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Regent Insurance Co. v. Integrated Pain Management

United States District Court, E.D. Missouri, Eastern Division

September 23, 2016

REGENT INSURANCE CO. and GENERAL CASUALTY INSURANCE COMPANY, Plaintiffs,
v.
INTEGRATED PAIN MANAGEMENT, SC and MICHAEL C. ZIMMER, D.C., P.C., Defendants.

          MEMORANDUM AND ORDER

          RONNIE L. WHITE UNITED STATES DISTRICT JUDGE.

         This matter is before the court on Cincinnati Insurance Company's Motion for Summary Judgment (ECF No. 47) and Hartford's Motion for Summary Judgment (ECF No. 50). These matters are fully briefed and ready for disposition.

         BACKGROUND

         Dr. Tian Xia, d/b/a Integrated Pain Management ("IPM") is a Defendant in a class action lawsuit, Michael C. Zimmer, D.C., P.C., individually and on behalf of all others similarly situated v. Integrated Pain Management, S.C, 4:14-cv-1121 ("Zimmer Suit"). Subsequently, the Zimmer Suit was amended to add Dr. Tian Zia, individually, and the entities Tian Medical, Inc. and Tian Medical, LLC ("XIA") as party defendants. In the Zimmer Suit, Zimmer seeks damages from IPM for IPM sending unsolicited telefaxes, allegedly in violation of the Telephone Consumer Protection Act, 47 U.S.C. §227 ("TCPA") and common law conversion.

         As relevant to the instant motions, Cincinnati Insurance Company ("Cincinnati") and Hartford Fire Insurance Company ("Hartford") seek declarations that they owe no duty to defend or indemnify IPM for any claims or causes of action asserted in the underlying Zimmer Suit.

         Zimmer Lawsuit

         On or about April 30, 2014, Zimmer filed a lawsuit, Michael C. Zimmer, D.C., P.C., individually and on behalf of all others similarly situated v. Integrated Pain Management, SC The Zimmer Suit was originally pending in the Circuit Court of St. Louis County, Missouri, 14SL-CC1419. On or about June 19, 2014, the Zimmer Lawsuit was removed to the United States District Court, Eastern District of Missouri, 14-cv-l 121. On or about March 10, 2015, the Zimmer Suit was amended to include Dr. Tian Xia, individually, and the entities Tian Medical, Inc. and Tian Medical, LLC as party Defendants (hereinafter "Xia"). The Zimmer Suit alleges that on or about July 11, 2012, and on September 24, 2012, Tian Medical, Inc., Tian Medical, LLC and/or Dr. Xia sent unsolicited telefaxes to Zimmer and at least 40 other putative class members. The underlying complaint alleges that, as a result of these unsolicited telefaxes, the recipients (and/or their employees) wasted time, interrupted or invaded the recipients' privacy, and prevented the intended business use of the recipients' fax machine.

         The Zimmer Suit alleges that sending these unsolicited telefaxes constitutes: (1) a violation of the TCPA, and (2) a common law conversion of the recipients' fax machine, toner, paper and employee time. The Zimmer Suit seeks as damages to enjoin IPM from sending further unsolicited telefaxes and damages of $500 per telefax, per recipient; statutory penalties of $1500 per telefax, per recipient for intentional misconduct; unspecified compensatory damages; attorney fees and cost and expenses of the suit; plus pre-judgment and post-judgment interest at 9%.

         In the amended complaint in this action, Cincinnati seeks a declaration that Cincinnati owes no duty to defend or indemnify IPM for any claims or causes of action asserted in the underlying Zimmer Suit. (4:15cv236, ECF No. 61). Thereafter, Defendants also obtained leave to file a third party action (Case No. 15cv236) against another insurance carrier, Hartford and Allstate Insurance Company (4:15cv236, ECF No. 64-66).

         Cincinnati Policy

         On or about December 6, 2011, Cincinnati issued a Business Liability policy, number EBP 0065028, to "Dr. Tian Xia, d/b/a Integrated Pain Management" for the policy period of December 6, 2011 through December 6, 2012 (the "Business Policy"). On or about December 6, 2011, Cincinnati issued an Excess Liability policy number EXS 0116287 to "Dr. Tian Xia d/b/a Integrated Pain Management" for the Policy Period of December 6, 2011 to December 6, 2012 (the "Excess Policy") (hereinafter, the Business Policy and the Excess Policy will be collectively referred to as the "Cincinnati Policies").

         Included in the Business Policy issued by Cincinnati was an exclusion specifically addressing liability for conduct which directly or indirectly is alleged to violate the TCPA. Specifically, exclusion (p)(l 8) of the Business Policy states as follows;

This insurance does not apply to:
* * *
p. Personal and advertising injury:
* * *
(18) Arising directly or indirectly out of any action or omission that violates or is alleged to violate:
(a) The Telephone Consumer Protection Act (TCPA), including any amendment of or addition to such law; or
(b) The CAN-SPAM Act of 2003, including any amendment of or addition to such law; or
(c) Any statute, ordinance or regulation, other than the TCPA or CAN-SPAM Act of 2003, that prohibits or limits the sending, transmitting, communicating or distribution of material or information.

         In addition, exclusion (u) of the Business Policy states as follows:

This insurance does not apply to:
u. Distribution of Material in Violation of Statutes
"Bodily injury" or "property damage" arising directly or indirectly out of any action or omission that violates or is alleged ...

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