The United States Circuit Court of Appeals for the Eleventh Circuit has asked the Florida Supreme Court to decide if liability insurance policies cover damages for violations of a federal law prohibiting the transmission of unsolicited advertisements by facsimile. In Penzer v. Transportation Insurance Co., 2008 WL 4662164 (11th Cir. Oct. 23, 2008), Michael Penzer alleged that Southeast Wireless Inc. had violated the Telephone Consumer Protection Act, 47 U.S.C. § 227 (2000), by sending unsolicited advertisements to his facsimile machine; he sought damages on behalf of the class of people who received such faxes. After consenting to the entry of a $12 million judgment by a federal trial court in Florida, Southeast Wireless assigned its claims against its insurer, Transportation Insurance Co., to Penzer.
Southeast Wireless’s commercial general liability (CGL) policy included coverage for “advertising injury,” i.e., the “oral or written publication of material that violates a person’s right of privacy.” Penzer sought a declaratory judgment that coverage existed, arguing that the right to privacy includes the right to be left alone and that the faxes intruded on that right. Transportation Insurance countered that a covered “advertising injury” would occur only if the content of the unsolicited advertisements violated the recipient’s privacy and that Penzer had not alleged that Southeast Wireless had committed a content-based privacy violation.
The District Court ruled in favor of Transportation, and Penzer appealed. The 11th Circuit noted that CGL policies commonly contain the same definition of advertising injury as Southeast Wireless’s policy and that courts throughout the nation have not agreed on whether these policies cover violations of the Telephone Consumer Protection Act. Because neither the Supreme Court nor an appellate court in Florida had decided the issue, the 11th Circuit certified to the Florida Supreme Court the question:
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 TO PRIVACY,” . . . PROVIDE COVERAGE FOR DAMAGES FOR VIOLATION OF A LAW PROHIBITING USING ANY TELEPHONE FACSIMILE MACHINE TO SEND UNSOLICITED ADVERTISEMENT . . . WHEN NO PRIVATE INFORMATION IS REVEALED IN THE FACSIMILE?