*1 actions employment of the adverse cause compensation the workers’ filing his
was
claim. attempt to charac- reject Buehrle’s
We theo- as alternative
terize his admission Instead, has con- Buehrle
ry recovery. reason for the factually that
ceded not exclu- actions was employment
adverse all, filing of workers’
sively, if at his is fa- claim. This admission
compensation the Mis- claim under
tal to his retaliation Act, and Compensation
souri Workers’ properly entered.
summary judgment was
VI. grant court’s affirm the district City. in favor of the
summary judgment COMPANY;
OWNERS INSURANCE Company, Insurance
Auto-Owners
Plaintiffs-Appellants
v. WORKS, INC., do- AUTO
EUROPEAN Autopia; Percic En- business
terprises, Defendants-Appellees.
No. 11-3068. Appeals,
United States Court
Eighth Circuit. 13, 2012.
Submitted: June Sept.
Filed: 2012. En Banc
Rehearing Rehearing
Denied Nov. *2 “advertising injury”
policy provisions damage.” After settlement “property or action, state the federal was reached concluded that district court1 *3 fax adver by sending unsolicited sustained of the TCPA are in violation tisements injury provi covered under appeal, policies. The insurers sion are not covered that TCPA claims arguing standard Minne policies. Applying inter of insurance contract principles sota are pretation unambiguous where words “plain, ordinary, popular and given their meaning,” Co. Wis. v. Woz Gen. Cas. Travel, niak (Minn.2009)(citation omitted), Tobin, ambigu and argued, Allison M. Timothy P. in Garrison, brief, language is construed favor Minneapolis, on the ous Lange insured, Mining Mfg. Co. v. MN, Minn. appellants. for 175, 179 Travelers Indem. argued, Rolling Oppenheim, David Max (Minn.1990),we affirm. Jansen, Meadows, IL, Louise Jenneane Blanchfield, MN, D. Minneapolis, Garrett I. Paul, MN,
Jr., Penney, Phillip D. Brant St. brief, Bock, IL, Chicago, on the Andrew a Autopia, repair company, an auto hired appellees. firm called Business to Business Solutions 5,000 prospective to fax advertisements to MURPHY, MELLOY, and Before According Autopia, to customers COLLOTON, Judges. Circuit repre- to Business Solutions had Business MURPHY, Judge. Circuit complied sented that its services with fax- only that it sent ing guidelines and faxes and Auto- Company Owners Insurance to receive persons who had consented this Company brought Owners Insurance Enterprises them. Percic was one of the declaratory judgment seeking action a rul- fax recipients of these advertisements ing that their insurance issued alleges that it never consented to receive Works, Inc., European doing Auto busi- them. Autopia, ness as do not cover class claims brought Enterpris- in state court Percic action brought Percic class lawsuit es, complaint alleged Inc. The state court court, state against Autopia Minnesota Autopia Telephone violated Con- claiming Autopia had violated the (TCPA), sumer Protection Act 47 U.S.C. TCPA and committed the common law tort 227(b)(1)(C), by § fax sending unsolicited unsolicited fax sending of conversion
advertisements. to it other class mem- advertisements prohibits argue
In this federal action the insurers bers. The TCPA pro- do not fall within the unsolicited fax advertisements and such claims Kyle, 1. The Honorable Richard H. United sota. Judge Minne- States District for the District of recipients Autopia of action to and Percic were named as defen- a private
vides 227(b)(1)(C), sought § The insurers faxes. 47 U.S.C. dants. determina- of such (b)(3). Injured parties may sue for actual tion that the claims at issue in the state statutory amount of proceeding or for court were not covered $500 under 227(b)(3)(B). § policies. violation. Id their Percic filed a per counterclaim seeking a declaration -that the claims had alleged that the unsolicit- complaint “advertising inju- asserted were covered as “unlawfully interrupted ed faxes had ry” “property damage.” and/or priva- Plaintiffs and other class members’ Autopia left cy being interests alone.” Percic, and the Autopia, insurers settled repre- maintained that it had relied on the litigation court in March 2011. state *4 to sentations of Business Business Solu- agreement The settlement stated that Au- any- had not intended to harm tions and 5,851 topia had faxed unsolicited advertise- Autopia tendered its defense to one. ments, 3,903 which had been received. (collectively the and Auto-Owners Owners parties agreed entry The also to the insurers) who undertook the defense under judgment against Autopia amount of rights. reservation $1,951,500, represented which for $500 each unsolicited fax received class purchased had a commercial Autopia 227(b)(3)(B). members. See § U.S.C. liability liability policy garage and general agreement The settlement stated and a commercial coverage from Owners only against was enforceable the insurers from Auto-Owners. The policy umbrella coverage if were found in the federal ac- liability and commer commercial tion, against individually. Autopia The policies contained identical cial umbrella approved state court certified the class and case, of this and language purposes the settlement. to here as they simply will be referred part poli In relevant policies.” “the summary Both sides then moved for sums that “the insured be cies covered judgment declaratory judgment in this ac- damages legally obligated pay to as comes granted summary The tion. district court ” ‘advertising injury.’ The because of ... judgment Autopia to and Percic and de- “in “advertising injury” as policies defined nied the insurers’ motion. It concluded more” of four jury arising out of one or claim that the TCPA was claim for ad- The section at issue listed offenses. vertising injury and was thus covered un- publication in this case is “oral or written “plain ordinary meaning” der the person’s right material that violates a policies. Specifically, the court held privacy.”2 also cover sums fax unsolicited advertise- obligated legally that “the insured becomes ments in violation of the TCPA was an ... ‘proper because of pay “oral or written of material ” ty damage’ caused “occurrence” or person’s right privacy.” that violates a an “incident.” coverage it found under the advertis- Since injury of the provision policies, action instituted the state class
While question court did not reach the pending, Auto- district against Autopia Percic was property damage provision declaratory initiated this whether pia’s insurers provided coverage. action in federal district court. also judgment organization types person or libels a or or 2. The other three of offenses related to ders infringement, advertising copyright mis- disparages person's organization’s goods, are or ideas, advertising and “oral appropriation of products or services.” publication of material that slan- or written Capital Am. States Ins. Co. v. solitude. appeal, arguing insurers determining Cnty., 392 F.3d erred in Assocs. Jackson district court (Second) (7th Cir.2004); advertising injury. Restatement violations were TCPA (1977). § that TCPA violations They also contend Torts 652A dam- property under the are not covered plain The insurers contend that the lan- They seek reversal of the age provision. policies’ injury of the guage summary judgment grant adverse interest, only secrecy provision covers summary judgment their favor. entry of since that is concerned with grant the district court’s review being published. content material novo, summary judgment “viewing de argue The insurers further that the TCPA light in the most the evidence favorable allegations complaint and the con- v. Extendi nonmoving party.” Skare only cern the intrusion on solitude caused care Health Servs. advertisements, by unsolicited fax not the (8th Cir.2008). Summary judgment ap in- content of those advertisements. The genuine no dis propriate where “there is unambigu- surers contend in sum that the *5 pute any as to material fact and the mov only language policies protects ous of the judgment ant is entitled to as matter of secrecy privacy based violations and 56(a). parties The law.” Fed.R.Civ.P. privacy pro- the seclusion based interests the in agree governs that Minnesota law tected the TCPA. policies at terpretation of the insurance pol Courts which have examined similar Supreme issue here. Since the Minnesota icy provisions disagree pol whether on specific has never addressed the Court type icies cover caused presented appeal, issue in this our task is in privacy violations raised TCPA claims. it. predict to how court would resolve Enters., majority of circuits which have consid Callas Inc. v. In See Travelers (8th Am., question ered the have held that 952, dem. Co. 193 F.3d 955 Cir.1999). phrase secrecy pri is not limited based
vacy violations and that the phrase covers II. See, e.g., TCPA violations. Park Univ. Enters., Reading, Inc. v. Am. Co. Cas. primary presented issue here Pa., (10th 1239, Cir.2006); 1250 advertising injury provision is whether the Augusta, Hooters Inc. v. Am. Global publication for “oral or written of material Co., 201, Fed.Appx. Ins. 157 206-07 a person’s right privacy” violates Cir.2005) (unpublished); W. Rim Inv. Ad sending covers the of unsolicited fax adver visors, Co., Fed.Appx. Inc. v. Ins. 96 tisements violation of the TCPA. The Gulf (5th Cir.2004) (unpublished), aff'g parties dispute do not that TCPA viola (N.D.Tex.2003); F.Supp.2d 836 see also may tions for unsolicited faxes Co., 1000, Transp. Penzer v. Ins. 29 So.3d privacy right, violate some form of but (Fla.2010). example, 1006-07 For they disagree type as to whether the duty Tenth found a Circuit defend privacy violation on which Percic’s TCPA University Enterprises, Park because the claim policies. is based is covered (1) of an Privacy allegedly “transmission unsolicited distinguishes law between se act, crecy publishing fax can constitute a while punish based torts that disclosure of receiving the can result in an inva private information about someone other same (2) privacy” than the sion of under Kansas law. 442 recipient, and seclusion based involve intruding torts on another’s F.3d 1251. (Minn.1998). 246, In inter- ac contrast, has N.W.2d the Seventh Circuit
In “primary goal” is to preting to those offered a contract the similar arguments cepted Valspar States Re- parties’ here. In American intent. insurers determine by the Inc., Co., that a Gaylord’s, it held 764 N.W.2d finish, Insurance Inc. v. material (Minn.2009). Unambiguous or written “[o]ral privacy” violates ordinary, “plain, their given words are privacy viola secrecy based only covers Cas. Co. Wis. popular meaning.” Gen. claims does not cover therefore tions and Travel, 762 N.W.2d v. Wozniak 940, 942- F.3d at See 392 under the TCPA. omitted). (citation (Minn.2009) Am- was the Seventh Circuit In that case 43. against the language is construed biguous deter Illinois law would how predicting ex- according to the “reasonable insurer was no issue, that there deciding mine the Mining of the insured.” Minn. pectations suit under a TCPA duty to defend Indem. Mfg. Co. v. Travelers nar “publication” the word policy because (Minn.1990). Minnesota rights re privacy scope rowed ambiguities courts construe favor only leaving provision, ferred to most insurance insured “[b]ecause at 942- Id. secrecy based claims covered. forms, preprinted which presented are subse Supreme Court The Illinois usually accept or potential insured must to the con Illinois law decided quently Bros., Inc. v. reject as a whole.” Nathe interpre court’s authoritative trary. That Nat’l Fire Ins. Am. that such a law ruled of Illinois tation policy pro- An insurance violations. cover TCPA provision does “reasonably if it ambiguous vision *6 Elecs., v. Swiderski Forge Ins. Co. Valley subject interpretation.” to more than one 653, 352, Inc., Ill.Dec. 860 Ill.2d 307 223 Co., 457 at Mining Mfg. Minn. (2006). Illinois Su 307, N.E.2d that the Seventh Court reasoned preme injury provision at issue the word reading of technical Circuit’s legal- damages the insured becomes covers Illi with” was “inconsistent “publication” “oral or pay because of ly obligated construing insurance for principles nois of material that vio- written contracts, undefined which “afford[ ] right privacy.” a of Since lates popularly ordinary, and plain, terms their key the terms of do not define the Id. But see Auto- meanings.” understood “right privacy,” of we “publication” Computing, Ins. Co. v. Websolv Owners (7th Cir.2009) ordinary “plain them their accord Inc., F.3d 550-51 Ctr., Inc. v. meaning.” Trade follow its Iowa would (predicting Brookfield Cnty. Ramsey, holding interpretation American States duty to defend under there was no provision).
identical ordinary conclude that
We III. privacy” “right the term meaning of type easily includes violations of Here, apply are called to we by the TCPA. privacy protected interest language of specific law to the Minnesota stated that viola previously court has Our provision under con advertising injury “ priva are ‘invasions of tions of the TCPA Minnesota law directs sideration. lay meaning[ of ordinary, ] cy’ [the] under interpre of contract “[gjeneral principles Underwriters phrase[].” Universal the[] Lobeck apply policies.” tation to insurance Inc., Network, Co., Auto. v. Lou Fusz 582 Ins. Co. Mut. Auto. Ins. v. State Farm Cir.2005).3 (8th Moreover, plain meaning Other 401 F.3d recognized unexpect “publication” enough have that “an is broad to include courts fax, jangling telephone a or a knock the dissemination of fax advertisements. ed like door, definitions, disrupt multiple can a householder’s “Publication” has in on the (as pro cluding “communication in quiet” and that TCPA news or peace and formation) seclusion, public” “interest in also and “the act or motes this telephone being up process issuing copies lines from tied ... keeps consumption recipients’ public.” and avoids distribution to the Webster’s (2002). paper.” Dictionary ink and Am. States Ins. 392 Third New International narrower, complaint alleged F.3d at 942. Percic’s While the word can have the Autopia meaning urged by violated the TCPA send tort based insurers in “unlawfully publicizing personal unsolicited faxes which “secret or informa tion,” terrupted Plaintiffs and the other class see Auto-Owners Ins. privacy being ordinary meaning
members’
interests
left
at
its
is broader.
policies’
alone.” We conclude that
conclude that
fax
advertise
...
phrase “violating]
right
privacy”
“publication”
ments is a form of
because
encompasses
rights
privacy
violations of
such transmissions fall within the defini
protected
communicating
the TCPA. See Park Univ.
tion of
general
information
Enters.,
(10th
Inc.,
See,
ly.
F.3d at 1249-50
Other courts have agreed.
e.g.,
Cir.);
Inc.,
Enters., Inc.,
Augusta,
Hooters
157 Fed. Park Univ.
F.3d
(11th Cir.).
(10th Cir.)
Appx. at 206-07
(concluding
definition of
“publication” can
“communicating]
include
reject
argument
We also
the insurers’
generally”);
information
Hooters
Au
that the policies’
“violating]
reference to
gusta,
Fed.Appx.
at 208
...
privacy” required
Percic to
Cir.).
plead
specific Minnesota common law
privacy
complaint against
tort in its
Auto-
The distinction
“publi-
between the term
pia. They contend that
phrase
Minnesota courts
cation” and the
“making known”
*7
(the
rejected coverage
“have
specific
being
where the
latter
used in other commercial
cause of action
policy
liability
identified in the
is
policies)
has been examined
Here, however,
pled.”
policies
not
the
use
several circuit courts. This distinction
the
...
language
“violating]
a
our
“publication”
confirms
view that
can
right
privacy”
defining
without
that
disseminating
include
fax advertisements.
limiting
scope.
term or
its
Minnesota law Several circuits have found
coverage
no
directs that words in an
policies
insurance
under
which
language
used the
ordinary
are to be accorded their
meaning.
“making
any person
organiza-
known to
or
Co.,
See Garvis v. Emp’rs Mut. Cas.
497 tion covered material that
a per-
violates
N.W.2d
right
privacy,”
opposed
Since
son’s
to the
“
TCPA
privacy’
language
violations are ‘invasions of
“publication
here which refers to
under
ordinary,
lay meaning[]
[the]
of of material that violates a person’s right of
phrase[],”
the[]
Universal
privacy.”
Cynosure,
Underwriters
See
Inc. v. St. Paul
Co.,
Co.,
(1st
Ins.
at
argument by
F.3d
this
Fire & Marine Ins.
645 F.3d
Cir.2011) (Souter, J.);
the insurers is without merit.
Res. Bankshares
3.
interpreted
jury,”
In Universal
we
Underwriters
which was defined to include "invasion
complaint
rights
Missouri law and
privacy.”
concluded that a
We
did not consider the
alleging
triggered
a
duty
policy’s separate "advertising injury”
TCPA violation
a
provi-
policy provision covering
defend under a
"in-
at
sion.
F.3d
883.
Co.,
Minnesota law re-
interpretation,”
Ins.
407 one
Mercury
Paul
v. St.
Corp.
Cir.2005)
it
in favor of
(nearly quires that
be construed
631, 641-42
F.3d
Co.,
Mining Mfg.
coverage.
& Ma-
Minn.
&
Paul Fire
language); St.
identical
Corp.,
Applying
Int’l
at 179.
the last anteced-
v. Brother
Ins. Co.
rine
(3d Cir.2009) (un-
the insurers’
compel
rule does not
125-26
ent
Fed.Appx.
added).
agree
interpretation excluding coverage.
We
(emphases
narrow
published)
explanation that
limiting phrase
rule directs that “a
Justice Souter’s
That
with
“mak-
general than
ordinarily
only
is more
modifies
the noun or
“publication”
...
at
Cynosure,
immediately
it
follows.” Lar-
phrase
known.”
added).
suggests
son,
latter
disclosure
the
(emphasis
While
If an insurance
advertisements.
the content of the
subject
more than
involve
“reasonably
sion is
injuries
violations. The
at
advertising
policies
includ- TCPA
issue
That the other
exclusion,
predicated
are
on the
here do
have such
nor do
policy
ed
may
they
key
reflect
define the
terms in their advertis-
of the advertisement
content
injury
provision.
than the fact that most ad-
nothing more
injuries are related to the content
vertising
sum,
In
we conclude that under Minne
the advertisement.
It is a considerable
sota law “oral or written
argue
necessarily
that this
stretch to
person’s right
material that violates a
unambiguously implies
that an
privacy” covers the TCPA claim at issue
injury
happens
which
not to be related to
sending
here for the
of unsolicited fax
content meant to be
the advertisement’s
advertisements. Such conduct involves a
any ap-
coverage.
excluded from
Without
(the
“publication
of material”
plain language
conflict between the
parent
advertisement)
the unsolicited fax
that vio
surrounding policy
and the
of the
(the
“right
privacy”
lates a
terms,
no reason to believe the
there is
privacy protected by
seclusion based
Supreme Court would deviate
Minnesota
TCPA).
reading
Our
am-
interpreting
from its
rule of
faithful to
principles
Minnesota
of insur
biguous provisions in favor of the insured.
interpretation,
require
ance contract
which
Co.,
Ill.Dec.
Valley Forge
See
Ins.
give
courts to
“plain, ordinary,
terms their
(TCPA
coverage
860 N.E.2d
under
am
popular meaning,” and to resolve
not,
any way,
privacy
“does
biguities according to the
ex
“reasonable
prevent
policies’
alternative definitions pectations
Mining
of the insured.” Minn.
‘advertising injury’
being given
from
Co.,
Mfg.
A number of decisions from juris other
dictions that find coverage for damages
arising from unsolicited facsimiles seem to
construe the subsection isolation without
discussing surrounding provisions. exception, court,
One cited is Valley
Forge Elecs., Inc., Ins. Co. v. Swiderski
223 Ill.2d 307 Ill.Dec. 860 N.E.2d (2006). In rejecting the insurer’s ar
gument, Supreme Court of Illinois rea (b) reading
soned that broadly subsection
to encompass unsolicited facsimiles would