                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 11-3804
                        ___________________________

                          Westfield Insurance Company

                       lllllllllllllllllllll Plaintiff - Appellee

                                          v.

                             Robinson Outdoors, Inc.

                      lllllllllllllllllllll Defendant - Appellant
                                      ____________

                    Appeal from United States District Court
                   for the District of Minnesota - Minneapolis
                                  ____________

                           Submitted: October 18, 2012
                            Filed: November 30, 2012
                                 ____________

Before MURPHY, BYE, and SHEPHERD, Circuit Judges.
                           ____________

SHEPHERD, Circuit Judge.

       Robinson Outdoors, Inc. (“Robinson”) marketed and sold camouflage products
that, according to Robinson, would eliminate human scent so that wild game, with
their acute sense of smell, would not be able to detect a hunter’s presence.
Consumers who had purchased these products brought class action lawsuits against
Robinson, claiming that Robinson’s products did not actually eliminate human odor
(collectively, “the underlying lawsuits”).      Robinson sought defense and
indemnification from its insurer, Westfield Insurance Company (“Westfield”), but
Westfield declined coverage. Instead, Westfield brought this action, seeking a
declaratory judgment that the policy did not cover the underlying lawsuits. The
district court1 granted summary judgment in Westfield’s favor, and we affirm.

                                          I.

       Robinson purchased two insurance policies from Westfield that provided
coverage for 2005 and 2006, part of the time period at issue in the underlying
lawsuits.2 These insurance policies included coverage for “personal and advertising
injury.” A “personal and advertising injury” was defined to include a publication that
“disparages a person’s or organization’s goods, products or services,” as well as “the
use of another’s advertising idea in [Robinson’s] ‘advertisement.’” These policies
excluded claims “arising out of the failure of goods, products or services to conform
with any statement of quality or performance made in [Robinson’s] ‘advertisement.’”

       In 2009, consumers in several jurisdictions sued Robinson claiming that
Robinson misrepresented the attributes of its scent-eliminating hunting clothing.
Robinson sought defense and indemnification from Westfield based on the insurance
policies, but Westfield refused to defend or indemnify Robinson in the underlying
lawsuits. Westfield informed Robinson that the insurance policies did not cover the
underlying lawsuits because (1) the advertisements were first published before the
policy period and (2) the claims in the underlying lawsuits were excluded under the
failure-to-conform provision. Robinson later settled the underlying lawsuits and
renewed its indemnification request. Westfield again refused to indemnify Robinson


      1
      The Honorable John R. Tunheim, United States District Court for the District
of Minnesota.
      2
      For the purposes of this case, neither party contends that the relevant policy
language differs between the 2005 policy and the 2006 policy.
                                         -2-
and, in January 2010, brought this action seeking a declaratory judgment under 28
U.S.C. § 2201(a) contending that it has no duty to defend or indemnify Robinson
because the applicable coverage terms, conditions, limitations, and exclusions
outlined in the insurance policies did not extend to the underlying lawsuits.

      The district court granted summary judgment in Westfield’s favor. The court
held that even if the claims in the underlying lawsuits were covered within the
meaning of an advertising injury, the claims are excluded by the failure-to-conform
provision. Robinson now appeals the district court’s decision.

                                         II.

       On appeal, Robinson argues (1) the claims raised by the underlying lawsuits
are within the insurance policies’ scope of coverage and (2) even if coverage does not
exist, Robinson is entitled to relief under the reasonable-expectations doctrine. We
review de novo a district court’s grant of summary judgment. Woods v.
DaimlerChrysler Corp., 409 F.3d 984, 990 (8th Cir. 2005). Reviewing “the record
in the light most favorable to the nonmoving party,” id., we will affirm the grant of
summary judgement “if 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).

                                         A.

       First, Robinson argues that summary judgment was improper because the
claims brought in the underlying lawsuits are covered by the insurance policies and
are not excluded by the failure-to-conform provision. Under Minnesota law,3 “policy


      3
       “[W]hen federal courts are exercising diversity jurisdiction, the rules for
construing insurance policies are controlled by state law.” Langley v. Allstate Ins.
                                         -3-
words of inclusion” within an insurance contract are “broadly construed, and words
of exclusion are narrowly considered.” AMCO Ins. Co. v. Inspired Techs. Inc., 648
F.3d 875, 880 (8th Cir. 2011) (internal quotation marks omitted). Minnesota’s “rules
of insurance policy interpretation require policies to be read in favor of finding
coverage, and require courts to look past the legal nomenclature to the underlying
allegations.” General Cas. Co. of Wis. v. Wozniak Travel, Inc., 762 N.W.2d 572, 576
(Minn. 2009).

       An insured must initially establish that a claim is covered by its insurance
policy. Remodeling Dimensions, Inc. v. Integrity Mut. Ins. Co., 819 N.W.2d 602,
617 (Minn. 2012). After the insured has met this burden, however, the burden shifts
to the insurer to prove an exclusion within the policy applies.4 Id. To determine if
a duty to defend or indemnify exists, a court compares the allegations in the
complaint of the underlying action against the relevant language in the insurance
policy. Meadowbrook, Inc. v. Tower Ins. Co., 559 N.W.2d 411, 415 (Minn. 1997).

      We will assume, without deciding, that the claims in the underlying lawsuits
are covered by the insurance policies because even if Robinson could prove the
underlying lawsuits were covered, we hold the exclusion provision precludes
coverage. The policies do not cover claims “arising out of the failure of goods,
products or services to conform with any statement of quality or performance made


Co., 995 F.2d 841, 844 (8th Cir. 1993). Both parties agree that Minnesota law
applies.
      4
        Robinson argues that the district court erred by placing the initial burden of
establishing coverage on Robinson, and only then required Westfield to demonstrate
that coverage was excluded under the policy. The district court, however, correctly
applied the burden-shifting framework established by the Minnesota Supreme Court,
see Remodeling Dimensions, 819 N.W.2d at 617, and held that Robinson did not
establish that coverage existed, and even if it could, the failure-to-conform provision
would absolve Westfield of any duty under the policies.
                                         -4-
in [Robinson’s] ‘advertisement[s].’” These “[i]nsurance contract exclusions are
construed strictly,” see Thommes v. Milwaukee Ins. Co., 641 N.W.2d 877, 880
(Minn. 2002), and narrowly against the insurer, see AMCO, 648 F.3d at 880. But the
“exclusions in a policy are as much a part of the contract as other parts thereof and
must be given the same consideration in determining what is the coverage.” Lobeck
v. State Farm Mut. Auto. Ins. Co., 582 N.W.2d 246, 249 (Minn. 1998) (internal
alteration and quotation marks omitted). Any ambiguity in an insurance policy’s
exclusions “must be construed in favor of the insured,” but clear and unambiguous
language in a contract is given its ordinary meaning. Noran Neurological Clinic, P.A.
v. Travelers Indem. Co., 229 F.3d 707, 709 (8th Cir. 2000) (internal quotation marks
omitted) (applying Minnesota law).

       Robinson argues that the exclusion provision should not apply because it is
ambiguous. But “[i]nsurance policy provisions are ambiguous only when they are
reasonably subject to more than one interpretation.” Latterell v. Progressive N. Ins.
Co., 801 N.W.2d 917, 920 (Minn. 2011) (internal quotation marks omitted). A plain
reading of the failure-to-conform provision is not reasonably subject to more than one
interpretation; further, Robinson does not articulate how the provision is subject to
multiple interpretations. Rather, the exclusion clause directly applies to Robinson’s
conduct—Robinson marketed goods and was then sued because the goods did not
conform to promises regarding their performance.

       Next, according to Robinson some of its advertisements were either “literally
true” or ambiguous and do not represent a specific degree of quality or performance.
As a result, Robinson contends that at least some of the misleading advertisements
do not fall within the scope of the failure-to-conform provision because they do not
make a “statement of quality or performance.” These allegations in the underlying
lawsuits highlighted by Robinson merely provide a background to Robinson’s
misleading marketing tactics, not an individual or separate basis for a claim. The
underlying lawsuits allege that Robinson misled consumers into buying hunting

                                         -5-
clothing that did not perform as it was advertised. The thrust of the consumers’
claims was that Robinson sold hunting clothing that was advertised to eliminate
human odor, but did not.

        The failure-to-conform provision in the insurance polices precludes coverage
in this case because it captures all of the legal claims asserted by the consumers in the
underlying lawsuits. Therefore, the district court correctly held that Westfield was
under no obligation to defend or indemnify Robinson in the underlying lawsuits.

                                           B.

       Finally, Robinson argues that the doctrine of reasonable expectations governs
this dispute, regardless of whether the underlying lawsuits are covered by the
insurance policies. The doctrine applies to situations of ambiguity and “where a
party’s coverage is significantly different from what the party reasonably believes it
has paid for and where the only notice the party has of that difference is in an obscure
and unexpected provision.” Carlson v. Allstate Ins. Co., 749 N.W.2d 41, 49 (Minn.
2008). Robinson did not make this argument in the district court and may not raise
an issue for the first time on appeal as a basis for reversal. See Von Kerssenbrock-
Praschma v. Saunders, 121 F.3d 373, 375 (8th Cir. 1997). As a result, we decline to
consider Robinson’s argument premised on the reasonable-expectations doctrine.


                                          III.


      For the above reasons, we affirm the district court.
                        ______________________________




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