Everett Associates, Inc. v. Transcontinental Insurance

ORDER RE CROSS-MOTIONS FOR SUMMARY JUDGMENT

I. INTRODUCTION

Plaintiffs Everett Associates, Inc. (“Everett”) and Donald Payne (“Payne”) bring the above-captioned action against Defendant insurance companies Transcontinental Insurance Company (“Transcontinental”) and American National Fire Insurance Company (“American”) for claims resulting from their alleged unreasonable and bad faith refusals to provide a defense and indemnity in an underlying patent infringement lawsuit.

The present matter comes before the Court on the cross-motions of Defendant Transcontinental and Plaintiffs for summary judgment.

II. BACKGROUND

The underlying patent case, Clark v. Living Earth Crafts (“the Clark action”), involved a suit by Roland Clark against Everett Associates, dba Living Earth Crafts, alleging that Everett advertised, offered to sell, manufactured, and sold portable massage tables that infringed a patent owned by Clark. Everett tendered the defense of this action to Defendant Transcontinental on May 14, 1997. On July 10, 1997, August 22, 1997, and September 9, 1997, Transcontinental denied a duty to defend or indemnify.

Transcontinental and American are liability insurers for…