June 26, 2019

Tenth Circuit: Insurance Exclusions for Broadcasting Applied to Dish Network’s Business

The Tenth Circuit Court of Appeals issued its opinion in Dish Network Corp. v. Arrowood Indemnity Co. on Tuesday, November 25, 2014.

Between 2001 and 2004, Dish Network purchased primary and excess commercial general liability insurance policy from five insurers: Arrowood Indemnity Company; Travelers Insurance Company of Illinois; XL Insurance of America, Inc.; National Union Fire Insurance Company of Pittsburgh, PA; and Arch Specialty Insurance Company. In 2007, Dish was a defendant in a patent infringement suit brought by Ronald A. Katz Technology Licensing, L.P. (RAKTL). Dish requested its five insurers to defend it in the patent infringement action, but they declined. Dish brought suit against the insurers, seeking a judgment that they had a duty to defend and also alleging breach of contract and the duty of good faith and fair dealing. The district court granted summary judgment to the insurers, but on appeal, the Tenth Circuit remanded for further determination of the issues (DISH Network Corp. v. Arch Spec. Ins. Co., 659 F.3d 1010 (10th Cir. 2011) (DISH I)). On remand, the insurers again moved for summary judgment but on different grounds. The district court again granted summary judgment, and Dish appealed.

Dish’s first argument on appeal was that the district court violated the law of the case and exceeded the scope of its jurisdiction by allowing the insurers to present new arguments on remand. The Tenth Circuit evaluated the law of the case doctrine and its prior decision, and determined that the district court was not precluded from allowing additional arguments on remand. The district court properly looked to the Tenth Circuit’s mandate for restrictions on appeal, and exercised its discretion accordingly. The Tenth Circuit did not decide that the insurers had a duty to defend Dish in DISH I. Rather, the Tenth Circuit noted that the district court did not decide several issues regarding the duty to defend. It did not preclude the court from resolving additional duty-to-defend issues on remand.

In its second, third, and fourth points on appeal, Dish challenged the district court’s grant of summary judgment to the insurers. The district court concluded that the policies’ business exclusions for “broadcasting” and “telecasting” precluded coverage. Dish argued that its business did not fall under these terms because Dish provides service only to specific subscribers, not the public at large. The Tenth Circuit looked to the plain meaning of “broadcasting” and “telecasting” and found the definitions to encompass Dish’s business activity. Dish’s attempt to draw a distinction between subscription broadcasting and public broadcasting made no sense in the business exclusion sense, and the Tenth Circuit found that the terms in the policy language encompassed Dish’s business activity. The Tenth Circuit found that coverage for Dish’s business activity was unavailable under the policies at issue.

Next, the Tenth Circuit turned its attention to Dish’s umbrella policies provided by National, Arch, and XL. Because the Tenth Circuit had found that coverage was unavailable under the primary policies, the umbrella policies were not implicated and summary judgment to these three insurers was appropriate. Dish conceded that summary judgment in favor of Arch was appropriate, and the district court noted that even if the National and XL policies were available, the coverage would have been excluded because they contained the same language regarding advertising injuries when engaged in the business of broadcasting.

The district court’s grant of summary judgment was affirmed as to all insurers.

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