inc.

v. Aetna Cas. & Sur. Co., 256 Conn. at 376, 773 A.2d at 927 (internal quotation marks

omitted). Nevertheless, for substantially the reasons stated in the district court’s thorough

and well-reasoned opinion, we independently conclude that the allegations in ECI’s

complaint do not fall “‘even possibly within the coverage’” of the personal or advertising

injury provisions. Id. (quoting Moore v. Cont’l Cas. Co., 252 Conn. 405, 409, 746 A.2d

1252, 1254 (2000)).

       In urging otherwise, Gartner submits that ECI’s allegations can be construed to charge

disparagement, which comes within both the personal injury and advertising injury

provisions. We are not persuaded. To the extent ECI’s complaint charges Gartner with

representing that ECI’s product was “obsolete,” it fails to allege that Gartner communicated

such disparagement to any third party so as to trigger coverage. See Springdale Donuts, Inc.

v. Aetna Cas. & Sur. Co. of Ill., 247 Conn. at 810-11, 724 A.2d at 1122 (concluding that

there was no duty to defend under personal injury provision requiring “publication” of

slanderous material where underlying action failed to allege insured communicated

disparaging information to third party). Indeed, in context, it is plain that ECI’s complaint

charges Gartner with communicating the “obsolete” opinion to ECI itself in order to lure it

into fruitless licensing renegotiations. Am. Compl. ¶ 74. Gartner contends ECI’s allegation

that Gartner’s description of its methodology as “new” in the course of “tout[ing]” a tutorial

for the Decision Drivers product, id. ¶ 56, constituted an allegation of disparagement of

ECI’s product. Contrary to Gartner’s contention, these allegations cannot plausibly be read

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to suggest that ECI was accusing Gartner of disparaging, explicitly or implicitly, ECI’s

product. Instead, the “substantive thrust” of the allegations, like that of ECI’s complaint

generally, is that Gartner misappropriated ECI’s software, passed it off as its own, and

misrepresented to ECI that it developed its product independently of ECI’s intellectual

property. R.C. Bigelow, Inc. v. Liberty Mut. Ins. Co., 287 F.3d at 246. This is not a claim

for personal or advertising injury. Nor does ECI’s complaint accuse Gartner of otherwise

disparaging ECI’s product.

       Gartner also faults the district court for not considering whether ECI’s complaint

could be read to allege Gartner’s wrongful use of the terms “Decision Drivers,” “Analytic

Hierarchy Process,” “AHP,” “decision-making methodology,” and “decision tools” in its

advertising. In fact, ECI’s complaint does not allege that ECI has any proprietary interest

in those terms, which would be necessary to charge Gartner with “[u]nauthorized use of any

advertising material, slogan or title of others,” so as to trigger advertising injury coverage.

St. Paul Technology Commercial General Liability Protection Agreement 3 (emphasis

added). Indeed, ECI’s complaint plainly indicates that the term “Decision Drivers” belonged

to Gartner, not ECI, see, e.g., Am. Compl. ¶ 64, and that ECI was only “one of the world’s

leading vendors of AHP-based decision software,” id. ¶ 6 (emphasis added), implying no

exclusive right to use that acronym. Extrinsic materials referenced by Gartner do not alter

this conclusion; they demonstrate only that ECI sought broad discovery of Gartner’s

revenues on the theory that ECI was entitled to royalties from any use of its intellectual

property under the parties’ licensing agreements. Accordingly, any allegation that Gartner

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used the identified terms in its advertising did not trigger coverage under the advertising

injury provision.

       Because we conclude that St. Paul had no duty to defend under the personal or

advertising injury provisions, we do not address whether specific exclusion provisions or the

doctrine of laches preclude Gartner’s claims.

       We have considered Gartner’s remaining arguments and conclude that they are

without merit. For the foregoing reasons, the district court’s judgment is AFFIRMED.


                                   FOR THE COURT:
                                   CATHERINE O’HAGAN WOLFE, Clerk of Court




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