Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Allstate Insurance Co. v. Kaigler & Associates, Inc.

Court of Appeals of Tennessee, Nashville

August 31, 2017

ALLSTATE INSURANCE COMPANY
v.
KAIGLER & ASSOCIATES, INC.

          Session Dare: February 23, 2017

         Appeal from the Chancery Court for Williamson County No. 43913 James G. Martin, III, Judge

         Declaratory judgment action in which an insurance company seeks a determination of its coverage obligations arising out of a business insurance policy it issued relative to a class action suit brought against the insured for sending unsolicited faxes in violation of the Telephone Consumer Protection Act ("TCPA"). The court granted the insurance company's motion for summary judgment in part, holding that the insurance company had no duty to indemnify under the "accidental event" coverage or the "personal injury" coverage, that the company had a duty to defend under the "advertising injury" coverage, and that the company had a duty to defend against all claims. The insured filed a motion to alter or amend, which was denied by the court. On appeal, the insured argues that the court issued an improper advisory opinion, erred in holding the company had no duty to indemnify under the "accidental event" coverage, and abused its discretion by failing to consider new evidence proffered in the insured's motion to alter or amend the judgment. Finding no error, we affirm the trial court in all respects.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed.

          David L. Cooper, Nashville, Tennessee, for the appellant, Kaigler & Associates, Inc.

          Jay R. McLemore, Franklin, Tennessee; Michael Resis and Christine V. Anto, Chicago, Illinois, for the appellee, Allstate Insurance Company.

          Richard H. Dinkins, J., delivered the opinion of the court, in which Andy D. Bennett and W. Neal McBrayer, JJ., joined.

          OPINION

          RICHARD H. DINKINS, JUDGE

         I. Factual and Procedural Background

         Kaigler & Company, Inc. ("Kaigler" or "Defendant") is a surplus line insurance company that makes specialty insurance products available to independent agents; it is owned by David Kaigler. A class action suit ("the Underlying Suit") was filed against Kaigler in the Circuit Court of Cook County, Illinois, which alleged that Kaigler sent unsolicited fax messages to recipients in violation the Telephone Consumer Privacy Act ("TCPA"). The complaint sought statutory damages under the TCPA in the amount of $500 per violation; alleged that Kaigler's practice of faxing unsolicited advertisements caused the recipients to lose paper, toner, and the use of their fax machines, as well as lost time by employees; and that Kaigler knew or should have known that it did not have permission to send the faxes. The court granted partial summary judgment in favor of plaintiffs, holding that all elements of the TCPA claim had been met; the court denied, without prejudice, the portion of the motion directed at damages.

         On February 19, 2015, Allstate Insurance Company ("Allstate"), which issued a Customizer Business Insurance Policy to Kaigler, filed suit in Williamson County Chancery Court, seeking a declaration of its responsibility to defend Kaigler in the Underlying Suit and what coverage was triggered under the policy. Specifically, Allstate sought a determination that its obligations to Kaigler arose "only under the 'advertising injury' coverage and that a duty to defend Kaigler does not arise under the 'accidental event' coverage" or the personal injury coverage. Kaigler answered, inter alia, denying the allegations of the complaint and asserting that Allstate failed to state a claim for relief. In due course, Allstate filed a motion for summary judgment, contending that it had no duty to defend or indemnify Kaigler in the Underlying Lawsuit under the "advertising injury, " "accidental event, " or "personal injury" coverage. The court granted Allstate's motion in part, holding that Allstate did not have a duty to indemnify under the "accidental event" or "personal injury" coverage; that it had a duty to defend Kaigler under the "advertising injury" coverage; and that "[b]ecause Allstate has a duty to defend Kaigler under the 'advertising injury' coverage … Allstate has a duty to defend Kaigler against all claims."

         Kaigler filed a motion to alter or amend the judgment, requesting that the court reconsider the grant of summary judgment on the issue of Allstate's duty to indemnify under its "accidental event" coverage. The court denied Kaigler's motion, holding that two affidavits Kaigler proffered as new information would not have changed the outcome of the case, that the information contained in the affidavits was available at the time summary judgment was granted, and that adjudication of the duty to indemnify question was proper in light of the status of the underlying class action in which liability had been determined. On appeal, Kaigler asks this court to determine whether the trial court erred in ruling on Allstate's motion and whether the trial court erred in ruling that Allstate has no duty to defend or indemnify under the "accidental event" coverage.

         II. Analysis

         A. The Trial Court's Consideration of the Coverage Limits

         We first examine Kaigler's contention that because the duty to defend is not actually in dispute and the duty to indemnify is premature, the trial court improperly issued an advisory opinion. Kaigler bases this contention on the holding in Policemen's Ben. Ass'n of Nashville v. Nautilus Ins. Co., that "because an insurer's duty to indemnify is dependent upon the outcome of a case, any declaration as to the duty to indemnify is premature unless there has been a resolution of the underlying claim." M2001-00611-COA-R3-CV, 2002 WL 126311, at *8 (Tenn. Ct. App. Feb. 1, 2002).

Relative to this issue, the trial ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.