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Glenmark Pharmaceuticals, Inc., USA v. Franklin Mutual Insurance Co.

December 12, 2008

GLENMARK PHARMACEUTICALS, INC., USA, PLAINTIFF-APPELLANT,
v.
FRANKLIN MUTUAL INSURANCE COMPANY, DEFENDANT-RESPONDENT.



On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-3114-06.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued September 15, 2008

Before Judges Reisner, Sapp-Peterson, and Alvarez.

Plaintiff, Glenmark Pharmaceuticals, Inc., USA, appeals from the July 23, 2007 order granting summary judgment to defendant, Franklin Mutual Insurance Company, and dismissing plaintiff's declaratory judgment action. For the reasons that follow, we affirm.

Defendant issued a one-year casualty and general liability policy to plaintiff on March 29, 2005. Section 1 of Part IIB of the policy states that the insurer will defend actions against the insured arising from "bodily injury, property damage, and personal/advertising injury." Section 11 of Part IIB states that the supplemental coverage includes: "Advertising injury arising out of an offense committed in the course of advertising goods, products, or services of your business/operations covered here." Paragraph 6 of Section 11, however, exempts: "Injury arising out of breach of contract, other than misappropriation of advertising ideas under an implied contract." The Section 11 glossary defines "advertising injury" as follows:

Advertising injury means solely the following:

1. Infringement of copyright, slogan, or title.

2. Misappropriation of advertising ideas or style of doing business.

3. Oral or written publication of material that: slanders or libels a person or organization; disparages a person's or organization's goods, products, or services.

4. Oral or written publication of material that violates a person's right of privacy.

In December 2005, Breckenridge Pharmaceutical, Inc. brought an action against plaintiff in Florida, seeking compensatory damages, and alleging that plaintiff breached a confidentiality agreement that the two companies had entered into prior to discussions regarding the development, manufacture and sale of a particular product. Starting in November 2004, plaintiff and Breckenridge entered into negotiations regarding the manufacture of a generic drug related to hormone replacement therapy, which had not previously been part of plaintiff's inventory. Discussions commenced only after plaintiff and Breckenridge entered into a written confidentiality agreement at Breckenridge's insistence. Ultimately, no meeting of the minds occurred.

Approximately a year later, plaintiff contracted with another company, Andapharm, LLC, to market and sell a similar product. When Breckenridge learned of plaintiff's agreement with Andapharm, it filed the Florida lawsuit, which named Andapharm as a defendant as well. Breckenridge had also entered into negotiations as to the same drug, subject to a written confidentiality agreement, with Andapharm. Breckenridge's suit against plaintiff was ultimately dismissed.

On April 17, 2006, plaintiff filed this complaint, asserting that defendant wrongfully failed to defend plaintiff in the Florida lawsuit. Plaintiff sought reimbursement from defendant for the costs of its defense to the suit, which totaled $625,395.94. Plaintiff and defendant filed various summary judgment motions, the final round of which was decided by the motion judge by way of a written opinion dated July 23, 2007. The judge granted defendant's motion because he concluded that every claim that Breckenridge made against plaintiff in the Florida proceeding ...


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