Ace American Insurance v. Dish Network, LLC, 173 F. Supp. 3d 1128

ACE (insurer) seeks declaratory judgment that it has no duty to defend or indemnify DISH in a government enforcement action alleging TCPA and related telemarketing violations brought by the U.S. and four states.
Underlying suit alleges outbound calls violating the Do-Not-Call Registry, failure to connect to a representative within two seconds, and use of artificial/prerecorded voices; plaintiffs seek statutory damages (e.g., $500 per violation), civil penalties, and injunctive relief.
A series of ACE commercial general liability and excess policies (2004–2013) are implicated; coverage categories at issue are Coverage A (bodily injury/property damage caused by an “occurrence”) and Coverage B (personal & advertising injury).
ACE argued Coverage A does not apply because the underlying plaintiffs seek statutory penalties and injunctive relief, not compensatory damages from bodily injury or property damage; ACE also argued Coverage B is excluded by a broadcasting/telecasting/media exclusion.
DISH argued the TCPA statutory awards are at least partly compensatory (thus within Coverage A/B) and that the Coverage B media exclusion is ambiguous or inapplicable to DISH’s business.
The court granted ACE’s summary judgment motion and denied DISH’s: it held Coverage A did not apply (statutory awards are penalties, injunctive relief is not “damages”), and Coverage B was excluded under the broadcasting/telecasting language (following the Tenth Circuit’s Arrowood decision).

Issue	Plaintiff's Argument (ACE)	Defendant's Argument (DISH)	Held
Whether Coverage A ("damages" for bodily injury/property damage) covers the TCPA/statutory awards sought	TCPA awards here are penalties/punitive-type and injunctive relief is not "damages," so Coverage A does not apply	TCPA statutory awards include compensatory elements and thus can trigger Coverage A	Held for ACE: statutory $500 awards are penalties under Colorado law and injunctive relief is not "damages;" Coverage A not triggered
Whether the insurer has a duty to defend based on the underlying complaint	Insurer has no duty because the complaint pleads only penalties and injunctive relief (non-covered)	DISH says complaint may be read to seek actual damages, creating a duty to defend	Held for ACE: complaint does not plead compensatory damages; insurer need not defend
Whether Coverage B (personal & advertising injury) applies	Even if Coverage B could apply, a media/broadcasting/telecasting exclusion removes coverage for DISH	DISH argues the exclusion is ambiguous or limited to content providers and should not bar coverage	Held for ACE: exclusion applies—under Arrowood, DISH’s transmissions fall within broadcasting/telecasting and exclusion bars Coverage B
Duty to indemnify	No duty to indemnify where no duty to defend and no covered claims exist	DISH seeks at least partial indemnity if any claims are covered	Held for ACE: no duty to indemnify because neither Coverage A nor B applies

Cyprus Amax Minerals Co. v. Lexington Ins. Co., 74 P.3d 294 (Colo. 2003) (insurer bears heavy burden to show no duty to defend)
Hecla Mining Co. v. New Hampshire Ins. Co., 811 P.2d 1083 (Colo. 1991) (duty-to-defend/indemnify principles)
Kruse v. McKenna, 178 P.3d 1198 (Colo. 2008) (Colorado characterized TCPA $500 statutory award as a penalty)
Lira v. Shelter Ins. Co., 913 P.2d 514 (Colo. 1996) (public policy bars insurance coverage for punitive damages)
Compass Ins. Co. v. City of Littleton, 984 P.2d 606 (Colo. 1999) (ordinary meaning of "damages" can include response/cleanup costs)
Dish Network Corp. v. Arrowood Indem. Co., 772 F.3d 856 (10th Cir. 2014) (DISH falls within broadcasting/telecasting exclusion)
Park Univ. Enters. v. American Cas. Co., 442 F.3d 1239 (10th Cir. 2006) (TCPA-style invasion-of-seclusion could fall within advertising-injury coverage)
Universal Underwriters Ins. Co. v. Lou Fusz Automotive Network, Inc., 401 F.3d 876 (8th Cir. 2005) (statutory TCPA damages include compensatory component)