444 F. App'x 370
11th Cir.2011Background
- ETL operated a Miami restaurant insured under Essex's CGL policy, which covers personal and advertising injury including publication of material that violates privacy.
- The underlying Florida FACTA class action alleged ETL printed more than five digits of card numbers or expiration dates on receipts and sought damages; ETL requested Essex defend and indemnify, which Essex denied.
- The state court case was reportedly dismissed; the federal case was filed to determine whether Essex owed a duty to defend ETL in the FACTA action, with Essex and USLI challenging coverage.
- The district court granted Essex summary judgment, holding that providing a receipt to a customer is not a publication under the policy’s coverage, citing Penzer for the definition of publication.
- On appeal, ETL argues publication can be broader under the policy; the court adopts Penzer's plain-meaning definition, concluding receipts are not publication and Essex had no duty to defend.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does 'publication, in any manner' cover giving a receipt to a customer? | ETL asserts broader publication includes receipts. | Essex contends receipts are not publication under the policy. | No; receipts are not publication under the policy. |
| Is 'publication' ambiguous in the policy, necessitating construction against the insurer? | ETL contends ambiguity warrants coverage in ETL's favor. | Essex argues the term is unambiguous and defined by law. | Unambiguous; Penzer plain-meaning definition applies. |
| Does Penzer control the meaning of 'publication' in this policy? | ETL relies on Penzer to expand 'publication' to receipts. | Essex argues Penzer is controlling and limits publication to dissemination to the public. | Penzer controls; publication means disseminating to the public, not issuing a receipt. |
Key Cases Cited
- Penzer v. Transp. Ins. Co., 29 So.3d 1000 (Fla. 2010) (plain-meaning definition of 'publication' in CGL policy; publication includes dissemination to the public)
- Garcia v. Fed. Ins. Co., 969 So.2d 288 (Fla. 2007) (insurance terms construed by plain meaning; ambiguity examined against the insurer)
- Auto-Owners Ins. Co. v. Anderson, 756 So.2d 29 (Fla. 2000) (ambiguity rule for insurance contracts)
- Whole Enchilada, Inc. v. Travelers Prop. Cas. Co. of Am., 581 F. Supp. 2d 677 (W.D. Pa. 2008) (FACTA violations not covered where receipts not publication under policy)