California Court of Appeal

In plaintiff's action against its insurance company claiming that it had improperly declined to defend plaintiff in litigation arising out of its advertising activities, trial court's judgment sustaining defendant's demurrer to plaintiff's complaint is affirmed where: 1) the fact that a third party complaint mentions an element of a covered claim does not trigger the duty to defend when the facts known to the insurer, viewed as a whole, establish that no such claim is potentially asserted; 2) there was no potential for policy coverage in view of the nonconformity exclusions, which bars coverage for advertising injury arising out of the failure of goods, products or services to conform with any statement of quality or performance made in the insured's advertisement; and 3) trial court properly sustained the demurrer without leave to amend.

Appellate Information

• Decided 01/21/2010
• Published 01/21/2010

Judges

Court

• California Court of Appeal

Counsel

• For Appellant:
  
• The Cronin Law Group and Timothy C. Cronin for Plaintiff and Appellant.


• For Appellees:
  
• Lindahl Beck LLP, Kelley K. Beck and Andrew Sperry for Defendant and Respondent.   In the underlying action for breach of insurance contract and bad faith, appellant Total Call International, Inc. (TCI) asserted that respondent Peerless Insurance Company (Peerless) had improperly declined to defend TCI in litigation arising out of its advertising activities.   The trial court sustained Peerless's demurrer to TCI's complaint without leave to amend.   We affirm.