                 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 11a0027n.06

                                           No. 09-6368                                   FILED
                                                                                     Jan 12, 2011
                          UNITED STATES COURT OF APPEALS                        LEONARD GREEN, Clerk
                               FOR THE SIXTH CIRCUIT


CAPITOL SPECIALTY INSURANCE,                             )
                                                         )         ON APPEAL FROM THE
        Plaintiff-Appellee,                              )         UNITED STATES DISTRICT
                                                         )         COURT     FOR     THE
v.                                                       )         WESTERN DISTRICT OF
                                                         )         KENTUCKY
INDUSTRIAL ELECTRONICS, LLC, et al.,                     )
                                                         )                  OPINION
        Defendants-Appellants.                           )




BEFORE:         BOGGS and McKEAGUE, Circuit Judges; and QUIST, Senior District Judge.*

        QUIST, District Judge. Defendants, Industrial Electronics, LLC (“Indel”) and Yuriy Osyka

(“Osyka”), appeal the district court’s grant of summary judgment to Plaintiff, Capitol Specialty

Insurance (“Capitol”), concluding that Capitol has no duty to defend or indemnify Indel and Osyka

in a lawsuit filed in Jefferson Circuit Court. For the reasons that follow, we affirm the judgment of

the district court.

                                       I. BACKGROUND

        Osyka was employed by Industrial Control Solutions, Inc. (“ICS”), a Kentucky corporation

engaged in the repair of industrial electronic equipment, from May 2002 to October 2005. In May

2002, and again in March 2003, Osyka entered into employment agreements with ICS. The

employment agreements set Osyka’s compensation and contained, among other things, non-compete


        *
       Honorable Gordon J. Quist, United States Senior District Judge for the Western District of
Michigan, sitting by designation.
No. 09-6368
Capitol Specialty Insurance v. Industrial Electronics, LLC, et al.

and confidentiality provisions. These provisions prohibited Osyka from competing with ICS or

disclosing ICS’s confidential information or trade secrets during his employment and for a period

of two years from the end of his employment.

        In October 2005, Osyka left his employment with ICS, apparently due to a dispute regarding

his compensation. Within a few months of his departure, Osyka was hired by Indel, a newly-formed

company that was also in the electronics repair business. ICS claims that after Osyka joined Indel,

he disclosed to Indel customer and pricing lists and other proprietary information from ICS computer

files, and that Indel used this information to its advantage and to the detriment of ICS.

        In August 2008, ICS sued Osyka and Indel in Jefferson Circuit Court. That suit gave rise to

the instant dispute.1 The underlying state-court complaint alleged three claims: (1) that Indel

tortiously interfered with ICS’s business relationship with Osyka by “intentionally and improperly”

using ICS’s trade secrets and proprietary information; (2) that Osyka breached his contract with ICS

by disclosing proprietary and trade secret information to Indel; and (3) that Indel’s and Osyka’s

actions violated KRS § 365.880, the Kentucky Uniform Trade Secrets Act. ICS confirmed in its

complaint that “[t]he [alleged] dissemination of information . . . forms the basis for the tortuous [sic]

claims and the breach of contract claim.”




        1
         At the time Osyka left ICS, ICS suspected Osyka had taken various files and information
that ICS considered trade secrets or confidential information. ICS claims that an examination of the
hard drive of Osyka’s ICS computer revealed that Osyka had deleted various files from his computer
during the two or three months before he left ICS. This information formed the basis of a separate
lawsuit by ICS against Osyka in Jefferson Circuit Court in October 2007, alleging that Osyka
destroyed ICS’s property, i.e., its computer files.


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No. 09-6368
Capitol Specialty Insurance v. Industrial Electronics, LLC, et al.

       Indel notified Capitol of the underlying action pursuant to a commercial general liability

policy (the “Policy”) that Capitol had issued to Indel. The initial Policy term was from April 17,

2006 through April 17, 2007, and it was subsequently renewed for the periods April 17, 2007

through April 17, 2008, and April 17, 2008 through April 17, 2009. Capitol agreed to defend Indel

and Osyka in the underlying action under a reservation of rights.

       Capitol filed the instant action on November 24, 2008, seeking a declaration that it has no

duty to defend or indemnify Indel and Osyka in the underlying state court action. Following

discovery, Capitol moved for summary judgment. Capitol argued that the allegations of the

underlying action fell outside the Policy’s coverage for “personal and advertising injury” which, all

parties agreed, was the only possible basis for coverage. In addition, Capitol argued that even if

ICS’s allegations triggered personal and advertising injury coverage, various exclusions applied.

One exclusion Capitol cited, for Breach of Contract, excluded coverage for “‘[p]ersonal and

advertising injury’ arising out of a breach of contract, except an implied contract to use another’s

advertising idea in your ‘advertisement.’” Another exclusion, Infringement of Copyright, Patent,

Trademark or Trade Secret, excluded “‘[p]ersonal and advertising injury’ arising out of the

infringement of copyright, patent, trademark, trade secret or other intellectual property rights.”

       The district court granted Capitol’s motion on October 14, 2009. It first concluded that the

misappropriation of customer and price lists alleged in the underlying action did not constitute

advertising injury. In doing so, the court rejected Indel’s arguments that its use of the word

“obsolete” on its website and its statements to ICS’s customers that it had better prices and services

than ICS were wrongful acts giving rise to advertising injury. (10/14/09 Mem. Op. at 6.) Rather


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Capitol Specialty Insurance v. Industrial Electronics, LLC, et al.

than Indel’s advertising, the district court observed, ICS’s alleged injuries arose from Osyka’s

disclosure, and Indel’s use, of ICS’s customer and pricing lists. (Id.) The district court also

recognized that Kentucky courts had not specifically addressed whether use of trade secrets

constitutes an “advertising injury” and that other jurisdictions were split on the issue. After

considering cases coming down on both sides, the district court determined that Kentucky courts

would side with those courts holding that misappropriation of customer and price lists does not

constitute “advertising injury.” Recognizing “the split of authorities on this issue and Kentucky’s

strong preference for finding coverage,” however, the district court held in the alternative that even

if ICS alleged advertising injury, the Infringement of Copyright, Patent, Trademark and Trade Secret

exclusion barred the tortious interference and statutory claims and the Breach of Contract exclusion

barred the breach of contract claim. (Id. at 7-8.)

       This timely appeal followed.

                                   II. STANDARD OF REVIEW

       This court reviews de novo a motion for summary judgment. Kleiber v. Honda of Am. Mfg.,

Inc., 485 F.3d 862, 868 (6th Cir. 2007). Summary judgment is proper 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).2




       2
       Pursuant to the 2010 amendments to Rule 56, former subdivision (c)(2), which contained
the summary judgment standard, has been redesignated as subdivision (a).

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Capitol Specialty Insurance v. Industrial Electronics, LLC, et al.

                                          III. ANALYSIS

       In the district court, and again on appeal, the parties cite cases from jurisdictions other than

Kentucky to support their respective positions on the existence of advertising injury coverage. We

need not decide whether Kentucky courts would adopt the more restrictive view that

misappropriation of customer and price lists is not advertising injury, as the district court concluded

and Capitol urges, or whether Kentucky courts would adopt a more liberal view, as Indel and Osyka

urge, because we conclude that the Breach of Contract exclusion excludes coverage for all of the

underlying claims. For the same reason, we need not determine whether the district court erred in

concluding that coverage is excluded under the Infringement of Copyright, Patent, Trademark or

Trade Secret exclusion or whether it applied the correct version of that exclusion.

       Under Kentucky insurance law, “terms used in insurance contracts should be given their

ordinary meaning as persons with the ordinary and usual understanding would construe them.”

Motorists Mut. Ins. Co. v. RSJ, Inc., 926 S.W.2d 679, 681 (Ky. Ct. App. 1996) (internal quotation

marks and citation omitted). As a matter of public policy, Kentucky courts hold that an insurance

contract should be liberally construed and any doubts about coverage resolved in favor of the

insured. Scottsdale Ins. Co. v. Flowers, 513 F.3d 546, 564 (6th Cir. 2008) (quoting Dowell v. Safe

Auto Ins. Co., 208 S.W.3d 872, 878 (Ky. 2006)). Exclusions are subject to a similar rule, see Eyler

v. Nationwide Mut. Fire Ins. Co., 824 S.W.2d 855, 859 (Ky. 1992) (stating that “Kentucky law is

crystal clear that exclusions are to be narrowly interpreted and all questions resolved in favor of the

insured”), with exclusions and exceptions to coverage strictly construed to render the insurance

effective. See State Auto. Mut. Ins. Co. v. Trautwein, 414 S.W.2d 587, 589 (Ky. 1967). Where a


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Capitol Specialty Insurance v. Industrial Electronics, LLC, et al.

policy term is ambiguous, the court must interpret the ambiguity in favor of the insured’s reasonable

expectations and construe it as an average person would construe it. See True v. Raines, 99 S.W.3d

439, 443 (Ky. 2003). This doctrine applies, however, only where there is an ambiguity. Moreover,

“[o]nly actual ambiguities, not fanciful ones, will trigger application of the doctrine.” Id. Clear and

unambiguous terms of an insurance policy will thus be enforced as written. Kemper Nat’l Ins. Cos.

v. Heaven Hill Distilleries, Inc., 82 S.W.3d 869, 873 (Ky. 2002). Thus, as the Kentucky Supreme

Court has observed:

                 The rule of strict construction against an insurance company certainly does
         not mean that every doubt must be resolved against it and does not interfere with the
         rule that the policy must receive a reasonable interpretation consistent with the
         parties’ object and intent or narrowly expressed in the plain meaning and/or language
         of the contract. Neither should a nonexistent ambiguity be utilized to resolve a policy
         against the company. We consider that courts should not rewrite an insurance
         contract to enlarge the risk to the insurer.

St. Paul Fire & Marine Ins. Co. v. Powell-Walton-Milward, Inc., 870 S.W.2d 223, 226-27 (Ky.

1994).

         The Breach of Contract exclusion excludes coverage for personal and advertising injury

“arising out of a breach of contract, except an implied contract to use another’s advertising idea in

your ‘advertisement.’” The language of this exclusion is clear and unambiguous. Because nothing

in the record suggests that Indel and/or Osyka had an implied contract with ICS, and ICS’s customer

and price lists cannot reasonably considered an “advertising idea” (and Indel and Osyka do not argue

otherwise), the only issue is whether ICS’s claims arise out of a breach of contract.

         In Hugenberg v. West American Insurance Company/Ohio Casualty Group, 249 S.W.3d 174

(Ky. App. 2006), the Kentucky Court of Appeals considered an exclusion in an automobile policy


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Capitol Specialty Insurance v. Industrial Electronics, LLC, et al.

for “bodily injury . . . [a]rising out of . . . [t]he ownership, maintenance, use, loading or unloading

of motor vehicles . . . owned or operated by or rented or loaned to an ‘insured.’” Id. at 186. The

court concluded that the phrase “arising out of” should be “construed expansively.” Id.

               The words ‘arising out of * * * use’ in an automobile liability insurance
       policy are broad, general and comprehensive terms meaning ‘originating from,’ or
       ‘having its origin in,’ ‘growing out of’ or ‘flowing from’ . . . . All that is required to
       come within the meaning of the words ‘arising out of the * * * use of the automobile’
       is a casual connection with the accident.

Id. (quoting Ins. Co. of N. Am. v. Royal Indem. Co., 429 F.2d 1014, 1017-18 (6th Cir. 1970))

(footnote omitted and asterisks in original). Although Hugenberg involved an automobile policy

rather than a comprehensive general liability policy, as in the instant case, we find no reason for not

according the phrase “arising out of” the same broad application here. Moreover, this Court has

given the phrase the same broad application it applied in Royal Indemnity, supra, in cases involving

general comprehensive liability policies. See Assurance Co. of Am. v. J.P. Structures, Inc., Nos. 95-

2384, 96-1010, 96-1027, 1997 WL 764498, at *5 (6th Cir. Dec. 3, 1997) (stating that “‘arising out

of’ is ‘ordinarily understood to mean “originating from,” “having its origin in,” “growing out of” or

“flowing from” or in short, “incident to or having a connection with”’”) (quoting Red Ball Motor

Freight, Inc. v. Emp’rs Mut. Liab. Ins. Co., 189 F.2d 374, 378 (5th Cir. 1951)).

       Given the broad meaning of the term “arising out of,” we hold that ICS’s claims against both

Osyka and Indel arose directly from Osyka’s breach of contract. In other words, Indel’s use of ICS’s

proprietary and trade secret information – the basis of both the tortious interference and statutory

claims – grew out of, or flowed from, Osyka’s dissemination of such information to Indel. Without

Osyka’s breach, Indel would have no information. Indel does not contend otherwise, but argues


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Capitol Specialty Insurance v. Industrial Electronics, LLC, et al.

instead that this exclusion is inapplicable because ICS sued only Osyka for breach of contract. In

other words, Indel contends that in order for the exclusion to apply to it, ICS must have asserted a

breach of contract directly against Indel. Indel further contends that any personal and advertising

injury arose from the allegations against Indel, not from the alleged breach of contract.

       Indel’s arguments lack merit because the language of the exclusion is not so limited. Instead,

it merely requires that the injury arise out of “a breach of contract.” (Emphasis supplied.) This

condition would be satisfied whether Osyka, Indel, or some other party breached a contract, and even

regardless of whether ICS actually pled a breach of contract claim, so long as the asserted claims

arose out of the breach. The Fifth Circuit rejected an argument similar to Indel’s, based on virtually

identical facts, in Gemini Insurance Co. v. Andy Boyd Co., 243 F. App’x 814 (5th Cir. 2007). In

Gemini Insurance, Fuentes was a former employee of ASC who quit and went to work for ABCO,

a competitor of ASC. ASC sued Fuentes and ABCO alleging that Fuentes took customer lists and

other confidential information from ASC and disclosed it to ABCO, which used the information to

obtain ASC’s customers. ABCO argued that the breach of contract exclusion did not apply because

the policy contained a “separation-of-insureds” provision, which stated that the policy functioned

as a separate policy for each insured. The court rejected the argument, noting that the provision did

not apply under the circumstances because whether the injury arose from a breach of contract was

a readily determined fact that did not fall within the policy’s coverage provisions. Id. at 816.

Moreover, the court observed: “[F]or the breach of contract exclusion to apply, the breach of

contract need not have caused the injuries. Instead, the breach of contract must merely have had an

incidental relationship to or connection with the injuries.” Id. Although Indel does not rely on a


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Capitol Specialty Insurance v. Industrial Electronics, LLC, et al.

“separation-of-insureds” provision in this case, it does suggest that it must have separately breached

a contract for the exclusion to apply. But, as the Fifth Circuit observed, the broad language of the

exclusion requires only that the alleged injuries be incidentally related or connected to the breach of

contract, which, as explained above, is true in this case. Thus, Capitol owes no duty to defend.

                                        IV. CONCLUSION

       Accordingly, the district court’s judgment is AFFIRMED.




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