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`UNITED STATES DISTRICT COURT
`WESTERN DISTRICT OF LOUISIANA
`SHREVEPORT DIVISION
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`UTOPIA ENTERTAINMENT, ET AL.
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`CIVIL ACTION NO. 03-1355
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`VERSUS
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`JUDGE S. MAURICE HICKS, JR.
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`CLAIBORNE PARISH, ET AL.
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`MAGISTRATE JUDGE HAYES
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`MEMORANDUM ORDER
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`Before the Court is defendant Endurance Specialty Insurance Ltd.’s (“Endurance”)
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`Motion for Summary Judgment. (Record Document 109). The motion for summary
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`judgment was referred to the Magistrate Judge for Report and Recommendation.
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`This Court has thoroughly reviewed the Report and Recommendation of the
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`Magistrate Judge (Record Document 219), the objections and responses of the parties
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`(Record Documents 245, 250, 251, & 269), applicable case law, and pertinent policy
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`language in this case. The Court finds that the Magistrate Judge’s analysis pertaining to
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`personal jurisdiction was correct. Based on an independent review of the evidence before
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`this Court, exercising personal jurisdiction over Endurance in this circumstance would not
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`violate the Due Process Clause of the Fourteenth Amendment. Likewise, the Magistrate
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`Judge’s findings as to coverage of specific defendants, Claiborne Parish and Sheriff
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`Kenneth Volentine, were correct, insomuch as the record evidence indicates that Claiborne
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`Parish and Sheriff Volentine and his employees are insureds under the excess policies
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`issued by Endurance. Hence, the Magistrate Judge was correct in recommending that
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`summary judgment be denied on the aforementioned grounds.1
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`1Endurance also moved for summary judgment on the ground that Utopia is not
`entitled to damages because the alleged infringement began before the effective dates of
`the copyright registrations. In the Report and Recommendation, the Magistrate Judge
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`Case 5:03-cv-01355-SMH-KLH Document 295 Filed 03/23/06 Page 2 of 6 PageID #: 1984
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`The Court now turns to Endurance’s contention that summary judgment is proper
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`as to its argument that none of the excess insurance policies it issued to the Louisiana
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`Sheriffs’ Law Enforcement Program Fund (“LSLEP”) provide coverage for copyright
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`infringement because copyright infringement does not qualify as a “personal injury,’ as
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`defined in the LSLEP Fund Agreement. The LSLEP Fund Agreement, and the excess
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`policies issued by Endurance by reference, define personal injury as follows:
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`“Personal injury” means false arrest, false imprisonment, wrongful detention,
`erroneous service of process, malicious prosecution, libel, slander,
`defamation of character, wrongful eviction, or deprivation of right (as further
`defined herein). “Deprivation of rights” means acts committed under color
`of any statue, ordinance, regulation, custom or usage of any state or political
`subdivision which subjects or causes to be subjected any person to the
`deprivation of any rights, privileges or immunities secured by the constitution
`and laws of the United States of America (including but not by way of
`limitation 42 U.S.C. 1981 et seq.) or the State of Louisiana, whether a claim
`is made for monetary damages or not.
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`Exhibit A(2), p. 1 (emphasis added). Based on the aforementioned policy language, the
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`issues before this Court are whether (1) the alleged copyright infringement was committed
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`“under color of any statute, ordinance, regulation, custom or usage of any state or political
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`subdivision,” and (2) whether the alleged copyright infringement constitutes a “deprivation”
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`of any right.
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`As to the first issue, the Magistrate Judge was correct in finding that the allegations
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`in Utopia’s complaint, asserting that multiple acts of infringement by Claiborne Parish
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`Sheriff Kenneth Volentine and his employees while acting under color of state law, created
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`recommended that this Court’s December 1, 2005 ruling on LaSalle’s motion for summary
`judgment be amended to clarify that the ruling impliedly applied to Endurance’s motion for
`summary judgment. This Court’s December 1, 2005 ruling was so amended on December
`22, 2005. (Record Documents 235 & 237).
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`Page 2 of 6
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`Case 5:03-cv-01355-SMH-KLH Document 295 Filed 03/23/06 Page 3 of 6 PageID #: 1985
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`genuine issues of fact regarding the manner and degree to which Sheriff Volentine and his
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`employees used their authority under the law. As to the second issue, this Court cannot
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`concur with the findings of the Magistrate Judge and, accordingly, the Court will grant
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`summary judgment in favor of Endurance, as the alleged copyright infringement in this
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`case did not constitute a “deprivation” of any right so as to qualify as a “personal injury.”
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`Endurance argued that its policy language was clearly intended to cover Title 42,
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`United States Code, Section 1983 claims and Fourteenth Amendment claims. Endurance
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`also argued that Utopia’s rights under the Copyright Act - the right to reproduce, distribute,
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`and perform the copyrighted works - were not deprived. Instead, Endurance contended
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`that the alleged infringement merely violated Utopia’s right to exclusive use of its
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`intellectual property and therefore was not a personal injury under the policy language.
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`The Magistrate Judge disagreed and found that there is no distinction between
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`“deprivation” and “violation.” Further, the Magistrate Judge reasoned that even if “personal
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`injury” was limited to a literal deprivation and extinguishment of a right, the alleged
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`copyright infringement would qualify, as Utopia was deprived of the exclusivity of its rights
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`under the Copyright Act and therefore suffered a “personal injury.” Specifically, the
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`Magistrate Judge stated:
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`Given the broad language of the Endurance policy, Endurance’s distinction
`between a violation and a deprivation of a right fails to exclude copyright
`infringement from the personal injuries that the LSLEP Fund Agreement and
`excess policies cover. Again, summary judgment on this basis should be
`DENIED.
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`Record Document 219 at 15.
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`This Court is called to interpret “personal injury” and “deprivation of rights” as
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`Page 3 of 6
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`Case 5:03-cv-01355-SMH-KLH Document 295 Filed 03/23/06 Page 4 of 6 PageID #: 1986
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`contemplated in the LSLEP Fund Agreement, and the excess policies by reference.2 And,
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`in contrast to the findings of the Magistrate Judge, this Court finds that the common intent
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`of the parties to the Endurance excess insurance policies was to insure against the typical
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`deprivation of civil rights personal injury claims that are routinely asserted against sheriffs
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`and their employees, not claims for copyright infringement. “The judicial responsibility in
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`the interpretation of an insurance policy is the determination of the common intent of the
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`parties.” 15 H. Alston Johnson, III & William Shelby McKenzie, Louisiana Civil Law
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`Treatise, Insurance Law and Practice § 4 (2d ed. 1996). Simply put, if there is ambiguity
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`or doubt, the court must attempt to determine the common intent of the parties,
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`considering, inter alia, the language of the contract in accordance with its general and
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`popular use. See id. (citations omitted); La. C.C. Art. 2047.
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`This is simply not the appropriate case in which to classify copyright infringement
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`as a personal injury, insomuch as it would appear to be the first such classification in the
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`nation. Here, the parties to the Endurance excess insurance policies were sheriffs and an
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`interlocal risk management agency run by the sheriff’s association. Due to the identity of
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`these parties, this Court finds that the use of the language “deprivation of rights” refers to
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`a civil rights action. There should be no dispute that the general and popular use of the
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`phrase “deprivation of rights” in the law enforcement community refers to a civil rights
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`action. This is the only reasonable interpretation of the coverage granted by this provision
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`in light of the identity of the parties and the policy as a whole. To expand the general and
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`2The parties involved in this case do not appear to dispute that the insurance
`policies at issue in this case are to be interpreted under Louisiana state law, as all parties
`have cited Louisiana Civil Code articles and Louisiana case law in their attempts to argue
`the proper interpretation of the various insurance policies at issue in this case.
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`Page 4 of 6
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`Case 5:03-cv-01355-SMH-KLH Document 295 Filed 03/23/06 Page 5 of 6 PageID #: 1987
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`popular use of the words “deprivation of rights” would be a perversion of the excess
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`insurance policies. Simply put, this Court does not believe that the parties intended for the
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`excess insurance policies to apply to intellectual property claims for damages for copyright
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`infringement.
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`In addition to the aforementioned analysis regarding interpretation of the excess
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`insurance policies, this Court finds the argument Endurance makes pertaining to the
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`unique nature of property rights granted to a copyright holder in its objections to the Report
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`and Recommendation to be somewhat persuasive. See Record Document 245 at 8-10.
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`In the Report and Recommendation, the Magistrate Judge stated:
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`At least in the context of § 1983, there is no distinction between “deprivation”
`and “violation,” and there is nothing to suggest, in this case, that any
`meaningful distinction exists in the definition of “personal injury.”
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`Record Document 219 at 14. However, Endurance points to a United States Supreme
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`Court case, wherein the Court recognized that an infringer of a copyright does not deprive
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`the copyright holder of its rights. See Record Document 245 at 9-10. In Dowling v. United
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`States, 473 U.S. 207, 105 S.Ct. 3127 (U.S. 1985), the Court stated, in the context of the
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`Copyright Act, that “the infringer invades a statutorily defined province guaranteed to the
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`copyright holder alone. But he does not assume physical control over the copyright; nor
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`does he wholly deprive its owner of its use.” Dowling, 473 U.S. at 217, 105 S.Ct. at 3133.
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`Based on this distinction, the Court finds further support for its conclusion that a copyright
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`infringement is not a deprivation of a personal right such that Utopia sustained a personal
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`injury in this case.
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`In conclusion, as to defendant Endurance Specialty Insurance Ltd.’s motion for
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`summary judgment on the grounds that it provides excess insurance only to the Louisiana
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`Page 5 of 6
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`Case 5:03-cv-01355-SMH-KLH Document 295 Filed 03/23/06 Page 6 of 6 PageID #: 1988
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`Sheriffs’ Law Enforcement Program Fund, not to Claiborne Parish or Sheriff Kenneth
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`Volentine, and that personal jurisdiction does not exist over it, the Report and
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`Recommendation of the Magistrate Judge having been considered, together with the
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`written objections thereto filed with this Court, and, after a de novo review of the record,
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`finding that the Magistrate Judge’s Report and Recommendation is correct and that
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`judgment as recommended therein is warranted.
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`As to defendant Endurance Specialty Insurance Ltd.’s motion for summary judgment
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`on the grounds that the excess insurance policies issued to the Louisiana Sheriffs’ Law
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`Enforcement Program Fund do not provide coverage for damages resulting from copyright
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`infringement, the Report and Recommendation of the Magistrate Judge having been
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`considered, together with the written objections thereto filed with this Court, and, after a de
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`novo review of the record, this Court declines to follow the Report and Recommendation
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`of the Magistrate Judge. Instead, the Court finds that summary judgment in favor of
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`Endurance Specialty Insurance Ltd. is appropriate, as the excess insurance policies issued
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`to the Louisiana Sheriffs’ Law Enforcement Program Fund by Endurance Specialty
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`Insurance Ltd. do not provide coverage for damages resulting from copyright infringement.
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`Accordingly;
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`IT IS ORDERED that the Motion for Summary Judgment (Record Document 109)
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`filed by defendant, Endurance Specialty Insurance Ltd., be and is hereby GRANTED.
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`THUS DONE AND SIGNED, in Shreveport, Louisiana, this 23rd day of March, 2006.
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