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Hartford Casualty Insurance Company v. Greve

United States District Court, W.D. North Carolina, Charlotte Division

November 17, 2017

HARTFORD CASUALTY INSURANCE COMPANY, Plaintiff,
v.
TED A. GREVE & ASSOCIATES, P.A. And TED GREVE, Defendants.

          ORDER

          GRAHAM C. MULLEN, UNITED STATES DISTRICT JUDGE.

         This 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.

         I. FACTUAL BACKGROUND

         Plaintiff 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.[1] (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.).

         The 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).

         Hartford issued a series of business liability insurance policies (the “Policies”)[2] 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 action.

         With respect to coverage for personal and advertising injury the Policies provide:

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 insurance applies.

(Doc. No. 17-1 at p. 58; Doc. No. 17-2 at p. 89).

         “Personal and advertising injury means:

         injury, 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).

         Personal and advertising injury liability coverage is also subject to the following policy exclusions:

         B. XCLUSIONS

         1. Applicable to Business ...


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