                                                                     FILED
                                                         United States Court of Appeals
                                                                 Tenth Circuit

                                                             November 25, 2014
                                    PUBLISH                  Elisabeth A. Shumaker
                                                                 Clerk of Court
                    UNITED STATES COURT OF APPEALS

                                  TENTH CIRCUIT



 DISH NETWORK CORPORATION;
 DISH NETWORK, LLC.,

       Plaintiffs - Appellants,
 v.                                                    No. 13-1457
 ARROWOOD INDEMNITY
 COMPANY; TRAVELERS
 INDEMNITY COMPANY OF
 ILLINOIS; XL INSURANCE
 AMERICA, INC.; NATIONAL
 UNION FIRE INSURANCE
 COMPANY OF PITTSBURGH, PA.,

       Defendants - Appellees,

 and

 ARCH SPECIALTY INSURANCE
 COMPANY,

       Defendant.



        APPEAL FROM THE UNITED STATES DISTRICT COURT
                FOR THE DISTRICT OF COLORADO
                 (D.C. No. 1:09-CV-00447-JLK-MEH)


Lee M. Epstein of Flaster Greenberg, P.C., Philadelphia, Pennsylvania, for
Plaintiffs-Appellants.

Daniel I. Graham of Nicolaides Fink Thorpe Michaelides Sullivan LLP, Chicago,
Illinois, and Kevin F. Amatuzio of Montgomery, Kolodny, Amatuzio &
Dusbabek, LLP, of Denver Colorado, (George S. McCall and S. Vance Wittie of
Sedgwick, LLC, Dallas Texas; Roger K. Heidenreich and Deborah C. Druley of
Dentons US LLP, St. Louis, Missouri; Anders C. Wick of Dentons US LLP,
Chicago, Illinois; Barbara I. Michaelides, Agelo L. Reppas, and Bridget M. Curry
of Nicolaides Fink Thorpe Michaelides Sullivan LLP, Chicago, Illinois, with them
on the brief), for Defendants-Appellees.


Before BRISCOE, Chief Judge, HARTZ and HOLMES, Circuit Judges.


BRISCOE, Chief Judge.


      Plaintiffs DISH Network Corporation and DISH Network LLC filed this

action seeking a declaratory judgment that their commercial general liability and

excess liability insurers (collectively the Insurers), Arch Specialty Insurance

Company (Arch), Arrowood Indemnity Company (Arrowood), Travelers

Indemnity Company of Illinois (Travelers), XL Insurance America, Inc. (XL), and

National Union Fire Insurance Company of Pittsburgh, Pa. (National Union), had

a duty to defend and indemnify plaintiffs in an underlying patent infringement

action. The district court granted summary judgment in favor of the Insurers,

plaintiffs appealed, and this court reversed and remanded for further proceedings.

DISH Network Corp. v. Arch Spec. Ins. Co., 659 F.3d 1010 (10th Cir. 2011)

(DISH I). On remand, the Insurers moved again for summary judgment, but on

different grounds than before. The district court granted the Insurers’ motions,

and plaintiffs appealed. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we

affirm.

                                         2
                                          I

      DISH Network Corporation is a Nevada corporation with its principal place

of business in Englewood, Colorado. DISH Network LLC is a Colorado limited

liability company with its principal place of business in Englewood, Colorado.

DISH Network LLC is an indirectly, wholly-owned subsidiary of DISH Network

Corporation. These two entities, which will be referred to collectively as Dish, 1

provide direct-to-the-home satellite television products and services, including

video and audio programming, to more than 14 million paying subscribers.

                             Dish’s insurance policies

      “Between 2001 and 2004, Dish purchased . . . primary and excess

commercial general liability policies . . . from the five defendant Insurers.” DISH

I, 659 F.3d at 1013. “Primary insurance is provided by Arrowood and Travelers,

while XL, Arch, and National Union are responsible for excess coverage if the

primary policies are exhausted.” Id.

      “All of the policies promise to defend and indemnify Dish against claims

alleging ‘advertising injury,’ among other things.” Id. “Most of the policies

define ‘advertising injury’” in the following manner:

      “Advertising Injury” means injury arising out of one or more of the
      following offenses:
            1. Oral or written publication of material that slanders or libels
            a person or organization or disparages a person’s or

      1
       Dish was formerly known as EchoStar Communications Corporation and
EchoStar Satellite LLC (collectively EchoStar). DISH I, 659 F.3d at 1012.

                                          3
             organization’s goods, products or services;
             2. Oral or written publication of material that violates a
             person’s right to privacy;
             3. Misappropriation of advertising ideas or style of doing
             business; or
             4. Infringement of copyright, title or slogan.

Id. The National Union policy differs slightly, “limit[ing] coverage to ‘injury

arising solely out of your advertising activities as a result of’ one or more of the

four types of offenses.” Id. (emphasis added in DISH I). Likewise, the Arch

policy defines the phrase “advertising injury” differently, referring to it, in

pertinent part, as “[t]he use of another’s advertising idea in your ‘advertisement.’”

Id. In addition, the Arch policy “contains a clause excluding from coverage ‘any

claim . . . [a]rising out of the infringement of copyright, patent, trademark, trade

secret or other intellectual property rights.’” Id. This exclusion “does not apply

to infringement, in [the insured’s] ‘advertisement,’ of copyright, trade dress or

slogan.” Id. (internal quotation marks omitted).

                       The underlying patent infringement suit

      In approximately 2007, Dish became the defendant in a patent infringement

suit brought in the Northern District of California by Ronald A. Katz Technology

Licensing, L.P. (RAKTL). According to RAKTL’s complaint, RAKTL’s patents

related to “the field of interactive call processing” and “the integration of

telephonic systems with computer databases and live operator call centers to

provide interactive call processing services.” Id. at 1013. RAKTL’s complaint


                                           4
further alleged that Dish

      had infringed one or more claims in each of twenty-three patents . . .
      by “making, using, offering to sell, and/or selling . . . automated
      telephone systems, including without limitation the DISH Network
      customer service telephone system, that allow [Dish’s] customers to
      perform pay-per-view ordering and customer service functions over
      the telephone.”

Id. at 1012-13.

                  The initiation and initial resolution of this action

      “On receiving RAKTL’s complaint, Dish requested a defense from Insurers,

who denied coverage.” Id. at 1014. “Dish then brought this suit, seeking a

judgment declaring that Insurers had a duty to defend and indemnify it in the

underlying action.” Id. “Dish also sued for damages for breach of contract and

Insurers’ duty of good faith and fair dealing.” Id.

      The district court, in response to the Insurers’ motions, granted summary

judgment in their favor. “Applying Colorado law, the district court concluded

that a claim for patent infringement, such as the one [asserted by RAKTL against

Dish], could properly give rise to coverage, or even the specter of coverage, such

that an insurer will have a duty to defend.” Id. (internal quotation marks

omitted). “The duty would arise, the court stated, where the insured established

three elements: first, that it was engaged in ‘advertising’ during the relevant

period; second, that the underlying complaint alleged a predicate offense under

the policy language; and third, that a causal connection existed between the


                                           5
advertising and the alleged injury suffered by the patent holder.” Id.

      The district court concluded, for purposes of the Insurers’ summary

judgment motion, “that RAKTL’s reference to ‘customer service functions’ in its

complaint was sufficient to allege that Dish engaged in ‘advertising.’” Id. “The

[district] court rejected, however, Dish’s argument that its use of a patented

interactive telephone system to advertise could constitute ‘misappropriation of

advertising ideas or style of doing business,’ the sole predicate offense on which

Dish relied.” Id. The court explained that “[t]he [RAKTL] complaint focuses on

[Dish]’s use of these patented technologies as a means of conveying content to

and tailoring its interactions with its customers.” Id. (internal quotation marks

omitted).

      Consequently, the district court did not “address[] the third element of its

test—causation—or the additional arguments certain insurers had raised under

their individual policies.” Id. “The [district] court also did not reach the duty to

indemnify or Dish’s other claims.” Id.

      Dish appealed from the district court’s grant of summary judgment in favor

of the Insurers.

                              The first appeal - DISH I

      In DISH I, we reversed the district court’s grant of summary judgment and

remanded for further proceedings. In doing so, we concluded that “a claim for

patent infringement c[ould] . . . constitute ‘advertising injury’ within the relevant

                                           6
policy language.” Id. at 1014. We in turn concluded that RAKTL’s underlying

complaint could “be read to allege ‘misappropriation of advertising ideas,’” as

well as a causal connection between the misappropriation of advertising ideas and

RAKTL’s purported injury. Id. at 1015. Consequently, “[a]s regards the duty to

defend, we h[e]ld that the RAKTL complaint may arguably fall within the

polic[ies] at issue because it potentially alleged advertising injury arising from

Dish’s misappropriation of its advertising ideas, which Dish committed in the

course of advertising its goods, products, or services.” Id. at 1028 (internal

quotation marks and citation omitted).

       We noted that “[s]everal issues . . . remain[ed] to be resolved,” id., by the

district court:

       In their response brief, Insurers raise arguments regarding unique
       language in the policies issued by Arch and National Union;
       specifically, they argue that Arch’s intellectual property exclusion
       and National Union’s sole causation requirement bar coverage. The
       excess insurers, Arch, National Union, and XL, also contend that
       they have no duty to defend in the absence of a showing that Dish’s
       primary policy coverage has been exhausted. The district court did
       not reach these arguments, as it decided the case in favor of Insurers
       on other grounds. We express no view as to the merits of those
       arguments, but instead REMAND for the district court to address
       them in the first instance.

Id. at 1028-29 (internal citations omitted).

       The Insurers filed a petition for rehearing en banc, which we denied.

       The district court’s determination of the scope of proceedings on remand

       The district court’s first step on remand was to order the parties to file a

                                           7
joint status report. The joint status report submitted by the parties noted that they

“disagree[d] as to . . . the claims remaining to be adjudicated [and] . . . whether

th[e] case [wa]s ready to proceed beyond the duty to defend.” App. at 288. Dish

argued “that by virtue of the Tenth Circuit’s ruling, judgment [could] . . . be

entered in favor of [Dish] on Counts One and Three of its complaint with regard

to the duty of its primary insurers, Arrowood Indemnity Company and Travelers

Indemnity Company of Illinois, to defend.” Id. In other words, Dish asserted,

“[t]he duty to defend issue was conclusively decided by the Tenth Circuit” in

DISH I. Id. at 288-89. The Insurers disagreed, arguing that Dish “did not file a

motion for summary judgment with respect to the duty to defend,” and “the Tenth

Circuit did not find a duty to defend or direct the Trial Court to so find.” Id. at

292.

       The district court issued a minute order setting a scheduling conference.

The minute order also stated as follows:

          This case is not yet ripe for summary disposition. Although the
       law of the case doctrine bars Defendants from re-litigating whether
       the claims of patent infringement at issue in this case can constitute
       advertising injury, it does not preclude the assertion of other
       defenses. See, e.g., Dobbs v. Anthem Blue Cross & Blue Shield, 600
       F.3d 1275, 1279 (10th Cir. 2010). Defendants are entitled to raise
       additional defenses and request leave to file successive motions for
       summary judgment. See Hoffman v. Tonnemacher, 593 F.3d 908,
       911 (9th Cir. 2010).

Id. at 297.

       The district court subsequently conducted the scheduling conference. At

                                           8
the outset of the conference, the district court orally affirmed the ruling contained

in its prior minute order:

         The Tenth Circuit’s opinion [in DISH I] contains specific
      instructions on remand. It ordered me to consider two arguments
      raised by insurers, but not addressed in the original
      summary-judgment opinion; one, that Arch’s intellectual-property
      exclusion and National Union’s sole-causation requirement barred
      coverage; and two, that the excess insures [sic], Arch National Union
      and XL Insurance America, Inc., have no duty to defend in the
      absence of the showing that Dish’s primary policy coverage has been
      exhausted. Significantly, the opinion contains no other limiting
      language or additional instructions on remand; that is, to enter
      judgment in favor of Dish Network.

         Nevertheless, [Dish] argue[s] the scope of remand should be
      limited to resolving the issues specifically mentioned by the Tenth
      Circuit. Accordingly, [Dish] argue[s] that summary judgment may
      be entered against the primary insurers, Arrowood and Travels [sic].
      In the absence of additional limitations, I am entitled to exercise
      discretion in determining the appropriate scope of a remand, and for
      that I cite to United States vs. West[, 646 F.3d 745 (10th Cir. 2011)].
      The exercise of that discretion is, however, limited by the law of the
      case. Although the Tenth Circuit has addressed the applicability of
      the advertising injury exclusion to the underlying Complaint, it did
      not address any additional exclusions contained in the relevant CGL
      Policies.

         Furthermore, [Dish’s arguments] to the contrary not withstanding
      [sic], defendant’s [sic] did not conclusively concede that EchoStar
      Satellite, LLC is covered under the policies at issue. Their
      concession of that argument, per its explicit terms, was, and I quote,
      for the purposes of summary judgment and this appeal only, closed
      quote. Although clumsily worded, it is apparent that defendants did
      not intend to waive this argument for any future proceedings.

         Having reviewed the Tenth Circuit opinion, the parties’
      joint-status report, my earlier minute order, and the parties proposed
      scheduling order, I conclude that the defendants are permitted to file
      renewed motions for summary judgment that address issues not

                                          9
      previously raised in their initial motions for summary judgment. The
      parties shall have up to and including May 9 to submit a proposed
      scheduling order reflecting that ruling.

Id. at 368-70.

          The district court’s grant of summary judgment in favor of Insurers

      The Insurers each filed motions for summary judgment arguing that they

were not obligated to defend Dish in the RAKTL patent infringement action.

Dish filed a cross-motion for summary judgment on that same issue with respect

to its two primary insurers, Arrowood and Travelers. 2

      The district court issued a memorandum order and opinion granting

summary judgment in favor of the Insurers regarding their duty to defend Dish in

the underlying RAKTL action. In doing so, the district court began by briefly

revisiting the scope of the proceedings on remand:

          Relying on the Court of Appeals’ phrase beginning: “As regards
      the duty to defend, we hold that the RAKTL complaint ‘may
      arguably fall within the polic[ies]’ at issue. . .,” DISH [I], 659 F.3d
      at 1028 (quotation omitted), DISH posits that the Tenth Circuit has
      “already decided” that the claims asserted against DISH Network in
      the underlying Katz Action fall potentially within the coverage of the
      primary insurers commercial general liability (“CGL”) policies.
      Doc. 169 at p.7.

         From the fact that I let Insurers raise new defenses, however, it is
      clear the duty to defend issue was not definitively closed forever and
      always by the Tenth Circuit opinion. The first incarnation of this

      2
        Dish “concede[d] that Arch’s intellectual property exclusion bar[red] any
duty to defend Arch might have regarding the [RAKTL] Action.” App. at 2486.
The district court subsequently granted summary judgment in favor of Arch based
upon Dish’s concession. Id.

                                          10
      case involved determining whether the complained of action in the
      underlying litigation, specifically patent infringement of telephone
      technology, constituted “advertising injury” such that Defendants’
      various “advertising injury” exclusions would apply and preclude
      Defendants having a duty to defend. Although the Tenth Circuit did
      indeed settle that patent infringement for technologies capable of
      serving as conduits for advertising could constitute “advertising
      injury,” the case as presently postured does not seek to parse what is
      or is not an “advertising injury.”

         Rather, the instant summary judgment motions foremost query
      what import to assign the term “broadcast” in an insurance policy,
      Defendants each now invoking various Business Exclusions to negate
      coverage for all advertising injuries suffered by insureds involved in
      the business of broadcasting. “Although a district court is bound to
      follow the mandate, and the mandate controls all matters within its
      scope,…a district court on remand is free to pass upon any issue
      which was not expressly or impliedly disposed of on appeal.”
      Procter & Gamble Co. v. Haugen, 317 F.3d 1121, 1126 (10th Cir.
      2003); Aguinaga v. United Food & Commercial Workers Int’l Union,
      854 F.Supp.757, 773 (D. Kan. 1994)(“The issue presented by the
      Union was not resolved by the Tenth Circuit in the prior appeal, and
      the court does no violence to the mandate rule by considering the
      issue herein.”) Accordingly, because the Business Exclusion
      argument was never before the Tenth Circuit, it is appropriate for
      consideration on remand.

Id. at 2486-87.

      The district court then turned to the coverage issue and “f[ou]nd the

business in which D[ish] [wa]s engaged to fall squarely within the meaning of

‘broadcasting,’ such that coverage for defending the [RAKTL] Action [wa]s

unavailable under the policies issued to it by Defendant Insurers.” Id. at 2488.

The district court further concluded that “National Union’s policy contain[ed] a

‘sole’ causation requirement . . . that negate[d] coverage.” Id. at 2508. Lastly,


                                         11
the district court concluded that “National Union’s Satellite Exclusion and XL’s

‘as warranted’ provision also fail[ed] to provide coverage.” Id.

      The district court entered final judgment in favor of Insurers and Dish filed

a timely notice of appeal.

                                          II

      Dish raises four issues on appeal. The first issue concerns whether the

district court violated the law of the case or deviated from our mandate in DISH I

and thereby improperly expanded the scope of the proceedings on remand. The

remaining three issues raised by Dish challenge various aspects of the district

court’s grant of summary judgment in favor of the Insurers.

                                          A

      In its first issue on appeal, Dish argues that the district court violated the

law of the case and deviated from our mandate in DISH I when it permitted the

Insurers to present new arguments regarding why they were not obligated to

defend Dish in the RAKTL suit. We review de novo the district court’s

compliance with the mandate in DISH I. See Padilla-Caldera v. Holder, 637 F.3d

1140, 1145 (10th Cir. 2011). In doing so, we examine whether the law of the case

doctrine or the mandate rule “foreclose[d] any of the [district court’s] actions on

remand.” Id. (internal quotation marks omitted).

      “Under the law of the case doctrine, when a court decides an issue of law,

that decision should govern all subsequent stages of the litigation.” Id. In other

                                          12
words, “if the first appeal decided the issue then the district court was bound by

its determination under the law of the case doctrine, and under the general rule

that a district court is bound by decisions made by its circuit court.” Dobbs v.

Anthem Blue Cross and Blue Shield, 600 F.3d 1275, 1279 (10th Cir. 2010)

(internal citation omitted).

      “The mandate rule is a corollary to the law of the case [doctrine] requiring

trial court conformity with the appellate court’s terms of remand.” United States

v. West, 646 F.3d 745, 748 (10th Cir. 2011); Zinna v. Congrove, 755 F.3d 1177,

1182 (10th Cir. 2014) (holding that the mandate rule “provides that a district

court must comply strictly with the mandate rendered by the reviewing court”).

“[T]he scope of the mandate on remand in the Tenth Circuit is carved out by

exclusion: unless the district court’s discretion is specifically cabined, it may

exercise discretion on what may be heard.” West, 646 F.3d at 749 (discussing

proper scope of resentencing proceedings following remand). “Therefore we do

not make inquiry into whether the issue presented is antecedent to or arises out of

the correction on appeal.” Id. “Instead the district court is to look to the mandate

for any limitations on the scope of the remand and, in the absence of such

limitations, exercise discretion in determining the appropriate scope.” Id. “This

approach has been characterized . . . as a presumption in favor of a general

remand.” Id. Notably, “[t]he mandate rule is a rule of policy and practice, not a

jurisdictional limitation, which thus allows some flexibility in exceptional

                                          13
circumstances.” Id. (internal quotation marks omitted).

                  1. Did DISH I decide the duty-to-defend issue?

      We turn first to the question of whether the district court violated the law-

of-the-case doctrine by allowing the Insurers to present additional arguments

regarding why they were not obligated to defend Dish in the underlying RAKTL

action. According to Dish, “this Court decided the duty to defend issue” in DISH

I. Aplt. Br. at 14. Indeed, Dish asserts, “[i]n seeking rehearing en banc, the

Insurers argued that this Court’s decision [in DISH I] required them to defend

D[ish].” Id. at 8-9.

      We reject Dish’s assertion that DISH I resolved the duty-to-defend issue.

The concluding section of DISH I stated, in pertinent part: “As regards the duty to

defend, we hold that the RAKTL complaint may arguably fall within the

polic[ies] at issue because it potentially alleged advertising injury arising from

Dish’s misappropriation of its advertising ideas, which Dish committed in the

course of advertising its goods, products, or services.” Id. at 1028 (emphasis

added) (internal quotation marks and citation omitted). We further noted that

“[s]everal issues the district court did not address [in its summary judgment

order] remain[ed] to be resolved” regarding the Insurers’ duty to defend. Id.

Thus, in sum, DISH I did not resolve the duty-to-defend issue. Consequently, the

law-of-the-case doctrine did not prohibit the district court from resolving the

duty-to-defend issue on other grounds.

                                          14
      To the extent it is relevant, we also reject Dish’s assertion that the Insurers

conceded in their petition for rehearing en banc that they were obligated to defend

Dish in the RAKTL action. In their petition for rehearing en banc, the Insurers

argued, in part, that DISH I’s “analysis led [this court] to mistakenly equate the

use of a patented product capable of being used to advertise with

‘misappropriation of an advertising idea’ so as to bring the former within the

‘advertising injury’ coverage afforded by CGL policies, even though ‘patent

infringement’ is not a listed offense to which coverage extends.” App. at 1900

(emphasis in original). The Insurers in turn argued that “[t]he existence of

‘advertising injury’ coverage for patent infringement under commercial general

liability (‘CGL’) insurance is a question of exceptional importance.” Id. And,

they argued, “[t]his decision requires Insurers, and will require other insurers in

the future, to defend and potentially to indemnify insureds for ‘patent

infringement’ claims that are not covered by CGL insurance.” Id. Although Dish

now argues that this last sentence was a concession by the Insurers that they were

obligated to defend Dish in the RAKTL action, we conclude that is an overly

broad reading of the sentence. Quite clearly, the Insurers were taking issue with

the general notion that “advertising injury” coverage under CGL policies could

conceivably provide coverage for patent infringement. But, as we see it, the

Insurers were not conclusively conceding that they were obligated to defend Dish

in the RAKTL action.

                                          15
     2. Did the mandate rule effectively prohibit the district court’s actions?

      We next turn to the question of whether the district court violated the

mandate rule by allowing the Insurers to file new motions for summary judgment

raising additional policy-based challenges to Dish’s claim that the Insurers were

obligated to defend Dish in the RAKTL action. To decide that question, we

“must look to the mandate in [DISH I] to determine whether it specifically

limit[ed] the scope of remand so as to prevent the district court from considering”

the Insurer’s additional arguments regarding the duty to defend. West, 646 F.3d

at 749 (internal quotation marks omitted).

      The remand language in DISH I stated as follows:

         We REVERSE the district court’s grant of summary judgment to
      the Insurers and REMAND for further proceedings. While we agree
      with the district court’s conclusion that patent infringement may,
      under certain circumstances, constitute “misappropriation of
      advertising ideas,” we disagree with its ruling that the patented
      means of conveying advertising content at issue here could not be
      “advertising ideas” within the meaning of Dish’s commercial general
      liability policies. As regards the duty to defend, we hold that the
      RAKTL complaint “may arguably fall within the polic[ies]” at issue,
      Cyprus [Amax Minerals Co. v. Lexington Ins. Co.], 74 P.3d [294,]
      299 [(Colo. 2003)], because it potentially alleged advertising injury
      arising from Dish’s misappropriation of its advertising ideas, which
      Dish committed in the course of advertising its goods, products, or
      services, Novell[, Inc. v. Federal Ins. Co.], 141 F.3d [983,] 986
      [(10th Cir. 1998)].

         Several issues the district court did not address remain to be
      resolved. In their response brief, Insurers raise arguments regarding
      unique language in the policies issued by Arch and National Union;
      specifically, they argue that Arch’s intellectual property exclusion
      and National Union’s sole causation requirement bar coverage. Ins.

                                         16
      Resp. Br. at 66–70. The excess insurers, Arch, National Union, and
      XL, also contend that they have no duty to defend in the absence of a
      showing that Dish’s primary policy coverage has been exhausted. Id.
      at 70. The district court did not reach these arguments, as it decided
      the case in favor of Insurers on other grounds. Dish, 734 F.Supp.2d
      at 1185 n. 20. We express no view as to the merits of those
      arguments, but instead REMAND for the district court to address
      them in the first instance. Accordingly, we also DENY as moot Arch
      and National Union’s motion to strike portions of Dish’s reply brief
      or for leave to file a surreply regarding these issues.

DISH I, 659 F.3d at 1028-29.

      To be sure, this remand language acknowledged the possibility that the

RAKTL complaint might fall within the policies at issue, and unequivocally

directed the district court “to address . . . in the first instance” the additional

arguments that were asserted by the Insurers in their original summary judgment

motions but not resolved by the district court in granting those motions. But Dish

misreads this language as limiting the district court from considering other

arguments the Insurers might have regarding the duty to defend. Although the

Insurers, in their respective answers to Dish’s complaint, asserted a host of

defenses to the purported duty to defend, they argued only a few of them in their

initial motions for summary judgment (presumably believing that the “advertising

injury” argument in particular would prevail). And, because the appeal in DISH I

concerned the district court’s decision to grant the Insurers’ motions for summary

judgment, our decision in DISH I understandably addressed the specific

arguments contained in those motions and did not cast about the district court


                                            17
record for other potential defenses. The important point is that nothing in the

remand language in DISH I specifically limited or prevented the district court

from allowing the Insurers to dispute the purported duty to defend on grounds

other than those that were asserted in the Insurers’ original motions for summary

judgment. As a result, the district court did not violate the mandate rule by

allowing the Insurers to file new motions for summary judgment raising

additional defenses to the purported duty to defend.

                                          B

      In its second, third, and fourth issues on appeal, Dish challenges the district

court’s grant of summary judgment in favor of Insurers on the duty-to-defend

issue. We review the district court’s summary judgment ruling de novo, applying

the same legal standards as the district court. Doe v. City of Albuquerque, 667

F.3d 1111, 1123 (10th Cir. 2012). “Summary judgment should be granted if there

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

as a matter of law.” Id.

      In a diversity case such as this, “the substantive law of the forum state

governs the analysis of the underlying claims.” Haberman v. Hartford Ins. Grp.,

443 F.3d 1257, 1264 (10th Cir. 2006). We therefore apply Colorado law as we

review the issues raised on appeal by Dish. Under Colorado law, we “review

insurance contract interpretation questions de novo.” Mountain States Mut. Cas.

Co. v. Roinestad, 296 P.3d 1020, 1023 (Colo. 2013).

                                         18
                         1. The insured’s business exclusion

      The district court, in granting summary judgment in favor of the Insurers,

concluded that the policies’ business exclusions for “broadcasting” and

“telecasting” precluded coverage. On appeal, Dish challenges these related

conclusions on a number of grounds.

      a) The relevant policy language

      All of the policies at issue provide coverage for “advertising injury.” At

the same time, each of the policies contain or effectively incorporate exclusions

to such coverage that hinge on the nature of the insured’s business.

      The Travelers and Arrowood CGL policies expressly apply to “‘Advertising

injury’ caused by an offense committed in the course of advertising your goods,

products or services,” and provide that Travelers “will pay those sums that the

insured becomes legally obligated to pay as damages because of . . . ‘advertising

injury.’” App. at 904, 1319. The “Advertising Injury Liability” sections of the

two policies also include, however, several express exclusions. In particular, both

policies state that “[t]his insurance does not apply to . . . ‘Advertising injury’

arising out of . . . [a]n offense committed by an insured whose business is

advertising, broadcasting, publishing or telecasting.” Id. at 904, 1319-20.

Neither policy expressly defines the terms “broadcasting” or “telecasting.”

      The Arch commercial umbrella policy states, in pertinent part, that “this

insurance applies to ‘personal and advertising injury’ caused by an offense arising

                                           19
out of your business.” Id. at 1965. The “Exclusions” section of the policy, in

turn, states that “[t]his insurance does not apply to, and we have no obligation to

investigate, settle or defend, or pay the costs of defending, any claim or ‘suit’ for

. . . ‘Personal and advertising injury’ . . . [c]ommitted by an insured whose

business is . . . [a]dvertising, broadcasting, publishing or telecasting.” Id. at

1965-66.

      The National Union commercial umbrella policy provides that National

Union “will pay on behalf of the Insured those sums in excess of the Retained

Limit that the Insured becomes legally obligated to pay by law or assumed by the

Insured under an Insured Contract because of . . . Advertising Injury that takes

place during the Policy Period and is caused by an Occurrence happening

anywhere in the world.” Id. at 1167. The Exclusions section of the policy,

however, states that “[t]his insurance does not apply to . . . Advertising Injury

arising out of . . . [a]n offense committed by an Insured whose business is

advertising, broadcasting, publishing or telecasting.” Id. at 1173-74. The

National Union policy also includes an endorsement entitled “BROADCASTING,

TELECASTING, ADVERTISING AND PUBLISHING EXCLUSION.” Id. at

1159. This endorsement states, in pertinent part: “This insurance does not apply

to . . . Advertising Injury committed or alleged to have been committed in any

advertising, advertisement, . . . broadcast, . . . or telecast in the conduct of the

Insured’s advertising, broadcasting, re-broadcasting, televising, [or] re-televising

                                           20
. . . activities.” Id.

       Finally, the XL commercial umbrella policy provides two types of

coverage: excess coverage that expressly incorporates most of “[t]he coverage

provisions of the scheduled underlying policies,” including those policies’

business exclusions, and so-called “drop down” coverage that applies in the event

that a loss is covered by the terms of the underlying policies, but the underlying

insurers fail to provide such coverage. Id. at 2048.

       b) The terms “broadcasting” and “telecasting”

       None of the policies at issue expressly define the terms “broadcasting” or

“telecasting,” nor do they otherwise indicate that these terms were “intended to

have some special meaning peculiar to the insurance industry.” Mid-Century Ins.

Co. v. Robles, 271 P.3d 592, 596 (Colo. App. 2011). As a result, we, like the

district court, are left with the task of “constru[ing] [these terms] in [their]

commonly used sense.” Id.; see also Mountain States Mut. Cas. Co. v. Roinestad,

296 P.3d 1020, 1024 (Colo. 2013). As we discuss below, Dish raises several

challenges to the district court’s construction of those terms.

       c) The district court’s construction of the terms

       The district court concluded that the term “broadcasting,” as used in the

policies at issue, was “synonymous with ‘transmission,’” App. at 2497 (quoting

Nat’l Ass’n for Better Broad. v. FCC, 849 F.2d 665, 669 (D.C. Cir. 1988)), and it

in turn concluded that “[t]here [wa]s no question that D[ish] transmits, via

                                           21
broadcast satellites, television programming to its subscribers,” id. The district

court rejected Dish’s argument “that the satellite television programming it

provides should not be considered ‘broadcasting’ because it is a subscription

service not available to the ‘indiscriminate public’ or the ‘public generally.’” Id.

In the district court’s view, “[n]othing in the case law or the common usage of the

term ‘broadcasting’ requires that every member of the public actually see what is

broadcast or have access to the broadcast for free before the broadcast will be

considered directed to the ‘public at large.’” Id. at 2498. “It is enough,” the

district court concluded, “for the broadcast or telecast to be readily available to

the public at large, and certainly D[ish] strives for universal access.” Id.

      Although Dish argued that subscription television was classified as a non-

broadcast service for purposes of the Federal Communications Act, the district

court concluded that this “fact . . . says nothing about the plain, ordinary meaning

of the term ‘broadcasting’ in general.” Id. at 2499. More specifically, the district

court concluded that “it is irrelevant that ‘broadcasting’ has a statutory definition

in a regulatory scheme that excludes satellite television providers” because “the

average purchaser of insurance would consider D[ish] engaged primarily in the

business of broadcasting.” Id.

      Further, the district court concluded that Dish’s “attempt to draw a

distinction between subscription and non-subscription television fails because it

makes no sense in the context of the Business Exclusion” contained in the

                                          22
policies at issue. Id. at 2500. In support, the district court offered the following

explanation:

      The reason for an insurance policy to include an exclusion for
      insureds in the businesses of “advertising, broadcasting, publishing
      or telecasting” is to limit the insurer’s exposure to mass media-type
      injuries. The extent of that risk is a function of how many people
      have access to the media, not whether they pay for it. Both PBS and
      D[ish] are mass media businesses, and whether it is PBS
      broadcasting a slanderous statement or D[ish] broadcasting a
      slanderous statement, each entity presents a risky enterprise for
      purposes of advertising coverage.

Id. (internal footnotes omitted). Moreover, “[t]o the extent that D[ish]

maintain[ed] that the word ‘broadcasting’ is susceptible to an interpretation that

would distinguish traditional television transmission from subscription- or

satellite-based television transmission,” the district court “reject[ed] that

interpretation because the distinction is not supported by the underlying risk.” Id.

at 2503.

      The district court construed the term “telecasting” in similar fashion,

effectively concluding that it “involv[ed] the transmission of television

programming (as opposed to only radio broadcasting, for example) to viewers.”

Id. at 2506.

      d) Dish’s proposed definition of the terms

      Dish argues that the district court erred in granting summary judgment in

favor of the Insurers because the terms “broadcasting” and “telecasting” must be

“defined reasonably with a public distribution requirement,” and “D[ish] does not

                                          23
distribute its products and services to the public and, therefore, is not engaged in”

broadcasting or telecasting. Aplt. Br. at 21. In support, Dish asserts that it “is a

subscription service provider in the business of providing video and audio

programming only to its paying subscribers.” Id. Dish notes that “[a]ll of [its]

Annual Reports contain a . . . disclosure” stating Dish’s belief that, as a provider

of subscription programming, it is “not subject to many of the regulatory

obligations imposed upon broadcast licensees.” Id. at 22. “In addition,” Dish

argues, “[t]he Communications Act of 1934 defines ‘broadcasting’ as the

‘dissemination of radio communications intended to be received by the public,

directly or by the intermediary of relation stations.’” Id. at 22-23 (emphasis

added in Dish’s brief) (quoting 47 U.S.C. § 153(7)). Dish in turn argues that,

“[s]tarting with that definition, the FCC undertook in the mid-1980s to distinguish

‘broadcasting’ services from ‘non-broadcasting’ services” by stating that “‘a

necessary condition for the classification of a service as broadcasting is that the

licensee’s programming is available to all members of the public, without any

special arrangements or equipment,’” and that, in contrast, “‘where a licensee

embarks on a communications service in a manner which permits receipt of that

service only by certain members of the public, that licensee is not

broadcasting.’” Id. at 23 (emphasis added in Dish’s brief) (quoting Subscription

Video Report and Order, 2 FCC Rcd. 1001, ¶ 27 (1987)). In light of these

distinctions drawn by the FCC, Dish argues, “subscription service providers, such

                                          24
as Direct Broadcast Satellite providers, [that] provide their services via a private

contractual relationship with the subscribing audience and an encrypted signal to

prevent unauthorized viewing . . . are classified as non-broadcast services.” Id.

And, Dish asserts, in Nat’l Ass’n For Better Broad., the D.C. Circuit “affirmed

the FCC’s determination that subscription video service providers, such as D[ish],

are not in the business of ‘broadcasting.’” Aplt. Br. at 23-24 (citing 849 F.2d at

669).

        Dish also asserts that “[t]he distinction between a subscription service

provider . . . and those involved in ‘broadcasting’ . . . is well known through

government and industry.” Id. at 24. “For example,” Dish asserts, “the Standard

Industrial Classification (SIC) System acknowledges the difference between

D[ish]’s subscription services business and the businesses of ‘broadcasting.’” Id.

(internal footnote omitted). As a result, Dish asserts, federal agencies that utilize

the SIC, such as the Securities Exchange Commission, classify Dish as a “Cable

and Other Pay Television Service[],” rather than as a “Radio Broadcasting

Station[]” or a “Television Broadcasting Station[].” Id. at 24-25.

        Addressing Dish’s arguments in reverse order, we reject Dish’s assertion

that the commonly understood definition of the term “broadcasting” can be

gleaned from the SIC system. The SIC system was established by the federal

government in the 1930s as a “structure for the collection, presentation, and

analysis of the U.S. economy,” North Am. Indus. Classification Sys. at Bureau of

                                           25
Labor Statistics, www.bls.gov/bls/naics.htm (last visited Nov. 13, 2014), and it

utilizes industry classifications of varying breadth. 3 Dish presents no evidence or

case law that would allow us to conclude that the classifications found within the

SIC system are so well known or commonly employed that they can serve to

define a term in a commercial general liability policy.

      Likewise, the statutory definition of “broadcasting” in the Communications

Act of 1934 (Act), see 47 U.S.C. § 153(7), and the FCC’s 1987 “designation of

subscription television and subscription direct broadcast satellite services as not

being broadcasting within the meaning of the Act,” Nat’l Ass’n For Better Broad.,

849 F.2d at 666, are of little value in this case. The Act defines “broadcasting” as

“the dissemination of radio communications intended to be received by the public,

directly or by the intermediary of relay stations.” 47 U.S.C. § 153(7). For more

than 50 years, the FCC, which was afforded a broad grant of authority under the

Act to regulate radio and television communications, applied this definition to

subscription radio and television services. Nat’l Ass’n For Better Broad., 849

F.2d at 671 (Wald, J., dissenting). In 1987, however, the FCC changed course

and adopted the position that pay television services did not qualify as


      3
        Not surprisingly, Dish focuses on the most narrow of those classifications
and ignores the broader classifications, which, in pertinent part, place it, along
with radio and television broadcasting stations, within “Major Group 48:
Communications.” U. S. Dep’t of Labor, Occupational Safety & Health Admin.,
SIC Manual, available at https://www.osha.gov/pls/imis/sic_manual.html (last
visited Nov. 13, 2014).

                                         26
“broadcasting” under the Act. Id. The FCC’s change of position was challenged

in court and the D.C. Circuit, in a 2-to-1 decision, affirmed. The panel majority

in that case, in discussing the legislative history of the Act, noted as follows:

      Further review of the recorded debate and Senator Dill’s involvement
      in it makes it plain that the Senators did not purport to be using the
      term “broadcasting” in any technical sense . . . . It must be presumed
      that the Senators, like most of the rest of us, at times use
      “broadcasting” not in its statutorily defined sense, as [specifically
      defined in the Act], but as if it were synonymous with
      “transmission.”

Id. at 669. In other words, despite affirming the FCC’s conclusion that pay

television services did not qualify as “broadcasting” under the Act, the panel

majority effectively conceded that the Act’s definition of “broadcasting” was

“technical” and considerably more narrow than the commonly understood

definition of that term. Id. Thus, the Act’s statutory definition of “broadcasting”

and the FCC’s interpretation and application of that statutory definition carry

little weight in a case such as this, where our focus is on the commonly

understood definition of the term “broadcasting.”

      That leaves only Dish’s argument that the terms “broadcasting” and

“telecasting” must be defined to require distribution of content to the public at

large for free. To address that argument, we turn to dictionary definitions of

these terms. See Mountain States, 296 P.3d at 1024. The term “broadcast,” as an

adjective, is commonly defined as “cast or scattered in all directions . . . : widely

diffused,” Websters Third New Int’l Dictionary 280 (1993), “made public by

                                          27
means of radio or television,” id., and “[d]isseminated by means of radio or

television,” Oxford English Dictionary Online (OED),

http://www.oed.com/view/Entry/23507 (last visited Nov. 13, 2014). Similarly,

the term “broadcast,” as a noun, is commonly defined as “a casting or scattering

in all directions,” “the act of making widely known: the act of spreading abroad,”

and “the act of sending out sound or images by radio or television transmission

esp. for general reception.” Websters, supra at 280. Finally, the term

“broadcast,” as a verb, is similarly defined as “to scatter or sow,” id., “to make

widely known: disseminate or distribute widely or at random,” id., “to send out

from a transmitting station (a radio or television program) for an unlimited

number of receivers,” id., and “[t]o disseminate (a message, news, a musical or

dramatic performance, or any audible or visible matter) from a radio or television

transmitting station to the receiving sets of listeners and viewers,” OED, supra,

http://www.oed.com/view/Entry/23508 (last visited Nov. 13, 2014).

      The common definition of the term “telecast” appears to overlap that of the

term “broadcast.” In its noun form, the term “telecast” is commonly defined as “a

broadcasting or a program broadcast by television.” Websters, supra at 2349. In

its verb form, the term “telecast” is commonly defined as “to broadcast by

television.” Id.

      Even assuming that the terms “broadcasting” and “telecasting” include a

“public” component, nothing in any of these common definitions of the terms

                                          28
exclude fee-for-service transmissions. And that makes sense when one considers

that subscription television service “shares most characteristics of traditional

broadcasting, including its primary one—i.e., transmissions are directed toward

‘as many people as can be interested in the particular program as distinguished

from a point-to-point message service to specified individuals.’” Nat’l Ass’n For

Better Broad., 849 F.2d at 677 (Wald, J., dissenting) (quoting Nat’l Ass’n of

Broadcasters v. FCC, 740 F.2d 1190, 1201 (D.C. Cir. 1984)). Indeed,

“[s]ubscription television providers,” such as Dish, “obviously do not care about

the identities of the particular individuals to whom their communications are

transmitted; their real goal is to obtain revenues from any and all possible

viewers.” Id. at 678. “In that sense, they are just like newspaper publishers or

movie producers—their products are aimed at the general public, so long as that

public can pay.” Id.; cf. Suburban Cable TV Co. v. Com., 570 A.2d 601, 609 (Pa.

Commw. Ct. 1990) (concluding, in a case concerning state tax exemptions, that

cable television providers were engaged in “broadcasting” because their

“transmissions, both through the air and by cable, . . . involve[d] the

dissemination of communications to the public”).

      Thus, in sum, we reject Dish’s assertion that the terms “broadcasting” and

“telecasting,” as employed in the policies at issue, must be defined to exclude fee-

for-service transmissions, such as those that Dish provides to its subscribers. To

the contrary, we conclude that the commonly-understood definitions of the terms

                                          29
“broadcasting” and “telecasting” undoubtedly encompass Dish’s transmissions.

      e) The district court’s consideration of Dish’s broker’s advice

      In granting summary judgment in favor of the Insurers on the basis of the

policies’ business exclusions, the district court also took into account evidence

regarding advice given to Dish by its insurance broker. When Dish was shopping

for insurance coverage in 2001 and 2002, it was advised by its insurance broker,

The Lockton Companies (Lockton), that “‘Personal Injury and Advertising Injury

Coverage’ for ‘[a]ny offense if the insured is in the business of advertising,

broadcasting, or telecasting’ [w]as one of several ‘MAJOR EXCLUSIONS’ in

[its] commercial general liability coverage” and an item that warranted

‘DISCUSS[ION].’” App. at 2495. In short, Lockton “explicitly warned D[ish]

that it would not be covered for many injuries because of the Broadcasting

Exclusion.” Id. at 2503.

      The district court concluded, for three reasons, that this “broker’s advice”

was “admissible under an exception to [Colorado’s] four corners rule.” 4 Id. First,

the district court noted that “no party dispute[d] the veracity of the broker’s

statements.” Id. at 2504. Second, the district court noted that “neither the

elements of the charges brought in the underlying patent infringement complaint

nor D[ish]’s defenses ha[d] anything to do with whether D[ish] [wa]s in the

      4
       As we noted in DISH I, “Colorado courts adhere to a ‘four corners rule’
or ‘complaint rule,’ under which the courts compare the allegations of the
underlying complaint with the terms of the applicable policy.” 659 F.3d at 1015.

                                          30
business of broadcasting.” Id. Lastly, the district court noted that “application of

the rule to exclude the broker’s advice would defeat the Colorado Supreme

Court’s very object in creating the rule,” id., i.e., to protect the insured’s

legitimate expectation of a defense. Indeed, the district court questioned “[h]ow.

. . D[ish] [could] assert it had a ‘legitimate’ expectation of a defense when it was

literally instructed not to expect a defense?” Id. (emphasis in original).

      On appeal, Dish argues that the district court improperly drew inferences

from Lockton’s statements, and, under applicable Colorado law, should not have

considered the Lockton evidence at all in determining whether the Insurers had a

duty to defend Dish in the underlying RAKTL suit. We find it unnecessary to

reach either of these arguments. Even assuming that the district court should not

have considered the statements made by Lockton to Dish, its interpretation of the

terms “broadcasting” and “telecasting” otherwise rests on firm ground.

      f) The overlapping meanings of broadcasting and telecasting

      In the course of granting summary judgment in favor of the Insurers, the

district court concluded that “[t]he term ‘telecasting’ [wa]s included [in the

policies at issue] to make clear that businesses involving the transmission of

television programming (as opposed to only radio broadcasting, for example) to

viewers are excluded from advertising injury coverage.” App. at 2506. Dish

challenges this point on appeal, arguing that the district court, “[b]y concluding

that D[ish] is simultaneously engaged primarily in both ‘broadcasting’ and

                                           31
‘telecasting,’ . . . rendered the Insured’s Business Exclusion meaningless and

contradictory.” Aplt. Br. at 41 (internal quotation marks omitted). In support,

Dish argues that if “the ‘transmission of television programming’ is already

excluded by inclusion of the term ‘broadcasting,’ . . . the inclusion of the term

‘telecasting’ [is] superfluous.” Id. In addition, Dish argues that it, “like all

companies, can be engaged ‘primarily’ in only one business at any given time.”

Id.

      Dish bases its arguments upon the rule of Colorado law that courts “must

avoid reading an insurance policy so as to render some provisions superfluous.”

Gen. Sec. Indem. Co. of Ariz. v. Mountain States Mut. Cas. Co., 205 P.3d 529,

537 (Colo. App. 2009). Dish, however, would have us apply the rule so as to

prevent any overlapping terms whatsoever in an insurance policy. 5 Because we

are not convinced that this was the intent of the Colorado courts in adopting the

rule, we decline to adopt Dish’s position. Moreover, even assuming the terms

“broadcasting” and “telecasting” have overlapping meanings, that does not render

the business exclusion provisions of the policies superfluous. Rather, as the

district court aptly noted, the record suggests that the Insurers, by using both of

the terms at issue, were simply attempting “to make clear that businesses

involving the transmission of television programming . . . to viewers [we]re

      5
        Under Dish’s position, for example, an automobile liability insurance
policy could not use both the terms “vehicle” and “automobile” because they have
overlapping meanings.

                                          32
excluded from advertising injury coverage.” App. at 2506. We therefore

conclude the district court did not err in determining that Dish was engaged

“primarily” in both “broadcasting” and “telecasting,” given that these two terms

have overlapping meanings.

         g) Conclusion

         For all of these reasons, we agree with the district court that Dish is

engaged primarily in the business of “broadcasting” and “telecasting,” and that,

consequently, coverage for advertising injuries is unavailable under the policies at

issue.

                                2. The umbrella insurers

         Defendants Arch, National Union and XL are Dish’s umbrella insurers. On

remand, Dish conceded that Arch “had satisfied the requisites for applying [the]

intellectual property exclusion” in its policy “and consented to the entry of

summary judgment in Arch’s favor.” Aplt. Br. at 49. As for National Union and

XL, the district court concluded that neither of them had a duty to defend Dish in

the RAKTL action and thus granted summary judgment in their favor. In doing

so, the district court noted that it was undisputed “that the CGL insurance policies

issued by Travelers and Arrowood have not been exhausted by payments of

claims to which the National Union and XL policies apply.” Id. In addition, the

district court concluded that “National Union and XL have no duty to defend

because their policies, like those of the primary insurers, contain exclusions for

                                            33
advertising injuries where the insurer is engaged in the business of

‘broadcasting.’” Id. “Furthermore,” the district court concluded, “National

Union’s policy contains a ‘sole’ causation requirement . . . that negates

coverage.” Id. at 2508. And lastly, the district court concluded that “National

Union’s Satellite Exclusion and XL’s ‘as warranted’ provision also fail[ed] to

provide coverage.” Id.

      In its appeal, Dish takes issue with these conclusions.

      a) XL’s “as warranted” provision

      Dish argues that “the district court failed to apply the specific ‘as

warranted’ language of the XL Policy correctly.” Aplt. Br. at 51. In order to

understand Dish’s arguments on this point, it is necessary to review several

provisions of the XL Policy. To begin with, the XL Policy contains two separate

coverage provisions: (1) “Coverage A,” which provides coverage for “those sums

that the ‘Insured’ becomes legally obligated to pay as damages arising out of an

‘occurrence’ which are in excess of the underlying insurance stated in Schedule A

of th[e] [XL] policy”; and (2) “Coverage B,” which provides coverage “[w]ith

respect to any loss covered by the terms and conditions of this policy, but not

covered as warranted by the underlying policies listed on Schedule A, or any

other underlying insurance.” App. at 2048 (emphasis added). “The ‘not

covered[] as warranted’ language of [this policy] establishes that [XL] must drop

down for occurrences that are, in fact, covered by the underlying insurance policy

                                          34
despite the wrongful denial of coverage by” the primary insurers. Hocker v. New

Hampshire Ins. Co., 922 F.2d 1476, 1482 (10th Cir. 1991) (interpreting identical

policy language). With respect to the duty to defend, the XL Policy states that

“[w]e will defend any ‘suit’ seeking damages covered by this policy” “but not

covered by any other insurance or underlying insurance.” App. at 2048. Lastly,

the XL Policy includes a number of specific exclusions, including what the

parties refer to as “Exclusion O,” which states as follows: “This insurance does

not apply to . . . [a]ny defense, investigation, settlement or legal expense covered

by underlying insurance.” Id. at 2055-57.

      The district court concluded that, in light of Exclusion O, “the XL Policy is

not required to drop down and provide primary coverage even if Arrowood’s

denial of coverage was wrongful.” Id. at 2515. Dish now argues on appeal that

“[t]he district court’s application of the ‘as warranted’ provision and Exclusion O

renders them meaningless and contradictory.” Aplt. Br. at 52 (internal quotation

marks omitted). In support, Dish asserts that “[t]he district court . . . reads the

[Exclusion O] defense provision as relieving XL of responsibility for any defense

covered by underlying insurance even if the underlying insurer wrongfully denies

coverage.” Id. “Thus,” Dish argues, “contrary to even the district court’s reading

of the ‘as warranted’ provision, XL will never be obliged to drop down and

defend when the underlying insurer wrongfully denies coverage.” Id.

      We need not decide whether the district court erred in interpreting

                                           35
Exclusion O because we conclude that XL has no obligation under either of the

coverage provisions of its policy to defend Dish in connection with the RAKTL

action. More specifically, there is no excess coverage or related duty to defend

under the “Coverage A” provision of the XL policy because, in light of the

business exclusions we have already discussed, the underlying insurers have no

obligation to indemnify or defend Dish in the RAKTL action. As for the

“Coverage B” provision of the XL policy, its “not covered as warranted” language

clearly refers to situations where the underlying policies on Schedule A were

supposed to provide coverage, but the underlying insurers wrongfully denied

coverage and thus did not actually pay to defend or indemnify the insured.

Because the underlying insurers in this case have no obligation to indemnify or

defend Dish in the RAKTL action, XL has no obligation to provide drop-down

coverage to Dish.

      b) The National Union “sole causation” requirement

      The “Coverage” provision of the National Union Policy states, in pertinent

part, that “[w]e will pay on behalf of the Insured those sums in excess of the

Retained Limit that the Insured becomes legally obligated to pay by reason of

liability imposed by law . . . because of . . . Advertising Injury that . . . is caused

by an Occurrence.” App. at 1167 (emphasis in original). The National Union

Policy defines “Advertising Injury,” in pertinent part, as “injury arising solely out

of your advertising activities.” Id. at 1169. The National Union Policy also

                                          36
defines “Occurrence,” in pertinent part, in the following manner: “As respects

Advertising Injury, an offense committed in the course of advertising your

goods, products and services that results in Advertising Injury.” Id. at 1171

(emphasis in original).

      The district court concluded that “[t]he complaint filed in the [RAKTL]

Action d[id] not allege injury ‘arising solely out of’ the Dish parties’ advertising

activities.” Id. at 2510. Rather, the district court concluded, the RAKTL action

alleged “injuries outside of advertising,” including Dish’s pay-per-view ordering

and its performance of customer service functions. Id. The district court also

rejected Dish’s assertion “that the sole causation requirement conflicts with the

requirement in the definition of Occurrence [in the National Union Policy] that

provides that the offense must be committed in the course of advertising the

named insured’s goods, products, or services.” Id. at 2510-11.

      On appeal, Dish argues that “[t]he District Court erred by finding that

conflicting causation provisions,” i.e., the definitions of “Advertising Injury” and

“Occurrence,” “within the National Union policy could be harmonized and

construed in favor of the insurer, when Colorado law requires conflicting

provisions ‘to be construed against the insurer and in favor of coverage to the

insured.’” Aplt. Br. at 52 (quoting Simon v. Shelter Gen. Ins. Co., 842 P.2d 236,

239 (Colo. 1992)). More specifically, Dish argues that “the district court

misapplied the law and misread the National Union Policy when it held that the

                                         37
‘occurrence’ definition modifies the offense, not the injury.” Id. at 54.

      We disagree. In order for coverage to exist under the National Union

Policy, there must be liability imposed on Dish “because of Advertising Injury . .

. caused by an Occurrence.” App. at 1167. As noted, an “Occurrence” means “an

offense committed” by Dish “in the course of advertising [its] goods, products

and services that results in Advertising Injury.” Id. at 1171. In turn,

“Advertising Injury” means an “injury arising solely out of your advertising

activities.” Id. at 1169. Construed together, “Dish must have committed an

offense in the course of advertising that caused RAKTL injury,” and “[t]hat

offense, in turn, must be the sole cause of RAKTL’s injury.” Aplee. Br. at 65.

This interpretation, which allows all of the provisions of the National Union

Policy to be read in harmony and in accordance with their plain language, must

prevail over Dish’s attempt to create a conflict. See generally Farmers Ins.

Exchange v. Anderson, 260 P.3d 68, 83 (Colo. App. 2010) (“In determining

whether there is an ambiguity in a policy provision, we evaluate the policy as a

whole and construe the language in harmony with the plain meaning of the words

employed.”).

                      3. Liability for damages, costs and fees

      In its final issue on appeal, Dish argues that, “[a]s a direct result of the

Primary Insurers’ wrongful denial of a defense, [it] was forced to defend itself

simultaneously against the claims asserted in the [RAKTL action] and to

                                          38
prosecute this insurance coverage action.” Aplt. Br. at 55. “Under Colorado

law,” Dish argues, it “is entitled to an award of general and consequential

damages, including the costs and attorneys’ fees incurred in both actions.” Id.

      These arguments can be disposed of quickly. Because the district court

correctly concluded that none of the Insurers were obligated to defend Dish in the

RAKTL action, Dish is not entitled to damages, costs or fees incurred in defense

of the RAKTL action or in the pursuit of its insurance coverage claims.

                                         III

      The judgment of the district court is AFFIRMED.




                                         39
