Another BIPA Win For Policyholders

Judge Lee of the Northern District of Illinois recently found that Citizens Insurance Company has a duty to defend its insured, Wynndalco, for a lawsuit alleging BIPA violations (Citizens v Wynndalco Enterprises).   In this case, Citizens issued a business owners liability policy to Wynndalco that contained a Distribution of Material in Violation of Statute exclusion. Wynndalco was sued in a class action alleging that it violated BIPA by selling access to facial recognition technology.  Citizens argued that the Statutory Violation exclusion applied because it precluded coverage for statutory violations, including TCPA, CAN-SPAM, FCRA and other laws (such as BIPA, Citizen’s contended) that prohibit the collection, dissemination, etc. of material or information.  In rejecting Citizen’s arguments, Judge Lee noted that the Illinois Supreme Court, in West Bend Mutual Ins. Co. v Krishna recently held that an almost identical exclusion was ambiguous as it applied to BIPA claims. Judge Lee also found that Citizen’s attempt to distinguish the facts in Wynndalco from those in Krishna were unpersuasive. The Statutory Violation exclusion is ambiguous and no attempt to use canons of statutory construction, such as ejusdem generis or noscitur a sociis, could cure it.