Thursday, January 28, 2010

FSC TCPA -- TCOB!


I guess that business about excessive acronyms hasn't sunk in.

Today the Florida Supreme Court answers a certified question from the 11th Circuit on whether junk faxes fall within the scope of widely used commercial insurance policy language, and answers YES:
The coverage issue in this insurance dispute concerns whether, under Florida law, the sending of an unsolicited advertisement by fax, in violation of the federal Telephone Consumer Protection Act (“TCPA”), 47 U.S.C.A. § 227 (2001), is covered by a particular insurance policy provision. The Eleventh Circuit certified the following question:

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?

Penzer v. Transp. Ins. Co., 545 F.3d 1303, 1312 (11th Cir. 2008).

For the reasons that follow, we hold that, under Florida law, the language of this insurance provision provides coverage for infringements of the TCPA. Accordingly, we answer the certified question in the affirmative.
The case arises from the SD FL, where it was pending before Judge Jordan.

Judge Jordan granted summary judgment to the insurer, relying on a 1995 case from the 3d DCA.

The 11th basically reversed, but said there was an open legal issue:
Penzer appealed the Southern District‟s decision to the Eleventh Circuit, which concluded that “[n]either the policy exclusions nor Florida public policy lead to denial of coverage.”4 Penzer, 545 F.3d at 1311. However, the Eleventh Circuit also found that the disposition of this case rested on an unsettled issue of Florida law and that “[a] pure legal question of the interpretation of widely used language in commercial liability insurance is at issue.”5 Id. Accordingly, it certified its question to this Court. Id. at 1312.
The Supreme Court's opinion consists of an extensive "plain meaning" analysis, using what I think were lots of definitions googled off their smartphones.

Some of the words subject to this analysis included "publication," "material," "right of privacy," and "Bill Safire."

Not to be outdone, the defendant tried to pull out the old "doctrine of the last antecedent," which as I recall from my college days means the last guy to kill the keg has to return it.

Boy I had fun back then.

4 comments:

  1. You mean kill the bong and you have to clean it.

    ReplyDelete
  2. Or drink the bong water.

    ReplyDelete
  3. The Last Antecedent.

    Great movie

    ReplyDelete
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