West Bend Mut. Ins. Co. v. Ixthus Medical Supply, Inc


In West Bend Mut. Ins. Co. v. Ixthus Medical Supply, Inc., Appeal No. 2017AP909, Abbott Laboratories and related entities sued West Bend insured Ixthus for trademark and trade dress infringement, fraud, racketeering, and other alleged illegal acts.  In particular, the plaintiffs in the underlying action claimed that Ixthus illegally conspired to import and sell diverted international blood glucose test strips manufactured by Abbott whose labeling had not been approved by regulators for sale in the United States.  The complaint appears to allege only intentional violations.  West Bend filed a declaratory judgment action, arguing that it has no duty to defend Ixthus, based on the exclusion from advertising injury coverage for a knowing violation of the rights of another.  The trial court ruled in West Bend’s favor, but the Court of Appeals reversed.  The WIA filed an amicus curiae brief, arguing:  1) there is no advertising injury coverage when there are no allegations of a causal connection between the advertising activity and the injury, and 2) based on the four corners rule, the knowing violation exclusion applies to preclude coverage.  The case is fully briefed and argued and awaiting decision from the Supreme Court.

DECISION:  West Bend Mut. Ins. Co. v. Ixthus Medical Supply, Inc.

Wisconsin Insurance Alliance