MEMORANDUM AND ORDER
This insurance contract case comes before the court on cross-motions for partial judgment on the pleadings (Docs. 25 and 30). Plaintiff Park University Enterprises, Inc. (“Park”) claims that Defendant American Casualty Company of Reading, PA (“American”) has a duty to defend Park in an underlying state court action brought pursuant to the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227, and seeks declaratory judgment to that effect. Park also seeks damages for breach of contract. Ultimately, Park claims that American has a duty to indemnify Park for any damages incurred in the underlying state court action, but the indemnification claims are not yet ripe for review.
For the following reasons, the court grants Park’s motion for partial judgment on the pleadings (Doe. 25) as it relates to the duty to defend, and denies American’s motion (Doc. 30).
I. Factual and Legal Background
Thе following facts are taken from the pleadings and attachments.
On October 16, 2002, JC Hauling Company sued Park in the Circuit Court of St. Clair County, Illinois. In that action, JC Hauling alleges that Park engaged in the following acts:
5. On or about June 19, 2002, [Park] used or caused to be used a telephone facsimile machine, computer, or other device to send a 1-page advertisement to Plaintiffs telephone facsimile machine in Illinois.
6. Said advertising materials were sent via facsimile transmission to ... Plaintiff without prior express invitation or permission.
15. [Park’s] actions were willful and knowing in that [Park] consciously and deliberately sent or caused to be sent a one page advertisement to Plaintiffs telephone facsimile machine, and [Park] knew or should have known that it did not have the prior express invitation or permission of Plaintiff and the оther members of the Class to send the advertisements and knew or should have known that its actions constitute a violation of law.
JC Hauling alleges that Park’s acts violated the TCPA. JC Hauling brought the state court action as a putative class action, alleging that Park transmitted numerous unsolicited facsimiles.
The TCPA provides that “[i]t shall be unlawful for any person within the United States ... to use any telephone facsimile machine, computer, or other device to send an unsolicited advertisement to a telephone facsimile machine.... ” 47 U.S.C. § 227(b). “Unsolicited advertisement” is defined as “any material advertising the commercial availability or quality of any property, goods, or services which is transmitted to any person without that person’s prior express invitation or permission.” Id. § 227(a)(4). Recipients of facsimiles in violation of the TCPA may pursue a private right of action. Id. § 227(b)(3). Through such action, a recipient may obtain injunctive relief and recover actual monetary losses, or $500 for each violation, whichever is greater. Id. If the court finds that the defendant willfully or knowingly violated the TCPA, the court may award treble damages. Id.
*1099 In the state court action, Park admits that it transmitted advertisement(s) by facsimile, but denies that any such advertisement was unsolicited. Park maintains that it has an existing business or customer relationship with JC Hauling and any other recipients, and that it did not transmit any advertising material without prior express permission and/or invitation. Park further denies intentionally violating the TCP A.
On November 1, 2002, Park gave notice of the underlying state court action to American, its liability insurance carrier. American notified Park on November 5, 2002 that it would not provide а defense or coverage in connection with the underlying state court action. Park then filed the instant suit.
Park claims that American owes a duty to defend under two provisions of the insurance policy: (1) “property damage” liability coverage, and (2) “advertising injury” liability coverage. With respect to property damage liability, the policy provides:
Coverage A. Bodily Injury and Property Damage Liability
1. Insuring Agreement
a. We will pay those sums that the insured becomes legally obligated to pay as damages because of “bodily injury” or “property damage” to which this insurance applies. We will have the right and duty to defend any “suit” seeking those damages....
b. This insurance applies to “bodily injury” and “property damage” only if:
1. The “bodily injury” or “property damage” is caused by an “occurrence” ....
“Property damage,” according to the policy, means “[l]oss of use оf tangible property that is not physically injured.... ” The policy defines an “occurrence” as an “accident, including continuous exposure or repeated exposure to substantially the same general harmful conditions.” The policy does not define the word “accident.” The policy does not define the term “loss of use.” Coverage for “property damage” does not apply to property damage expected or intended from the standpoint of the insured.
With respect to advertising injury liability, the policy provides:
Coverage B. Personal and Advertising Injury Liability
1. Insuring Agreement
a. We will pay those sums that the insured becomes legally obligated to pay as damages because of “personal and advertising injury” to which this insurance applies. We will have the right and duty to defend any “suit” seeking those damages....
Under the policy, “advertising injury” meаns “injury, including consequential bodily injury, arising out of ... oral or written publication of material that violates a person’s right of privacy.” The term “advertisement” means “a notice that is broadcast or published to the general public or specific market segments about your goods, products or services for the purpose of attracting customers or supporters.” The policy does not define “right of privacy” or “oral or written publication.”
II. Standard of Review
Both parties have moved for partial judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c). To evaluate a Rule 12(c) motion for judgment on the pleadings, the court employs the same standard that it uses to analyze a Rule 12(b)(6) motion to dismiss.
Ramirez v. Dep’t of Corr.,
III. Discussion
The issue before the court is whether Park’s insurance policy with American possibly covers the acts allegedly taken by Park in violation of the TCPA. If the court determines that there is a ‘“potential of liability,’ even if remote,” then American has a duty to defend Park in the underlying state court action.
See Spivey v. Safeco Ins. Co.,
A. Contract Interpretation and Duty to Defend Standards
The parties agree that Kansas law governs whether American has a duty to defend Park in the underlying state court action.
See generally, Layne Christensen Co. v. Zurich Canada,
When interpreting a written contract, the court seeks to ascertain the intent of the parties.
Marquis v. State Farm Fire & Cas. Co.,
“[M]eaning should be ascertained by examining the documents from all four corners and by considering all of the pertinent provisions, rather than by critical
*1101
analysis of a single or isolated provision....”
Akandas, Inc. v. Klippel,
“Because the insurer prepares its own contracts, it has a duty to make the meaning clear. If the insurer intends to restrict or limit coverage under the policy, it must use clear and unambiguous language; otherwisе, the policy will be liberally construed in favor of the insured.”
O’Bryan,
An insurer’s duty to defend is distinct from the duty to indemnify.
Quality Painting, Inc. v. Truck Ins. Exch.,
B. ‘Property Damage” Coverage
Park claims that American has a duty to defend under the “property damage” provisions of the insurance policy. A duty to defend arises under the property damage provisions when a plaintiff alleges that an “occurrence” caused the “loss of use” of tangible property. American maintains that neither a “loss of use” nor an “occurrence” is at issue in the instant case. For the following reasons, the court determines that American has a duty to defend under the property damage provisions of the policy.
1. “Loss of Use”
Park first argues that a “loss of use” is at play in the instant case because any time a facsimile machine is used to print an advertisement, the recipient of the fac
*1102
simile necessarily experiences temporary loss of use of the machine, as well as the paper and toner. Park’s рosition is supported by the legislative history of the TCPA and
Prime TV, LLC. v. Travelers Ins. Co.,
The legislative history indicates that one of the reasons Congress adopted the facsimile provisions of the TCPA was to alleviate unwanted loss of use of facsimile machines:
First, it [fax advertising] shifts some of the costs of advertising from the sender to the recipient. Second, it occupies the recipient’s facsimile machine so that it is unavailable for legitimate business messages while processing and printing the junk fax.
In the case of fax advertising ... the recipient assumes both the cost associated with the use of the facsimile machine, and the cost of the expensive paper used to print out facsimile messages....
H.R.Rep. No. 102-317, at 10, 25 (1991) (cited in
Destination Ventures, Ltd. v. F.C.C.,
American submits that the only way the printing of a one-page advertisement could constitute “loss of use” is if the recipient’s facsimile machine is continually in use. The court disagrees. A recipient of an unsolicited facsimile experiences loss of use any time the paper or toner is used to print the advertisement. Moreover, a recipient may experience loss of use of the facsimile machine even if it is not continually being used; all that is required is the attempted simultaneous transmittal of two facsimiles. Such loss of use need not be specifically pleaded in the underlying state court action. The court is willing to presume that the potential loss of use is present. For these reasons, the court concludes that the “loss of use” requirеment of the property damage provisions potentially may be met.
2. Occurrence
Park next argues that the transmittal of the facsimile advertisement constituted an “occurrence” because any unsolicited transmittal was accidental; Park thought that it was transmitting the advertisement to existing business customers who wanted to know about its programs. The policy defines “occurrence” as “an accident, including continuous or repeated exposure to substantially the same general harmful conditions.” For the following reasons, the court concludes that Park’s actions may have constituted an “occurrence” under the policy. In other words, there is a “potential of liability” under the property damage provisions of the insurance policy.
See Spivey,
a. The Relevance of Park’s Denial
As an initial matter, the parties spend much time debating the rеlevance of Park’s denial in the state court action of intentionally sending an unsolicited facsimile. Park argues that its denial is information that American should have considered in making its good faith analysis of whether the policy provides coverage, and American argues that Park’s denial is immaterial because “ ‘just as we cannot allow insurers to recharacterize negligent conduct as intentional, we cannot allow the insured to recast intentional conduct as merely negligent.’ ”
Quality Painting,
American claims that the JC Hauling suit does not involve alternative theories of liability; according to American, Park may only be held liable in the JC Hauling suit if it intentionally sent unsolicited facsimiles to JC Hauling and the putative class members. The court disagrees. The TCPA is essentially a strict liability statute — even if Park erroneously faxed advertisements to recipients with whom it did not have an existing business relationship, Park may be held hable under the TCPA for its actions (albeit without treble damages). JC Hаuling recognized the implicit negligence component of the TCPA when it alleged that Park knew or should have known that the JC Hauling facsimile was unsolicited.
American attempts to distinguish the instant case from cases where an underlying complaint alleged facts giving rise to liability based either on an intentional act or on negligence.
See, e.g., Am. Motorists Ins. Co.,
b. Natural and Probable Consequences Test
American’s core argument and slight variations of it reverberate throughout its briefs. Repeatedly, American assumes that: (1) because JC Hauling alleges that Park intentionally sent the facsimile, and (2) because Park must have known that the foreseeable consequence of sending the facsimile was that the recipient’s facsimile machine would have to receive and print the facsimile, then (3) Park must have intended to send an unsolicited facsimile, violate the TCPA, and injure JC Hauling. The court rejects this rationale for the following reasons.
Kansas follows the “natural and probable consequences” test in determining whether an injury is accidental.
Harris v. Richards,
American urges the court to follow
Western Rim Investment Advisors, Inc. v. Gulf Insurance Co.,
American also cites numerous other cases in support of its position. The cases cited by American are distinguishable. In each case, the court held that intent to injure could be inferred from an intentional act because the injury was the natural and probable consequence of the act. The acts at issue in the cases included the intentional discharge of firearms, intentional assault and battery, sexual harassment, and intimidation.
See generally Quality Painting,
American argues that even if the facsimile was solicited, Park nevertheless intended to use JC Hauling’s facsimile paper, toner, electricity, and facsimile machine. That is, American postulates that any time you send a facsimile, you intend to inflict damage on the recipient. According to American, the damages JC Hauling allegedly suffered as a result of Park’s TCPA violation did not result from Park’s alleged failure to obtain prior permission from JC Hauling; instead, the damages resulted from Park’s intentional transmittal of the facsimile advertisement. In support, American cites the legislative history of the TCPA:
Facsimile machines are designed to accept, process, and print all messages which arrive over their dedicated lines. The fax advertiser takes advantage of this basic design by sending advertisements to available fax numbers, knowing that it will be received and printed by the recipient’s machine....
H.R.Rep. No. 102-317, at 10 (cited in
Destination Ventures, Ltd.,
American’s logic is flawed. A facsimile recipient does not incur actionable damages if he or she welcomes or solicits a facsimile, even if the recipient’s paper and toner is used. Therefore, if Park believed, even erroneously, that it was sending a facsimile to someone who wanted such facsimile, then Park did not intend to cause damages.
Moreover, as Park points out, American’s duty to defend only has the potential of arising when there is a “suit.” There can only be a “suit” when a facsimile allegedly constitutes an unsolicited advertisement as defined by the TCP A. The mere fact, standing alonе, that Park sent a facsimile and used the recipient’s facsimile machine would not result in a “suit,” thereby potentially implicating a duty to defend.
Finally, American claims that even if negligence is presumed on the part of Park, negligent acts cannot constitute an “occurrence” under the policy. In support, American cites District of Kansas cases that have speculated that Kansas courts would not consider negligent behavior an “accident.” In
U.S. Fidelity & Guaranty Co. v. Dealers Leasing, Inc.,
This court believes that, if faced with the issue, the Kansas Supreme Court would conclude that such negligence and negligent misrepresentation does not constitute an “accident.” While negligence often leads to an accident, negligent behavior is not itself an “accident.” ... This interpretation is consistent with the generally accepted dеfinition of an “accident” set out by the Kansas Supreme Court. Negligent conduct itself is not an undesigned, sudden, or unexpected event of an afflictive or unfortunate character, but often the cause of such an event.
Similarly, in
Cincinnati Insurance Co. v. Professional Data Services, Inc.,
No. 01-2610-CM,
The cases cited by American are distinguishable. In each case, the court was facing issues of causation. Here, any negligent act (i.e., the transmittal of an unsolicited advertisement) is an accident in and of itself. Park’s аlleged negligence directly caused any damages sustained by the facsimile recipient(s). The court therefore need not follow the rationale in Dealers Leasing or Professional Data Services.
For the above-stated reasons, the court concludes that any damages sustained by JC Hauling may not have been the natural and probable consequence of Park’s actions. There is a possibility that American may ultimately be bound to indemnify Park under the property damage provisions of the policy, and thus American owes Park a duty to defend.
8. “Expected or Intended Injury”
American argues that even if the property damage provisions apply, coverage is precluded by an exclusion for “expected or intended injury.” The court disagrees, for essentially the same reasons stated above.
*1106
Exclusions must be strictly construed against the insurer.
Bugg,
k- Non-Fortuity
American next argues that as a matter of public policy, it should not be required to defend a case for damages that are non-fortuitous. American contends that this issue is one of first impression. However, the court concludes that this issue is yet another permutation of American’s underlying assumption that Park intended to send an unsolicited facsimile and cause JC Hauling’s damages.
See Atchison, Topeka & Santa Fe Ry. Co. v. Stonewall Ins. Co.,
The same analysis applied to the “occurrence” issue is relevant here. The court concludes that any damage incurred by JC Hauling may have been fortuitous. The court also rejects American’s non-fortuity argument with respect to advertising injury that is raised later in American’s briefs.
C. “Advertising Injury” Coverage
Park also contends that American has a duty to defend because the TCPA claim falls under the policy’s “advertising injury” coverage. The relevant terms provide for coverage of “[o]ral or written publication of material that violates a person’s right of privacy.” American maintains that there is no “publication,” “material,” “person,” or “right of privacy” involved.
Every court that has addressed the question of advertising injury has held that a TCPA claim falls under an insurance policy’s “advertising injury” coverage.
See TIG Ins. Co. v. Dallas Basketball, Ltd.,
1. Publication
First, for there to be “advertising injury” under the policy, there must be a “publication.” American argues that transmittal of unsolicited facsimile advertisements does not involve “publication” because “publication” requires sending information to a third party. The court disagrees.
American did not define “publication” in its policy. If American intended to limit the scope of “publication” to those materials sent to a third party, it should have so-stated in the policy.
The terms of today’s standard insurance policy are pre-determined by the insurance carrier itself and, long in advance of the individual insurance sale, those terms have been incorporated into the insurance package presented to the prospective buyеr. The free give-and-take of the open marketplace does not prevail in the insurance industry. The buyer’s freedom of choice in selecting a policy is severely limited: if he desires casualty insurance, he must normally accept the printed policy with the usual printed provisions — else he can leave it.
Under such circumstances, concerning which we are not inclined to be critical, the law, in its concern for even-handed *1107 fairness, has attempted to minimize the imbalance between insurer and insured, so far as it is possible, by means of a rule that in the event of ambiguity or conflict in the policy provisions, a policy of insurance is to be construed strictly against the insurer and in favor of the insured.
Gowing,
The court determines that the word “publication” is ambiguous. More than one possible meaning exists for the word. As American contends, it could mean the transmittal of material to a third party. Or, as Park suggests, it could simply mean the transmittal of material, even if not to a third person. When conflicting meanings are possible, the court must construe the policy against the insurer.
See id.
The appropriate inquiry is what a reasonable person in the position of the insured would understand the word to mean.
Id.
at 1076;
Casey v. Aetna Cas. & Sur. Co.,
Other courts hаve held that because an insurance company neglected to define “publication,” the word must be construed broadly, and would include transmitting a facsimile to a recipient.
See, e.g., Dallas Basketball,
American urges the court to follow the reasoning in
MGM, Inc. v. Liberty Mutual Insurance Co.
In
MGM,
the insured sought coverage and a defense from its insurance company in a wiretapping suit.
MGM is distinguishable. The case involved neither an advertisement nor advertising injury coverage. Significantly, MGM also did not involve a recipient of written material. MGM’a holding is not dispositive of the “publication” issue.
American points out in its reply brief that the TCPA does not mention “publication” — instead, the TCPA speaks in terms of “using any telephone facsimile machine, computer or other device to send an unsolicited fax advertisement to a telephone facsimile machine.” 47 U.S.C. § 227(b)(1)(C). Whether the TCPA mеntions the term “publication” is immaterial. Legislators should not be expected to mimic phrasing in insurance policies in order for insureds to receive coverage for unintentional statutory violations.
American also argues that applying Park’s definition of “publication” would re- *1108 suit in an illogical definition elsewhere in the policy. Again, if American feared an absurd result, it should have defined “publication” in the policy.
For all of the above-stated reasons, the court concludes that “publication” may be involved in the instant case.
2. Material
Second, an insured must publish “material” in order for the advertising injury coverage to apply. American argues that the TCPA’s prohibition of unsolicited facsimile advertisements does not involve “material” because the content of the facsimile is not regulated — the mere transmittal or arrival of an unsolicited facsimile completes the offense before the recipient even looks at the facsimile. American reasons that the TCPA does not prohibit certain content, or “material”; it simply prohibits unsolicited communication by facsimile.
Contrary to American’s assertion, the TCPA is concerned with content; in order to violate the Act, an unsolicited facsimile must have advertising content. See 47 U.S.C. § 227. The court concludes that such advertising content, as well as the paper containing it, may constitute “material.”
3. Person
Third, a “person’s” right of privacy must be involved to trigger advertising injury coverage. American alleges that because the facsimile was sent to the JC Hauling’s business offices, and since JC Hauling is the named plaintiff, a “person’s” right of privacy is not involved. The court disagrees.
The facsimile at issue was specifically sent to Ms. Patty Evansco, albeit at her place of work. Moreover, the facsimile was intended to be sent to an individual; “indeed, the advertisements would have been worthless if people did not receive them.”
Hooters of Augusta,
A Invasion of Privacy
Finally, the advertising injury provisions require that a “right of privacy” be violated. American makes two classes of arguments with respect to the right of privacy requirement: (1) Congress was not concerned with privacy rights when it enacted the provisions of the TCPA prohibiting unsolicited facsimile advertising; and (2) unsolicited facsimile advertising does not infringe on the recipient’s right of privacy. The court rejects both lines of argument.
a. Legislative History of the TCPA
American first argues that the TCPA limits commercial facsimile advertisements as a “nuisance,” not as an “invasion of privacy.” Because an invasion of privacy is not involved in a TCPA claim for unsolicited facsimiles, American argues, any such claim does not fall under the “advertising injury” provisions of the insurance policy. The court disagrees.
American postulates that the portion of the TCPA restricting the use of facsimile advertising focuses solely on two problems: (1) unfairly shifting the costs of advertisement from the advertiser to the recipient, and (2) occupying the recipient’s machine so it is unavailable for desired messages. According to American, the facsimile-advertising prohibitions of the TCPA constitute mere economic regulation, not creation of a new right of privacy. American contends that Park and other courts have relied indiscriminately on passages from the TCPA’s legislative history relating solely to protecting residential telephone subscribers from automated sales calls, *1109 and have failed to acknowledge that Congress only intended to facilitate interstate commerce by restricting the use of facsimile advertisements. See S.Rep. No. 102-178, at 1 (1991) (“The purposes of the bill are 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 (fax) maсhines and automatic dialers.”).
As noted above, other courts have held that the TCPA’s facsimile advertising limitations are related to invasion of privacy concerns.
Lou Fusz Auto. Network,
The other courts addressing this issue may or may not have generally read all of the TCPA legislative history together. But regardless of whether Congress specifically used the term “invasion of privacy” with respect to the advertising facsimile provisions, the underlying concerns prompting the legislation support a determination that Congress also sought to address the right for facsimile recipients to be left alone. Congress endeavored to curb the interruptions in one’s day due to unsolicited facsimiles and eliminate interference with the receipt of legitimate business facsimiles. Implicit in both of these concerns is recognition of the right to be left alone. Accordingly, the court concludes that the TCPA’s legislative history shows that Congress sought to protect privacy rights with the legislation.
b. Meaning of “Right of Privacy”
American next argues that a “right of privacy” is not involved in facsimile advertising cases because unsolicited facsimiles involve, at most, the tort of “intrusion on seclusion,” which is different than violation of the right of privacy. Park counters that “privacy is privacy,” and because transmitting an unwanted facsimile constitutes an intrusion on seclusion, it violates one’s right of privacy. The court accepts Park’s definition of privacy.
At the heart of this matter is an insurance contract. This case is about interpreting the terms of a contract, not drawing fine lines between different types of torts. Like “publication,” the term “right of privacy” is open to numerous interpretations. It may be defined by importing Illinois tort standards, as American suggests, or it may be defined in layman’s terms. If American thought Illinois tort standards should apply, it should have indicated аs much in the policy. Because American did not, the interpretation of a reasonable person in the position of the insured prevails.
The
Hooters of Augusta
court noted that, in layman’s terms, privacy is understood as the “freedom from unauthorized intrusion” or the “right to be left alone.”
The court agrees with the Hooters of Augusta and Lou Fusz Automotive Network courts. The plain and ordinary meaning of рrivacy includes the right to be left alone, unburdened by unsolicited facsimiles. For these reasons, the court concludes that American has a duty to defend under the advertising injury provisions of the policy.
E. Exclusions to Coverage
Finally, American argues that even if the advertising injury provisions apply, exclusions to coverage operate to justify denial of the duty to defend. The court disagrees.
1. “Criminal Act” Exclusion
The policy excludes coverage for advertising injury that “aris[es] out of a criminal act committed by or at the direction of any insured.” American argues that the alleged violations of the TCPA also violate 720 ILCS § 5/26-3, which makes criminal the knowing use of a facsimile machine to transmit unsolicited advertising. Specifically, the statute provides:
No person shall knowingly use a facsimile machine to send or cause to be sent to another person a facsimile of a document containing unsolicited advertising or fund-raising material, except to a person which the sender knows or under all of the circumstances reasonably believes has given the sender permission, either on a case by case or continuing basis, for the sending of such material.
720 ILCS § 5/26 — 3(b). Again, American faces the same problem as with all of its arguments assuming that Park intentionally targeted people who did not solicit its advertisements. 720 ILCS § 5/26-3(b) only prohibits knowingly using a facsimile machine to send unsolicited advertising. The complaint in the underlying state court action does not allege only that Park knew that the facsimile was unsolicited; the complaint also alleges that Park should have known that the facsimile was unsolicited. Moreover, the complaint does not allege a criminal act under 720 ILCS § 5/26-3. For these reasons, the court cannot conclude that there is no possibility of coverage under the policy. 1
2. Intentional Infliction of Advertising Injury Exclusion
The policy also excludes coverage for advertising injury that is “[c]aused by or at the direction of the insured with the knowledge that the act would violate the rights of another and would inflict ‘personal and advertising injury.’ ” American argues that this exclusion operates to preclude coverage under the policy. For the same reasons the court has rejected all of American’s arguments along this line, the court also rejects this argument.
*1111 IV. Conclusion
In sum, the court concludes that a potential of coverage exists under both the property damage and advertising injury provisions of the policy. American owes Park a duty to defend in the underlying state court action.
As a final note, the parties hаve filed exhaustive briefs, raising a host of issues and arguments. In the interest of judicial economy, the court may not have mentioned every argument or discussed it in detail. The parties should be assured, however, that the court has fully considered all of their positions.
IT IS, THEREFORE, BY THE COURT ORDERED that Park’s motion for partial judgment on the pleadings (Doc. 25) is granted and American’s motion for partial judgment on the pleadings (Doc. 30) is denied.
Copies or notice of this order shall be transmitted to counsel of record.
IT IS SO ORDERED.
Notes
. To the extent that a ruling on the relevance of Park’s denial of knowingly or intentionally sending an unsolicited facsimile is necessary to support the criminal act exclusion ruling, the court holds that American should have considered Park's pleadings in its coverage determination. Particularly with respect to whether the criminal act exclusion applies, Park’s denial may indeed be relevant to whether there is a potential of liability under the policy.