625 F. App'x 177
3rd Cir.2015Background
- Urban Outfitters and Anthropologie were defendants in three putative class actions (Hancock, Dremak, Miller) alleging unlawful collection/use of customers’ ZIP codes at checkout.
- Urban Outfitters sought defense/indemnity from insurers OneBeacon and Hanover under CGL/umbrella policies covering "personal and advertising injury."
- Insurers filed declaratory judgment actions seeking rulings that they had no duty to defend or indemnify; the district court granted summary judgment to the insurers.
- Hancock (D.C.): plaintiffs alleged ZIP-code collection and alleged misuse for marketing, asserting privacy and consumer-protection claims.
- Dremak (Cal.): plaintiffs alleged collection/recording of ZIP codes in violation of the Song‑Beverly Credit Card Act; common-law claims were later dismissed, leaving statutory claims.
- Miller (Mass.): plaintiffs alleged statutory violation for recording personal identification info and alleged resulting unsolicited marketing (unjust enrichment claim also pleaded).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Hancock alleges "publication" (policy covers "publication" that violates privacy) | Hancock: ZIP-code collection and use amounted to an oral/written "publication" of material violating privacy triggering coverage | Insurers: "Publication" requires dissemination to the public at large; complaint alleges only collection/use, not public dissemination | Held: No publication; term construed in ordinary sense requires dissemination to public, so no duty to defend/indemnify |
| Whether Dremak is barred by the policy exclusion for actions that violate statutes limiting recording/distribution of information | Urban Outfitters: factual allegations, not merely the statutory label, control duty to defend; conduct could trigger coverage | Insurers: Complaint alleges conduct violating Song‑Beverly Act; policies exclude coverage for injury "arising out of" alleged violations that limit recording/distribution | Held: Exclusion applies; complaint alleges action/omission violating statute limiting recording of information, so no duty to defend/indemnify |
| Whether Miller alleges publication of material that violates privacy (privacy defined as secrecy) | Miller: Plaintiffs suffered injury from collection/use of ZIP codes leading to junk mail; insurers should defend | Insurers: Policy protects privacy in sense of secrecy, not seclusion; Miller alleges nuisance/solicitations, not loss of secrecy | Held: No coverage; alleged harms reflect loss of seclusion/unsolicited mail, not privacy-as-secrecy, so no duty to defend/indemnify |
Key Cases Cited
- Madison Constr. Co. v. Harleysville Mut. Ins. Co., 735 A.2d 100 (Pa. 1999) (ordinary meaning of policy terms informed by dictionary definitions)
- Whole Enchilada, Inc. v. Travelers Prop. Cas. Co. of Am., 581 F. Supp. 2d 677 (W.D. Pa. 2008) ("publication" requires provision of information to the public at large)
- Creative Hosp. Ventures, Inc. v. U.S. Liab. Ins. Co., [citation="444 F. App'x 370"] (11th Cir. 2011) ("in any manner" expands modes of publication but does not alter underlying meaning of "publication")
- James River Ins. Co. v. Med Waste Mgmt., LLC, 46 F. Supp. 3d 1350 (S.D. Fla. 2014) (exclusion for statutory violations applies to common‑law claims premised on same conduct)
- Telecoms. Network Design v. Brethren Mut., 5 A.3d 331 (Pa. Super. Ct. 2010) (privacy coverage protects secrecy interest rather than seclusion)