Summary Judgment Affirmed on Appeal - No Indemnity Owed for $1.8 Million Junk Fax Judgment November 2016
Lori A. Vanderlaan and Thomas J. Costello, III
Lori Vanderlaan and Tom Costello obtained a dismissal with prejudice of a lawsuit filed against its insurance company client by a junk fax plaintiff who sought a declaration from the court that our client was required to indemnify the underlying judgment in the amount of approximately $1.8 million. The Court agreed with BVH that our client never owed any duty to defend the underlying suit alleging violations of the TCPA, conversion, and Illinois Consumer Fraud Act. At issue was an exclusion in the policy issued by BVH’s client, which precluded liability “arising out of” the TCPA. The plaintiff argued that the exclusion did not apply to the two non-TCPA counts in the underlying complaint, which alleged conversion and a violation of the ICFA. The court agreed with BVH that this was not the case and the exclusion applied to all three counts. In doing so, the court rejected arguments that the exclusion was too narrow and that the exclusion was not properly added to the policy due to a lack of notice to the insured. Plaintiff originally filed the complaint in Lake County, Illinois, which they believed to be a more favorable venue, and BVH filed a motion to transfer to Cook County that was granted by the Lake County judge despite the purported class in the underlying suit containing numerous Lake County members.