UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

FORT WAYNE DIVISION

NATIONAL FIRE INSURANCE COMPANY OF 

HARTFORD and CONTINENTAL CASUALTY 

COMPANY, 

Plaintiffs,

JURY TRIAL DEMANDED

Civil Action No.: 1:16-CV-00152-

JTM-SLC

- v -

MEDICAL INFORMATICS ENGINEERING, INC., 

NOMORECLIPBOARD, LLC, RORY HILL,

NICOLE HILL, DAWN MCLAUGHLIN,

ADRIENNE LLEWELLYN, RYAN POOL, JAMES

YOUNG, TERRI GREULICH, CYNTHIA 

WEINMAN, PATRICIA JUSTICE, SUSAN G. 

JONES, LEE ROTTINGHAUS, JEFFREY HAYES, 

SHANNON MUDD, STEPHEN JOHNSON, PATRICK 

MUDD, CORNELL TJADEN, SYLVIA TJADEN, 

SHARON EAGLE, DOUGLAS EAGLE, THOMAS 

JONES, STEVE WALKER, ANTOINETTE ANN 

FRANKLIN, KELLY MCGAHAN, TANYA AUTRY, 

IRA KUSHNER, SHICOLA WASHINGTON, SARAH 

LORD, MARY LUYSTERBURG, JOHN KULHA, 

ALLAN LEWIS, DAVID WAYNE PERRY, VIKAS 

CHANDNA, HERBERT L. SCHUTTLER, JEREMY 

BRANN, CYNTHIA BENOIT, FLOYD HARRIS, 

TRACI TAYLOR, JOE POIRIER, LAUREN FERN 

RAINESS, ANITA COLTER, ANTHONY BROWN, 

RICHARD LARSON, MICHAEL OSBOURN, MARK 

GUTH, RICHARD DIGOVINE, NANCY RICE, 

BRANDON WARRICK, JAMES MUELLER, 

MICHELLE MOORE, AND LANDMARK 

AMERICAN INSURANCE COMPANY,

Defendants.

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FIRST AMENDED COMPLAINT FOR DECLARATORY JUDGMENT

Plaintiffs, NATIONAL FIRE INSURANCE COMPANY OF HARTFORD 

(NFICH), and CONTINENTAL CASUALTY COMPANY (CCC), foreign corporations, 

seek Declaratory Judgment for purposes of determining a question of actual, immediate 

controversy among the parties. Plaintiffs respectfully allege as follows:

NATURE OF ACTION AND RELIEF SOUGHT

1. This is an insurance coverage action for declaratory relief pursuant to 28 

U.S.C. §§2201 and 2202 and IC 34-14-1-1 e t . s e q . NFICH and CCC seek a 

declaration of rights and obligations (if any) to defend or indemnify MEDICAL 

INFORMATICS ENGINEERING, INC. and NOMORECLIPBOARD, LLC (collectively 

MIE) in connection with the individual lawsuits and the Consolidated Class Action

lawsuit (Data Breach Suits) filed against MIE in the U.S. District Court for the 

Northern District of Indiana which have been consolidated in Case No. 3:15-MD-2667 

which seek damages and other relief for an alleged data breach which occurred in May

2015, and which MIE allegedly failed to disclose until after June 10, 2015. Copies of 

the complaints have been attached as Exhibits A-T.

PARTIES

2. NFICH is a corporation organized and existing under the laws of Illinois 

with its principal place of business in Chicago, Illinois. NFICH is a citizen of the State of 

Illinois and is licensed to do business in Indiana.

3. CCC is a corporation organized and existing under the laws of Illinois 

with its principal place of business in Chicago, Illinois. CCC is a citizen of the State of 

Illinois and is licensed to do business in Indiana.

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4. Medical Informatics Engineering, Inc. is an Indiana corporation with its 

principal place of business in Fort Wayne, Indiana. Medical Informatics Engineering, Inc. 

is a Defendant in the Data Breach Suits. Medical Informatics Engineering, Inc. is a 

citizen of the State of Indiana and is licensed to do business in Indiana.

5. NoMoreClipboard, LLC is an Indiana LLC with its principal place of 

business in Fort Wayne, Indiana. Upon information and belief, NFICH and CCC believe 

that no members of NoMoreClipboard, LLC are residents of the state of Illinois. 

NoMoreClipboard, LLC is a Defendant in the Data Breach Suits.

6. Defendants/Underlying Plaintiffs Adrienne Llewellyn, Rory Hill, Nicole

Hill, Dawn McLaughlin, Ryan Pool, James Young, Cynthia Weinman, Patricia Justice, 

Susan G. Jones, Lee Rottinghaus, Jeffrey Hayes, Margaret Hayes, Eli Hayes, Darcy 

Norder, Patrick Kippert, James A. Martin, Shannon Mudd, Stephen Johnson, Patrick 

Mudd, Cornell Tjaden, Sylvia Tjaden, Sharon Eagle, Douglas Eagle and Thomas Jones 

are citizens of the State of Indiana.

7. Defendants/Underlying Plaintiffs Antoinette Ann Franklin, Kelly 

McGahan and Tanya Autry are citizens of the State of Arkansas.

8. Defendant/Underlying Plaintiff Ira Kushner is a citizen of the State of 

Arizona.

9. Defendants/Underlying Plaintiffs Steve Walker, Shicola Washington, 

Terri Greulich and Sarah Lord are citizens of the State of California.

10. Defendants/Underlying Plaintiffs Mary Luysterburg, John Kulha and 

Allan Lewis are citizens of the State of Florida.

11. Defendants/Underlying Plaintiffs David Wayne Perry and Vikas Chandna 

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are citizens of the State of Georgia.

12. Defendant/Underlying Plaintiff Herbert L. Schuttler is a citizen of the 

State of Kansas.

13. Defendant/Underlying Plaintiff Jeremy Brann is a citizen of the 

Commonwealth of Kentucky. 

14. Defendant/Underlying Plaintiff Cynthia Benoit is a citizen of the State of 

Louisiana.

15. Defendants/Underlying Plaintiffs Floyd Harris, Traci Taylor and Joe 

Poirier are citizens of the State of Michigan.

16. Defendant/Underlying Plaintiff Lauren Fern Rainess is a citizen of the 

State of Nevada.

17. Defendants/Underlying Plaintiffs Anita Colter and Anthony Brown are 

citizens of the State of New Jersey.

18. Defendant/Underlying Plaintiff Richard Larson is a citizen of the State of 

New Mexico.

19. Defendant/Underlying Plaintiff Michael Osbourn is a citizen of the State 

of Ohio.

20. Defendant/Underlying Plaintiff Mark Guth is a citizen of the State of 

Oregon.

21. Defendants/Underlying Plaintiffs Richard DiGovine and Nancy Rice are 

citizens of the Commonwealth of Pennsylvania.

22. Defendant/Underlying Plaintiff Brandon Warrick is a citizen of the State 

of Texas.

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23. Defendant/Underlying Plaintiff James Mueller is a citizen of the 

Commonwealth of Virginia.

24. Defendant/Underlying Plaintiff Michelle Moore is a citizen of the State of 

Washington. 

25. Parties named in Paragraphs 6-24, as well as the alleged 3.9 million 

putative class members1 will be collectively referred to as “Defendants/Underlying 

Plaintiffs.”

26. Since the Defendants/Underlying Plaintiffs initiated the Data Breach Suits, 

out of which this declaratory judgment action arises, they are interested parties and are 

named as defendants in this declaratory judgment action so that they will be bound by 

any judgment rendered herein.

27. Defendant Landmark American Insurance Company (Landmark) is an 

insurance company organized and existing under the laws of the State of Oklahoma, with 

its principal place of business in Atlanta, Georgia.

28. Because Landmark issued an insurance policy or policies to MIE that may 

provide coverage to MIE for the claims asserted by the Defendants/Underlying Plaintiffs 

against MIE, Landmark is an interested party and is named as a defendant in this 

declaratory judgment action so that it will be bound by any judgment rendered herein. 

JURISDICTION AND VENUE

29. This is an action for declaratory relief pursuant to 29 U.S.C. §§ 2201 and 

2202 and Rule 57 of the Federal Rules of Civil Procedure. 

30. An actual justiciable controversy between NFICH, CCC and MIE exists 

 

1 Upon information and belief, as of the date of the filing of this complaint, no putative class action lawsuit 

has been certified. 

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within the meaning of 28 U.S.C.§2201 regarding whether NFICH and CCC have any 

duty to defend or indemnify MIE under the NFICH and CCC Policies with respect to the 

claims asserted in the Data Breach Suits as more particularly described below.

31. This Court has diversity jurisdiction pursuant to 28 U.S.C. §1332(1) 

because the amount in controversy exceeds the sum or value of $75,000, exclusion of 

interest and costs, and the suit is between citizens of different states. 

32. Venue is proper pursuant to 28 U.S.C. §1391 because a substantial part of 

the events or omissions giving rise to the claims occurred within this District. MIE and 

NoMoreClipboard reside in Indiana and Landmark does business in Indiana. Additionally 

all Defendants/ Underlying Plaintiffs have consented to litigation of their cases in the 

Northern District of Indiana. 

FACTUAL ALLEGATIONS

A. The Underlying Lawsuits

33. The Defendants/Underlying Plaintiffs filed separate class action suits 

against MIE which were consolidated for the purposes of efficient handling in the U.S. 

District Court for the Northern District of Indiana in case No. 3:15-MD-2667 (the Data 

Breach Suits). All of the Defendants/Underlying Plaintiffs assert that they were damaged 

as a result of MIE’s alleged failure to protect its databases which contained Personal 

Medical Information (PMI) and Personal Identifiable Information (PII) of the 

Defendants/Underlying Plaintiffs and the alleged 3.9 million other putative class 

members. MIE’s databases were allegedly breached on or about May 7, 2015 and the 

breach was not detected until on or after May 25, 2015. (See Exs. A-T, 

Defendants/Underlying Plaintiffs’ complaints).

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34. The Defendants/Underlying Plaintiffs allege that their medical providers 

contracted with MIE for the storage of medical records for their patients. In order to 

obtain services from their medical providers, Defendants/Underlying Plaintiffs were 

allegedly required to provide PMI and PII to their providers, which was then entered into 

the MIE databases. The PMI and PII included information such as 

Defendants/Underlying Plaintiffs’ dates of birth, mailing addresses, telephone numbers, 

email addresses, financial information and other protected health information. (See Exs. 

A-T, Defendants/Underlying Plaintiffs’ complaints).

35. Defendants/Underlying Plaintiffs allege that pursuant to HIPAA Privacy 

Rule and Security Rules, 45 CFR Part 160 and Part 164, Federal Trade Commission Act 

15 U.S.C. §45, and various state consumer protection and cyber security laws, MIE had 

an obligation to keep the Defendants/Underlying Plaintiffs’ PMI and PII confidential and 

to protect the information from unauthorized disclosure. (See Exs. A-T, 

Defendants/Underlying Plaintiffs’ complaints).

36. The Defendants/Underlying Plaintiffs allege that MIE was aware that its 

databases were improperly secured and knew or should have known that a data breach 

would likely result from its deficient security and privacy practices. (See Exs. A-T, 

Defendants/Underlying Plaintiffs’ complaints).

37. According to the Defendants/Underlying Plaintiffs, MIE contracted with 

Underlying Plaintiff’s Health Care Providers to provide secure data storage and that as a 

result of MIE’s failure to provide the level of data protection promised and that the 

Defendants/Underlying Plaintiffs indirectly paid for, MIE exposed their PMI and PII to 

an increased risk of misuse by unauthorized third parties. (See Exs. A-T, 

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Defendants/Underlying Plaintiffs’ complaints).

38. Some Defendants/Underlying Plaintiffs allege that they have suffered 

medical fraud, tax fraud, credit card fraud and phishing scams as a result of MIE’s 

conduct. (See Exs. A-T, Defendants/Underlying Plaintiffs’ complaints).

39. Defendants/Underlying Plaintiffs allege that on or about May 7, 2015, 

third party hackers began the initial attack on MIE’s servers. The attack continued to at 

least May 26, 2015 (hereinafter referred to as the alleged Data Breach). (See Exs. A-T, 

Defendants/Underlying Plaintiffs’ complaints).

40. Defendants/Underlying Plaintiffs allege that MIE failed to notify the 

Defendants/Underlying Plaintiffs or any members of the putative class of the alleged 

Data Breach until on or after June 10, 2015. (See Exs. A-T, Defendants/Underlying 

Plaintiffs’ complaints).

41. Defendants/Underlying Plaintiffs allege that they have suffered damages. 

The Consolidated Class Action Complaint Plaintiffs assert:

3. As a result of the MIE data breach, Breach Victims have been harmed. For 

example, Breach Victims have had fraudulent charges on various accounts. They

have spent many hours filing police reports and monitoring credit reports and 

credit and bank accounts to combat identity theft. Many are now paying monthly

or annual fees for identity theft and credit monitoring services. Now that their 

Personal and Medical Information has been released, Breach Victims must be 

super-vigilant and worry about being victimized for the rest of their lives. (See 

Ex. T, ¶3.)

(See Exs. A-T, Defendants/Underlying Plaintiffs’ complaints).

42. The Defendants/Underlying Plaintiffs allege that MIE failed to take 

adequate and reasonable security measures to protect the Defendants/Underlying 

Plaintiffs’ PMI and PII and failed to take actions that could have prevented, or at least 

reduced the consequences of the breach. By failing to take those measures, 

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Defendants/Underlying Plaintiffs allege that MIE breached its duty to protect the 

Defendants/Underlying Plaintiffs’ PMI and PII which allegedly resulted in the theft re of 

that information, which potentially exposed the Defendants/Underlying Plaintiffs, and the 

putative class members, to actual or imminent identity theft. (See Exs. A-T, 

Defendants/Underlying Plaintiffs’ complaints).

43. Based upon the foregoing allegations, the Defendants/Underlying 

Plaintiffs, on behalf of themselves and the putative class, assert causes of action against 

MIE, including third party beneficiary claims for breach of contract, negligence, breach 

of contract, breach of implied covenant of good faith and fair dealing, negligent 

misrepresentation, unjust enrichment, violation of certain state consumer laws, breach of 

certain state data breach and state data breach notification statutes, breach of certain state 

medical and health information privacy statutes, breach of implied contract, bailment and 

breach of fiduciary duty. (See Exs. A-T, Defendants/Underlying Plaintiffs’ complaints).

44. The Defendants/Underlying Plaintiffs include Requests for Relief which 

are summarized as follows:

(1) Certification of the case as a class action and appointing appropriate class 

representatives and Class Counsel;

(2) Various forms of injunctive relief and other equitable relief necessary to 

protect the interests of the Class; 

(3) An award of actual, compensatory, direct, consequential, statutory, punitive, 

treble and incidental damages;

(4) An award of equitable relief, restitution and disgorgement of profits;

(5) An award of further credit monitoring and identity theft protection services 

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beyond the two years offered by MIE; 

(6) Attorneys’ fees, costs and expenses as provided by law or in equity; and

(7) Pre and post judgment interest. 

(See Exs. A-T, Defendants/Underlying Plaintiffs’ complaints).

B. The Landmark Policy:

45. Upon information and belief, Landmark issued an Excess Professional 

Liability policy, under policy no. LHZ750264, to MIE for the March 3, 2015 to March 3, 

2016 policy period (the Landmark Policy). 

46. Upon information and belief, Landmark has agreed to provide MIE with a 

defense and/or coverage for some or all of the claims asserted against MIE in the Data 

Breach Suits. 

47. Landmark has notified NFICH and CCC of its belief that coverage under 

the Landmark Policy, if any, for the claims asserted against MIE in the Data Breach Suits 

is excess to any coverage that may be provided by the NFICH and CCC Policies. 

C. The NFICH Primary and CCC Umbrella Policies:

48. NFICH issued a primary general liability policy to MIE under policy no.

B 6012017961 for the March 1, 2015 to March 1, 2016 policy period (the Primary

Policy). A true and correct copy of the Primary Policy is attached as Exhibit U.

49. NoMoreClipboard, LLC is listed as a named insured on the Primary 

Policy. 

50. The Primary Policy provides commercial general liability limits of 

$1,000,000 “Each Occurrence,” $1,000,000 “Personal and Advertising Injury” and 

$2,000,000 in “General Aggregate.” 

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51. The Primary Policy incorporates the Businessowners Liability Coverage 

Form No. SB-300000-D (Ed. 04/14). In the insuring agreement, NFICH agrees to

provide coverage for “bodily injury,” “property damage” and “personal and advertising

injury” as follows:

A. Coverages

1. Business Liability (Bodily Injury, Property Damage, Personal 

and Advertising Injury)

a. We will pay those sums that the insured becomes legally obligated to pay

as damages because of "bodily injury," "property damage" or "personal and 

advertising injury" to which this insurance applies. We will have the right

and duty to defend the insured against any "suit" seeking those

damages. However, we will have no duty to defend the insured against any 

"suit" seeking damages for "bodily injury," "property damage" or

"personal and advertising injury," to which this insurance does not

apply. We may at our discretion, investigate any "occurrence" or any

offense and settle any claim or "suit" that may result. But:

(1) The amount we will pay for damages is limited as described in Section D

– Liability And Medical Expenses Limits Of Insurance; and

(2) Our right and duty to defend ends when we have used up the

applicable limit of insurance in the payment of judgments or

settlements or medical expenses to which this insurance applies.

No other obligation or liability to pay sums or perform acts or services

is covered unless explicitly provided for under Coverage Extension –

Supplementary Payments.

b. This insurance applies:

(1) To "bodily injury" and "property damage" only if:

(a) The "bodily injury" or "property damage" is caused by 

an "occurrence" that takes place in the "coverage territory";

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(b) The "bodily injury" or "property damage" occurs during the

policy period; and

* * *

(2) To "personal and advertising injury" caused by an offense arising out

of your business, but only if the offense was committed in the

"coverage territory" during the policy period.

See Ex. U, Form No. SB-300000-D, pg. 1.

52. The Primary Policy defines “bodily injury” (as amended by the Blanket 

Additional Insured – Liability Extension) as “bodily injury, sickness or disease sustained 

by any person, including death, humiliation, shock, mental anguish or mental injury by 

that person at any time which results as a consequence of the bodily injury, sickness or 

disease.” See Ex. U, Form No. SB-146932-E, pg. 4.

53. The Primary Policy defines “occurrence” as “an accident, including 

continuous or repeated exposure to substantially the same general harmful conditions.” 

See Ex. U, Form No. SB-300000-D, pg. 14.

54. The Primary Policy defines “personal and advertising injury” as:

14. "Personal and advertising injury" means injury, including

consequential "bodily injury," arising out of one or more of the

following offenses:

a. False arrest, detention or imprisonment;

b. Malicious prosecution;

c. The wrongful eviction from, wrongful entry into, or invasion of the

right of private occupancy of a room, dwelling or premises that a 

person occupies, committed by or on behalf of its owner, 

landlord or lessor;

d. Oral or written publication, in any manner, of material that 

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slanders or libels a person or organization or disparages a 

person's or organization's goods, products or services;

e. Oral or written publication, in any manner, of material that 

violates a person’s right of privacy;

f. The use of another’s advertising idea in your “advertisement”;

or 

g. Infringing upon another’s copyright, trade dress or slogan in

your “advertisement.” 

See Ex. U, Form No. SB-300000-D, pg. 15.

55. The Primary Policy defines “property damage” as:

17. "Property damage" means:

a. Physical injury to tangible property, including all resulting loss of

use of that property. All such loss of use shall be deemed to 

occur at the time of the physical injury that caused it; or

b. Loss of use of tangible property that is not physically injured.

All such loss of use shall be deemed to occur at the time of the 

"occurrence" that caused it.

For the purposes of this insurance, electronic data is not tangible property.

As used in this definition, electronic data means information, facts or programs

stored as, created or used on, or transmitted to or from computer software,

including systems and applications software, hard or floppy disks, CD-ROMs,

tapes, drives, cells, data processing devices or any other media which are used

with electronically controlled equipment.

See Ex. U, Form No. SB-300000-D, pg. 15.

56. The Primary Policy defines “software” as:

18. "Software" means:

a. Electronic data processing, recording or storage media such

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as films, tapes, cards, discs, drums or cells; and

b. Data and programming records used for electronic data 

processing or electronically controlled equipment stored on

such media; and

c. Written or printed data, such as programs, routines, and 

symbolic languages, essential to the operation of computers;

and

d. Documents containing information on the operation 

and maintenance of computers.

See Ex. U, Form No. SB-300000-D, pg. 15.

57. The Primary Policy contains the following exclusions, providing that

“[t]his insurance does not apply to:

j. Professional Services

“Bodily injury,” “property damage,” “personal and advertising injury” 

caused by the rendering or failure to render any professional services. 

This includes but is not limited to:

* * *

(12) Services rendered in connection with the creation and/or 

development, modification, or repair of “software,” including, but not 

limited to design, specifications, system or “software” configuration and 

consultation. 

This exclusion applies even if the claims allege negligence or other 

wrongdoing in the supervision, hiring, employment, training or monitoring 

of others by an insured, if the “occurrence” which caused the “bodily 

injury” or “property damage,” or the offense which caused the “personal 

and advertising injury,” involved the rendering or failure to render any 

professional service.

* * *

p. Personal And Advertising Injury

"Personal and advertising injury":

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* * *

(1) Caused by or at the direction of the insured with the knowledge that the

act would violate the rights of another and would inflict ‘personal and 

advertising injury.’

* * *

(6) Arising out of breach of contract, except an implied contract to

use another’s advertising idea in your advertisement;

(7) Arising out of the failure of goods, products or services to

conform with any statement of quality or performance made in

your ‘advertisement.’

q. Electronic Data

Damages arising out of the loss of, loss of use of, damage to,

corruption of, inability to access, or inability to manipulate electronic

data.

As used in this exclusion, electronic data means information, facts

or programs stored as or on, created or used on, or transmitted to or

from computer software, including systems and applications software,

hard or floppy disks, CD-ROMs, tapes, drives, cells, data processing

devices or any other media which are used with electronically 

controlled equipment.

See Ex. U., Form No. SB-300000-D, pgs. 7-8 

58. The Primary Policy also contains, by endorsement, the “Recording and 

Distribution of Material Or Information in Violation of Law Exclusion” (hereinafter the 

“Distribution of Material or Information” exclusion), which applies to the Policy’s 

“bodily injury,” “property damage” and “personal and advertising injury” coverage as 

follows:

This endorsement modifies insurance provided under the following: 

BUSINESSOWNERS LIABILITY COVERAGE FORM

A. The following exclusion is added to Section B. EXCLUSIONS of 

the Businessowners Liability Coverage Form:

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2. Exclusions

This insurance does not apply to:

q. Recording And Distribution Of Material Or Information 

In Violation Of Law

"Bodily injury" or "property damage" arising directly or indirectly out

of any action or omission that violates or is alleged to violate:

(1) The Telephone Consumer Protection Act (TCPA),

including any amendment of or addition to such law;

(2) The CAN-SPAM Act of 2003, including any amendment of

or addition to such law;

(3) The Fair Credit Reporting Act (FCRA), and any

amendment of or addition to such law, including the Fair

and Accurate Credit Transaction Act (FACTA); or

(4) Any federal, state or local statute, ordinance or

regulation, other than the TCPA, CAN-SPAM Act of 2003

or FCRA and their amendments and additions, that

addresses, prohibits, or limits the printing, dissemination,

disposal, collecting, recording,sending, transmitting, 

communicating or distribution of material or information.

B. The following exclusion is added to Section B. EXCLUSIONS, Paragraph p.

Personal And Advertising Injury:

2. Exclusions

This insurance does not apply to:

(15) Recording And Distribution Of Material Or Information 

 In Violation Of Law

"Personal and advertising injury" arising directly or indirectly out of

any action or omission that violates or is alleged to violate:

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(1) The Telephone Consumer Protection Act (TCPA),

including any amendment of or addition to such law;

(2) The CAN-SPAM Act of 2003, including any amendment of

or addition to such law;

(3) The Fair Credit Reporting Act (FCRA), and any

amendment of or addition to such law, including the Fair

and Accurate Credit Transaction Act (FACTA); or

(4) Any federal, state or local statute, ordinance or

regulation, other than the TCPA, CAN-SPAM Act of 2003

or FCRA and their amendments and additions, that

addresses, prohibits, or limits the printing, dissemination, 

disposal, collecting, recording,sending, transmitting, 

communicating or distribution of material or information.

Ex. U, Form No. SB-300849-A.

59. The Primary Policy contains the Duties In The Event Of Occurrence, 

Offense, Claim or Suit provision which provides:

2. Duties In The Event Of Occurrence, Offense, Claim Or Suit

a. You must see to it that we are notified as soon as practicable of an 

“occurrence” or an offense which may result in a claim. To the 

extent possible, notice should include:

(1) How, when and where the “occurrence” or offense took place;

(2) The names and addresses of any injured persons and witnesses; 

 and 

(3) The nature and location of any injury or damage arising out of 

 the “occurrence” or offense. 

b. If a claim is made or “suit” is brought against any insured, you 

must:

(1) Immediately record the specifics of the claim or “suit” and the 

 date received; and 

(2) Notify us as soon as practicable.

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You must see to it that we receive written notice of the claim or 

“suit” as soon as practicable. 

c. You and any other involved insured must:

(1) Immediately send us copies of any demands, notices, 

summonses or legal papers received in connection with the 

claims or “suit”;

(2) Authorize us to obtain records and other information;

(3) Cooperate with us in the investigation, or settlement of the 

 claim or defense against the “suit”; and

(4) Assist us, upon our request, in the enforcement of any right

 against any person or organization that may be liable to the 

 insured because of injury or damage to which this insurance 

 may also apply. 

d. No insured will, except at that insured’s own cost, voluntarily 

make a payment, assume any obligation, or incur any expense, 

other than for first aid, without our consent. 

See Ex. U, Form No. SB-300000-D, pg. 12 

60. The Primary Policy defines “suit” as:

19. “Suit” means a civil proceeding in which damages

because of “bodily injury,” “property damage,” “personal and 

advertising injury” to which this insurance applies are alleged. 

“Suit” includes:

a. An arbitration proceeding in which such damages

are claimed and to which the insured must submit or does 

submit with our consent; or

b. Any other alternative dispute resolution proceeding in 

which such damages are claimed and to which the insured 

submits with our consent.

See Ex. U., Form No. SB-300000-D, pg. 16 

61. CCC issued a Commercial Umbrella Plus Policy to MIE under policy

no. B 6016637557 for the March 1, 2015 to March 1, 2016 policy period (the

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Umbrella Policy). A true, correct and certified copy of the Umbrella Policy is

attached as Exhibit V.

62. NoMoreClipboard, LLC is an additional insured on the Umbrella Policy. 

63. The Umbrella Policy incorporates the Commercial Umbrella Plus 

Coverage Part, Form No. G-15057-C (Ed. 06/05). In the insuring agreement, CCC agrees 

to provide coverage for “bodily injury,” “property damage” and “personal and advertising 

injury” for “ultimate net loss” in excess of “scheduled” or “unscheduled” underlying 

insurance as follows:

SECTION I – COVERAGES

1. Insuring Agreement

We will pay on behalf of the insured those sums in excess of "scheduled 

underlying insurance," "unscheduled underlying insurance" or the

"retained limit" that the insured becomes legally obligated to pay as

"ultimate net loss" because of "bodily injury," "property damage" or

"personal and advertising injury" to which this insurance applies.

a. This insurance applies to "bodily injury" and "property damage" only if:

(1) The "bodily injury" or "property damage" is caused by an

"incident" anywhere in the world;

(2) The "bodily injury" or "property damage" occurs during the policy

period; and

* * *

d. This insurance applies to "personal and advertising injury" caused by 

an "incident" committed anywhere in the world during the policy period.

See Ex. V., Form No. G-15057-C, pg. 1.

64. The Umbrella Policy defines “bodily injury” as:

USDC IN/ND case 1:16-cv-00152-JTM-SLC document 9 filed 06/01/16 page 19 of 38
20

3. "Bodily injury" means bodily injury, sickness or disease

 sustained by a person, including death, humiliation, shock, 

 mental anguish or mental injury by that person at any time

 which results as a consequence of the bodily injury, sickness or 

 disease.

See Ex. V, Form No. G-15057, pg. 11.

65. The Umbrella Policy defines “incident” as:

9. "Incident"

a. With respect to "bodily injury" and "property damage,"

"incident" means an occurrence. An occurrence means an

accident, including continuous or repeated exposure to

substantially the same general harmful conditions.

b. With respect to "personal and advertising injury," "incident" 

means an offense arising out of your business.

See Ex. V, Form No. G-15057-C, pg. 12.

66. The Umbrella Policy defines “Personal and Advertising Injury” as:

10. "Personal and Advertising Injury" means injury, including 

consequential "bodily injury," arising out of one or more of the 

following offenses:

a. False arrest, detention or imprisonment; 

b. Malicious prosecution or abuse of process;

c. Wrongful eviction from, wrongful entry into, or the invasion of the 

right of private occupancy of a room, dwelling or premises that a 

person occupies committed by or on behalf of its owner, landlord or 

lessor; 

d. Discrimination, unless such insurance is prohibited by law;

e. Oral or written publication, in any manner, of material that 

slanders or libels a person or organization or disparages a

person's or organization's goods, products or services;

f. Oral or written publication, in any manner, of material that

USDC IN/ND case 1:16-cv-00152-JTM-SLC document 9 filed 06/01/16 page 20 of 38
21

violates a person's right of privacy;

g. The use of another's advertising idea in your "advertisement";

h. Infringing upon another's copyright, trade dress or slogan in

your "advertisement."

See Ex. V, Form No. G-15057-C, pg. 12.

67. The Umbrella Policy defines “property damage” as:

12. "Property damage" means:

a. Physical injury to tangible property, including all 

resulting loss of use of that property. All such loss 

of use shall be deemed to occur at the time of the 

physical injury that caused it; or 

b. Loss of use of tangible property that is not physically

injured. All such loss shall be deemed to occur at the 

time of the occurrence that caused it. 

For the purposes of this insurance, "electronic data" is not

tangible property.

See Ex. V, Form No. G-15057-C, pg. 13.

68. The Umbrella Policy defines “retained limit,” “scheduled underlying 

insurance,” “ultimate net loss,” “underlying insurer,” and “unscheduled underlying 

insurance” as follows:

16. "Retained limit" means the amount stated as such in the 

Declarations. The "retained limit" is retained and payable by the 

insured as respects all "incidents" not covered by "scheduled 

underlying insurance" or by "unscheduled underlying insurance."

17. "Scheduled underlying insurance" means the insurance

policies listed in the Schedule of Underlying Insurance including

renewal or replacement of such contracts which are not more 

restrictive than those listed in the aforementioned Schedule of 

Underlying Insurance.

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22

18. "Ultimate net loss"

a. "Ultimate net loss" means the actual damages the insured is

legally obligated to pay, either through:

(1) Final adjudication on the merits; or

(2) Through compromise settlement with our written consent

or direction;

because of "incident(s)" covered by this policy.

However, it includes the above mentioned sums only 

after deducting all other recoveries and salvages.

b. "Ultimate net loss" does not include the following:

(1) Costs or expenses related to:

(a) Litigation;

(b) Settlement;

(c) Adjustment; or

(d) Appeals;

nor costs or expenses incident to the same which an 

"underlying insurer" has paid, incurred or is obligated to pay

to or on behalf of the insured;

(2) Pre-judgment interest;

(3) Office costs and expenses and salaries and expenses of

the employees of an insured;

USDC IN/ND case 1:16-cv-00152-JTM-SLC document 9 filed 06/01/16 page 22 of 38
23

(4) Our office costs and expenses and salaries of our

employees; or

(5) General retainer and/or monitoring fees of counsel retained

by the insured.

19. "Underlying insurer" means an insurer whose policy covers

"bodily injury," "property damage" or "personal and advertising

injury" also covered by this policy but does not include insurers

whose policies were purchased specifically to be in excess of this

policy. It includes all insurers providing:

a. "Unscheduled underlying insurance"; and

b. "Scheduled underlying insurance."

20. "Unscheduled underlying insurance"

a. "Unscheduled underlying insurance" means insurance 

policies available to an insured, whether:

(1) Primary;

(2) Excess;

(3) Excess-contingent; or

(4) Otherwise;

except the policies listed in the Schedule of Underlying Insurance.

b. "Unscheduled underlying insurance” does not include

insurance purchased specifically to be excess of this policy.

See Ex. V, Form No. G-15057-C, pp. 13-14.

69. The Umbrella Policy defines “electronic data” as:

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24

23. “Electronic data” means information, facts or programs stored

as or on, created or used on, or transmitted to or from computer 

software, including systems and applications software, hard or

floppy disks, CD- ROMS, tapes, drives, cells, data processing 

devices or any other media which are used with electronically 

controlled equipment.

See Ex. W, Form No. G-15057-C, pg. 14.

70. The Umbrella Policy contains the Duties of the Insured provision which 

provides:

2. Duties of the Insured

a. In the event of an “incident” which has not resulted

in a claim or suit.

Whenever you have information of an “incident”

which involves injuries or damages likely to 

involve this policy, written notice shall be given by

or for you to us or to our authorized agent as soon

as practicable. The notice shall contain:

(1) Particular information sufficient to identify the

insured; 

(2) Such information as can be reasonably

obtained with respect to time, place and

circumstances of the occurrence or offense;

and 

(3) Names and addresses of the insured and of 

available witnesses.

b. In the Event of Claims or Suit

You shall provide us with written notice as soon as

practicable whenever:

(1) A claim is made or “suit” is brought against

you;

(2) You receive notice that a right to bring claim

or “suit” against you will be asserted; or 

USDC IN/ND case 1:16-cv-00152-JTM-SLC document 9 filed 06/01/16 page 24 of 38
25

(3) You obtain information that the obligation of

“underlying insurers” to:

(a) Investigate;

(b) Defend;

(c) Pay on behalf of; or

(d) Indemnify

you has ceased. 

Every demand, notice, summons, amended

complaint or other process received by you or 

your representative shall be forwarded with each 

notice.

See Ex. V, Form No. G-15057-C (Ed. 06/05), pgs.8-9.

71. The Umbrella Policy defines “suit” as:

13. “Suit” means a civil proceeding in which damages because of

a. “bodily injury”;

b. “property damage”; or 

c. “personal and advertising injury” 

 to which this insurance applies are alleged. 

 “Suit” includes:

a. An arbitration proceeding alleging such damages to 

 which you must submit with our consent; or

b. Any other alternative dispute resolution proceeding in

 which such damages are claimed and to which you 

 submit with our consent.

See Ex. V, Form No. G-15057-C (Ed. 06/05), pg.13.

72. The Umbrella Policy contains the following exclusions which provide that 

the Umbrella policy does not apply to:

c. Personal And Advertising Injury

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“Personal and advertising injury”:

(1) Caused by or at the direction of the insured with the 

knowledge that the act would violate the rights of 

another and would inflict ‘personal and advertising

injury.’

* * *

(5) Arising out of breach of contract, except an implied

contract to use another’s advertising idea in your

advertisement;

(6) Arising out of the failure of goods, products or services

to conform with any statement of quality or performance

made in your ‘advertisement.’

* * *

r. Electronic Data

Any liability arising out of the loss of, loss of use of, damage

to, corruption of, inability to access, or inability to manipulate

“electronic data”.

73. The Umbrella Policy contains the “Do Not Call” exclusion which

provides that “[t]his insurance does not apply to:

bb. Do Not Call

Any liability arising directly or indirectly out of any action or 

omission that violates or is alleged to violate:

(1) The Telephone Consumer Protection Act (TCPA),

including any amendment of or addition to such law; or

(2) The CAN-SPAM Act of 2003, including any amendment of

or addition to such law; or

(3) Any statute, ordinance or regulation, other than the TCPA or

USDC IN/ND case 1:16-cv-00152-JTM-SLC document 9 filed 06/01/16 page 26 of 38
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the CAN-SPAM Act of 2003, that prohibits or limits the

sending, transmitting, communicating or distribution of

material or information.

See Ex. V, Form No. G-15057-C, pg. 14.

74. The Umbrella Policy contains the “Personal and Advertising 

Injury Limitation Endorsement,” which provides that “this insurance does not apply to:

‘personal and advertising injury.’ However, this exclusion does not apply to

any claim or suit for which coverage is provided by ‘scheduled underlying

insurance.”

See Ex. V, Form No. G-17900-B 

75. The Umbrella Policy contains, by endorsement, the “Technology

Services Professional Liability Limitation” exclusion. This endorsement states:

The following exclusion is added to SECTION I – COVERAGE, 2. 

Exclusions:

This insurance does not apply to any liability arising out of any act, error,

or omission in the rendering or failure to render:

* * *

4) creation, development, modification, repair, selling, distributing, licensing, 

franchising or furnishing any computer software, programs, designs, 

specifications, manuals or instructions;

5) any evaluation, consultation or advice given concerning

telecommunications equipment or services; (spacing)

* * *

7) the failure of any insured to adequately provide internet access or 

telecommunications services.

However, this exclusion does not apply to "Bodily Injury," "Property Damage,"

or "Personal and Advertising Injury" to which any policy of "scheduled

USDC IN/ND case 1:16-cv-00152-JTM-SLC document 9 filed 06/01/16 page 27 of 38
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underlying insurance" applies or would apply but for the exhaustion of its limits 

of liability.

See Ex. V, Form NO. G-300569-A.

COUNT I

FOR DECLARATORY JUDGMENT THAT NFICH

DOES NOT OWE A DUTY TO DEFEND

76. NFICH hereby incorporates and re-alleges the allegations in paragraphs

1 – 75 above as if fully set forth herein.

77. NFICH does not owe a duty to defend MIE in the Data Breach Suits

under the Primary Policy for the following reasons:

a. The Data Breach Suits do not seek damages because of “bodily injury.”

b. The Data Breach Suits do not seek damages because of “property

damage.”

c. The Data Breach Suits do not seek damages because of “personal

and advertising injury.”

d. Even if the Data Breach Suits were to seek damages for “personal

and advertising injury,” any alleged “personal and advertising injury”

was not caused by an “offense” during the primary policy period.

e. Even if the Data Breach Suits were to seek damages for “personal

and advertising injury,” coverage is barred by the exclusion j., the 

“Professional Services” exclusion, which precludes coverage for

“‘personal and advertising injury’ . . . [c]aused by the rendering or 

failure to render professional services, including services rendered in 

connection with the creation, development, modification, or repair of 

“software,” including but not limited to the design, specifications, 

system or “software” configuration and consultation. 

f. Even if the Data Breach Suits were to seek damages for “personal

and advertising injury,” coverage is barred by the exclusion p.(1), the 

“Knowing Violation” exclusion, which precludes coverage for

“‘personal and advertising injury’ . . . (1) [c]aused by or at the

direction of the insured with the knowledge that the act would

violate the rights of another and would inflict ‘personal and 

USDC IN/ND case 1:16-cv-00152-JTM-SLC document 9 filed 06/01/16 page 28 of 38
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advertising injury.”

g. Even if the Data Breach Suits were to seek damage for “personal

and advertising injury,” coverage is barred by exclusion p.(6), the

“Breach of Contract” exclusion, which precludes coverage for a

“‘personal and advertising injury’ . . . (6) [a]rising out of breach of

contract, except an implied contract to use another’s advertising idea in

your ‘advertisement.”

h. Even if the Data Breach Suits were to seek damages for “personal

and advertising injury,” coverage is barred by exclusion p.(7), the

“Failure of Services” exclusion, which precludes coverage for a

“‘personal and advertising injury‘ . . . (7) [a]rising out of the failure of

goods, products or services to conform with any statement of quality or

performance made in your ‘advertisement.’”

i. Even if the Data Breach Suits were to seek damages for “personal

and advertising injury,” coverage is barred by exclusion q., the

“Electronic Data” exclusion, to the extent that any alleged “personal

and advertising injury” arose out of “the loss, loss of use, damage 

to, corruption of, inability to access, or inability to manipulate 

electronic data.

j. Even if the Data Breach Suits were to seek damages for “personal

and advertising injury,” coverage is barred by the “Recording and

Distribution of Material in Violation of Law Exclusion” on grounds

that any alleged “personal and advertising injury” arose “directly or

indirectly out of any action or omission that violates or is alleged

to violate . . . (4) [a]ny federal, state or local statute, ordinance or

regulation . . . that addresses, prohibits, or limits the printing,

dissemination, disposal, collecting, recording, sending, transmitting,

communicating or distribution of material or information.”

k. Pursuant to the Duties in the Event of Claim or Suit provision, MIE 

failed to give timely and proper notice of certain claims and “suits” as 

required by the Primary Policy. 

78. Upon information and belief, MIE disagrees with NFICH’s coverage

position and maintains that NFICH owes a duty to defend MIE in the Data Breach

Suits. Thus, an actual controversy exists between the parties.

USDC IN/ND case 1:16-cv-00152-JTM-SLC document 9 filed 06/01/16 page 29 of 38
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79. NFICH seeks a judicial determination that it has no duty to defend MIE

in the Data Breach Suits under the Primary Policy.

COUNT II

FOR DECLARATORY JUDGMENT THAT NFICH 

DOES NOT OWE A DUTY TO INDEMNIFY

80. NFICH hereby incorporates and re-alleges the allegations in paragraphs

1 – 79 above as if fully set forth herein.

81. NFICH does not owe a duty to indemnify MIE for any judgment or

settlement awarded against it in the Data Breach Suits under the Primary Policy for

the following reasons:

a. The Data Breach Suits do not seek damages because of “bodily injury.”

b. The Data Breach Suits do not seek damages because of “property damage.”

c. The Data Breach Suits do not seek damages because of “personal 

and advertising injury.”

d. Even if the Data Breach Suits were to seek damages for “personal and 

advertising injury,” any alleged “personal and advertising injury” was not 

caused by an “offense” during the Primary Policy period.

e. Even if the Data Breach Suits were to seek damages for “personal and 

advertising injury,” coverage is barred by the exclusion j., the “Professional 

Services” exclusion, which precludes coverage for “‘personal and 

advertising injury’ . . . [c]aused by the rendering or failure to render 

professional services, including services rendered in connection with the 

creation, development, modification, or repair of “software” including but 

not limited to the design, specifications, system or “software” configuration 

and consultation. 

f. Even if the Data Breach Suits were to seek damages for “personal and 

advertising injury,” coverage is barred by exclusion p.(1), the “Knowing 

Violation” exclusion, which precludes coverage for “’personal and

advertising injury’ . . . (1) [c]aused by or at the direction of the insured with

the knowledge that the act would violate the rights of another and would

USDC IN/ND case 1:16-cv-00152-JTM-SLC document 9 filed 06/01/16 page 30 of 38
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inflict ‘personal and advertising injury.’”

g. Even if the Data Breach Suits were to seek damage for “personal and 

advertising injury,” coverage is barred by exclusion p.(6), the “Breach of 

Contract” exclusion, which precludes coverage for a “’personal and

advertising injury’ . . . (6) [a]rising out of breach of contract, except an

implied contract to use another’s advertising idea in your ‘advertisement.”

h. Even if the Data Breach Suits were to seek damages for “personal and 

advertising injury,” coverage is barred by exclusion p.(7), the “Failure

of Services” exclusion, which precludes coverage for a “‘personal and 

advertising injury‘ . . . (7) [a]rising out of the failure of goods, products

or services to conform with any statement of quality or performance

made in your ‘advertisement.’”

i. Even if the Data Breach Suits were to seek damages for “personal and 

advertising injury,” coverage is barred by exclusion q., the “Electronic

Data” exclusion, to the extent that any alleged “personal and

advertising injury” arose out of “the loss, loss of use, damage to, corruption 

of, inability to access, or inability to manipulate electronic data.”

j. Even if the Data Breach Suits were to seek damages for “personal and 

advertising injury,” coverage is barred by the “Recording and Distribution

of Material in Violation of Law Exclusion” on grounds that any alleged 

“personal and advertising injury” arose “directly or indirectly out of any 

action or omission that violates or is alleged to violate . . . (4) [a]ny

federal, state or local statute, ordinance or regulation . . . that addresses,

prohibits, or limits the printing, dissemination, disposal, collecting,

recording, sending, transmitting, communicating or distribution of material 

or information.”

k. Pursuant to the Duties in the Event of Claim or Suit provision, MIE failed 

to give timely and proper notice of certain claims and “suits” as required 

by the Primary Policy. 

l. Any punitive or exemplary damages awarded against MIE in the Data 

Breach Suits are not damages covered by a liability policy as a matter

of law and public policy.

m. Claims for equitable or injunctive relief do not seek damages as that term

is used in the Primary Policy.

USDC IN/ND case 1:16-cv-00152-JTM-SLC document 9 filed 06/01/16 page 31 of 38
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82. Upon information and belief, MIE disagrees with NFICH’s coverage

position and maintains that NFICH owes a duty to indemnify MIE for any judgment

or settlement awarded against it in the Data Breach Suits. Thus, an actual controversy

exists between the parties.

83. NFICH seeks a judicial determination that it has no duty to indemnify

MIE for any judgment or settlement awarded against it in the Data Breach Suits under

the Primary Policy.

COUNT III

FOR DECLARATORY JUDGMENT THAT

CCC DOES NOT OWE A DUTY TO DEFEND

84. CCC hereby incorporates and re-alleges the allegations in paragraphs 

1 – 83 above as if fully set forth herein.

85. CCC does not owe a duty to defend MIE in the Data Breach Suits under 

the Umbrella Policy for the following reasons:

a. The Data Breach Suits do not seek damages because of “bodily injury.”

b. The Data Breach Suits do not seek damages because of “property damage.”

c. The Umbrella Policy does not provide coverage for “personal and

advertising injury.”

d. To the extent the “personal and advertising injury coverage” is provided

by “scheduled underlying insurance,” the Data Breach Suits do not seek

damages because of “personal and advertising injury.”

e. To the extent that “personal and advertising injury coverage” is provided by 

“scheduled underlying insurance,” the Data Breach Suits do not seek 

damages because of “personal and advertising injury” caused by an incident

during the Umbrella Policy period.

f. Even if the Data Breach Suits were to seek damages for “personal and 

USDC IN/ND case 1:16-cv-00152-JTM-SLC document 9 filed 06/01/16 page 32 of 38
33

advertising injury,” coverage is barred by the exclusion c.(1), the

“Knowing Violation” exclusion, which precludes coverage for “’personal

and advertising injury’ . . . (1) [c]aused by or at the direction of the insured

with the knowledge that the act would violate the rights of another and

would inflict ‘personal and advertising injury.”

g. Even if the Data Breach Suits were to seek damage for “personal and 

advertising injury,” coverage is barred by exclusion c.(5), the “Breach 

of Contract” exclusion, which precludes coverage for a “‘personal and

advertising injury’ . . . (5) [a]rising out of breach of contract, except an

implied contract to use another’s advertising idea in your ‘advertisement.’”

h. Even if the Data Breach Suits were to seek damages for “personal and 

advertising injury,” coverage is barred by exclusion c.(6), the “Failure

of Services” exclusion, which precludes coverage for a “‘personal and 

advertising injury‘ . . . (6) [a]rising out of the failure of goods, products

or services to conform with any statement of quality or performance

made in your ‘advertisement.’”

i. Coverage for the Data Breach Suits is barred by exclusion r., the

“Electronic Data” exclusion, which precludes coverage for “[a]ny liability

arising out of the loss, loss of use, damage to, corruption of, inability to

access, or inability to manipulate ’electronic data’.”

j. Coverage for the Data Breach Suits is barred by exclusion bb., the

“Do Not Call” exclusion, which precludes coverage for any liability arising

“directly or indirectly out of any action or omission that violates or is

alleged to violate . . . (3) [a]ny statute, ordinance or regulation . . . that

prohibits or limits the sending, transmitting, communicating or

distribution of material or information.”

k. Coverage for the Data Breach Suits is barred by “Technology Services 

Professional Liability Limitation” exclusion, which precludes coverage

for any act, error or omission in the rendering or failure to render 

technology services.

l. Pursuant to the Duties of the Insured provision, MIE failed to give 

proper notice to CCC of certain claims and/or “suits” as required by the 

Umbrella Policy. 

86. Upon information and belief, MIE disagrees with CCC’s coverage

USDC IN/ND case 1:16-cv-00152-JTM-SLC document 9 filed 06/01/16 page 33 of 38
34

position and maintains that CCC owes a duty to defend MIE in the Data Breach Suits.

Thus, an actual controversy exists between the parties.

87. CCC seeks a judicial determination that it has no duty to defend MIE in

the Data Breach Suits under the Umbrella Policy.

COUNT IV

FOR DECLARATORY JUDGMENT THAT

CCC DOES NOT OWE A DUTY TO

INDEMNIFY

88. CCC hereby incorporates and re-alleges the allegations in paragraphs 1

– 87 above as if fully set forth herein.

89. CCC does not owe a duty to indemnify MIE in the Data Breach Suits

under the Umbrella Policy for the following reasons:

a. The Data Breach Suits do not seek damages because of “bodily injury.”

b. The Data Breach Suits do not seek damages because of “property damage.”

c. The Umbrella Policy does not provide coverage for “personal and

advertising injury.”

d. To the extent that “personal and advertising injury” coverage is provided

by scheduled underlying insurance, the Data Breach Suits do not seek

damages because of “personal and advertising injury.”

e. To the extent that “personal and advertising injury coverage” is provided by 

“scheduled underlying insurance,” the Data Breach Suits do not seek 

damages because of “personal and advertising injury” caused by an incident

during the Umbrella Policy period.

f. Even if the Data Breach Suits were to seek damages for “personal and 

advertising injury,” coverage is barred by the exclusion c. (1), the

“Knowing Violation” exclusion, which precludes coverage for “’personal

and advertising injury’ . . . (1) [c]aused by or at the direction of the insured

with the knowledge that the act would violate the rights of another and

would inflict ‘personal and advertising injury.”

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35

g. Even if the Data Breach Suits were to seek damage for “personal and 

advertising injury,” coverage is barred by exclusion c.(5), the “Breach of 

Contract” exclusion, which precludes coverage for a “‘personal and

advertising injury’ . . . (5) [a]rising out of breach of contract, except an

implied contract to use another’s advertising idea in your ‘advertisement.”

h. Even if the Data Breach Suits were to seek damages for “personal and 

advertising injury,” coverage is barred by exclusion c (6), the “Failure of 

Services” exclusion, which precludes coverage for a “‘personal and 

advertising injury‘ . . . (6) [a]rising out of the failure of goods, products

or services to conform with any statement of quality or performance

made in your ‘advertisement.’”

i. Coverage for the Data Breach Suits is barred by exclusion r., the

“Electronic Data” exclusion, which precludes coverage for any liability

arising out of “the loss, loss of use, damage to, corruption of, inability to

access, or inability to manipulate electronic data’.”

j. Coverage for the Data Breach Suits is barred by exclusion bb., the “Do

Not Call” exclusion, which precludes coverage for any liability arising

“directly or indirectly out of any action or omission that violates or is

alleged to violate . . . (3) [a]ny statute, ordinance or regulation . . . that

prohibits or limits the sending, transmitting, communicating or

distribution of material or information.”

k. Coverage for the Data Breach Suits is barred by “Technology Services 

Professional Liability Limitation” exclusion, which precludes coverage

for any act, error or omission in the rendering or failure to render 

technology services.

l. Pursuant to the Duties of the Insured provision, MIE failed to give 

proper notice to CCC of certain claims and/or “suits” as required. 

m. Any punitive or exemplary damages awarded against MIE in the Data 

Breach Suits are not damages covered by a liability policy as a matter of 

law and public policy.

n. Claims for equitable or injunctive relief do not seek damages as that term

is used in the Umbrella Policy.

90. Upon information and belief, MIE disagrees with CCC’s coverage

USDC IN/ND case 1:16-cv-00152-JTM-SLC document 9 filed 06/01/16 page 35 of 38
36

position and maintains that CCC owes a duty to indemnify MIE in the Data Breach Suits.

Thus, an actual controversy exists between the parties.

91. CCC seeks a judicial determination that it has no duty to indemnify MIE

in the Data Breach Suits under the Umbrella Policy.

92. NFICH and CCC reserve the right to amend these pleadings as other 

coverage defenses, exclusions and the like may present themselves during the pendency 

of this action. 

PRAYER FOR RELIEF

WHEREFORE, Plaintiffs, National Fire Insurance Company of Hartford and

Continental Casualty Company respectfully pray for judgment against Medical 

Informatics Engineering, Inc., NoMoreClipboard, LLC, Rory Hill, Nicole Hill, Dawn

McLaughlin, Adrienne Llewellyn, Ryan Pool, James Young, Terri Greulich, Cynthia 

Weinman, Patricia Justice, Susan G. Jones, Lee Rottinghaus, Jeffrey Hayes, Shannon 

Mudd, Stephen Johnson, Patrick Mudd, Cornell Tjaden, Sylvia Tjaden, Sharon Eagle, 

Douglas Eagle, Thomas Jones, Steve Walker, Antoinette Ann Franklin, Kelly McGahan, 

Tanya Autry, Ira Kushner, Shicola Washington, Sarah Lord, Mary Luysterburg, John 

Kulha, Allan Lewis, David Wayne Perry, Vikas Chandna, Herbert L. Schuttler, Jeremy 

Brann, Cynthia Benoit, Floyd Harris, Traci Taylor, Joe Poirier, Lauren Fern Rainess, Anita 

Colter, Anthony Brown, Richard Larson, Michael Osbourn, Mark Guth, Richard 

DiGovine, Nancy Rice, Brandon Warrick, James Mueller Michelle Moore and Landmark 

American Insurance Company as follows:

a. Declaring that NFICH has no duty to defend MIE in the Data Breach

Suits;

b. Declaring that NFICH has no duty to indemnify MIE in the Data 

USDC IN/ND case 1:16-cv-00152-JTM-SLC document 9 filed 06/01/16 page 36 of 38
37

Breach Suits;

c. Declaring that CCC has no duty to defend MIE in the Data Breach Suits;

d. Declaring that CCC has no duty to indemnify MIE in the Data Breach

Suits;

e. Awarding NFICH and CCC their costs for this suit; and

f. Awarding NFICH and CCC such further relief this Court deems just.

DEMAND FOR JURY

TRIAL

Plaintiffs request a trial by jury for all factual matters in this action.

Dated: June 1, 2016

/s/ Philip E. Kalamaros

Philip E. Kalamaros 11722-71

HUNT SUEHOFF KALAMAROS LLP

301 State Street, P.O. Box 46

St. Joseph, MI 49085

269/983-7646

Attorney for Plaintiffs

Of Counsel

Katherine Streicher Arnold

Susan M. Luther

COLLIAU CARLUCCIO KEENER MORROW

PETERSON & PARSONS

333 South Wabash Avenue, 25th Floor

Chicago, IL 60604

Telephone: (312) 822-6306

Facsimile: (312) 817-2486

Email: Katherine.Arnold@cna.com

Susan Luther@cna.com

USDC IN/ND case 1:16-cv-00152-JTM-SLC document 9 filed 06/01/16 page 37 of 38
38

CERTIFICATE OF SERVICE

I hereby certify that on this 1st day of June, 2016, I caused to be filed, electronically, the 

foregoing, with the Clerk of Court using the CM/ECF system which sent notification of such 

filing to each attorney as disclosed by the Court’s record. A copy of said filing may also be 

viewed at www.innd.uscourts.gov

 By: /s/ Philip E. Kalamaros

Philip E. Kalamaros (#11722-71)

USDC IN/ND case 1:16-cv-00152-JTM-SLC document 9 filed 06/01/16 page 38 of 38