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Dish not insured against TCPA penalties – 10th Circuit

  • Dish settled claims by U.S., 4 states for $210 mln

(Reuters) – An AIG unit’s umbrella insurance coverage insurance policies supplied no potential protection for claims by the U.S. authorities and 4 states that Dish Network violated federal guidelines against robocalling tens of tens of millions of occasions between 2003 and 2011, a federal appeals court docket stated on Tuesday.

The 10th U.S. Circuit Court of Appeals affirmed a 2020 ruling for AIG’s National Union Fire Insurance Co. of Pittsburgh, which had filed swimsuit in 2015 for a declaration that it had no obligation to defend or indemnify Dish against the governments’ lawsuit.

The 10th Circuit stated damages underneath the Telephone Consumer Protection Act are an uninsurable penalty underneath Colorado regulation.

AIG’s attorneys at Arnold & Porter Kaye Scholer did not instantly reply to requests for remark.Dish and its lawyer, Lee Epstein of Flaster Greenberg, additionally had no instant response. The firm denied any wrongdoing final December, when it settled the underlying lawsuit by the states and U.S. Justice Department for a mixed $210 million.

The Justice Department initially sued Dish in federal court docket in Springfield, Illinois, in 2009, alleging that Dish and its contractors had dialed customers on the Do Not Call Registry and had positioned advertising and marketing calls utilizing prerecorded “robocall” messages.

Dish requested National Union and its major insurers, Ace American and Travelers, to defend it against the lawsuit and to pay any judgments which may outcome from it.

Travelers finally settled with Dish for an undisclosed quantity. National Union and Ace filed separate lawsuits in federal court docket in Colorado, the place Dish is headquartered, searching for declarations that that they had no obligation to defend or indemnify Dish underneath their insurance policies.

Ace gained its lawsuit in 2016, and the 10th Circuit affirmed that judgment in 2018. The court docket relied on a 2008 ruling by the Colorado Supreme Court, in a non-insurance case, that TCPA statutory damages are an uninsurable penalty.

National Union filed its personal movement for abstract judgment in 2019. The decide granted the movement, relying closely on the 10th Circuit’s resolution for Ace.

On enchantment, Dish argued that the 10th Circuit was not sure by its February 2018 resolution for Ace as a result of, that May, the Colorado Supreme Court had overturned the 2008 resolution the 10th Circuit had relied on.

The 10th Circuit disagreed in an opinion by Circuit Judge Scott Matheson Jr, joined by Circuit Judges Jerome Holmes and Bobby Baldock.

The panel stated the Ace resolution was nonetheless good regulation and that the state excessive court docket’s May 2018 resolution “left intact the holding we relied upon in ACE — that TCPA statutory damages are penalties under Colorado law.”

The case determined Tuesday is National Union Fire Insurance Company of Pittsburgh v. Dish Network, 10th U.S. Circuit Court of Appeals No. 20-1215.

For National Union: R. Reeves Anderson and Timothy Macdonald of Arnold & Porter Kaye Scholer

For Dish Network: Lee Epstein of Flaster Greenberg

The Dish Network logo is seen on the side of an installer truck in Denver, Colorado March 2, 2009. REUTERS/Rick Wilking

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