United States District Court, D. Massachusetts
MEMORANDUM AND ORDER ON PLAINTIFF'S MOTION FOR
PARTIAL SUMMARY JUDGMENT AND MOTIONS TO STRIKE
Dennis Saylor IV United States District Judge
a dispute concerning the scope of an insurance policy.
Defendants KT Health Holdings, LLC, and KT Health, LLC, have
a general liability insurance policy issued by plaintiff, the
Cincinnati Insurance Company. Defendants manufacture and sell
an athletic tape called KT Tape that is advertised to relieve
pain and prevent injury during exercise. They are now
defendants in a class action lawsuit alleging that they made
false and misleading statements in advertising concerning the
efficacy of KT Tape. That lawsuit also alleges a single count
for personal injury arising out of skin irritation caused by
KT Tape on behalf of the named plaintiff alone.
has moved for partial summary judgment seeking a declaratory
judgment that the policy does not cover the class claims
asserted in the underlying action. Plaintiff has also filed
two motions to strike portions of declarations submitted by
defendants in opposition to that motion. For the following
reasons, plaintiff's motion for partial summary judgment
will be granted, and the motions to strike will be denied.
otherwise noted, the facts set forth below are undisputed.
KT Health Holdings, LLC (“KTHH”) and KT Health,
LLC (“KTH”) manufacture and sell a colorful
elastic tape called KT Tape for use in sports and fitness
activities. (Def. SMF Ex. 1, ¶¶ 4-8). Defendants
advertise KT Tape as way to prevent injury and alleviate pain
during exercise. (Def. SMF ¶¶ 40-43).
The Underlying Action
October 30, 2015, Alexander Vuckovic filed a class action
lawsuit against KTHH, KTH, and KT Holdings, LLC. (Compl.,
Vuckovic v. KT Health Holdings, et al.,
15-cv-13696-GAO (Oct. 30, 2015)). In January 2016, Vuckovic
amended the complaint to eliminate KT Holdings, LLC as a
defendant. (First Amended Complaint, Pl. SMF Ex. C). The
first amended complaint alleged three counts under state law
for unjust enrichment, untrue and misleading advertising in
violation of Mass. Gen. Laws ch. 266, § 91, and unfair
and deceptive practices in violation of Mass. Gen. Laws ch.
93A, § 2. (Id. ¶¶ 57-74). It proposes
to bring claims on behalf of all persons who purchased KT
Tape in Massachusetts since the fall of 2011. (Id.
¶ 48). It did not assert any personal injury claims.
7, 2016, Vuckovic filed a second amended complaint
(“SAC”) adding a single claim for personal injury
arising out of redness and irritation caused by affixing KT
Tape to his skin. (SAC, Pl. SMF Ex. A). That new claim
applies to Vuckovic alone, while the original three counts
are alleged on behalf of the class. (Id.
substance, the class claims allege that KT Tape does not work
as advertised. The SAC alleges that defendants'
statements in advertisements, use of photographs of Olympic
athletes wearing KT Tape, and other marketing practices
create the impression that KT Tape relieves pain and prevents
injury during exercise. (Id. ¶¶ 3-18). It
further alleges that those claims are “not supported by
scientific evidence, and [are] not accepted by the medical
community.” (Id. ¶ 22). It states that
defendants' “creative and aggressive marketing
efforts are the only reason that [defendants] ha[ve] been
able to sell so much of this product at premium prices”
and that “consumers, including Plaintiff and other
Class members, have paid a premium price for a product that
does not perform as claimed and advertised.”
(Id. ¶¶ 7, 27).
The Insurance Policy
Cincinnati Insurance Company issued a commercial general
liability insurance policy, EPP 0184626, to Lumos Inc. doing
business as KT Tape for the period from March 1, 2013 - March
1, 2016. (Policy, Pl. SMF Ex. E). Defendants were added as
insureds to the policy by endorsement. (Id.).
policy provides, among other things, that Cincinnati 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 . . . .
(Pl. SMF Ex. E § I.1.a). It defines “bodily
injury” as “bodily injury, sickness or disease
sustained by a person, including death resulting from any of
these.” (Id. § V.4).