Are TCPA Claims Covered by Advertising-Injury Provisions In Commercial and General Liability Insurance Policies ?
In Valley Forge Insurance Co. v. Swiderski Electronics, Inc., 223 Ill. 2d 352, 860 N.E.2d 307, 307 Ill. Dec. 653 (2006), the supreme court addressed whether TCPA claims were covered by the advertising-injury provisions in commercial and general liability insurance policies.
The primary policy at issue defined an advertising injury as: " '[O]ral, written, televised or videotaped publication of material that violates a person's right of privacy.' " Valley Forge, 223 Ill. 2d at 364.
The underlying complaint did not assert a common-law tort for invasion of privacy, but asserted a TCPA claim.
The court held that the insurer had a duty to defend the TCPA claim under the policy's definition of advertising injury because the TCPA claim vindicated the same injuries as a common-law action for violation of privacy. Valley Forge, 223 Ill. 2d at 365.
The court noted that the "receipt of an unsolicited fax advertisement implicates a person's right of privacy insofar as it violates a person's seclusion, and such a violation is one of the injuries that a TCPA fax-ad claim is intended to vindicate." Valley Forge, 223 Ill. 2d at 365 (citing "overwhelming" case law).
As to the specific policy language in the case, the court, relying on the dictionary definitions of, inter alia, "right of privacy," further held that the terms refer to both an interest in seclusion and an interest in the secrecy of personal information. Valley Forge, 223 Ill. 2d at 368.
Accordingly, the court concluded that unsolicited fax advertisements fall within the category of material that violates a person's seclusion. Valley Forge, 223 Ill. 2d at 368.
The court determined that, given its holding, it did not need to reach the issue whether the insurers had a duty to defend their insured pursuant to the policies' property-damage provisions. Valley Forge, 223 Ill. 2d at 379.