United States District Court, W.D. North Carolina, Charlotte Division
C. MULLEN, UNITED STATES DISTRICT JUDGE.
matter is before the Court upon Plaintiff's Motion for
Judgment on the Pleadings, filed September 5, 2017. This
matter is fully briefed and ripe for disposition.
Hartford Casualty Insurance Company (“Hartford”)
filed this declaratory judgment action seeking a declaration
that it has no duty to defend or indemnify its insured,
Defendants Ted A. Greve & Associates and Ted A. Greve
(collectively “Greve”) in two Underlying Actions,
Hatch, et al. v. DeMayo, et al., No. 1:16-cv-925,
(the “Hatch Lawsuit”), and Garey, et al. v.
James S. Farrin, P.C., et al., No. 1:16-cv-542, (the
“Garey Lawsuit”), pursuant to Greve's
liability insurance coverage. The two Underlying Actions are
putative class actions pending in the Middle District of
North Carolina and both assert a single cause of action
against Greve (and others) for an alleged violation of the
federal Driver's Privacy Protection Act
(“DPPA”), based upon Greve's alleged
disclosure of information contained in an automobile accident
report. (See Doc. 1-1 & Doc. 1-2 at
p. 3). Underlying plaintiffs seek liquidated damages in the
amount of $2, 500.00 for each instance in which a defendant
knowingly obtained or used a plaintiff's protected
personal information. (Doc. 1-1 & Doc. 1-2 at
“Wherefore” clauses). They also seek an
injunction prohibiting the defendants from obtaining or using
personal information from motor vehicle records for marketing
purposes. (Id.). As the complaints disclose, both of
these requests are made “pursuant to 18 U.S.C. §
2724 [the DPPA]. . . .” (Id.).
underlying plaintiffs allege that they were involved in
automobile accidents. (Doc. 1-1 at ¶¶ 49-54; Doc.
1-2 at ¶¶ 27, 39 & 51). Pursuant to North
Carolina law, a law enforcement officer investigated these
accidents and then created an accident report. (Doc. 1-1 at
¶¶ 41-48; Doc. 1-2 at ¶¶ 22-26). When
creating the report, the investigating officer copied some
information from the underlying plaintiffs' drivers'
licenses, such as their name and address. (Id.).
Greve then purportedly obtained these publicly available
accident reports and disclosed the allegedly protected
personal information from the report (i.e., name and address
information) by mailing an advertisement for legal services
to the underlying plaintiff-drivers. (Doc. 1-1 at ¶ 70;
Doc. 1-2 at ¶ 45). The underlying plaintiffs allege that
this invaded their privacy by having their name disclosed in
connection with a potential need for legal services. (Doc.
1-1 at ¶¶ 127-28). The underlying plaintiffs seek
to represent a class of plaintiffs with respect to alleged
violations of the DPPA within the four years prior to the
July 8, 2016 filing of the Hatch Lawsuit (Doc. 1-2 at ¶
71) and within the four years prior to the May 27, 2016
filing of the Garey Lawsuit. (Doc. 1-1 at ¶ 132).
issued a series of business liability insurance policies (the
“Policies”) to Greve. The Policies generally
provide business liability coverage for “bodily injury,
” “property damage” and “personal and
advertising injury.” Greve, however, admits that the
Underlying Actions do not allege bodily injury or property
damage. (Doc. No. 6, Answer at ¶¶ 34, 36).
Accordingly, the Policies' coverage for bodily injury and
property damage do not trigger a duty to defend in this
respect to coverage for personal and advertising injury the
We will pay those sums that the insured becomes legally
obligated to pay as damages because of “bodily
injury”, “property damage” or
“personal and advertising injury” to which this
(Doc. No. 17-1 at p. 58; Doc. No. 17-2 at p. 89).
and advertising injury means:
including consequential “bodily injury, ” arising
out of one or more of the following offenses:
. . .
e. Oral, written or electronic publication of material that
violates a person's right of privacy; . . .
(Doc. No. 17-1 at pp. 79-80; Doc. No. 17-2 at pp. 110-11).
and advertising injury liability coverage is also subject to
the following policy exclusions:
Applicable to Business ...