In a per curiam decision a New Jersey state trial court analyzing a 1986 ISO policy provision found allegations for breach of a confidentiality agreement between two pharmaceutical companies triggered a defense. The court disagreed and found that these sole conduct in issue was violation of the written confidentiality agreement thereby triggering contract exclusion.
In a per curiam decision, the court found that a TCPA blast fax case triggered coverage for invasion of privacy but elected to certify the issue not yet addressed by any state court in Florida, as follows:
DOES A COMMERCIAL LIABILITY POLICY WHICH PROVIDES COVERAGE FOR “ADVERTISING INJURY,” DEFINED AS “INJURY ARISING OUT OF ... ORAL OR WRITTEN PUBLICATION OF MATERIAL THAT VIOLATES A PERSON'S RIGHT OF PRIVACY,” SUCH AS THE POLICY DESCRIBED HERE, PROVIDE COVERAGE FOR DAMAGES FOR VIOLATION OF A LAW PROHIBITING USING ANY TELEPHONE FACSIMILE MACHINE TO SEND UNSOLICITED ADVERTISEMENT TO A TELEPHONE FACSIMILE MACHINE WHEN NO PRIVATE INFORMATION IS REVEALED IN THE FACSIMILE?
Id. at *7.
In determining that the issue was properly certified, the court noted that virtually all cases, with few exceptions, had found potential coverage where the language was identical to that herein. Those reaching contrary views had other pertinent language, typically issued by St. Paul or a subsidiary entity. See *3 n.5 and collected cases.
It reversed the district court’s ruling on all matters, determining in accord with its earlier decision applying Georgia law, Hooters of Augusta, Inc. v. American Global Ins. Co., No. 04-11077, 157 Fed. Appx. 201, 210, 2005 WL 3292089 (11th Cir. (Ga.) 2005), that neither the willful penal acts exclusion nor breach of contract exclusion barred coverage.
The penal statute exclusion was logically limited to the statute giving rise to liability, Fla. Stat. § 365.1657, which is not a penal statute.
The court noted that the breach of contract exclusion does not clearly indicate who the applicable contracting parties must be for the exclusion to apply. The court found the insured’s reading reasonable and more obvious. The contract breach was between the claimant and the insured, not between the insured and Nextel, who sent the facsimile advertisements.
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