Beware Broader Insurance coverage Protection Exclusions for Biometric Data Privateness Regulation Claims
It has been practically twenty years since Illinois launched the primary biometric data privateness regulation within the nation in 2008, the Illinois Biometric Data Privateness Act (“BIPA”). Since then, litigation regarding biometric data privateness legal guidelines has mushroomed, and the insurance coverage trade has responded with more and more broad exclusions for claims stemming from the litigation. A current Illinois Appellate Court docket resolution in Ohio Safety Ins. Co. and the Ohio Cas. Ins. Co. v. Wexford Residence Corp., 2024 IL App (1st) 232311-U, demonstrates this ongoing evolution.
The plaintiff in a putative class motion lawsuit sued Wexford Residence Company (“Wexford”), alleging that Wexford violated BIPA by gathering, recording, storing, sharing and discussing its workers’ biometric data with out complying with BIPA’s statutory disclosure limitations. Wexford tendered the putative class motion lawsuit to its insurers, Ohio Safety Insurance coverage Firm and Ohio Casualty Insurance coverage Firm, each of which denied protection and filed a declaratory judgment motion looking for a ruling that the insurers had no responsibility to defend or indemnify Wexford.
The insurers argued that there was no responsibility to defend or indemnify based mostly on three exclusions: (1) the “Recording And Distribution Of Materials Or Data In Violation Of Regulation” exclusion (“Recording and Distribution Exclusion”), (2) the “Exclusion-Entry Or Disclosure Of Confidential And Information-Associated Legal responsibility-With Restricted Bodily Harm Exception,” and (3) the “Employment-Associated Practices Exclusion.”
The events cross-moved for judgment on the pleadings, and the trial courtroom granted judgment for Wexford, discovering that the insurers owed a protection. The trial courtroom reasoned that publication of fabric that violates an individual’s proper to privateness met the insurance policies’ definition of non-public and promoting harm, and due to this fact no exclusions utilized to bar protection. The insurers appealed. Though the insurers didn’t problem the trial courtroom’s ruling that the alleged BIPA claims certified as private or promoting harm ample to set off protection, they maintained that the trial courtroom erred by not making use of the three exclusions.
On enchantment, the courtroom targeted on the Recording and Distribution Exclusion, which purports to bar protection the place the private or promoting harm arises from the violation of any of three enumerated statutes (TCPA, CAN-SPAM Act, and FCRA) or some other statute that falls inside a broad “catch all” provision that expands the exclusion to incorporate violations of “[a]ny federal, state or native statute, ordinance or laws apart from the [three enumerated statutes] that addresses, prohibits, or limits the printing, dissemination, disposal, gathering, recording, sending, transmitting, speaking or distribution of fabric or data.”
The courtroom relied on its earlier resolution, Nationwide Fireplace Ins. Co. of Hartford and Cont’l Ins. Co. v. Visible Park Co., Inc., 2023 IL App (1st) 221160, wherein it discovered an similar Recording and Distribution Exclusion to bar protection for BIPA claims. That call, nevertheless, represented a departure from earlier selections that discovered related catchall provisions didn’t embody BIPA claims. For instance, in W. Bend Mut. Ins. Co. v. Krishna Schaumburg Tan, Inc., 2021 IL 125978, 183 N.E.3d 47 (Might 20, 2021), the identical appellate courtroom that determined Visible Park defined that the interpretive canon of ejusdem generis (which requires that basic phrases following an enumeration of particular individuals or issues are deemed to use solely to individuals or issues of the identical basic form or class of the particularly enumerated individuals or issues) required a discovering {that a} related catchall exclusion can be afforded restricted attain and never prolong to BIPA claims. Within the Visible Park case, however, the appellate courtroom concluded {that a} catchall provision just like the one in Wexford was materially totally different and broader than prior variations of the exclusion. Based on the Visible Park courtroom, the exclusion’s reference to “disposal,” “gathering,” or “recording” of fabric or data sufficiently encompassed BIPA violations, whereas prior variations apparently didn’t. The appellate courtroom once more utilized the interpretive canon of ejusdem generis to succeed in conclusions concerning the exclusion’s meant attain. The courtroom reasoned that as a result of the particularly enumerated statutes within the Recording and Distribution Exclusion protected private data and privateness, the final catchall will need to have been meant to take action as nicely.
As Wexford, Visible Park, and the pre-Visible Park selections illustrate, insurers are broadening the scope of exclusions that probably apply to BIPA-related claims. Policyholders ought to rigorously evaluation their insurance policies yearly to establish modifications in wording that may have a cloth affect on the scope of protection. Skilled brokers and protection counsel will help to make sure that materials modifications are recognized early and, the place applicable, modified or deleted by endorsement.