April 19, 2019

Tenth Circuit: Junk Fax Claims Against Commercial Insurer Barred by Policy Language

The Tenth Circuit Court of Appeals issued its opinion in Emcasco Insurance Co. v. CE Design, Ltd. on Monday, May 4, 2015.

In April 2008, Custom Mechanical Equipment, Inc., an Oklahoma company, faxed an unsolicited advertisement to CE Design, Inc. in Illinois. Rather than simply throw the fax away, CE Design sued Custom in Illinois state court and sought to certify a class of others who had received unsolicited faxes from Custom. CE Design alleged Custom breached the Telephone Consumer Protection Act (TCPA), which provides $500 in damages for each violation, as well as alleging common law conversion based on the use of paper, toner, the fax machine, and CE Design staff time. Custom submitted the claim to its insurer, Emcasco, which denied coverage and declined to defend Custom. In June 2011, CE Design and Custom settled, entering into an agreement for $1,276,000 in damages ($500 for each of the 2,552 junk faxes Custom sent) whereby CE Design agreed to enforce the judgment only against Emcasco. The Illinois trial court approved the settlement in September 2011.

CE Design brought suit against Emcasco in the U.S. District Court for the Western District of Oklahoma, seeking a declaratory judgment that Emcasco’s policy legally obligated it to pay the CE Design’s judgment. Emcasco then filed suit in the U.S. District Court for the Northern District of Illinois, seeking a declaratory judgment that it was not liable. Upon CE Design’s motion, the Illinois district court transferred the case to Oklahoma. In June 2013, both parties moved for summary judgment. Emcasco argued it had properly denied coverage and refused to defend because Custom’s fax was neither an “occurrence” causing property damage nor a “personal and advertising injury,” and alternatively argued that three policy exclusions barred coverage. CE Design responded that the policy covered Custom and no exclusion applied. After hearing arguments, the district court granted summary judgment in favor of Emcasco and denied CE Design’s motion. CE Design appealed.

On appeal, the parties agreed that Oklahoma law regarding insurance contracts governed the dispute. At oral argument, CE Design conceded the statutory violation language in the policy removed Emcasco’s duty to defend the TCPA claim. The Tenth Circuit agreed. Turning next to the conversion claim, the Tenth Circuit found that CE Design sufficiently pleaded conversion, but in doing so defeated policy coverage, since by pleading conversion CE Design acknowledged that the fax was not an “accident” for policy purposes. The Tenth Circuit next turned to CE Design’s “negligent conversion” claim, alleging conversion under a mistaken belief of right to appropriation of the property. The Tenth Circuit agreed that such “negligent conversion” could qualify as an “accident” under the policy, but CE Design’s bare allegations of mistake were not supported by anything in the record, noting that “[i]f this sufficed as an accident, it is hard to imagine what would not.” The Tenth Circuit found Emcasco had no duty to defend under the “negligent conversion” theory. Tenth Circuit similarly rejected CE Design’s Illinois Consumer Fraud Act (ICFA) claim, finding CE Design was required to prove the defendant intended the plaintiff to rely on a deceptive act in order to further an ICFA claim, and further finding such a deceptive act would trigger all of the same exceptions from Emcasco’s coverage.

The Tenth Circuit next analyzed Emcasco’s argument that its statutory violation exclusion barred coverage under all three of CE Design’s claims. The Tenth Circuit, looking at the plain language of the insurance policy, agreed that coverage would have been barred, since all of CE Design’s claims relied at their core on violations of the TCPA. Because TCPA claims were barred by the contract, all of CE Design’s claims failed.

The Tenth Circuit affirmed the district court’s grant of summary judgment to Emcasco.

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