“Courts do not worry about conflict of laws unless the parties disagree on which state’s law applies”.
Guy Bibbs’ dental practice, Gortho, Ltd., sued defendant Websolv Computing Inc. for sending an unsolicited one-page fax advertisement to his dental office. He claimed they violated the Telephone Consumer Protection Act. Websolv had commercial general liability insurance with plaintiff Auto-Owners Insurance Company and looked to them for defense. They argued that there was no duty to provide defense to Websolv.
There was a diversity issue, but both parties agreed Iowa law would control the case. They then filed cross-motions for summary judgment. The Trial Court concluded that Illinois law would govern this case and granted the motion in Websolv’s favor. Auto-Owners appealed, arguing that (1) the district court erred by applying Illinois law rather than Iowa law; and (2) Auto-Owners is entitled to summary judgment under Iowa law.
Both parties expressly agreed Iowa law would govern the case. “Courts do not worry about conflict of laws unless the parties disagree on which state’s law applies”. Because the parties agreed to Iowa law and the choice of Iowa law is entirely reasonable, the court should not have applied Illinois law.
The TCPA prohibits the use of any telephone, facsimile machine, computer, or other device to send unsolicited advertisements to another one. Websolv’s CGL policy requires Auto-Owners to defend against “advertising injury” and “property damage”, which they both claimed. The Court found under Iowa law that neither applied in this case. Under the advertising claim, Websolv alleged intrusion of privacy, but the court stated that Gortho, a corporation, does not have any common-law seclusion rights. The property damage claim also fails because the damage, using Gortho’s paper and ink, was expected and intended by Websolv and their policy excludes that type of damage. For those reasons the Appellate Court reverses and enters summary judgment in favor of Auto-Owners.
Auto-Owners Insurance Company v. Websolv Computing Incorporated, 580 F.3d 543 C.A.7 (Ill.), 2009.
