Just the Fax: New Jersey Rules that Actual Property Damage is Required for Violation of the Telephone Consumer Protection Act

Proof of a violation of the Telephone Consumer Protection Act (TCPA), without corresponding evidence of either “physical injury to tangible property” or “loss of use of tangible property,” is not enough for an insured to establish that the claims against it alleged “property damage” under a CGL policy, according to the New Jersey Appellate Division’s recent decision in Penn National Insurance Company v. Group C Communications, Inc., 2018 WL 3625424 (N.J. App. Div. July 31, 2018).  In Group C Communications, the Appellate Division …

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Insurer Scores a Slam Dunk in TCPA Suit Before the Ninth Circuit

A recent decision by the Ninth Circuit is sure to catch the eye of insurers for its favorable reasoning rejecting coverage as well as a potential warning sign that policyholders are seeking coverage for Telephone Consumer Protection Act (TCPA) suits beyond CGL policies. In Los Angeles Lakers, Inc. v. Federal Insurance Company, No. 15-55777, 2017 WL 3613340 (9th Cir. Aug. 23, 2017), the Ninth Circuit determined there was no coverage for violations of the TCPA under a D&O policy. In short, by analyzing the …

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Fax Blast From the Past: Third Circuit Denies Coverage in TCPA Action

The Third Circuit denied coverage for alleged violations of the Telephone Consumer Protection Act (TCPA), while also ruling on a jurisdictional question regarding the amount in controversy applicable to declaratory judgment actions when they emanate from a class action lawsuit. This case reminds that even without a TCPA exclusion, blast fax suits may not present covered property damage or advertising injury claims.

In Auto-Owners Insurance Co. v. Stevens & Ricci, Inc., No. 15-2080, 2016 U.S. App. LEXIS 16182, (3d Cir. Sep. 1, 2016), …

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Illinois Appellate Court Rejects Coverage for Junk Fax Class Action Settlement and Calls TCPA Class Action Attorneys to Task

The Illinois Appellate Court recently offered greater protection to insurance companies from liability emanating from the Telephone Consumer Protection Act of 1991 (TCPA) and fervently condemned the reality of class action settlements rewarding only class counsel. In First Mercury Insurance Co. v. Nationwide Security Services., 2016 IL App (1st) 143924 (May 18, 2016), the Appellate Court affirmed the trial court’s judgment that First Mercury had no duty to indemnify the class (as assignees) with respect to a settlement reached in the underlying junk fax …

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Another Nail in the Junk Fax Coffin: Wisconsin Joins Illinois, California, Michigan, and Oklahoma in Finding No Coverage for TCPA Suits

The Wisconsin Court of Appeals held in a recent decision that a standard TCPA exclusion precludes coverage for all causes of action brought by the plaintiff that emanated from the unauthorized sending of faxes. This includes a common law conversion cause of action, as well as a cause of action for violations of the Telephone Consumer Protection Act (TCPA).

As background, in State Farm Fire & Casualty Co. v. Easy PC Solutions, LLC, No. 2014AP2657, 2015 Wisc. App. LEXIS 855 (Wisc. Ct. App. Dec. …

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Untimely Intervention Sinks Insurer Challenge To Allegedly Collusive $20MM Settlement

In CE Design Ltd. v. King Supply Co., LLC, No. 12-2930, 2015 U.S. App. LEXIS 11117 (7th Cir. June 29, 2015), the Seventh Circuit denied as untimely the attempted intervention of three insurers (all CNA companies) into the underlying lawsuit. The insurers were, in turn, unable to challenge the approval of a $20 million settlement between the policyholder, King Supply Co., LLC, and Plaintiff CE Design Ltd. (and its co-plaintiff).

The underlying case involved a junk fax lawsuit filed by CE Design against King …

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Violation of Statutes Exclusions Bars Coverage Entirely for TCPA Claims

In Addison Automatics, Inc. v. Hartford Casualty Insurance Co., No. 13-cv-1922 (N.D. Ill. Mar. 31, 2015) the United States District Court for the Northern District of Illinois granted summary judgment in favor of the Hartford Casualty Insurance Co. and Twin City Fire Insurance Co. (collectively “Hartford”) and against Addison Automatics, Inc. (“Addison”). The district court held that Hartford had no duty to defend their insured, Domino Plastics, Inc. (“Domino”), because the Violation of Statutes Exclusions in the policies barred coverage entirely.

The underlying lawsuit …

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Mo’ Conflict, More Problems: Illinois Choice-of-Law Analysis Now Less Favorable for Insurers

Choice-of-law analyses are extremely significant when it comes to coverage disputes, especially those involving underlying blast fax suits brought under the Telephone Consumer Protection Act (47 U.S.C. §227, et. seq.), as the question of which state’s law applies will often be determinative of whether there is insurance coverage for the TCPA claim.  The classic example involves a class representative strategically filing suit in Illinois, an historically coverage-friendly jurisdiction for TCPA lawsuits, with an eye on obtaining insurance coverage.  This strategy just got easier for …

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TCPA Exclusion Upheld by the Eleventh Circuit

In a lawsuit brought by a distribution and marketing company, the policyholder sought coverage for a lawsuit alleging that it sent “unwanted ‘junk’ faxes in violation of the [Telephone Consumer Protection] Act.”  The insurer denied coverage due to the exclusion concerning violation of statutes in connection with sending, transmitting or communicating any material or information.

The Eleventh Circuit affirmed the decision of the Middle District Court of Florida finding that the exclusion was not ambiguous or void as against public policy.  Specifically, the Circuit Court …

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Missouri Supreme Court Levies Insurer with Judgment $3 Million in Excess of Policy Limits in TCPA Case

Columbia Cas. Co. v. Hiar Holding, LLC
(Mo. Aug. 13, 2013)
The Missouri Supreme Court recently ordered an insurer to indemnify its insured for a $5 million settlement in an underlying Telephone Consumer Protection Act (TCPA) case, $3 million of which was in excess of the policy’s limits.

The TCPA provides a private right of action for recipients of unsolicited communications that are sent via automatic dialers, among other methods. A recipient may bring an action to recover $500 per violation, as well as treble …

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