Insurer’s Unique Coverage For “Personal And Advertising Injury” Negated By Unique Exclusion

It is not usual to see claims for the use of one’s likeness in an advertisement.  I’ve seen this several times with gentlemen’s clubs, without permission, using photos of models for advertising purposes.  That’s what was at issue in Ratchford v. Watford Specialty Ins. Co., No. 22-01629 (D. Ariz. Mar. 6, 2023). Here, the insurer had a unique definition of “personal and advertising injury.”  It included “[o]ral or written publication, in any manner, of another’s images, photographs, likenesses or personal attributes.”  Then the policy had an exclusion for “‘personal and advertising injury’ arising out of the actual or alleged use of another’s images, photographs, likenesses or personal attributes whether altered or unaltered.” 

Despite an argument to the contrary, the court concluded that the coverage was not illusory: “Here, (i)(2) renders neither null nor illusory the Policies’ coverage for ‘Personal and Advertising Liability’—it simply narrows it. That section covers ‘personal and advertising injur[ies],’ a term defined by six subsections, (15)(a) through (f).) Exclusion (i)(2) does not exclude all coverage under this section, only one form of it—that defined by (15)(f). The Policies still provide coverage for five other forms of ‘personal and advertising injury:’ (15)(a) through (e). As such, the Policies still offer the insured effective protection for ‘personal and advertising liability.’”