Dish Seeks Rehearing of 10th Circuit Decision on TCPA Indemnification
The 10th U.S. Circuit Court of Appeals decision that Ace American Insurance has no duty to defend or indemnify Dish Network in a Telephone Consumer Protection Act (TCPA) telemarketing lawsuit (see 1802220063) puts Colorado "out of step" with every other…
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state where the issue has come up and "sows discord" on doctrine, Dish said in a docket 17-1140 petition (in Pacer) for a panel rehearing and rehearing en banc posted Friday. Dish said the panel decision makes it impermissible under Colorado law to insure statutory liquidated damages for even purely accidental violations, creating "an unnecessary windfall" for insurers that long have recognized they need to include TCPA exclusions in insurance policies in order to deny coverage. It said Ace's argument that Colorado public policy barring insurance coverage for some types of wrongful coverage included for TCPA statutory damages has been repeatedly raised in many states by insurers, but was always rejected until the 10th Circuit, that result being "confusion and disruption." Ace outside counsel didn't comment Monday.