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Games belong to casinos not courts



April seems to be the month where creditors who played back to recover from an insurer rather than tortfeasor failed. Disputes are, and should always be, a place to settle disputes not a place to play in a court that detests an insurance broker.

G. M. Sign, Inc., as Credits and Holders of MFG.com v. Paul Fire & Marine Ins. Co., No. 17-14247, United States Appeal Court for the Eleventh Circuit (April 12, 2019) A dispute between an insurer and the insured's convictor and the proprietor of the insured's right to compensation under his insurance policy.

GM Sign, Inc. sued applicants for a declaratory judgment that St Paul Fire & Marine Insurance Company was obliged to replace its insured, MFG.com, for liability MFG incurred to fax ads to recipients whom it mistakenly believed to have agreed to. to the reception. The Court noted that St Paul had no obligation to replace MFG because, according to Georgia's law, no accident occurred when MFG sent the junk fax with the wrong belief that the recipients had agreed to receive them. The Court of First Instance therefore granted the judgment in St. Paul.

At the judgment, the court referred to our decision in M ​​ indis Metals, Inc. against Transportation Insurance Co ., 209 F.3d 1

296, 1297 (11th Cir. 2000), which claimed that under Georgia's law is Intentional behavior based on incorrect information is not an "accident" for general liability insurance purposes.

BACKGROUND

MFG launched a fax advertising program by purchasing lists of people whom MFG believed had agreed to receive marketing material via fax. MFG's belief that the recipients had agreed to receive the faxes turned out to be incorrect. Between September 18, 2005 and November 15, 2008, MFG sent about 494,212 fax ads to the people included in the purchased listings. At the time of sending the fax, MFG considered its advertising program to comply with all applicable laws.

MFG bought from St. Paul a series of general general liability policies ("Policy") that included "property damage" caused by "an event". The policy defined an "event" as "an accident, including continuous or repeated exposure to substantially the same general adverse conditions." The policy did not define the term "accident".

GM Teckken brought a putative classic action against MFG in the Illinois State Court, including violations of the Consumer Protection Act ("TCPA"), 47 U.S.C. § 227. MFG informed St Paul of the trial and demanded a defense and coverage, St Paul MFG announced that it denied MFG's claim.

MFG and G.M. The sign finally settled and approved that MFG was responsible for the class for a total of $ 22,536,500. As part of the settlement agreement, MFG agreed to pay $ 460,000 of this amount (approximately $ 1 per beneficiary) and determined that the remaining amount of MFG paid to the class could only be met by the policy. MFG awarded the class its claims against and entitlement to payment from St Paul under the policy seeking more than $ 22 million plus damages.

Finally, the court granted St Paul's summary judgment, denied G.M. The character's movement, and entered into judgment in St Paul's service. In particular, the District Court ruled that Mindis Metals "deliberate delivery of fax ads did not qualify as an" accident "under the law of Georgia, even though the sender mistakenly believed that it had consent to send the fax ads."

DISCUSSION [19659006] In this appeal, GM Sign argues that St Paul is obliged to replace MFG for his TCPA liability since the term "accident" under the law of Georgia includes damages resulting from negligence. According to G.M. Sign, MFG sent the fax negligently because it was never intended to send any faxes without the consent of the recipient. According to St Paul, MFG's incorrect conviction is that the recipients agreed to receive the faxes indispensable.

No accident occurred to send the fax MFG Engaged in Intentional Conduct, which was published on incorrect information.

According to Georgia's law, insurance is insured The policy is simply a contract whose provisions should be interpreted as any other type of contract. The policy does not provide a definition for the term "accident". When an insurance policy does not define a term or otherwise states that the term is used in an unusual sense, Georgia's courts belong to that term its common and common meaning. The common and common sense of "accident" according to the Supreme Court of Georgia is an unexpected event without intention or design.

In the Georgian law of Mindis Metals the 11th circle of intentional behavior based on erroneous data constituted an accident, and the conclusion is, according to Georgia's law, that such behavior was not an accident.

The application of the rule adopted in Mindis Metals to the facts in this case gives rise to the conclusion that Georgia law, no accident occurred when MFG sent faxes with the erroneous belief that the recipients had agreed to receive them. MFG intended to send the faxes and was thus intended to cause damage to the ground, the use of the fax machines and the depletion of the machine's ink and paper. The fact that MFG mistakenly believed the recipients had agreed to receive the faxes is insufficient during Mindis Metals to make the property damage an accident according to Georgia's law. Therefore, the policy of property damage policy did not provide coverage for the TCPA liability resulting from MFG's conduct.

According to Mindis Metals the state law principle, "accident" does not harm people or property when the damage is intentionally inflicted, even if the intentional behavior is caused by incorrect information. " Mindis Metals, 209 F.3d at 1300. [11659002] Since the Eleventh Circuit determined that the policy did not cover the property damage for which GM Sign is seeking coverage, there was no need to determine the applicability of any exclusions that may The policy provided MFG uncovered here because no accident occurred when MFG deliberately sent faxes with the erroneous belief that the recipients had agreed to receive them.

Another gambling fails. Continuous, contingent or unknown event Deliberate acts, since they cannot be rude, can never gain defense or compensation from a liability insurance, regardless of whether the word "accident" is analyzed to fit the party's clear intention to send the fax and thereby violates TCPA, the gamble of more than $ 22 million was lost and classmates recovered $ 1 d owning for each fax received less legal fees. Not even enough for a cup of coffee.


© 2019 – Barry Zalma

This article and all blog posts on this site, melt and summarize cases published by the courts of the various states and the United States. The court decisions have been modified from the actual language of the court decisions, condensed to facilitate reading and convey the author's views in each individual case.

Barry Zalma, Esq., CFE, now limits his practice to service as an insurance consultant specializing in insurance coverage, insurance management, bad faith assurance, and insurance fraud nearly equal for insurers and policyholders. He also serves as an arbitrator or mediator for insurance-related disputes. He practiced law in California for more than 44 years as an insurance cover and law firm and more than 50 years in the insurance industry. He is available at http://www.zalma.com and zalma@zalma.com.

Mr. Zalma is the first recipient of the first annual liability magazine / ACE Legend Award.

Over the past 51 years, Barry Zalma has put his life on insurance, insurance claims and the need to defeat insurance fraud. He has created the following library of books and other materials to enable insurers and their claims to become insurance managers.

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