Cybernet Ventures, Inc. v. Hartford Insurance Co. of the Midwest

MEMORANDUM *

Cybernet Ventures, Inc. (“Cybernet”) appeals the district court’s order granting The Hartford Insurance Co.’s (“Hartford”) Motion for Summary Judgment and denying Cybernet’s Motion for Partial Summary Judgment. We have jurisdiction pursuant to 28 U.S.C. § 1291 and affirm.

*852 Cal. Civ.Code § 2860 provides that an insurer having a duty to defend its insured must provide its insured independent counsel (commonly referred to as Cumis counsel) 2 where a conflict of interest arises between the insurer and insured. A conflict of interest exists when “an insurer reserves its rights on a given issue and the outcome of that coverage issue can be controlled by counsel first retained by the insurer for the defense of the claim.” Civ. Code § 2860(b). The reservation of rights in this case does not present a conflict of interest under § 2860 because: (1) insurer’s counsel cannot control the outcome of the coverage issues and (2) the coverage dispute relates solely to damages.

Section 504(c)(2) of the Copyright Act allows a plaintiff to seek an award of enhanced statutory damages upon a showing that the “infringement was committed willfully.” 17 U.S.C. § 504 (c)(2). Cal. Ins.…