Hangley Aronchick’s Insurance Coverage team has prevailed before the US Court of Appeals for the Eleventh Circuit on behalf of client Liberty Insurance Underwriters, Inc. in Horn et al. v. Liberty Insurance Underwriters Inc., a matter involving the coverage available for Telephone Consumer Protection Act (“TCPA”) violations.

In the underlying action, the plaintiffs sought coverage under Liberty’s Policy for a class action lawsuit they filed alleging that iCan Benefit Group LLC, a Florida health insurance broker, sent unwanted text message solicitations to the plaintiffs and other individuals. They stated four causes of action, all for violations of the TCPA. The plaintiffs filed the suit against iCan in the Southern District of Florida in 2017. Ultimately, the parties settled by agreeing to enter a consent judgment against iCan for $60,413,112.00 (which iCan would not have to pay). As part of the settlement, iCan allegedly assigned its rights under the Policy to the plaintiffs through a Coblentz Agreement.

The plaintiffs then sued our client, Liberty Insurance Underwriters Inc., in 2018 to force the insurer to cover the settlement. Our Insurance Coverage team, including practice chair Ronald Schiller and shareholder Daniel Layden, moved for summary judgment citing the Policy’s privacy exclusion and the plaintiffs’ failure to allocate the settlement between covered and non-covered loss. The US District Court for the Southern District of Florida agreed, granting judgment in Liberty’s favor. The Court held that not only did the privacy exclusion apply to the TCPA allegations against iCan, but also that the plaintiffs held the burden to allocate, which based on the record evidence they could not possibly meet.

The plaintiffs then appealed to the Eleventh Circuit, and Ron Schiller argued the case in January 2021. On June 1, 2021, the Eleventh Circuit upheld the District Court ruling that the Liberty insurance policy did not cover the invasion of privacy claims brought in the class action suit against iCan.

Read the opinion.

Read the article on Law360.com.