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AIG not obligated to defend Dish under TCPA

Posted On: Nov. 2, 2021 1:02 PM CST


Citing its own ruling in a related case, a federal appeals court affirmed a lower court ruling and said an American International Group Inc. unit had no obligation to defend or indemnify Dish Network LLC in litigation filed against it by the United States and four states under the Telephone Consumer Protection Act.

In 2009, the U.S. and California, Illinois, North Carolina and Ohio sued Englewood, Colorado-based Dish alleging its telemarketing practices violated the TCPA, according to Monday’s ruling by the 10th U.S. Circuit Court of Appeals in Denver in National Union Fire Insurance Co. of Pittsburgh v. Dish Network, LLC. 

A $210 million settlement was reached in the litigation in December 2020.

AIG unit National Union filed suit in U.S. District Court in Denver seeking a declaration it was not obligated to defend or indemnify Dish in the litigation under commercial umbrella policies it had issued to the network in 2003 and 2004.

The U.S. District Court ruled in AIG’s favor, citing a 2018 ruling by the 10th Circuit in which it had ruled in favor of Dish’s primary insurer, ACE American Insurance Co., in the same TCPA litigation.

The district court’s ruling was upheld by a three-judge appeals court panel. The appeals court’s ruling in the ACE case “controls here,” the decision said.

“Under ACE, TCPA statutory damages are uninsurable under Colorado law, and the National Union Policies do not cover injunctive relief,” the ruling said. “Because the Policies do not cover the relief sought in the Telemarketing Complaint, National Union had no duty to defend Dish in the underlying suit,” it said.

“Alternatively, National Union had no duty to defend Dish in the underlying suit because the Telemarketing Complaint did not allege a covered injury, the ruling said, in affirming the lower court’s ruling.

Attorneys in the case did not respond to requests for comment.