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NAILAH K. BYRD
CUYAHOGA COUNTY CLERK OF COURTS
1200 Ontario Street
Cleveland, Ohio 44113
Court of Common Pleas
ANSWER OF...
April 15, 2024 11:56
By: DAVID J. FAGNILLI0032930
Confirmation Nbr. 3140530
GOSSI, INC. CV 24 992583
vs.
Judge: PETER J. CORRIGAN
UTICA NATIONAL INSURANCE GROUP
Pages Filed: 8
Electronically Filed 04/15/2024 11:56 / ANSWERS / CV 24 992583 / Confirmation Nbr. 3140530 / BATCH
IN THE COURT OF COMMON PLEAS
CUYAHOGA COUNTY, OHIO
GOSSI, INC., ) CASE NO. CV-24-992583
)
Plaintiff, ) JUDGE PETER J. CORRIGAN
)
v. ) ANSWER
)
UTICA NATIONAL INSURANCE ) (Jury Demand Endorsed Hereon)
GROUP, )
)
Defendant. )
)
Defendant Republic Franklin Insurance Co., improperly denominated as Utica National
Insurance Group, by and through undersigned counsel, for its answer to Plaintiff’s Complaint,
states:
1. Paragraph 1 is admitted.
2. For its answer to paragraph 2, it states that Utica National Insurance Group is a
trade name used by a group of affiliated insurance companies, which include Republic Franklin
Insurance Co. (“Republic Franklin”) and that it uses a business address of 180 Genesee St, New
Hartford, New York 13413, but denies the remaining allegations contained in paragraph 2 not
herein specifically admitted to be true.
3. It is without sufficient knowledge or information to form a belief as to the truth of
the averments contained in paragraph 3.
4. It is without sufficient knowledge or information to form a belief as to the truth of
the averments contained in paragraph 4.
5. It is without sufficient knowledge or information to form a belief as to the truth of
the averments contained in paragraph 5.
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6. For its answer to paragraph 6, it admits that Republic Franklin is part of a group
of insurance companies, which utilize the trade name Utica National Insurance Group (“Utica”)
and that Republic Franklin issued a commercial package policy, no. CPP 4802117, effective
11/18/2021 to 11/18/2022 with limits of $1,000,000 per occurrence for bodily injury/property
damage and $1,000,000 for personal advertising injury, and that a copy of the policy is attached
to the Complaint as Exhibit A, but denies the remaining allegations contained in paragraph 6 not
herein specifically admitted to be true, and further states that the policy is subject to all of its
terms, conditions, definitions, limitations, and exclusions, and deny any attempt to paraphrase or
summarize the available coverage.
7. Paragraph 7 is admitted.
8. Paragraph 8 is admitted.
9. Paragraph 9 is admitted.
10.Paragraph 10 is admitted.
11. For its answer to paragraph 11, it admits that Gossi gave notice of the Hydrojug
lawsuit and submitted a claim on or about July 19, 2023 to Republic Franklin, but denies the
remaining allegations contained in paragraph 11 not herein specifically admitted to be true.
12. For its answer to paragraph 12, it admits that Republic Franklin sent a letter dated
August 11, 2022 to Plaintiff and its counsel with its analysis of the complaint and coverage, and
a disclaimer of coverage for the lawsuit, but denies the remaining allegations contained in
paragraph 12 not herein specifically admitted to be true.
13. For their answer to paragraph 13, it admits that on November 29, 2023, Plaintiff’s
counsel submitted a letter to Republic Franklin and its complex liability claims specialist
Maureen Mulroy, citing case law and requesting a reconsideration of Republic Franklin’s
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position, but denies the remaining allegations contained in paragraph 13 not herein specifically
admitted to be true.
14. For its answer to paragraph 14, it admits that Republic Franklin through its claims
representative Maureen Mulroy, affirmed their decision on the same date that the request for
reconsideration was received, but denies the remaining allegations in paragraph 14.
15. For its answer to paragraph 15, is incorporates its answers to paragraphs 1 through
14 as if fully rewritten herein.
16. For its answer to paragraph 16, it admits that paragraph 16 contains a quotation
from a portion of the policy; with certain sections emphasized that were not emphasized in the
original; and certain portions deleted; which are not deleted in the original; and further answering
denies the remaining allegations contained in paragraph 16 not herein specifically admitted to be
true.
17. For its answer to paragraph 17, it admits that the August 11, 2022, letter
acknowledges that the policy provides ‘personal and advertising injury” coverage subject to its
definitions, terms, and exclusions, but denies Plaintiff’s attempt to paraphrase or summarize a 10
page letter in one sentence, and further answering denies the remaining allegations contained in
paragraph 17 not herein specifically admitted to be true.
18. For its answer to paragraph 18, it states that the Hydrojug Complaint is a written
document which speaks for itself, and denies any attempt by Plaintiff to paraphrase or
summarize the Complaint in one sentence.
19. For its answer to paragraph 19, it admits that the Hydrojug Complaint is a written
document, which speaks for itself, and denies any attempt by Plaintiff to paraphrase or
summarize the Complaint in one sentence.
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20. Paragraph 20 is denied.
21. Paragraph 21 is denied.
22. For its answer to paragraph 22, it incorporates herein by reference its answers to
paragraphs 1 through 21 as if fully rewritten herein.
23. For its answer to paragraph 23, it admits that the Republic Franklin policy
provides coverage for personal and advertising injury subject to the terms, conditions, definitions
and exclusions contained in the policy, but denies Plaintiff’s attempt to paraphrase or summarize
the policy or coverage in one sentence.
24. Paragraph 24 is denied for want of knowledge.
25. Paragraph 25 is denied.
26. Paragraph 26 is denied.
27. Paragraph 27 is denied.
28. Paragraph 28 is denied.
29. Paragraph 29 is denied.
30. Paragraph 30 is denied.
FIRST AFFIRMATIVE DEFENSE
31. This answering Defendant affirmatively raises the defense of misnomer.
SECOND AFFIRMATIVE DEFENSE
32. This answering Defendant affirmatively raises the defense of insufficiency of
process.
THIRD AFFIRMATIVE DEFENSE
33. This answering Defendant affirmatively raises the defense of insufficiency of
service of process.
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FOURTH AFFIRMATIVE DEFENSE
34. This answering Defendant affirmatively states that the Complaint fails in whole or
in part to state a claim upon which relief can be granted.
FIFTH AFFIRMATIVE DEFENSE
35. The Defendant affirmatively states that the Plaintiff’s claims are barred by the
exclusion of Knowing Violation of Rights of Another:
a. Knowing Violation Of Rights Of Another
“Personal and advertising injury” caused by or at the direction of
the insured with the knowledge that the act would violate the rights
of another and would inflict “personal and advertising injury”.
***
This insurance does not apply to “personal and advertising injury”
that was caused by or at the direction of the insured with the
knowledge that the act would violate the rights of another and
would inflict “personal and advertising injury”. Since this matter
involves “personal and advertising injury” such as that described,
there is no insurance coverage for that injury under Coverage B
Personal and Advertising Injury Liability.
SIXTH AFFIRMATIVE DEFENSE
36. The Defendant affirmatively states that the Plaintiff’s claims are barred by the
exclusion of Criminal Acts:
d. Criminal Acts
“Personal and advertising injury” arising out of a criminal act
committed by or at the direction of the insured.
***
This insurance does not apply to “personal and advertising injury”
arising out of a criminal act committed by or at the direction of the
insured. To the extent this matter involves “personal and
advertising injury” such as that described, there is no insurance
coverage for that injury under Coverage B Personal and
Advertising Injury Liability.
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SEVENTH AFFIRMATIVE DEFENSE
37. The Defendant affirmatively states that the Plaintiff’s claims are barred by the
exclusion of Quality Or Performance Of Goods – Failure To Conform To Statements:
g. Quality Or Performance Of Goods – Failure To Conform to
Statements
“Personal and advertising injury” arising out of the failure of
goods, products or services to conform with any statement of
quality or performance made in your “advertisement”.
***
This insurance does not apply to “personal and advertising injury”
arising out of the infringement of copyright, patent, trademark,
trade secret or other intellectual property rights. However, this
exclusion does not apply to infringement, in your “advertisement”,
of any copyright, trade dress or slogan. Since this matter involves
“personal and advertising injury” such as that described, there is no
insurance coverage for that injury except to the extent the
infringement of copyright, trade dress or slogan occurred in your
“advertisement” under Coverage B Personal and Advertising
Injury Liability.
EIGHTH AFFIRMATIVE DEFENSE
38. The Defendant affirmatively states that the Plaintiff’s claims are barred by the
exclusion of Infringement Of Copyright, Patent, Trademark Or Trade Secret:
i. Infringement Of Copyright, Patent, Trademark Or Trade Secret
“Personal and advertising injury” arising out of the infringement of
copyright, patent, trademark, trade secret or other intellectual
property rights. Under this exclusion, such other intellectual
property rights do not include the use of another’s advertising idea
in our “advertisement”. However, this exclusion does not apply to
infringement, in your “advertisement”, of copyright, trade dress or
slogan.
***
This insurance does not apply to “personal and advertising injury”
arising out of the unauthorized use of another’s name or product in
your e-mail address, domain name or metatag, or any other similar
tactics to mislead another’s potential customers. Since this matter
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involves “personal and advertising injury” such as that described,
there is no insurance coverage for that injury under Coverage B
Personal and Advertising Injury Liability.
NINTH AFFIRMATIVE DEFENSE
39. This answering Defendant incorporates all of the terms, conditions, definitions
and exclusions contained in the policy, as if fully rewritten herein.
TENTH AFFIRMATIVE DEFENSE
40. This answering Defendant affirmatively reserves the right to raise any additional
defenses that may become known to it through further investigation, research or discovery.
WHEREFORE, having fully answered the Complaint, Defendant Republic Franklin
Insurance Co., improperly denominated in the Complaint as Utica National Insurance Group,
prays that the Complaint be dismissed, and that it be allowed to go hence without further day or
cost.
Respectfully submitted,
MARSHALL DENNEHEY P.C.
By:
DAVID J. FAGNILLI (0032930)
127 Public Square, Suite 3510
Cleveland, Ohio 44114
Phone: (216) 912-3792
Fax: (216) 344-9006
Email: djfagnilli@mdwcg.com
Counsel for Defendant
JURY DEMAND
A trial by jury is hereby demanded on all issues so triable.
MARSHALL DENNEHEY P.C.
By:
DAVID J. FA ILLI (0032930)
Counsel for Defendant
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CERTIFICATE OF SERVICE
I hereby certify that on April 15, 2024, a copy of the foregoing was filed electronically.
Notice of this filing will be sent to all parties by operation of the Court’s electronic filing system.
MARSHALL DENNEHEY P.C.
By:
DAVID J. FA ILLI (0032930)
Counsel for Defendant
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NAILAH K. BYRD CUYAHOGA COUNTY CLERK OF COURTS 1200 Ontario Street Cleveland, Ohio 44113 Court of Common Pleas ANSWER OF... April 15, 2024 11:56 By: DAVID J. FAGNILLI0032930 Confirmation Nbr. 3140530 GOSSI, INC. CV 24 992583 vs. Judge: PETER J. CORRIGAN UTICA NATIONAL INSURANCE GROUP Pages Filed: 8 Electronically Filed 04/15/2024 11:56 / ANSWERS / CV 24 992583 / Confirmation Nbr. 3140530 / BATCH IN THE COURT OF COMMON PLEAS CUYAHOGA COUNTY, OHIO GOSSI, INC., ) CASE NO. CV-24-992583 ) Plaintiff, ) JUDGE PETER J. CORRIGAN ) v. ) ANSWER ) UTICA NATIONAL INSURANCE ) (Jury Demand Endorsed Hereon) GROUP, ) ) Defendant. ) ) Defendant Republic Franklin Insurance Co., improperly denominated as Utica National Insurance Group, by and through undersigned counsel, for its answer to Plaintiff’s Complaint, states: 1. Paragraph 1 is admitted. 2. For its answer to paragraph 2, it states that Utica National Insurance Group is a trade name used by a group of affiliated insurance companies, which include Republic Franklin Insurance Co. (“Republic Franklin”) and that it uses a business address of 180 Genesee St, New Hartford, New York 13413, but denies the remaining allegations contained in paragraph 2 not herein specifically admitted to be true. 3. It is without sufficient knowledge or information to form a belief as to the truth of the averments contained in paragraph 3. 4. It is without sufficient knowledge or information to form a belief as to the truth of the averments contained in paragraph 4. 5. It is without sufficient knowledge or information to form a belief as to the truth of the averments contained in paragraph 5. Electronically Filed 04/15/2024 11:56 / ANSWERS / CV 24 992583 / Confirmation Nbr. 3140530 / BATCH 6. For its answer to paragraph 6, it admits that Republic Franklin is part of a group of insurance companies, which utilize the trade name Utica National Insurance Group (“Utica”) and that Republic Franklin issued a commercial package policy, no. CPP 4802117, effective 11/18/2021 to 11/18/2022 with limits of $1,000,000 per occurrence for bodily injury/property damage and $1,000,000 for personal advertising injury, and that a copy of the policy is attached to the Complaint as Exhibit A, but denies the remaining allegations contained in paragraph 6 not herein specifically admitted to be true, and further states that the policy is subject to all of its terms, conditions, definitions, limitations, and exclusions, and deny any attempt to paraphrase or summarize the available coverage. 7. Paragraph 7 is admitted. 8. Paragraph 8 is admitted. 9. Paragraph 9 is admitted. 10.Paragraph 10 is admitted. 11. For its answer to paragraph 11, it admits that Gossi gave notice of the Hydrojug lawsuit and submitted a claim on or about July 19, 2023 to Republic Franklin, but denies the remaining allegations contained in paragraph 11 not herein specifically admitted to be true. 12. For its answer to paragraph 12, it admits that Republic Franklin sent a letter dated August 11, 2022 to Plaintiff and its counsel with its analysis of the complaint and coverage, and a disclaimer of coverage for the lawsuit, but denies the remaining allegations contained in paragraph 12 not herein specifically admitted to be true. 13. For their answer to paragraph 13, it admits that on November 29, 2023, Plaintiff’s counsel submitted a letter to Republic Franklin and its complex liability claims specialist Maureen Mulroy, citing case law and requesting a reconsideration of Republic Franklin’s Electronically Filed 04/15/2024 11:56 / ANSWERS / CV 24 992583 / Confirmation Nbr. 3140530 / BATCH 2 position, but denies the remaining allegations contained in paragraph 13 not herein specifically admitted to be true. 14. For its answer to paragraph 14, it admits that Republic Franklin through its claims representative Maureen Mulroy, affirmed their decision on the same date that the request for reconsideration was received, but denies the remaining allegations in paragraph 14. 15. For its answer to paragraph 15, is incorporates its answers to paragraphs 1 through 14 as if fully rewritten herein. 16. For its answer to paragraph 16, it admits that paragraph 16 contains a quotation from a portion of the policy; with certain sections emphasized that were not emphasized in the original; and certain portions deleted; which are not deleted in the original; and further answering denies the remaining allegations contained in paragraph 16 not herein specifically admitted to be true. 17. For its answer to paragraph 17, it admits that the August 11, 2022, letter acknowledges that the policy provides ‘personal and advertising injury” coverage subject to its definitions, terms, and exclusions, but denies Plaintiff’s attempt to paraphrase or summarize a 10 page letter in one sentence, and further answering denies the remaining allegations contained in paragraph 17 not herein specifically admitted to be true. 18. For its answer to paragraph 18, it states that the Hydrojug Complaint is a written document which speaks for itself, and denies any attempt by Plaintiff to paraphrase or summarize the Complaint in one sentence. 19. For its answer to paragraph 19, it admits that the Hydrojug Complaint is a written document, which speaks for itself, and denies any attempt by Plaintiff to paraphrase or summarize the Complaint in one sentence. Electronically Filed 04/15/2024 11:56 / ANSWERS / CV 24 992583 / Confirmation Nbr. 3140530 / BATCH 3 20. Paragraph 20 is denied. 21. Paragraph 21 is denied. 22. For its answer to paragraph 22, it incorporates herein by reference its answers to paragraphs 1 through 21 as if fully rewritten herein. 23. For its answer to paragraph 23, it admits that the Republic Franklin policy provides coverage for personal and advertising injury subject to the terms, conditions, definitions and exclusions contained in the policy, but denies Plaintiff’s attempt to paraphrase or summarize the policy or coverage in one sentence. 24. Paragraph 24 is denied for want of knowledge. 25. Paragraph 25 is denied. 26. Paragraph 26 is denied. 27. Paragraph 27 is denied. 28. Paragraph 28 is denied. 29. Paragraph 29 is denied. 30. Paragraph 30 is denied. FIRST AFFIRMATIVE DEFENSE 31. This answering Defendant affirmatively raises the defense of misnomer. SECOND AFFIRMATIVE DEFENSE 32. This answering Defendant affirmatively raises the defense of insufficiency of process. THIRD AFFIRMATIVE DEFENSE 33. This answering Defendant affirmatively raises the defense of insufficiency of service of process. Electronically Filed 04/15/2024 11:56 / ANSWERS / CV 24 992583 / Confirmation Nbr. 3140530 / BATCH 4 FOURTH AFFIRMATIVE DEFENSE 34. This answering Defendant affirmatively states that the Complaint fails in whole or in part to state a claim upon which relief can be granted. FIFTH AFFIRMATIVE DEFENSE 35. The Defendant affirmatively states that the Plaintiff’s claims are barred by the exclusion of Knowing Violation of Rights of Another: a. Knowing Violation Of Rights Of Another “Personal and advertising injury” caused by or at the direction of the insured with the knowledge that the act would violate the rights of another and would inflict “personal and advertising injury”. *** This insurance does not apply to “personal and advertising injury” that was caused by or at the direction of the insured with the knowledge that the act would violate the rights of another and would inflict “personal and advertising injury”. Since this matter involves “personal and advertising injury” such as that described, there is no insurance coverage for that injury under Coverage B Personal and Advertising Injury Liability. SIXTH AFFIRMATIVE DEFENSE 36. The Defendant affirmatively states that the Plaintiff’s claims are barred by the exclusion of Criminal Acts: d. Criminal Acts “Personal and advertising injury” arising out of a criminal act committed by or at the direction of the insured. *** This insurance does not apply to “personal and advertising injury” arising out of a criminal act committed by or at the direction of the insured. To the extent this matter involves “personal and advertising injury” such as that described, there is no insurance coverage for that injury under Coverage B Personal and Advertising Injury Liability. Electronically Filed 04/15/2024 11:56 / ANSWERS / CV 24 992583 / Confirmation Nbr. 3140530 / BATCH 5 SEVENTH AFFIRMATIVE DEFENSE 37. The Defendant affirmatively states that the Plaintiff’s claims are barred by the exclusion of Quality Or Performance Of Goods – Failure To Conform To Statements: g. Quality Or Performance Of Goods – Failure To Conform to Statements “Personal and advertising injury” arising out of the failure of goods, products or services to conform with any statement of quality or performance made in your “advertisement”. *** This insurance does not apply to “personal and advertising injury” arising out of the infringement of copyright, patent, trademark, trade secret or other intellectual property rights. However, this exclusion does not apply to infringement, in your “advertisement”, of any copyright, trade dress or slogan. Since this matter involves “personal and advertising injury” such as that described, there is no insurance coverage for that injury except to the extent the infringement of copyright, trade dress or slogan occurred in your “advertisement” under Coverage B Personal and Advertising Injury Liability. EIGHTH AFFIRMATIVE DEFENSE 38. The Defendant affirmatively states that the Plaintiff’s claims are barred by the exclusion of Infringement Of Copyright, Patent, Trademark Or Trade Secret: i. Infringement Of Copyright, Patent, Trademark Or Trade Secret “Personal and advertising injury” arising out of the infringement of copyright, patent, trademark, trade secret or other intellectual property rights. Under this exclusion, such other intellectual property rights do not include the use of another’s advertising idea in our “advertisement”. However, this exclusion does not apply to infringement, in your “advertisement”, of copyright, trade dress or slogan. *** This insurance does not apply to “personal and advertising injury” arising out of the unauthorized use of another’s name or product in your e-mail address, domain name or metatag, or any other similar tactics to mislead another’s potential customers. Since this matter Electronically Filed 04/15/2024 11:56 / ANSWERS / CV 24 992583 / Confirmation Nbr. 3140530 / BATCH 6 involves “personal and advertising injury” such as that described, there is no insurance coverage for that injury under Coverage B Personal and Advertising Injury Liability. NINTH AFFIRMATIVE DEFENSE 39. This answering Defendant incorporates all of the terms, conditions, definitions and exclusions contained in the policy, as if fully rewritten herein. TENTH AFFIRMATIVE DEFENSE 40. This answering Defendant affirmatively reserves the right to raise any additional defenses that may become known to it through further investigation, research or discovery. WHEREFORE, having fully answered the Complaint, Defendant Republic Franklin Insurance Co., improperly denominated in the Complaint as Utica National Insurance Group, prays that the Complaint be dismissed, and that it be allowed to go hence without further day or cost. Respectfully submitted, MARSHALL DENNEHEY P.C. By: DAVID J. FAGNILLI (0032930) 127 Public Square, Suite 3510 Cleveland, Ohio 44114 Phone: (216) 912-3792 Fax: (216) 344-9006 Email: djfagnilli@mdwcg.com Counsel for Defendant JURY DEMAND A trial by jury is hereby demanded on all issues so triable. MARSHALL DENNEHEY P.C. By: DAVID J. FA ILLI (0032930) Counsel for Defendant Electronically Filed 04/15/2024 11:56 / ANSWERS / CV 24 992583 / Confirmation Nbr. 3140530 / BATCH 7 CERTIFICATE OF SERVICE I hereby certify that on April 15, 2024, a copy of the foregoing was filed electronically. Notice of this filing will be sent to all parties by operation of the Court’s electronic filing system. MARSHALL DENNEHEY P.C. By: DAVID J. FA ILLI (0032930) Counsel for Defendant Electronically Filed 04/15/2024 11:56 / ANSWERS / CV 24 992583 / Confirmation Nbr. 3140530 / BATCH 8