[author: Joshua Threadcraft]

Owners Ins. Co. v. European Auto Works, Inc., No. 11-3068, 2012 WL 4052406 (8th Cir. Sept. 17, 2012).

At issue in the declaratory judgment action filed by Owners Insurance Company against European Auto Works, Inc. was whether Plaintiff’s insurance policy provided coverage for a $1,951,500 settlement of a class action lawsuit, which was only enforceable against the insurer, not the insured, if coverage was found to exist. Recognizing that the primary issue presented was whether the advertising injury provision for “oral or written publication of material that violates a person’s right of privacy” covers the sending of unsolicited fax advertisements in violation of the TCPA, the court noted that the majority of courts addressing the issue have found that the phrase provides coverage for TCPA claims. Applying Minnesota law, and affirming the district court’s finding of coverage, the U.S. Court of Appeals for the Eight Circuit concluded that “under Minnesota law ‘oral or written publication of material that violates a person’s right of privacy’ covers the TCPA claim at issue here for the sending of unsolicited fax advertisements. Such conduct involves a ‘publication of material (the sending of the unsolicited fax advertisement) that violates a ‘right of privacy (the right to seclusion based privacy protected by the TCPA). Our reading of the policies is faithful to Minnesota principles of insurance contract interpretation, which require courts to give terms their ‘plain, ordinary, and popular meaning,’ and to resolve ambiguities according to the ‘reasonable expectations of the insured.’ Our conclusion is also consistent with the majority of courts which have found coverage for TCPA claims under similar provisions.”

For more information on TCPA regulation and effects, contact Burr & Forman attorney, Joshua Threadcraft, here.