9th Circuit Asks California Supreme Court to Clarify Insurance Law for Yahoo TCPA Case
Federal judges asked the California Supreme Court to resolve a question of state insurance law affecting Telephone Consumer Protection Act litigation. A 9th U.S. Circuit Court of Appeals panel said it needed guidance in applying California's rules in a Yahoo…
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TCPA liability case against an insurance company because of "tension" between state appellate court decisions. "Does a commercial liability policy that covers 'personal injury,' defined as 'injury . . . arising out of . . . [o]ral or written publication . . . of material that violates a person’s right of privacy,' trigger the insurer’s duty to defend the insured against a claim that the insured violated the [TCPA] by sending unsolicited text message advertisements that did not reveal any private information?" asked the three-judge panel Wednesday in Yahoo! v. National Union Fire Insurance, No. 17-16452. "The right to privacy is generally understood to encompass both a right 'to be free from unwanted intrusions,' known as the right to seclusion, as well as a right 'to keep personal information confidential,' known as the right to secrecy ... Because the TCPA does not implicate violations of the right to secrecy, insurance coverage of TCPA liability turns on whether 'publication ... of material that violates a person’s right of privacy' applies to the right to secrecy, seclusion, or both." Judges said Yahoo was a defendant in five putative class-action suits in California and other states when it had commercial liability insurance with National Union. "When National Union refused to tender a defense in the underlying TCPA litigation, Yahoo! commenced this action for breach of contract," they wrote. "The district court granted National Union’s motion to dismiss, concluding that the policy’s coverage of personal injury arising out of 'publication . . . of material that violates a person’s right of privacy' does not apply to Yahoo!’s TCPA liability." Verizon owns Yahoo.