Am. Family Mut. v. Carnagio Enter.

Am. Family Mut. v. Carnagio Enter.

Opinion

MEMORANDUM OPINION AND ORDER

Defendant Carnagio Enterprises, Inc. ("Carnagio"), is a McDonald's franchisee insured by both Plaintiff American Family Mutual Insurance Company, S.I. ("American Family") and Plaintiff Austin Mutual Insurance Company ("Austin Mutual") (collectively "Plaintiffs"). In early 2019, Defendant Angela Karikari ("Karikari") filed a class action lawsuit against Carnagio, alleging violations of Illinois's Biometric Information Privacy Act, 740 Ill. Comp. Stat. 14/1 et seq. ("BIPA"). Carnagio informed the insurance companies of the lawsuit and requested coverage.¹ Plaintiffs then brought this suit, seeking a declaratory judgment that violations of BIPA are excluded [*3]  under the policies they had issued to Carnagio. As a result, Plaintiffs contend that they have no duty to defend Carnagio in Karikari's suit.

This Court now addresses the parties' cross-motions for summary judgment. For the reasons stated below, Plaintiffs' motion for summary judgment is granted in part and denied in part, and Karikari's motion for summary judgment is granted.

I. Background²

A. Carnagio's Insurance Policies

Carnagio operates thirteen McDonald's restaurant franchises in Illinois. Pls.' Statement Material Fact ("PSOF") ¶ 31, ECF No. 76. From March 1, 2015, to March 1, 2020, all of Carnagio's McDonald's locations were insured under policies issued by American Family. Id. ¶¶ 7-11. From March 1, 2020 to March 1, 2021, Carnagio's restaurants were covered under Businessowners' Liability Insurance policies issued by Austin Mutual. Id. ¶ 12. Each of these policies promises coverage for "the sums that the insured becomes legally obligated to pay as damages because of 'bodily injury', 'property damage' or 'personal and advertising injury' to which this insurance applies." Id. ¶ 15. The policies further acknowledge that American Family and Austin Mutual have a duty to defend Carnagio [*4]  "against any 'suit' seeking damages for" those covered harms. Id.

The policies define "personal and advertising injury" as:

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