Thermoflex Waukegan, LLC v. Mitsui Sumitomo Ins. USA, Inc.

Thermoflex Waukegan, LLC v. Mitsui Sumitomo Ins. USA, Inc.

Opinion

MEMORANDUM OPINION AND ORDER

Before this Court is an insurance coverage dispute between Plaintiff Thermoflex Waukegan, LLC ("Thermoflex") and Defendant Mitsui Sumitomo Insurance USA, Inc. ("Mitsui") concerning Mitsui's duty to defend and indemnify Thermoflex in state litigation brought under the Illinois Biometric Information Privacy Act ("BIPA"), 740 Ill. Comp. Stat. 14/1 et seq. The Court previously held that Mitsui had no duty to defend or indemnify Thermoflex under the commercial general liability policies and requested separate briefing on whether there were such duties under the excess and umbrella insurance policies. See R. 51. The parties have filed cross-motions for summary judgment on that issue. For the [*2]  reasons explained below, the Court grants in part and denies in part Thermoflex's partial motion for summary judgment [54], and grants in part and denies in part Mitsui's motion for summary judgment [57].

Background

Mitsui issued several insurance policies to Thermoflex, namely a series of commercial general liability policies ("CGL Policies") as well as excess and umbrella insurance policies ("E/U Policies"). Def. Statement of Facts ("DSOF") ¶¶ 15, 21, R. 27. While those policies were in effect, Gregory Gates brought a class action lawsuit ("Gates" or "Gates lawsuit") against Thermoflex in Illinois state court. Id. ¶¶ 7, 14. Gates alleged that Thermoflex violated BIPA by requiring hourly workers to scan their handprints each time they clocked in and out of work, transmitting their handprint data to a third party without authorization, and not providing them with a publicly available policy identifying its retention schedule or procedures for obtaining their consent and release. Id. ¶¶ 11, 12. Thermoflex requested that Mitsui defend and indemnify it for any damages arising from the suit, and Mitsui refused, asserting that none of the insurance policies it issued covers BIPA claims. Pl. [*3]  Statement of Facts ("PSOF") ¶¶ 22, 23, R. 55. This suit followed.

Thermoflex and Mitsui previously filed cross-motions for summary judgment as to whether Mitsui has a duty to defend and indemnify Thermoflex under the CGL Policies and E/U Policies. See R. 26; R. 30. The Court concluded that the CGL Policies' "Access Or Disclosure Of Confidential Or Personal Information" exclusion ("Access or Disclosure Exclusion") barred coverage such that Mitsui has no duty to defend under the CGL Policies. See R. 51 at 8-17. On that basis alone, the Court granted Mitsui's motion and denied Thermoflex's cross-motion. Id. at 17. In so holding, the Court declined to address whether the other two exclusions at issue—the "Recording And Distribution Of Material Or Information In Violation Of Law" and "Employment-Related Practices" exclusions—barred coverage. Id. at 17 n.6. Further, because the parties did not address the E/U Policies with sufficient depth in their briefs, the Court limited its discussion to the CGL Policies and set a separate briefing schedule to provide the parties with an opportunity to more comprehensively address coverage under the E/U Policies. Id. at 2 n.1. The parties filed the present [*4]  cross-motions for summary judgment as to whether Mitsui has a duty to defend Thermoflex under the E/U Policies.¹ See R. 54; R. 57.

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