A recent Tenth Circuit decision undercut policyholder arguments that Telephone Consumer Protection Act (TCPA) claims are insurable under a standard CGL policy. Policyholders should take note of this decision but should not assume that all TCPA claims are necessarily uncovered.

On February 21, the Tenth Circuit affirmed a finding of no coverage on appeal from the District of Colorado. In Ace American Insurance Company v. Dish Network, LLC, the Tenth Circuit held there was no duty to defend Dish in a lawsuit alleging various violations of state and federal laws relating to telemarketing phone calls. The court held that statutory damages and injunctive relief sought under the TCPA were uninsurable penalties instead of insurable “damages” under the relevant liabilities policies. The court also rejected Dish’s argument that the TCPA’s provisions governing actual monetary loss qualified as a remedial provision that could be insured under Colorado law. Finally, the court rejected Dish’s argument that the underlying claims for equitable relief could constitute insurable damages.

Policyholders should take note of this case for several reasons:

1. Rising TCPA Claims. TCPA claims continue to gain popularity on court dockets across the country. Insurers will undoubtedly lean on this case as a basis for denial of coverage in similar cases. That said, TCPA policyholders should not simply assume that all hope is lost. For example, the Tenth Circuit’s decision relies heavily on aspects of Colorado law that may not be controlling in other jurisdictions.
2. Claims for Equitable Relief May Still Trigger Duty To Defend. This case is a good reminder of the importance of a detailed analysis relating to the particular damage allegations in an underlying lawsuit when considering the duty to defend. The Tenth Circuit did not shut the door on the possibility of a duty to defend claim seeking equitable relief. Instead, the decision is limited to the particular allegations in the underlying complaint.
3. TCPA Exclusions Becoming More Common. The court noted that several later policies contained specific exclusion endorsements for TCPA claims. Policyholders that may face TCPA allegations should consider whether their current liability policies contain such exclusions and, if so, whether additional coverage may be necessary to protect against such future allegations.
4. Some Coverage Arguments Not Fully Addressed. Unfortunately, the Tenth Circuit did not reach some of the other interesting coverage questions that could have played a role. For example, I would have been interested to see the court’s analysis of whether “bodily injury” or “property damage” was alleged in the underlying litigation.

This case is not the death knell for coverage for TCPA defendants, but it may prove a hurdle even in jurisdictions beyond Colorado. Companies that face this risk should consider their current coverage portfolio, particularly with respect to any exclusions that may expressly or implicitly apply to TCPA claims. In the event of a claim, companies should analyze each case independently, including consideration of choice of law and the particular policy provisions and allegations at issue.