Monumental Life Insurance v. United States Fidelity & Guaranty Co.

⁵⁰⁸ ALPERT, Judge. In this case, Monumental Life Insurance Company, appellant, brought a declaratory action against four other insurance companies (the appellees herein) alleging that the various appellees were obligated to indemnify Monumental for costs and fees it had incurred while litigating a certain claim with a third party. In granting summary judgment for the appellees, the lower court denied all coverage to Monumental. Monumental now appeals, asking us to address ten issues related to its various policies.

We shall affirm. BACKGROUND At its heart, this case is simply about indemnification: Monumental Life Insurance Company (“Monumental”) contends that any or all of the four appellees herein, all of which are other insurance companies 1 , are obligated to indemnify Monumental for costs and fees it incurred while litigating a prior claim with a third party, Peoples Security Life Insurance Company (“Peoples”). The facts that gave rise to both (1) the present litigation (Monumental v. USF & G et al) and (2) the underlying “third party” litigation (Peoples v. Monumental) may be summarized as follows: A. The Underlying Litigation: Peoples v. Monumental Peoples and Monumental are both large, competing “home-service” life insurance companies which sell their various life insurance policies through individual agents; the agents, in turn, call on their customers at their homes and businesses. In September, 1982, Monumental hired as an Executive ⁵⁰⁹ Vice President B. Larry Jenkins 2 .

Larry Jenkins had been previously employed as the President and Chief Executive Officer (“CEO”) of Peoples. Approximately one month later, Monumental hired as an Agency Vice President Ronald J. Brittingham. Brittingham had been previously employed as a field Vice President at Peoples. In June, 1983, Monumental hired a third officer from Peoples, Willard (Gene) Hines, who left Peoples to become a consultant with Monumental.

These, as well as numerous other alleged departures of Peoples’ employees to Monumental, began to concern Peoples 3 . A series of letters and conversations between the two companies ensued. Included among these was a letter dated November 30, 1983, from William P. Gregg (President, Capital Holding Corporation 4 ) to Leslie B. Disharoon (Chairman, Monumental). This letter contained the following language: This will confirm the substance of Tom Simons’ [Chairman and CEO of Capital Holding Corporation] conversation with you [Disharoon], in which he indicated that we have observed a substantial effort on the part of Monumental to induce Peoples’ employees to terminate their employment and join Monumental.

Based upon those observations, we have conducted a more thorough investigation of those activities. That investigation has exposed substantial evidence of an extensive campaign by Monumental to hire Peoples’ employees. This evidence includes the fact that Monumental has hired approximately 25 Peoples’ employees in the last five months. In addition to the dramatic volume of that activity, the investigation also revealed a startling number of wrong ⁵¹⁰ ful actions, including the use by some of your employees of confidential information that was obtained during their tenure as Peoples’ employees, and the misrepresentation of information allegedly obtained by such Monumental employees during their employment by Peoples.

We believe that those activities are unethical. In addition, we are advised that they provide grounds for litigation against Monumental and the individual employees involved. As you can well imagine, we cannot allow them to continue. Accordingly, we are making this final effort to resolve this problem without formal action.

However, if we receive any further evidence that your employees are persisting in their pirating of Peoples’ employees, I will instruct counsel to commence litigation and will also consider filing charges of unethical conduct against the appropriate parties under the auspices of industry trade associations. I deeply hope that such action will not be required, but recognize that swift, decisive action on your part will be required to avoid it. * * * * In addition, pursuant to a letter dated December 16, 1983, from Larry Jenkins (then Chairman and CEO of Monumental) to Thomas Simons (Chairman and CEO of Capital Holding Corporation, as aforementioned), Monumental indicated as follows: At your request, we are willing to come to a mutual understanding concerning our field personnel hiring practices and yours. * * * * As we discussed by phone, our proposal is this: [wherein Jenkins stated four proposed terms]. * * * * In making this proposal, we expressly deny all accusations which have been made about improper acts on our part with respect to Peoples or its field personnel. We have not engaged in any unfair competition. The understanding reached above includes any future work of Gene Hines and any other people we may use. ⁵¹¹ With this settlement reached between us, we understand there will be no need for litigation between Monumental and Peoples on the matter.

If I have correctly expressed our understanding, please acknowledge. As a result of, inter alia, the above letters and conversations, Monumental and Peoples, by letter dated January 17, 1984, agreed to a five-month hiring moratorium. After this moratorium ended, Monumental hired as a Regional Sales Vice President Thomas Jenkins, a fourth Peoples’ officer. As a result, after further discussion and amid threats of litigation, the parties negotiated a second, more complete agreement that was memorialized by a letter dated September 13, 1984.

By this letter agreement (and subject to a few delineated exceptions), the parties reciprocally agreed, inter alia, (1) to a one-year moratorium on the hiring of each other’s employees, (2) to a three-year moratorium on the recruiting of each other’s employees, (3) not to use any of the other’s proprietary information, nor to make any material misrepresentations about the other, and (4) to release mutually each other from claims resulting from conduct that occurred before September 13, 1984. (This September 13, 1984 letter agreement shall hereinafter be referred to as the “Agreement.”) The Agreement also provided for a dispute-resolution procedure culminating in binding arbitration. Despite this Agreement, Monumental allegedly continued to recruit officers and agents from Peoples. Indeed, from 1983 through 1986, inclusive, Monumental was alleged to have hired 61 of Peoples’ managers and 222 of its agents, and to have rewritten approximately 10,000 of its policies.

Additionally, Monumental was alleged to have told Peoples’ policyholders, inter alia, that (1) Peoples was “going broke,” and (2) Peoples could not afford to pay claims, or cash surrender values, on its policies. On August 1, 1986, Peoples filed in the United States District Court for the Middle District of North Carolina, an ⁵¹² eleven count complaint against Monumental, Larry Jenkins, Brittingham and Thomas Jenkins. The following sets forth the relief sought by Peoples: Count 1 sought rescission of the parties’ Agreement based on fraudulent inducement; Counts 2 through 4, inclusive, alleged breaches of fiduciary duty by the respective, individually named defendants; Count 5 sought recovery for unlawful appropriation of trade secrets and confidential information; Counts 6 and 7, respectively, sought recovery for tortious interference with contract, and tortious interference with business relationships; Count 8 sought recovery for unfair or deceptive trade practices; Count 9 sought recovery for unjust enrichment; Count 10 sought recovery for a civil RICO violation; and, Count 11 sought recovery for defamationS. 5 . On March 20, 1987, on motion filed by Monumental, Peoples’ suit was transferred to the United States District Court for the District of Maryland.

Shortly thereafter, on April 23, 1987, Peoples filed an Amended Complaint which (1) added Hines as an additional defendant, (2) added, as a new Count 5, a breach of fiduciary duty against him, ⁵¹³ individually, and (3) added some supplemental factual allegations. Monumental then moved, pursuant to the parties’ Agreement, to have the parties’ claims submitted to binding arbitration. Peoples resisted that effort, contending that the Agreement itself was null and void for having been fraudulently induced. The United States District Court for the District of Maryland (Joseph Howard, J.) denied Monumental’s motion (and therefore set the case in for trial), after which Monumental filed an interlocutory appeal to the United States Court of Appeals for the Fourth Circuit.

On appeal, the circuit court, by opinion dated February 10, 1989, reversed the district court’s ruling and determined that, indeed, Peoples’ entire claim (including the issue as to fraudulent inducement) was subject to binding arbitration 6 . On March 15, 1989, Peoples filed its ten count “Demand for Arbitration.” Peoples’ Demand contained essentially the same contentions as had their federal court complaint except that the Demand (1) did not contain the individual tort count of defamation, and (2) added one new claim for relief. Peoples captioned this new claim “Alternative Claim for Breach of Contract,” and alleged therein, inter alia, that “Monumental Life failed to comply with the spirit of the [parties’ September 13, 1984] Agreement.” After bifurcating liability issues from damage issues, the arbitration panel heard evidence intermittently from February 20 through April 9, 1990, before issuing its written decision regarding liability on August 29, 1990. The panel determined that, with respect to the parties’ September 13, 1984 Agreement, Monumental was not liable for fraud in the inducement because the transaction was entered into at arms length and, as a result, pursuant to the Agreement’s mutual release provision, Monumental was released from ⁵¹⁴ any claims based on conduct prior to September 13, 1984.

The appellees adequately summarized various other findings of the arbitration panel: 1. Paragraph 2 of the Agreement prohibited Monumental from hiring employees of Peoples for a period of one year. The arbitrators found that Monumental breached this provision because during the one-year period it opened employment negotiations with three Peoples’ employees who were later hired by Monumental. 2. Paragraph 3 of the Agreement prohibited Monumental from recruiting Peoples’ employees for a period of three years.

The arbitrators found that Monumental breached this provision through recruiting activities by many Monumental employees in Baton Rouge, LA, Hagerstown, MD, and Newport News, VA. 3. Paragraph 4 of the Agreement prohibited Monumental from using certain proprietary information of Peoples, including a variety of material listed in the Agreement. The arbitrators found that Monumental breached this provision by using customer lists and other Peoples’ proprietary information in competing for business. 4. The arbitrators read into the Agreement the usual duty of good faith and fair dealing implied in every contract.

They also found that Monumental undertook additional obligations in Paragraph 6 of the Agreement, which required “full compliance with the spirit and the terms of this Agreement.” The arbitration panel 7 “interpret[ed] paragraph 6 of the Agreement as an implied contractual commitment not to engage in the tort of unfair competition regarding the subject matter of the Agreement.” Having found ⁵¹⁵ that contractual obligation, the arbitrators found that Monumental breached it. (Footnote and emphasis added.) In addition to the above findings, the panel’s written decision also contained a section captioned “Other Tort Claims.” In this section, the panel found as follows: In addition to unfair competition, [Peoples] asserts tort claims for, among other things, misappropriation of trade secrets and confidential information, tortious interference with contracts and business relationships, employee piracy, and deceptive practices. The factual basis for all of these tort claims is essentially the same. The Tribunal, having found the tort of unfair competition, finds it unnecessary to reach the other tort claims raised by [Peoples].

Following a separate hearing on damages, the panel, by order dated September 11, 1991, awarded Peoples the sum of $9,424,651.00. With respect to the defense of the action brought by Peoples, Monumental alleges that it incurred over $2,000,000.00 in defense costs. B. Monumental’s Insurance Coverage With respect to the case sub judice, Monumental claims that the various appellees have an obligation to defend and/or indemnify Monumental for any damages and costs it incurred in its litigation with Peoples. The appellees have refused to do either (i.e., defend or indemnify).

Monumental now contends that, with respect to the duty to defend, all policies of all appellees (except Cal Union) included such a provision. The Cal Union policy is a “duty to pay” defense costs policy, rather than a “duty to defend” type. Monumental has summarized its insurance coverage as follows: From 1982 through 1986, inclusive, Monumental had purchased comprehensive general liability insurance (“CGL”) and umbrella excess insurance (“Excess”) from three of the appellees herein, USF & G, Reliance and US Fire. During that time period, Monumental also purchased director and ⁵¹⁶ officer liability insurance (“D & 0”) from the fourth appellee herein, Cal Union.

The following chart summarizes these various coverages 8 . [[Image here]] C. The Present Litigation On February 7, 1990, Monumental filed this declaratory action in the Circuit Court for Baltimore City, against appellees USF & G, Reliance, US Fire, and Cal Union (hereinafter collectively referred to as “the carriers”) 9 . Monumental’s complaint, inter alia, sought a declaratory judgment that the carriers were obligated to defend and indemnify Monumental (and certain of its officers) for costs and fees associated with defending the suit brought against it by Peoples. In its complaint, Monumental contended that this duty to defend and/or indemnify emanated from (1) either personal injury coverage or advertising injury cover ⁵¹⁷ age under both the USF & G and Reliance policies, (2) advertising injury coverage under the US Fire policy, and (3) D & 0 coverage under the Cal Union policy 10 . On March 14, 1990, the carriers successfully removed the case to the United States District Court for the District of Maryland.

Following the removal, the parties filed cross-motions for summary judgment. By Memorandum Opinion dated June 6, 1991, the court (William M. Nickerson, J.) (1) denied Monumental’s motion for summary judgment, and (2) granted the carriers’ motions for summary judgment. Subsequently, in a Memorandum Opinion and accompanying Order dated August 14, 1991, the court (1) denied Monumental’s Motion to Vacate Judgment and to Remand, and (2) granted various Motions to Alter or Amend the Judgment that had been filed by both Monumental and the carriers. The ultimate effect of the District Court’s judgment was to deny all coverage to Monumental.

Monumental subsequently noted a timely appeal to the United States Court of Appeals for the Fourth Circuit, which, on October 9, 1991, vacated the federal district court’s judgment for lack of subject matter jurisdiction (incomplete diversity). The case was correspondingly remanded to where it began, the Circuit Court for Baltimore City. By stipulation of all of the parties, all of the pleadings, motions and memoranda filed while the case was pending before the United States District Court were deemed filed and operative in that Maryland state court; in addition, following remand, the parties filed supplemental memoranda for the state court to consider. After a February 4,1992 hearing, the circuit court (Joseph H.H. Kaplan, J.) “re-granted” the carriers’ Motions for Summary Judgment, and adopted as its reasons those set forth in the two federal Memoranda Decisions (dated June 6, 1991, and August 14, ⁵¹⁸ 1991, respectively) 11 .

Monumental accurately summarized those reasons as follows: I. USF & G A. CGL POLICY 1. PERSONAL INJURY COVERAGE a. Peoples’ defamation claim was barred by statute of limitations. b. Exclusion (4) precludes coverage of defamatory statements made with “knowledge of falsity.” 2.

ADVERTISING INJURY COVERAGE a. Monumental’s conduct was not “advertising activity,” but only “solicitation.” b. Exclusion (7) precludes coverage if done with “actual malice.” B. EXCESS POLICY 1. PERSONAL INJURY COVERAGE a.

Same as I.A.1.a, supra (limitations). 2. ADVERTISING INJURY COVERAGE a. Monumental’s conduct was not an “advertisement, publicity article, broadcast or telecast.” II. RELIANCE A. CGL POLICY 1.

PERSONAL INJURY COVERAGE a. Exclusion 2(b) precludes coverage if first publication occurred prior to effective date. b. Exclusion 2(c) applicable; same as I.A.1.b., supra (knowledge of falsity). c. No “occurrence,” meaning no accidental nor unexpected nor unintended injury. 2.

ADVERTISING INJURY COVERAGE ⁵¹⁹ a. Same as I.A.2.a., supra (not “advertising activity”). B. EXCESS POLICY 1. PERSONAL INJURY COVERAGE a.

Same as II.A.1.C., supra (no “occurrence”). 2. ADVERTISING INJURY COVERAGE a. Same as I.A.2.a. and I.B.2.a., both supra (neither advertising activity, nor an advertisement, publicity article, broadcast or telecast).

III

US FIRE: EXCESS POLICY: ADVERTISING INJURY COVERAGE A. Same as I.B.2.a., supra (no advertisement, publicity article, broadcast or telecast). B. No occurrence during policy period.

IV

CAL UNION: D & 0 POLICY A. Policy void for material misrepresentation. B. The individual officers of Monumental are not “legally obligated to pay.” Accordingly, on February 7, 1992, the Circuit Court for Baltimore City entered summary judgment in favor of the carriers 12 ; from this judgment, Monumental filed this timely appeal, in which it asks us to resolve the following ten questions: 1) Did the circuit court err when it held that Monumental’s claims were not covered by the personal injury coverage of the USF & G and RELIANCE policies? 2) Did the circuit court err when it held that Monumental’s claims were not covered by the advertising injury coverage of the USF & G, RELIANCE and US FIRE policies? 3) Did the circuit court err when it denied advertising liability coverage as against USF & G for the commer ⁵²⁰ cial disparagement alleged against Monumental, by applying the wrong statute of limitations? 4) Did the circuit court err when it denied coverage [as against USF & G and RELIANCE] on the basis of allegations that Monumental knowingly published false statements about Peoples, or acted with malice toward Peoples, contrary to findings in the underlying litigation? 5) Did the circuit court err when it denied coverage on the basis that no “occurrences ” took place as defined under the RELIANCE policies? 6) Did the court err when it refused to consider admissions made by agents of USF & G, RELIANCE and US FIRE that their respective policies provided coverage herein? 7) Did the circuit court err when it denied coverage as against RELIANCE on the basis that the alleged defamatory statements first occurred prior to the effective date of the policy? 8) Did the court err when it held that CAL UNION’S D & 0 policy was void ab initio on the basis that Monumental materially misrepresented its response to an application question that it was not aware of any facts which might result in a claim which would fall within the proposed insurance, and did the court err when it held that CAL UNION’S attempted rescission, 4 years after the Peoples’ suit was commenced, was timely? 9) Did the court err when it held that CAL UNION’S D & 0 policy, even assuming that it was not void ab initio, did not provide coverage in any event because the officers and directors were not individually liable, even though judgment was entered against them? 10) Did the court err when it ordered Monumental to return $232,206.97 and $225,717.43 paid by USF & G and CAL UNION, respectively, to Monumental for defense costs as having been “conditional” payments? We restate the above ten questions as four succinct issues: ⁵²¹ I. DID THE LOWER COURT PROPERLY GRANT SUMMARY JUDGMENT FOR USF & G, RELIANCE AND US FIRE ON MONUMENTAL’S CLAIM FOR ADVERTISING INJURY COVERAGE? 13 II. DID THE LOWER COURT PROPERLY GRANT SUMMARY JUDGMENT FOR USF & G AND RELIANCE ON MONUMENTAL’S CLAIM FOR PERSONAL INJURY COVERAGE? 14 III.

DID THE LOWER COURT PROPERLY GRANT SUMMARY JUDGMENT FOR CAL UNION ON MONUMENTAL’S OFFICERS’ CLAIM FOR D & 0 COVERAGE UNDER A VALIDLY RESCINDED POLICY? 15 IV. DID THE LOWER COURT PROPERLY GRANT SUMMARY JUDGMENT FOR USF & G AND CAL UNION ON THEIR COUNTERCLAIMS WHICH SOUGHT RESTITUTION OF CONDITIONAL PAYMENTS TOWARDS DEFENSE COSTS? 16 We shall discuss these four issues respectively. 17 STANDARD OF REVIEW Monumental’s insurance liability policies with the various appellees may be summarized briefly: with respect to both USF & G and Reliance, there were two separate policies under which Monumental was insured — a CGL policy and an Excess policy. Under each of those two policies, there ⁵²² were two distinct types of coverages — personal injury and advertising injury. With respect to appellee US Fire, there was only an excess policy and only advertising injury coverage.

Finally, with respect to Cal Union, there was only a D & 0 policy. The lower court determined that neither USF & G nor Reliance was liable to Monumental under either type of coverage under either policy; in all instances, the lower court supported its findings with one or more independent grounds. Additionally, the court determined that US Fire was not liable based on two alternative independent grounds. With respect to Cal Union, the court found no coverage under the D & 0 policy based on two alternative independent grounds.

In summary, the lower court denied all coverage to Monumental. We are now asked to review the propriety of the lower court’s granting of the various motions for summary judgment. The facts set forth above in the Background section of this opinion are not in dispute. There are, however, other facts (discussed below) that Monumental implicitly claims are in dispute. 18 In Maryland, the moving party is entitled to summary judgment only when there is no genuine dispute as to any material fact and that the party is entitled to judgment as a matter of law.

Md. Rule 2-501; see, e.g., King v. Bankerd, 303 Md. 98, 111 , 492 A.2d 608 (1985). Moreover, as we noted in DeGroft v. Lancaster Silo Co., 72 Md.App. 154 , 527 A.2d 1316 (1987), “In ruling on a motion for summary judgment, all disputed facts and inferences therefrom should be viewed in the light most favorable to the party ⁵²³ against whom the motion is made.” Id. at 160 , 527 A.2d 1316 . We must therefore now determine whether, in any of the claims in the case at bar, after viewing all of the facts and inferences therefrom in a light most favorable to Monumental, there is any dispute as to any material fact and, if not, whether the various appellees were entitled to judgment as a matter of law. In addition, where the lower court relied on several alternative independent grounds in reaching its decision, we must determine that at least one of those independent grounds was properly decided in order to affirm that decision.

Ellett v. Giant Food, Inc., 66 Md.App. 695, 700 , 505 A.2d 888 (1986). In other words, in order for us to disturb the lower court’s granting of summary judgment as to the denial of a specific coverage under a particular policy, we would have to determine that all of the grounds upon which the court relied were improper. I. DID THE LOWER COURT PROPERLY GRANT SUMMARY JUDGMENT FOR USF & G, RELIANCE AND US FIRE ON MONUMENTAL’S CLAIM FOR ADVERTISING INJURY COVERAGE? The lower court granted summary judgment in favor of three appellees (USF & G, Reliance and US Fire 19 ), and against Monumental, on the issue of advertising injury coverage.

Monumental now asserts that the lower court erred in granting summary judgment to the carriers, because Monumental alleges that its conduct occurred in the course of its “advertising activities,” and therefore coverage should have been provided. A. THE CGL POLICIES: USF & G AND RELIANCE-SCOPE OF “ADVERTISING ACTIVITIES” Both of the CGL carriers — USF & G and Reliance— essentially make the same arguments regarding the scope ⁵²⁴ of the term “advertising injury coverage” contained in their respective (but similarly worded) CGL policies. Therefore, we will combine our discussion of their arguments supporting the denial of advertising injury coverage. USF & G’s CGL policy defined “advertising injury” as injury arising out of an offense committed during the policy period occurring in the course of the named insured’s advertising activities, if such injury arises out of libel, slander, defamation, violation of right of privacy, piracy, unfair competition____ Reliance’s CGL policy defined “advertising injury” as injury sustained by any person or organization and arising out of one or more of the following offenses committed in the conduct of the Named Insured’s business: libel, slander, defamation, invasion of the right of privacy, piracy, unfair competition or idea misappropriation under an implied contract ... arising out of the Named Insured’s advertising activitiesf.] 4c 4c $ 4* 4* ♦ In denying coverage under USF & G’s advertising injury policy, the trial court held that existing legal principles combined with the facts alleged in Peoples’ complaint required the conclusion that Monumental’s alleged conduct did not occur “in the course of Monumental’s ‘advertising activities.’ ” The court relied on four interrelated factors for its decision.

First, the trial court referred to the canons of construction observed in Maryland that require the policy to be measured “by its express terms and provisions,” and to give the terms “their customary and normal meaning.” The lower court stated that although Maryland law requires that claims must be only potentially covered by the policy, Brohawn v. Transamerica Ins., 276 Md. 396 , 347 A.2d 842 (1975), it found that the customary and normal usage of “advertising activity” did not include sales or solicitation as alleged by Peoples in the underlying case. ⁵²⁵ Second, the lower court relied on Grosman v. Real Estate Comm’n, 267 Md. 259 , 297 A.2d 257 (1972), for the proposition that advertising must be in the form of a public announcement (i.e., calling public attention to one’s product, service, need, etc.). The lower court held that there was no public announcement alleged in Peoples’ complaints, but only private solicitations which, according to the court, are not encompassed by the term “advertising.” Third, the lower court favored the meaning of “advertising” adopted by the Court of Appeals for the Seventh Circuit in Playboy Enterprises v. St. Paul Fire & Marine, 769 F.2d 425 (7th Cir.1985); in Playboy, the Seventh Circuit held that advertising means the “widespread distribution of promotional material to the public at large.” Id. at 428-29 . Finally, the lower court noted that the United States Circuit Court of Appeals for the Fourth Circuit, in Liberty Life Ins. v. Commercial Union Ins. (“Liberty I”), 857 F.2d 945 , 950 (4th Cir.1988) — a case with substantially similar facts to the one at bar — left open the question whether solicitations by agents and for agents constitutes “advertising activities.” In the case sub judice, however, the lower court found that the facts do not suggest that Monumental’s agents’ solicitations fell within Monumental’s advertising activities, and therefore the lower court was not persuaded by the court’s holding in Liberty I. The lower court concluded that all of the aforementioned factors demonstrate that “normal and customary usage” of “advertising activities” requires that it be of a public nature — which was not shown in the case at hand.

We agree for the following reason: the plain meaning of the term “advertising” to a reasonably prudent person is not susceptible of more than one meaning, and encompasses only the “public” sense of the word. ADVERTISING vs. SOLICITATION Judges Nickerson and Kaplan, relying on Maryland law in the interpretation of insurance policies, held that a ⁵²⁶ reasonable layperson would not construe “advertising activities” in the context of the CGL policies to include the one-to-one sales activity of Monumental’s agents. The lower court clearly viewed advertising and solicitation as mutually exclusive, the difference being that advertising must be of a public nature. The court therefore found that Monumental’s solicitations of Peoples’ policyholders were not advertising because they were not of a “public nature.” Judges Nickerson and Kaplan stated that “while 10,000 policies being replaced by Monumental may be widespread, it is neither ‘public’ nor ‘advertising.’ ” We agree.

As we have noted previously, It is well settled that the construction of a written contract is ordinarily considered to be an issue of law for resolution by the trial judge. University Nat’l Bank v. Wolfe, 279 Md. 512 , 369 A.2d 570 (1977); Allen Engineering Corp. v. Lattimore, 235 Md. 182 , 201 A.2d 13 (1964). Only when there is a bona fide ambiguity in the contract’s language or legitimate doubt as to its application under the circumstances is the contract submitted to the trier of the fact for interpretation. See Board of Trustees v. Sherman, 280 Md. 373 , 373 A.2d 626 (1977); 4 Williston on Contracts § 616 (1961).

Ambiguity arises if, to a reasonably prudent person, the language used is susceptible of more than one meaning and not when one of the parties disagrees as to the meaning of the subject language. Truck Ins. Exch. v. Marks Rentals, Inc., 288 Md. 428 , 418 A.2d 1187 (1980). Board of Educ. of Charles County v. Plymouth Rubber Co., 82 Md.App. 9, 26-27 , 569 A.2d 1288 (1990).

In the present case, we agree with the lower court that there is no bona fide ambiguity in the language of the policies at issue, nor is there any legitimate doubt as to its application under the circumstances. “Advertising” means advertising, i.e., “widespread distribution or announcements to the public.” Consequently, Monumental’s individ ⁵²⁷ ual, one-to-one solicitations were clearly not “advertising” within the normal meaning of the word and, accordingly, the lower court acted properly. B. THE EXCESS POLICIES: USF & G, RELIANCE AND US FIRE — SCOPE OF “ADVERTISING ACTIVITIES” The Excess policies of USF & G, Reliance, and US Fire are on a somewhat different footing than the CGL policies discussed above. The distinction is that each of the three Excess policies expressly contained companion language that limited advertising injury coverage to certain listed offenses committed in four specified types of publications: (1) an “advertisement,” (2) a “publicity article,” (3) a “broadcast” or (4) a “telecast.” With respect to all three carriers, the lower court held that Monumental suffered no advertising injury as that term is defined in the carriers’ respective Excess policies. The lower court stated that [t]here is no generalized term “advertising activities” within the definition of advertising injury in the Excess policy but only the language “advertisement, publicity article, broadcast or telecast.” In this regard, the lower court examined the case of Liberty Life Ins. v. Commercial Union Ins.

(“Liberty II”), Case No. C/A 6:85-1352-17 (D.S.C. August 14, 1989) aff'd, No. 89-1799 & 89-1800 (4th Cir. February 14, 1991), a case which was cited by Monumental in its brief. Liberty II concerned a policy with the same language as the carriers’ Excess policies in the case sub judice, and involved substantially identical facts. Having so considered Liberty II, the lower court in the case at bar proceeded to draw its decisive language therefrom: It is no where [sic] alleged in any of the underlying [Peoples’] complaints that any of the causes of action for which recovery is sought involved an offense ‘committed in any advertisement, publicity article, broadcast or telecast’; nor has [Monumental] brought to this Court’s attention any ‘advertisement, publicity article, broadcast ⁵²⁸ or telecast^] which contains the arguable [sic] offensive language or activity being asserted as the basis of [Peoples’] claims. {Quoting Liberty II at 24.) The lower court held that Monumental’s alleged solicitations did not constitute advertising activity and that none of the alleged activity (including the mailing of certain recruiting letters by Monumental) was done in any “advertisement, publicity article, broadcast or telecast” as defined in the carriers’ Excess policies. We agree.

Because this “companion language” expressly appeared in each of the carriers’ Excess policies, we hold that coverage was clearly provided only for “advertising” in its general “public” sense. Consequently, because Monumental’s “solicitations” at issue were admittedly not public in nature, neither USF & G, Reliance, nor US Fire had a duty to defend Monumental with regard to advertising injury under their respective Excess policies. 20 II. DID THE LOWER COURT PROPERLY GRANT SUMMARY JUDGMENT FOR USF & G AND RELIANCE ON MONUMENTAL’S CLAIM FOR PERSONAL INJURY COVERAGE? The lower coúrt granted summary judgment in favor of USF & G and Reliance, and against Monumental, and in so doing denied Monumental personal injury coverage 21 .

Monumental now asserts that, for the following three reasons, summary judgment should not have been granted against ⁵²⁹ it: (1) with respect to USF & G only, and contrary to the lower court’s finding, the applicable statutes of limitations had not run on the Peoples’ claims for which Monumental sought coverage, (2) with respect to Reliance only, and contrary to the lower court’s finding, the alleged defamatory statements first occurred during (as opposed to prior to) the effective dates of the policy, and (3) also with respect to Reliance only, the lower court improperly determined that no “occurrences” took place which would trigger coverage. We discuss these contentions respectively below. A. USF & G only — Statutes of Limitations With respect to USF & G only, the lower court found that the statute of limitations played a big part in allowing USF & G to properly deny personal injury coverage to Monumental. Specifically, with respect to Monumental’s CGL policy with USF & G, Judges Nickerson and Kaplan determined that there were two independent reasons why USF & G could properly decline personal injury coverage to Monumental: (1) Peoples’ underlying defamation claim was barred by the applicable statute of limitations, and (2) “Exclusion (4)” acts to preclude coverage to Monumental for defamatory statements made by Monumental with “knowledge of [the] falsity [of such statements].” Moreover, with respect to Monumental’s Excess policy with USF & G, Judges Nickerson and Kaplan determined that USF & G could properly decline personal injury coverage to Monumental simply because the statute of limitations had run on Peoples’ underlying defamation claim.

In the relevant portion of its written opinion, the lower court held as follows: [Peoples’ underlying] defamation claim was precluded by the statute of limitations as to USF & G at the time Peoples’ filed its complaint. Peoples filed suit on August 1, 1986, and because defamation has a one year limitations, all such claims before August 1, 1985, were barred at the time the suit was filed because USF & G’s policy expired December 1,1983. Monumental failed to move to ⁵³⁰ dismiss defamation claims accruing before August 1, 1985. In light of these events, this Court agrees with USF & G that it should not have a duty to defend nor have damages imposed upon it for failure to defend the allegation of defamation.

Another district court faced a similar situation and reasoned: Given these facts ... [w]hile the court would not go so far as to impute to defendants an improper motive in their failure to take reasonable steps to obtain an expeditious dismissal of the obviously time-barred claims, in the court’s view