1.      “Language in an insurance policy should be given its plain, ordinary meaning.” Syllabus Point 1, Soliva v. Shand, Morahan & Co., Inc., 176 W. Va. 430, 345 S.E.2d 33 (1986), overruled, in part, on other grounds by National Mut. Ins. Co. v. McMahon & Sons, 177 W. Va. 734, 356 S.E.2d 488 (1987).

            2.      “Where the provisions of an insurance policy contract are clear and unambiguous they are not subject to judicial construction or interpretation, but full effect will be given to the plain meaning intended.” Syllabus, Keffer v. Prudential Ins. Co., 153 W. Va. 813, 172 S.E.2d 714 (1970).

            3.      “Whenever the language of an insurance policy provision is reasonably susceptible of two different meanings or is of such doubtful meaning that reasonable minds might be uncertain or disagree as to its meaning, it is ambiguous.” Syllabus Point 1, Prete v. Merchants Property Ins. Co., 159 W. Va. 508, 223 S.E.2d 441 (1976).

            4.      “The mere fact that parties do not agree to the construction of a contract does not render it ambiguous. The question as to whether a contract is ambiguous is a question of law to be determined by the court.” Syllabus Point 1, Berkeley Co. Pub. Serv. v.
Vitro Corp., 152 W. Va. 252, 162 S.E.2d 189 (1968).

            5.      “It is well settled law in West Virginia that ambiguous terms in insurance contracts are to be strictly construed against the insurance company and in favor of the insured.” Syllabus Point 4, National Mut. Ins. Co. v. McMahon & Sons, 177 W. Va. 734, 356 S.E.2d 488 (1987), overruled on other grounds by Potesta v. U.S. Fidelity & Guaranty Co., 202 W. Va. 308, 504 S.E.2d 135 (1998).

            6.      “[I]ncluded in the consideration of whether the insurer has a duty to defend is whether the allegations in the complaint . . . are reasonably susceptible of an interpretation that the claim may be covered by the terms of the insurance policies.” Syllabus Point 3, in part, Bruceton Bank v. U.S. Fid. and Guar. Ins., 199 W. Va. 548, 486 S.E.2d 19 (1997).






Per Curiam:

            The appellants herein, Mylan Laboratories Inc., Mylan Pharmaceuticals Inc., and UDL Laboratories Inc. (hereinafter collectively referred to as “Mylan”), appeal the February 8, 2007 order of the Circuit Court of Monongalia County that held that the appellee insurance companies, American Motorists Insurance Co., Continental Insurance Co., Wausau Insurance Co., and Federal Insurance Co., have no duty to defend Mylan in certain civil actions brought against it. After careful consideration of the record, the parties' arguments, and the applicable law, this Court affirms the circuit court's order.

            Mylan, a manufacturer of generic drugs, was named a defendant in lawsuits brought in several states. These lawsuits can be divided into two classes: average wholesale price litigation (hereinafter referred to as “AWP” litigation), and Lorazepam and Clorazepate litigation (hereinafter referred to as “L&C” litigation).

            The AWP litigation relates to the average wholesale price of prescription drugs manufactured, marketed, and sold by Mylan. Basically, physicians and other providers of drugs are reimbursed by Medicare and other third-party payors based on the average wholesale price of the drug. Manufacturers periodically report the average wholesale price of drugs to publishers who list the prices as reported to them by the manufacturers.

            The AWP litigation alleges that Mylan and others engaged in a scheme to fraudulently manipulate the average wholesale price of its drugs. As part of this scheme, Mylan reported inflated average wholesale drug prices which materially misrepresented the actual prices paid to Mylan for prescription drugs by drug providers such as hospitals, pharmacies, and physicians. As a result, drug providers were reimbursed significantly more money than they actually paid for Mylan-manufactured drugs. Moreover, Mylan used this scheme as a marketing ploy. Specifically, Mylan advertised the difference or “spread” in prices as a reason why those in the distribution chain should sell its drugs, a practice known as “marketing the spread.” In this way, Mylan increased its share of the generic drug market.

            The plaintiffs in the AWP cases are patients who were prescribed Mylan- manufactured drugs, third-party payors, states, and counties responsible for reimbursing drug providers based on the reported average wholesale price of Mylan-manufactured drugs. (See footnote 1) As of the date of the oral argument of this case before this Court, the AWP litigation was pending.

            The second class of lawsuits in which Mylan was involved was the L&C litigation. These lawsuits originally were brought by the Federal Trade Commission in December based on alleged antitrust violations of Section 5(a) of the Federal Trade Commission Act. This litigation alleges that Mylan acquired an exclusive licensing agreement with the company which supplied the active pharmaceutical ingredients for two generic drugs manufactured by Mylan: Lorazepam and Clorazepate. The exclusive agreements prohibited the suppliers from selling these active pharmaceutical ingredients to any other generic drug manufacturer for a period of 10 years. Despite no significant increase in costs, the price charged by Mylan for Lorazepam and Clorazepate increased dramatically. Depending upon the size of the bottle, the price for Clorazepate increased by amounts ranging from 1,900 percent to 3,200 percent. (See footnote 2) The price for Lorazepam tablets increased 1,900 percent to 2,600 percent. (See footnote 3)

            The Federal Trade Commission litigation alleged eight causes of action against Mylan: (1) agreement in restraint of trade on Lorazepam; (2) agreement in restraint of trade on Clorazepate; (3) conspiracy to monopolize generic Lorazepam tablets market; (4)
conspiracy to monopolize generic Clorazepate tablets market; (5) monopolization of generic Lorazepam tablets market; (6) attempted monopolization of generic Lorazepam tablets market; (7) monopolization of generic Clorazepate tablets market; and (8) attempted monopolization of generic Clorazepate tablets market. The original Federal Trade Commission complaint alleged in part that,

                      As a result of these substantial and unprecedented price increases for lorazepam and clorazepate tablets, many purchasers, including pharmacies, hospitals, insurers, managed care organizations, wholesalers, government agencies, and others, have paid substantially higher prices. Moreover, some patients have stopped taking lorazepam and clorazepate tablets altogether, or been forced to reduce the quantity they take, because they can not afford them.

            Subsequently, thirty-two states jointly filed suit against Mylan and other defendants in a suite alleging violations of each state's anti-trust laws. Several third-party payors filed similar actions against Mylan. A global settlement was reached in most of these cases wherein Mylan agreed to pay over $135 million. Two groups of plaintiffs opted out of the settlement and a verdict was rendered against Mylan in the amount of $12 million.

            The appellees herein are four insurance companies from whom Mylan purchased insurance polices. Specifically, American Motorists Insurance Company issued two policies to Mylan which were characterized by the circuit court as general liability
policies with limits of $1 million. (See footnote 4) Continental Insurance Company issued two insurance policies to Mylan which were characterized by the circuit court as general liability policies with limits of $1 million. (See footnote 5) Wausau Insurance Company issued six policies to Mylan which were characterized by the circuit court as general liability policies of $1 million. (See footnote 6) Finally, Federal Insurance Company issued an insurance policy to Mylan which the circuit court characterized as an umbrella policy with limits of liability of $10 million in excess of $1 million during the policy term of September 1, 1997 to September 1, 1998, with the policy limits on the later issued policy of $20 million in excess of $1 million. (See footnote 7)

            The appellee insurance companies filed a declaratory judgment action in the Circuit Court of Monongalia County seeking a determination whether they have a duty to defend Mylan in the above-described litigation. Both Mylan and the appellees filed motions for summary judgment. By order dated February 8, 2007, the circuit court granted the appellees' motions for summary judgment and denied Mylan's motions for summary judgment. Mylan now appeals this order.

            
            The circuit court's order on appeal is a grant of summary judgment in a declaratory judgment. Also, the circuit court's order is based on its construction of the language in certain insurance policies. Therefore, this Court's standard of review in this case is de novo. See Syllabus Point 3, Cox v. Amick, 195 W. Va. 608, 466 S.E.2d 459 (1995) (holding that “[a] circuit court's entry of a declaratory judgment is reviewed de novo.”); Syllabus Point 1, Painter v. Peavy, 192 W. Va. 189, 451 S.E.2d 755 (1994) (holding that “[a] circuit court's entry of summary judgment is reviewed de novo.”); Syllabus Point 2, Riffe v. Home Finders Associates , Inc., 205 W. Va. 216, 517 S.E.2d 313 (1999) (holding that”[t]he interpretation of an insurance contract, including the question of whether the contract is ambiguous, is a legal determination that, like a lower court's grant of summary judgment, shall be reviewed de novo on appeal.”).

             In its February 8, 2007 order that granted summary judgment to the appellees, the circuit court first found that the underlying actions in the AWP litigation do not allege an advertising injury or the use of another's advertising idea as defined in the American Motorists, Continental, and Wausau policies. Thus, no coverage is triggered by the policies at issue and the appellees have no duty to defend Mylan in these actions.

            The American Motorists, Continental, and Wausau policies all provide that they will defend suits alleging an “Advertising Injury.” The American Motorists and Continental Policies define “Advertising Injury” to include injury arising out of the “misappropriation of advertising ideas or style of doing business.” (See footnote 8) Wausau policy numbers 0526-00-101388 through 0520-00-101388 define “Advertising Injury” to include injury arising out of the “misappropriation of advertising ideas.” (See footnote 9) Wausau policy number 0521-00-101388 defines “Advertising Injury” to include injury arising out of “use of another's advertising idea in your advertisement.” (See footnote 10)

            In its summary judgment order, the circuit court determined, inter alia, that in order to trigger the duty to defend, the plaintiff's allegations of misappropriation have to involve the wrongful taking of the advertising idea or style of doing business of another. Upon examining the complaints in the underlying AWP litigation, the circuit court concluded that no such allegations were made. (See footnote 11)     

        Mylan, in its brief to this Court, argues that the term “misappropriation” is ambiguous because it is susceptible of more than one meaning. According to Mylan, case law and dictionary definitions support the construction of the term “misappropriation” to include “misuse.” Therefore, concludes Mylan, the policy language at issue does not require that the “advertising idea” misappropriated be owned by another, but only that Mylan misused an “advertising idea.”

            With regard to the general principles of construing the provisions of an insurance policy, this Court has indicated that “[l]anguage in an insurance policy should be given its plain, ordinary meaning.” Syllabus Point 1, Soliva v. Shand, Morahan & Co., Inc., 176 W. Va. 430, 345 S.E.2d 33 (1986), overruled, in part, on other grounds by National Mut. Ins. Co. v. McMahon & Sons, 177 W. Va. 734, 356 S.E.2d 488 (1987). “Where the provisions of an insurance policy contract are clear and unambiguous they are not subject to judicial construction or interpretation, but full effect will be given to the plain meaning intended.” Syllabus, Keffer v. Prudential Ins. Co., 153 W. Va. 813, 172 S.E.2d 714 (1970). Concerning whether terms in an insurance policy are ambiguous, this Court has explained that “[w]henever the language of an insurance policy provision is reasonably susceptible of two different meanings or is of such doubtful meaning that reasonable minds might be uncertain or disagree as to its meaning, it is ambiguous.” Syllabus Point 1, Prete v. Merchants Property Ins. Co., 159 W. Va. 508, 223 S.E.2d 441 (1976). However, “[t]he mere fact that parties do not agree to the construction of a contract does not render it ambiguous. The question as to whether a contract is ambiguous is a question of law to be determined by the court.” Syllabus Point 1, Berkeley Co. Pub. Serv. v. Vitro Corp., 152 W. Va. 252, 162 S.E.2d 189 (1968). If a court determines that a policy provision is ambiguous, “[i]t is well settled law in West Virginia that ambiguous terms in insurance contracts are to be strictly construed against the insurance company and in favor of the insured.” Syllabus Point 4, National Mut. Ins. Co. v. McMahon & Sons, 177 W. Va. 734, 356 S.E.2d 488 (1987), overruled on other grounds by Potesta v. U.S. Fidelity & Guaranty Co., 202 W. Va. 308, 504 S.E.2d 135 (1998). Finally, “included in the consideration of whether the insurer has a duty to defend is whether the allegations in the complaint . . . are reasonably susceptible of an interpretation that the claim may be covered by the terms of the insurance policies.” Syllabus Point 3, in part, Bruceton Bank v. U.S. Fid. and Guar. Ins., 199 W. Va. 548, 486 S.E.2d 19 (1997).

            This Court has carefully considered all of the case law cited to us by the parties. After considering the arguments of the parties and supporting authority, this Court finds that the term “misappropriation” as used in the “Advertising Injury” context ordinarily means to take or acquire wrongfully. Several courts have reached this conclusion in “Advertising Injury” cases. (See footnote 12) See State Auto Property and Cas. v. Trav. Indem. Co., 343 F.3d 249, 257 (4^th Cir. 2003) (“the term 'misappropriation' . . . refers generally to the wrongful acquisition of property”); American Employ. Ins. Co. v. DeLorme Pub. Co., 39 F.Supp.2d 64, 77 (D.Me. 1999) (“The ordinary meaning of 'misappropriate' is not ambiguous or unclear. It means '[t]o appropriate wrongly;' that is to wrongfully 'take or make use of without authority or right.'” Citing Webster's New Collegiate Dictionary, 98, 758 (9^th ed. 1987)); American Economy Ins. Co. v. Reboans, Inc., 852 F.Supp. 875, 881 (N.D.Cal. 1994) (“the word 'misappropriation' in its ordinary and popular sense [is] . . . a synonym for 'to take wrongfully.'” American States Ins. Co. v. Vortherms, 5 S.W.3d 538, 543 (Mo.Ct.App. 1999) (“a misappropriation of an advertising idea involves the wrongful taking of another's manner of advertising” (citation omitted)); Fluoroware, v. Chubb Group of Ins. Companies., 545 N.W.2d 678, 682 (Minn.Ct.App. 1996) (“'misappropriation of advertising ideas' has been defined as the wrongful taking of another's manner of advertising”). (See footnote 13)

            Having concluded that the ordinary meaning of the term “misappropriation” is to take or acquire wrongfully, this Court must next determine whether the allegations in the AWP complaints are reasonably susceptible of an interpretation that the claim may be covered by the terms of the insurance policies. The allegations in the AWP litigation are that once Mylan created the spread in average wholesale prices, it marketed the spread to drug providers in order to give them an incentive to sell Mylan-manufactured drugs. We conclude that these allegations are not reasonably susceptible of an interpretation that they may be covered by an insurance policy providing coverage for misappropriating another party's advertising idea or style of doing business. (See footnote 14) For this reason, we affirm the circuit court's grant of summary judgment on this issue. (See footnote 15)

              Second, Mylan assigns error in the circuit court's conclusion that the claims in the AWP litigation do not allege personal injury or discrimination, and, therefore, the duty to defend is not triggered under Federal's Umbrella Policy.

            Coverage B of the Federal policy provides, in relevant part, that Federal will defend any suit alleging “Personal Injury.” (See footnote 16) The policy defines “Personal Injury” as follows:

           The issue in this case concerns the definition of “Personal Injury” as “Discrimination.” Specifically the question is whether the allegations in the AWP complaints allege discrimination as covered by the Federal policy. In finding that Federal had no duty to defend under the facts of this case, the circuit court reasoned as follows:

                      As used in the “Personal Injury” section of the Federal policy, “discrimination” refers to the standard types of discrimination (e.g. race, handicap) and not, as asserted by Mylan, “any form of discrimination within the field of commerce,” which is the definition of “economic discrimination.” USX Corp. v. Adriatic Ins. Co., 99 F.Supp.2d 593, 624-25 (W.D. Pa. 2000) (finding that, when viewed in context with the other enumerated offenses in the definition of “personal injury,” the meaning of “discrimination” is limited to differential treatment of a person based upon immutable characteristics such as race, sex, age, religion, or national origin). Thus, the dictionary definitions relied upon by Mylan do not, in fact, support Mylan's interpretation of the term, which must be read in concert with the rest of the policy language and not in a vacuum.

                      Even if the Court were to adopt the reasoning of Federal Ins. Co. v. Strohs Brewing Co., 127 F.3d 563 (7^th Cir. (Ind.) 1997), as urged by Mylan, the AWP claims do not allege price discrimination because claimants in the underlying suits are not entities that would purchase Mylan products. Rather, the AWP claims allege fraud regarding the excessive funds Medicare, Medicaid, and third-party payors reimbursed to medical providers and pharmacies based on Mylan's alleged artificially inflated AWP listing.

            In its third assignment of error, Mylan challenges the circuit court's finding that coverage for an “advertising injury” or “bodily injury” under the Waussau policies is inapplicable to this case, and thus Wassau had no duty to defend Mylan in the L&C litigation. (See footnote 19) As noted above, Wausau policies 0526-00-101388 through 0520-00-101388 define “Advertising Injury” to include injury arising out of the “misappropriation of advertising ideas.” (See footnote 20) Mylan notes that in the L&C litigation below, it was alleged that Mylan initiated a “Campaign for Fair Pharmaceutical Competition” in order to confront criticism over and explain the profits it was making from its price increases for Lorazepam and Clorazepate. According to Mylan, the allegation in the complaints with regard to its fair pricing campaign triggered potential insurance coverage under the same “advertising injury” offenses at issue in the AWP actions. Mylan further avers that its fair pricing campaign is an advertising concept that falls within the offense of “misappropriation of an advertising idea” which should be understood to include the misuse of an idea related to the promotion of a product to the public.

            We reject Mylan's argument. This Court found above that the term “misappropriation” ordinarily means to take or acquire wrongfully. The allegations in the L&C litigation that Mylan conducted a “Campaign for Fair Pharmaceutical Competition” to confront criticism over the profits it was reaping from its price increases for Lorazepam and Clorazepate is not susceptible of an interpretation that the claim may be covered for misappropriating another party's advertising idea. Accordingly, we affirm the circuit court's grant of summary judgment on this issue.

             Next, Mylan opines that the circuit court erred in finding that Waussau has no duty to defend Mylan in the L&C litigation for damages arising from a “bodily injury” under the Waussau policies. The term “bodily injury” is defined in Waussau policy numbers 0526- 00-101388 through 0521-00-101388 as “bodily injury, sickness or disease sustained by a person, including death resulting from any of these at any time.”

            According to Mylan, the complaints in the L&C litigation expressly allege that Mylan's actions caused bodily injury. In support of this contention, Mylan quotes the following language from complaints in the L&C litigation:

                As a result of these substantial and unprecedented agreements and price increases for lorazepam and clorazepate tablets, many purchasers, including . . . patients, consumers and others have paid substantially higher prices. Moreover, some patients may have stopped taking lorazepam and clorazepam tablets altogether, or been forced to reduce the quantity they take, because they cannot afford them.

                The acts and practices of the Defendants as herein alleged have had the purpose or effect, or tendency or capacity, to restrain competition unreasonably and to injure competition within each State and throughout the United States in the following ways, among others . . .

                Depriving consumers of access to needed pharmaceuticals and thereby injurying their health. (Footnotes omitted).

                                                            
            In finding that claims against Mylan in the L&C litigation are susceptible of being covered by an insurance policy providing coverage for “bodily injury,” the circuit court found that “bodily injury” is not alleged in the L&C litigation:

                Rather, the L&C suits involve economic injury, in that Mylan increased the price of Lorazepam and Clorazepam by 1,900 - 2000% following its entry into the exclusive licensing agreements with ingredient suppliers. The only contention that comes close to one asserting covered “bodily injury” is Mylan's speculative assertion that some consumers may not have been able to afford their medications due to the price hikes by Mylan. However, as no such specific claims for bodily injury are alleged in any of the underlying complaints, the “Bodily Injury” coverage in the Waussau Policies is not triggered.

We agree with the circuit court. The reference to injured health quoted above is simply too brief and speculative to trigger coverage for a “bodily injury” under the Waussau policies. The plaintiffs in the L&C litigation are not persons alleging bodily injuries as a result of Mylan's conduct. Rather, these plaintiffs allege economic injury. As such, the complaints filed in the L&C litigation are not susceptible of an interpretation that the claims may be covered for “bodily injury.” Therefore, we affirm the circuit court's order on this issue.

            Finally, Mylan asserts error in the circuit court's finding that the underlying claims in the L&C litigation do not allege personal injury or discrimination, and thus the duty to defend Mylan is not triggered under Federal's Umbrella policy. Mylan argues that for the reasons previously asserted in its discussion of the AWP actions, coverage for “discrimination” includes forms of disparate treatment like economic discrimination. Specifically, the allegations in the L&C actions implicate coverage for “discrimination” in that plaintiffs paid too much for only two drugs, Lorazepam and Clorazepate. Mylan allegedly selected these drugs because they are used to treat patients with chronic medical conditions, thus requiring long-term use, as opposed to drugs used to treat short-term conditions. According to Mylan, its alleged focus on L&C drugs, out of all other drugs, was discriminatory.

            As this Court concluded above, the term “discrimination” included under the definition of “personal injury” in Coverage B of the Federal umbrella policies ordinarily means differential treatment based on a personal characteristic, generally immutable, such as race, age, sex, nationality, religion, or disability. Mylan has failed to show that there are allegations in the complaints in the L&C litigation that are reasonably susceptible of an interpretation that the claims may be covered as a “personal injury” under the definition of that term in the Federal umbrella policy. For this reason, this Court affirms the circuit court's grant of summary judgment on this issue. (See footnote 21)

            For the reasons set forth above, this Court affirms the February 8, 2007 order of the Circuit Court of Monongalia County which ruled that American Motorists, Continental, Waussau, and Federal have no duty to defend Mylan, pursuant to certain insurance policies, in the underlying AWP and L&C litigation. 

                                                                   Affirmed.

Footnote: 1

      An example of the allegations in the AWP litigation is found in a complaint filed against Mylan and others by the State of Illinois. Specifically, the complaint alleged, in pertinent part:

                First, defendants sell their drugs in a unique manner which hides the true price of their drugs. This scheme works as follows. Upon agreeing on a quantity and price of a drug with a provider, or group of providers, the defendants purport to sell the agreed- upon drugs to wholesalers with whom they have a contractual arrangement, at the WAC [wholesale acquisition cost] price. The WAC may be, and usually is, higher than the price agreed upon by the provider and the drug manufacturer. The wholesaler then ships the product to the provider, charging the provider the (lower) price originally agreed upon by the drug manufacturers and the provider. When the wholesaler receives payment from the provider, it charges the manufacturers the price for handling and any applicable rebates and discounts, and sends a bill to the manufacturer, called a “charge-back,” for the difference between the WAC and the price actually paid by the provider. These charge-backs (or shelf adjustments, or other economic inducements) are kept secret, so that it appears that the wholesaler actually purchased the drug at the higher WAC price. The effect of this practice is to create the impression that the “wholesale price” of the drug is higher than it really is.

                Second, defendants further inhibit the ability of Illinois and other ultimate purchasers to learn the true cost of their drugs by insisting upon confidentiality provisions in their sales agreements with providers, terming them trade secrets and proprietary, to preclude providers from disclosing to others the prices they paid.

                Third, defendants further obscure the true prices for their drugs with their policy of treating different purchasers differently. Thus, for the same drug, pharmacies are given one price, hospitals another, and doctors yet another.

                Fourth, at least some defendants have hidden their real drug prices by providing free drugs and phony grants to providers as a means of discounting the overall price of their drugs[.]


            

Footnote: 2

      The price for a 500-count bottle of 7.5 mg clorazepate went from $11.66 to $377.00.

Footnote: 3

      The price for a 500-count bottle of 1 mg lorazepam increased from $7.30 to $191.00

Footnote: 4

      These two policies were Policy Number 3YM 851 972-01, effective dates July 1, 1991, to July 1, 1992, and Policy Number 3YM 851 972-02, effective dates July 1, 1992, to September 1, 1993.

Footnote: 5

      These were Policy Number 15CBP06156061-94, effective dates September 1, 1993, to September 1, 1994, and Policy Number 15CBP06156061-95, effective dates September 1, 1994, to September 1, 1995.

Footnote: 6

      These were Policy Number 0526-00-101388, effective dates September 1, 1995, to September 1, 1996; Policy Number 0527-11-101388, effective dates September 1, 1996, to September 1, 1997; Policy Number 0528-00-101388, effective dates September 1, 1997, to September 1, 1998; Policy Number 0529-00-101388, effective dates September 1, 1998, to September 1, 1999; Policy Number 0520-00-101388, effective dates September 1, 1999, to September 1, 2000; Policy Number 0521-00-101388, effective dates September 1, 2000, to September 1, 2001.

Footnote: 7

      This is Policy Number 7966-70-27 with effective dates of September 1, 1997, to September 1, 1998; September 1, 1998, to September 1, 1999, to September 1, 2000; and September 1, 2001.

Footnote: 8

      The American Motorists and Continental polices at issue provide, in relevant part, as follows:

                b b.         This insurance applies to:
                      (1) . . .
                      (2) “Advertising Injury” caused by an offense committed in the course of advertising your goods, products or services;
                                but only if the offense was committed in the “coverage territory” during the policy period.

            *         *        *

                “Advertising injury” means injury arising out of one or more of the following offenses:
                c a.         Oral or written publication of material that slanders or libels a person or organization or disparages a person's or organization's goods, products, or services;
                d b.         Oral or written publication of material that violates a person's right of privacy;
                e c.         Misappropriation of advertising ideas or style of doing business; or
                f d.         Infringement of copyright, title or slogan.

As noted above, the issue in this case concerns whether Mylan is alleged in the AWP litigation to have misappropriated advertising ideas or style of doing business.

Footnote: 9

      Wausau policy numbers 0526-00-101388 through 0520-00-101388 provide in relevant part:

                7 1.         “Advertising injury” means injury, other than “bodily injury” or “property damage” or “personal injury,” arising out of one or more of the following offenses committed in the course of “your advertising activities”:
                      a.        Oral or written publication of material that slanders or libels a person or organization or disparages a person's or organization's goods, products, or services;
                      b.        Oral or written publication of material that violates a person's right of privacy;
                    c.        Misappropriation of advertising ideas; or
                      d.        Infringement of copyright, title or slogan.

Footnote: 10

      Wausau policy number 0521-00-101388 provides in relevant part:

                 1.         “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 to private occupancy of a room, dwelling, or premises that a person occupies by or on behalf of its owner, landlord or lessor;
                        d.         Oral or written publication of material that slanders or libels a person or organization or disparages a person's or organization's goods, products, or services;
                        e.         Oral or written publication 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 you “advertisement”.

Footnote: 11

      Having determined that the claims of the plaintiffs in the underlying AWP litigation fall outside of any coverage afforded by the relevant insurance policies, the circuit court declined to address the issue raised by the appellees of whether the claims fall within any
named exclusions provided for in the policies.

Footnote: 12

      In “Advertising Injury” cases, the meaning of the term “misappropriation” generally arises when courts are addressing the issue of whether the term refers only to the common law tort of misappropriation which does not protect against injuries resulting from the wrongful use of a trademark or whether the term applies more broadly to the wrongful acquisition of any property. See State Auto Prop. and Cas. Ins. Co. v. Travelers Indem. Co. of Am., 343 F.3d 249, 256 (4^th Cir. 2003).

Footnote: 13

      Mylan cites this Court's opinion in Lawyer Disciplinary Bd. v. Battistelli, 206 W. Va. 197, 523 S.E.2d 257 (1999) to support its argument that a reasonable definition of “misappropriation” is to “misuse.” However, our discussion in Battistelli concerned the misappropriation of client funds by an attorney and not insurance policy language concerning coverage for an “Advertising Injury.” Therefore, we do not find Battistelli instructive in the instant case.

Footnote: 14

      For the same reason, we find that the provision in the Wassau policy for coverage of “[t]he use of another's advertising idea in your 'advertisement'” does not provide coverage for the acts alleged in the underlying complaints.

Footnote: 15

      This Court also seriously doubts that informing drug providers of the price spread constitutes an “advertising idea.” “[T]o be covered by the policy, allegations of . . . misappropriation have to involve an advertising idea, not just a nonadvertising idea that is made the subject of advertising.” CAT Internet Serv. v. Providence Washington Ins., 333 F.3d 138, 142 (3^rd Cir. 2003), quoting Green Machine Corporation v. Zurich - American Insurance Group, 313 F.3d 837, 839 (3d.Cir. 2002). The mere publication to drug providers of the price spread in the wholesale price of generic drugs does not constitute an advertising idea. Moreover, there appears to be no allegation in the complaints below of an “Advertising Injury” arising out of the wrongful taking or acquisition of an advertising idea. Instead, the injury alleged arises from the paying of inflated average wholesale prices.

Footnote: 16

      Federal's Coverage A excess liability coverage obligates Federal to defend suits only if the applicable underlying insurance in the Wausau policies has been exhausted. Having found that no provision in the Wausau policies cover the allegations in the AWP suits, only Federal's Coverage B umbrella coverage is potentially implicated in this case.

      In addition, Federal can have no duty to defend Mylan in the underlying AWP litigation under the Coverage B “Advertising Injury” coverage for the same reasons that American Motorists, Continental, and Waussau have no duty to defend under the “Advertising Injury” coverage in their respective policies. Therefore, only the “Personal Injury” coverage in Federal's Coverage B is potentially implicated with regard to Federal's duty to defend.

Footnote: 17

      With regard to its dictionary definition, “discrimination” has come to mean primarily unfair treatment based upon personal characteristics, generally immutable, such as race, age, sex, nationality, or religion. For example, the 1990 edition of Black's Law Dictionary, which appears to have been the current edition for a portion of the coverage period of the Federal policy at issue herein, defined “discrimination” as:

                      In constitutional law, the effect of a statute or established practice which confers particular privileges on a class arbitrarily selected from a large number of persons, all of whom stand in the same relation to the privileges granted and between whom and those not favored no reasonable distinction can be found. Unfair treatment or denial of normal privileges to persons because of their race, age, sex, nationality or religion. A failure to treat all persons equally where no reasonable distinction can be found between those favored and those not favored.

Black's Law Dictionary 467 (6^th ed. 1990) (emphasis added and citation omitted).
      
      The 1999 edition of the dictionary, which appears to have been the current edition for a portion of the coverage period of the subject Federal policies, had as its first definition of “discrimination,” “[t]he effect of or established practice that confers privileges on a certain
class or that denies privileges to a certain class because of race, age, sex, nationality, religion, or handicap.” Black's Law Dictionary 479 (7^th ed. 1999). This is also the first definition in the most recent edition of the dictionary except that the term “handicap” is replaced with the term “disability.” See Black's Law Dictionary 534 (9^th ed. 2009).

Footnote: 18

      Federal can have no duty to defend Mylan in the AWP litigation under its Coverage B “Advertising Injury” coverage for the same reasons that American Motorists, Continental, and Waussau have no duty to defend under their “Advertising Injury” coverage discussed above.

Footnote: 19

      Apparently, Mylan alleged below that American Motorists and Continental had coverage solely for the AWP Actions and that coverage existed solely under their “advertising injury” coverage and not for “personal injury,” “bodily injury,” or any other coverage.

Footnote: 20

      Wausau policy number 0521-00-101388 defines “Advertising Injury” to include injury arising out of “use of another's advertising idea in your 'advertisement.'” Mylan has failed to show that there are any allegations in the L&C litigation that Mylan's fair pricing campaign included the use of another's advertising idea.

Footnote: 21

      In its brief to this Court, Mylan makes two other arguments that we feel compelled to briefly address. First, Mylan states that the circuit court did not make findings of fact but simply referenced facts that it deemed pertinent to its conclusions. According to Mylan, in ignoring the fact allegations in the complaints below upon which Mylan relied, the circuit court failed to determine if these facts could potentially give rise to coverage. We find this argument to be invalid. The circuit court's 38-page order contained sufficient facts to support its legal reasoning and to provide this Court with a meaningful review.
      
      Second, Mylan posits that any dispute as to whether the factual allegations are within coverage alone compels a defense. For this proposition, Mylan cites American Cyanamid Co. v. American Home Assur. Co., 30 Cal.App.4th 969, 975, 35 Cal.Rptr.2d 920, 923 (1994) (“If the parties dispute whether the insured's alleged misconduct is potentially within the policy coverage . . . 'the duty to defend is then established[.]'”). However, this is not the law of this Court. Rather, before a duty to defend arises, the allegations in the complaint must be reasonably susceptible of an interpretation that the claim may be covered by the terms of
the insurance policy. Bruceton Bank v. U.S. Fid. and Guar. Inc., supra.