AGRAKEY SOLUTIONS, LLC, and John Reitsma, Plaintiffs-Appellants, v. MID-CONTINENT CASUALTY COMPANY, Defendant-Appellee, 539 F. App'x 821

MEMORANDUM AgraKey Solutions, LLC and John Reitsma (collectively, “AgraKey”) appeal the district court’s grant of

summary judgment to Mid-Continent Casualty Company (“Mid-Continent”) on AgraKey’s claim that Mid-Continent breached its contractual duty to defend AgraKey. We review the entry of

summary judgment de novo, applying Idaho law and, in the absence of a governing decision from the Idaho Supreme Court, “using intermediate appellate court decisions, decisions from other jurisdictions, statutes, treatises, and restatements as guidance.” Trishan Air, Inc. v. Fed. Ins. Co., 685 F.3d 422, 426-27 (9th Cir.2011). We affirm. Mid-Continent had no duty to defend AgraKey against allegations made by BioMagic, Inc. (“BioMagic”) in an underlying arbitration action, because those allegations did not “reveal[] a potential for liability that would be covered by [Agra-Key’s insurance] policy.” Idaho Cntys.

Risk Mgmt. Program Underwriters v. Northland Ins. Cos., 147 Idaho 84, 205 P.3d 1220, 1224 (2009) (quoting Hoyle v. Utica Mut. Ins. Co., 137 Idaho 367, 48 P.3d 1256, 1264 (2002)) (internal quotation marks omitted). Specifically, the arbitration action revealed no potential for liability falling within the policy’s coverage for “disparagement” because BioMagic did not allege that AgraKey made any “[o]ral, -written, or electronic publication of material that ... disparage[d] [BioMagic’s] goods, products or services,” even impliedly, as required by the policy.

The arbitration action likewise revealed no potential for liability for “the use of another’s advertising idea in your advertisement,” because AgraKey was not alleged to have used any other entity’s advertising idea in its advertisement. Perhaps more importantly, considering BioMagic’s allegations in context, it is clear that any reference to AgraKey’s advertising activities was made to expose AgraKey’s alleged unlicensed use of BioMagic’s product, not to claim damage caused by those activities themselves. See Constr. Mgmt. Sys., Inc. v.

Assurance Co. of Am., 135 Idaho 680, 28 P.3d 142, 145 (2001); see also Microtec Research, Inc. v. Nationwide Mut. Ins. Co., 40 F.3d 968, 971 (9th Cir.1994). Because BioMagic made no claims that would even potentially be covered by AgraKey’s insurance policy, the arbitration action did not trigger Mid-Continent’s duty to defend. AFFIRMED. This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. . BioMagic did not claim, for example, that AgraKey made any publication regarding the quality of BioMagic’s products, cf. Michael Taylor Designs, Inc. v.

Travelers Prop. Cas. Co. of Am., 495 Fed.Appx. 830, 831 (9th Cir.2012); Travelers Prop. Cas. Co. of Am. v. Charlotte Russe Holding, Inc., 207 Cal.App.4th 969, 972-73, 144 Cal.Rptr.3d 12 (2012), nor that AgraKey claimed exclusive ownership of a BioMagic product, cf. Burgett, Inc. v. Am. Zurich Ins. Co., 830 F.Supp.2d 953, 963-64 (E.D.Cal.2011); E.piphany, Inc. v. St. Paul Fire & Marine Ins. Co., 590 F.Supp.2d 1244, 1253 (N.D.Cal.2008); Liberty Mut. Ins. Co. v. OSI Indus., Inc., 831 N.E.2d 192, 199 (Ind.Ct.App.2005).