District Court Finds Grocer’s CGL Policy Covers BIPA Claim

The ink has barely dried on the Seventh Circuit’s opinion in Citizens Ins. Co. of Am. v. Wynndalco Enters., LLC, No. 22-2313, 2023 WL 4004766 (7th Cir. June 15, 2023)—which found that a catch-all provision embedded in an exclusion for personal and advertising coverage did not apply to claims brought under the Illinois Biometric Information Privacy Act (“BIPA”)—but the effect of the decision is already reverberating at the District Court level. In Continental Western Ins. Co. v. Tony’s Finer Foods Ent., Inc., et al., No. 22-cv-3575 (N.D. Ill.), Continental relied upon an exclusion “. . . that was the same in all material respects . . .” to the one the Seventh Circuit considered in Wynndalco., and further argued that exclusions for claims arising out of employment practices or disclosure of confidential information also foreclosed coverage.

In rejecting each of these bases for denial of coverage, Judge Alonso echoed the Seventh Circuit’s reasoning in Wynndalco. Specifically, that any interpretation of the aforementioned exclusions that would foreclose coverage for BIPA claims would effectively eliminate coverage for claims “that the policy by its express terms otherwise purports to cover.” Following the Seventh Circuit, Judge Alonso resolved the ambiguity created by this contradiction between the express coverage and the exclusion in favor of the insured.

Any insureds currently facing BIPA claims would be well advised to engage coverage counsel to ensure that they are receiving the full benefit of their CGL coverage.

The case is Citizens Ins. Co. of Am. v. Wynndalco Enters., LLC, No. 22-2313, 2023 WL 4004766 (7th Cir. June 15, 2023).