A Florida appellate court recently held that coverage for damages arising from pre-recorded telephone solicitations by the insured is not barred by the "expected or intended injury" exclusion where there is no intent to cause harm to the recipients of the solicitation. Old Dominion Ins. Co. v. Stellar Concepts & Design, Inc., 2016 WL 1445957 (Fla. 4th DCA Apr. 13, 2016).
After a judgment against an insured for damages from pre-recorded telephone solicitations, its insurer sought a declaratory judgment that it had no duty to indemnify or defend. The parties cross-moved for summary judgment. The trial court determined that coverage existed under the policy, and the insurer appealed.
On appeal, the insurer contended that the trial court erred in determining that the policy covered damages arising from automated solicitation calls placed by the insured because there was no “occurrence.” Alternatively, the insurer argued that the "expected or intended injury" exclusion applied because the calls were placed intentionally, not accidentally, and the insured knew the calls would necessarily result in loss of use of the phone lines. The appellate court agreed that the calls constituted an “occurrence” because the undisputed evidence showed that the insured lacked the specific intent to cause harm to a third party. The court also determined that the trial court correctly found that the "expected or intended injury" exclusion did not apply because, while the calls were intentionally placed, the damages were not intentionally caused. The appellate court affirmed the grant of summary judgment.