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Fish company loses advertising injury coverage battle

Fish company loses advertising injury coverage battle

A federal appeals court has upheld dismissal of litigation filed by a frozen fish company against its insurer for its refusal to defend or indemnify it in an advertising injury case.

Lansing, Michigan-based Auto-Owners Insurance Co. issued a commercial general liability insurance policy to Riverview, Florida-based Anova Foods Inc., a frozen fish processor and supplier, in 2005 that included an advertising injury exclusion, according to Tuesday’s ruling by the 11th U.S. Circuit Court of Appeals in Atlanta in Scott, Blane, and Darren Recovery L.L.C., Anova Foods Inc. v. Auto-Owners Insurance Co.

Anova was sued in Oregon and California for unfair practices and false advertising injury by competitor Miami-based King Tuna Inc. King Tuna accused Anova of making false claims in its public marketing materials that its tuna products were superior because Anova treated its tuna meat with a smoking process using filtered hickory woodchips that exposed its tuna meat to low concentrations of carbon monoxide. King Tuna claimed Anova was actually treating its tuna meat with synthetic industrial carbon monoxide.

The Oregon suit was voluntarily dismissed by King Tuna, while Anova prevailed in the California suit after incurring $3.7 million in fees and costs.

Anova filed suit against Auto-Owners in U.S. District Court in Tampa, Florida, for refusing to defend or indemnify it in the litigation. The court ruled in Auto-Owners’ favor. It was unanimously upheld by a three-judge appeals court panel, which cited the advertising injury exclusion.

“Like the district court, we conclude that King Tuna’s allegations against Anova in the Oregon Suit and the California Suit fell under this exclusion,” said the panel.






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