Remember my
recent post on how broad the duty to defend was? Well it's
still broad. In a new opinion, the 4th Circuit Court of Appeals,
under North Carolina law, reversed a district court's order on
a motion on the pleadings that had dismissed a policyholder's
complaint based on application of the "prior publication"
exclusion. The decision is another lesson in how broad the duty to
defend is compared to the duty to indemnify.
In Pennsylvania National Mutual Casualty Insurance
Co. v. Beach Mart, Inc., No. 18-1285 (4th Cir. Aug. 1,
2019), an insurance company contended that its duty to defend its
policyholder in a trademark, slogan, breach of contract claim was
eliminated by the "prior publication" exclusion contained
in the primary and umbrella commercial insurance policies issued by
the insurer to the policyholder. The underlying fight was about the
use or misuse of trademarks and slogans and the alleged breach of a
settlement agreement resolving the use of the
