First Mercury Insurance Company v. Nationwide Security Services, Inc.

Insurer filed declaratory judgment action asserting the insured, a company charged with sending "blast fax", and its assignee (company which was class action plaintiff) were not entitled to be indemnified under policy. Parties to underlying class action suit had settled for $4 million, although insurer was not a party to settlement and had opposed previous settlement offer. Policy explicitly states that property damage and advertising injury deductible apply respectively per claim due to any one occurrence or due to any one injury.Policy's advertising injury deductible provision and use of the word "claim" are not ambiguous. Thus, coverage for property damages and advertising injury is possible on a per claim basis and with the deductible applying. As deductible is above the $1 million advertising injury limit, insurer is not obligated to indemnify insured or assignee for costs of settlement. Policy exclusion prohibits penalties and damages that are a multiple of compensatory damages, and prejudgment interest. (MASON and FITZGERALD SMITH, concurring.)