After receiving an unauthorized solicitation regarding cosmetic surgery services via cell phone text messages, David Bochenek (as a lead plaintiff) filed a class action lawsuit against McAdoo Cosmetic Surgery. The suit alleged that the unauthorized solicitation was a privacy wrongful act, in violation of the Telephone Consumer Protection Act (TCPA) and the Consumer Fraud Act (CFA).
McAdoo filed a claim for coverage with his insurer, Doctors Direct Insurance (Direct). The insurer, which provided McAdoo with a Cosmetic Surgeon’s Professional Liability Policy, endorsed with cyber claims coverage, filed for a summary judgment. It argued that the unsolicited texts were not acts eligible for coverage. After a lower court ruled in favor of Direct, Bochenek appealed.
On appeal, Bochenek argued that the texts did qualify as covered, privacy wrongful acts in violation of the two referenced national acts. The allegation was based on the unsolicited texts constituting the control and use of personally identifiable financial, credit or medical information, the same language used in the cyber endorsement’s definition of “privacy wrongful act”. The information used to distribute the texts were a list of names and phone numbers collected from a spa.
The higher court examined Bochenek’s arguments. In its review, the court found that the TCPA and the CFA prohibited certain types of unauthorized contacts and did not involve the mechanics of how call lists were created. It also found that Direct’s cyber endorsement language regarding privacy wrongful acts was not, as alleged by Bochenek, ambiguous. Since the texts did not involve abuse of personally identifiable credit, financial or medical information, the court agreed that Direct did not owe a legal defense or coverage for the allegations made by the lawsuit.
The lower court ruling in favor of the insurer was affirmed.
Doctors Direct Insurance, Inc. Plaintiff-Appellee v. David Bochenek, Defendant-Appellant and Beaute ‘E’mergente, LLC doing business as McAdoo cosmetic Surgery, Defendant. Appellate Court of Illinois, First district, first Division. Case No.1-14-2919. August 3, 2015. Affirmed. Westlaw, 38 N.E. 3d.116
