Tuesday, September 29, 2015
Ind. Decisions - 7th Circuit decides one Indiana case today
In Defender Security v. First Mercury Insurance (SD Ind., Barker), a 14-page opinion, Judge Kanne writes:
Appellant Defender Security Com-pany (“Defender”) purchased a commercial general liability insurance policy from Appellee First Mercury Insurance Company (“First Mercury”). Defender timely tendered a claim to First Mercury, based on a lawsuit filed against Defender in California state court. First Mercury denied cover-age and refused to defend Defender in that lawsuit. Defend-er filed the instant suit in the Southern District of Indiana, alleging breach of contract and bad faith, and seeking a declaratory judgment that First Mercury owed it a duty to defend. First Mercury filed a motion to dismiss, which the district court granted. We affirm. * * *
[Much reference is made to Indiana decisions in the body of the opinion]
Defender’s argument here is in essence an attempt to “argue in the alternative” on appeal without having present-ed the alternative argument below. In the district court, De-fender put all of its eggs in the “publication-means-recording” basket. It did not raise the alternative argument that even if First Mercury’s narrower definition of “publication” prevailed, Defender satisfied the narrower definition because it communicated the recordings to third parties. De-fender could have alleged that fact in its pleadings—after all, if Defender did communicate the recordings to others, then it knew or should have known that fact. But Defender did not allege it. Nor did it make the argument in its opposition to the motion to dismiss, or move to amend the complaint. The district court committed no error by not considering an argument Defender never made, based on facts it did not allege.
III. CONCLUSION. For the foregoing reasons, we AFFIRM the district court’s grant of First Mercury’s motion to dismiss the Defender complaint.
Posted by Marcia Oddi on September 29, 2015 12:13 PM
Posted to Ind. (7th Cir.) Decisions