Insurance — junk faxes

Listen to this article

Wisconsin Court of Appeals

Civil

Insurance — junk faxes

An insurer has a duty to defend an insured sued under the TCPA for sending unsolicited faxes.

“Even if Atlas ‘knowingly’ violated Sawyer’s rights under the TCPA, the complaint allows for the possibility that Atlas was negligent in causing a ‘personal and advertising injury’ under the policy. The complaint alleges that Atlas ‘knew or should have known’ that it was not given express invitation or permission to fax an advertisement to Sawyer and other class members and that it did not have an established relationship with Sawyer and the other class members. Because the complaint allows for a scenario in which Atlas was negligent in knowing that the act would inflict ‘personal and advertising injury,’ coverage is fairly debatable, and we conclude that the exclusion does not apply. See American Family Mut. Ins. Co. v. American Girl, Inc., 2004 WI 2, ¶24, 268 Wis. 2d 16, 673 N.W.2d 65 (exclusions construed narrowly against the insurer).”

Affirmed.

Recommended for publication in the official reports.

2011AP902 Sawyer v. West Bend Mut. Ins. Co.

Dist. I, Milwaukee County, Dugan, J., Curley, J.

Attorneys: For Appellant: Leavell, Jeffrey L., Racine; Pagel, Timothy L., Racine; Koppes, Christopher John, Racine; For Respondent: Barr, Charles H., Milwaukee; Oppenheim, David M., Rolling Meadows, IL; Slein, John J., Waukesha