Submitted: July 24, 2014
Upon Consideration of Plaintiff's Motion for Summary Judgment DENIED
Karen E. Keller, Esq., and David M. Fry, Esq., Shaw Keller, Wilmington, Delaware. Attorneys for Plaintiff.
Steven J. Balick, Esq., Andrew D. Cordo, Esq., and Stacey L. Newman, Esq., Ashby & Geddes, Wilmington, Delaware. Attorneys for Defendants.
James T. Vaughn, Jr.
This is a declaratory judgment action brought by the plaintiff, Avaya Inc., against the defendants, Charter Communications Holding Company, LLC and Charter Communications, Inc. (together "Charter"). The Complaint alleges that Avaya did not breach an agreement with Charter and had no obligation under the agreement to defend or indemnify Charter against a patent infringement action filed by Ronald Katz Technology Licensing LP.
Avaya has filed a Motion for Summary Judgment contending that Charter failed to give prompt notice of the Katz litigation, a necessary condition precedent before Avaya's defense and indemnification responsibilities are triggered.
The following facts are taken from the pleadings and the exhibits attached thereto. To the extent that the facts are in dispute, the Court relies on the allegations contained in nonmoving Charter's response.
Charter is a broadband communications company that provides cable television, internet, telephone services and advanced video services to residential and business customers. Avaya provides equipment, software and related services for call center systems and customer support.
On January 5, 2001, Charter and Avaya entered into a Master Purchase Service Agreement ("MPSA") for the purchase of Avaya equipment including a private branch exchange system, an automatic call distribution system, an interactive center, customer management software, interaction soft phones, and handsets or physical phones.
Section 13 of the MPSA, entitled "Patent and Copyright Indemnity, " obligates Avaya to defend Charter in the event that any claim is brought against Charter related to Charter's use of Avaya products purchased under the MPSA:
A. Avaya will defend or settle, at its own expense, any claim or suit against you alleging that any Avaya Products purchased under this Agreement infringe any United States patent or copyright or trade secret. Avaya will also pay all damages and costs that may be assessed against you due to such infringement as such damages and costs are incurred. Avaya's obligation is expressly conditioned upon the following: (1) you shall promptly notify Avaya in writing of such claim or suit; (2) Avaya shall have sole control of the defense or settlement of such claim or suit; (3) you shall cooperate with Avaya in a reasonable way to facilitate the settlement or defense of such claim or suit; (4) the ...