TALLAHASSEE, FL (Feb. 2, 2010) - The Supreme Court of Florida has found that Commercial General Liability (CGL) insurance policies generally cover liability for unsolicited "blast faxes" which violate the Telephone Consumer Protection Act (TCPA).  Michael Penzer etc. v. Transportation Insurance Co (Jan. 28, 2010).

As a result, plaintiffs in a class action suit who sued Nextel South Corp. for violating their privacy by sending blast faxes may be entitled to insurance benefits from Transportation Insurance Co.  Transportation had sold the CGL insurance policy at issue to Southeast Wireless, an authorized agent of Nextel.Anderson Kill & Olick, P.C.,  representing the nonprofit advocacy group United Policyholders, filed an amicus brief in support of a finding that the insurance CGL insurance policy provided coverage.At issue was whether a provision in the CGL policy that "provides coverage for advertising injuries," including "oral or written publication of material that violates a person's right of privacy," covers a violation of the TCPA, which, according to the decision, "provides the privacy right to seclusion."  Transportation denied coverage and argued that the provision "provides coverage only for injuries to privacy rights caused by the content of the material," not by its mere publication (emphasis added).  The Court disagreed, finding, “Even if the phrase ‘that violates a person’s right of privacy’ only modifies the term ‘material,’ it does not follow that only the secrecy right to privacy is implicated because ‘material’ could also invade one’s seclusion.” More broadly, the majority opinion, by J. Polston, held that the plain meaning of the policy provided coverage for the TCPA violation:As stated previously, the policy provision provides coverage for a written publication of material that violates a person's right of privacy. The facts of the instant case demonstrate that there was a written dissemination of 24,000 facsimiles that violated the TCPA. Comparing the policy's language to [the facts of this case]: there was a written publication [dissemination] of material [of 24,000 facsimiles] that violated a person's right of privacy [that violated the TCPA]. Therefore, applying our plain meaning analysis, we hold that Transportation's insurance policy provides coverage for sending unsolicited fax advertisements in violation of the TCPA.Partially dissenting opinions held that while the plain meaning of the policy might be disputed, the provision in the liability insurance policy was ambiguous and therefore must be construed in favor of the policyholder.  Concurrence in result was unanimous.William G. Passannante of Anderson Kill & Olick, who represented United Policyholders in its filing of an amicus brief, commented, "We applaud the Florida Supreme Court's ringing affirmation of standard rules of insurance policy construction.  Those rules lead to the result that the advertising injury provision plainly covers liability for violations of privacy under the TCPA. Given that many state courts that have made similar determinations, it's remarkable that insurance companies continue improperly to dispute their clear obligation under liability insurance policies to cover 'blast fax' violations under TCPA."