MEMORANDUM OPINION AND ORDER
The Court has reviewed Plaintiff West-field Insurance Company’s Motion for Summary Judgment (Document 53), West-field Insurance Company’s Memorandum in Support of Motion for Summary Judgment (Document 54), Defendant Pinnacle Group’s Memorandum in Opposition to Westfield Insurance Company’s Motion for Summary Judgment (Document 58), and Westfield Insurance Company’s Reply to Pinnacle Group, LLC’s Memorandum in Opposition to Westfield’s Motion for Summary Judgment (Document 59). The Court has also reviewed Defendant Pinnacle Group LLC’s Motion for Partial Sum
For the reasons stated herein, the Court finds that Westfield’s motion must be GRANTED, and that Pinnacle’s motion must be DENIED.,
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Westfield Insurance Company initiated this action with a Complaint for Declaratory Relief (Document 1) filed on August 28, 2014. It named as Defendants Pinnacle Group, LLC, doing business as Aaron’s (hereinafter, Pinnacle) and James P. Burmer and Rennee L. Burmer (hereinafter, the Burmers). Pinnacle filed its Answer and Counterclaims (Document 11) on October 2,2014.
The Burmers were customers of Pinnacle. On July 25, 2013, they filed suit against Pinnacle in the Circuit Court of Raleigh County, West Virginia.
Pinnacle purchased a commercial general liability insurance policy from Westfield with coverage dates of March. 26, 2013 through March 26, 2014. (Policy, att’d as Def.’s Ex. A) (Document 55-1, at 2.) The policy provides coverage for “bodily inju, ry” and “property damage” caused by an “occurrence” that takes place in the “coverage territory.” , (Policy, Coverage A § 1(b)(1)) (Document 55-1, at 3.) “Bodily injury” is defined as “bodily injury, disability, sickness, or disease sustained by a person, including death resulting from any of these at any time. ‘Bodily injury
a. Physical injury to tangible property, including all resulting loss of use of that property. All such loss of use shall be deemed to occur at the time of the physical injury that caused it; or
b. Loss of use of tangible property that is not physically injured. All such loss of use shall be deemed to occur at the time of the ‘occurrence’ that caused it.
(Policy, § V.17) (Document 55-1, at 17.) An “occurrence” is “an accident, including continuous or repeated exposure to substantially the same general harmful conditions.” (Policy, § V.13) (Document 55-1, at i7.y-
The Policy also provides coverage for “personal and advertising' injury.” (Policy, Coverage B, § 1) (Document 55-1, at 8.)
Both types of coverage include an exclusion for “Distribution of Material in Violation of Statutes.” (Policy Endorsement, §§ A-B., modifying Coverage A, § 2(q), Coverage B, § 2(p)) (Document 55-1, at 23.) That exclusion provides that the insurance does not apply to injuries or damages:
arising directly or indirectly out of any action or omission that violates or is alleged to violate:
(1) The Telephone Consumer Protection Act (TCPA), including any amendment of or addition to such law;
(2) The CAN-SPAM' Act of 2003, including any amendment of or addition to such law;
(3) The Fair Credit Reporting Act (FCRA), and any amendment of or addition to such law, including the Fair and Accurate Credit Transaction Act (FACTA); or
(4) Any federal, state or local statute, ordinance or regulation, other than the TCPA, CAN-SPAM Act of 2003, or FCRA and their amendments and additions, that addresses, prohibits, or limits the printing, dissemination, disposal, collecting, recording, sending, transmitting, communicating or distribution of material or information.
(Id.) In addition, the Policy excludes bodily injury or propei’ty damage that was “expected or intended from the standpoint of the insured,” and personal and advertising injury “caused by or at the direction of the insured with the knowledge that the act wmjld violate the rights of another and would inflict ‘personal and advertising injury.’” (Policy Coverage A § 2(a); Policy Coverage B § -2(a)) (Document 55-1, at 4, 8.) ■
Pinnacle claims that it promptly notified its insurance agent of the Burners’ suit, with the understanding that a claim would be submitted when appropriate. (Jenkins Depo. at 32) (att’d to Defi’s Mot. as Ex. D) (Document 55-4.) Mr. Jenkins of Pinnacle testified that he was told by his insurance agent that the lawsuit would be covered if Pinnacle was a defendant, although offensive legal action would not be covered. (Id. at 34.) On June 12, 2014, Westfield sent Pinnacle’s counsel a letter denying coverage, finding that the coverage provisions were not applicable, exclusions were applicable',' and notice was untimely. (June 12 Letter, at' 20-21) (att’d as Defi’s Ex. I) (Document 55-9.) After Pinnacle contested the denial of coverage,' Westfield sent a second letter confirming its position that no coverage was available as to any of the claims presented. (Aug. 27 Letter) (att’d as Défi’s Ex. J) (Document 55-10.)
STANDARD OF REVIEW
The well-established standard in consideration of a motion for summary judgment' is that “[t]he court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a)-(c); see also Hunt v. Cromartie,
The moving party bears the burden of showing that there is no genuine issue of material fact, and that it is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a); Celotex Corp.,
In considering a motion for summary judgment, the court will not “weigh the evidence and determine the truth of the matter,” Anderson,
When presented with motions for summary judgment from both parties, courts apply the same standard of review. Tastee Treats, Inc. v. U.S. Fid. & Guar. Co.,
DISCUSSION
Westfield asserts that it is entitled to summary judgment on its declaratory judgment claims based on the language of the Policy. It argues that the Burners’ complaint does not allege bodily injury, property damage, or an occurrence, as those terms are defined in the Policy. It cites West Virginia case law for the proposition that an accident (as the Policy defines an “occurrence”) must arise from an unknown or unexpected cause, while the Burners’ allegations involve intentional acts. Westfield further contends that no
Pinnacle seeks summary judgment with respect to coverage, and argues that its claim for damages and allegations of bad faith should proceed to trial. It contends that the Burmers’ claims are covered by the Policy,
Both parties’ responses primarily reiterate the arguments 'made in their initial motions. Pinnacle argues that genuine issues of material fact exist with respect to its common law and bad faith claims, asserting that “an insurer may be liable for violations of the [Unfair Trade Practices Act] even if a denial of coverage was proper.” (Defi’s Resp, at 15.) Westfield’s response is largely devoted to countering Pinnacle’s arguments regarding the invasion of privacy claim. It asserts that the language in the Policy is distinguishable from the language found in the cases cited by Pinnacle, such that no ambiguity'exists. Westfield further responds that the doctrine of reasonable expectations is not applicable under the facts of this case.
In West Virginia, courts “accord the language of an insurance policy its common and customary meaning.” Boggs v. Camden-Clark Mem’l Hosp. Corp.,
Regardless of whether the language is ambiguous or,unambiguous, “[a]n insurance company seeking to avoid liability- through the operation of an exclusion has the burden of proving the facts necessary to the operation of that exclusion.” Syl. pt.. 3, Fanners & Mechanics Mut. Ins. Co. of W. Virginia v. Cook,
The West Virginia Supreme Court described the standard for determining whether an insurance company has a’duty to defend an insured as follows:
An insurance company’s duty to defend an insured is broader than the duty to indemnify under a liability insurance policy. An insurance company has a duty to defend' ah action against its insured if the claim stated in the underlying complaint could, without amendment, impose liability for risks the policy covers. If, however, the causes of action alleged in the plaintiffs complaint are entirely foreign to the risks covered by the insurance policy, then the insurance company is relieved of its duties under the policy,
Bowyer v. Hi-Lad, Inc.,
The Court finds that Coverage A, for bodily injury and property damages, is not applicable to the Burners’ claims because there was no “occurrence” under the terms of the Policy. An ‘occurrence’ is defined by the policy- as an accident. Accident, in turn, has been defined under West Virginia law as “a chance event or event arising from unknown causes.” West Virginia Fire & Cas. Co. v. Stanley,
The Burners’ claims involve intentional conduct on the part of Pinnacle and its agents and employees. Because both the means and the result must be unforeseen for the event to be considered an accident, Pinnacle’s argument that any legal violation resulting from the intentional debt-collection activities would have been unintended is unavailing. The debt-collection activities are .the alleged means of the Burners’ distress and legal claims, and those activities were intended. Thus, no coverage is available under Coverage A for bodily injury or property damage.
The Policy also provides coverage for personal and advertising injury. The parties focused primarily on Section V.14(c), which states that personal and advertising injury includes “[t]the wrongful eviction from, wrongful entry into, or invasion of the right of private occupancy of a room, dwelling, or premises that a person occupies, committed by or on behalf of its owner, landlord or less.” (Policy, § V.14(c)) (Document 55-1, at 17.) The facts of this case do not support application of that section. The Burners do not allege that the invasion of their privacy was “committed by” the owner, landlord, or lessor of the premises.
Pinnacle briefly asserts that the provision providing coverage for “oral or written publication of material that violates a person’s right of privacy” applies to the Burners’ claim- for invasion' of privacy. (Def.’s Resp. at 12.) The Court finds otherwise, A natural reading of the provision demonstrates that it refers to publication of private material, implicating a privacy interest in secrecy, rather than the use of telephone calls to intrude upon a person’s seclusion.
Interpreting a similar provision and applying Virginia law, the Fourth Circuit Court of Appeals found that unsolicited faxes did not trigger coverage because the privacy interest potentially invaded by “[m]aking known to any person or organization written or spoken material that violates . a person’s right to privacy’ is an interest in secrecy, while the faxes potentially invaded an interest in seclusion. Res. Bankshares Corp. v. St., Paul Mercury Ins. Co.,
Still, Pinnacle argues that it had a reasonable expectation of coverage, even if the policy terms do not provide for
The Court concludes that the Policy does not provide coverage for the claims asserted by' the Burners. Having found that the Burners’ claims are not covered by either the unambiguous language of the Policy or any reasonable expectation fostered by Westfield, the Court finds that the common law and bad faith claims cannot be supported. Accordingly, Westfield’s motion for summary judgment must be GRANTED, and Pinnacle’s motion for partial summary judgment must be DENIED.
CONCLUSION
WHEREFORE, after careful consideration, based on the findings herein, the Court ORDERS that Plaintiff Westfield Insurance Company’s Motion for Summary Judgment (Document 53) be GRANTED, and that Defendant Pinnacle Group LLC’s Motion for Partial Summary Judgment (Document 55) be DENIED.
The Court further ORDERS that any pending motions be TERMINATED AS MOOT and that this matter be REMOVED from, the Court’s docket. The Court DIRECTS the Clerk to send a copy of this Order to counsel of record and to any unrepresented party.
Notes
. The Burmers' suit has since been transferred to the Circuit Court of Mercer County, West Virginia.
. Pinnacle notes that "Westfield defended and indemnified another West Virginia Aaron’s against similar claims,” citing Willis v. Aarons, Inc., Raleigh County Civ. Action No. 12-C-66. (Def.’s Mem. at 4, note 2.)
. Both parties also filed replies to the respective motions for summary judgment, in which they reiterate and expand upon their prior arguments: ■
. The Court finds that the inclusion of the phrase ‘committed by' eliminates the ambiguity present in the cases cited by Pinnacle, in which courts found similar provisions to be subject to multiple interpretations.
. Courts often divide privacy rights, into two subsets: secrecy, as for concealing information, and seclusion, as in avoiding unwánted intrusions into one’s home. See Res. Bankshares Corp. v. St. Paul Mercury Ins. Co.,