personal and advertising injury | The Coverage Inkwell

We have all heard the question “if a tree falls in the forest…,” a philosophical experiment that raises questions of observation, knowledge, and reality. Whether or not the philosopher George Berkeley deserves credit for first raising the question, if still alive, he may have been disappointed in yesterday’s decision, Travelers Indem. Co. of Am. v. Portal Healthcare Solutions, LLC, No. 14-1944 (4^th Cir. Apr. 11, 2016). In that case, the trial court had addressed the legal question of “whether materials are published if they are posted on the Internet, but no one reads them?” As discussed by The Coverage Inkwell in August 2014, the trial court answered the question in the affirmative. Yesterday, the Fourth Circuit affirmed the decision, but never really weighed in on the question. That’s too bad.

The facts of the case are straightforward. The insured Portal Healthcare Solution (“Portal”) specialized in the electronic safekeeping of medical records for hospitals, clinics, and other medical providers. Travelers Indem. Co. of Am. v. Portal Healthcare Solutions, LLC, 35 F. Supp. 3d 765, 767-78 (E.D. Va. 2014). A New York putative class action was filed against it, alleging that Portal had failed to safeguard the confidentiality of the medical records of patients at Glen Falls Hospital (“Glen Falls”) by posting them on the Internet and making them publicly accessible through Internet searches. Id. Two patients of Glen Falls discovered the breach when they conducted a Google search for their names and found links that directed them to their Glen Falls medical records. Id. Read More

This week, the United States Court of Appeals affirmed Big 5 Sporting Goods Corporation, a case in which the trial court had held that “personal and advertising injury” coverage did not exist for violation of California’s Song-Beverly Act, even where common law allegations of invasion of privacy were alleged in connection with the unlawful collection of ZIP Codes. See Big 5 Sporting Goods Corporation v. Zurich American Ins. Co., No. 13-6249 (9^th Cir. Dec. 7, 2015), affirming Big 5 Sporting Goods Corporation v. Zurich American Ins. Co., 957 F. Supp. 2d 1135 (C.D. Cal. 2013).

In Big 5, the insured was sued in multiple underlying class action lawsuits alleging invasion of privacy and violation of the Song-Beverly Act from the practice of requesting ZIP Code information during credit card transactions. See Big 5 Sporting Goods, 957 F. Supp. 2d at 1138. Some of the class actions alleged both violation of the Song-Beverly Act as well as common law negligence and invasion of privacy claims. Id. The insured sought coverage under “personal and advertising injury,” defined in part as injury arising out of “[o]ral or written publication, in any manner, of material that violates a person’s right of privacy.” Id. at 1140. Read More

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Emerging Coverage Issues in Intellectual Property, Privacy, and Cyber Liability

Tag Archives: personal and advertising injury

Making Records Accessible on the Internet Is a “Publication”

The Ninth Circuit Holds There Is No Coverage for Violation of the Song-Beverly Act