If an insurance policy has explicit exclusion for TCPA claims (TCPA), it is quite clear that the coverage will not be available. But where the insurance policy does not have an explicit TCPA exclusion, does an invasion of integrity cover exclusion coverage for alleged TCPA violations? A federal court in Florida recently found that there is no coverage for a TCPA application where the policy has an invasion of privacy. Horn v. Liberty Insurance Underwriters, Inc. No. 9:18 -CV-80762 (SD Fla. May 30, 2019), the complainant owners were assigned TCPA defendants' rights and interest in an insurance after that that a ruling and consent was sent into the underlying TCPA class. The TCPA defendant's holder brought a declaratory judgment and infringement of contract measures to recover the consent of the insurance policy judgment.
The insurance policy had an exclusion "based on, arising out of or attributable to possible or alleged… Privacy infringement…" The question before the court was whether a TCPA violation arose or is considered a violation of integrity to analyze insurance cover and, if so, whether the exclusion closes the whole measure. The court found that a violation of TCPA in some cases can be considered an invasion of privacy. The Court analyzed the Florida Supreme Court decision in Penzer v. Transport Insurance Co. 20 Sun. 3d 1000 (2010) and found that it supported a reading that invasion of privacy protection excludes TCPA violations, as a form of invasion of privacy, from coverage. The court also looked at other decisions and stated that the policy in this case excludes claims arising from an invasion of privacy. The court found a link between the action of the underlying TCPA class and its causes of action and an actual or alleged invasion of privacy. Thus, when the Court read the case-law cited and considered the scope of the phrase "arising", the Court found that the disputed TCPA infringements in this case arose from an infringement of integrity and were therefore excluded from coverage during the invasion of exclusion of confidentiality in the policy.
The Court continued to exclude the entire underlying TCPA class from coverage as all claims were based on TCPA infringements that invaded the complainant's integrity. The Court concluded that the policy's broad exclusive blocking coverage for claims arising from an actual or alleged invasion of privacy excludes coverage in this case altogether. Consequently, the assignment to the TCPA group's shareholders of TCPA defendant rights under its insurance policy did not benefit since the policy did not provide coverage for the underlying TCPA class settlement agreement agreement.