Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Accessories Biz, Inc. v. linda and Jay Keane

January 27, 2008

ACCESSORIES BIZ, INC., PLAINTIFF,
v.
LINDA AND JAY KEANE, INC., D/B/A L. AND J. ACCESSORIES, DEFENDANT.
LINDA AND JAY KEANE, INC., D/B/A L. AND J. ACCESSORIES, THIRD-PARTY PLAINTIFF,
v.
MARYLAND CASUALTY COMPANY, THIRD-PARTY DEFENDANT.



The opinion of the court was delivered by: Sprizzo, D.J.

MEMORANDUM OPINION AND ORDER

Third-party plaintiff, Linda & Jay Keane, Inc. ("L&J" or "plaintiff") brings the above-captioned declaratory judgment against defendant, Maryland Casualty Company ("Maryland Casualty" or "defendant"), seeking a declaration that Maryland Casualty is required to defend and indemnify plaintiff in the action styled Accessories Biz, Inc. v. Linda & Jay Keane, Inc., No. 05-7398 ("the underlying action"). Defendant moves for summary judgment. For the reasons the follow, defendant's Motion for Summary Judgment is granted.

BACKGROUND

I. The Underlying Action

Accessories Biz, Inc. ("Accessories"), plaintiff in the underlying action, is in the business of the design, production, and wholesale sale of costume jewelry products and accessories, and L&J is a wholesaler of fashion jewelry accessories to retailers. Def.'s Rule 56.1 Statement ("Def.'s 56.1") ¶ 3. Pursuant to an agreement, Accessories developed fashion jewelry concepts and products for L&J's May 2005 Market. Id. ¶ 4. In April 2005, Accessories delivered 338 samples of fashion jewelry accessories to L&J (the "Samples"). Id. On April 28, 2005, Accessories provided L&J with a price list for the Samples. Id. L&J then produced a catalog entitled, "L&J Accessories, May 2005 Market Collection" ("the Catalog") containing photographs of these Samples. Id. L&J then delivered the Samples to its sales representatives who showed them to L&J's customers and exhibited them at its New York City showroom. Id.

On May 11, 2005, Accessories refused L&J's request to reduce the prices of the products and demanded that L&J return the Samples. Id. L&J responded that it would return the Samples as soon as possible, but L&J has not yet returned the Samples to Accessories. Id. Instead, Accessories alleges that L&J has taken orders from customers for products based on the Samples and has contracted with other vendors to produce products based upon Accessories' designs and concepts.*fn1 Id.

On July 15, 2005, Accessories filed the underlying action, currently pending in this Court, against L&J. See Affirmation in Opposition of Matthew S. Aboulafia ("Aboulafia Aff."), Ex. C ("Accessories' Compl."). In its Complaint, Accessories asserts four causes of action against L&J. Count One alleges misappropriation and unfair competition; Count Two seeks a permanent injunction preventing L&J from using the Samples; Count Three alleges unjust enrichment; and Count Four seeks an immediate return of the Samples to Accessories. See Accessories' Compl. ¶¶ 28, 30, 32, 34.

II. The CGL Policy

It is undisputed that at the time of the aforedescribed incident, plaintiff had a commercial general liability insurance policy in effect issued by defendant, Policy No. PAS 36612191 (the "CGL Policy"). See Def.'s 56.1 ¶ 1; Aboulafia Aff., Exs. B, E, G. Under Section I, Coverage A, the CGL Policy provides coverage for property damage and states as follows:

a. We will pay those sums that the insured becomes legally obligated to pay as damages because of . . . "property damage" to which this insurance applies. We will have the right and duty to defend the insured against any "suit" seeking those damages . . . .

b. This insurance applies to . . . "property damage" only if:

(1) The . . . "property damage" is caused by an "occurrence" that takes place in the "coverage territory"; . . .

Aboulafia Aff. Ex. B, §§ I.A.1., at M138-M139. The policy excludes coverage for "property damage expected or intended from the standpoint of the insured." Id. § I.A.2.a, at M139. In addition, the policy contains the following relevant definitions:

13. "Occurrence" means an accident, including continuous or repeated exposure to substantially the same general harmful conditions. . . . .

17. "Property damage" means:

a. Physical injury to tangible property, including all resulting loss of use of that property. All such loss of use shall be deemed to occur at the time of the physical injury that caused it; or

b. Loss of use of tangible property that is not physically injured. All such loss of use shall be deemed to occur at the time of the "occurrence" that caused it.

Id. § V, at M152-53. The policy does not define "accident." Furthermore, the CGL Policy makes clear that Maryland Casualty does not have a duty to defend the insured "against any 'suit' seeking damages for . . . 'property damage' to which this insurance does not apply." Id. § I.A.1.a, at M138. Under Section I, Coverage B, the CGL Policy provides coverage for personal and advertising injury liability and states as follows:

a. We will pay those sums that the insured becomes legally obligated to pay as damages because of "personal and advertising injury" to which this insurance applies. We will have the right and duty to ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.