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AMERISURE INS. CO. v. LASERAGE TECH. CORP.

March 10, 1998

AMERISURE INSURANCE COMPANY, and MICHIGAN MUTUAL INSURANCE COMPANY, Plaintiffs -vs- LASERAGE TECHNOLOGY CORPORATION, CIRQON TECHNOLOGIES CORPORATION, ARTHUR O. CAPP, JR., STEPHEN L. CAPP, KALMAN ZSAMBOKY and ZECAL INCORPORATED, Defendants.


The opinion of the court was delivered by: SIRAGUSA

DECISION AND ORDER

 This is an action involving the interpretation of two commercial general liability insurance policies. The plaintiffs seek a declaration that they are not obligated to provide a defense to the defendants, who were sued in an underlying case previously filed in this Court entitled Kalman Zsamboky and Zecal, Inc. v. Laserage Technology Corp., Cirqon Technologies Corp., Arthur O. Capp, Jr. and Stephen L. Capp (95-CV-6332). The following motions are before the Court:

 1. Motion [72-1] by the plaintiff Amerisure for summary judgment against Laserage and Cirqon;

 2. Motion [69-1] by the plaintiff Amerisure for summary judgment against Arthur O. Capp, Jr. and Stephen L. Capp;

 3. Motion [68-1] by the plaintiff Michigan Mutual for summary judgment against Laserage, Cirqon, Arthur O. Capp, Jr. and Stephen L. Capp;

 4. Motion by Amerisure to bifurcate [71-1] and/or stay the counterclaim [71-2] or, in the alternative, for summary judgment as to those claims [71-3];

 5. Motion [93] by Amerisure to strike references to certain extrinsic materials;

 6. Motion [110] by Laserage, Cirqon, Arthur Capp and Stephen Capp for default judgment on their counterclaim;

 7. Motion [112] by Amerisure and Michigan Mutual for leave to file their answer to defendants' counterclaim, instanter, to conform with the evidence; and

 8. Motion [126] by Laserage, Cirqon, Arthur Capp and Stephen Capp for reconsideration of this Court's Order [124-1], denying these defendants' motion for leave to supplement their summary judgment briefs.

 Oral argument on motions 1-5 above was heard on February 5, 1998.

 The Court has reviewed the papers submitted in support of and in opposition to the applications, and has considered the oral arguments of Shaun McFarland Baldwin, Esq. on behalf of Amerisure and Michigan Mutual and Richard Winter, Esq. on behalf of Laserage, Cirqon, Arthur Capp and Stephen Capp ("the Laserage Defendants"). For the reasons stated below, the application to strike references to certain extrinsic materials and the applications for summary judgment are granted, the applications for default judgment on the counterclaim and for reconsideration are denied, and the remaining applications are dismissed as moot.

 STATEMENT OF FACTS

 Laserage is a corporation engaged in the laser machining of various materials. Cirqon is a corporation engaged in the fabrication of copper metallized circuit boards. Laserage is a majority shareholder of Cirqon. Together they have over one hundred employees and post combined sales of over $ 10 million.

 The plaintiffs issued commercial general liability policies to Laserage, Cirqon and the Capps for the period of November 15, 1994 through November 15, 1995. The Amerisure policy provides primary coverage, while the Michigan Mutual policy provides excess coverage. Both policies provide coverage for personal injury, "caused by an offense arising out of your business, excluding advertising, publishing, broadcasting or telecasting done by or for you," and for advertising injury, "caused by an offense committed in the course of advertising your goods, products or services." Both personal injury and advertising injury are defined in relevant part as "injury ... arising out of ... oral or written publication of material that slanders or libels a person or organization or disparages a person's or organization's goods, products or services." Each policy also contains an exclusion for personal injury and advertising injury "arising out of oral or written publication of material, if done by or at the direction of the insured with knowledge of its falsity."

 Additionally, both policies contain a provision requiring the insured to give the insurer notice of an occurrence, claim or suit. The Amerisure policy section entitled "Duties In The Event Of Occurrence, Offense, Claim or Suit" states in relevant part:

 
a. You must see to it that we are notified as soon as practicable of an "occurrence" or an offense which may result in a claim.
 
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b. If a claim is made or "suit" is brought against any insured, you must: (1) Immediately record the specifics of the claim or "suit" and the date received; and (2) Notify us as soon as practicable. You must see to it that we receive ...

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