Dish Network Corporation v Arrowood Indemnity Company

Dish was sued for patent infringement. Arrowood and other primary and excess insurers denied duty to defend coverage. Dish sued for a declaratory judgment that the insurers had the duty to defend. On remand from Dish’s successful appeal of summary judgment to insurers, the district court again granted summary judgment to the insurers and eh panel affirmed. It held the first appeal did not establish a duty to defend. Rather, the panel held the earlier mandate ordered the district court to consider other defenses and otherwise left the district court free to consider any defense raised by insurers. The panel held that under the ordinary meaning of broadcast and telecast, providing satellite TV is broadcasting and televising as the signals are sent out to a wide area and, just like newspapers or magazines, Dish does not care who receives the signal as long as it is paid for. As claims arising from broadcasting are excluded from coverage in the applicable polices, Arrowood and the primary insurers had no duty to defend. As to the excess insurers, they likewise had not duty as coverage is limited to claims covered by the primary polices and one policy also required exclusive causation which was not present on these facts.