Yesterday, the Missouri federal court in Travelers Indem. Co. v. Max Margulis & Surrey Vacation Resorts, 2016 U.S. Dist. LEXIS 173420 (E.D. Mo. Dec. 15, 2016), held that coverage for an underlying Telephone Consumer Protection Act (“TCPA”) lawsuit for “robo” calls to cell phones was prohibited by the “unsolicited communications” endorsement. Because this endorsement is being used more often, and because it does not receive as much fanfare as its sister-exclusion for “Distribution of Material,” I decided to write about it here in The Coverage Inkwell.
The insured, Surrey Vacation Resorts, Inc., d/b/a Grand Crowne Resorts (“Surrey”), was sued for an alleged, unsolicited June 18, 2013 call to his cell phone through use of an automated telephone dialing system and without his prior consent. Id. at *1. Plaintiff filed suit under the TCPA, alleging that plaintiff “incurred ‘damages’ due to receipt of one telephone call from Surrey on June 18, 2013, which he did not specifically request to receive.” Id. at *6. The TCPA makes it unlawful “to make any call (other than a call made for emergency purposes or made with the prior express consent of the called party) using any automatic telephone dialing system…to any telephone number assigned to a paging service, cellular telephone service, specialized mobile radio service, or other radio common carrier service, or any service for which the called party is charged for the call….” Id. at *8. Travelers defended the insured under a reservation of rights and commenced coverage litigation. Id. at *1.