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By Adam J. Budesheim, Associate, McCarter & English, LLP
In Penn National Insurance Co. v. Group C Communications, Inc., A-2813-09T3, 2011 N.J. Super. Unpub. LEXIS 2077 (App. Div. Aug. 1, 2011), the first decision (albeit, unreported) from a New Jersey appellate court addressing insurance coverage under New Jersey law for alleged violations of the Telephone Consumer Protection Act of 1991 ("TCPA"), 47 U.S.C. § 227, the Court found the policies at issue provided coverage for violations of the TCPA by the insured, but that issues of fact must be resolved to determine whether certain policy exclusions preclude coverage. Unlike other courts that have grappled with these coverage issues, the Penn National court gave no more than a cursory analysis as to whether the privacy violations alleged in TPCA lawsuits were covered by the policies, an issue on which other courts addressing coverage issues relating to TCPA violations have focused. Instead, the Penn National court emphasized factual disputes relating to coverage exclusions, namely the primary nature of the policyholder's business and whether the policyholder expected or intended the injury alleged in the underlying lawsuit.
Adam Budesheim is an associate in McCarter & English's Newark, NJ office. He represents clients in insurance coverage litigation. He represents policyholders seeking coverage for liabilities related to asbestos, environmental, bodily injury, and property damage claims.
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