Unsolicited Facsimilies
A class action was filed against NIP Group for sending fax solicitations in violation of the Telephone Consumer Protection Act (TCPA). Landmark American Insurance Company (Landmark), NIP’s professional liability insurer, denied its duty to defend and filed an action for declaratory judgment. In a motion for summary judgment, Landmark argued that sending unsolicited fax advertisements was not a “professional service” under the policy. The trial court granted the motion and an appeal followed.
On appeal, the Court held that the Trial Court improperly granted summary judgment in Landmark’s favor. The policy’s definition of “Advertising Liability” included “oral or written publication of material that violates a person’s right of privacy.” The policy listed the covered “professional services” of the insured, including the insured in its role as “an insurance wholesaler, insurance managing general agent, insurance general agent, insurance underwriting manager, insurance program administrator, insurance agent, insurance broker, surplus lines insurance broker, insurance consultant, insurance claims administrator, insurance appraiser, and insurance premium financier.” The policy also contained an exclusion for “[f]alse advertising or misrepresentation in advertising, but only regarding intentionally false, misleading, deceptive, fraudulent, or misrepresenting statements in advertising the insured’s own product or service.”
The Court reasoned that the policy language did not specifically exclude the types of coverage alleged in the underlying complaint, NIP’s insuring agreement at least potentially covers the solicitations.
Reversed and Remanded.
Landmark American Ins. Co. v. NIP Group, Inc., 2011 IL App (1st) 101155,, 962 N.E.2d 562, (Ill.App. 1 Dist., 2011),
