In Grand China Buffet & Grill, Inc. v. State Auto Property & Casualty Co., 1:16cv159, 2017 WL 2129307 (N.D. W.Va. May 16, 2017), the U.S. District Court for the Northern District of West Virginia held that underlying claims relating to a restaurant’s refusal to serve an impaired customer with a service dog, did not implicate the “wrongful eviction” offense in the definition of “personal and advertising injury.”  Therefore, the district court found that State Auto Property & Casualty Co. (“State Auto”) did not owe any duty to defend its insureds, Grand China Buffet & Grill, Inc. and Qi Feng Chen (“Grand China”).

Grand China operates a restaurant (“Restaurant”).  The underlying plaintiff, Scott Ullom, has hearing and other physical impairments that require his use of a service dog.  Ullom and his service dog allegedly attempted to enter the Restaurant, but were denied entry by the Restaurant’s manager. The manager allegedly advised Ullom that his dog could not enter the Restaurant and was directed to leave.

Thereafter, Ullom initiated suit against Grand China, seeking damages for Grand China’s alleged violations of the West Virginia Human Rights Act, among other claims.

After State Auto denied owing any defense obligation to Grand China for the underlying suit, Grand China initiated a declaratory judgment action against State Auto and asserted that the claims against it implicated the “personal and advertising injury” liability coverage of its CGL policy.

State Auto argued that the claims against Grand China did not allege the “personal and advertising injury” offense of “wrongful eviction from … a room, dwelling or premises that a person occupies, committed by or on behalf of its owner, landlord or lessor.”

Grand China argued that at the very least the wrongful eviction offense is ambiguous and that the offense should be construed to include the Ullom’s claim that he was excluded and forced out of the Restaurant.

The district court rejected Grand China’s argument and found the wrongful eviction offense to be unambiguous.  The district court also found that the wrongful eviction offense requires a possessory interest in real property.  In applying such requirement to the claims alleged against Grand China, the district court found that the underlying suit did not allege that Ullom had any possessory interest in the Restaurant that gave Ullom the right to occupy the Restaurant.  The underlying suit merely complained of Grand China’s wrongful refusal to serve Ullom with certain accommodations as required by West Virginia law.  Therefore, the district court held that the underlying suit did not implicate the wrongful eviction offense in the definition of “personal and advertising injury,” and that State Auto owed no defense obligation to Grand China.