Insurance Corporation of Hanover v. Shelborne Associates

State: Illinois

Court: 1st District Appellate

Docket No: 1-07-3291 Rel

Case Date: 03/31/2009

Preview:Sixth Division March 31, 2009

No. 1-07-3291 INSURANCE CORPORATION OF HANOVER, n/k/a Praetorian Insurance Company, Plaintiff-Appellant, v. SHELBORNE ASSOCIATES, a Florida General Partnership, and TRAVEL 100 GROUP, INC., a Delaware Corporation, Defendants-Appellees. ) ) ) ) ) ) ) ) ) ) ) ) Appeal from the Circuit Court of Cook County

03 CH 14159

Honorable Richard Billik, Judge Presiding.

JUSTICE McBRIDE delivered the opinion of the court: Plaintiff Insurance Corporation of Hanover, n/k/a Praetorian Insurance Company (ICH), filed this declaratory judgment action seeking a determination that it owed no duty to defend its insured, defendant Shelborne Associates (Shelborne), in an underlying lawsuit brought by defendant Travel 100 Group, Inc. (Travel 100), based on its receipt of Shelborne's alleged unsolicited fax advertisement. After considering multiple motions for summary judgment, the trial court held that ICH has a duty to defend Shelborne for each count of the underlying complaint under its policy's coverage for "advertising injury" and "property damage." ICH appeals that finding. In July 2003, Travel 100, on behalf of a class, filed its three-count complaint against Shelborne. The complaint alleged that on or around April 11, 2003, Shelborne sent an unsolicited fax advertisement that was received by Travel 100's facsimile machine. Travel 100 asserted that this fax advertisement was sent "without prior express invitation or permission" as

1-07-3291 part of a "mass broadcast of unauthorized faxes." Travel 100 sought to bring the action "on behalf of a class consisting of all persons who were sent facsimiles of material advertising the commercial availability of any property goods or services by or on behalf [Shelbourne] and from whom [Shelborne] did not seek and obtain prior express permission or invitation for the sending of such faxes, which were sent within four years of the date of service of the summons and complaint upon [Shelborne]." Count I alleged that Shelborne sent unsolicited facsimile communication in violation of the Telephone Consumer Protection Act of 1991 (TCPA) (47 U.S.C.

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