FBR v. ST. PAUL MARINE AND FIRE INS.
Decision Date | 03 June 1999 |
Citation | 1999 ME 87,730 A.2d 175 |
Parties | FOUNDATION FOR BLOOD RESEARCH v. ST. PAUL MARINE AND FIRE INSURANCE CO. |
Court | Maine Supreme Court |
James B. Haddow, (orally), Petruccelli & Martin, LLP, Portland, for plaintiff.
James D. Poliquin, (orally), Norman, Hanson & DeTroy, LLC, Portland, for defendant.
Before WATHEN, C.J., and CLIFFORD, RUDMAN, ALEXANDER, and CALKINS, JJ.
[¶ 1] The United States District Court for the District of Maine (Carter, J.), acting pursuant to 4 M.R.S.A. § 57 (1989) and M.R. Civ. P. 76B, has certified the following question to this Court:
Does a duty to defend exist under the legal "comparison test" in the context of the "advertising injury" or "personal injury" provisions of the General Liability Policy issued by St. Paul for an underlying third-party complaint which asserts claims of inducing patent infringement when the complaint is devoid of any concrete factual allegations describing the circumstances of the alleged injury?
[¶ 2] St. Paul issued a commercial general liability policy to the Foundation for Blood Research (FBR), a Maine corporation, which policy was effective from October 5, 1996 to October 5, 1997. In December 1996, the Biomedical Patent Management Corporation (BPMC) filed a complaint against FBR in the United States District Court for the Northern District of California. The complaint asserted, among other claims, inducement of patent infringement.
[¶ 3] FBR furnished the complaint to St. Paul in a timely fashion and demanded that St. Paul provide a defense. St. Paul responded that it had no duty to defend or indemnify FBR and refused the demand. FBR eventually settled the lawsuit with BPMC and filed the action against St. Paul for breach of contract in the United States District Court for the District of Maine. The parties agree that Maine law governs this case.
[¶ 4] It is black letter law in this State that an insurer's duty to defend is determined by comparing the allegations in the underlying complaint with the provisions of the insurance policy. See Gibson v. Farm Family Mut. Ins. Co., 673 A.2d 1350, 1352 (Me.1996)
. This is the "comparison test." If the underlying complaint discloses a potential or a possibility for liability within the coverage of the policy, the insurer has a duty to defend. See id; Travelers Indem. Co. v. Dingwell, 414 A.2d 220, 227 (Me.1980).
[¶ 5] A crucial step in a duty to defend case is the examination of the underlying complaint. The complaint filed against FBR states:
The complaint contains three other claims: literal patent infringement; patent infringement under the doctrine of equivalents; and inducing patent infringement under the doctrine of equivalents.
[¶ 6] As the federal court notes in its certified question "the complaint is devoid of any concrete factual allegations describing the circumstances of the alleged injury." The lack of concrete allegations in the underlying complaint, however, is not fatal to a duty to defend claim. See Dingwell, 414 A.2d at 227
. For example, when an underlying complaint states in general and simple terms that the defendant negligently operated a motor vehicle and thereby caused injury to the plaintiff, a negligence claim is stated even though there are no concrete factual allegations concerning the circumstances of the negligence. Even without the concrete factual allegations a court can compare the complaint with the motorist's automobile insurance policy to see if negligence while operating is a covered occurrence. In the case at hand, even though there are no concrete factual allegations regarding the inducement of patent infringement, there is enough in the complaint to apprise any reader that there is a claim of inducing patent infringement.
The policy also contains the following definitions:
This policy also includes a statement that St. Paul will defend the insured against "any claim or suit for covered injury or damage."
[¶ 8] The claim of inducing patent infringement is a statutory claim. One who induces another to infringe a patent is liable to the patentee. The statute specifically states: "Whoever actively induces infringement of a patent shall be liable as an infringer." 35 U.S.C. § 271(b) (1994). A plaintiff who claims that a defendant induced patent infringement must prove two elements: (1) the defendant knowingly induced a third party to infringe; and (2) the third party actually infringed the patent. See H.B. Fuller Co. v. National Starch and Chem. Corp., 689 F.Supp. 923, 943 (D.Minn.1988)
. Inducing patent infringement can be committed by conduct "as broad in scope as the range of actions by which one may cause, urge, encourage or aid another to infringe." Burlington Indus., Inc. v. Exxon Corp., 379 F.Supp. 754, 757 (D.Md.1974). Thus, there are numerous possible ways of inducing patent infringement. For example, a defendant could tell a third...
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