                                                                                   [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

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


                                            2
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

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

competitors (and alleged co-conspirators).


                                          3
       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

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


       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
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 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

       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
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.

                                                6
Case 3:09-cv-01135-HES-MCR Document 48                Filed 07/22/10 Page 1 of 14 PageID 834
                                                                                             FILED

                            UNITED STATES DISTRICT COURT
                             MIDDLE DISTRICT OF FLORIDA
                               JACKSONVILLE DIVISION
                                                                                   zmo JUL 22       0   3: 20
                                                                                  C,~,ERK. us DIS TRIC Tr:CUi\ r
                                                                                1'1!~t~J. P~STRICr OF FLORIDA
                                                                                   J"l"r,:..uH'/it Lt. rUm/D,\

TRAILER BRIDGE, INC.,
a Delaware corporation,

       Plaintiff,
                                                               Case No.: 3:09-cv-1135-J-20MCR
vs.

ILLINOIS NATIONAL INSURANCE
COMPANY, an Illinois corporation,

     Defendant.
_ _ _ _ _ _ _ _ _ _ _ _ _ _ _----:1


                                            ORDER

       Before this Court is Plaintiff Trailer Bridge, Inc.'s Motion for Partial Summary Judgment

Re Illinois National Insurance Company's Duty to Defend (Doc. II, filed December 15,2009);

Defendant Illinois National Insurance Company's Motion for Summary Judgment and Response

in Opposition to Plaintiff Trailer Bridge's Motion for Partial Summary Judgment (Doc. 21, filed

January 25, 2010); and Plaintiff Trailer Bridge, Inc.'s Opposition to Defendant Illinois National

Insurance Company's Motion for Summary Judgment (Doc. 25, filed February 4,2010).

I. Statement of Facts l

       Plaintiff, Trailer Bridge, Inc. ("Trailer Bridge"), is a Delaware corporation with its

principal place of business in Jacksonville, Florida. Trailer Bridge offers integrated freight



        I This Court's use of the word "facts" is solely for purposes of deciding the Motions
before it. Kelly v. Curtis, 21 F.3d 1544, 1546 (11th CiT. 1994) (citation omitted).
Case 3:09-cv-01135-HES-MCR Document 48                  Filed 07/22/10 Page 2 of 14 PageID 835



 shipping services between the continental United States and Puerto Rico. At issue in this case is

 whether its insurer, Illinois National Insurance Company (,'Illinois National ll ), has a duty to

 defend or indemnify Trailer Bridge in a separate action.

         Illinois National issued Commercial General Liability Policy No. TGL 989-58-40 ("the

 Policyll) to Trailer Bridge for the policy period July 1,2004, to July 1,2005. (Doc. 1-1, Exhibit

 I, filed November 19, 2009). Subject to certain conditions, Illinois National agreed to pay any

 damages Trailer Bridge became legally obligated to pay because of "personal and advertising

 injury," and defend against any suit seeking those damages. [d. at 12. "Personal and advertising

 injuryll is defined by the Policy as:

         injury ... arising out of one or more of the following offenses:

                 a. False arrest, detention or imprisonment;

                 b. Malicious prosecution;

                c. The wrongful eviction from, wrongful entry into, or invasion of the right
                ofprivate occupancy of a room, dwelling or premises that a person occupies,
                committed by or on behalf of its owner, landlord or lessor;

                 d. Oral or written publication, in any manner, of material that slanders or
                 libels a person or organization or disparages a person's or organization's
                 goods, products or services;

                e. Oral or written publication, in any manner, of material that violates a
                person's right of privacy;

                 f. The use of another's advertising idea in your Il advertisement"; or

                g. Infringing upon another's copyright, trade dress or slogan in your
                "advertisement"[.]

[d. at 21.




                                                    2
Case 3:09-cv-01135-HES-MCR Document 48                  Filed 07/22/10 Page 3 of 14 PageID 836



        In 2008, various entities filed class action lawsuits against Trailer Bridge and other

 parties in different U.S. district courts. The actions shared factual questions relating to

 allegations that Trailer Bridge and others conspired to fix prices of cabotage services to and from

 Puerto Rico, in violation of the Shennan Antitrust Act. On August 13,2008, the Judicial Panel

 on Multidistrict Litigation consolidated and transferred those cases, along with all related future

 actions, to the United States District Court for the District of Puerto Rico for pre-trial

 administration. The underlying consolidated action is captioned In Re Puerto Rican Cabotage

Antitrust Litigation, MOL Docket No. 3:08-md-1960 (ORO) ("Antitrust Litigation").

        On April 29, 2008, through May 7, 2008, Trailer Bridge provided Illinois National with

copies of the initial class action complaints and requested that the company provide a defense to

the suits. By letter dated August 19, 2008, Illinois National notified Trailer Bridge that the

 actions did not implicate coverage under the Policy. However, on May 18, 2009, Trailer Bridge

retendered the individual complaints and the consolidated second amended complaint. After

reviewing the pleadings, Illinois National again found that no coverage existed under the Policy.

Thereafter, Illinois National also denied a defense to the Antitrust Litigation upon receipt of the

consolidated third and fourth amended complaints.

        On November 19, 2009, Trailer Bridge filed its Complaint in this Court for breach of

contract and declaratory judgment. (Doc. 1). The two-count Complaint asserts that the

complaint filed in the Antitrust Litigation alleges a personal and advertising injury offense, and

thus, Illinois National 1) owes Trailer Bridge a duty to defend, and 2) breached the insurance

contract by failing to provide a defense.




                                                   3
Case 3:09-cv-01135-HES-MCR Document 48                   Filed 07/22/10 Page 4 of 14 PageID 837



II. Discussion

        Trailer Bridge moved for summary judgment on the specific issue of whether Illinois

National owes a duty to defend in the Antitrust Litigation. IlIinois National submitted its

memorandum in opposition and its cross motion for summary judgment on the issues of whether

it owes Trailer Bridge a duty to defend and whether it has an obligation to indemnify.

        a. Standard of Review

        Summary judgment is proper if, following discovery, the pleadings, depositions, answers

to interrogatories, affidavits, and admissions on file show that there is no genuine issue as to any

material fact in dispute and that the moving party is entitled to judgment as a matter oflaw.

Celotex Corp. v. Catrett, 477 U.S. 317 (1986); Fed. R. Civ. P. 56. Further, when the essential

facts of the case are not in dispute, it is appropriate for a district court to interpret an insurance

contract to determine whether any ambiguities exist as a matter oflaw. Gulf Tampa Drydock Co.

v. Great Atl. Ins. Co., 757 F.2d 1172, 1174 (lith Cir. 1985).

       b. Choice of Law and Contract Construction

       This case is before this Court on diversity jurisdiction. In diversity actions, the federal

court must apply the substantive law of the state in which it sits, "except in matters governed by

the Federal Constitution or by act of Congress. II Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78

(1938). Because the insurance contract was issued in Florida and the questions before this Court

are ones of contract construction, it is undisputed that Florida law governs the meaning of the

Policy and its application to the facts of this case. In the absence of precedents from Florida's

courts, however, the case law of other jurisdictions that have examined similar policy provisions




                                                   4
Case 3:09-cv-01135-HES-MCR Document 48                  Filed 07/22/10 Page 5 of 14 PageID 838



may be considered to detennine the issues of state law as this Court believes the Florida Supreme

Court would. State Farm Fire and Cas. Co. v. Steinbergt 393 F.3d 1226t 1231 (11 th Cir. 2004).

        "In insurance coverage cases under Florida law t courts look at the insurance policy as a

whole and give every provision its 'full meaning and operative effect.'" State Farm Fire and Cas.

CO. t 393 at 1230 (quoting Hyman v. Nationwide Mut. Fire Ins. Co., 304 F.3d 1179, 1186 (lith

Cir. 2002». "[I]nsurance contracts are construed according to their plain meaning. Ambiguities

are construed against the insurer and in favor of coverage." Taurus Holdings. Inc. v. U.S.

Fidelity and Guar. CO. t 913 So.2d 528, 532 (Fla. 2005). "Although ambiguous provisions are

construed in favor of coverage, to allow for such a construction the provision must actually be

ambiguous. II Id. Courts are not pennitted to "rewrite contracts, add meaning that is not present,

or otherwise reach results contrary to the intentions of the parties." Id. (internal quotation marks

omitted).

        c. Duty to Defend

        In Florida, "the general rule is that an insurance company's duty to defend an insured is

detennined solely from the allegations in the complaint against the insured t not by the true facts

of the cause of action against the insured t the insured's version of the facts or the insured's

defenses." State Farm Fire and Cas. Co. t 393 F.3d at 1230 (citing Amerisure Ins. Co. v. Gold

Coast Marine Distribs.. Inc. t 771 So.2d 579, 580-81 (Fla. 4th DCA 2000». The insurer must

provide a defense in the underlying action if the complaint states facts that bring the injury within

the policy's coverage. Id. "If the complaint alleges facts partially within and partially outside the

scope of coverage t the insurer is obligated to defend the entire suit." Lazzara Oil Co. v.

Columbia Cas. Co., 683 F. Supp. 777 779 (M.D. Fla. 1988). The merits of the underlying suit
                                        t




                                                   5
Case 3:09-cv-01135-HES-MCR Document 48                 Filed 07/22/10 Page 6 of 14 PageID 839



have no bearing on whether the duty is owed. State Farm Fire and Cas. Co., 393 F.3d at 1230.

"Furthennore, any doubt about the duty to defend must be resolved in favor of the insured.

Coverage is determined from examining the most recent amended pleading, not the original

pleading. II !d. (citation omitted).

        The parties agree that no material facts are in dispute. Illinois National's duty to defend

depends entirely on interpretation of the Policy and its application to the allegations of the

underlying complaint. Since these issues are matters of law, this question is appropriate for

summary judgment.

        The parties filed a Joint Notice to Court (Doc. 43, filed June 2,2010) representing that

Trailer Bridge was dismissed with prejudice from the Antitrust Litigation on April 30, 2010.

Thus, the Fourth Amended Class Action Complaint (Doc. S-I, filed May 12,2010) ("Antitrust

Complaint") is the most recent pleading in which Trailer Bridge is named as a party. The

Antitrust Complaint alleges violations of the Sherman Antitrust Act, 15 U.S.C. §§ 1,3.2 It

claims the underlying defendants restricted competition through a continuing agreement to

allocate customers, rig bids, and fix rates, surcharges, and other fees. (Doc. S-l at 59-61). The

Antitrust Complaint further alleges the underlying defendants attempted to conceal their scheme,

in part, by making false and misleading public statements about the reasons for rate and

surcharge increases. Id. at 54-57. As an example, it points to a portion of an interview given by




         2 This Court notes that sections of the Antitrust Complaint, which is currently filed under

seal, are quoted within this Order. See Order (Doc. 40, signed April 22, 2010). All material
discussed or quoted, however, is substantially similar to the allegations contained in the complaint
filed in the public record. See Second Consolidated Amended Class Action Complaint (Doc. 1-2,
Exhibit 4, filed November 19, 2009).

                                                  6
Case 3:09-cv-01135-HES-MCR Document 48                   Filed 07/22/10 Page 7 of 14 PageID 840



Trailer Bridge's CEO in 2005. [d. at 56. He is quoted as stating "that customer decisions were

driven by '[p]rice in an all-inclusive sense, which starts with the freight rate[.]'" [d.

           The plaintiffs in the Antitrust Litigation took these statements to imply the underlying

"Defendants could not rig bids or set and increase rates, surcharges or fees, and therefore were

not doing so[.]" [d. They allegedly "lulled [the underlying] Plaintiffs and members of the class

into believing that the price increases were the normal result of competitive market forces rather

than the product of [the underlying] Defendants' anti-competitive efforts." [d.

           Trailer Bridge argues that the above allegations against it "potentially evidence 'use of

another's advertising idea in [its] advertisement' so as to fall within the potential coverage for

offense section" of the Policy. (Doc. 11 at 2). It claims an implication of market driven pricing

constitutes an advertising idea, id. at 13, and the Antitrust Complaint indicates the idea was

already used by its co-defendants in the underlying action, thus making it an idea of another's. [d.

at 10. 3

                  i. Advertising Injury

           Illinois National takes issue with Trailer Bridge's interpretation of the Policy. According

to Illinois National, the Antitrust Complaint does not allege wrongful acts were committed in

Trailer Bridge's "advertisement." or that Trailer Bridge used "another's advertising idea. 1I

Because the Antitrust Complaint fails to contain allegations comprising an advertising injury

offense, it arbrues coverage is not implicated under the Policy.


         3 Trailer Bridge argues that multiple Policy exclusions, including the exclusion for injury
arising out of criminal acts, do not apply in this case. [d. at 19-25; see Doc. I-I, Exhibit I, at 13.
Illinois National fails to oppose the arguments, and merely claims that this Court need not consider
their applicability at this time. (Doc. 21 at 31). Thus, for the purposes of this Motion, Illinois
National has conceded the issue.

                                                    7
Case 3:09-cv-01135-HES-MCR Document 48                  Filed 07/22/10 Page 8 of 14 PageID 841



        The Policy states Illinois National has a duty to defend against any cases seeking damages

because of personal and advertising injury. (Doc. I-I, Exhibit I, at 12). "Personal and

advertising injury" is defined as injury arising out of specific, enumerated offenses, including

"[t]he use of another's advertising idea in your 'advertisement[.]'" Id. at 21. 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." Id. at 19.

        The disputed quotation derives from an article published by The Wall Street Transcript

("Periodical"). (Doc. 1-1, Exhibit 5, filed November 19,2009). The article, based on an

interview of Trailer Bridge's past CEO, covers multiple topics, ranging from what types of assets

the company owns and descriptions of its services, to the CEO's general outlook on the relevant

market. While it could conceivably lead to additional customers or supporters for Trailer Bridge,

that in no way appears to be the article's purpose. Its purpose, instead, seems to be purely

informational. The Periodical questioned the CEO so that it could provide a summary of the

company and market to its readership. No representation is made that Trailer Bridge paid the

Periodical to publish the article or directed its content in any way. Including quotes from Trailer

Bridge's CEO, which happen to be beneficial to the company, does not transform the article into

an advertisement of the company's. Notwithstanding, even if the Antitrust Complaint identified a

relevant advertisement, it still fails to allege facts showing use of "another's advertising idea."

       The Policy does not define "advertising idea." Yet, the Eleventh Circuit, applying Florida

law, has construed the term to mean "any idea or concept related to the promotion of a product to

the public." Hyman v. Nationwide Mut. Fire Ins. Co., 304 F.3d 1179, 1188 (lIth Cir. 2002). Put


                                                   8
Case 3:09-cv-01135-HES-MCR Document 48                     Filed 07/22/10 Page 9 of 14 PageID 842



another way, "[a]n advertising idea is a concept about the manner a product is promoted to the

public." Gemini Ins. Co. v. The Andy Boyd Co., Civil Action No. H-05-1861, 2006 WL

1195639, at *2 (S.D. Tex. May 3,2006) (citing Hyman, 304 F.3d at 1188).

        It is merely asserted that Trailer Bridge made misleading statements about the reasons for

increased prices, specifically, representing "that customer decisions were driven by '[p]rice in an

all-inclusive sense, which starts with the freight rate.   III   (Doc. S-1 at 56). No effort was made to

differentiate or promote any aspect of Trailer Bridge's products or services. Instead, the

statement provided a brief explanation of the factors affecting price in the entire Puerto Rican

cabotage market. Cf. American Simmental Ass'n v. Coregis Ins. Co., 282 F.3d 582, 587 (8th Cir.

2002) ("The plain and ordinary meaning of 'advertising idea' generally encompasses an idea for

calling public attention to a product or business, especially by proclaiming desirable qualities so

as to increase sales or patronage." (internal quotation marks omitted)); Proxima Corp. v. Federal

Ins. Co., 26 F.3d 132, at *1 (9th Cir. 1994) (unpublished table decision) (holding that the shape

of a product was not an advertising idea because there was no allegation in the complaint "that

the design itself [was] a trademark, or [was] intended to distinguish the product from others that

might enter the market." (citation omitted)). Regardless of whether the statement lulled

customers into believing rates were controlled by the free market, its purpose does not appear

related to promoting Trailer Bridge's product.

       Even assuming, however, the explanation amounted to an advertising idea, the Antitrust

Complaint fails to allege it belonged to another. Under the Policy, the advertising idea used must

be "another's" to meet the definition ofthe claimed offense. (Doc. 1-1, Exhibit 1, at 21).

According to Trailer Bridge, the Antitrust Complaint implies the idea was used by its co-


                                                   9
Case 3:09-cv-01135-HES-MCR Document 48                   Filed 07/22/10 Page 10 of 14 PageID 843



 conspirators prior to the date of the CEO's interview. (Doc. II at 10; Doc. 25 at 9). It argues

 this, paired with the pleading's failure to allege or imply Trailer Bridge created the idea, "raise[s]

 the unavoidable inference that the subject 'advertising idea' originated with an entity other than

 Trailer Bridge. 1I (Doc. 25 at 9).

           Trailer Bridge asks this Court to infer too much. "[C]ourts need not stretch the

 allegations beyond reason to impose a duty on the insurer." Holloway Sportswear. Inc. v.

 Transp. Ins. Co., 58 F. App'x 172, 175 (6th Cir. 2003). Contrary to Trailer Bridge's argument,

 the broad assertion, "[t]rom 2002 through April 2008, Defendants ... affinnatively and

 wrongfully concealed their unlawful conduct" through "misrepresentations ... concerning the

 reasons for increases in rates, surcharges and other fees[,]" does not imply another individual

 originated or used the purported advertising idea prior to Trailer Bridge. (Doc. 8-1 at 54-55; see

 Doc. 25 at 9).

           As an alternative argument, Trailer Bridge contends that airlines routinely cite fuel

 surcharges as an explanation for the increase in their prices, which establishes it was another's

 idea. (Doc. II at 10). Notwithstanding, courts must look to the underlying complaint to

 detennine the duty to defend, not the true facts of the cause of action against the insured or the

 insured's version ofthe facts. State Farm Fire and Cas. Co" 393 F.3d at 1230. Just as there is

 no mention of the purported advertising idea belonging to a co-conspirator, nowhere in the

 Antitrust Complaint is it implied that the idea was ever used by or belonged to an airline. The

 Antitrust Complaint simply fails to allege an advertising idea belonged in any way to another

 entity.

           Having detennined the Antitrust Complaint does not contain allegations supporting a


                                                    10
Case 3:09-cv-01135-HES-MCR Document 48                 Filed 07/22/10 Page 11 of 14 PageID 844



 qualifying offense, there can be no advertising injury arising therefrom. This alone is enough to

 relieve Illinois National of a duty to defend Trailer Bridge under the asserted Policy section.

 Nevertheless, for the sake of completeness, this Court will address Illinois National's additional

 arguments.

                 ii. Causation

         Illinois National contends that even if the Court were to find the Antitrust Complaint

 contained allegations of an advertising injury, no causal connection lies between the damages

 sought by the underlying plaintiffs and an advertising injury. (Doc. 21 at 8, 27). "It was the

 inflated costs of [the underlying] defendants' cabotage services, and not the 'cover-up' or

 explanation for the surcharge, which gave rise to the underlying plaintiffs' damages." Id. at 8.

         According to Trailer Bridge, though, "[i]t is of no moment that the asserted Ocean

 Shipping Antitrust Litigation claims alleged violations of antitrust law." (Doc. 11 at 7). All that

 is required is the Antitrust Complaint plead some injury arose out ofthe "use of another's

 advertising idea" offense. Id. at 16. This Court must construe the Policy language liberally in

 favor of the insured and strictly against the insurer. Id. at 8. To limit coverage to the situations

 described by Illinois National would be to rewrite the contract. Id.

        The rule that an insurance policy should be interpreted liberally in favor of the insured

 applies only when there is more than one reasonable interpretation. See State Farm Fire and

 Cas. Co., 393 F.3d at 1230; Taunts Holdings, Inc., 913 So.2d at 532. The Policy specifically

 states Illinois National must provide a defense only to cases seeking sums that the insured would

 become legally obligated to pay as damages "because of" personal and advertising injury. (Doc.

 1-1, Exhibit 1, at 12).


                                                  11
Case 3:09-cv-01135-HES-MCR Document 48                   Filed 07/22/10 Page 12 of 14 PageID 845



         The Antitrust Complaint asserts the underlying defendants,

         restrict[ed] competition by allocating customers, rigging bids, and fixing the prices
         of rates, surcharges and other fees for Puerto Rican cabotage . . .. Defendants'
         unlawful conduct resulted in artificially high, supra-competitive prices charged by
         Defendants and their co-conspirators to Plaintiffs .... Plaintiffs and members ofthe
         class seek to recover three times their overcharge damages plus interest, attorneys'
         fees and costs of litigation.

 (Doc. S-1 at 60-61). Thus, it is apparent the underlying plaintiffs allege their injuries were

 caused by higher prices arising from price-fixing, not from the use of another's advertising idea in

 Trailer Bridge's advertisement. None of the damages sought by the underlying plaintiffs in the

 Antitrust Complaint are payments requested "because or'an advertising injury, but instead were

 strictly for antitrust injuries. Cf Great Am. Ins. Co. v. Riso, Inc., 479 F.3d 158, 162 (1st Cir.

 2007) (finding that the insurer did not have a duty to defend based, in part, on the fact "the

 damages to the ... plaintiffs, if any occurred, were due to the higher costs caused by [the

 defendant's] higher prices, rather than any injury to the plaintiffs' reputations"); Nat'l Union Fire

 Ins. Co. ofPittsburgh v. Alticor, Inc., Nos. 05-2479,06-2538,2007 WL 2733336, at *6 (6th Cir.

 Sept. 19, 2007) ("Because the policies at issue in this matter do not purport to cover antitrust

 injuries, and because the damages sought by the [underlying] plaintiffs were only for such

 antitrust injuries, the policies issued by the plaintiff-insurers do not apply in this instance, and

 there was no duty to defend.").

        "[T]he theories advanced and labels used in a complaint are subordinate to the facts

 alleged for the purpose of determining the duty to defend." Harris Corp. v. Travelers Indem.

 Co., No. 96-1 66-CIV-ORL-19A, 1998 WL 1657171, at *2 (M.D. Fla. Mar. 19, 1998) (citing

 Lime Tree Vill. Cmty. Club Ass'n. Inc. v. State Farm Gen. Ins. Co., 980 F.2d 1402, 1405-06 (11 th



                                                   12
Case 3:09-cv-01135-HES-MCR Document 48                 Filed 07/22/10 Page 13 of 14 PageID 846



 Cir. 1993». Therefore, the mere inclusion of the term"marketing" within the Antitrust

 Complaint is not enough to bring the claim within the Policy's coverage. Cf. Nat'l Union Fire

 Ins. Co. ofPittsburgh, 2007 WL 2733336, at *6. It appears the allegations regarding the

 purported use of the advertising idea were included simply to exemplify the efforts undertaken to

 hide the price-fixing scheme, an antitrust offense, so that the statute of limitations could be

 equitably tolled. (Doc. S-I at 56-57). The relationship between the purported advertising injury

 and the damages claimed in the underlying action is too remote to say it is seeking damages

 "because of' the injury. This Court finds it very unlikely that the insured or the insurer intended

 coverage for the type of conduct alleged in the Antitrust Complaint.

          d. Duty to Indemnify

          The above analysis establishes that the allegations in the Antitrust Complaint are not

 covered by the Policy. Thus, Illinois National was not in breach for failing to provide a defense

 and holds no duty to indemnify Trailer Bridge. See, e.g., Philadelphia Indem. Ins. Co. v.

 Yachtsman's Inn Condo Ass'n, Inc., 595 F. Supp.2d 1319, 1322 (S.D. Fla. 2009) ("[A] court's

 determination that the insurer has no duty to defend requires a finding that there is no duty to

 indemnify."); Fun Spree Vacations, Inc. v. Orion Ins. Co., 659 So.2d 419, 422 (Fla. 3d DCA

 1995).



          Accordingly, it is ORDERED and ADJUDGED:

          I. PlaintiffTrailer Bridge, Inc.'s Motion for Partial Summary Judgment Re Illinois

 National Insurance Company's Duty to Defend (Doc. II, filed December 15, 2009) is DENIED.




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·.   Case 3:09-cv-01135-HES-MCR Document 48               Filed 07/22/10 Page 14 of 14 PageID 847



             2. Defendant Illinois National Insurance Company's Motion for Summary Judgment

      (Doc. 21, filed January 25,2010) is GRANTED.

             3. The Clerk is directed to enter judgment in favor of Defendant that it does not owe a

      duty to defend or indemnify for the underlying action, and CLOSE the file.

             4. The Show Cause Order (Doc. 36, signed March 31, 2010) is DISCHARGED.



      DONE AND ENTERED in Jacksonville, Florida, this2Jjfd;;; of July, 2010.




      Copies to:

      Alan S. Wachs, Esq.
      Andrew M. Sussman, Esq.
      David A. Gauntlett, Esq.
      Bradley R. Johnson, Esq.
      Daniel I. Graham, Jr.• Esq.
      James F. Baffa, Esq.
      Latasha Garrison-Fullwood. Esq.
      Laura A. McArdle, Esq.
      Mary F. Licari. Esq.
      Richard H. Nicolaides, Jr.• Esq.




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