Summary Judgment - TCPA Coverage November 2015
Lori A. Vanderlaan and Thomas J. Costello, III
Lori Vanderlaan and Tom Costello obtained summary judgment for their client in a case filed by an underlying junk fax plaintiff. The plaintiff had filed their junk fax lawsuit alleging that unsolicited fax ads sent by our client’s insured violated the TCPA and Illinois Consumer Fraud Act, and also constituted conversion. After BVH’s client properly denied coverage for the suit based on an exclusion for any liability “arising out of the TCPA”, the underlying plaintiff obtained a summary judgment for approximately $8,400,000. They then sought a judgment that our client owed a duty to indemnify the judgment, arguing that they owed and breached a duty to defend. This case involved an additional wrinkle, in which the plaintiff argued that numerous policies were involved, some of which did not include the exclusion for liability arising out of the TCPA, and that if insufficient notice of the addition of the exclusion to the policy was not provided, the exclusion did not apply. BVH filed a motion to dismiss, which resulted in dismissal of the claims that more than one policy applied and that the insurer did not provide sufficient notice of the exclusion being added to the policy. BVH then filed a motion for summary judgment, arguing that the policy exclusion for liability “arising out of” the TCPA clearly and unambiguously applied, so that our client owed no duty to defend and thus no duty to indemnify the judgment. The trial court agreed and granted summary judgment in favor of BVH’s client, holding that the exclusion applied, and rejecting arguments by the plaintiff’s counsel that the exclusion was too narrow to apply to the non-TCPA counts that alleged conversion and violation of the Illinois Consumer Fraud Act. The court agreed with BVH in rejecting the plaintiff’s attempts to analogize this case to recent contrary decisions from other courts. Additionally, the 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 the same to Cook County that was granted by the Lake County judge, despite the purported class in the underlying suit containing Lake County members.