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Regent Insurance Co. v. Integrated Pain Management, SC

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

October 27, 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 DISTRICT JUDGE

         This matter is before the court on Plaintiffs Regent Insurance Company's and General Casualty Insurance Company's Motion for Summary Judgment (ECF No. 65). This matter is fully briefed and ready for disposition.

         BACKGROUND

         The Court has previously gone through the background of this case in a previous Order. See ECF No. 77. 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 ("Underlying Lawsuit"). Subsequently, the Zimmer Suit was amended to add Dr. Tian Zia, individually, and the entities Tian Medical, Inc. and Tian Medical, LLC as party defendants. In the Underlying Lawsuit, 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. See Underlying Lawsuit, Second Amended Complaint, ECF No. 33 (hereinafter "Underlying Complaint").

         On October 17, 2014, Regent Insurance Company ("Regent") and General Casualty Insurance Company ("General Casualty") (collectively, the "Insurers") filed this declaratory judgment action seeking a declaration that they have no duty to defend or indemnify IPM against the Underlying Lawsuit.

         The plaintiff in the Underlying Lawsuit, Zimmer alleges in Count I, that IPM sent unsolicited marketing facsimiles in violation of the Telephone Consumer Protection Act ("TCPA"), and, in Count III, that IPM committed conversion by sending such facsimiles. Zimmer proposed a class period consisting of the four years before the filing of the Underlying Lawsuit on April 30, 2015. Zimmer alleged two specific instances wherein he received unsolicited facsimile advertisements from IPM: July 11, 2012 and September 24, 2012. Regent insured IPM under a policy providing Commercial General Liability Coverage for the period from November 18, 2010 to November 18, 2011, Policy No. CGI 0889547 ("Regent CGL Policy"). General Casualty Insurance Company insured IPM under a policy providing Commercial Umbrella Coverage for the period from November 18, 2010 to November 18, 2011, Policy CCU 0889546 ("General Casualty Umbrella Policy").

         The Regent CGL Policy, in Form CG00 0112 07, provides, in relevant part:

         COVERAGE A BODILY INJURY AND PROPERTY DAMAGE LIABILITY

         1. Insuring Agreement

         a. We will pay those sums the insured becomes legally obligated to pay as damages because of "bodily injury" or "property damage" to which this insurance applies. We will have the right and duty to defend the insured against any "suit" seeking those damages. ...

         b. This insurance applies to "bodily injury" and "property damage" only if:

(1) The "bodily injury" or "property damage" is caused by an "occurrence" that takes places in the "coverage territory";
(2) The "bodily injury" or "property damage" occurs during the policy period;

         COVERAGE B PERSONAL AND ADVERTISING INJURY LIABILITY

         1. Insuring Agreement

a. We will pay those sums that the insured becomes legally obligated to pay as damages because of "personal and advertising injury" to which this insurance applies. We will have the right and duty to defend the insured against any "suit" seeking those damages....
b. This insurance applies to "personal and advertising injury" caused by an offense arising out of your business but only if the offense was committed in the "coverage territory" during the policy period.

         The General Casualty Umbrella Policy, in Form CU 0112 07 provides, in part, as follows:

         COVERAGE A-BODILY INJURY AND PROPERTY DAMAGE LIABILITY '

         1. Insuring Agreement

         a. We will pay on behalf of the insured the "ultimate net loss" in excess of the retained limit because of "bodily injury" or "property damage" to which this insurance applies. We will have the right and duty to defend the insured against any "suit" seeking damages for such "bodily injury" or "property damage" when the "underlying insurance" have been exhausted. . . . However, we will have no duty to defend the insured against any "suit" seeking damages for "bodily injury" or "property damage" to which this insurance does not apply. . . .

         b. This insurance applies to "bodily injury" and "property damage" only if:

(1) The "bodily injury" or "property damage" is caused by an "occurrence" that takes place in the "coverage territory";

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