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Supreme Court Of Florida Held That Unsolicited “Blast-Faxing” Of Advertisements In Violation Of The Telephone Consumer Protection Act Is Covered Under A Commercial Liability Policy’s Advertising Injury Provision.

Penzer v. Transportation Ins. Co. (Supreme Court of Florida, January 28, 2010)

This matter involved a certified question of Florida law submitted by the United States Court Of Appeals for the Eleventh Circuit concerning whether under Florida law, the sending of an unsolicited advertisement by fax, in violation of the federal Telephone Consumer Protection Act (“TCPA”) 47 USCA §277 (2001) is covered by a particular insurance policy provision. Specifically, the certified question stated, “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.” 
 
Specifically, in June 2003, the appellant filed a class action suit in Florida state court against Nextel South Corporation alleging that Nextel sent him an unsolicited fax advertisement in violation of the TCPA. Nextel filed a third-party complaint against Sunbelt, a blast-fax advertiser, seeking indemnity and contribution for any liability Nextel may have as a result of the class action. The insurance policy at issue provided coverage for advertising injuries and defined “advertising injury” as an “injury arising out of … oral or written publication of material that violates a person’s right of privacy.” 
 
After conducting a strict contract interpretation de novo review of the policy language and key terms (including an evaluation of the doctrine of the last antecedent), the Supreme Court held that the subject policy provided coverage for sending unsolicited fax advertisements in violation of the act. Specifically, the court concluded that the doctrine of the last antecedent is not an absolute rule and can be overcome by other indicia of meaning. Moreover it cannot be applied in a way that ignores the plain meaning of the language. Thus, after a detailed examination of the policy language, the court rejected the insurer’s argument that the doctrine required a different interpretation. Rather, the court employed a “plain meaning analysis” which avoided the rules of construction that apply when there is an ambiguity. Based on their plain meaning analysis the court held 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 right of privacy necessarily includes coverage for blast-faxing in violation of the TCPA.
 
A copy of the decision can be found here
All content © 2022 Goldberg Segalla LLPNational Law Review, Volume , Number 49
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About this Author

Paul C. Steck  Lawyer Goldberg Segalla Law Firm

Paul C. Steck received his Bachelor of Arts degree, magna cum laude, in Geology from the State University of New York at Buffalo and then a Masters of Science, cum laude, in Geology from Ohio State University. He received his Juris Doctorate, cum laude, from the State University of New York at Buffalo. Prior to obtaining his law degree, Mr. Steck first worked as an environmental consultant for seven years and then as a regulatory specialist for a consumer products testing laboratory. In this capacity, he evaluated product designs and consulted on safety issues...

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