Design Basics LLC v. Campbellsport Bldg. Supply Inc.
Citation | 99 F.Supp.3d 899 |
Decision Date | 10 April 2015 |
Docket Number | Case No. 13–C–560. |
Parties | DESIGN BASICS LLC, Plaintiff, v. CAMPBELLSPORT BUILDING SUPPLY INC., Berlin Building Supply Inc., Kiel Building Supply Inc., Drexel Inc., Drexel Building Supply Inc., Joel M. Fleischman also known as Joel C. Fleischman, and Albert J. Fleischman, Defendants and Counterclaim–Defendants, and Wilson Mutual Insurance Company, Intervenor Defendant and Counterclaimant. |
Court | U.S. District Court — Eastern District of Wisconsin |
Dana A. LeJune, Dana Andrew LeJune Attorney at Law, Houston, TX, Michael T. Hopkins, Hopkins McCarthy LLC, Milwaukee, WI, for Plaintiff.
Barrett J. Corneille, Chester A. Isaacson, Shannon A. Buttchen, David J. Pliner, Corneille Law Group, Madison, WI, John P. Fredrickson, Boyle Fredrickson SC, Milwaukee, WI, for Defendants and Counterclaim–Defendants.
Katelyn P. Sandfort, Ryan R. Graff, Nash Spindler Grimstad & McCracken LLP, Manitowoc, WI, for Intervenor Defendant and Counterclaimant.
DECISION AND ORDER
This Decision and Order addresses summary judgment motions filed by Intervenor Defendant and Counterclaimant Wilson Mutual Insurance Company (“Wilson Mutual”) (ECF No. 41) and the Defendants, Campbellsport Building Supply Inc. (“Campbellsport”), Berlin Building Supply Inc. (“Berlin”), Kiel Building Supply Inc. (“Kiel”), Drexel Inc. (“Drexel”), Drexel Building Supply Inc. (“Drexel Building”), Joel M. Fleischman also known as Joel C. Fleischman (“Joel”),1 and Albert J. Fleischman (“Albert”) (collectively the “Defendants”). (ECF No. 62.) Also addressed are a motion to compel (ECF No. 82), a motion for partial judgment on the pleadings (ECF No. 73), and an expedited non-dispositive motion for leave to file a supplemental reply brief (ECF No. 96), all filed by the Defendants. The latter motion to file a supplemental reply is granted and that brief has been considered.
Wilson Mutual seeks declaratory judgment that there “is no insurance coverage” for Design Basics' allegations against the Defendants. (Mot. 1.) By cross-motion, filed almost five months after Wilson Mutual's and after Design Basics had filed a First Amended Complaint (“Amended Complaint”) (ECF No. 52), the Defendants seek declaratory judgment that Wilson Mutual is obligated to indemnify them for those acts of infringement occurring from March 21, 2010, through at least April 1, 2014, and is obliged to provide a defense for all infringement claims alleged in the Amended Complaint.
Summary judgment should be granted if “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). The plain language of the rule “mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The Court must accept as true the evidence of the nonmovant and draw all justifiable inferences in its favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Summary judgment is appropriate only if, on the record as a whole, a rational trier of fact could not find for the non-moving party. Rogers v. City of Chi., 320 F.3d 748, 752 (7th Cir.2003). When confronted by cross-motions for summary judgment, “inferences are drawn in favor of the party against whom the motion under consideration was made.” McKinney v. Cadleway Prop., Inc., 548 F.3d 496, 500 (7th Cir.2008).
Plaintiff Design Basics LLC (“Design Basics”) is in the business of designing and promoting house plans. Campbellsport, Berlin, Kiel, Drexel, and Drexel Building (the “Defendant Companies”) were or are in the business of providing building materials and services to professional contractors and homeowners. Albert was the president of Campbellsport and Drexel from their inception until January 1997 when Joel became president of the two companies. Joel was also the president of Berlin and Kiel which were incorporated in 1999 and 2003, respectively. In early 2013 the four companies merged into Drexel Building, and Joel is its president.
Wilson Mutual issued business and commercial umbrella policies to the Defendant Companies beginning in March 2008:
The March 21, 2008 to March 21, 2009, businessowner's policy contains following initial grants of coverage:
(Sandfort Aff., Ex. I pt. 2, AAIS BP–200 Ed. 1.0, at 28 of 42.) (ECF No. 4410.)
It further provides:
(Id., at 29 of 42.) (Emphasis added).
The policy defines advertising injury as follows:
(Id., at 24 of 42.) It also contains the following exclusion:
(Id., at 34 of 42.)
The March 21, 2008 to March 21, 2009, umbrella policy contains the following initial grant of coverage:
(Id., Ex. J, AAIS UM 0200 04 00, at 8 of 21.) (ECF No. 44–11.) (Emphasis added). It also provides:
(Id., at 9–10 of 21.) (Emphasis added).
The policy defines “advertising injury” as follows:
(Id., at 2 of 21.) It contains an exclusion with respect to coverage U as follows:
(Id., at 15 of 21.)
The March 21, 2009 to March 21, 2010, businessowners policy has the following initial grant of coverage:
To continue reading
Request your trial-
Design Basics LLC v. J & V Roberts Invs., Inc.
...declines the Defendants' invitation to delve into statutory interpretation." Design Basics v. Campbellsport Bldg. Supply, No. 13–CV–560, 99 F.Supp.3d 899, 919–20, 2015 WL 1609144 at *18 (E.D.Wis. April 10, 2015); accord Panoramic Stock Images, Ltd. v. John Wiley & Sons, Inc., No. 12–cv–1000......
-
Nilhan Developers, LLC v. Westplan Investors Acquisitions, LLC (In re Bay Circle Props., LLC)
...Id. Authenticity can be undisputed when the matters are subject to judicial notice. Design Basics, LLC v. Campbellsport Building Supply, Inc., 99 F.Supp.3d 899, 917-18 (E.D. Wisc. 2015) ; Dapeer v. Neutrogena Corporation, 95 F.Supp.3d 1366, 1376 n.1 (S.D. Fla. 2015). A matter is subject to ......
-
Starz Entm't, LLC v. MGM Domestic Television Distribution, LLC
...Basics LLC v. J & V Roberts Invs., Inc. , 130 F. Supp. 3d 1266, 1281–82 (E.D. Wis. 2015) ; Design Basics LLC v. Campbellsport Bldg. Supply Inc. , 99 F. Supp. 3d 899, 919 (E.D. Wis. 2015) ; Grant Heilman Photography, Inc. v. McGraw-Hill Cos., Inc. , 28 F. Supp. 3d 399, 410–11 (E.D. Pa. 2014)......
-
Design Basics, LLC v. Best Built, Inc.
...See, e.g. , Design Basics LLC v. J & V Roberts Invs., Inc. , 130 F.Supp.3d 1266 (E.D. Wis. 2015) ; Design Basics LLC v. Campbellsport Bldg. Supply Inc. , 99 F.Supp.3d 899 (E.D. Wis. 2015). As these courts have recognized, this court is bound by the controlling law of the Seventh Circuit. Un......