FILED 

 U.S. COURT OF APPEALS

 ELEVENTH CIRCUIT 

 January 26, 2005 

 THOMAS K. KAHN 

 CLERK

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 04-10975

________________________

D. C. Docket No. 03-22906-CV-UUB

VECTOR PRODUCTS, INC., 

d.b.a. Vector Manufacturing, Ltd., 

Plaintiff-Counter-Defendant-Appellant, 

versus 

HARTFORD FIRE INSURANCE COMPANY, 

Defendant-Counter-Claimaint-Appellee,

SCHUMACHER ELECTRIC CORP., 

Defendant-Counter-Claimant.

________________________

Appeal from the United States District Court

for the Southern District of Florida

_________________________

(January 26, 2005)
Honorable John R. Gibson, United States Circuit Judge for the Eighth Circuit, sitting by *

designation.

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Before BIRCH, KRAVITCH and GIBSON , Circuit Judges. *

PER CURIAM:

This diversity action presents the question whether the Appellee, Hartford

Fire Ins. Co. (“Hartford”), was required to defend its insured, Vector Products,

Inc. (“Vector”), in an action brought against Vector for false advertising under

Section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a), and other similar laws. 

Hartford refused to undertake the defense and Vector brought the instant action. 

On cross-motions for summary judgment, the district court ruled in favor of

Hartford.

We must determine whether insurance policy exclusions for knowledge of

falsity or intent to injure apply to relieve Hartford of its duty to defend. The

application vel non of these exclusions presents an issue of first impression in

Florida law. Because many insurance policies contain similar coverages and

exclusions, we certify the controlling question of Florida law to the Florida

Supreme Court.

I. FACTS

Vector is a relative newcomer to the business of manufacturing and selling
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battery chargers. The industry leader, Schumacher Electric Corporation

(“Schumacher”), brought an action against Vector in federal court in the Northern

District of Illinois (the “Schumacher action”). The complaint alleged that Vector

engaged in false advertising in violation of § 43(a) of the Lanham Act as well as

state unfair competition and deceptive trade practices law. The complaint sought

preliminary and permament injunctive relief, compensatory damages, and treble

damages under § 35(a) of the Lanham Act, 15 U.S.C. § 1117(a). An allegation

incorporated into each count of the complaint alleged that Vector’s false

statements were “made . . . willfully and intentionally and with full knowledge of

the falsity of such statements.”

Vector asked Hartford to undertake the defense of the underlying action

based on its two insurance policies with Hartford (the “Policies”). The Policies

provided that Hartford would have a duty to defend Vector in lawsuits where the

plaintiff sought to recover for “personal and advertising injury.” The Policies set

forth exclusions providing that Hartford would have no duty to defend, inter alia, 

suits where Vector knew that the advertising information was false and suits where

Vector intended to cause the injury.

Hartford refused to undertake the defense. It claimed that the allegations of

willfulness and knowledge of falsity incorporated into each count triggered the
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relevant exclusions and relieved it of its duty to defend. In response, Vector

brought the present action in Florida state court, which Hartford removed to

federal court. Vector seeks damages for breach of contract for its expenses in

defending the Schumacher action to date, as well as a declaratory judgment

requiring Hartford to undertake the remaining defense of the Schumacher action.

The parties filed cross-motions for summary judgment. The district court

denied Vector’s motion and granted Hartford’s, finding that for purposes of the

duty to defend under Florida law, the Lanham Act claim requires willfulness and

knowledge of falsity. Applying a Florida decision, SM Brickell Ltd. Partnership

v. St. Paul Fire and Marine Ins. Co., 786 So. 2d 1204 (Fla. 3rd Dist. Ct. App.

2001), the district court dismissed the case. Vector filed a timely appeal to this

Court.

II. ANALYSIS

We review the district court’s grant of summary judgment de novo. LaFarge

Corp. v. Travelers Indem. Co., 188 F.3d 1511, 1515 (11th Cir. 1997). “The

interpretation of an insurance contract is also a matter of law subject to de novo

review.” Id.

A. Coverage of Schumacher Complaint

As a preliminary matter, we note that the parties dispute whether the facts
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and causes of action pleaded in the Schumacher complaint fall within the coverage

provided by the Policies, leaving aside the application of the exclusions. The

district court did not reach this issue, but rather found that the knowledge of falsity

exclusion applied. 

Vector argues that Schumacher’s claim under the Lanham Act falls under

the Policies’ definition of “personal and advertising injury,” which includes

damages “arising out of . . [the] publication of material that . . . disparages a

person’s or organization’s goods, products or services.” The underlying complaint

alleges “material false representations of fact in a commercial advertisement which

have deceived or are likely to deceive a substantial segment of the . . . purchasers

of the Accused Product.” The underlying complaint also alleges specific examples

of comparisons which suggest that Vector’s product is superior to the “leading

brand.” Vector thus argues that the Policies cover Lanham Act disparagement

claims in general. In response, Hartford asserts that the Policies do not give rise to

any duty to defend because none of Vector’s advertising materials mention

Schumacher by name.

We find Hartford’s argument on this issue unconvincing. The cases on

which Hartford relies either pertain to situations where the insured made no

comparison to any other product, but merely touted its own product, Frog, Switch
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& Mfg. Co. v. Travelers Indem. Co., 193 F.3d 742, 748 (3rd Cir. 1999); Zurich

Ins. Co. v. Sunclipse, 85 F. Supp. 2d 842, 856 (N.D. Ill. 2000), or pertain to

underlying claims not brought under § 43 of the Lanham Act, U.S. Test, Inc. v.

NDE Enviro. Corp., 196 F.3d 1376, 1383 (Fed. Cir. 1999) (patent infringement);

Heritage Mut. Ins. Co. v. Advances Polymer Technology, Inc., 97 F. Supp. 2d 913,

932 (S.D. Ind. 2000) (common-law disparagement based solely on use of words

“patent pending”); Winklevoss Consultants, Inc. v. Federal Ins. Co., 991 F. Supp.

1024 (N.D. Ill. 1998) (trade secret misappropriation).

Florida law is clear that where an insurance policy creates an ambiguity, it

should be resolved in favor of the insured. State Farm Fire & Cas. Co. v.

Silverberg, No. 03-12565, slip op. 825, 829 (11th Cir. Dec. 17, 2004); Hyman v.

Nationwide Mut. Ins. Co., 304 F.3d 1179, 1886 (11th Cir. 2002). Because the

Policies are ambiguous as to whether the insured must mention a plaintiff’s name

in an advertisement in order to give rise to a duty to defend a false advertising

claim, we resolve the ambiguity in favor of the insured and hold that the claims in

the Schumacher complaint do give rise to the duty to defend, subject to the

application of the exclusions.

B. Application of Exclusions

Hartford refused to defend Vector in the Schumacher action based on the
Section 43(a)(1)(B) of the Lanham Act provides that: 1

Any person who, on or in connection with any goods or services, or any container

for goods, uses in commerce any word, term, name, symbol, or device, or any

combination thereof, or any false designation of origin, false or misleading

description of fact, or false or misleading representation of fact, which . . . in

commercial advertising or promotion, misrepresents the nature, characteristics,

qualities, or geographic origin of his or her or another person's goods, services, or

commercial activities, shall be liable in a civil action by any person who believes

that he or she is or is likely to be damaged by such act.

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exclusions to the duty to defend for intent to injure and knowledge of falsity. 

Because an allegation of willfulness and knowledge of falsity was incorporated

into each count of the Schumacher complaint, Hartford asserts that the exclusions

are triggered for all counts.

Vector contends that even though the Schumacher complaint contains

allegations of willfulness and knowledge of falsity, it is entitled to a defense from

Hartford because Schumacher could recover on at least one claim without proving

such intent or knowledge. It is well-settled that no proof of intent or willfulness is

required to establish a violation of Lanham Act § 43(a) for false advertising. See,

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e.g., Hyman v. Nationwide Mut. Fire Ins. Co., 304 F.3d 1179, 1196 n.13 (11th Cir.

2002); Johnson & Johnson v. Carter-Wallace, Inc., 631 F.2d 186 (2nd Cir. 1980);

Parkway Baking Co. v. Freihofer Baking Co., 255 F.2d 641 (3rd Cir. 1956). 

Rather, Section 43(a) provides a strict liability tort cause of action. See Spotless

Enters., Inc. v. Carlisle Plastics PTY, Inc., 56 F. Supp. 2d 274, 178 (E.D.N.Y.
8

1999). If Vector is correct, it is entitled to a defense on the entire suit, not just the

Lanham Act claim, so long as the claim entitling it to a defense is not dismissed. 

Baron Oil Co. v. Nationwide Mut. Fire Ins. Co., 470 So. 2d 810, 815 (Fla. 1st Dist.

Ct. App. 1985).

Hartford asserts that an “insurance company’s duty to defend an insured is

determined solely from the allegations in the complaint against an insured,”

Amerisure Ins. Co. v. Gold Coast Marine Distrib., Inc., 771 So. 2d 57, 580 (Fla.

4th Dist. Ct. App. 2000), rather than from considering the substance of the causes

of action pleaded. Because an allegation of willfulness or knowledge of falsity is

included in each count, Hartford argues than under Florida law the exclusions are

triggered for all counts, and that it therefore has no duty to defend.

Although there is no Florida case on all fours, a brief survey of the relevant

Florida law is instructive. The Florida Supreme Court addressed similar policy

exclusions in National Union Fire Ins. Co. v. Lenox Liquors, 358 So. 2d 533 (Fla.

1977). In Lenox Liquors, the insurer refused to defend its insured, a liquor store,

after the store’s president shot and injured the underlying plaintiff during what the

store president erroneously believed to be a hold-up. Id. at 533. The underlying

complaint only alleged claims sounding in intentional tort; however, the parties

later reached a settlement in which they stipulated that it appeared from discovery
The Schumacher complaint contains a request for treble damages under § 35(a) of the 2

Lanham Act, 15 U.S.C. § 1117(a). This Court has held that to be eligible for Lanham Act treble

damages, the plaintiff must prove that the defendant’s conduct was intentional. See Chanel, Inc.

v. Italian Activewear of Florida, Inc., 931 F.2d 1472 (11th Cir. 1991) (decided in Lanham Act §

32(a) trademark infringement context, but applying the same treble damages provision). Thus,

Schumacher was required to plead intent or knowledge of falsity in order to seek the treble

damages remedy.

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that the case would have been tried on a negligence theory rather than an as an

intentional tort case. Id. at 534. The Florida Supreme Court held that a duty to

defend only arises “where the complaint alleges a state of facts within the

coverage of the insurance policy.” Id. at 535 (emphasis added). Lenox Liquors,

however, appears inapposite to the case at bar. The cause of action stated in the

Lenox Liquors complaint required an allegation of intent; the intent allegation in

the case sub judice was superfluous on the issue of liability (though not for treble

damages).2

At least one Florida District Court of Appeal has considered what types of

actions trigger the intent to injure and knowledge of falsity exclusions. In SM

Brickell Ltd. Partnership v. St. Paul Fire and Marine Ins. Co., 786 So. 2d 1204

(Fla. 3rd Dist. Ct. App. 2001), the court held that claims for breach of contract,

intentional infliction of emotional distress, and intentional defamation triggered

exclusions analogous to those in the present case. Id. at 1206. That court,

however, found that a claim for negligent defamation did give rise to a duty to
The district court in the present case purported to rely on SM Brickell. The district 3

court, however, did not consider the possibility that the Lanham Act claim in the Schumacher

complaint might be interpreted not to require intent, and thus did not reach the certified question.

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defend because it did not require proof of intent. Id. 

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At least one District Court of Appeal decision speaks to the issue more

generally. In the Amerisure case, the court held that if the allegations of the

complaint state facts bringing the injury within the coverage of the policy, the

insurer must defend regardless of the merits of the lawsuit. Amerisure, 771 So. 2d

at 580-81 (emphasis supplied); see also Steinberg, slip op. at 829 (citing

Amerisure).

This Court has considered similar issues of Florida law on at least two

occasions. See Lime Tree Village Comm. Club Assoc. v. State Farm Gen. Ins.

Co., 980 F.2d 1402, 1405 (11th Cir. 1993) (holding that insurer had duty to defend

its insured despite analogous policy exclusions because the “factual allegations [in

the complaint] set forth grounds other than intentional acts” upon which the

insured could be liable); ABC Distributing, Inc. v. Lumbermens Mut. Ins. Co., 646

F.2d 207, 209 (5th Cir. Unit B 1981) (holding that insurer did not have duty to

defend based on similar exclusions because “[even] if [the underlying plaintiff]

could have gone to trial on a theory of unintentional [] violation . . . the insurance

company had a right to rely on the averments of the complaint that [the insured’s]
In Bonner v. City of Pritchard, 661 F.2d 1206 (11th Cir. 1981) (en banc), this Court 4

declared that all Fifth Circuit decisions handed down on or before September 30, 1981 are

binding precedent in the Eleventh Circuit. 

11

actions had been intentional.”) None of the above cases, however, addressed the

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fact pattern here where a cause of action was pleaded so that policy exclusions for

intent to injure and knowledge of falsity appear to apply, even though the law

governing that cause of action makes it a strict liability offense. 

In a recent decision, this Court acknowledged the difficulties posed by the

recent explosion of advertising injury litigation in federal courts because most

such cases are controlled by state law. State Farm Fire & Cas. Co. v. Steinberg,

slip op. at 829-830. Rather than attempting to extend Florida law in the factual

situation presented here ourselves, we certify the issue to the Florida Supreme

Court for a definitve statement.

III. QUESTION CERTIFIED

We respectfully certify to the Florida Supreme Court the following

question:

Whether the Lanham Act § 43(a) claim, as pleaded in the Schumacher

complaint, triggers either the intent to injure exclusion or the knowledge of falsity
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exclusion provided for in the Policies.

Our phrasing of the certified questions is merely suggestive and does not in

any way restrict the scope of the inquiry by the Supreme Court of Florida. As we

previously noted:

[T]he particular phrasing used in the certified question is not to

restrict the Supreme Court’s consideration of the problems involved

and the issues as the Supreme Court perceives them to be in its

analysis of the record certified in this case. This latitude extends to

the Supreme Court’s restatement of the issue or issues and the manner

in which the answers are given, whether as a comprehensive whole or

in subordinate or even contingent parts.

Swire Pacific Holdings v. Zurich Ins. Co., 284 F.3d 1228, 1234 (11th Cir. 2002)

(quoting Martinez v. Rodriguez, 394 F.2d 156, 159 n.6 (5th Cir. 1968)).

The entire record in this case and the briefs of the parties are transmitted

herewith.

QUESTION CERTIFIED.