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Safety Nat'l Cas. Corp. v. Floor & Decor Outlet of Am. Inc.

NY Law Would Not View Lanham Act Disgorgement as Punitive; Insurer Must Defend in Suit 2

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MEMORANDUM & ORDER INTRODUCTION Plaintiff Safety National Casualty Corporation (“SNCC”) brings this insurance coverage action against Floor and Decor Outlets of America, Inc. (“F&D”) seeking (1) a declaratory judgment that SNCC is not obligated to defend or indemnify F&D in RVC Floor Décor, Ltd. v. Floor and Décor Outlets of America, Inc., No. 2:18-cv-6449 (DRH) (ARL) (“Suit 1″), (2) to recover defenses costs and fees incurred in defending F&D in Suit 1 since March 18, 2021, (3) a declaratory judgment that SNCC is entitled to recover defense costs and fees incurred in defending F&D in RVC Floor Décor, Ltd. v. Floor and Décor Outlets of America, Inc., No. 19-cv-4894 (DRH) (ARL) (“Suit 2″), should F&D win attorney’s fees in that case, and (4) to recover money damages for the attorney’s fees F&D recovers in Suit 2. Presently before the Court are SNCC’s motion and F&D’s cross-motion for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c). For the reasons stated below, SNCC’s motion is denied and F&D’s cross-motion is granted. BACKGROUND SNCC, a Missouri insurance corporation with a principal place of business in Missouri, issued five commercial general liability policies to F&D, a Georgia corporation operating in many states including New York. Compl.

1-4, 19-23 [DE 1]. Under each policy, SNCC covers F&D for “personal and advertising injury,” contractually defined as “injury…arising out of,” among other conduct, “[i]nfringing upon another’s copyright, trade dress or slogan in [its] ‘advertisement.’” Id.

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