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Maids on Call, LLC v. Ohio Security Insurance Co.

United States District Court, D. Nebraska

January 2, 2018

MAIDS ON CALL, LLC, a Connecticut limited liability company; MAIDS ON CALL II, LLC, a Massachusetts limited liability company; TIMOTHY SCUSSEL, an individual; MARYANN SCUSSEL, an individual; SARA ROCK, an individual; and STACEY GARON, an individual; Plaintiffs,
v.
OHIO SECURITY INSURANCE COMPANY, a New Hampshire corporation; Defendant, OHIO CASUALTY INSURANCE COMPANY, Intervenor.

          MEMORANDUM AND ORDER

          Laurie Smith Camp Chief United States District Judge

         This matter is before the Court on Plaintiffs' Motion for Partial Summary Judgment, ECF No. 11, and the Motions for Summary Judgment filed by Defendant Ohio Security Insurance Company (Ohio Security) and Intervenor Ohio Casualty Insurance Company (Ohio Casualty) (collectively “Ohio”), ECF Nos. 31 and 36, respectively. Also before the Court is the Objection to Supplemental Authority, ECF No. 44, filed by Ohio Security. For the reasons stated, Ohio Security and Ohio Casualty's Motions for Summary Judgment will be granted, Plaintiffs' Motion will be denied, and the Objection will be denied as moot.

         BACKGROUND

         Unless otherwise indicated, the following facts are those stated in the Parties' briefs, supported by pinpoint citations to admissible evidence in the record, in compliance with NECivR 56.1 and Federal Rule of Civil Procedure 56.

         The Parties

         Maids on Call, LLC, is a Connecticut limited liability company that has its principal place of business in Hartford, Connecticut. Maids on Call II, LLC, is a Massachusetts limited liability company that has its principal place of business in West Springfield, Massachusetts. Timothy and Maryann Scussel are residents of Connecticut and the owners and only members of Maids on Call, LLC, and Maids on Call II, LLC (the “former Maids franchises”). Stacey Garon and Sara Rock are also residents of Connecticut. Rock and Garon were employees of the former Maids franchises.

         Ohio Security is an insurance company organized and existing under the laws of the state of New Hampshire and with its principal place of business in Boston, Massachusetts. Ohio Security transacts business nationwide, including in the state of Nebraska. Ohio Security is the named insurer on Policy No. BKS56009071 (the “Policy”), issued to Maids on Call, LLC, and Maids on Call II, LLC, covering the policy period of March 3, 2016, to March 3, 2017. The parties dispute whether the former Maids franchises renewed the Policy for the period March 3, 2017, to March 3, 2018. Each of the Plaintiffs was either a named insured or a defined insured under the Policy.

         Ohio Casualty is an underwriting company that issued a commercial umbrella insurance policy (the “Ohio Casualty Policy”) to Maids on Call with language similar to the Policy at issue in this case. See Order at 2, ECF No. 34, Page ID 1985. The Court granted Ohio Casualty leave to intervene under Federal Rule of Civil Procedure 24(b)(1)(B) because the claims of Ohio Casualty and Ohio Security against the Plaintiffs share common questions of law and fact, and the relief Ohio Casualty seeks is premised on legal theories identical to those asserted by Ohio Security. See Id. at 3, Page ID 1986.

         Policy Terms

         The Policy's Insuring Agreement under Coverage B - Personal and Advertising Injury Liability provided as follows:

We will pay those sums that the insured becomes legally obligated to pay as damages because of “personal and advertising injury” to which this insurance applies. We will have that right and duty to defend the insured against any “suit” seeking those damages.

Pls.' Ex. 11 at 4-5; ECF No. 12-11, Page ID 484-85. The Policy also contained the following exclusions:

         This insurance does not apply to:

a. Knowing Violation of Rights of Another
“Personal and advertising injury” caused by or at the direction of the insured with the knowledge that the act would violate the rights of another and would inflict “personal and advertising injury.”
b. Material Published With Knowledge Of Falsity
“Personal and advertising injury” arising out of oral or written publication, in any manner, of material, if done by or at the direction of the insured with knowledge of its falsity.
f. Breach of Contract
“Personal and advertising injury” arising out of a breach of contract, except an implied contract to use another's advertising idea in your “advertisement.”
i. Infringement of Copyright, Patent, Trademark or Trade ...

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