20

- 0 268

- cv D ish Network Corp. v. A ce Am. Ins. Co. U NITED S TATES C OURT OF A PPEALS F OR THE S ECOND C IRCUIT August Term 20 2 0 (Argued: April 22, 2021 Decided: December 22, 2021 )
Docket No. 20

- 0 268

- cv

D ISH N ETWORK C ORPORATION , D ISH N ETWORK L.L. C

. , Plaintiff s - Counter

- Defendant s - Appellant s ,

v. A CE A MERICAN I NSURANCE C OMPANY , Defendant

- Counter

- Claimant

- Appellee

.
O N A PPEAL FROM THE U NITED S TATES D ISTRICT C OURT FOR THE S OUTHERN D ISTRICT OF N EW Y ORK

Before: W ALKER , L EVAL , and C HIN , Circuit Judges

. Appeal from a judgment of the United States District Court for the
Southern District of New York ( Carter , J. ), entered December 2 7 , 2019, holding that insurance company was not obligated under an insurance policy to defend insureds in underlying copyright infringement suits

. The parties submitted2 cross - motions for summary judgment on the issue of whether the insureds were subject to the policy exclusion for injury purportedly caused by an insured in the
business of "broadcasting" or "telecasting

. " The district court held that the exclusion applied , and it therefore dismissed the insureds' claim for a declaratory judgment that the insurance company had a duty to defend. The insureds

a ppeal

. A FFIRMED
.

E RIC A. S HUMSKY (Benjamin F. Aiken, Ethan P. Fallon, and Sarah H. Sloan, on the brief ), Orrick, Herrington & Sutcliffe LLP, Washington, D.C. , and Lee M. Epstein and Matthew A. Goldstei n, Flaster Greenberg P.C

. , Philadelphia, Pennsylvania , for Plaintiff s - Counter

- Defendant s Appellant s . J OHNATHAN D. H ACKER ( Bradley N. Garcia and Ephraim A. McDowell , on the brief ), O'Melveny & Myers LLP , Washington, D.C. , and Adam Ira Stein (Terri A. Sutton, on the brief ) , Cozen O'Connor , New York, New York, and Seattle, Washington , for Defendant

- Counter

- Claimant

Appellee

.3 C HIN , Circuit Judge : Plaintiffs

- counter

- defendants

- appellants D ish Network Corporation
and its wholly owned subsidiary D ish Network L.L.C. ( together , "DISH") provide satellite television products and services. DISH obtained a commercial general liability insurance policy from defendant

- counter

- claimant

- appellee A ce American Insurance Company ("ACE") that included coverage for " personal and advertising " liability subject to certain exclusions. One such exclusion, Exclusion j (the "Media Exclusion") , e xcluded from coverage any liability arising from

" ' [p] ersonal and advertising injury ' committed by an insured whose business
is

. . . [a] dverti sing, broadcasting, publishing or telecasting." Joint App'x at 624. After DISH was sued by four television networks in separate
lawsuits for alleg ed copyright infringement , DISH requested coverage from ACE pursuant to its insurance p olicy. ACE denied coverage and refused to defend , relying on, inter alia , the Media Exclusion , arguing that DISH was in the business of "broadcasting

. " The networks' lawsuits settled without DISH incurring any monetary liability , but D ISH incurred legal fees and oth er expenses in defending
the lawsuits

. DISH brought this action in the district court , claiming that ACE4 breached its duty to defend by failing to either defend DISH or reimburse its defense expenditures incurred in the underlying lawsuits. The district court granted ACE summary judgment , holding that
ACE had no duty to defend DISH because DISH was subject to the Media
Exclusion. The cour t rejected DISH's argument that "broadcasting" requires
transmission to the public for free, rather than for a fee, concluding that t he plain and ordinary meaning s of "b roadcast ing" and " telecast ing" include subscription

based broadcasting , like that provided by DISH. For the reasons discussed below, we AFFIRM.
BACKGROUND
I. The Fact s The facts are largely undisputed and are summarized in the light
most favorable to DISH. By its own description, D ISH " is a subscription

- based television provider that transmits programming to its paying customers. " Appellants ' Br.
at 6. According to its Articles of Incorporation , D ISH was formed "[ t ] o engag e in the business of satellite communications, including but not limited to Direct
Broadcast Satellite communications : to own, sell, hold, lease, equip, maintain5 and operate transmission and receiving stations and any connection between any such stations, and to transmit , signals , and all matter and things of any kind, nature, and description whatsoever that may be transmitted." Joint App'x at 129. Beginning in 2004, DISH purchased a yearly com mercial general liability ("CGL") policy from ACE. For the period from August 1, 2011 to August 1, 2012, ACE issued CGL Policy No. XSL G25531309 (the " P olicy") to DISH.
The P olicy included coverage for bodily injury and property damage liability ( " Coverage A " ) and personal and advertising injury liability ( " Coverage
B " ). It defined "personal and advertising injury" to include injury arising out of

" [ i ] nfrin g ing upon another's copyright, trade dress or slogan in [an]
'advertisement.'" Id. at 634. 1 Coverage B contain ed the Media Exclusion, which

e xcluded coverage for liability arising from "'[p] ersonal and advertising injury ' committed by an insured whose business is . . . [a] dvertising, broadcasting, publishing or telecasting." Id. at 624. DISH's insurance broker, Denver Series of Lockton, LLC ("Lockton"),
reviewed the P olicy and note d the Media Exclusion. Lockton recommend ed that

1 Coverage B's " personal injury " liability is di stinct from Coverage A's " bodily injury " liability , which is defined as "bodily injury, sickness or disease sustained by a person, including death resulting from any of these at any time." Id. at 632.6 DISH purchase "Broadcasters Errors & Omissions " insurance to cover DISH's "liability as a broadcasting profession al [] ," including for " unintentional errors
you made in advertising or programming you produced or broadcasted as a profession al broadcaster." Id. at 307

. DISH declined to purchase such a policy

. In May 2012, four major television networks sued DISH, alleging breach of contract and copyright infringement in connection with DISH's "Hopper" product, a digital video recording service that during play

- back automatically skips " ad v ertisements wi thin the television networks' copyrighted
works. " Id. at 1 14 3 , 1145

. 2 The networks sought to enjoin DISH from marketing and distributing the Hopper. Although the lawsuits were settled without DISH making any monetary payments , DISH sough t c overage from ACE for expenses
incurred in the defense s . On July 31, 2012, ACE advised DISH that it had no duty to cover the expenses under the P olicy because the Media Exclusion bars coverage "if the
insured is involved in t he business of broadcasting or telecasting , " and , in A CE 's

2 The four n etwork l awsuits were DISH Network L

. L

. C

. v. Am. Broadcasting Cos. , Inc. ( In re Autohop Litig.) , No. 12

- cv - 4155 (S.D.N.Y.); CBS Broadcasting Inc. v. DISH Network Corp. , No. 12

- cv - 6812 (S.D.N.Y.); Fox Broadcasting Co. v. DISH Network LLC , No. 12

- cv 4529 (C.D. Cal.); and NBC Studios, LLC v. DISH Network Corp. , No. 12

- cv - 4536 (C.D. Cal.).7 view, DISH wa s " involved in the broadcasting " of the four n etwork s' programming

. Id. at 11 63

. II. Procedural History On May 28, 2016 , DISH sued AC E in the district court , alleging that
ACE breached its duty to defend DISH in the network lawsuits. On March 18, 2019, after discovery, ACE and DISH cross

- mo ved for summary judgment , with both parties focus ing on whether DISH wa s in the business of "broadcasting."
The district court granted summary judgment for ACE, holding that ACE had no duty to defend DISH because DISH wa s in the business of "broadcasting" and "telecasting" under the Media Exclusion. Dish Network Corp. v. A CE Am. Ins. Co. , 431 F. Supp. 3d 415, 431 (S.D.N.Y. 2019)

. 3 The court rejected DISH's contention that "broadcasting" requires transmission of "programming to the public at large for free," rather than for a fee, and held that "[t]he plain and ordinary meaning of the terms 'broadcast' and 'telecast' encompass a subscription

- based broadcasting service" like that of DISH. Id. at 429. Judgment

was entered December 2 7 , 2019. This appeal followed

.

3 As part o f its analysis of the terms "broadcasting" and "telecasting," the district court found that the definition of "telecast" "necessarily encompasse[d] broadcasting," and that therefore the definition of '"telecast" in the Policy overlapped with the definition of "broadcast." Id. at 429.8 DISCUSSION
I. Applicable Law
A. Construction of Insurance Policies
Under New York law , "an insurance contract is interpreted to give effect to the intent of the parties as expressed in the clear language of the
contract." Parks Real Est

. Purchasing Grp. v. St. Paul Fire & Marine Ins. Co. , 472
F.3d 33, 42 (2d Cir. 2006) (internal quotation marks omitted)

. U nambiguous provisions of an insurance policy are to be given their " plain and ordinary meaning , " and the plain and ordinary meaning of words may not be disregarded to find an ambiguity where none exists. Fed. Ins. Co. v. Am. Home Assurance Co. , 639 F.3d 557, 56 7 (2d Cir. 2011) (internal quotation marks omitted). Where the intent of the parties is clear based on the "plain and ordinary meaning" of the
contractual terms , summary judgment may be appropriate

. Id. Courts may refer to the dictionary to determine the " plain and ordinary meaning " of contract
terms. Id

. A contractual term is ambiguous "i f reasonable minds could differ as
to [the] meaning " of the term. Haber v. St. Paul Guardian Ins. Co. , 137 F.3d 691, 695 (2d Cir. 1998). " Ambiguity is determined by looking within the four corners of9 the document, not to outside sources. " Lockheed Martin Corp. v. Retail Holdings,
N.V. , 639 F.3d 63, 69 (2d Cir. 2011) (internal quotation mark s omitted). Where

" resolution of a dispute turns on the meaning of an ambiguous term or phrase , " summary judgment should usually be denied. Fed. Ins. Co. , 639 F.3d at 56 7

. A n insurer wishing to exclude coverage under its policy " must do so
in clear and unmistakable language," and "[a]ny such exclusions or exceptions

. . . must be specific and clear in order to be enforced." Beazley Ins. Co. v. ACE Am. Ins. Co. , 880 F.3d 64, 69 (2d Cir. 2018) ( internal quotation marks omitted). " [A]n insurer bear s the burden of pro ving that an exclusion applies ." Ment Bros. Iron Works Co. v. Interstate Fire & Cas. Co. , 702 F.3d 118, 121 (2d Cir. 2012). If the insurer does so , " the burden shifts to the insured to demonstrate
that an exception to the exclusion applies

. " Id. at 1 2 2 (internal quotation marks omitted)

. M any CGL policies contain coverage exclusions for a dvertising injur ies , including a "media exclusion" that applies to insured s in media

- and

internet

- type businesse s . See 9A Steven Plitt et al., Couch on Insurance § 1 2 9 :3 7 (3d ed. 202 1 ) ; Laura J. Grabouski, Current Controversies over Personal and Advertising Injury Coverage , Ins. Coverage Litig. , July

- Aug. 2014, at [15]10 (discussing coverage exclusions for insureds in media

- and

- internet

- type businesses in CGL polic i es that provide advertising injury "coverage for specifically defined torts that cause purely economic losses")

. S ome insurance companies include the media exclusion in their policies to limit their exposure to

" mass media

- type injuries." DISH Network Corp. v. Arch Specialty Ins. Co. , 989 F. Supp. 2d 1137, 1148 (D. Colo. 2013), aff'd sub nom. D ISH Network Corp. v. Arrowood Indem. Co. , 772 F.3d 856 (10th Cir. 2014)

. B. Standard of Review "We review a district court's grant of summary judgment de novo , construing the evidence in the light most favorable to the non

- moving party and drawing all reason able inferences in its favor." Fed. Ins. Co. , 639 F.3d at 566 ( internal quotation marks omitted). "Summary judgment is appropriate where there exists no genuine issue of material fact and, based on the undisputed facts, the moving party is entitled to judgment as a matter of law." Id. ( internal quotation marks omitted) ; see also Fed. R. Ci v. P. 56(a). When both parties have moved for summary judgment, "the court must evaluate each party's motion on its own merits, taking care in each instance to draw all reasonable inferences11 against the party whose motion is under consideration." Coutard v. Mun. Credit Union , 848 F.3d 102, 114 (2d Cir. 2017) ( internal quotation marks omitted). These generally applicable rules can function somewhat differently in relation to insurance policies, and in particular in relation to an insurer's duty
to defend t he insured. Regardless of whether the motion for summary judgment is made by the insurer or the insured, ambiguities as to coverage are generally construed against the insurer, in accordance with the doctrine of contra proferentem

. See Hugo Boss Fashions , Inc. v. Fed. Ins. Co ., 252 F.3d 608, 615 (2d Cir. 2001) . And the insurer is bound to defend its insured until such time as any ambiguity as to coverage is resolved in the insurer's favor. See id

. at 620

- 22. "Whether the language of an insurance policy is ambiguous is a question of law,
which we review de novo ." Duane Reade, Inc. v. St. Paul Fire & Marine Ins. Co. , 600 F.3d 190, 201 (2d Cir. 2010). If the language is ambiguous, then "resolution of the ambiguity is for the trier of fact." State v. Home Indem. Co. , 66 N.Y.2d 669, 671 (1985); see also Fed. Ins. Co. , 639 F.3d at 567 (same)

. C. Prior Cases
The issue of whether DISH is in the business of "broadcasting , " and therefore subject to the M edia E xclusion , has been presented to three courts , with12 differ ing results. In the first case , DISH sought a declaratory judgment from a court in the District of Colorado that its insurers had a duty to defend it in an underlying patent infringement action. Arch Special ty Ins. Co. , 989 F. Supp. 2d at
1141

- 43

. Each of the insurers' "advertising injury" liability coverage incorporated

a media exclusion against injuries caused by insureds in the business of "broadcasting

. " Id

. at 1145. 4 The district court held that DISH was in the
business of "broadcasting , " within the plain meaning of the word, rejecting DISH's argument that its transmissions to paying subscribers was not "broadcasting." Id. at 114 6

- 48

. It thus granted summary judgment in favor of the
insurers. T he Tenth Circuit affirmed , holding that " the commonly

- understood
definitions of the terms ' broadcasting ' and ' telecasting ' undoubtedly
encompass [ed] " D ISH 's transmissions

. Arrow oo d , 772 F.3d at 872, 87 6

. A few months before the Tenth Circuit's decision, a court in the
Central District of Illinois reached the opposite conclusion

. See Travelers Prop. Cas. Co. of Am. v. DISH Network, LLC , No. 12

- cv - 3098 , 2014 WL 1217668 , at *15 (C.D. Ill. Mar. 24, 2014)

. T he re, the insurer sought a declaratory judgment that it had no duty to defend DISH in an underlying lawsuit for DISH's alleged role in

4 The district court referred to the exclusion as the "business exclusion."13 making unsolicited telemarketing phone calls to consumers

. Id. at *2. The insurer's "advertising injury" coverage also excluded injuries caused by insureds
in the business of "broadcasting

. " Id. at * 3

- 4

. 5 The district court held that the term "broadcasting" was ambiguous because it was unclear whether it
encompas sed businesses that transmitted only to paid subscribers

. Id. at *9

- 11. It
also found the district court 's contrary holding in Arch Specialty Ins urance Co. was belied by Webster's New World Telecom Dictionary , which provided two meanings of the term " broadcasting " as a transmission sent "either for 'all receivers' or for 'only subscribers.'" Id. at * 9, * 11. The district court granted DISH summary judgment , i d. at * 15 , and t he case subsequently settled without appeal.
II. Application We conclude that ACE does not owe DISH a duty to defend under
the P olicy . F irst, " broadcasting , " as used in its Media Exclusion , i s not ambiguous and applies to DISH's business

. 6 Second, D ISH 's argument that the plain and ordinary meaning of "broadcasting" does not apply here fail s .

5 The district court referred to the exclusion as the "broadcasting exclusion." 6 Because we conclude that DISH is in the business of broadcasting, we need not consider whether DISH is also in the business of " telecasting, " or the extent to which the two terms overlap.14 A
. The Plain and Ordinary Meaning of " Broadcasting"
The Media Exclusion e xclude d coverage for liability arising from

" p ersonal and advertising injury " committed by " an insured who se business
is

. . . broadcasting

. "
The P olicy does not define "broadcasting , " and so we discern its plain and ordinary meaning by looking to the dictionar y . See Fed. Ins. Co. , 639
F.3d at 567

. Here, the Policy employs the term "broadcasting" as either a verb or a noun. As a verb, "broadcasting"

-- or "broadcast"

-- means "to make widely
known : disseminate or distribute widely," "to send out from a transmitting station (a radio or television program) for an unlimited number of receivers," or "to send out radio or television signals." Broadcast , Webster's Third New International Dictionary, Unabridged (2002) . As a noun, it is defined as "the act of sending out sound or images by radio or television transmission esp. for general reception." Id.
These definitions make clear that the term "broadcast," put simply, means transmitting a signal, especially a radio or television signal, to some number of receivers

-- which is precisely the nature of DISH's business

. DISH
transmits encrypted television signals to any receiver matched to its transmitters15 and charges its subscribers a fee to decrypt the signal

. See J oint App'x at 861 ( " DISH . . . transmit[s] [television] programming via satellite to paying
subscribers

. ") (report of DISH expert Frank Washington); i d. at 205 ( DISH "tak[es] the signal of programmers

. . . and transmit[s]

. . . them via satellite to subscribers
for a fee

. " ) (deposition of DISH representative Jeffrey Blum)

. Accordingly, in the

common , everyday sense of the word, DISH is in the business of "broadcasting."
DISH rejects this plain meaning of the word "broadcasting" and argues that " broadcasting " applies only to the transmission of programming to the public for free, while it provides its programming only to paying subscribers with special receivers . This distinction, DIS H argues, mean s that its
transmissions are not "public," "for general reception," or " for an unlimited number of receivers," as indicated in the common dictionary definitions. Appellants' Br. at 31

- 32. The line that DISH seeks to draw

-- between free tran smission s and
transmission s to paid subscribers

-- is not reflected in the common use of the
term "broadcast." A s the Tenth Circuit observed , "nothing in any of these
common definitions of the term [] exclude [ s ] fee

- for

- service transmissions." Arrowood , 772 F.3d at 871. A service need not be free to be available to the public.16 Examples abound of services that are available to the public for a fee, including public transportation, shipping and mailing services, and parks or other venues that charge an admittance fee. Indeed, there is nothing in the dictionary
definition s to suggest that "broadcasting" only encompasses broadcasting for free; the fact that D ISH must add the "for free" qualifier to the definitions makes
clear that no such requirement exist s . S e e id. at 872; Arch Specialty Ins. Co. , 989 F. Supp. 2d at 1147

- 48.
B
. D ISH's Rejection of the Plain and Ordinary Meaning DISH argues that the "plain and ordinary" meaning of "broadcasting " does not apply here because (1) the Policy describes its business

as "[c]ommunication," and (2) a technical or specialized definition of "broadcasting" applies. We are not persuaded

. First, DISH points to the P olicy 's description of its business a s

" [c] ommunication , " Joint App'x at 610, and argue s that it is thus not a broadcasting business subject to the Media Exclusion. T he purpose of the Policy's "Business of Insured" provision , however, is to provide a "general identification of [DIS H's] operations." Id. at 812. DISH cites no authority for the proposition that the description of the "Business of Insured" must be exhaustive17 or that it must match any other reference within the Policy to the insured's business. Entities may be involve d in various businesses, and each of those businesses may be accurately described in different ways. Furthermore, DISH's argument makes no sense because broadcasting is unquestionably communication, regardless of whether a fee is charged. "Communication" is
defined as "the act or action of

. . . transmitting." Communication , Webster's Third New International Dictionary, Unabridged (2002) ; see also Communication , American Heritage Dictionary, Second College Edition (1991) (defining communication as "[t]he exchange of

. . . messages, or information, as by

. . . signals " ). "Broadcasting," or the transmission of signals to receivers, is plainly a form of
communication. DISH argues that ACE's underwriting file for the Policy shows that
ACE used the term communication in a more limited sense to refer to "businesses engaged in communications or telecommunications equipment manufacturing

. " J oint App'x at 1036 n.21. The underwriting file, however, is extrinsic evidence,
and thus we do not consider it because the Media Exclusion is not ambiguous.
Moreover , the underwriting file does not purport to categorize DISH's business exhaustively or exclusively as equipment manufacturing. DISH also does not18 contend that it is solely in the busi ness of equipment manufacturing or dispute that its business involves the transmission of signals to its subscribers. ACE's underwriting file and the Policy's declarations page's use of the term "[c]ommunication" in no way suggest that DISH is not in the business of "broadcasting." DISH is in the business of both "communications" and "broadcasting," and therefore is subject to the Media Exclusion

. Second , DISH contends that industry sources support its definition of the term "broadcasting , " including telecommunications dictiona ries , Federal Communications Commission ( the "FCC") regulations , and definitions under the Federal Communication Act ( the "FCA")

. B ut these sources provide technical, industry

- specific definitions of terms , a nd New Yo rk law is clear that we do not assign a "narrow, technical definition," Michaels v. City of Buffalo , 85 N.Y.2d 754, 757 (1995) ( internal quotation marks omitted) , to a term in an insurance policy
that does not indicate that the term is meant to have a specialized meaning , s ee Christodoulides v. First Unum Life Ins. Co. , 946 N.Y.S. 2d 773, 776 ( 4th Dep't 2012)

. Here, t he P olicy d oes not indicate that "broadcasting" was intended
to have a specialized or technical meaning , and the technical sources to which
DISH would have us look do not govern where the issue depends on the19 "commonly understood definition of the term 'broadcasting.'" Arrowood , 772 F.3d
at 871. Furthermore, where the parties to this Policy intend ed to incorporate a legal or statutory definition of a term, the P olicy say s so explicitly. For example, Coverage A's Exclusion s indicates that terms such as "source material" and "special nuclear material" should "have the meanings given them in the Atomic Energy Act of 1954 or in any law amendatory thereof." Joint App'x at 622. If the parties had intended "broadcasting" to take on a definition assigned by the FCC

or the FCA , they could have easily pointed to those sources

. The language of the Policy does not suggest an intention to adopt a specialized definition of "broadcasting." 7

7 DISH also claims to find support in an industry

- specific definition of " broadcast te levision " as " [t]elevision programming sent over the air to all receivers ," Broadcast Television , Webster’s New World Telecom Dictionary (Ray Horak ed., 2008) , on the theory that it does not transmit programming to all receivers . We are not persuaded . To begin, if this definition were to be literally applied, there would be no such thing as " broadcast television " because there is no programming that is received by " all receivers. " A transmission can be received only by those receivers equipped to receive it

. Indeed, many industry

- specific definitions explicitly include the type of transmissions DISH sends. See, e.g. , Broadcast , Hargrave ' s Communications Dictionary (2001) (explai ning that a

" broadcast signal may be encrypted so that only selected groups of receivers may recover usable information from the signal " ); Broadcast , A/V A to Z : An Encyclopedic Dictionary of Media, Entertainment and Other Audiovisual Terms (2010) (definin g

" broadcast " as " [t]o transmit an electronic signal (generally radio or television) from a central point to multiple, simultaneous recipients (listeners or viewers), " and using

" satellite broadcast "

-- DISH ' s technology

-- as an example); Broadcasting , Di ctionary of Media and Communications (2009) ( using " Direct Broadcast Satellite " as an example of a

" [ b ] roadcasting technolog[y]" ); Broadcast , Newton’s Telecom Dictionary (24th ed. 2008)20 Accordingly, we reject DISH's invitation to discard the plain and ordinary meaning of the term "broadcasting" in favor of its preferred defin itions.
The district court did not err in granting summary judgment to ACE

. 8 CONCLUSION
For the reasons set forth above , the judgment of the district court is AFFIRMED

.

(defining " broadcast " as " [t]o send information to two or more receiving devices simultaneously

-- over [ inter alia ] satellite system " ). 8 DISH and ACE each make arguments as to why extrinsic evidence favors their definition of "broadcasting." Because we conclude that the definition of "broadcasting" is not ambiguous, we do not consider the extrinsic evidence. See Alexander & Alexander Servs., Inc. v. These Certain Underwriters at Lloyd's, London , 136 F.3d 82, 86 (2d Cir. 1998).