Michael PENZER, etc., Appellant,
v.
TRANSPORTATION INSURANCE COMPANY, Appellee.
Supreme Court of Florida.
*1002 Marc A. Wites of Wites and Kapetan, P.A., Lighthouse Point, FL, Douglas S. Wilens and Stuart A. Davidson of Coughlin, Stoia, Geller, Rudman, and Robbins, LLP, Boca Raton, FL, for Appellants.
Raoul G. Cantero, III of White and Case, LLP, Miami, FL, Laura Besvinick and Parker D. Thomson of Hogan and Hartson, LLP, Miami, FL, and Arthur J. McColgan, II of Walker Wilcox Mastousek, LLP, Chicago, IL, for Appellee.
R. Hugh Lumpkin and Michael F. Huber of Ver, Ploeg, and Lumpkin, P.A., Miami, FL, Eugene R. Anderson, William G. Passannante, and Jane A. Horne of Anderson, Kill, and Olick, P.C., New York, NY, on behalf of United Policyholders; and Ronald L. Kammer and Maureen G. Pearcy of Hinshaw and Culbertson, LLP, Miami, FL, Laura A. Foggan and Parker Lavin of Wiley Rein, LLP, Washington, D.C., on behalf of Complex Insurance Claims Litigation Association, as Amicus Curiae.
POLSTON, J.
This case is before the Court for review of a question of Florida law certified by the United States Court of Appeals for the Eleventh Circuit that is determinative of a cause pending in that court and for which there appears to be no controlling precedent.[1]
The coverage issue in this insurance dispute concerns whether, under Florida law, the sending of an unsolicited advertisement by fax, in violation of the federal Telephone Consumer Protection Act ("TCPA"), 47 U.S.C.A. § 227 (2001), is covered by a particular insurance policy provision. The Eleventh Circuit certified the following question:
Does a commercial Liability Policy Which Provides Coverage for "Advertising Injury," Defined as "Injury Arising out of ... Oral or Written Publication of Material That Violates a Person's Right of Privacy," Such as the Policy Described Here, Provide Coverage for Damages for Violation of a Law Prohibiting Using Any Telephone Facsimile Machine to Send Unsolicited Advertisement to a Telephone Facsimile Machine When No Private Information is Revealed in the Facsimile?
Penzer v. Transp. Ins. Co.,
For the reasons that follow, we hold that, under Florida law, the language of this insurance provision provides coverage for infringements of the TCPA. Accordingly, we answer the certified question in the affirmative.
*1003 I. BACKGROUND
In June 2003, Michael Penzer filed a class action suit in a Florida state court against Nextel South Corporation alleging that Nextel or one of its agents sent him an unsolicited facsimile advertisement in violation of the TCPA.[2]Penzer v. Transp. Ins. Co.,
Thereafter, in April 2004, Penzer entered into a settlement agreement with Southeast Wireless in which Penzer agreed to release Southeast Wireless from any liability, and Southeast Wireless consented to a judgment and assigned its right to seek insurance coverage from Transportation to Penzer. Id. The state court approved the settlement and certified a settlement class. Id. Penzer then pursued a declaratory judgment action against Transportation in the United States District Court for the Southern District of Florida, wherein Transportation defended that, based upon the language of the policy, Transportation had no obligation to defend or indemnify Southeast Wireless. Id.
The insurance policy at issue here provides coverage for advertising injuries. The policy defines "advertising injury" as an "injury arising out of one or more of the following offenses:"
a. Oral or written publication of material that slanders or libels a person or organization or disparages a person's or organization's goods, products or services;
b. Oral or written publication of material that violates a person's right of privacy;
c. Misappropriation of advertising ideas or style of doing business; or
d. Infringement of copyright, title or slogan.
Id.
Transportation argued:
[T]he phrase "oral or written publication of material that violates a person's right of privacy," read as a whole and in context, provides coverage only for injuries to privacy rights caused by the content of the material. Second, Florida law interpreting the phrase "publication ... in violation of an individual's right of privacy" makes clear that coverage exists only when private matters about one person are communicated to another person. Although Southeast's conduct in having the commercial advertisements sent by facsimile may have violated the TCPA, there is no coverage under the *1004 policy because there were no content-based privacy violations.
Id. at 1283.
The Southern District agreed with Transportation. Specifically, it found that Transportation did "not have a duty to indemnify the plaintiffs for Southeast's violations of the TCPA." Id. at 1288.[3] It ruled that the policy language was not ambiguous and that "advertising injury coverage under this provision exists only when the content of the material published violates a person's right to privacy." Id. at 1286. The Southern District declined to adopt the reasoning of the Eleventh Circuit in Hooters of Augusta, Inc. v. American Global Insurance Co.,
Penzer appealed the Southern District's decision to the Eleventh Circuit, which concluded that "[n]either the policy exclusions nor Florida public policy lead to denial of coverage."[4]Penzer,
II. ANALYSIS
This case presents a question of insurance policy interpretation, which is a question of law, subject to de novo review. See Auto-Owners Ins. Co. v. Pozzi Window Co.,
In interpreting insurance contracts, this Court follows the generally accepted rules of construction, meaning that "[i]nsurance contracts are construed according to their plain meaning, with any ambiguities construed against the insurer and in favor of coverage." U.S. Fire Ins. Co. v. J.S.U.B., Inc.,
Here, the policy language at issue is, "oral or written publication of material that violates a person's right of privacy." Three terms"publication," "material," and "right of privacy"are particularly relevant, and none are defined by the policy. Consequently, the first step towards discerning the plain meaning of the phrase is to "consult references [that are] commonly relied upon to supply the accepted meaning of [the] words." Garcia,
The first term, "publication" is defined as "communication (as of news or information) to the public: public announcement" or as "the act or process of issuing copies *1006 (as a book, photograph, or musical score) for general distribution to the public." Webster's Third New International Dictionary 1836 (1981). The definition also refers the reader to the definition of "publish." Id. To publish is "to place before the public (as through a mass medium): DISSEMINATE." Id. at 1837. Here, sending 24,000 unsolicited blast-facsimile advertisements to Mr. Penzer and others is included in the broad definition of "publication" because it constitutes a communication of information disseminated to the public and it is "the act or process of issuing copies ... for general distribution to the public."
"Material" has several definitions, two of which are "of, relating to, or consisting of matter," and "something (as data, observations, perceptions, ideas) that may through intellectual operation be synthesized or further elaborated or otherwise reworked into a more finished form or a new form or that may serve as the basis for arriving at fresh interpretations or judgments or conclusions." Id. at 1392. In this case, the faxed paper containing the unwanted advertisement meets the definition of "material" since a faxed advertisement "consist[s] of matter," and "something that may ... be synthesized or further elaborated or ... may serve as the basis for arriving at fresh interpretations or judgments or conclusions."
A "right" is "something to which one has a just claim" or "something that justly accrues or falls to one: something that one may properly claim: one's due." Id. at 1955. This plain meaning of "right" invokes the legal authority one must possess in order to assert a proper claim.
Because the policy provides coverage for a violation of a "right of privacy," which can only arise from the law, it is not necessary to separately discern the plain meaning of "privacy." If "privacy" was not preceded by "right of" then the dictionary definition of "privacy" would be relevant under a plain meaning analysis. Stated another way, the plain meaning of "right of privacy" is the legal claim one may make for privacy, which is to be gleaned from federal or Florida law, rather than defined by a dictionary. In this case, the source of the right of privacy is the TCPA, which provides the privacy right to seclusion. See Valley Forge,
As stated previously, the policy provision provides coverage for a written publication of material that violates a person's *1007 right of privacy. The facts of the instant case demonstrate that there was a written dissemination of 24,000 facsimiles that violated the TCPA. Comparing the policy's language to [the facts of this case]: there was a written publication [dissemination] of material [of 24,000 facsimiles] that violated a person's right of privacy [that violated the TCPA]. Therefore, applying our plain meaning analysis, we hold that Transportation's insurance policy provides coverage for sending unsolicited fax advertisements in violation of the TCPA.
Transportation argues that the doctrine of the last antecedent, a grammar-based canon of statutory construction, should apply. According to the doctrine of the last antecedent,
"relative and qualifying words, phrases and clauses are to be applied to the words or phrase immediately preceding, and are not to be construed as extending to, or including, others more remote." City of St. Petersburg v. Nasworthy,751 So.2d 772 , 774 (Fla. 1st DCA 2000). The last antecedent is the "last word, phrase, or clause that can be made an antecedent without impairing the meaning of the sentence." 2A Norman J. Singer & J.D. Shambie Singer, Statutes and Statutory Construction § 47.33 (7th ed.2007).
Kasischke v. State,
First, the doctrine of the last antecedent is not an absolute rule. See United States v. Hayes, ___ U.S. ___, ___,
Furthermore, even if the phrase "that violates a person's right of privacy" only modifies the term "material," it does not follow that only the secrecy right to privacy is implicated because "material" could also invade one's seclusion. See Motorists Mut. Ins. Co. v. Dandy-Jim, Inc.,
III. CONCLUSION
Based upon our plain meaning analysis, we hold that an advertising injury provision in a commercial liability policy that provides coverage for an "oral or written publication of material that violates a person's right of privacy" provides coverage for blast-faxing in violation of the TCPA. We therefore answer the certified question in the affirmative.
It is so ordered.
QUINCE, C.J., and LEWIS, LABARGA, and PERRY, JJ., concur.
PARIENTE, J., concurs in result only with an opinion, in which CANADY, J., concurs.
CANADY, J., concurs in result only with an opinion.
PARIENTE, J., concurring in result only.
Regardless of whether the insurance policy is read as clearly providing coverage as the majority concludes or whether the policy is ambiguous as Justice Canady concludes, the answer to the certified question is in the affirmative. The reason for that alternative answer based on an ambiguity in the policy language is that this Court construes ambiguous provisions in favor of the insured. Rather than deciding this case on the "plain language" as the majority does, I would acknowledge the existence of two reasonable interpretations but then, in accordance with the rules of construction for insurance policies, apply the interpretation in favor of coverage.
As stated by Justice Canady in his separate opinion in this case, this Court follows the rule that "[a]mbiguous coverage provisions are construed strictly against the insurer that drafted the policy and liberally in favor of the insured." Fayad v. Clarendon Nat'l Ins. Co.,
The reasoning for this long-established principle is that the insurer, as drafter of the policy language, has an obligation to make the scope of its coverage and any limitations from coverage clear and unambiguous in the actual language of the policy. As we recently stated in United States Fire Insurance Co. v. J.S.U.B., Inc.,
The insurer in this case has contended that the wording of the policy provides coverage for situations where the content *1009 of the material-and not the act of sending itviolates a person's right of privacy. While that is one reasonable interpretation of the policy, it is not the only reasonable interpretation. I agree with the rationale of the Supreme Judicial Court of Massachusetts in interpreting New Jersey law on the same policy provisions defining advertising injury:
Although we are aware that "[a]n insurance policy is not ambiguous merely because two conflicting interpretations of it are suggested by the litigants," in evaluating the ambiguity of the phrase, we cannot ignore the body of national case law addressing the same or similar policy language and falling on both sides of this interpretive ledger. It is fair to say that even the most sophisticated and informed insurance consumer would be confused as to the boundaries of advertising injury coverage in light of the deep difference of opinion symbolized in these cases.
Terra Nova Ins. Co. v. Fray-Witzer,
The bottom line is that if the insurer, as the drafter of the language, intended to limit coverage to material whose content violated the right of privacy, then it could have easily done so by simply adding a phrase as follows: Oral or written publication of material, the content of which violates the right of privacy. Transportation Insurance Company did not do so and thus left the policy open to a reasonable interpretation in favor of coverage. See Terra Nova,
For all of these reasons, I agree with the majority's conclusion that insurance coverage should be extended and agree with answering the certified question in the affirmative.
CANADY, J., concurs.
CANADY, J., concurring in result only.
Although I agree that the certified question should be answered in the affirmative, I do not concur in the majority's conclusion that the policy provisions at issue are unambiguous. Instead, I conclude that the resolution of the question presented by this case is dictated by the rule that "[a]mbiguous coverage provisions are construed strictly against the insurer that drafted the policy and liberally in favor of the insured." Fayad v. Clarendon Nat'l Ins. Co.,
The clause at issue provides coverage for advertising injuries arising from "[o]ral or written publication of material that violates a person's right of privacy." An ordinary reader of this clause would reasonably be in doubt concerning whether the violations covered by the clause must be based on the informational content of the material that is published or may be based on the physical intrusion of the material.
The existence of two different senses in which the noun "material" is commonly used contributes to the ambiguity. One sense of "material" denotes a physical object: "[t]he matter of which a thing is or may be made." 1 Shorter Oxford English Dictionary 1723 (6th ed.). This sense of the term has nothing to do with informational content. Another sense of "material" *1010 is used to identify "[i]nformation, evidence, ideas, etc., for use in writing a book or script, drawing a conclusion, etc." Id. at 1724. This sense of the term has everything to do with informational content.
The ambiguity is compounded by the existence of two senses in which the noun "publication" is commonly used. "[P]ublication" may denote "[t]he action of making something generally known"a definition which points to informational content. 2 Shorter Oxford English Dictionary 2395 (6th ed.). The term also may denote "[t]he process of producing and issuing ... printed or reproduced matter"a definition which focuses on the physical object disseminated. Id.
When reference is made to a "written publication of material that violates a person's right of privacy," an ordinary reader will notunless sufficient contextual clues are presentunderstand with certainty whether the reference is to a violation caused by the intrusion of the writing as a physical object, by the informational content of the writing, or by either. The relevant context here does not provide an ordinary reader with a sufficient basis for rejecting the reasonable possibility that "written publication of material" denotes the physical object received when a fax transmission is disseminated and that the policy therefore covers privacy violations based on the intrusion of such a physical object. Neither does the context provide adequate grounds for rejecting as unreasonable a reading which limits the meaning of "written publication of material" to information or ideasthat is, to the informational content that is published and causes a privacy violation.
Given the different relevant senses in which "material" and "publication" are commonly used and the lack of a sufficient contextual basis to guide the ordinary reader to an unequivocal meaning of the policy provision, the plain meaning rule does not provide a persuasive basis for deciding the question presented here. Since the reading of the policy advocated by Penzer, the insured, is not a reading that an ordinary reader would reject as unreasonable, Penzer's reading must prevail.
NOTES
Notes
[1] We have jurisdiction. See art. V, § 3(b)(6), Fla. Const.
[2] The TCPA is a federal statute that provides, in relevant part, that it is "unlawful for any person ... 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)(1)(C) (2001). Each violation of the TCPA is subject to a private right of action by the recipient who may recover his actual monetary losses or $500.00 in damages, whichever is greater. Id. § 227(b)(3).
[3] Although Transportation initially claimed that it had no duty to defend or indemnify Southeast Wireless, the duty to defend is not at issue because Southeast Wireless entered into a settlement agreement with the class and the class released Southeast Wireless from all liability. Id. at 1281.
[4] Certain exclusions are also detailed in the liability policy, namely:
"Advertising Injury" arising out of:
(1) Breach of contract, other than misappropriation of advertising ideas under an implied contract;
(2) The failure of goods, products and services to conform with the advertised quality or performance;
(3) The wrong description of the price of goods, products or services; or
(4) An offense committed by an insured whose business is advertising, broadcasting, publishing or telecasting.
The Eleventh Circuit stated that none of the policy exclusions prevent coverage, concluding that Transportation "has not met its burden to prove that coverage is inapplicable under any of the policy exclusions or other defenses." Penzer,
[5] This and similar language has been widely litigated, and courts applying diverse reasoning have come down on both sides of the ledger. For example, cases holding that similar policy provisions provide coverage for TCPA violations include: Park Univ. Enters., Inc. v. Am. Cas. Co. of Reading, Pa.,
Examples of cases holding that similar policy provisions do not provide coverage include: Am. States Ins. Co. v. Capital Assocs. of Jackson County, Inc.,
As explained more fully in our opinion, we are more persuaded by the reasoning in those cases that found coverage by applying a plain meaning analysis.
[6] Because we apply a plain meaning analysis, we need not consult the rules of construction that apply when there is an ambiguity. Therefore, we reject Transportation's rule of construction arguments, including the doctrine of noscitur a sociis.