Opinion · Illinois Supreme Court
West Bend Mutual Insurance Co. v. Krishna Schaumburg Tan, Inc.
451 Ill. Dec. 1
- Type
- Opinion
- Court
- Illinois Supreme Court
- Jurisdiction
- Illinois
- Date
- 2021-05-20
- Topic
- litigation
noting that “defendant systematically disclosed Plaintiff's and the Class's biometric identifiers and biometric information to SunLync, an out-of-state vendor.” | “A duty to defend arises if the allegations in [the] complaint fall within or potentially within [the] policies’ coverage….” | “A duty to defend arises if the allegations in [the] complaint fall within or potentially within [the insurer’s] policies’ coverage.” | a duty to defend arises when the allegations in the underlying complaint allege facts within or potentially within the coverage 12 of the policy | “Where competing reasonable interpretations of an insurance contract exist, … the court must construe the insurance contract in favor of the insured and against the insurer that drafted the contract”
Citator
- Cited by
- 25 opinions
2021 IL 125978
IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
(Docket No. 125978)
WEST BEND MUTUAL INSURANCE COMPANY, Appellant, v. KRISHNA
SCHAUMBURG TAN, INC., et al., Appellees.
Opinion filed May 20, 2021.
JUSTICE NEVILLE delivered the judgment of the court, with opinion.
Chief Justice Anne M. Burke and Justices Garman, Theis, Michael J. Burke,
Overstreet, and Carter concurred in the judgment and opinion.
OPINION
¶1 Klaudia Sekura filed a class-action lawsuit against Krishna Schaumburg Tan,
Inc. (Krishna), a tanning salon and franchisee of L.A. Tan, and alleged that Krishna
(1) violated the Biometric Information Privacy Act (Act) (740 ILCS 14/1 et seq.
(West 2018)) provisions relating to the collection of biometric identifiers and
biometric information when it scanned Sekura’s and its other customers’ 1
fingerprints and (2) violated the Act’s provisions relating to the disclosure of
biometric identifiers and information 2 when it disclosed biometric information
containing her fingerprints “to an out-of-state third party vendor, SunLync.”
Krishna tendered Sekura’s lawsuit to West Bend Mutual Insurance Company (West
Bend), its insurer, and requested a defense. West Bend filed a declaratory judgment
action against Krishna and Sekura contending that it did not owe a duty to defend
Krishna against Sekura’s lawsuit. When West Bend and Krishna filed cross-
motions for summary judgment, Sekura joined Krishna’s motion for summary
judgment but sought alternative relief. The trial court entered a judgment for
Krishna. West Bend appealed, and the appellate court affirmed the trial court’s
decision. 2020 IL App (1st) 191834
. We allowed West Bend’s petition for leave to
appeal (Ill. S. Ct. R. 315 (eff. Oct. 1, 2019)) and affirm entry of summary judgment
for Krishna.
¶2 I. BACKGROUND
¶3 A. The Underlying Complaint
¶4 Sekura purchased a membership from Krishna that gave her access to L.A.
Tan’s tanning salons. Sekura’s membership required Sekura to provide Krishna
with her fingerprints. Sekura filed a three-count class-action lawsuit against
Krishna and alleged in count I that Krishna violated the Act as follows:
“Krishna Tan systematically and automatically collected, used, stored, and
disclosed their [customers’] biometric identifiers or biometric information
without first obtaining the written release required by 740 ILCS 14/15(b)(3).
1
In this opinion whenever we refer to Sekura, we are also referring to Krishna’s other customers
who are class members and use their memberships at L.A. Tan’s locations.
2
The Act defines a “biometric identifier” as “a retina or iris scan, fingerprint, voiceprint, or scan
of hand or face geometry” and defines “biometric information” as “any information *** based on
an individual’s biometric identifier used to identify an individual.” 740 ILCS 14/10 (West 2018).
The Act regulates the collection, retention, disclosure, and destruction of biometric identifiers and
information. See Charles N. Insler, Understanding the Biometric Information Privacy Act Litigation
Explosion, 106 Ill. B.J. 34
, 35-36 (2018).
-2-
Specifically, Krishna Tan systematically disclosed Plaintiff’s and the
Class’s biometric identifiers and biometric information to SunLync, an out-of-
state *** vendor.
***
Krishna Tan does not provide a publicly available retention schedule or
guidelines for permanently destroying its customers’ biometric identifiers and
biometric information as specified by the [Act].”
¶5 In count II, Sekura alleged that Krishna was unjustly enriched because Krishna
failed to comply with the Act and that Krishna should not be allowed to retain the
money Sekura paid to Krishna. In count III, Sekura alleged that Krishna was
negligent when it breached its duty of reasonable care by violating the Act. Sekura’s
prayer for relief sought “statutory damages of $1,000 for each of Krishna Tan’s
violations of the Act pursuant to 740 ILCS 14/20(1) (West 2020).”
¶6 B. West Bend’s Policies
¶7 West Bend issued two businessowners’ liability policies to Krishna. The
policies cover the period from December 1, 2014, through December 1, 2015, and
December 1, 2015, through December 1, 2016. West Bend’s insurance policies
state, in pertinent part, as follows:
“1. Business Liability
a. We will pay those sums that the insured becomes legally obligated to
pay as damages because of ‘bodily injury’, ‘property damage’, ‘personal
injury’ or ‘advertising injury’ to which this insurance applies. We will have
the right and duty to defend the insured against any ‘suit’ seeking those
damages. However, we will have no duty to defend the insured against any
‘suit’ seeking damages for ‘bodily injury’, ‘property damage’, ‘personal
injury’, or ‘advertising injury’’ to which this insurance does not apply.
***
b. This insurance applies:
-3-
(1) To ‘bodily injury’ and ‘property damage’ only if:
(a) The ‘bodily injury’ or ‘property damage’ is caused by an
‘occurrence’ that takes place in the ‘coverage territory’; and
(b) The ‘bodily injury’ or ‘property damage’ occurs during the policy
period.
(2) To:
(a) ‘Personal injury’ caused by an offense arising out of your business,
excluding advertising, publishing, broadcasting or telecasting done by or
for you;
(b) ‘Advertising injury’ caused by an offense committed in the course
of advertising your goods, products or services[.]”
¶8 The policies contain the following pertinent definitions:
“F. Liability And Medical Expenses Definitions
1. ‘Advertising injury’ means injury arising out of one or more of the
following offenses:
***
b. Oral or written publication of material that violates a person’s
right of privacy;
***
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3. ‘Bodily injury’ means bodily injury, sickness or disease sustained by
a person, including death resulting from any of these at any time.
***
13. ‘Personal injury’ means injury, other than ‘bodily injury’, arising
out of one or more of the following offenses:
***
e. Oral or written publication of material that violates a person’s
right of privacy.”
The policies contain the following pertinent exclusions:
“B. Exclusions
1. Applicable To Business Liability Coverage
This insurance does not apply to:
***
p. Personal Or Advertising Injury
‘Personal injury’ or ‘advertising injury’:
***
(2) Arising out of oral or written publication of material whose first
publication took place before the beginning of the policy period;
(3) Arising out of the willful violation of a penal statute or ordinance
committed by or with the consent of the insured.”
¶9 An endorsement to the policies added the following exclusion:
“This insurance does not apply to:
-5-
DISTRIBUTION OF MATERIAL IN VIOLATION OF STATUTES
‘Bodily injury’, ‘property damage’, ‘personal injury’ or ‘advertising
injury’ arising directly or indirectly out of any action or omission that
violates or is alleged to violate:
(1) The Telephone Consumer Protection Act (TCPA) [(47 U.S.C. § 227
(2018))], including any amendment of or addition to such law;
or
(2) The CAN-SPAM Act of 2003 [(15 U.S.C. § 7701
(Supp. III
2004))], including any amendment of or addition to such law; or
(3) 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.”
¶ 10 The 2015 policy also included an endorsement adding coverage for costs from
a data compromise of the insured. However, the data compromise endorsement was
not considered by the appellate court but was raised in Krishna’s brief in this appeal.
¶ 11 West Bend advised Krishna in a letter that it would provide a defense under a
reservation of rights because it believed that Sekura’s lawsuit against Krishna was
not covered by the policies. Therefore, West Bend maintained that it did not have
a duty to defend Krishna against Sekura’s lawsuit.
¶ 12 C. West Bend’s Declaratory Judgment Action
¶ 13 West Bend filed a declaratory judgment action and alleged that Sekura’s
complaint against Krishna does not come within the policies’ coverage for personal
injury or advertising injury. First, the declaratory judgment action alleged that
Sekura’s complaint does not come within the policies’ coverage for “personal
injury” or “advertising injury” because the complaint does not allege a publication
of material that violates a person’s right of privacy. Second, the declaratory
judgment action alleged, in the alternative, that the policies’ violations of statutes
exclusion applies and bars West Bend from having to provide coverage to Krishna
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for Sekura’s lawsuit.
¶ 14 D. Krishna’s Countercomplaint in
the Declaratory Judgment Action
¶ 15 Krishna filed a countercomplaint in the declaratory judgment action and alleged
in count I that the Sekura lawsuit falls within or potentially within West Bend’s
policies’ coverage. In count II, which asserted statutory bad faith and vexatious and
unreasonable conduct, Krishna alleged that “West Bend’s stated defenses that there
is no allegation of a ‘personal injury’ and that the Data Compromise endorsement
does not apply has no good faith basis in fact or in law.”
¶ 16 E. Cross-Motions for Summary Judgment
¶ 17 1. West Bend’s Motion for Summary Judgment
¶ 18 West Bend filed a motion for summary judgment and maintained that coverage
for an alleged personal injury or advertising injury was not triggered because “the
complaint does not allege a ‘publication’ as that term is defined under Illinois law.”
In support of its position, West Bend cited Valley Forge Insurance Co. v. Swiderski
Electronics, Inc., 223 Ill. 2d 352
(2006). West Bend’s motion maintained that in
Valley Forge this court held that “publication” means communication to the public
at large. West Bend argued that disclosure to a single party cannot be considered a
publication as the term is defined in Valley Forge and, because there was no
publication of material to more than one party that violated Sekura’s right of
privacy, the personal injury and advertising injury coverages are inapplicable. In
the alternative, West Bend’s motion maintained that the policies’ violation of
statutes exclusion applies and bars coverage to Krishna for the Sekura lawsuit
because Sekura’s allegations clearly fall within the violation of statutes exclusion.
¶ 19 2. Krishna’s Cross-Motion for Summary Judgment
¶ 20 Krishna’s cross-motion for summary judgment maintained that the allegations
in Sekura’s complaint that Krishna shared her biometric identifiers and biometric
information with a single party, SunLync, is a publication that is covered by the
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policies. Krishna also cited Valley Forge in support of its position. Krishna’s cross-
motion further maintained that, regardless of whether the violation of statutes
exclusion applies to Sekura’s complaint, West Bend’s policies provide coverage
for a violation of the Act under the Illinois data compromise coverage endorsement.
¶ 21 3. Sekura’s Response to West Bend’s
Motion for Summary Judgment
¶ 22 Sekura joined Krishna’s cross-motion for summary judgment and maintained
in her response that the exclusion for violation of statutes does not apply because
the exclusion only applies to statutes that regulate methods of communication.
Sekura, however, requested different relief: (1) that the court deny West Bend’s
motion for summary judgment without prejudice and (2) that the court stay the
declaratory judgment lawsuit pending the resolution of the underlying claim.
¶ 23 F. The Trial Court’s Decision
¶ 24 The trial court found that the plain, ordinary, and popular meaning of
“publication” “simply means the dissemination of information” and that the
allegations in Sekura’s complaint involving Krishna’s sharing of Sekura’s
biometric identifiers and information with SunLync constitute a publication within
the purview of West Bend’s policies. The trial court also found that the exclusion
for violation of statutes does not apply because the exclusion applies to statutes like
the Telephone Consumer Protection Act of 1991 (TCPA) (47 U.S.C. § 227
(2018))
and the CAN-SPAM Act of 2003 (CAN-SPAM Act) (15 U.S.C. § 7701
(2018))
that regulate methods of sending information and because the Act regulates the
retention, collection, disclosure, and destruction of biometric identifiers and
information.
¶ 25 The trial court held that West Bend owed a duty to defend Krishna against
Sekura’s lawsuit and entered a judgment for Krishna. But the trial court denied
Krishna’s cross-motion for summary judgment on count II for statutory bad faith
and vexatious and unreasonable conduct by West Bend.
-8-
¶ 26 G. The Appellate Court’s Decision
¶ 27 The appellate court found that the common understandings and dictionary
definitions of publication clearly include both a limited sharing of information with
a single party and the broad sharing of information to multiple recipients that the
court viewed as a publication under Valley Forge. The appellate court held that the
allegations in Sekura’s complaint fall within or potentially within West Bend’s
policies and, therefore, West Bend has a duty to defend Krishna. 2020 IL App (1st) 191834, ¶ 38
. The appellate court also held that the violation of statutes exclusion
does not bar coverage to Krishna because of the exclusion’s title and because the
TCPA and CAN-SPAM Act are two statutes that are listed in the exclusion and
both regulate methods of communication. Id. ¶ 43. The appellate court further held
that the violation of statutes exclusion “applies to statutes that govern certain
methods of communication, i.e., e-mails, faxes, and phone calls.” (Emphasis
omitted.) Id. ¶ 42. Therefore, the appellate court affirmed the decision of the trial
court.
¶ 28 II. ANALYSIS
¶ 29 A. The Standard of Review
¶ 30 In this case the parties filed cross-motions for summary judgment (735 ILCS
5/2-1005 (West 2018)), and the trial court entered a judgment for Krishna and
Sekura. The filing of cross-motions for summary judgment constitutes an implicit
agreement between the parties that there are no genuine issues of material fact and
only a question of law is presented to the court. Rushton v. Department of
Corrections, 2019 IL 124552, ¶ 13
. Where a judgment, like the judgment in this
case, grants summary judgment to a party, our review is de novo. State Farm
Mutual Automobile Insurance Co. v. Elmore, 2020 IL 125441, ¶ 19
. Also, where
this court must construe the terms of a contract or an insurance policy, as we must
do in this case, the court is presented with a second question of law, and our review
is de novo. Schultz v. Illinois Farmers Insurance Co., 237 Ill. 2d 391, 399
(2010);
State Farm Mutual Automobile Insurance Co. v. Illinois Farmers Insurance Co.,
226 Ill. 2d 395, 400
(2007).
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¶ 31 B. Rules of Contract Construction
¶ 32 This court has prescribed general rules for construing a contract for insurance.
Sanders v. Illinois Union Insurance Co., 2019 IL 124565, ¶ 22
. The primary
function of the court in construing contracts for insurance is to ascertain and give
effect to the parties’ intent as expressed in the insurance contract’s language. Id.
¶¶ 22-23 (citing Valley Forge,223 Ill. 2d at 362
). If the terms of the insurance
contract are clear and unambiguous, the court will give them their plain and
ordinary meaning. Id. ¶ 23; United States Fidelity & Guaranty Co. v. Wilkin
Insulation Co., 144 Ill. 2d 64, 74
(1991). Conversely, if the terms are susceptible to
more than one meaning, they are considered ambiguous and will be construed
strictly against the insurer who drafted the contract. American States Insurance Co.
v. Koloms, 177 Ill. 2d 473, 479
(1997) (citing Outboard Marine Corp. v. Liberty
Mutual Insurance Co., 154 Ill. 2d 90, 108-09
(1992)). Where competing reasonable
interpretations of an insurance contract exist, a court is not permitted to choose
which interpretation it will follow; rather, in such circumstances, the court must
construe the insurance contract in favor of the insured and against the insurer that
drafted the contract. Gillen v. State Farm Mutual Automobile Insurance Co., 215 Ill. 2d 381, 396
(2005).
¶ 33 In this declaratory judgment action, we must determine whether West Bend has
a duty to defend Krishna. A duty to defend arises if the allegations in Sekura’s
complaint fall within or potentially within West Bend’s policies’ coverage for a
personal injury or advertising injury. Maryland Casualty Co. v. Peppers, 64 Ill. 2d 187, 193
(1976) (a duty to defend arises when the allegations in the underlying
complaint allege facts within or potentially within the coverage of the policy).
Krishna maintains that the allegations in Sekura’s complaint come within the
coverage of West Bend’s policies. West Bend’s declaratory judgment action and
motion for summary judgment contend that Sekura’s complaint does not come
within its policies’ coverage because the complaint does not allege the publication
of material that violates a person’s right of privacy. Accordingly, we must construe
the terms in West Bend’s policies to determine whether the allegations in Sekura’s
complaint allege that Krishna’s acts caused Sekura a personal injury and whether
Krishna’s sharing of biometric identifiers and information was a publication of
material that violated Sekura’s right to privacy.
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¶ 34 West Bend’s policies define personal injury and advertising injury, but the
policies do not define the terms publication or right to privacy. Therefore, in
interpreting West Bend’s policies, we must construe three terms in the policies and
determine whether Sekura’s complaint alleges (1) a “personal injury or advertising
injury” within the purview of the policies, (2) a “publication” of material by
Krishna that violated Sekura’s right to privacy and comes within the purview of the
policies, and (3) a publication of material by Krishna that violated Sekura’s “right
of privacy” and comes within the purview of the policies.
¶ 35 1. Personal Injury or Advertising Injury
¶ 36 West Bend’s policies define “personal injury” as an injury “other than a bodily
injury” that arises out of an “oral or written publication of material that violates a
person’s right of privacy.” West Bend’s policies’ definition of “advertising injury”
is similar to the definition for personal injury but does not include the “other than a
bodily injury” language. West Bend’s policies define “bodily injury” as a “bodily
injury, sickness or disease.” Sekura’s complaint does not allege she suffered a
bodily injury, a sickness, or a disease when Krishna shared her biometric identifiers
and biometric information with SunLync. But Sekura’s complaint does allege that
she suffered an injury, other than a bodily injury (emotional upset, mental anguish,
and mental injury), when Krishna disclosed her biometric identifiers, fingerprints,
and biometric information to a single party—SunLync—in violation of her right to
privacy under the Act. While we find that Sekura’s complaint does not allege a
bodily injury but a potential nonbodily injury under West Bend’s policies, we must
next determine whether Krishna’s sharing of Sekura’s biometric identifiers and
biometric information with SunLync was a “publication” that violated Sekura’s
right to privacy.
¶ 37 2. Publication
¶ 38 West Bend’s policies do not define the term publication. When a term is not
defined in an insurance policy, we afford that term its plain, ordinary, and popular
meaning, i.e., we look to its dictionary definition. Founders Insurance Co. v.
Munoz, 237 Ill. 2d 424, 436
(2010).
- 11 -
¶ 39 West Bend contends a “publication” refers to the communication or distribution
of information to the public. West Bend relies primarily on the emphasized
language in the following statement in Valley Forge: “Swiderski published the
advertisements both in the general sense of communicating information to the
public and in the sense of distributing copies of the advertisements to the public.”
(Emphases added.) Valley Forge, 223 Ill. 2d at 367
. We note this statement in
Valley Forge is obiter dictum. See id.
(this court noted that plaintiffs had abandoned
their argument that the conduct alleged in the underlying complaint did not
constitute a publication, but this court would address the question “in the interest
of coherently interpreting all the relevant terms of the ‘advertising injury’
provision”); see also Exelon Corp. v. Department of Revenue, 234 Ill. 2d 266, 277
(2009) (defining obiter dictum as “a remark or expression of opinion that *** is
generally not binding authority or precedent” and stating that a particular passage
or statement may be identifiable as dictum if “ ‘the passage was unnecessary to the
outcome of the earlier case’ ” (quoting United States v. Crawley, 837 F.2d 291, 292
(7th Cir. 1988))). Krishna and Sekura argue that a publication includes disclosures
made to a single party, like SunLync, and adopt the definition for publication used
by the appellate court. The appellate court found that the common understandings
and dictionary definitions of “publication” clearly include both a limited sharing of
information with a single party and the broad sharing of information to multiple
recipients as the court stated in Valley Forge. 2020 IL App (1st) 191834, ¶ 35
. To
determine whether publication includes (1) the communication or distribution of
information to a single party like SunLync, as advanced by Krishna and Sekura, or
(2) refers only to the communication or distribution of information to the public at
large, as advanced by West Bend, we examine the definition of publication in
various dictionaries, treatises on insurance law and the law of privacy, and the
Restatement of the Law of Torts.
¶ 40 First, we review dictionary definitions of the term “publication” and find that
the term means both communication to a single party and communication to the
public at large. See Oxford English Dictionary Online, www.oed.com/view/Entry/
154060 (last visited May 12, 2021) [https://perma.cc/35H3-UF7N] (defining
publication as “[t]he action of making something publicly known” and notification
or communication to a party or to a limited number of people regarded as
representative of the public); Webster’s Third New International Dictionary 1836
(1993) (defining publication as “communication (as of news or information) to the
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public” and “legal notification”); Black’s Law Dictionary 1227-28 (6th ed. 1990)
(defining publication as “to exhibit, display, disclose or reveal. [Citation.] The act
of publishing anything *** or rendering it accessible to public scrutiny” and the
“communication of libelous matter to a third person.” “Law of libel. The act of
making the defamatory matter known publicly, of disseminating it, or
communicating it to one or more persons (i.e. to third person or persons).”).
¶ 41 Second, we review insurance law and law of privacy treatises for their
definitions of the term publication, and we find once again that publication means
both communication to a single party and communication to the public at large. See
Steven Plitt & Jordan Ross Plitt, 2 Practical Tools for Handling Insurance Cases,
Personal injury and advertising injury coverage—Violations of a person’s right to
privacy § 13:37 (Sept. 2020 Update) (stating that “ ‘[p]ublication’ within the
meaning of personal and advertising injury coverage relating to the publication of
material that violated a person’s right of privacy is not limited to the publication of
material that wrongfully discloses private facts to third parties.” (Emphasis
added.)); M. Elizabeth Medaglia & Peter A. von Mehren, 1 Law and Practice of
Insurance Coverage Litigation, Summary of issues—Prominent coverage issues
§ 7:4 (June 2020 Update) (stating that in one jurisdiction “ ‘[p]ublication’ is defined
as ‘making known,’ for purposes of liability policy provision defining ‘advertising
injury’ to include ‘oral or written publication of material that violates a person’s
right of privacy.’ ” (quoting State Farm General Insurance Co. v. JT’s Frames,
Inc., 104 Cal. Rptr. 3d 573, 587
(Ct. App. 2010) (finding “making known” meant
disclosure of private content to another party))); (3) David A. Elder, Privacy Torts,
Publication § 2:4 (Dec. 2020 Update) (defining publication to include “publicity”
and “public disclosure” and stating that in some instances there must be evidence
of receipt of the information by another party); see also 33A Ill. L. and Prac. Slander
and Libel § 23, at 116 (Jan. 2021) (“Any act by which defamatory matter is
communicated to someone other than the person defamed is a ‘publication.’ ”).
¶ 42 Third, we review the Restatement (Second) of Torts and find, once again, that
under the common law the term publication means both communication to a single
party and communication to the public at large. See Restatement (Second) of Torts
§ 577 & cmt. b (1977) (defining publication for purposes of defamation as
“communication intentionally or by a negligent act to one other than the person
defamed” and stating that “[t]o constitute a publication it is necessary that the
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defamatory matter be communicated to some one other than the person defamed,”
but “[i]t is not necessary that the defamatory matter be communicated to a large or
even a substantial group of persons. It is enough that it is communicated to a single
individual other than the one defamed.”); id. § 652D cmt. a, at 384 (defining
publication for purposes of the publicity given to private life tort as when “the
matter is made public, by communicating it to the public at large” and
distinguishing it from “ ‘publication,’ as that term is used in § 577 in connection
with liability for defamation”).
¶ 43 We find, based on our review of dictionaries, treatises, and the Restatement,
that the term “publication” has at least two definitions and means both the
communication of information to a single party and the communication of
information to the public at large. If a term has multiple reasonable definitions or
is subject to more than one reasonable interpretation within the context in which it
appears, as in West Bend’s policies, the term is ambiguous. See Slepicka v. Illinois
Department of Public Health, 2014 IL 116927, ¶ 14
(holding that, if a term has
multiple dictionary definitions, it is ambiguous). Therefore, because the term
“publication” in West Bend’s policies has more than one definition, the term is
ambiguous and will be strictly construed against the insurer who drafted the
policies. Elmore, 2020 IL 125441, ¶ 21
; Gillen,215 Ill. 2d at 393
. Accordingly, we
adopt the construction used by Krishna and the appellate court and construe the
term publication in West Bend’s policies to include a communication with a single
party, like SunLync.
¶ 44 3. Right of Privacy
¶ 45 Because West Bend’s policy does not define the phrase “right of privacy,” we
again look to dictionary definitions. Munoz, 237 Ill. 2d at 436
. Black’s Law
Dictionary defines “right of privacy” as the right to personal autonomy. Black’s
Law Dictionary 1586 (11th ed. 2019). Courts have recognized that the right to
privacy includes two primary privacy interests: seclusion and secrecy. Auto-
Owners Insurance Co. v. Websolv Computing, Inc., 580 F.3d 543, 549
(7th Cir.
2009). Courts define the right to secrecy as the right to keep certain information
confidential. Id.
(defining primary privacy interests). Courts define the right to
seclusion as the right to be left alone and protecting a person from another’s prying
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into their physical boundaries or affairs. Id.; Lovgren v. Citizens First National
Bank of Princeton, 126 Ill. 2d 411, 416-17
(1989) (applying allegations in
complaint to analysis of the right to seclusion).
¶ 46 We note that Sekura’s complaint alleges that Krishna violated the Act by
disclosing her biometric identifiers and information to SunLync. We also note that
the Act codifies (1) an individual’s right to privacy in their biometric identifiers—
fingerprints, retina or iris scans, voiceprints, or scans of hand or face geometry—
and (2) an individual’s right to privacy in their biometric information—information
based on an individual’s biometric identifiers that is then used to identify an
individual. See 740 ILCS 14/10 (West 2018); see also Rosenbach v. Six Flags
Entertainment Corp., 2019 IL 123186, ¶ 33
(“General Assembly has codified that
individuals possess a right to privacy in and control over their biometric identifiers
and biometric information”). We find that the Act protects a secrecy interest—here,
the right of an individual to keep his or her personal identifying information like
fingerprints secret. See 740 ILCS 14/15(d) (West 2018); Meegan v. NFI Industries,
Inc., No. 20 C 465, 2020 WL 3000281
, at *3 (N.D. Ill. June 4, 2020) (applying
section 13-201 of the Code of Civil Procedure (735 ILCS 5/13-201 (West 2018))
to “the dissemination of private information prohibited by [the Act]”). Under the
Act, disclosing a person’s biometric identifiers or information without their consent
or knowledge necessarily violates that person’s right to privacy in biometric
information. Dixon v. Washington & Jane Smith Community—Beverly, No. 17 C
8033, 2018 WL 2445292
, at *9 (N.D. Ill. May 31, 2018). Accordingly, we find that
Sekura’s assertion that Krishna shared her biometric identifiers and information
with SunLync alleges a potential violation of Sekura’s right to privacy within the
purview of West Bend’s policies.
¶ 47 4. West Bend’s Duty to Defend
¶ 48 Having construed the terms in West Bend’s policies, we next determine whether
the allegations in Sekura’s complaint fall within or potentially within West Bend’s
policies’ coverage for a personal injury or an advertising injury. See Pekin
Insurance Co. v. Wilson, 237 Ill. 2d 446, 455
(2010) (declaratory judgment rules
require us to determine whether the factual allegations in the underlying complaint
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fall within or potentially within the insurance policies’ coverage); see also Koloms,
177 Ill. 2d at 479
.
¶ 49 First, we consider whether the allegations in Sekura’s complaint potentially
allege that there was a personal injury or an advertising injury. West Bend’s policies
define personal injury and advertising injury as an injury, other than bodily injury,
arising out of an oral or written publication of material that violates a person’s right
of privacy. Sekura’s complaint does not allege she suffered bodily injury, a
sickness, or disease from Krishna’s sharing her biometric identifiers and biometric
information with SunLync. Sekura’s complaint alleges “Sekura has suffered
emotional upset, mental anguish, and mental injury” from Krishna’s collecting and
sharing her biometric identifiers and biometric information with SunLync.
Therefore, the allegations in Sekura’s complaint that Krishna shared her biometric
identifiers and information with SunLync allege or potentially allege that Sekura
suffered a personal injury that comes within the purview of West Bend’s policies.
¶ 50 Second, we address whether the allegations in Sekura’s complaint establish that
there was a publication. A publication occurs when information is shared with a
single party. See, e.g., Oxford English Dictionary Online, www.oed.com/view/
Entry/154060 (last visited May 12, 2021) [https://perma.cc/35H3-UF7N]. Sekura
alleges in her complaint that her biometric identifiers and information were shared
with SunLync. Therefore, we find that the allegations in Sekura’s complaint
alleging that Krishna shared Sekura’s biometric identifiers and information with
SunLync fall within or potentially within the definition for the term publication in
West Bend’s policies.
¶ 51 Finally, we examine whether Sekura’s complaint alleges a violation of her right
to privacy. The Act codifies persons’ right to privacy in their biometric identifiers
and information. 740 ILCS 14/10 (West 2018); see also Rosenbach, 2019 IL 123186, ¶ 33
. Sekura alleges in her complaint that her biometric identifiers and
information were shared with SunLync in violation of the Act. Here, based on the
aforementioned, we find that the allegations in Sekura’s complaint that Krishna
shared her biometric identifiers and information with SunLync fall within or
potentially within the term “right of privacy” in West Bend’s policies. Therefore,
we hold the allegations in Sekura’s complaint fall within or potentially within West
Bend’s policies’ coverage for personal injury or advertising injury because
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Sekura’s complaint contained allegations that alleged Krishna shared biometric
identifiers and information with SunLync, which was potentially a publication that
violated Sekura’s right to privacy. Accordingly, we hold West Bend has a duty to
defend Krishna.
¶ 52 C. The Violation of Statutes Exclusion
Does Not Apply to Bar Coverage
¶ 53 Next, we consider whether the violation of statutes exclusion in West Bend’s
policies bars coverage to Krishna. West Bend maintains the exclusion bars
coverage here because it applies to statutes that “prohibit the communicating of
information” and the Act limits the communication of information. Krishna and
Sekura rely on the title of the exclusion and argue that the “other than” language in
the exclusion bars coverage only for violations of statutes that regulate methods of
communication like telephone calls, faxes, and e-mails. Krishna maintains this
court should rely on the doctrine of ejusdem generis when construing the term in
the policies. West Bend argues that the doctrine of ejusdem generis does not apply
and that the “other than” language in the exclusion means statutes “different from”
the TCPA and the CAN-SPAM Act.
¶ 54 The appellate court found the violation of statutes exclusion is meant to bar
coverage for the violation of “statutes that govern certain methods of
communication, i.e., e-mails, faxes, and phone calls.” (Emphasis omitted.) 2020 IL App (1st) 191834, ¶ 42
. The appellate court also found the exclusion is not meant
to apply to “other statutes that limit the sending or sharing of certain information.”
Id.
The appellate court relied on the exclusion’s title and “the two specific statutes
listed in the exclusion” that regulate methods of communication—the TCPA
(regulating telephone calls and faxes) and the CAN-SPAM Act (regulating e-
mails). Id. ¶ 43. The appellate court found that the violation of statutes exclusion
does not apply to bar coverage to Krishna because the Act “says nothing about
methods of communication.” Id. ¶ 45.
¶ 55 The violation of statutes exclusion numbers the statutes that West Bend’s
policies do not apply to: (1) the TCPA, (2) the CAN-SPAM Act, and (3) statutes
“other than” the TCPA or CAN-SPAM Act that prohibit or limit the communication
of information. The TCPA regulates the use of certain methods of communication:
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telephone calls and faxes. Physicians Healthsource, Inc. v. Boehringer Ingelheim
Pharmaceuticals, Inc., 847 F.3d 92, 99-100
(2d Cir. 2017) (Leval, J., concurring).
The CAN-SPAM Act regulates the use of electronic mail. Gordon v. Virtumundo,
Inc., 575 F.3d 1040, 1061
(9th Cir. 2009). The Act, on the other hand, does not
regulate methods of communication but regulates the collection, use, safeguarding,
handling, storage, retention, and destruction of biometric identifiers and
information. 740 ILCS 14/5(g) (West 2018). Therefore, we find that regulating
telephone calls, faxes, and e-mails is fundamentally different from regulating the
collection, use, storage, and retention of biometric identifiers and information
(fingerprints, retina or iris scans, voiceprints, or scans of hand or face geometry).
¶ 56 Because the violation of statutes exclusion does not list the Act, we must
determine whether the “other than” language in the exclusion (1) only applies to
statutes like the TCPA (telephone calls and faxes) and the CAN-SPAM Act (e-
mails) that regulate methods of communication, as advanced by Krishna and
Sekura, or (2) if the violation of statutes exclusion applies to statutes like the Act
that regulate the collection, use, storage, and retention of biometric identifiers and
information, as advanced by West Bend.
¶ 57 The doctrine of ejusdem generis relied upon by Krishna and Sekura is a cardinal
rule of statutory and contract construction. Pooh-Bah Enterprises, Inc. v. County of
Cook, 232 Ill. 2d 463, 492
(2009). Black’s Law Dictionary states the
ejusdem generis rule is that “where general words follow an enumeration of persons
or things, by words of a particular and specific meaning, such general words are
*** to be held as applying only to persons or things of the same general kind or
class as those specifically mentioned.” Black’s Law Dictionary 517 (6th ed. 1990).
¶ 58 We begin our analysis with the fact the exclusion is titled “Violation of Statutes
that Govern E-Mails, Fax, Phone Calls or Other Methods of Sending Material or
Information.” (Emphasis added.) We note that all the items listed in the title are
methods of communication. Next, the specific words used in the exclusion are two
statutes that regulate methods of communication: the TCPA (telephone calls and
faxes) and the CAN-SPAM Act (e-mails). Here, the general words “other than”
follow the enumeration of words with a specific meaning, the TCPA and the CAN-
SPAM Act. Applying the doctrine of ejusdem generis, we construe the “other than”
language to mean other statutes of the same general kind that regulate methods of
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communication like the TCPA and the CAN-SPAM Act. Therefore, since the Act
is not a statute of the same kind as the TCPA and the CAN-SPAM Act and since
the Act does not regulate methods of communication, the violation of statutes
exclusion does not apply to the Act.
¶ 59 Moreover, to the extent that the “other than” language in West Bend’s policies
may be viewed as ambiguous, it must be construed in favor of finding coverage for
the insured. See Elmore, 2020 IL 125441, ¶ 21
. Therefore, under the doctrine of
ejusdem generis and our rules of insurance contract construction, we construe the
violation of statutes exclusion to apply only to statutes like the TCPA and the CAN-
SPAM Act, which regulate methods of communication like telephone calls, faxes,
and e-mails. We also hold that the violation of statutes exclusion in West Bend’s
policies does not bar West Bend from providing coverage to Krishna for Sekura’s
complaint. Accordingly, we hold that West Bend has a duty to defend Krishna
against Sekura’s lawsuit.
¶ 60 Next, because we have found that West Bend has a duty to defend Krishna in
this case and that the violation of statutes exclusion does not bar West Bend from
defending Krishna, there is no need to determine whether the data compromise
endorsement applies. Courts of review will not decide moot or abstract questions,
will not review cases merely to establish precedent, and will not render advisory
opinions. Peach v. McGovern, 2019 IL 123156, ¶ 64
. Moreover, courts in Illinois
will not consider issues where the result will not be affected regardless of how those
issues are decided. Id.; In re Alfred H.H., 233 Ill. 2d 345, 351
(2009). Therefore,
we will not address the remaining issue.
¶ 61 III. CONCLUSION
¶ 62 In conclusion, we find that the allegations in Sekura’s complaint fall within or
potentially within West Bend’s polices’ coverage because the underlying complaint
alleges that Sekura suffered a nonbodily personal injury or advertising injury
(emotional upset, mental anguish, and mental injury); Krishna’s alleged sharing of
Sekura’s biometric identifiers and biometric information with SunLync constitutes
a “publication” within the purview of West Bend’s policies; and Krishna’s alleged
sharing of Sekura’s biometric identifiers and biometric information (fingerprints)
with SunLync potentially violated Sekura’s right to privacy. Finally, we find that
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the violation of statutes exclusion in West Bend’s policies does not apply to the
Act. Accordingly, we hold West Bend has a duty to defend Krishna in Sekura’s
lawsuit. We affirm the judgment of the appellate court, which affirmed the
judgment of the circuit court.
¶ 63 Affirmed.
¶ 64 Cause remanded.
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