Microtec Research, Inc. Jerry Kirk v. Nationwide Mutual Insurance Company St. Paul Fire & Marine Insurance Company

ORDER

The memorandum decision filed on August 31,1994, is redesignated as an authored opinion by Judge Kleinfeld with minor modifications.

OPINION

J. OVERVIEW

Microtec bought liability insurance from Nationwide Mutual Insurance and from St. Paul Fire & Marine Insurance Company. These policies covered, among other things, the defense of suits based on advertising or personal injury. Green Hills Software, Inc. sued Microtec, basically for passing off Green Hills’ code as Microtee’s. Mierotec tendered defense of the suit to Nationwide and St. Paul. The insurance companies denied coverage and Mierotec sued. The district court determined on summary judgment that the insurers did not owe Microtec a duty to defend against the Green Hills suit. Micro-tec appealed. We affirm.

II. FACTS

Though the two insurance policies at issue here use different language in some respects, the coverage and exclusions of each are materially similar in all aspects relevant to this appeal. In essence, advertising injury was defined under the policies as injury occurring in the course of Microtec’s advertising activities if the injury arose out of defamation, invasion of privacy, piracy, unfair…