Mid-Continent Casualty Co. v. American Pride Building Company, LLC

Before DUBINA, Chief Judge, FAY, Circuit Judge, and ALBRITTON,*fn1 District Judge.

This appeal arises out of a dispute between an insurance company and its insured regarding the insurer’s duty to indemnify the insured for the settlement of an underlying litigation. Mid-Continent Casualty Company (“Mid-Continent”) sued American Pride Building Company, LLC*fn2 (“American Pride”) for declaratory judgment that it is not obligated to defend or indemnify American Pride against a copyright infringement claim by Groff Construction, Inc. (“Groff”). Mid-Continent asserts that it has no duty to defend or indemnify American Pride because the underlying complaint does not allege an injury covered under the policy. Mid-Continent also asserts that it has no duty to indemnify because American Pride violated the terms of the insurance policy in settling the underlying action without Mid-Continent’s participation and consent. American Pride maintains that it properly rejected Mid-Continent’s conditional defense, thus was free to settle the lawsuit in any way it chose. The district court denied summary judgment to Mid-Continent on its policy coverage claim and granted summary judgment on its lack of cooperation claim. The district court held that “[a]lthough Mid-Continent had a duty to defend American Pride in the underlying litigation, American Pride’s breach of the terms of the policy means that Mid-Continent is not required to indemnify American Pride for the settlement of the underlying litigation.” Finding genuine issues of material facts, we reverse and remand.