The Federal Telephone Consumer Protection Act (TCPA) makes it illegal to send unsolicited advertisements to fax machines. The Act provides that damages in these cases will be equal to the actual monetary loss suffered by the plaintiff or $500 per fax, whichever is greater. In the event that violation of the Act is found to be knowing and willful, the penalty is tripled.
In Standard Mutual Insurance Co. v. Lay, the defendant, a real estate agency, had hired a “fax broadcaster” which allegedly assured that only people who had agreed to receive advertisements would get its blast fax. This turned out not to be the case though, and the subsequent class-action litigation sought the triple penalty of $1,500 for each of the 3,478 faxes, which had reportedly been sent. The case settled for more than $1.7 million.
Meanwhile, the insurer filed a declaratory judgment action, seeking a declaration of no coverage. After the underlying action settled, the class representative became involved with the declaratory judgment action. The Circuit Court ruled in favor of the insurer and the Appellate Court upheld that ruling, stating that the TCPA penalties could not be insured as a matter of public policy, since they were punitive damages.
The attorney for Lay argued that it was the nature of the conduct, rather than the nature of the penalty, which should determine insurability. He explained that the insured’s conduct was not willful or wanton and did not involve the type of intentional wrongdoing which public policy does not allow to be insured as it would encourage such conduct. The attorney argued that a point by point or “conduct by conduct” analysis is necessary when determining whether conduct is uninsurable as a matter of public policy because it involves willful and wanton misbehavior. The attorney argued that Valley Forge Insurance Co. v. Swiderski Electronics ruled that TCPA damages have the potential to be covered under an advertising injury policy, much like the one involved in the case currently before the Court and that no intentional wrongdoing was involved.
The attorney for the insurer argued that there was an issue of possible breaches by the insured of the policy. The insurer defended under a reservation of rights letter. About four months after the case was filed, the attorney that had been hired by the insurer was fired by the insured. A month or two later, the insured agreed to the $1.79 million settlement with a covenant not to execute against any of the insured’s assets. The insurer’s attorney thereby suggested that there were questions of a breach of the cooperation clause and a voluntary payment had been undertaken. Chief Justice Kilbride asked the attorney if the insurer knew about and objected to the insured’s settlement. The attorney responded that the insurer had not been aware of the settlement.
The attorney for the class representative counter-argued that the insured had the right to settle under the circumstances and that the insurer had certainly known about the settlement.
The Illinois Supreme Court heard these arguments on the final day of the March term and is expected to make a decision in the fall. You can watch the oral argument before the Supreme Court by clicking here.
Our Chicago class action attorneys bring class action autofraud and breach of warranty lawsuits regarding defective automobiles. We also bring individual consumer rights lawsuits and autofraud lawsuits. We bring suit for many types of consumer fraud issues and for unpaid overtime, junk fax, privacy rights violations, false advertising and other claims on a class wide basis. Super Lawyers has selected our Kane, DuPage and Cook County class action lawyers as among the top 5% in Illinois. Our Chicago class action attorneys only collect our fees if we win or settle your case. For a free consultation call us at our toll free number (877) 990-4990 or contact us on the web by clicking here.