On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-134-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 19, 2010
Before Judges Graves, Messano, and Waugh.
Defendant Group C Communications, Inc. (Group C), appeals the judgment of the Law Division declaring that plaintiff Penn National Insurance Company (Penn National) has no duty to defend or indemnify it with respect to claims raised in a class action suit alleging that Group C violated the Telephone Consumer Protection Act (TCPA), 47 U.S.C.A. § 227, by sending an unsolicited fax to the members of the class. We affirm in part and reverse in part.
We discern the following facts and procedural history from the record.
Group C is "an integrated business to business media company." In a press release that was part of the record on the motion for summary judgment, Group C described its business history up to the time relevant to this action, 2005, as follows:
Group C Media, Inc. was founded in 1968 as American Industrial Properties Report. In 1983 the company changed its name to the Business Facilities Publishing Company and began publishing Business Facilities Magazine. As an offshoot of Business Facilities, Group C founded Today's Facility Manager magazine (originally named Business Interiors) in 1988. As the business began to expand, the company changed the name of the organization to Group C Communications. In 1998, Group C founded The TFM Show, an annual trade show and conference covering all aspects of facility management.
In 2005, Group C launched Business Facilities LiveXchange, a hosted buyer event developed to streamline the site selection process. This invitation-only event is for corporate decision makers who are looking to fast-track location decisions in a professional environment.
Business Facilities covers "corporate real estate and relocation," and has a subscriber base of 43,000. Today's Facility Manager covers the "corporate and institutional maintenance and operations of a facility," and has a subscriber base of 50,000.
Typical attendees at the TFM show are "government, institutional, corporate facility manager[s] that [have] responsibility for purchasing products and services to maintain and operate their facility." Group C finances the TFM show through the fees received from exhibition booths, sponsorships, and attendee registrations.
Prior to 2005, Group C had generally promoted the TFM show to companies with which it already had a business relationship. To promote its 2005 show in Chicago, Group C rented a list of potential attendees from the Chicago Convention and Tourism Bureau (CCTB). It then hired a company to broadcast a fax advertising the show to entities on the CCTB list, using fax numbers from the list. The fax was sent to over forty recipients on April 14, 2005. One of those recipients was G.M. Sign, Inc., an Illinois company that had never done business with Group C.
At the time the fax was sent to G.M. Sign, Group C was insured by two Penn National policies, the Businessowners Policy (primary policy) and the Commercial Umbrella Policy (umbrella policy). We discuss the coverages and exclusions concerning each policy separately. Because Group C does not claim coverage under the "bodily injury" provisions of either policy, we explore only the property damage, personal injury, and advertising injury coverages.
We start with the primary policy. Section A(1)(a) requires Penn National to "pay those sums that the insured becomes legally obligated to pay as damages because of . . . 'property damage,' 'personal injury' or 'advertising injury' to which this insurance applies."
Section F(15) defines "property damage" as:
a. Physical injury to tangible property, including all resulting loss of use of that property. All such loss of use shall be deemed to occur at the time of the physical injury that caused it; or
b. Loss of use of tangible property that is not physically injured. All such loss of use shall be deemed to occur at the time of the "occurrence" that caused it.
There is coverage for "property damage" caused by an "occurrence," which is defined as "an accident, including continuous or repeated exposure to substantially the same general harmful conditions."
Section A(1)(b)(2)(b) of the primary policy defines "advertising injury" as an injury arising out of "oral or written publication of material that violates a person's right of privacy" which "offense [is] committed in the course of advertising your goods, products or services."
Under Section A(1)(b)(2)(a) of the primary policy, there is coverage for "personal injury" caused by "an offense arising out of your business, excluding advertising, publishing, broadcasting or telecasting done by or for you." Under Section F(13)(e) of the primary policy, "Personal injury" is defined to include injury, other than "bodily injury," arising out of the "[o]ral or written publication of material that violates a person's right of privacy."
In Section B(1)(p)(3) of the primary policy, there is an exclusion for personal injury and advertising injury claims "[a]rising out of the willful violation of a penal statute or ordinance committed by or with the consent of the insured." Section B(1)(q)(4) of the primary policy also excludes coverage for an advertising injury arising out of "[a]n offense committed by an insured whose business is advertising, broadcasting, publishing or telecasting."
We now turn to the umbrella policy, which provides excess coverage above the one million dollars of coverage provided by the primary policy. Section I(1) of the umbrella policy provides that Penn National will "pay on behalf of the insured the 'ultimate net loss' in excess of the 'applicable underlying limit' which the insured becomes legally obligated to pay as damages because of . . . Property Damage Liability . . . and . . . Personal Injury and Advertising Injury Liability."
Under the umbrella policy, "property damage" is defined as: "(a) Physical injury to tangible property, including all resulting loss of use of that property; and (b) Loss of use of tangible property that is not physically injured . . . which occurs during the policy period." Coverage is provided for "property damage" caused by an "occurrence," which is defined as "an accident, including continuous or repeated exposure to substantially the same general harmful conditions."
Section V(1)(b) of the umbrella policy defines "advertising injury" as injury arising out of "oral or written publication of material that violates a person's right of privacy" which offense is "committed during the policy period."
In Section V(9)(e) of the umbrella policy, "personal injury" is defined as injury arising out of "[o]ral or written publication of material that violates a person's right of privacy." Unlike the definition of "personal injury" in the primary policy, the definition in the umbrella policy does not exclude a claim for invasion of privacy resulting from "advertising [or] publishing . . . done by or for you."
Section I(3)(g)(3) of the umbrella policy excludes coverage for personal injury and advertising injury claims "arising out of . . . [t]he willful violation of a penal statute or ordinance committed by or with the consent o[f] the insured." Section I(3)(f)(4) of the umbrella policy excludes coverage for an advertising injury arising out of "an 'offense' ...