An insurer that refused to defend its insured challenges its liability for damages that were agreed to in a settlement between the insured and a class of plaintiffs that brought suit alleging that the insured violated the Telephone Consumer Protection Act (TCPA), 47 U.S.C. section 227 et seq. After the class and the insured reached a settlement, the class filed a garnishment action against the insurer. The insurer sought a declaratory judgment that its policy with the insured did not provide coverage, and its arguments included that there was no coverage for damages awarded related to the TCPA. The trial court ultimately entered judgments in favor of the class, holding that the insurer wrongly had refused to defend the insured and was liable to indemnify the insured by paying the settlement amount plus interest. The insurer appeals, and this Court affirms.
I. Background
The TCPA, 47 U.S.C. section 227 et seq., is intended “to protect the privacy interests of residential telephone subscribers by placing restrictions on unsolicited, automated telephone calls to the home and to facilitate interstate commerce by restricting certain uses of facsimile ([f]ax) machines and automatic dialers.” Sen. Rep. No. 102-178, at 1 (1991). The act allows a private right of action for recipients of unsolicited communications that violate the act. 47 U.S.C. section 227(b)(3). The recipients can bring “an action to recover for actual monetary loss from such a violation, or to receive $500 in damages for each such violation, whichever is greater.” 47 U.S.C. section 227(b)(3)(B). Further, the act provides for treble damages if, in the trial court’s discretion, it is shown that the defendant “willfully or knowingly” violated the act. 47 U.S.C. section 227(b)(3).
Hotel proprietor HIAR Holdings LLC used a marketing services company to
At the time it had sent the junk faxes, HIAR was insured under a commercial general liability insurance policy from Columbia Casualty Company (Columbia). The policy’s provisions included coverage for property damage and advertising injury.
After the class filed suit, HIAR tendered defense of the suit to Columbia. Columbia, however, refused to defend in a letter sent in December 2002. It asserted that it would not defend the suit or provide HIAR coverage under its policy because the claims of the class were outside the policy provisions. Another refusal to defend letter was sent to HIAR after it again requested a defense in October 2003.
In March 2005, the class made a settlement offer to HIAR for an amount within its insurance policy limits.
The class moved for preliminary approval of the settlement. Evidence was provided to the court as to the reasonableness of the settlement, and it granted preliminary approval and determined that notice could be sent to the class regarding the settlement. Claim forms in the matter were to be returned by July 23, 2007, and 488 claim forms were returned seeking payment under the settlement proceeds. No objections from the class were received.
In April 2007, a final approval hearing was held regarding the settlement. The hearing included evidence of the reasonableness of the settlement, and the trial court approved the settlement. The trial court entered findings indicating that it had determined the settlement to be fair, reasonable, and not a product of collusion. It entered a judgment for the class, and it approved HIAR’s assignment to the class of its claims against Columbia and any other insurer. The trial court’s order indicated that the settlement proceeds not paid to the class claimants or for attorney fees would be distributed via cy pres to charitable organizations.
In the declaratory action, the trial court first found that Columbia owed HIAR a duty to defend in the class action because it determined that the class’s claims were covered under Columbia’s policy provisions for “advertising injury” and “property damage.”
Cross-motions for summary judgment were filed regarding Columbia’s duty to indemnify HIAR. The trial court entered a judgment in favor of the class’s motion for summary judgment on the indemnity issues, finding that Columbia had a duty to indemnify HIAR for the full settlement plus interest.
The trial court overruled a motion by Columbia to add a party — HIAR’s excess insurer — as a defendant. Columbia sought to add the excess insurer as a defendant to obtain a declaration of rights and obligations for the TCPA action as to the excess insurer’s policy. The trial court also rejected Columbia’s motion that it amend and reconsider its judgment.
Columbia appeals. It raises a number of arguments asserting that summary judgment in favor of the class was in error because the trial court concluded wrongly that Columbia has a duty to indemnify HIAR for its settlement with the class for HIAR’s TCPA violations. Columbia maintains that HIAR’s insurance coverage was inapplicable, particularly because HIAR’s TCPA violations were intentional and resulted in statutory damages that are akin to fines and penalties. Columbia also al
II. Standard of review
Columbia’s arguments challenging the trial court’s entry of summary judgment in favor of the class are reviewed de novo. See ITT Commercial Fin. Corp. v. Mid-Am. Marine Supply Corp.,
Summary judgment is appropriate when the moving party has demonstrated, on the basis of facts as to which there is no genuine dispute, a right to judgment as a matter of law. Id. A defendant can establish that he is entitled to summary judgment by showing: (1) facts negating any one of the claimant’s elements necessary for judgment; (2) that the claimant, after an adequate period of discovery, has not been able to — and will not be able to— produce evidence sufficient to allow the trier of fact to find the existence of one of the claimant’s elements; or (3) facts necessary to support his properly pleaded affirmative defense. Id. at 381. A summary judgment, like any trial court judgment, can be affirmed on appeal by any appropriate theory supported by the record. Turner v. School Dist. of Clayton,
Non-summary judgment arguments, however, require application of a different standard. Columbia’s argument that the trial court erred in denying its motion to add HIAR’s excess insurer as a party is reviewed for abuse of discretion. See Clark v. St. Louis Transfer Ry. Co.,
III. An insurer that wrongly refuses to defend an insured can be liable to indemnify the insured for an underlying judgment for damages that is adjudged to be reasonable
The issues in this appeal include whether summary judgment was entered properly in favor of the class pursuant to Schmitz v. Great American Assurance Co.,
Contrary to Columbia’s assertions, Schmitz instructs the decision in this case. Schmitz explains that when an insurer is bound to protect its insured from liability, it is bound by the liability determination in the litigation to which the insured is a party, so long as the insurer had the opportunity to control and manage the litigation.
The trial court applied Schmitz in this case when entering summary judgment in favor of the class. It found that Columbia was required to indemnify the class’s settlement amount because the parties submitted to a liability and damage trial before the court, which entered a judgment finding that the settlement amount was reasonable and finding that Columbia wrongly had refused to defend HIAR given that its policy coverage was applicable in the case.
Considering Schmitz, this Court must assess whether Columbia breached its duty to defend HIAR in light of its policy coverage.
IV. The trial court correctly determined that Columbia wrongly refused to defend HIAR under its policy coverage because a TCPA award is not a penalty or a fine
Columbia’s arguments that the trial court erred in entering summary judgment in favor of the class include that the trial court’s indemnification findings are in error because nothing in the class’s TCPA claims against HIAR invoked Columbia’s duty to defend insofar as Columbia’s policy coverage for “property damage” and “advertising injury” does not encompass fines and penalties imposed for TCPA violations. Columbia insists that statutory damage awards under the TCPA represent fines and penalties imposed on a junk fax sender, not a compensatory award for a junk fax recipient. It contends that nothing in its insurance policy with HIAR provided coverage for statutory fines and penalties.
In relevant part, HIAR’s insurance policy with Columbia insured against “those sums that the insured becomes legally obligated to pay as damages because of [prop
Columbia maintains that the trial court erred in determining that the term “damages” in HIAR’s policy encompasses coverage for TCPA-related claims. Columbia argues that the policy’s reference to “damages” cannot include TCPA claims because the TCPA’s provision for statutory damages of $500 per occurrence (for each junk fax) is a statutory penalty or fine that the law directs cannot be considered “damages.” Columbia highlights that this Court discussed in Farmland Industries, Inc. v. Republic Insurance Co. that “damages” for purposes of insurance coverage does not include awards imposing fines and penalties.
Farmland Industries addressed the scope of the term “damages” as applied under an insurance policy that did not expressly define the term to encompass equitable relief. See id. Farmland Industries noted that terms in insurance policies are given their “ordinary meaning.” Id. at 508. Farmland Industries discussed:
When interpreting the language of an insurance policy, this Court gives a term its ordinary meaning, unless it plainly appears that a technical meaning was intended. Peters v. Employers Mut. Casualty Co.,853 S.W.2d 800 , 303 (Mo. banc 1993); Greer v. Zurich Ins. Co.,441 S.W.2d 15 , 27 (Mo.1969). The ordinary meaning of a term is the meaning that the average layperson would reasonably understand.
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The Dictionary of Insurance Terms defines “damages” as “the sum the insurance company is legally obligated to pay an insured for losses incurred.” Harvey W. Rubin, Dictionary of Insurance Terms 71 (1987). Similarly, the Dictionary of Insurance defines “damages” as “the estimated reparation in money for injuries sustained.” Lewis E. Davids, Dictionary of Insurance 85 (6th rev. ed.1983).
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... [F]ines or penalties are not included within the ordinary meaning of “damages.” The ordinary meaning of a “fine” or “penalty” is not compensation or reparation for an injury; rather, it is a sum imposed as punishment. Webster’s Third New International Dictionary 852, 1668 (1961). Because fines and penalties are not “damages,” the term limits liability under the policy to something less than “all sums which the insured shall become legally obligated to pay because of property damage.”
Id. at 508, 510-11.
Columbia argues that the damages sought by the class in this case are not “damages” pursuant to this Court’s discussion in Farmland Industries. It asserts that the amount must be a penalty because it is intended to deter junk faxes and not to compensate actual injury suffered by the junk fax recipient, whose actual dam
In contrast, the class’s position, which was accepted by the trial court, emphasizes that an insurance policy should be given a broad and inclusive interpretation when there is ambiguity in the scope of the meaning of “damages” — particularly when the policy does not define “damages” with specificity. The class notes that the law favors reading an ambiguous insurance provision in favor of providing coverage for the insured. See Seeck v. Geico Gen. Ins. Co.,
This issue has been discussed in a prior case. In Olsen v. Siddiqi, the court of appeals considered a similar case, in which a class of junk fax recipients sued for TCPA violations and elected to seek the $500-per-occurrence statutory damages amount for each violation.
Olsen, however, was incongruent with the position of the Eighth Circuit in Universal Underwriters Insurance Co. v. Lou Fusz Automotive Network, Inc., which found that a TCPA $500-per-occurrence statutory damages award is not simply a “penalty.”
Universal discussed that whether the damages were viewed “as a liquidated sum for actual harm or an incentive for aggrieved parties to act as private attorneys general, or both, ... the fact that Congress elected to make treble damages available separate from fixed damages” showed that the $500-per-oceurrence statutory damage awards, by themselves, are not a penalty. Id. The Eighth Circuit’s determination in Universal that TCPA $500-per-occurrence statutory damages awards are remedial and not penal in nature is consistent with decisions that a number of other courts have reached finding that statutory liquidated damages under the TCPA are remedial and not penal. See, e.g., Penzer v. Transp. Ins. Co.,
In light of the discussion in Universal, Columbia is not persuasive in its assertions that the term “damages” in its policy with HIAR could not encompass the class’s TCPA claims. TCPA statutory damages of $500 per occurrence are not damages in the nature of fines or penalties.
V. The trial court did not err in concluding that coverage for “property damage” and “advertising injury” was applicable
In addition to its assertions that the class’s TCPA claims were outside of HIAR’s policy coverage because they were fines or penalties, Columbia also raises a number of policy-specific arguments. It asserts that there was not coverage for the class’s claims against HIAR because Columbia’s policy provisions for “property damage,” including “products-completed operations” coverage, and for “advertising injury” provide no coverage for the class’s claims.
1. “Property damage” coverage was invoked
Columbia asserts that “property damage” coverage was not invoked as to the class’s claims because HIAR’s policy requires an “occurrence,” which is defined under the policy as “an accident.” Columbia argues that the intentional sending of
Columbia further contends that its “property damage” coverage was inapplicable to HIAR because HIAR’s actions were intentional and, therefore, excluded from coverage under Columbia’s policy’s “expected or intended” injury exclusion. Columbia notes that this exclusion is established when it can show an insured’s intentional act resulted in consequences “substantially certain” to flow from the intentional act.
These arguments premised on HIAR having committed an intentional act by sending junk faxes are not persuasive. The circuit court determined that HIAR’s actions in violating the TCPA reflected negligent conduct, as it found that HIAR did not intend to violate the TCPA and did not intend injury to the class. The circuit court accepted HIAR’s assertions that it believed that its marketing company had the consent of fax recipients to receive HIAR’s advertising faxes.
The applicability of insurance coverage in a TCPA junk-faxes ease requires consideration of whether the insured junk-fax sender intended to cause harm. See Universal Underwriters,
In this case, the trial court did not err in rejecting Columbia’s contentions that coverage was inapplicable on the basis that HIAR intended to send the faxes that resulted in its TCPA violations. Nothing in the record supports a contention that HIAR sent the faxes intending to injure the recipients or violate the TCPA. See Am. Family Mut. Ins. Co. v. Pacchetti,
2. “Advertising injury” coverage was invoked
As to its “advertising injury” coverage in HIAR’s policy, Columbia raises a number of challenges beyond its contention that TCPA damages are not covered because they are penal in nature.
These privacy rights arguments are not persuasive in establishing that the trial court erred in determining that “advertising injury” coverage was invoked in this case. The class’s claims alleged privacy rights violations pursuant to the TCPA, which has been recognized as providing privacy protections. For example, in Universal Underwriters, the Eighth Circuit found insurance coverage was invoked in a TCPA case when the insured’s policy included coverage for claims based on “invasion of rights of privacy.” See
We also find that the complaint alleges an “INJURY” under the policy. The policy lists “private nuisance (except pollution), [and] invasion of rights of privacy or possession of personal property” under the definition of INJURY. It does not limit or qualify these terms in any manner. It sets forth technical definitions for neither “private nuisance” nor “invasion of rights of privacy.” Accordingly, under Missouri law, we must apply ordinary, lay definitions to these terms. Looking at how Congress described unsolicited fax advertisements ... it is clear that Congress viewed violations of the Act as “private nuisances” and as “invasions of privacy” under ordinary, lay meanings of these phrases.
Id.
Because Columbia did not more expressly limit its “advertising injury” coverage by providing more precise definitions in its policy, a reasonable interpretation of HIAR’s policy can include that coverage is available for the privacy rights claims of the class. See Velder v. Cornerstone Nat’l Ins. Co.,
Columbia further argues that coverage was unavailable for “advertising injury” under HIAR’s policy because that coverage is intended for a private person and not for an incorporeal interest like Little LLC. This argument is not persuasive given that Congress enacted the protections of the TCPA after contemplating the privacy interests of persons and of businesses. See Universal Underwriters,
For these reasons, the trial court did not err in determining that “advertising injury” coverage was invoked in this case.
3. “Contractual liability” exclusions do not negate HIAR’s policy coverage
Columbia asserts that the trial court erred in determining that its coverage was available because “contractual liability” exclusions prevent application of the
Columbia, however, does not offer any cases supporting these assertions. The trial court’s judgment emphasized that nothing in any judgment entered thus far indicates that class members who have not yet submitted a claim will not do so in the future. The trial court recognized that there will be an ongoing effort to contact class members when Columbia is required to indemnify the settlement. This Court is not persuaded that the trial court erred in refusing to determine that “contractual liability” exclusions applied merely because a low percentage of claims were submitted. The amount of liability and damages in this case is defined by the settlement agreement and not by how many claims were submitted.
4. Notice and cooperation issues did not vitiate coverage
Columbia also maintains that the trial court wrongly failed to consider its arguments that HIAR did not invoke insurance coverage because HIAR breached duties that it owed to Columbia to cooperate and provide timely notice about the class litigation and settlement proceedings. Columbia asserts that HIAR’s failures of cooperation and notice “vitiated coverage.” Columbia particularly complains that it was not notified of the amended petition that added HIAR’s related entity HMA as a defendant. It argues that HIAR’s failures of notice and cooperation violated Columbia’s policy requirements that its insureds must provide notice of a lawsuit “as soon as practicable” and cooperate with Columbia in investigating or settling the lawsuit.
The class does not respond to Columbia’s arguments about this issue, though it summarily states in a heading in its brief that HIAR did not breach its duty of cooperation. The class’s brief, however, includes in its facts that HIAR notified Columbia at the commencement of the litigation about the class’s TCPA claims, as HIAR informed Columbia of the class’s TCPA action after the original petition was served. Columbia sent a letter to HIAR in December 2002 refusing to defend the case and denying coverage, and it repeated its refusal to defend in another letter sent to HIAR in October 2008. After being notified of the settlement offer in March 2005, Columbia again refused to defend or provide coverage for the class’s TCPA claims, and it refused to participate in the proposed settlement.
Although Columbia argues that it was entitled to be informed of the lawsuit as soon as practicable, the facts are not in dispute that it was informed timely of the class’s suit against HIAR. Columbia, however, contends that this comportment with the notice requirements was insufficient to trigger its coverage and duty to defend because there was later a failure to provide it notice of the amended petition. It suggests that Rocha v. Metropolitan Property & Casualty Insurance Co. is instructive for the proposition that an insured’s failure to provide the insurer a copy of an amended petition creates a presumption
Columbia argues that HIAR’s conduct in failing to notify Columbia regarding the amended petition establishes that HIAR breached its policy’s cooperation clause. Columbia notes that an insured’s failure to comply with a cooperation clause supports an insurer’s refusal to provide coverage when the insurer can show: (1) the insured materially breached the cooperation clause; (2) the insurer was substantially prejudiced as a result of the insured’s breach; and (3) the insurer exercised reasonable diligence to secure the insured’s cooperation. Cf. Kearns v. Interlex Ins. Co.,
It is typically a question for a fact-finder whether an insured provided notice to the insurer within a reasonable time and whether the insurer suffered substantial prejudice as a result. See Hudson Specialty Ins. Co. v. Brash Tygr, LLC,
An insured’s failure to provide an amended petition does not automatically indicate that the insurer need not provide coverage. See id. A failure to provide an insurer an amended petition supports a refusal to defend and provide coverage only if the insurer suffered substantial prejudice by the insured’s failure of notice. See Truck Ins. Exch. v. Prairie Framing, LLC,
In this case, Columbia was not prejudiced when it was not informed about the amended petition, as the amended petition did not alter the theory on which the class sought damages. The class’s litigation at all times presented TCPA claims that Columbia has refused since 2002 to defend or indemnify. Columbia’s initial refusal to defend or provide coverage for the class’s TCPA claims was the point at which it wrongly refused to defend HIAR in this litigation. Even though the initial petition invoked Columbia’s coverage, Columbia sought to be wholly unconnected from the proceedings and now argues that its dis-connectiveness barred coverage. Under these circumstances, the trial court did not err in refusing to entertain Columbia’s assertions that its coverage was inapplicable because HIAR failed to cooperate or provide notice of the amended petition.
5. Coverage was invoked and Schmitz applies
For the foregoing reasons, the trial court did not err in determining that “property damage” and “advertising injury” coverage was invoked and triggered Columbia’s duty to defend HIAR. Applying Schmitz, Columbia’s wrongful failure to defend HIAR precludes its complaints that it is not liable to indemnify HIAR for the settlement amount.
VI. Columbia does not get another hearing about reasonableness
Columbia complains that it should not be required to pay the settlement in this case because it is not reasonable. Cf.
As noted earlier, Columbia is too late in attempting to contest the reasonableness of the settlement. It wrongly refused to defend and thereby is not permitted to contest liability.
After the insured entered into a settlement, the trial court held a hearing at which it specifically determined that the settlement amount was reasonable and not the product of collusion. This is sufficient to establish the reasonableness of the settlement. Schmitz,
VII. Policy limits do not bar Columbia’s indemnification of the settlement
Columbia also maintains that it need not indemnify the class’s settlement because the trial court erred by finding that HIAR’s policy limits “do not matter.” Columbia contends that the trial court wrongly awarded extra-contractual damages, even though the class made no request for extra-contractual damages, HIAR released its counterclaims for extra-contractual damages, and Columbia’s maximum indemnity obligation was $2 million in the absence of a successful extra-contractual damages claim. Columbia asserts that only a “bad faith” claim could result in the award of extra-contractual damages, and it maintains that no “bad faith” allegation was presented in this case. Columbia argues that nothing in Schmitz permits it to be subject to payment of extra-contractual damages.
Columbia’s assertions that it need not indemnify the settlement fully are not persuasive. As explored above, Columbia’s wrongful refusal to defend HIAR put it in a position to indemnify HIAR for all damages flowing from its breach of the duty to defend. See Schmitz,
The class contends that, to the extent that Columbia complains that it now must pay extra-contractual damages, Columbia simply is suffering the consequences of its breach of its duty to defend and its failure to settle within its policy limits. Cf. Shobe
VIII.Overruling Columbia’s motion to amend was not an abuse of discretion
Columbia argues that the trial court erred in refusing to sustain its motion to amend that sought to add HIAR’s excess insurer as a party. Columbia argues that Rule 55.33 supported adding the excess insurer as a party because it provides that leave to amend should be granted “when justice so requires.” Columbia contends that adding the excess insurer in this litigation would have contributed to judicial economy, prevented the award of extra-contractual damages, and provided HIAR more sufficient insurance coverage for the settlement amount.
A ruling on a motion for leave to amend is reviewed for abuse of discretion. Asmus,
IX.The trial court did not err on public policy grounds
Columbia also alleges that the trial court erred in refusing to consider its arguments that providing insurance coverage for the class’s TCPA claims should be disallowed for public policy reasons. Columbia contends that it would frustrate the TCPA’s policy aim of deterring junk faxes if junk fax-related claims did not actually impact the junk fax sender and were instead insured against. It argues that a conclusion that coverage applies does not satisfy the “fortuity test” required for insurance claims, which reflects a public policy that insurable losses must be accidental and not intentional.
These arguments are not persuasive. The public policy concerns presented regard preventing an insured from insuring against malicious conduct. As explored above, HIAR’s conduct in this matter was not willful and malicious, but rather it was negligent and unintentionally resulted in violations of the TCPA.
Columbia urges this Court to declare that TCPA violations do not result in insurable losses as a matter of law and public policy. But the trial court did not err in refusing to apply public policy rationales to undo Columbia’s existing obligations to its insured. To the extent that Columbia wishes to avoid liability for such losses in the future, nothing prevents it from affirmatively contracting with its insureds to exclude coverage for TCPA violations.
X.Conclusion
For the foregoing reasons, the trial court’s judgment is affirmed.
Notes
. Jurisdiction is vested in this Court pursuant to Missouri Constitution article V, section 10, as this matter was taken on transfer after disposition by the court of appeals.
. The TCPA, 47 U.S.C. section 227(b)(3), provides in relevant part:
(3) Private right of action
A person or entity may, if otherwise permitted by the laws or rules of court of a State, bring in an appropriate court of that State—
(A)an action based on a violation of this subsection or the regulations prescribed under this subsection to enjoin such violation,
(B) an action to recover for actual monetary loss from such a violation, or to receive $500 in damages for each such violation, whichever is greater, or
(C) both such actions.
If the court finds that the defendant willfully or knowingly violated this subsection or the regulations prescribed under this subsection, the court may, in its discretion, increase the amount of the award to an amount equal to not more than 3 times the amount available under subparagraph (B) of this paragraph.
. The faxes were advertisements for the hotel operated by HIAR and its related entity HMA Riverport LLC (HMA). An amended petition in this matter added HMA as a defendant. For simplicity, HIAR and HMA are referenced collectively in this opinion as HIAR.
. This case was initiated by another party in 2002, and Little filed an amended class action petition in 2004 to substitute itself for the original named plaintiff. Both the original petition and Little’s petition sought recovery under the TCPA for all HIAR-paid advertising junk faxes that were sent in the 314 and 636 area codes. For simplicity, Little is referenced throughout this opinion as "the class,” even in those instances when Little acted individually as the representative plaintiff.
. The policy’s limits were $1 million per "occurrence” or $2 million in the aggregate.
. HIAR’s settlement agreement with the class limited its liability to its insurance assets. Cf. Schmitz v. Great Am. Assurance Co.,
. Columbia’s counsel stated at oral argument that the settlement amount plus interest totaled $8.4 million.
. The trial court also determined that the class’s claims were within the plain language of Columbia's policy provisions related to a "products-completed operations hazard.” This factor is part of Columbia’s policy related to “property damage,” as the policy’s "property damage” provisions included a section defining a "products-completed operations hazard” (Coverage A, 14a).
.Columbia highlights that it entered a settlement and stipulation of dismissal with prejudice in October 2011 as to HIAR’s potential claims regarding Columbia’s refusal to defend, including any claims for breach of contract and bad faith.
. This Court previously has explained an insurer's duty to defend its insured as follows:
The duty to defend is broader than the duty to indemnify. To suggest that the insured must prove the insurer’s obligation to pay before the insurer is required to provide a defense would make the duty to defend provision a hollow promised] The duty to defend arises when ever there is a potential or possible liability to pay based on the facts at the outset of the case and is not depen-dant on the probable liability to pay based on the facts ascertained through trial. The duty to defend is determined by comparing the language of the insurance policy with the allegations in the complaint. If the complaint merely alleges facts that give rise to a claim potentially within the policy’s coverage, the insurer has a duty to defend.
McCormack Baron Mgmt. Servs., Inc. v. Am. Guarantee & Liab. Ins. Co.,
. In Harjoe v. Herz Financial, this Court addressed Herz Financial’s due process challenge to the TCPA alleging that the TCPA statutory "penalty” violated the Eighth Amendment as a "grossly excessive punishment.”
Comparatively, in Collier v. Roth the court of appeals discussed recovery of statutory damages pursuant to the Unfair Milk Sales Practices Act (section 416.425, RSMo 1969). See
. Columbia’s arguments include that the circuit court erred in refusing to consider that the class’s settlement cannot be insured because it would be akin to insuring punitive damages. This argument is not persuasive in light of this Court’s conclusion that TCPA statutory damages are not in the nature of fines and penalties.
. Columbia’s arguments asserting a lack of coverage under its "advertising injury” policy language include its contention that there is no coverage because the penal statute exclusion bars coverage. This argument is unpersuasive in light of this Court’s determination that the TCPA is not a penal statute as it is applied in this case.