[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
MAY 11, 2010
JOHN LEY
CLERK
No. 07-13827
D. C. Docket No. 04-61243-CV-AJ
MICHAEL PENZER,
as assignee of Southeast Wireless, Inc.,
Plaintiff-Counter-Defendant-Appellant,
versus
TRANSPORTATION INSURANCE COMPANY,
a wholly owned subsidiary of CNA, a foreign corporation,
Defendant-Counter-Claimant-Third-Party-Plaintiff-Appellee,
versus
SOUTHEAST WIRELESS, INC.,
NEXTEL SOUTH CORP.,
Third-Party-Defendants.
Appeal from the United States District Court
for the Southern District of Florida
(May 11, 2010)
Before TJOFLAT and BLACK, Circuit Judges, and RESTANI,* Judge.
PER CURIAM:
Appellee Transportation Insurance Company (“Transportation”) issued to
Southeast Wireless, Inc. (“Southeast”) a commercial liability insurance policy that
included coverage for “advertising injury.” The provision covered “injury arising
out of . . . [o]ral or written publication of material that violates a person’s right of
privacy.” (R.E. 62.) Penzer and Southeast entered into a class action settlement of
claims that Southeast violated the Telephone Consumer Protection Act (“TCPA”),
47 U.S.C. § 227, based on unsolicited facsimile transmissions it sent to Penzer and
others.1 Southeast assigned Penzer its right to recover from Transportation under
the insurance policy. Penzer subsequently filed a complaint against
Transportation, seeking a declaratory judgment as to Transportation’s duty to
defend and indemnify Southeast under the policy. Penzer alleged that the claims
against Southeast were covered by the policy because the transmission of an
unsolicited facsimile advertisement constituted the publication of written material.
*
Honorable Jane A. Restani, Chief Judge, United States Court of International Trade,
sitting by designation.
1
The TCPA makes it “unlawful for any person . . . to use any telephone facsimile
machine . . . to send, to a telephone facsimile machine, an unsolicited advertisement.” 47 U.S.C.
§ 227(b)(1)(C).
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Transportation argued that Southeast was not covered under the provision, or in
the alternative, that coverage was not required due to several policy exclusions.
Penzer and Transportation filed cross-motions for partial summary judgment on
the coverage issue.
The district court granted summary judgment in favor of Transportation.
Penzer v. Transp. Ins. Co., 509 F. Supp. 2d 1278 (S.D. Fla. 2007). The district
court found that “advertising injury” coverage as defined in the policy “exists only
when the content of the material published violates a person’s right to privacy.”
Id. at 1286. Thus, it held unwanted intrusions, such as violations of the TCPA, are
not covered advertising injuries. Id. at 1288.
On appeal, this Court held “[n]either the policy exclusions nor Florida
public policy lead to denial of coverage” and that “an unsettled issue of Florida
law as to insurance policy coverage controls the disposition of this case.” Penzer
v. Transp. Ins. Co., 545 F.3d 1303, 1311 (11th Cir. 2008). Accordingly, this Court
certified the following question to the Supreme Court of Florida for determination
under Florida law:
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
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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?
Id. at 1312. The Florida Supreme Court answered the certified question in the
affirmative and held that “under Florida law, the language of this insurance
provision provides coverage for infringements of the TCPA.” Penzer v. Transp.
Ins. Co., Fla. 2010, __ So. 3d __ (No. SC08–2068, Jan. 28, 2010).
Because the Florida Supreme Court has now answered the certified question
in the affirmative, we REVERSE the district court’s summary judgment for
Transportation. Accordingly, we REMAND for the district court to grant partial
summary judgment for Penzer regarding the coverage issue and to consider the
following motions it denied as moot: (1) cross-motions for summary judgment as
to the issue of damages; (2) Transportation’s motion to strike the declaration of
Alan Burger from Penzel’s motion for partial summary judgment as to the issue of
damages; and (3) Southeast’s motion for summary judgment on Transportation’s
third party complaint.
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