Motorists Mut. Ins. Co. v. Dandy-Jim, Inc., No. 92023, 2009 WL 1346728 (Ohio Ct. App. (8th Dist.) May 14, 2009)
In this coverage case, analyzing the TCPA case, the court aligned itself with the majority views expressed by a number of courts including the Illinois Supreme Court in Valley Forge Ins. Co. v. Swiderski Elec., Inc., 223 Ill. 2d 352, 366 (2006) which criticized Am. States Ins. Co. v. Captain Assoc. of Jackson City, Inc., 392 F.3d 939, 941 (7th Cir. (Ill.) 2005) was not in accord with applicable Illinois law. The case reached a contrary result under St. Paul’s distinct policy language were distinguished on the grounds that different language required different results. It reasoned, “[a]s the Eleventh Circuit recognized in Hooters of Augusta, Inc. v. Amer. Global Ins. Co. (C.A.11 2005), 157 Fed. Appx. 201, this tighter wording of the policies” “ ‘making known’ to any person or organization written or spoken material that violated a person's right of privacy.”
The significant fact in the court’s decision as “ ‘oral or written publication’ does not suggest the same focus on secrecy that ‘making known’ does. Id. at 208.” Id. at *3.
Although there was no suggestion that faxes contained any objectionable content, the court found the point of no moment because one of the stated purposes of
the TCPA was to protect individuals from receiving unsolicited fax advertisements no matter what their content. See 47 U.S. § 227(b)(2)(B)(ii)(I) and 227(b)(2)(C). Id. at *4.
The unsolicited faxed advertisement itself is “material” that is offensive and violated the individual’s right of privacy. As the Valley Forge court, applying New Jersey law from the Supreme Court of Massachusetts observed, granting another’s claim would be tantamount to rewriting the policy for the insurer’s benefit.
The court also rejected the Insurer’s argument that a publication requires disclosure to a third person or party which did not happen here.
[A]n invasion-of-privacy claim based upon seclusion does not require that its factual underpinning include an allegation of publication to a third person. See, e.g., Sustin v. Fee (1982), 69 Ohio St.2d 143, 145-46 (“One who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of privacy, if the intrusion would be highly offensive to a reasonable person.”).
Id. at *5.
The court found no difficulty in finding that faxed advertisements are an act of “publication” in the ordinary sense of the word.
The “few marginal, direct” contacts were sufficient to constitute an intrusion because the TCPA presumes that all advertising, so long as it is unsolicited, is an offensive intrusion upon the recipient’s solitude.
Rejecting the argument that since Ohio prohibits insuring against punitive damages and treble damages were authorized by the TCPA that public policy bars any indemnity.
But the claimants are not seeking punitive damages; they are seeking damages under the TCPA. The amounts of such damages are specified by the statute. The TCPA provides for the higher of actual damages, or damages of $500 per violation. 47 U.S.C. § 227(b)(3)(B). The award may be increased to “not more than 3 times the amount available under subparagraph (B)” if the violation was committed “willfully or knowingly.” 47 U.S.C. § 227(b)(3).
Id. at *6.
There was no evidence that TCPA was intended to be punitive in nature as it was not based on purely punitive or deterrent goals.
[There] is no showing that intentional malice required to obtain treble damages under the TCPA if the fax advertisements were sent “willfully.” . . . Thus, a willful or knowing violation of the TCPA is different from an intentionally malicious act that could give rise to punitive damages. See, also, Penzer v. Trans. Ins. Co. (C.A.11, 2008), 545 F.3d 1303, 1311 (public policy prohibiting insuring against punitive damage liability not applicable to TCPA claims because statutory damages not designed to be punitive and punitive damages require “wanton disregard for the rights of others”).
Id. at *7,
The court addressed each and every potential argument that could be asserted in connection with a coverage analysis of a “blast fax” claim implicating the TCPA. It rejected each in turn thoughtfully and succinctly, putting to rest questionable rejections of coverage that continue to proliferate despite clear law requiring a contrary result.
