Penzer v. Transp. Ins. Co.

Penzer v. Transp. Ins. Co.

Opinion

 [*1002]  POLSTON, J.

This case is before the Court for review of a question of Florida law certified by the United States Court of Appeals for the Eleventh Circuit that is determinative of a cause pending in that court and for which there appears to be no controlling precedent. ¹ 

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  [**3] 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.

 [*1003]  I. BACKGROUND

In June 2003, Michael Penzer filed a class action suit in a Florida state court against Nextel South Corporation alleging that Nextel or one of its agents sent him an unsolicited facsimile advertisement in violation of the TCPA. ² Penzer v. Transp. Ins. Co., 509 F. Supp. 2d 1278, 1280 (S.D. Fla. 2007). Nextel filed a third-party complaint against Sunbelt, a blast-fax advertiser, and Southeast Wireless, an authorized agent of Nextel, seeking indemnity and contributions for any liability Nextel may have in the class action. Id. Nextel also alleged that Southeast Wireless hired Sunbelt to create the advertisement and that Nextel did not authorize the fax transmissions. Id. Penzer then filed a third-party complaint against Southeast Wireless, and Southeast Wireless requested that Transportation Insurance Company ("Transportation"), its commercial liability insurer, defend it in the class action. Id. Transportation refused to provide a defense for the class action  [**4] suit or the Nextel complaint, and also disclaimed any coverage on various grounds. Id. at 1281.

Thereafter, in April 2004, Penzer entered into a settlement agreement with Southeast Wireless in which Penzer agreed to release Southeast Wireless from any liability, and Southeast Wireless consented to a judgment and assigned its right to seek insurance coverage from Transportation to Penzer. Id. The state court approved the settlement and certified a settlement class. Id. Penzer then pursued a declaratory judgment action against Transportation in the United States District Court for the Southern District of Florida, wherein Transportation defended that, who may recover his actual monetary losses or $ 500.00 in damages, based upon the language of the policy, Transportation had no obligation to defend  [**5] or indemnify Southeast Wireless. Id.

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