Justia Insurance Law Opinion SummariesArticles Posted in Communications Law
National Union Fire Insurance v. Dish Network
The United States and four states sued DISH Network, LLC (“DISH”) for violations of the Telephone Consumer Protection Act (“TCPA”). DISH submitted a claim for defense and indemnity to its insurer, National Union Fire Insurance Company of Pittsburgh, Pennsylvania (“National Union”). National Union denied the claim and filed suit in Colorado federal court seeking a declaration that it had no duty to defend or indemnify DISH in the underlying TCPA lawsuit. The district court granted summary judgment to National Union, relying on the Tenth Circuit's decision in ACE American Insurance Co. v. DISH Network, LLC, 883 F.3d 881 (10th Cir. 2018). Finding no reversible error, the Tenth Circuit affirmed the district court's judgment. Further, the Court affirmed the district court’s denial of DISH’s request for further discovery under Federal Rule of Civil Procedure 56(d). And we deny DISH’s motion to certify a question of state law to the Colorado Supreme Court. View "National Union Fire Insurance v. Dish Network" on Justia Law
Mesa Laboratories, Inc. v. Federal Insurance Co.
Mesa sent faxes promoting its services. Some recipients had not consented to receive such faxes, and the faxed materials did not include an opt‐out notice as required by the Telephone Consumer Protection Act (TCPA), 47 U.S.C. 227(b)(1)(C). Orrington filed a class‐action lawsuit under the TCPA and the Illinois Consumer Fraud and Deceptive Business Practices Act and alleged that Mesa’s conduct constituted common‐law conversion, nuisance, and trespass to chattels for Mesa’s appropriation of the recipients’ fax equipment, paper, ink, and toner. Mesa notified its insurer, Federal, of the Orrington action. Federal declined to provide a defense. After Mesa and Orrington reached a settlement, Mesa sued Federal, alleging breach of contract, bad faith, and improper delay and denial of claims under Colorado statutes.The Seventh Circuit affirmed summary judgment in favor of Federal. The policy’s “Information Laws Exclusion” provides that the policy “does not apply to any damages, loss, cost or expense arising out of any actual or alleged or threatened violation of “ TCPA “or any similar regulatory or statutory law in any other jurisdiction.” The exclusion barred all of the claims because the common-law claims arose out of the same conduct underlying the statutory claims. View "Mesa Laboratories, Inc. v. Federal Insurance Co." on Justia Law
Brokers’ Choice of America v. NBC Universal
In 2007, undercover producers from NBC Universal, Inc., attended and surreptitiously recorded a seminar presented by plaintiff-appellant Brokers’ Choice of America, Inc. to teach insurance agents how to sell annuities to seniors. NBC used excerpts and information from the seminar in a “Dateline NBC” episode. Brokers’ Choice and its founder Tyrone Clark (collectively, “BCA”) sued for defamation. This appeal concerned the district court’s dismissal of the amended complaint after it compared the seminar recording with the episode and concluded the Dateline program was substantially true. After review, the Tenth Circuit Court of Appeals affirmed because the Dateline episode was not materially false. View "Brokers' Choice of America v. NBC Universal" on Justia Law
Auto-Owners Ins. Co. v. Stevens & Ricci Inc
Relying on an advertiser’s claim that its fax advertising program complied with the Telephone Consumer Protection Act (TCPA), 47 U.S.C. 227, Stevens & Ricci allowed the advertiser to fax thousands of advertisements to potential customers on its behalf. More than six years later, Hymed filed a class action TCPA lawsuit, which settled with a $2,000,000 judgment against Stevens & Ricci. While that suit was pending, Auto-Owners sought a declaratory judgment, claiming that the terms of the insurance policy it provided Stevens & Ricci did not obligate it to indemnify or defend Stevens & Ricci in the class action. The Third Circuit affirmed summary judgment, finding that the sending of unsolicited fax advertisements in violation of the TCPA did not fall within the terms of the insurance policy. The “Businessowners Insurance Policy” obligated Auto-Owners to “pay those sums that the insured becomes legally obligated to pay as damages because of ‘bodily injury’, ‘property damage’, ‘personal injury’ or ‘advertising injury’ to which this insurance applies.” The “advertising injury” deals only with the publication of private information, View "Auto-Owners Ins. Co. v. Stevens & Ricci Inc" on Justia Law
Defender Sec. Co. v. First Mercury Ins. Co.
Brown filed a class action complaint, alleging that she contacted Defender by telephone in response to its advertisement for a home security system; that, during several calls, she provided Defender with personal information; and that Defender recorded those calls without her permission and without notifying her of the recording. Brown claimed violations of California Penal Code 632, which prohibits the recording of confidential telephone communications without the consent of all parties. Defender owned a commercial general liability insurance policy issued by First Mercury, covering “personal injury” and “advertising injury.” In a separate definitions section, the policy defined both “advertising injuries” and “personal injuries” as those “arising out of … [o]ral or written publication of material that violates a person’s right of privacy.” The parties eventually reached a settlement. Defender provided First Mercury with timely notice of the Brown suit. First Mercury denied coverage and refused to defend. The Seventh Circuit affirmed dismissal of Defender’s suit against First Mercury. Defender’s Policy requires “publication,” which was neither alleged nor proven. View "Defender Sec. Co. v. First Mercury Ins. Co." on Justia Law
W. Heritage Ins. Co. v. Fun Servs. of Kan. City
Asphalt hired a company that, from 2005-2008, sent about 44,000 fax advertisements to potential customers. FS, which received some of the faxes, filed a class-action, alleging violation of the Telephone Consumer Protection Act, 47 U.S.C. 227, seeking statutory damages of $500 for each fax. Asphalt notified Western, its insurer during the time when roughly 33,000 faxes were sent. The policies contained a deductible of $1,000 “per claim” for property damage, personal, and advertising injury, applicable to “all damages sustained by one person or organization as the result of any one claim” and to “legal expenses incurred in the handling and investigation of each claim.” Western hired a law firm to represent Asphalt, but did not refer to a reservation of rights. The firm handled the defense for four years. Western sent another letter, stating that Western intended to defend subject to a reservation of rights. Western sought a declaration that it owed no duty to defend or to indemnify. The district court determined that FS lacked standing to bring counterclaims and that Western had a duty to defend, having waived its defenses by waiting four years to issue a reservation-of-rights letter. The Eighth Circuit affirmed, holding that Western did not waive the $1,000 deductible, which applies separately to each fax, so that there is also no duty to indemnify. View "W. Heritage Ins. Co. v. Fun Servs. of Kan. City" on Justia Law
Bridgeview Health Care Ctr., Ltd. v. State Farm Fire & Cas. Co.
Bridgeview Health Care Center filed a class action complaint against Clark, an Illinois resident who operates Affordable Digital Hearing, a sole proprietorship out of Terre Haute, Indiana. Bridgeview alleged that Clark sent Bridgeview and others unsolicited faxes and claimed violation of the Telephone Consumer Protection Act of 1991, 47 U.S.C. 227; common law conversion of its fax paper and toner; and violation of the Consumer Fraud and Deceptive Business Practices Act, 815 ILCS 505/2. Clark had a comprehensive general liability policy issued by State Farm, an Illinois corporation. The policy was purchased through an Indiana agent and issued to Clark’s Indiana business address. State Farm sought declaratory judgment that it had no duty to defend in Indiana state court. The action was dismissed for lack of personal jurisdiction over Bridgeview. Bridgeview sought a declaration, in Illinois state court that State Farm had a duty to defend and indemnify Clark under the advertising injury and property damage provisions of the policy. State Farm argued that Illinois law conflicts with Indiana law on coverage issues and that Indiana law should apply. The circuit court found that there was no conflict and no need to conduct a choice-of-law analysis. The appellate court reversed, finding that decisions cited by State Farm were sufficient to raise the possibility of a conflict, requiring a choice-of-law analysis The Illinois Supreme Court reversed, finding that State Farm failed to meet its burden of demonstrating that an actual conflict exists between Illinois and Indiana law.View "Bridgeview Health Care Ctr., Ltd. v. State Farm Fire & Cas. Co." on Justia Law
Addison Automatics, Inc. v. Hartford Cas. Ins. Co.
Addison filed a class action, alleging that Domino had sent thousands of “junk faxes” in violation of the Telephone Consumer Protection Act, 47 U.S.C. 227, and the Illinois Consumer Fraud Act, and had committed the tort of conversion. Domino’s insurers refused to defend. Domino negotiated a settlement to protect its own interests; Addison and Domino agreed that the state court should certify a class and enter a judgment of $18 million. Addison agreed that the class would not recover any money from Domino, but that Domino would assign to Addison, as class representative and for the class, whatever claims Domino might have against its insurers. The state court approved the settlement. Addison sought a state court declaratory judgment holding Hartford liable for the judgment. Hartford removed the case to federal court. Addison dismissed the case voluntarily and filed another state court suit, naming Addison as the only plaintiff. Hartford again removed the case under the Class Action Fairness Act, 28 U.S.C. 1453. The district court granted remand, finding that the suit did not fit the CAFA definition. Hartford argued that under the assignment in the underlying settlement, Addison had standing only as a class representative. The Seventh Circuit agreed, reversed, and remanded to state court. View "Addison Automatics, Inc. v. Hartford Cas. Ins. Co." on Justia Law
Truck Ins. Exch. v. CE Design Ltd.
CE is a small Chicago-area engineering firm that has filed at least 150 class action suits under the Telephone Consumer Protection Act. In this case, CE sued Cy’s Crab House on behalf of a class of junk-fax recipients. Truck is the liability carrier for the Cy’s Crab House restaurants and provided a defense under a reservation of rights. The case was certified as a class action, and went to trial. In the middle of trial, without notifying the insurer, Cy’s settled with the class, for policy limits. State-court coverage litigation ensued. The district court approved the final settlement and entered final judgment. Less than a month later, the Seventh Circuit issued a decision casting doubt on the conduct of class counsel. In light of that decision, Truck moved to intervene to reopen the judgment, challenge the settlement, and seek class decertification based on misconduct by class counsel. Instead of filing a conditional appeal, Truck asked the district court for a 14-day extension of the time to appeal. Ultimately the court denied intervention as untimely. Truck Insurance filed a notice purporting to appeal both the order denying intervention and the final judgment. The Seventh Circuit held that it had jurisdiction to review the order denying intervention, but could not grant any meaningful relief because it lacked jurisdiction to review the final judgment. View "Truck Ins. Exch. v. CE Design Ltd." on Justia Law
Standard Mut. Ins. Co. v. Lay
Lay, a real estate company, hired a business to send advertising faxes on its behalf by “blast fax,” which sends advertisements to thousands of fax machines cheaply. As a result, Lay became the defendant in a class action filed by Locklear under the Telephone Consumer Protection Act. The matter settled. A monetary judgment was entered against Lay to be paid only from Lay’s insurance policies. The Act in question provides for $500 in damages for each violation, and, with a putative class of 3,478 in the underlying action, the total damage amount reached $1,737,500, plus costs. Lay’s insurer, Standard, successfully sought a declaration of noncoverage. The appellate court affirmed, reasoning that the damage provision of the Act allows for punitive damages, which are uninsurable under Illinois law as a matter of public policy. The Illinois Supreme Court remanded, reasoning that the Act is a remedial statute, even though it provides for $500 in liquidated damages per violation. The ban on insurability does not apply. View "Standard Mut. Ins. Co. v. Lay" on Justia Law