'Looney' Copyright Claim Covered: Fifth Circuit Holds Breach of Contract Exclusion Doesn't Bar Liability Insurance Coverage


When Looney Ricks Kiss Architects, Inc. (Looney) created an architectural design known as the Island Park Apartments in 1996, it probably wasn't thinking of insurance coverage law. But, it appears likely that Looney's attorneys brushed up on the topic in 2007 before filing suit against Steve Bryan and his affiliated building companies (Bryan) for infringement of Looney's copyrighted architectural work. And, in 2012, it appears to have paid off.

In Looney Ricks Kiss Architects, Inc. v. State Farm Fire & Casualty Co., __F.3d__, 2012 WL 1109058 (5th Cir Apr. 4, 2012), the Fifth Circuit Court of Appeals concluded that the Louisiana Supreme Court would apply a "but for" test and adopt Looney's position that an exclusion for "personal and advertising injury . . . arising out of a breach of contract" in Bryan's liability insurance policies would not bar coverage for Looney's copyright infringement claim, despite contractual language barring the same infringing use.

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