DocketNumber: Case No. 14–CV–04466–EJD
Citation Numbers: 295 F. Supp. 3d 1071
Judges: Davila
Filed Date: 1/9/2018
Status: Precedential
Modified Date: 7/25/2022
Plaintiff Western World Insurance Company ("Western World") and Defendant Nonprofits Insurance Alliance of California ("NIAC") both issued insurance policies to Narconon International ("Narconon"). In this action, Western World seeks a judicial declaration that NIAC owes a duty to defend Narconon in two underlying lawsuits. Western World also requests reimbursement of an equitable share of the costs that it has incurred in defending Narconon. For its part, NIAC seeks a judicial declaration that it has no duty to defend or indemnify.
Both parties have moved for summary judgment on NIAC's duty to defend. Western World's motion will be granted in part and denied in part, and NIAC's motion will be granted in part and denied in part.
I. BACKGROUND
This is an insurance declaratory judgment and equitable contribution action involving insurance policies issued to Narconon. The following facts are not in dispute.
Narconon is an organization that promotes treatment for substance abuse and addiction. Stargardter Decl. ¶ 8, Dkt. No. 35-2. Specifically, Narconon formulates and oversees a Scientology-based treatment program, which is implemented throughout the United States by local state affiliates. Id. This case concerns two of those affiliates-Narconon of Georgia and Narconon of Oklahoma-that run individual drug treatment centers in Georgia and Oklahoma, respectively. Pursuant *1075to a set of License Agreements, Narconon provides materials for implementing the program and monitors operation of the centers; in return, Narconon receives ten percent of each center's revenue. Id. ¶¶ 9, 11.
Relevant here, Narconon is insured under three insurance policies, two issued by Western World and one issued by NIAC. Western World's two policies were issued to Narconon of Georgia and Narconon of Oklahoma in 2007, and both list Narconon as an additional insured. Evans Decl., Ex. A at 84, Dkt. No. 30-1; Evans Decl., Ex. B at 25, Dkt. No. 30-2. The third policy-issued by NIAC to Narconon for an overlapping time period-is the one at issue in the instant case. Evans Decl., Ex. C ("NIAC Policy") at 8, Dkt. No. 30-3. NIAC's policy has three separate coverage forms: (1) Commercial General Liability Coverage Form, (2) Liquor Liability Coverage Form, and (3) Improper Sexual Conduct Coverage Form. Id. at 9, 12-13. The policy also includes an exclusion to the Commercial General Liability Coverage Form for bodily injury that was "due to the rendering of or failure to render any professional service." Id. at 56. The question presented in this case is whether Narconon has the duty to defend two lawsuits under its coverage forms.
The first lawsuit ("the Desmond action") was brought on behalf of Patrick Desmond, who was a patient at Narconon of Georgia. Evans Decl., Ex. H ¶ 27, Dkt. No. 31-4. On the evening of June 10, 2008, after consuming alcohol provided by Narconon staff at a staff member's apartment, Mr. Desmond left the premises with two former patients to purchase heroin and died early the next morning from a heroin overdose. Id. ¶¶ 30-34. Mr. Desmond's family sued Narconon of Georgia and Narconon in May 2010, asserting claims for negligence, negligence per se, fraud, civil conspiracy, and punitive damages. Id. ¶¶ 35-58. Narconon tendered the Desmond action to NIAC, but NIAC twice denied coverage, asserting that there was no "occurrence" triggering policy coverage and that the "professional service" exclusion applied. Evans Decl., Ex. O, Dkt. No. 32-7; Evans Decl., Ex. Q, Dkt. No. 33-1. In March 2012, Mr. Desmond's family amended the complaint and added civil RICO claims against Narconon of Georgia and Narconon. Evans Decl., Ex. I ¶¶ 167-76, Dkt. No. 32-1. Both Narconon and Western World tendered the Desmond action to NIAC, but NIAC declined to defend for the same reasons it had stated with regard to the original complaint. Evans Decl., Ex. R, Dkt. No. 33-2; Evans Decl., Ex. S, Dkt. No. 33-3; Evans Decl., Ex. T, Dkt. No. 33-4. The Desmond action proceeded past summary judgment, and the parties settled in February 2013. Evans Decl. ¶¶ 62-67.
The second lawsuit ("the Landmeier action") was brought on behalf of Heather Landmeier, who was a patient at Narconon of Oklahoma. Evans Decl., Ex. M ¶ 15, Dkt. No. 32-5. The action alleges that, from late August 2007 through early March 2008, employees provided drugs and alcohol to Ms. Landmeier and allowed her to enter into sexual relationships with staff members. Id. ¶ 16. On March 4, 2008, Narconon of Oklahoma forced Ms. Landmeier to leave the facility, despite knowledge that she had relapsed and had become addicted to heroin and oxycontin. Id. ¶ 17. The day after her expulsion, Ms. Landmeier overdosed on heroin and oxycontin, leaving her in a vegetative state paralyzed from the neck down. Id. ¶ 18. Her family initiated suit in March 2010 and asserted claims for negligence, breach of contract, violation of the Oklahoma Consumer Protection Act, infliction of emotional distress, and punitive damages against Narconon of Oklahoma and Narconon. Id.
*1076¶¶ 19-37. Narconon tendered the Landmeier lawsuit to NIAC, and NIAC accepted the defense under the Improper Sexual Conduct Coverage Form but not under the Commercial General Liability Coverage Form. Evans Decl. ¶ 68. However, NIAC later withdrew its defense, stating that its insurance was "excess" to Western World's policy. Evans Decl., Ex. X, Dkt. No. 34-1; Evans Decl., Ex. Y, Dkt. No. 34-2. Litigation in the Landmeier action is ongoing, and trial has not yet been scheduled.
Western World filed the instant lawsuit in October 2014. Dkt. No. 1. Because Western World agreed to defend Narconon in both the Desmond and Landmeier actions, Western World seeks a declaration that NIAC also has a duty to defend the Desmond and Landmeier actions and requests an equitable share of the costs that Western World has incurred to date. Id. In November 2014, NIAC answered and filed counterclaims asserting that it has no duty to defend or indemnify either the Desmond action or the Landmeier action. Dkt. No. 13.
On December 11, 2015, Western World moved for summary judgment on NIAC's duty to defend. Dkt. No. 27 ("Mot."). On December 28, 2015, NIAC responded and cross-moved for summary judgment on its duty to defend and indemnify. Dkt. No. 35 ("Cross Mot."). Western World filed its opposition and reply on January 11, 2016, Dkt. No. 37 ("Opp."), and NIAC filed its reply on January 19, 2016, Dkt. No. 39 ("Reply").
II. REQUESTS FOR JUDICIAL NOTICE
Western World filed two requests for judicial notice. The first Request for Judicial Notice ("Pl.'s RJN"), Dkt. No. 29, is GRANTED as to both Exhibit A (Plaintiffs' Response to Defendant Narconon Internationals's Motion for Judgment on the Pleadings or, In the Alternative, Motion for Summary Judgment or Partial Summary Judgment, Desmond v. Narconon of Georgia, Inc., Dekalb Cty. State Court Case No. 10-A-28641-2 (Jan. 9, 2013) ) and Exhibit B (Summary Judgment Order, Desmond v. Narconon of Georgia, Inc., Dekalb Cty. State Court Case No. 10-A-28641-2 (Jan. 31, 2013) ). The second Request for Judicial Notice, Dkt. No. 37-1, is GRANTED as to Exhibit A (Complaint for Declaratory Relief, NIAC v. Narconon Int'l, L.A. Super. Ct. Case No. BC569622 (Jan. 16, 2015) ), Exhibit B (Complaint for Declaratory Relief, NIAC v. Narconon Int'l, L.A. Super. Ct. Case No. BC569623 (Jan. 16, 2015) ), Exhibit C (Complaint for Declaratory Relief, NIAC v. Narconon Int'l, L.A. Super. Ct. Case No. BC569624 (Jan. 16, 2015) ), Exhibit D (Cross-Complaint, NIAC v. Narconon Int'l, L.A. Super. Ct. Case No. BC569622 (Feb. 6, 2015) ), and Exhibit E (Consolidation Order, NIAC v. Narconon Int'l, L.A. Super. Ct. Case No. BC569622 (Apr. 6, 2015) ). These types of documents are properly subject to judicial notice. See Reyn's Pasta Bella, LLC v. Visa USA, Inc.,
III. LEGAL STANDARD
A. Summary Judgment in Insurance Policy Disputes
"Summary judgment is proper where no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law." Samuels v. Holland Am. Line-USA Inc.,
Summary judgment is an appropriate vehicle to decide insurance coverage when the parties agree on the relevant facts and the sole issue before the court is the legal determination of the interpretation of the insurance policy. State Farm Fire & Cas. Co. v. Eddy,
B. Duty to Defend
Under California law, an insurer has a broad duty to defend insured entities against claims that create a potential for indemnity. See Montrose Chem. Corp. v. Superior Court,
IV. DISCUSSION
The parties move for summary judgment on NIAC's duty to defend the Desmond and Landmeier actions under its insurance policy.
A. Commercial General Liability Coverage Form
Under the Commercial General Liability Coverage Form, NIAC has the duty to defend Narconon against a lawsuit seeking damages for "bodily injury," which is defined as "bodily injury, sickness or disease sustained by a person, including death resulting from any of these at any time."
*1078NIAC Policy at 17, 26. Nevertheless, "bodily injury" is covered under NIAC's policy only when it is caused by an "occurrence." Id. at 17. The Commercial Liability Coverage Form also excludes from coverage "bodily injury" that is "due to the rendering of or failure to render any professional service." Id. at 56.
NIAC makes two arguments against coverage under the Commercial Liability Coverage Form. First, as to the Desmond action alone, NIAC contends that Mr. Desmond's claimed "bodily injury" was not caused by an "occurrence." Second, as to both the Desmond and Landmeier actions, NIAC asserts that the "bodily injur[ies]" allegedly suffered by Mr. Desmond and Ms. Landmeier come within the "professional service" exclusion because their injuries were "due to the rendering of or failure to render [a] professional service." The Court addresses each of these arguments in turn.
1. Whether the Desmond action states claims for "bodily injury" caused by an "occurrence"
As noted above, NIAC's policy covers lawsuits for " 'bodily injury' ... caused by an 'occurrence.' " NIAC Policy at 17. While no party disputes that Mr. Desmond's overdose-induced death qualifies as "bodily injury," the parties disagree about whether his death was caused by an "occurrence." "Occurrence" is defined in the policy as "an accident, including continuous or repeated exposure to substantially the same general harmful conditions." Id. at 26. Although the policy does not further define accident, it is settled under California law that an "accident" for insurance coverage purposes must be "an unexpected, unforeseen, or undesigned happening or consequence from either a known or unknown cause." Delgado v. Interinsurance Exch. of Auto. Club of S. Cal.,
Here, Western World contends that the complaint in the Desmond action alleges an "occurrence"-namely, the staff's negligent providing of alcohol to Mr. Desmond that led to his overdose and death. Mot. at 13-14. Concentrating on the causes of action in the complaint, NIAC responds that all of Mr. Desmond's claims against Narconon involve intentional, not accidental, conduct. Cross Mot. at 15-16. The Court agrees with Western World.
The original complaint in the Desmond action alleges that "[Mr. Desmond] was drinking beer and vodka with [Narconon of Georgia] employees and staff members in a staff member's apartment," that he "bec[ame] highly intoxicated with [those] employees and staff members," and that he "left the illegal housing program's premises with two former patients of [Narconon of Georgia] who had announced their intention to attempt to buy heroin." Evans Decl., Ex. H ¶¶ 30-31. Mr. Desmond died of a heroin overdose the next morning. Id. ¶¶ 33-34. Based on those facts, the complaint avers that Narconon of Georgia acted negligently in "allowing and facilitating [Mr.] Desmond's on-going use of alcohol and drugs while in treatment" and in "failing to provide reasonable and adequate security and supervision to prevent its patients ... from leaving its housing program." Id. ¶ 37c-d. Neither the actions nor the result were intended or foreseen. Instead, the neglectful provision of alcohol to and deficient supervision of a patient in rehab leading to the patient's unexpected death constitute an "occurrence" or "accident." Although the negligence claims are asserted against Narconon of Georgia alone, the complaint supplies a sufficient basis for attributing *1079those actions to Narconon. Specifically, it alleges that Narconon of Georgia is a "subsidiary, licensee and/or alter ego" of Narconon and that Narconon exercises some control over the drug rehabilitation facilities. Id. ¶¶ 4, 16. At a minimum, the allegations raise the potential for coverage, as the Desmond action sought damages from Narconon for "bodily injury" caused by an "occurrence."
The same holds true for the amended complaint. The factual allegations regarding the events underlying Mr. Desmond's death are virtually identical to the allegations in the original complaint. See Evans Decl., Ex. I ¶¶ 61-62, 64-65. Although the amended complaint adds civil RICO claims against Narconon and Narconon of Georgia, it retains the negligence causes of action against Narconon of Georgia. Id. ¶¶ 146, 167-76. Finally, the amended complaint includes the same allegations about the relationship between Narconon and Narconon of Georgia, while also providing further detail about Narconon's intricate involvement and control over Narconon of Georgia's operations. Id. ¶¶ 4, 10, 13, 16, 32. As the trial court later observed in its summary judgment ruling, "there is evidence presented from which a jury could conclude that [Narconon], through [Narconon of Georgia], undertook the duty of providing services to [Mr.] Desmond and failed to exercise reasonable care in carrying out that assumed duty." Pl.'s RJN, Ex. B at 7; id. at 9 (explaining that Narconon might be liable for Narconon of Georgia's actions because "a jury could conclude that [Narconon of Georgia] was an agent or instrumentality of [Narconon]"). Like the original complaint, the amended complaint contains enough allegations to trigger the duty to defend because there is potential for coverage based on an "occurrence" that caused Mr. Desmond's "bodily injury."
NIAC's primary response is that the legal causes of action asserted against Narconon all involve intentional acts. But, as noted above, the complaint raises the potential that Narconon is liable for the negligent acts of Narconon of Georgia. Moreover, the California courts have repeatedly instructed that the duty to defend does not depend on "technical legal cause[s] of action pleaded by the third party." Gonzalez v. Fire Ins. Exch.,
Because the Court concludes that the allegations in the Desmond action create the potential for coverage for "bodily injury" caused by an "occurrence," the Court next turns to NIAC's argument that the "professional service" exclusion applies.
2. Whether the "professional service" exclusion applies to the Desmond action or the Landmeier action
NIAC contends that there is no duty to defend under the Commercial Liability Coverage Form based on the exclusion of " 'bodily injury' ... due to the rendering of or failure to render any professional service." NIAC Policy at 56. Although the policy does not define "professional service," that term has an accepted meaning in California courts. Specifically, "professional services" are those "arising out of a vocation, calling, occupation, or employment involving specialized knowledge, labor, or skill, and the labor or skill involved is predominantly mental or intellectual, rather than physical or manual." Energy Ins. Mut. Ltd. v. ACE Am. Ins. Co.,
Here, Western World argues that the "professional service" is not applicable because Mr. Desmond and Ms. Landmeier were not injured by the rendering or failure to render professional drug rehabilitation services. Mot. at 20. Rather, they were injured by "non-professional conduct (sexual relations and furnishing alcohol) that was not part of Narconon's drug rehabilitation treatment" and did not "occur[ ] during treatment."
The provision of alcohol to Mr. Desmond cannot fairly be characterized as an activity that arises out of drug and alcohol rehabilitation services. To the contrary, that conduct is not connected to drug and alcohol rehabilitation at all-indeed, it is antithetical to alcohol rehabilitation-and Mr. Desmond's overdose and death did not "occur[ ] during the performance of professional services." Food Pro Int'l, Inc. v. Farmers Ins. Exch.,
The Court finds unavailing NIAC's rejoinder that the Narconon staff's actions were performed pursuant to drug rehabilitation services because Narconon of Georgia and Narconon of Oklahoma run in-patient, residential facilities that provide 24/7 treatment. Cross Mot. at 20. First, the California courts have already rejected a species of this same argument. For example, in Food Pro, the California Court of Appeal held that an engineering consultant's failure to prevent bodily injury on-site was a breach of a common law duty, not the performance of a professional service.
For many of the same reasons, NIAC's attempts to recast Mr. Desmond's and Ms. Landmeier's claims as pertaining only to Narconon's failure to treat patients in the program also fail. NIAC cannot usurp the duty to defend by broadly reframing the complaints to advance one particular theory of liability; instead, the Court must examine the factual allegations in the complaints. Barnett,
Accordingly, the Court GRANTS Western World's motion for summary judgment with respect to the Commercial General Liability Coverage Form and DENIES NIAC's motion for summary judgment with respect to the Commercial General Liability Coverage Form.
B. Liquor Liability Coverage Form
Under the Liquor Liability Coverage Form, NIAC has the duty to defend Narconon *1082against a lawsuit seeking damages for bodily injury or property damage if Narconon is liable "by reason of the selling, serving or furnishing of any alcoholic beverage." NIAC Policy at 45. Western World argues that NIAC owes a duty to defend the Desmond and Landmeier actions because both actions allege that "[Narconon] is liable for bodily injury ... caused partly by furnishing alcohol." Mot. at 13; Opp. at 7. NIAC responds that the Liquor Liability Coverage Form is inapplicable because it pertains to entities engaged in the business of furnishing alcohol. See Cross Mot. at 21. Under that reading, there is no coverage for the informal providing of alcohol at issue in the underlying Desmond and Landmeier actions.
The issue presented by the parties requires interpreting the word "furnishing" in the Liquor Liability Coverage Form. Construction of an insurance policy focuses closely on the language used in the provisions at issue. Golden Sec. Thrift & Loan Ass'n v. First Am. Title Ins. Co.,
Within the context of the Liquor Liability Coverage Form, the word "furnishing" contemplates business relations. The policy itself does not explicitly define "furnishing," but the meaning is clear from the way the word is used. The coverage section provides indemnity for damages liability "by reason of the selling, serving or furnishing of any alcoholic beverage." The words immediately surrounding "furnishing"-"selling [or] serving"-involve commercial interactions. Those neighboring words provide a frame of reference for the intended scope of the entire clause and give "furnishing" more precise meaning. The word "furnishing" also appears in Exclusion 2.d, which exempts from coverage injury "arising out of any alcoholic beverage sold, served or furnished while any required license is suspended or after such license is expires, is cancelled or revoked." NIAC Policy at 45. Not only does that exclusion presume that the insured normally operates pursuant to a license, but it also expressly identifies the act of furnishing alcohol as one that would require a license to perform. More broadly, the rest of the Liquor Liability Coverage Form is plainly focused on an entity that is in the business of selling, serving, or furnishing alcohol. For example, Exclusions 2.b and 2.c relate to separate obligations that an insured employer may owe to its employees.
*1083This reading of "furnishing" also harmonizes with the overall policy scheme because it produces symmetry between the Liquor Liability Coverage Form and the Commercial General Liability Coverage Form. Specifically, the Commercial General Liability Coverage Form includes Exclusion 2.c that parallels the Liquor Liability Coverage Form. That exclusion is titled "Liquor Liability"-the mirror image of "Liquor Liability Coverage"-and applies to an insured that is "in the business of manufacturing, distributing, selling, serving or furnishing alcoholic beverages."
The contextual understanding of "furnishing" accords with common usage. In the dictionary, "furnish" is defined as "provide with what is needed" or "supply; give." Furnish , Merriam-Webster Collegiate Dictionary (10th ed. 2001), cited in Ruiz v. Safeway, Inc.,
In light of that construction, NIAC owes no duty to defend either the Desmond action or the Landmeier action under the Liquor Liability Coverage Form. In particular, that form provides no possibility for coverage because neither lawsuit involves the providing of alcohol in a business or formal setting. The Desmond action alleges that Mr. Desmond was drinking alcohol with Narconon of Georgia staff members at a staff member's apartment, Evans Decl., Ex. H ¶ 30; the Landmeier action alleges that Narconon of Oklahoma employees gave alcohol to Ms. Landmeier, Evans Decl., Ex. M ¶ 16. Western World itself disclaims any professional interaction by (correctly) arguing against application of the "professional service" exclusion for the Commercial General Liability Coverage Form. Moreover, the exclusivity of the *1084Commercial General Liability and Liquor Liability Coverage Forms further weakens Western World's contention that both coverage forms are simultaneously triggered by the informal furnishing of alcohol at issue in the two lawsuits. The Court concludes that NIAC does not have a duty to defend either the Desmond action or the Landmeier action under the Liquor Liability Coverage Form.
Accordingly, the Court DENIES Western World's motion for summary judgment with respect to the Liquor Liability Coverage Form and GRANTS NIAC's motion for summary judgment with respect to the Liquor Liability Coverage Form.
C. Improper Sexual Conduct Coverage Form
The Improper Sexual Conduct Coverage Form states that NIAC will indemnify Narconon for " 'bodily injury' arising from 'improper sexual conduct.' " NIAC Policy at 69. The policy defines "bodily injury" as "bodily injury, sickness or disease including emotional distress or anguish sustained by a person, including death" and defines "improper sexual conduct" as "actual, attempted, or alleged unlawful sexual conduct by one person ... as prohibited by federal or state law." Id. at 74. The connector "arising from" is not defined in the policy, but California law defines "arising from" broadly as "originating from, having its origin in, growing out of or flowing from or in short, incident to, or having connection with." Davis v. Farmers Ins. Grp.,
Initially, NIAC stated that it withdrew its defense because its policy makes Improper Sexual Conduct coverage "excess over any other applicable insurance ... that is written on a claims-made basis," NIAC Policy at 72. Evans Decl., Ex. X. NIAC no longer pursues that course, likely because Western World's policy clearly provides "occurrence"-based coverage, not "claims"-based coverage. Evans Decl., Ex. B at 44. Instead, NIAC raises two new arguments against coverage of the Landmeier action under the Improper Sexual Conduct Coverage Form. First, NIAC contends that the Landmeier action does not assert claims against Narconon as a result of improper sexual conduct. Cross Mot. at 24. Second, NIAC asserts that, as a matter of equity, the specialized coverage available under the Improper Sexual Conduct Coverage Form should be deemed in excess to the primary coverage afforded by Western World's policy. Id. at 24-25. The Court analyzes each of these arguments in turn.
First, the Court disagrees with NIAC's argument that the Landmeier action asserts no claims against Narconon arising from improper sexual conduct. NIAC does not contest that Narconon employees engaged in "improper sexual conduct" when they entered into sexual relationships with their patient, Ms. Landmeier. See
Second, NIAC does not supply a sound legal basis for concluding that its Improper Sexual Conduct coverage is in excess to Western World's policy. NIAC's policy provides that Improper Sexual Conduct coverage is "excess" only when there is other applicable insurance written on a claims-made basis, NIAC Policy at 72, a condition which NIAC does not argue is satisfied. To get around this fact, NIAC argues that Western World's coverage has the greater primacy, but NIAC's sole cited authority, Interstate Fire & Casualty Insurance Co. v. Cleveland Wrecking Co.,
Nor does NIAC offer any legal support for the proposition that it may refuse to defend Narconon and apply the limits in the Improper Sexual Conduct Coverage Form toward a settlement or judgment in the Landmeier action because it is "in [Narconon's] best interest." Cross Mot. at 25. Putting aside that Narconon's interests might be best served by a successful defense that completely shields it from any liability, NIAC's argument again rests on the mistaken premise that Western World's coverage is primary. Specifically, NIAC asserts that its Improper Sexual Conduct coverage is specialized, whereas Western World's coverage arises from its general duty to defend under its Commercial General Liability Coverage Form.
Accordingly, the Court GRANTS Western World's motion for summary judgment with respect to the Improper Sexual Conduct Coverage Form and DENIES NIAC's motion for summary judgment with respect to the Improper Sexual Conduct Coverage Form.
V. CONCLUSION
For the foregoing reasons, the Court concludes that NIAC owes a duty to defend the Desmond action and the Landmeier action under the Commercial Liability Coverage Form and that NIAC also owes a duty to defend the Landmeier action under the Improper Sexual Conduct Coverage Form. However, the Court concludes that NIAC does not owe a duty to defend either the Desmond action or the Landmeier action under the Liquor Liability Coverage Form. Therefore, Western World's motion for summary judgment is GRANTED in part and DENIED in part, and NIAC's motion for summary judgment is GRANTED in part and DENIED in part.
In its summary judgment motion, Western World also asks the Court to determine the sum that NIAC owes for its failure to defend. Mot. at 22-24. Because of the dearth of briefing, the Court cannot make a determination on this issue at this stage. Within two weeks of the filing of this order, the parties shall file a joint supplemental statement that lays out each party's position on how the Court should proceed.
IT IS SO ORDERED.
Although NIAC also moves for summary judgment on the ground that it has no duty to indemnify, it presents no arguments separate from those about the duty to defend. With no basis to distinguish the claims, the Court analyzes the duty to defend.
It is not even clear that the licensing agreement between Narconon and Narconon of Oklahoma would provide for indemnity in these circumstances, as improper sexual conduct does not "relate to or arise from any of the services ... associated with [Narconon's trademarks]," Evans Decl., Ex. N at 361, Dkt. No. 32-6, since improper sexual conduct is not even arguably a part of the drug rehabilitation program.