United States District Court, D. Kansas
MEMORANDUM AND ORDER
Thomas Marten Chief United States District Judge
claim that Farm Bureau breached the parties' insurance
contract by failing to defend or provide coverage on a civil
lawsuit against plaintiffs. The lawsuit accused plaintiffs of
selling wheat seed in violation of the Plant Variety
Protection Act (PVPA), 7 U.S.C. § 2321 et seq.,
which gives patent-like protection to owners of certain plant
varieties. Plaintiffs argue they were entitled to a defense
and to coverage under a Business Injury Liability module in
their Farm Bureau policy. Farm Bureau refused to provide a
defense and denied coverage. The matter is now before the
court on the parties' cross-motions for summary judgment.
court finds the following facts to be uncontroverted for
purposes of summary judgment.
and Dane Parker are brothers. They operate a farming business
known as D&B Parker Farms, L.L.C. They are the sole
members of the LLC. In about 2012, D&B Parker Farms
performed some harvesting work for Steve Hirt in Waterville.
In exchange for this service, Hirt gave Brett Parker over 1,
000 bushels of seed wheat. Hirt told him it contained a
combination of varieties, including the Fuller variety.
the 2013 planting season, D&B Parker Farms had some of
the Hirt seed left over. Brett Parker decided to sell it.
Rather than sell it to the local grain elevator, where he
would only get $7 or $7.50 a bushel, Brett decided to sell it
directly to other farmers, and he took out an ad in the farm
magazine Grass & Grain. The ad stated:
“SEED WHEAT for sale. 3 Way blend. Art, Fuller &
2137, cleaned.” When Brett received a call in response
to the ad, he informed the caller that he had already sold
around 1, 000 bushels of the seed wheat and that it was
“certified and - probably be one year out.” On
October 23, 2013, Brett met with the caller and sold him 148
bushels of the seed wheat at $10 a bushel. He gave the buyer
a hand-written receipt specifying that the seed contained
“Art, Fuller, [and] 2137” varieties.
and the KWA Lawsuit.
the PVPA, a certificate holder generally has the right for 20
years to exclude others from selling a protected variety, or
from offering it for sale, or from reproducing it. 7 U.S.C.
§ 2483. It is an infringement of a certificate
holder's rights for a person, without authority,
“to sell or market the protected variety, or offer it
or expose it for sale, deliver it, ship it, consign it,
exchange it, or solicit an offer to buy it, or any other
transfer of title or possession of it.” 7 U.S.C. §
2451(a). With certain exceptions, it is not an infringement
for a person to save seed produced by the person from seed
obtained, or descended from seed obtained, with authority of
the certificate holder, and to use it in the production of a
crop on the farm of the person. § 2543. Nor is it an
infringement to engage in a bona fide sale for other than
reproductive purposes, made in channels usual for such
purposes, of seed produced on a farm from seed obtained, or
descended from seed obtained, by authority of the certificate
Kansas State University Research Foundation (KSURF) obtained
a PVPA certificate for Fuller wheat seed in 2008. The
certificate is now held by the Kansas Wheat Alliance (KWA).
Neither Brett, Dane, nor D&B has ever had a license to
sell Fuller seed.
weeks after Brett sold the seed, an attorney sent him a
letter on behalf of the KWA, informing him that the purchaser
of the seed was actually a KWA investigator, and demanding
$15, 000 in compensation. The Parkers retained an attorney,
who exchanged numerous letters with the KWA attorney. In
March 2014, they reached an apparent settlement of $7, 000,
but Brett refused to provide the name of the person who sold
him the wheat or the locations where the Parkers had planted
Fuller seed, and the settlement fell through.
and KSURF filed suit against Brett Parker and D&B Parker
Farms on April 4, 2014. The complaint alleged that the
Parkers violated the PVPA by advertising, selling, and
replanting the Fuller wheat seed on land they did not own,
without authorization from the KWA or KSURF. It sought
monetary damages, an injunction to prevent future
infringement, treble damages for willful violations, and
Farms had an insurance policy from Farm Bureau that was in
effect from July 8, 2013, through July 8, 2014. Brett Parker,
his wife Amanda, and D&B [Parker] Farms are the named
insureds under the policy.
policy included a Farm/Ranch and Personal Liability module
that provided coverage for property damage and bodily injury
caused by the Parkers during their farming operations (but
specifically excluding business damages). This module was
added to the policy on or about April 24, 2009. D&B
Parker Farms, LLC, was added as a named insured at that time.
about May 6, 2009, the Parkers submitted an application to
add a Business Liability module to their policy for a rental
dwelling. They had not previously had Business Liability
insurance through Farm Bureau. The application lists the
address for the rental property as 116 Vista Rd, Waterville,
Kansas, and lists annual income ...