Heard: February 6, 2018.
action commenced in the Superior Court Department on
July 31, 2015. The case was heard by Mitchell H.
Kaplan, J., on motions for summary judgment.
Supreme Judicial Court granted an application for direct
P. Wright for the defendant.
L. Ciociola for Maryland Casualty Company.
Michael D. Riseberg (David B. Stanhill also present) for
Holyoke Mutual Insurance Company in Salem.
A. Foggan, of the District of Columbia, & Jon C. Cowen,
for Complex Insurance Claims Litigation Association, amicus
curiae, submitted a brief.
Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher,
& Kafker, JJ.
appeal stems from an insurance coverage dispute between the
insured, Vibram USA, Inc. (Vibram),  and two insurers,
Holyoke Mutual Insurance Company in Salem and Maryland
Casualty Company, which had issued several general commercial
liability policies (the policies) to Vibram. The heirs of
the late, famed marathon runner Abebe Bikila sued Vibram in
Federal court for improperly using the name
"Bikila" to advertise Vibram's running shoes.
Vibram tendered the defense to the insurers, who denied
coverage on the ground that a provision in the policies
covering improper use of another's advertising idea did
not cover the claims raised in this action. The insurers,
however, agreed to fund Vibram's defense under a
reservation of rights. The insurers then commenced an action
in the Superior Court seeking a declaration that they were
not obligated to defend Vibram in the underlying action. A
Superior Court judge granted the insurers' motion for
summary judgment on that ground. Vibram appealed.
conclude that the allegations in the underlying complaint
were sufficient to trigger the insurers' duty to defend
under the provision of the policies covering the use of
another's advertising idea, and therefore, the insurers
have an obligation to defend Vibram in the underlying action.
Accordingly, we reverse the allowance of the insurers'
motion for summary judgment.
Factual background and procedure.
2009 and 2011, Vibram, a producer of minimalistic shoes that
simulate walking and running barefoot, purchased from the
insurers the policies, which, among other things, provide
coverage for "personal and advertising injury
liability." With certain enumerated exceptions, the
policies state that the insurers have a duty to defend Vibram
from any suit seeking damages for covered losses,
particularly for claims seeking damages against Vibram for
particular form of advertising injury at issue in this case
is the one described in clause (f) of the policies as
"[t]he use of another's advertising idea in your
'advertisement.'" The policies define
"advertisement" as a "notice that is broadcast
or published to the general public or specific market
segments about your foods, products or services for the
purpose of attracting customers or supporters." The
policies do not define the term "advertising idea."