The Wisconsin Court of Appeals held in a recent decision that a standard TCPA exclusion precludes coverage for all causes of action brought by the plaintiff that emanated from the unauthorized sending of faxes. This includes a common law conversion cause of action, as well as a cause of action for violations of the Telephone Consumer Protection Act (TCPA).
As background, in State Farm Fire & Casualty Co. v. Easy PC Solutions, LLC, No. 2014AP2657, 2015 Wisc. App. LEXIS 855 (Wisc. Ct. App. Dec. 9, 2015), P.J Wilder Chiropractic, Inc., the underlying plaintiff, filed a class-action lawsuit alleging that Easy PC Solutions, LLC violated the TCPA simply by sending the fax without the recipient’s consent and committed the tort of conversion by virtue of the faxes using the recipient’s ink, toner, and paper. Easy PC tendered the lawsuit to its insurer, State Farm Fire & Casualty Company, and State Farm denied coverage. Easy PC ultimately settled the lawsuit and assigned its rights to Wilder. State Farm then brought a declaratory judgment action seeking a finding that it did not have the duty to defend or indemnify Easy PC in the underlying lawsuit. The circuit court agreed with State Farm. Wilder appealed.
On appeal, Wilder disputed the finding that the policy barred coverage. Wilder insisted that the conversion claim evaded the policy’s TCPA exclusion. It explained that the conversion claim involves different elements than the TCPA claim, and thus, the two causes of action are distinct. The Court of Appeals was not convinced, reasoning that all of the acts giving rise to the conversion claim and the TCPA violation were exactly the same. Importantly, the Court of Appeals remarked that the TCPA exclusion was directed at Easy PC’s actions, not the effects of its actions. Therefore, because the same actions were implicated in both the TCPA and conversion claims, the TCPA exclusion barred coverage under the policy for both claims.
This decision represents a continuing and overwhelming trend of courts finding that TCPA exclusions preclude coverage entirely for blast fax suits. This decision is another sign that blast fax suits are on their way out.