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Cincinnati Ins. Co. v. All Plumbing, Inc.

United States Court of Appeals, District of Columbia Circuit

February 5, 2016

CINCINNATI INSURANCE COMPANY, APPELLANT/CROSS-APPELLEE
v.
ALL PLUMBING, INC. SERVICE, PARTS, INSTALLATION, ET AL., APPELLEES/CROSS-APPELLANTS

Argued December 9, 2015.

Appeals from the United States District Court for the District of Columbia. (No. 1:12-cv-00851).

Laura Anne Foggan argued the cause for appellant/cross-appellee Cincinnati Insurance Company. With her on the briefs was Thomas S. Garrett.

David M. Oppenheim argued the cause for appellee/cross-appellant FDS Restaurant, Inc. With him on the briefs were Jeffrey A. Berman and Stephen H. Ring.

Before: ROGERS, TATEL and WILKINS, Circuit Judges. OPINION by Circuit Judge ROGERS.

OPINION

Page 154

Rogers, Circuit Judge :

The Cincinnati Insurance Company (" Cincinnati" ) filed a complaint for a declaratory judgment that it owes no duty to defend or indemnify claims brought against its insured, All Plumbing, Inc. and its president (together, " All Plumbing" ), for sending unsolicited faxed advertisements alleged to be in violation of the Telephone Consumer Protection Act (" TCPA" ), 47 U.S.C. § 227. The district court ruled that Cincinnati could not assert any of its defenses to coverage under the primary liability provision of the policy because it had failed to reserve its rights but could assert such defenses under the excess liability provision. The district court did not address the asserted defenses under that provision, however. Cincinnati appeals, and FDS Restaurant, Inc., which is suing All Plumbing for violating the TCPA, cross-appeals.

The court dismisses the appeals for lack of a final decision as to all requested relief.

Page 155

See 28 U.S.C. § 1291. The decision granting summary judgment to FDS did not resolve all of Cincinnati's rights and liabilities under the excess liability provision of the policy, and that omission became more apparent when the district court clarified that some coverage defenses may be available under that provision. Absent a certification by the district court pursuant to Federal Rule of Civil Procedure 54(b) that the rights and liabilities under the primary liability provision of the policy are final and that there is " no just reason for delay," this court lacks jurisdiction. Because there is not a final decision as to any party, the court need not address whether the absence of entry of a judgment against All Plumbing, which defaulted, also defeats finality.

I.

Cincinnati issued a commercial insurance policy to All Plumbing that provides for primary liability coverage and, in the event that coverage is exhausted, excess liability coverage. The primary liability provision covers " bodily injury" and " property damage" subject to a $1,000 deductible under Part A, and " personal and advertising injury" under Part B. The excess liability provision follows the terms and conditions of the primary liability provision. The policy covers claims arising from March 3, 2006 to March 3, 2007.

Two class actions were filed against All Plumbing in the D.C. Superior Court for allegedly sending over 10,000 unsolicited faxes to businesses located in Washington, D.C. and Northern Virginia, in violation of the TCPA. The TCPA prohibits sending unsolicited advertisements by fax machine, except in limited circumstances, see 47 U.S.C. § 227(b)(1)(C), and recipients are entitled to $500 in statutory damages for each violation, an amount that may be trebled if the violation was willful or knowing, see id. ยง 227(b)(3). The first TCPA lawsuit was filed by Love the Beer, Inc., on September 14, 2010. By letter of December 2, 2011, Cincinnati notified All Plumbing that, subject to a full and complete reservation of rights, it would defend the lawsuit. The letter explained why the policy might not cover TCPA claims. The second lawsuit, virtually identical to the first, was filed by FDS on December 2, 2011. The same attorney represented the named plaintiffs in both class actions. On December 22, Love the Beer ...


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