UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

VITAMIN HEALTH, INC.,

a Michigan corporation,

Case No.

Plaintiffs,

Hon. 

v

HARTFORD CASUALTY INSURANCE COMPANY, 

an Indiana domiciled insurance company,

Defendant.

___________________________________________________________

COMPLAINT FOR DECLARATORY JUDGMENT

AND BREACH OF CONTRACT

NOW COMES Plaintiff, Vitamin Health, Inc., by and through its

attorneys, Wilson Young PLC, and for its Complaint for Declaratory 

Judgment and Breach of Contract, pursuant to 28 U.S.C. §2201 and Fed. 

R. Civ. P. 57, states as follows:

1. Plaintiff Vitamin Health, Inc. ("Vitamin Health") is a Michigan 

corporation with its principal place of business in Farmington Hills, 

Michigan.

THE PARTIES

2:15-cv-10071-SFC-EAS Doc # 1 Filed 01/09/15 Pg 1 of 9 Pg ID 1
2

2. Defendant Hartford Casualty Insurance Company (“Hartford") is 

an Indiana domiciled insurance company with its principal place of 

business in Hartford, Connecticut, and is authorized to issue insurance 

policies in the State of Michigan. 

3. This action is brought pursuant to 28 U.S.C. §§2201-2202 and 

seeks a declaratory judgment as to the rights and obligations of the parties 

under several Hartford insurance policies for the claims asserted against 

Vitamin Health in the United States District Court, Western District of New 

York, and captioned as Bausch & Lomb Incorporated v. Vitamin Health, 

Inc., Case No. 13-cv-06498-JWF (hereinafter referred to as the “Bausch & 

Lomb action”).

JURISDICTION AND VENUE

4. Pursuant to 28 U.S.C. §1332, this Court has original jurisdiction 

because the matter in controversy exceeds $75,000 and is between 

citizens of different states. 

5. Venue is proper in this judicial district pursuant to 28 U.S.C. 

§1391.

6. As the result of a dispute regarding the applicability of the 

Hartford insurance policies to the claims made in the Bausch & Lomb 

action, there is an actual case or controversy between the parties.

2:15-cv-10071-SFC-EAS Doc # 1 Filed 01/09/15 Pg 2 of 9 Pg ID 2
3

7. Both Vitamin Health and Bausch & Lomb make supplements for 

eye health.

THE UNDERLYING FACTS

8. In 2001, the National Eye Institute ("NEI") of the National 

Institutes of Health completed a ten-year study of age-related macular 

degeneration ("AMD") and issued an Age-Related Eye Disease Study 

("AREDS").

9. The AREDS found that specific formulations of vitamins and 

minerals reduced the risk of developing AMD.

10. In 2013, the NEI completed a second study of AMD and issued 

a second Age-Related Eye Disease Study ("AREDS 2"). 

11. AREDS 2 recommended the addition of lutein and zeaxanthin 

to the vitamins and minerals recommended in AREDS and the removal of 

beta-carotene.

12. On September 16, 2013, Bausch & Lomb filed a Complaint 

against Vitamin Health in the Bausch & Lomb action. (Exhibit A).

THE BAUSCH & LOMB ACTION

13. On April 21, 2014, Bausch & Lomb filed a First Amended 

Complaint (the "FAC") against Vitamin Health in the Bausch & Lomb action. 

(Exhibit B).

2:15-cv-10071-SFC-EAS Doc # 1 Filed 01/09/15 Pg 3 of 9 Pg ID 3
4

14. The Bausch & Lomb FAC alleges that Vitamin Health's 

Viteyes® products are marketed as AREDS 2 compliant but contain 25 mg 

zinc whereas Bausch & Lomb alleges that to be AREDS 2 compliant a 

product must contain 80 mg of zinc. (Exhibit B at ¶37).

15. The Bausch & Lomb FAC alleges that Vitamin Health, in its 

labeling, promotion and marketing of its Viteyes® products, has made false 

and/or misleading statements with regard to its compliance with AREDS 2. 

(Exhibit B at ¶40). 

16. The Bausch & Lomb FAC alleges Vitamin Health's Viteyes® 

products are marketed as competing products to Bausch & Lomb's 

PreserVision® products (Exhibit B at ¶41).

17. The Bausch & Lomb FAC alleges that Vitamin Health's 

Viteyes® products being marketed and advertised as AREDS 2 compliant 

has caused Bausch & Lomb to suffer damages and lost sales of its

competing PreserVision® products (Exhibit B ¶41). 

18. The Bausch & Lomb FAC asserts three counts against Vitamin 

Health: Count 1: Patent Infringement of U.S. Patent No. 6,660,297 (the 

"297 Patent"); Count 2: Patent Infringement of U.S. Patent No. 8,603,522 

(the "522 Patent"); and Count 3: False Advertising. 

2:15-cv-10071-SFC-EAS Doc # 1 Filed 01/09/15 Pg 4 of 9 Pg ID 4
5

19. Hartford has issued its Spectrum insurance policies to Vitamin 

Health since 2005 and through 2014:

THE HARTFORD POLICIES

Policy No. 33 SBA RU1326 DV

December 27, 2005 to December 27, 2006; (Exhibit C);

issued for the policy periods of:

December 27, 2006 to December 27, 2007; (Exhibit D); 

December 27, 2007 to December 27, 2008; (Exhibit E);

December 27, 2008 to December 27, 2009; (Exhibit F); and

Policy No. 33 SBA UF0967 SA

December 27, 2009 to December 27, 2010; (Exhibit G);

; issued for the policy periods of:

December 27, 2010 to December 27, 2011; (Exhibit H);

December 27, 2011 to December 27, 2012; (Exhibit I);

December 27, 2012 to December 27, 2013; (Exhibit J); 

December 27, 2013 to December 27, 2014; (Exhibit K).

20. The insurance policies identified in paragraph 19 above 

(collectively, "the Hartford insurance policies") provide both business 

liability insurance coverage and umbrella liability insurance coverage to 

Vitamin Health.

21. The Hartford insurance policies are occurrence-based policies 

that apply to occurrences during each policy period.

22. The Hartford insurance policies provide Vitamin Health with 

insurance coverage (defense and indemnity) for "personal and advertising 

injury" occurring within each policy period.

2:15-cv-10071-SFC-EAS Doc # 1 Filed 01/09/15 Pg 5 of 9 Pg ID 5
6

23. The Hartford insurance policies, at definition 17. d., define 

"personal and advertising injury" as injury arising out of the 

"disparage[ment] [of an] organization's goods, products or services."

24. The Hartford insurance policies, at definition 17. f., define 

"personal and advertising injury" as injury arising out of the "copying in your 

"advertisement" [an] organization's "advertising idea" or style of 

"advertisement."

25. Vitamin Health restates and incorporates by reference the 

claims and allegations in paragraphs 1-24 of the Complaint as set forth 

herein word-for-word.

COUNT I - DECLARATORY JUDGMENT

26. Vitamin Health seeks a determination of the rights and duties of 

the parties and a declaration that the claims asserted in the Bausch & 

Lomb action in the FAC at Count 3 constitute covered claims and "personal 

and advertising injury" within the coverage of the Hartford insurance 

policies, that no exclusions contained within the Hartford insurance policies 

deny insurance coverage to Vitamin Health, and that the Hartford insurance 

policies provide defense and indemnity to Vitamin Health for these claims.

27. Vitamin Health is not seeking insurance coverage (indemnity) 

from Hartford for the claims asserted against it in Count 1 of the FAC: 

2:15-cv-10071-SFC-EAS Doc # 1 Filed 01/09/15 Pg 6 of 9 Pg ID 6
7

Patent Infringement of the 297 Patent or Count 2 of the FAC: Patent 

Infringement of the 522 Patent. 

28. Vitamin Health is seeking insurance coverage (defense) for its 

defense costs, attorneys' fees and expenses incurred in the defense of the 

Bausch & Lomb action. 

29. Vitamin Health is seeking insurance coverage (indemnity) for 

the claims asserted against it in Count 3 of the Bausch & Lomb FAC: False 

Advertising. 

WHEREFORE, Plaintiff Vitamin Health, Inc., requests that this 

Honorable Court declare the rights, duties and obligations of the parties 

under the Hartford Casualty Insurance Company policies for the claims as 

set forth in the Bausch & Lomb action and with respect to the defense 

costs, expenses and indemnification of Plaintiff Vitamin Health, Inc., for the 

Bausch & Lomb action, plus interest, costs and attorneys’ fees and any 

additional relief which this Honorable Court finds to be appropriate, 

equitable and/or just.

30. Vitamin Health restates and incorporates by reference the 

claims and allegations in paragraphs 1-29 of this Complaint as set forth 

herein word-for-word.

COUNT II - BREACH OF CONTRACT

2:15-cv-10071-SFC-EAS Doc # 1 Filed 01/09/15 Pg 7 of 9 Pg ID 7
8

31. The Hartford insurance policies provide that it will pay the 

defense costs, charges and expenses incurred in the defense of "personal 

and advertising injury" claims asserted against Vitamin Health.

32. The Hartford insurance policies also provide that it will 

indemnify Vitamin Health for damages arising from "personal and 

advertising injury" claims asserted against Vitamin Health up to its $1 

million limit of liability per occurrence in the business liability coverage form 

and $4 million limit of liability per occurrence in the umbrella liability 

coverage form.

33. Hartford has breached the terms of the Hartford insurance 

policies, and its contract with Vitamin Health, by failing and/or otherwise 

refusing to pay the defense costs, charges and expenses incurred by 

Vitamin Health in the Bausch & Lomb action and for the indemnification of 

Vitamin Health for "personal and advertising injury" claims in the Bausch & 

Lomb action asserted against Vitamin Health up to its $1 million limit of 

liability per occurrence in the business liability coverage form and $4 million 

limit of liability per occurrence in the umbrella liability coverage form.

34. As a result of Hartford's breach of contract, Vitamin Health has

suffered, and will suffer, damages in an amount in excess of $75,000.

2:15-cv-10071-SFC-EAS Doc # 1 Filed 01/09/15 Pg 8 of 9 Pg ID 8
9

WHEREFORE, Plaintiff Vitamin Health, Inc., requests that this 

Honorable Court enter a judgment in its favor against Defendant Hartford

Casualty Insurance Company for all compensatory and consequential 

damages, in an amount in excess of $75,000, to which it is found to be 

entitled, plus 12% penalty interest pursuant to M.C.L. §500.2006, prejudgment and post-judgment interest, costs and attorneys’ fees and any 

additional relief which this Honorable Court finds to be appropriate, 

equitable and/or just.

Respectfully submitted,

Wilson Young PLC

Douglas Young 

/s/ Douglas Young

Attorneys for Plaintiff 

1 Woodward Ave., Suite 2000

Detroit, MI 48226

(313) 983-1235

dyoung@wilsonyoungplc.com

P43808

Dated: January 9, 2014

2:15-cv-10071-SFC-EAS Doc # 1 Filed 01/09/15 Pg 9 of 9 Pg ID 9