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Coverage for Unsolicited Faxes
Two recent decisions ' one by an Illinois state court and the other by the Fourth Circuit Court of Appeals ' reveal that courts remain divided as to whether general liability policies provide coverage for fax-advertising claims under the Telephone Consumer Protection Act (“TCPA”). Generally, the TCPA prohibits, among other things, the use of fax machines or other devices to send “an unsolicited advertisement to a telephone facsimile machine.” 47 U.S.C. '227(b)(3). The TCPA provides a private right of action by the recipients of such faxes to sue the senders. Id. Notably, under the TCPA, the recipient does not have to demonstrate any injury to prevail on its claim; the receipt of an unsolicited fax is sufficient to trigger liability under the statute.
In Resource Bankshares Corp. v. St. Paul Mercury Ins. Co., 407 F.3d 631 (4th Cir. 2005) (Va. law), the Fourth Circuit held that an insurer did not have a duty to defend or indemnify an insured against alleged violations of the TCPA. In contrast, in Valley Forge Ins. Co. v. Swiderski Electronics, Inc., 834 N.E. 2d 562 (Ill. App. 2005), an appellate court in Illinois rejected the Resource Bankshares analysis and held that the insurer was obligated to provide a defense. The contrasting results in these two cases ' as well as in other cases ' stem solely from differing interpretations of the scope of the “personal and advertising injury” and “property damage” coverages under a general liability policy.
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