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Virtual Home Care9/4/2001
Appellants brought this action against respondents insurer and insurance broker/agent after the insurer declined to defend them in an underlying action. The district court granted respondents summary judgment on the ground that the policy did not cover the claims made in the underlying action. Because we see no error of law in the district court's determination, we affirm.
FACTS
1. The Underlying Action
In May 1996, appellant Katheryn Kunkel purchased two corporations, Chances Are and Nydel Corp., from her brother Mark Christenson. With the purchase of Nydel Corp., Kunkel also acquired First Respiratory, Inc., a corporation previously purchased by Nydel. Kunkel held these companies for about six months, as part of her own corporation, appellant Virtual Home Care (VHC). In January 1997, Kunkel sold all the VHC assets she had purchased from Christenson to Intrepid-New Horizons Home Care (Intrepid).
About three weeks after the sale, Intrepid sued four individuals: Kunkel; Christenson; Brenda Kiehler, a VHC employee who became an Intrepid employee after the sale; and Cindy Vaughn, another former VHC employee. According to Intrepid, during and after the sale these defendants had (1) informed patients and caregivers that VHC was being closed, not sold; (2) removed files that were Intrepid's property so Intrepid could not provide service to patients; (3) wrongfully entered on Intrepid's property to remove assets; and (4) told former VHC clients that certain Intrepid personnel were not to be trusted. Following arbitration, the lawsuit was resolved.
2. The Policy
The defendants in the underlying action tendered their defense to respondent St. Paul Fire and Marine Insurance Co. (St. Paul), asserting that its policy obligated it to defend them. The policy stated that the insurer would defend "any claim or suit for covered injury or damage made or brought against any protected person." It provided coverage to an individual "named in the ntroduction as an individual" only for "the conduct of a business of which you are the sole owner" and for employees "only for work done within the scope of their employment by you or their duties for you."
In relevant part, the policy provided coverage for advertising injury liability and personal injury liability. "Advertising" is defined as "attracting the attention of others by any means for the purpose of seeking customers or increasing sales or business." "Advertising injury offense" is:
Libel or slander
Making known to any person or organization written or spoken material that belittles the products, work or completed work of others.
Making known to any person or organization written or spoken material that violates an individual's right of privacy.
Unauthorized taking or use of any advertising idea, material, slogan, style or title of others.
The policy provides coverage for
amounts any protected person is legally required to pay as damages for covered advertising injury that:
esults from the advertising of your products, work or completed work; and
s caused by an advertising injury offense committed while this agreement is in effect.
"Personal injury offense" is defined to include
False arrest, detention or imprisonment.
Malicious prosecution.
Wrongful entry or wrongful eviction.
Invasion of the right of private occupancy of a room, dwelling or premises that a person occupies.
Libel or slander.
Making known to any person or organization written or spoken material
Page 1 2 3 4 5 Minnesota Personal Injury Attorneys
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