Hangley Aronchick’s Insurance Coverage team recently secured summary judgment on behalf of Liberty Insurance, in a matter involving the coverage available for Telephone Consumer Protection Act (“TCPA”) violations.

The plaintiffs sought coverage under Liberty’s Policy for a class action lawsuit they filed alleging that iCan Inc. sent unwanted text message solicitations to plaintiffs and other individuals. The Underlying Action stated four causes of action, all for violations of the TCPA. The plaintiffs filed the Underlying Action against iCan in the Southern District of Florida on September 13, 2017, captioned Horn v. iCan Benefit Group LLC, Case No. 9:17-cv-81027. The plaintiffs alleged that iCan “not only invaded the personal privacy of plaintiffs and members of the putative Classes, but also intentionally and repeatedly violated the TCPA.” The plaintiffs further alleged that iCan’s conduct caused “aggravation and nuisance and invasions of privacy”, and repeated their allegation that the conduct constituted an “invasion of privacy” several other times in the Underlying Complaint. Ultimately, the parties in the Underlying Action 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.

Liberty moved for summary judgment citing the Policy’s privacy exclusion and the plaintiffs’ failure to allocate the settlement between covered and non-covered loss. On May 30, 2019, 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 Hangley Aronchick team was led by Ronald Schiller and included Daniel Layden, Mia Rosati, and Robert Hrouda.