Case: 1:22-cv-02311 Document #: 1 Filed: 05/03/22 Page 1 of 23 PageID #:1
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE NORTHERN DISTRICT OF ILLINOIS
`EASTERN DIVISION
`
`
`FIDELITY AND GUARANTY INSURANCE
`COMPANY, and TRAVELERS PROPERTY AND
`CASUALTY COMPANY OF AMERICA,
`
` Plaintiffs,
`v.
`
`BRIGHT HAVEN BEHAVORIAL HEALTH
`CENTER, LTD., SAMIRA JIMENEZ, AND
`CLARITY CLINIC, LLC,
`
` Defendants
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`)
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`Case No. __________
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`
`COMPLAINT FOR DECLARATORY JUDGMENT
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`Plaintiffs Fidelity and Guaranty Insurance Company (“FGIC”) and Travelers Property
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`and Casualty Company of America (“Travelers P&C”), for their Complaint for Declaratory
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`Judgment against Defendants Bright Haven Behavioral Health Center, Ltd. (“Bright Haven”),
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`Samira Jimenez (“Jimenez”), and Clarity Clinic, LLC (“Clarity”), allege as follows.
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`NATURE OF THIS ACTION
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`1.
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`2.
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`This is a declaratory judgment action pursuant to 28 U.S.C. §§2201 and 2202.
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`Specifically, Plaintiffs seek a declaration that they have no obligation to defend or
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`indemnify Defendants Bright Haven and Jimenez (collectively, “the Bright Haven Parties”)
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`against Defendant Clarity’s underlying lawsuit (the “Lawsuit”) because the insurance policies
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`the Plaintiffs issued to Bright Haven, and under which the Bright Haven Parties seek coverage,
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`do not provide coverage for the Lawsuit.
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`

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`Case: 1:22-cv-02311 Document #: 1 Filed: 05/03/22 Page 2 of 23 PageID #:2
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`PARTIES
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`3.
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`Plaintiff FGIC is an insurance company incorporated in Iowa and having its
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`principal place of business in Hartford, Connecticut. FGIC is, therefore, a citizen of Iowa and
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`Connecticut.
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`4.
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`Plaintiff Travelers P&C is an insurance company incorporated in Connecticut and
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`having its principal place of business in Hartford, Connecticut. Travelers P&C is, therefore, a
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`citizen of Connecticut.
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`5.
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`Defendant Bright Haven is an Illinois corporation with its principal place of
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`business in Illinois, and is, therefore, a citizen of Illinois.
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`6.
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`Defendant Jimenez is an individual who is domiciled in Illinois, and is, therefore,
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`a citizen of Illinois
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`7.
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`Defendant Clarity is an Illinois limited liability company whose principal place of
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`business is located in Chicago, Illinois. After conducting a reasonable investigation and
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`consulting public sources, including information disclosed by the Illinois Secretary of State,
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`court files and other public records, Travelers has determined that the identity and citizenship of
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`Clarity’s members is not publically available. However, based upon limited publically available
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`information, as well as the allegations and exhibits of Clarity’s pleadings in the Lawsuit,
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`Plaintiffs are informed and believe that Clarity’s members are domiciled in, and citizens of,
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`Illinois, and not Iowa or Connecticut, and, therefore, that Clarity is a citizen of Illinois and is not
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`a citizen of Iowa or Connecticut. Clarity is included as a party in this action as a party
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`potentially interested in the outcome in light of its pending claim against the Bright Haven
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`Parties.
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`2
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`JURISDICTION AND VENUE
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`8.
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`Federal subject matter jurisdiction exists in this action pursuant to
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`28 U.S.C. §1332 because the parties are citizens of different states and the amount in controversy
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`exceeds $75,000, exclusive of interest and costs. Federal subject matter jurisdiction is also
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`invoked pursuant to the declaratory judgment provisions of 28 U.S.C. §§2201 and 2202.
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`9.
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`Venue is proper in this judicial district pursuant to 28 U.S.C. §§1391 because a
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`substantial part of the events giving rise to this action occurred in this district, the underlying
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`transactions between the Bright Haven Parties and Clarity occurred in this district, and the
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`insurance policies at issue were delivered to Bright Haven in this district.
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`THE LAWSUIT
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`10.
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`On December 14, 2021, Clarity filed the Lawsuit against Bright Haven and
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`Jimenez, seeking injunctive relief and monetary damages, and alleging that the Bright Haven
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`Parties obtained and converted Clarity’s confidential information with respect to its business in
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`providing clinical psychiatry and therapy services to patients throughout the greater Chicagoland
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`area.
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`11.
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`Clarity subsequently amended its complaint in the Lawsuit, adding other
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`defendants, and filed its Verified Second Amended Complaint for Injunctive and Other Relief
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`(the “Second Amended Complaint”) on March 4, 2022. A true and correct copy of the Second
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`Amended Complaint is attached to this Complaint as Exhibit A.
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`12.
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`In the Second Amended Complaint, Clarity alleges that Jimenez, while employed
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`by Clarity, began working for Bright Haven and covertly sending to Bright Haven Clarity’s
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`operational information and documents for Bright Haven to use to build a competing entity.
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`13.
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`Clarity alleges, in the Second Amended Complaint, that Jimenez’ conversion of
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`and/or unauthorized access to, Clarity’s confidential information, including without limitation,
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`3
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`patient health information protected by the Health Insurance Portability and Accountability Act
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`of 1996 (“HIPAA”), began in December 2020 and continued until, and after, the termination of
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`Jimenez’ employment with Clarity on September 14, 2021.
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`14.
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`Among other allegations of wrongful conduct by Jimenez and Bright Haven,
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`Clarity alleges in the Second Amended Complaint that on December 20, 2020, while employed
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`at Clarity, Jimenez exported - to her personal email address - a Clarity Clinic Google Business
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`file folder containing over 9 gigabytes of confidential information, including patient health
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`information protected by HIPPA, financial information, clinic process, and trade secrets
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`belonging to Clarity (the “File”). (Ex. A, par. 8, 24(a)). Clarity alleges that Jimenez’ actions in
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`sending herself an email granting herself personal access to the File was for the purpose of
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`helping to launch Bright Haven. (Ex. A., par. 67)
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`15.
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`Clarity further alleges, in the Second Amended Complaint, that as a result of
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`exporting the File to her personal email address, Jimenez had access to a list of two of Clarity’s
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`physician providers’ patients, including names, addresses and initial medical assessments, all of
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`which is HIPPA protected information. (Ex. A, par. 24 (a)).
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`16.
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`In the Second Amended Complaint, Clarity further alleges that on January 15,
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`2021, Jimenez forwarded an email - from her Clarity email to a personal email address –
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`regarding a HIPAA protected patient complaint. (Ex. A., par. 24(e)).
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`17.
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`Clarity also alleges in the Second Amended Complaint that on January 16, 2021,
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`Jimenez forwarded an email - from her Clarity email to a personal address – containing HIPPA
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`protected information about fraudulent documentation related to a patient of Clarity, and other
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`information. (Ex. A., par 24(f)).
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`4
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`18.
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`Clarity alleges, in the Second Amended Complaint, that in January and February
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`2020, Jimenez sent confidential Clarity information by email to a Bright Haven email address,
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`specifically sjimenez@brighthavenbhc.com.
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`19.
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`In the Second Amended Complaint, Clarity alleges that Jimenez continued to
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`email from her Clarity email to herself and others, in April, May, June and September 2021,
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`various documents and information related to Clarity’s business for Bright Haven’s use in
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`connection with a competing business. (Ex. A, par. 24(g), (h), (i), (j), (k), (l), (m)).
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`20.
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`Clarity alleges that it terminated Jimenez’ employment on September 14, 2021
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`and that it subsequently discovered her December 2020 unauthorized access to, and exporting of,
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`the File, and that she sent the File to herself at that time, as well as the other unauthorized actions
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`in accessing and converting Clarity information and documents as described in paragraphs 11
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`through 19 above.
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`21.
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`In the Lawsuit, Clarity asserts claims against the Bright Haven Parties for breach
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`of fiduciary duties, conversion, violations of the Illinois Trade Secrets Act, tortious interference
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`with business expectancy, and civil conspiracy.
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`22.
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`In the Lawsuit, Clarity seeks recovery from the Bright Haven Parties for, among
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`other things, monetary damages resulting from their alleged conduct, including actual damages,
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`punitive and exemplary damages, wage and separation pay that Clarity paid to Jimenez during
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`the period in which she allegedly breached her duties, restitution/disgorgement of the value of
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`patient information, disgorgement of all revenue allegedly earned through use of property
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`misappropriated from Clarity, attorneys’ fees and litigation expenses, and various forms of
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`injunctive relief.
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`5
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`THE FGIC POLICY
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`23.
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`FGIC issued a Commercial Insurance Policy (Policy No. BIP-7S471695-21-42) to
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`Bright Haven Behavioral Health with a Policy Period of September 22, 2021 through September
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`22, 2022 (the “FGIC Policy”). A true and correct copy of the FGIC Policy is attached to this
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`Complaint as Exhibit B.
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`24.
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`The FGIC Policy includes several coverage parts, including CyberFirst Essentials
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`Coverage Part (“Cyber Coverage”), Commercial General Liability Coverage Part (“CGL
`
`Coverage”), Property Coverage Part (“Property Coverage”) and Employment Practices Liability
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`Coverage Part (“EPL Coverage”).1
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`
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`
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`COUNT I
`(DECLARATORY JUDGMENT – FGIC - CYBER COVERAGE)
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`25.
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`Plaintiff FGIC realleges and incorporates the allegations contained in Paragraph 1
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`through 24 as if fully stated in this paragraph 25.
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`26.
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`Pursuant to the Cyber Coverage Part’s CYBERFIRST ESSENTIALS
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`GENERAL PROVISIONS FORM (PR T1 13 02 12), the Cyber Coverage includes the
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`following insuring agreement:
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`SECTION I - COVERAGE
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`1. Defense Of Claims Or Suits – Liability Coverages
`
`a. We will have the right and duty to defend the insured against any "claim"
`or "suit" seeking "damages" for loss to which the insurance provided
`under one or more of "your cyber liability coverage forms" applies, if no
`provider of other insurance has a duty to defend the insured against that
`"claim" or "suit". However, we will have no duty to defend the insured
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`1 On information and belief, the Bright Haven Parties do not seek coverage for the Lawsuit under the
`Property Coverage or the EPL Coverage, so neither of those coverages are addressed in this Complaint.
`In the event the Bright Haven Parties assert entitlement to coverage under those coverage parts, FGIC will
`amend the Complaint to demonstrate why no coverage is afforded for the Lawsuit under those coverage
`parts of the Policy, and reserves the right to contest any request for coverage under those parts.
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`6
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`

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`against any "claim" or "suit" seeking "damages" for loss to which the
`insurance provided under "your cyber liability coverage forms" does not
`apply.
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`
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`27.
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`The CYBERFIRST ESSENTIALS GENERAL PROVISIONS FORM (PR T1
`
`13 02 12) includes the following definitions, among others,:
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`5. "Claim" means a written demand that seeks "damages."
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`8. "Damages":
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`* * *
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`a. Means a monetary amount paid to a claimant for loss.
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`b. Does not include:
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`(1) Credits.
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`(2) Voluntary payments.
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`(3) Amounts actually paid to you by your customer in exchange for
`products, services or work.
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`(4) An offset of fees, charges or commissions owed to you by your
`customer.
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`(5) Any fine or penalty imposed by law or regulation against the insured.
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`(6) The portion of any multiplied damage award that exceeds the amount
`multiplied.
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`(7) License fees or royalties of any kind.
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`(8) The amount of liquidated damages awarded pursuant to a contract or
`agreement that exceeds the amount of "damages" for which the insured
`would have liability in the absence of such contract or agreement.
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`(9) Fees, costs or expenses awarded pursuant to a prevailing party
`provision in a contract or agreement.
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`(10) Punitive damages, unless such damages are insurable under the
`applicable law.
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`* * *
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`7
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`26. "Suit" means a civil proceeding that seeks "damages" or injunctive relief.
`"Suit" includes:
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`a. An arbitration proceeding that seeks such "damages" or injunctive relief
`and to which the insured must submit or submits with our consent; and
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`b. Any other alternative dispute resolution proceeding that seeks such
`"damages" or injunctive relief and to which the insured submits with our
`consent.
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`30. "Wrongful act" means any of the following:
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`* * *
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`a. "Information security wrongful act", if the CyberFirst Essentials
`Information Security Liability Coverage Form is part of your policy.
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`b. "Errors and omissions wrongful act", if the CyberFirst Essentials
`Technology Products Or Services Errors And Omissions Liability
`Coverage Form is part of your policy.
`
`* * *
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`32. "Your CyberFirst coverage forms" means the coverage forms that you have
`purchased, as shown in the Declarations of this Coverage Part.
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`
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`28.
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`Pursuant to the CYBERFIRST ESSENTIALS INFORMATION SECURITY
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`LIABILITY COVERAGE FORM (PR T1 14 02 12), the Cyber Coverage Part further includes
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`the following insuring agreement:
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`SECTION I – INFORMATION SECURITY LIABILITY COVERAGE
`
`1. Insuring Agreement
`
`a. We will pay those sums that the insured becomes legally obligated to pay
`as "damages" because of loss to which this insurance applies. The amount
`we will pay for "damages" is limited as described in Section III - Limits
`Of Insurance in your CyberFirst Essentials General Provisions Form.
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`b. This insurance applies to loss only if:
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`(1) The loss is caused by an “information security wrongful act”
`committed in the "coverage territory";
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`8
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`(2) The “information security wrongful act” was committed on or after the
`Information Security Retroactive Date shown in the Declarations of
`this Coverage Part and before the end of the policy period; and
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`(3) A "claim" or "suit" that seeks "damages" because of the loss is first
`made or brought against any insured, in accordance with Paragraph e.
`below, during the policy period or any Extended Reporting Period we
`provide under Section VI - Extended Reporting Periods in your
`CyberFirst General Provisions Form.
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`c. Each “information security wrongful act” in a series of “related
`information security wrongful acts” will be deemed to have been
`committed on the date the first wrongful act in that series is committed.
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`29.
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`The CYBERFIRST ESSENTIALS INFORMATION SECURITY
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`LIABILITY COVERAGE FORM (PR T1 14 02 12) includes the following definitions, among
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`others:
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`SECTION II – DEFINITIONS
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`* * *
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`3. "Identity information" means any of the following information concerning a
`person:
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`a. Nonpublic personal information as defined in the Gramm-Leach Bliley
`Act of 1999, or any of its amendments, or any regulation issued pursuant
`to such Act;
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`b. Medical or health care information, including protected health information
`as defined in the Health Insurance Portability and Accountability Act of
`1996, or any of its amendments, or any regulation issued pursuant to such
`Act;
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`c. Personal information that is protected from unauthorized access or
`acquisition under any other local, state, federal or foreign law or
`regulation; or
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`d. A driver's license or state identification number; social security number;
`unpublished telephone number; or credit, debit or charge card number, or
`other financial account number and any security code, access code,
`password or PIN number associated with such credit, debit or charge card
`number or other financial account number.
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`4. "Information security wrongful act" means any of the following committed by
`or on behalf of an insured in the conduct of your business:
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`9
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`a. Failure to prevent unauthorized access to, or use of, "identity information"
`of others; or
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`b. Failure to provide notification of any actual or potential unauthorized
`access to, or use of, "identity information" of others as required by any
`"security breach notification law" that applies to you.
`
`* * *
`
`6. “Related information security wrongful acts” means two or more “information
`security wrongful acts” that have a common connection, tie, or link any fact,
`circumstance, situation, event, transaction, cause, or series of related facts,
`circumstances, situations, events, transactions or causes.
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`7. "Security breach notification law" means any law or regulation that requires
`an organization to notify persons that their nonpublic personal information
`was or may have been accessed or acquired without their authorization.
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`30.
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`The CYBERFIRST ESSENTIALS GENERAL PROVISIONS FORM (PR T1
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`13 02 12) includes the following exclusions, among others, providing that the insurance provided
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`under Cyber Coverage does not apply to:
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`e. Criminal, Dishonest, Fraudulent, Or Malicious Wrongful Acts Or
`Knowing Violations Of Rights Or Laws
`Loss arising out of any criminal, dishonest, fraudulent, or malicious "wrongful
`act", or any knowing violation of rights or laws, committed:
`1. By the insured; or
`2. With the consent or knowledge of the insured.
`This exclusion does not apply to our duty to defend that insured until it has
`been determined or admitted in a legal proceeding that such "wrongful act" or
`knowing violation was committed:
`(1) By the insured; or
`(2) With the consent or knowledge of that insured.
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`
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`* * *
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`10
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`

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`j. Injunctive Relief
` Any loss, cost or expense arising out of complying with any injunctive or other
`non-monetary relief or any agreement to provide such relief.
`
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`k. Known Wrongful Acts
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`Loss arising out of any "wrongful act", including any part of "related wrongful
`acts", that any "described authorized person" knew about before the first date
`we or any of our affiliated insurance companies have continuously provided
`this or similar coverage to you.
`
`
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`31.
`
`The CYBERFIRST ESSENTIALS INFORMATION SECURITY
`
`LIABILITY COVERAGE FORM (PR T1 14 02 12) includes the following exclusions, among
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`others, providing that the insurance provided under this form does not apply to:
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`c. Intellectual Property
`
`
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`Loss arising out of any actual or alleged infringement or violation of any of
`the following rights or laws committed by or on behalf of an insured:
`
`(1) Copyright;
`(2) Patent;
`(3) Trade dress;
`(4) Trade name;
`(5) Trade secret;
`(6) Trademark; or
`(7) Other intellectual property rights or laws.
`
`
`d. Profits
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` Disgorgement of profits, accounting or award of profits, or any other return of
`profits.
`
`* * *
`
`32.
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`Subject to the FGIC Policy’s other terms and conditions, the FGIC Policy’s
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`Information Security Liability Coverage may apply to loss only if, among other things, the loss
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`is caused by an “information security wrongful act” committed on or after the Information
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`Security Retroactive Date set forth in the FGIC Policy’s Declarations, i.e. September 15, 2021.
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`
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`11
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`

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`33.
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`Pursuant to the FGIC Policy’s Information Security Liability Coverage part
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`Insuring Agreement, each “information security wrongful act” in a series of “related information
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`security wrongful acts” will be deemed to have been committed on the date the first wrongful act
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`in that series is committed.
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`34.
`
`In the Second Amended Complaint, Clarity alleges wrongful conduct by Bright
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`Haven and Jimenez beginning in December 2020 and continuing through December 2021.
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`35.
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`To the extent that the wrongful conduct alleged in the Second Amended
`
`Complaint constitutes “information security wrongful acts”, as defined in the FGIC Policy, such
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`wrongful acts constitute “related information security wrongful acts” and are deemed to have
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`been committed on the date the first wrongful act in that series was committed.
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`36.
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`To the extent that the wrongful conduct alleged in the Second Amended
`
`Complaint constitutes “information security wrongful acts”, as defined in the FGIC Policy, the
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`first “information security wrongful act” alleged in the Second Amended Complaint in the
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`Lawsuit is alleged to have been committed before the Policy’s September 15, 2021 Information
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`Security Retroactive Date, and all “information security wrongful acts” alleged in the Second
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`Amended Complaint are, therefore, deemed to have been committed before the FGIC Policy’s
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`September 15, 2021 Information Security Retroactive Date.
`
`37.
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`Because any alleged “information security wrongful acts” asserted in the Lawsuit
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`are deemed to have been committed before the applicable retroactive date, the FGIC Policy’s
`
`Cyber Coverage does not apply the Lawsuit.
`
`38.
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`Coverage under the FGIC Policy’s Cyber Coverage Part is also barred, in whole
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`or in part, by the application of the Cyber Coverage Part’s exclusions, referenced in paragraphs
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`30 and 31 of this Count I, to the extent that the Lawsuit is for:
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`
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`12
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`

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`a. Loss arising out of criminal, dishonest, fraudulent or malicious “wrongful
`act”, or any knowing violation of rights or laws, committee by the insured or
`with the consent or knowledge of the insured;
`
`b. Loss, cost or expense arising out of complying with any injunctive or other
`non-monetary relief or any agreement to provide such relief;
`
`c. Loss arising out of any “wrongful act”, including any part of “related
`wrongful acts”, that any “described authorized person” knew about before the
`first date FGIC or any of its affiliated insurance companies have continuously
`provided coverage to Bright Haven;
`
`d. Loss arising out of any actual or alleged infringement or violation of
`intellectual property rights or laws, including, without limitation, trade secret
`rights or laws; or
`
`
`
`
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`e. Disgorgement of profits, accounting or award of profits, or any other return of
`profits.
`
`FGIC is entitled to a declaration that it has no duty to defend or indemnify the
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`39.
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`Bright Haven Parties, under the Policy’s Cyber Coverage Part, in connection with the Lawsuit.
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`WHEREFORE, Plaintiff Fidelity and Guarantee Insurance Company respectfully
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`requests that the Court adjudicate and declare the rights and obligations of the parties, and that
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`the Court:
`
`a)
`
`b)
`
`
`Declare that Plaintiff Fidelity and Guaranty Insurance Company has no obligation
`under the FGIC Policy to defend or indemnify Bright Haven and Jimenez against
`the Lawsuit; and
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`Grant such other and further relief as this Court deems proper.
`
`COUNT II
`(DECLARATORY JUDGMENT – FGIC - CGL COVERAGE)
`
`40.
`
`FGIC realleges and incorporates the allegations contained in Paragraph 1 through
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`24 as if fully stated in this paragraph 40.
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`
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`13
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`41.
`
`Pursuant to the FGIC Policy’s CGL Coverage Part’s COMMERCIAL
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`GENERAL LIABILITY COVERAGE FORM (CG T1 01 02 19), the CGL Coverage Part
`
`includes the following insuring agreements:
`
`SECTION I – COVERAGES
`
`COVERAGE A BODILY INJURY AND PROPERTY DAMAGE
`LIABILITY
`
`1. Insuring Agreement
`
`a. We will pay those sums that the insured becomes legally obligated to pay
`as damages because of "bodily injury" or "property damage" to which this
`insurance applies. We will have the right and duty to defend the insured
`against any "suit" seeking those damages. However, we will have no duty
`to defend the insured against any "suit" seeking damages for "bodily
`injury" or "property damage" to which this insurance does not apply. We
`may, at our discretion, investigate any "occurrence" and settle any claim or
`"suit" that may result.
`
`b. This insurance applies to "bodily injury" and "property damage" only if:
`
`(1) The "bodily injury" or "property damage" is caused by an "occurrence"
`that takes place in the "coverage territory";
`
`(2) The "bodily injury" or "property damage" occurs during the policy
`period;
`
`* * *
`
`COVERAGE B PERSONAL AND ADVERTISING INJURY LIABILITY
`
`1. Insuring Agreement
`
`a. We will pay those sums that the insured becomes legally obligated to pay
`as damages because of "personal and advertising injury" to which this
`insurance applies. We will have the right and duty to defend the insured
`against any "suit" seeking those damages. However, we will have no duty
`to defend the insured against any “suit” seeking damages for “personal
`and advertising injury” to which this insurance does not apply. We may, at
`our discretion, investigate any offense and settle any claim or "suit" that
`may result.
`
`b. This insurance applies to "personal and advertising injury" caused by an
`offense arising out of your business but only if the offense was committed
`in the "coverage territory" during the policy period.
`
`
`
`14
`
`

`

`Case: 1:22-cv-02311 Document #: 1 Filed: 05/03/22 Page 15 of 23 PageID #:15
`
`42.
`
`The FGIC Policy’s COMMERCIAL GENERAL LIABILITY COVERAGE
`
`FORM (CG T1 01 02 19) includes the following definitions, among others:
`
`* * *
`
`SECTION V – DEFINITIONS
`
`1. “Advertisement” means a notice that is broadcast or published to the general
`public or specific market segments about your goods, products or services for
`the purpose of attracting customers or supporters. For the purposes of this
`definition:
`
`a. Notices that are published include material places on the Internet or on
`similar electronic means of communication; and
`
`b. Regarding websites, only that part of a website that is about your goods,
`products or services for the purposes of attracting customers or supporters
`is considered an advertisement.
`
`2. “Advertising injury”:
`
`a. Means injury caused by one or more of the following offenses:
`
`(1) Oral or written publication, including publication by electronic means,
`of material in your "advertisement" that slanders or libels a person or
`organization or disparages a person's or organization's goods, products
`or services, provided that the claim is made or the "suit" is brought by
`a person or organization that claims to have been slandered or libeled,
`or that claims to have had its goods, products or services disparaged;
`
`(2) Oral or written publication, including publication by electronic means,
`of material in your "advertisement" that:
`
`(a) Appropriates a person's name, voice, photograph or likeness; or
`
`(b) Unreasonably places a person in a false light; or
`
`(3) Infringement of copyright, "title" or "slogan" in your "advertisement",
`provided that the claim is made or the "suit" is brought by a person or
`organization that claims ownership of such copyright, "title" or
`"slogan".
`
`b. Includes bodily injury caused by one or more of the offenses described in
`Paragraph a. above.
`
`
`
`* * *
`
`15
`
`

`

`Case: 1:22-cv-02311 Document #: 1 Filed: 05/03/22 Page 16 of 23 PageID #:16
`
`4. “Bodily injury “means:
`
`a. Physical harm, including sickness or disease, sustained by a person; or
`
`b. Mental anguish, injury or illness, or emotional distress, resulting at any
`time from such physical harm, sickness or disease.
`
`17. “Occurrence" means:
`
`* * *
`
`a. An accident, including continuous or repeated exposure to substantially
`the same general harmful conditions; or...
`
`* * *
`
`18. “Personal and advertising injury” means “personal injury” or “advertising
`injury”.
`
`19. “Personal injury”:
`
`a. Means injury, other than "advertising injury", caused by one or more of
`the following offenses:
`
`(1) False arrest, detention or imprisonment;
`
`(2) Malicious prosecution;
`
`(3) The wrongful eviction from, wrongful entry into, or invasion of the
`right of private occupancy of a room, dwelling or premises that a
`person occupies, provided that the wrongful eviction, wrongful entry
`or invasion of the right of private occupancy is committed by or on
`behalf of the owner, landlord or lessor of that room, dwelling or
`premises;
`
`(4) Oral or written publication, including publication by electronic means,
`of material that slanders or libels a person or organization or
`disparages a person's or organization's goods, products or services,
`provided that the claim is made or the "suit" is brought by a person or
`organization that claims to have been slandered or libeled, or that
`claims to have had its goods, products or services disparaged; or
`
`(5) Oral or written publication, including publication by electronic means,
`of material that:
`
`(a) Appropriates a person's name, voice, photograph or likeness; or
`
`(b) Unreasonably places a person in a false light.
`
`
`
`16
`
`

`

`Case: 1:22-cv-02311 Document #: 1 Filed: 05/03/22 Page 17 of 23 PageID #:17
`
`b. Includes “bodily injury” caused by one or more of the offenses described
`in Paragraph a. above
`
`23. “Property damage” means:
`
`* * *
`
`a. Physical injury to tangible property, including all resulting loss of use of
`that property. All such loss of use will be deemed to occur at the time of
`the physical injury that caused it; or
`
`b. Loss of use of tangible property that is not physically injured. All such
`loss of use will be deemed to occur at the time of the “occurrence” that
`caused it.
`
`For the purposes of this insurance, “electronic data” is not tangible property.
`
`* * *
`
`43.
`
`Coverage A of the FGIC Policy’s CGL Coverage Part does not apply to the
`
`Lawsuit because the Lawsuit is not a suit seeking damages because of “bodily injury” or
`
`“property damage” caused by an “occurrence”, as those terms are defined in the FGIC Policy,
`
`and the Lawsuit therefore does not meet the requirements of the Coverage A Insuring
`
`Agreement.
`
`44.
`
`If the Lawsuit satisfied the requirements of the FGIC Policy’s Coverage A
`
`Insuring Agreement, which FGIC expressly denies, Coverage A of the CGL Coverage Part
`
`would not provide coverage for the Lawsuit because the following FGIC Policy Exclusion
`
`applies to the Lawsuit:
`
`2. Exclusions.
`
`This insurance does not apply to:
`
`r. Access Or Disclosure of Confidential or Personal Information
`
`“Bodily Injury” or “property damage” arising out of any access to or
`disclosure of any person’s or organization’s confidential or personal
`information.
`
`
`
`17
`
`

`

`Case: 1:22-cv-02311 Document #: 1 Filed: 05/03/22 Page 18 of 23 PageID #:18
`
`45.
`
`Coverage B of the FGIC Policy’s CGL Coverage Part does not apply to the
`
`Lawsuit because the Lawsuit is not a suit seeking damages because of “personal injury” or
`
`“advertising injury”, as those terms are defined in the FGIC Policy, and the Lawsuit therefore
`
`does not meet the requirements of the Coverage B Insuring Agreement.
`
`46.
`
`If the Lawsuit satisfied the requirements of the FGIC Policy’s Coverage B
`
`Insuring Agreement, which FGIC expressly denies, Coverage B of the CGL Coverage Part
`
`would not provide coverage for the Lawsuit because one or more of the following FGIC Policy
`
`Exclusions apply to the Lawsuit, in whole or in part:
`
`2. Exclusions.
`
`This insurance does not apply to:
`
`a. Knowing Violation of Rights of Another
`
`“Personal and advertising injury” caused by or at the direction of the
`insured with the knowledge that the act would violate the rights of another
`and would inflict “personal and advertising injury”.
`
`* * *
`
`i. Intellectual Property
`
`"Personal and advertising injury” arising out of any actual or alleged
`infringement or violation of any of the following rights or laws, or any
`other "personal and advertising injury" alleged in any claim or "suit" that
`also alleges any such infringement or violation:
`
`(1) Copyright;
`
`(2) Patent;
`
`(3) Trade dress;
`
`(4) Trade name;
`
`(5) Trademark;
`
`(6) Trade secret; or
`
`(7) Other intellectual property rights or laws.
`
`
`
`18
`
`

`

`Case: 1:22-cv-02311 Document #: 1 Filed: 05/03/22 Page 19 of 23 PageID #:19
`
`This exclusion does not apply to:
`
`(1) "Advertising injury" arising out of any actual or alleged infringeme