ST. LOUIS — A federal judge has ruled that American Family Mutual Insurance Co. does not have a duty to defend or indemnify Vein Centers for Excellence in a Telephone Consumer Protection Act (TCPA) class action that was decertified by another judge.
U.S. District Judge Jean C. Hamilton of the Eastern District of Missouri granted the insurer's motion for summary judgment Sept. 14.
The underlying case involved St. Louis Heart Center's suit against Vein Centers, which alleged the marketing firm sent thousands of "junk faxes" in violation of the TCPA.
U.S. District Judge Catherine Perry decertified the case on July 5, finding a lack of proof of class membership.
In a suit American Family filed in 2015 seeking a declaration that coverage did not exist under its business owner's policies or the umbrella polices for Vein Centers, Hamilton sided with the insurer that damages arising from TCPA violations were excluded from its coverage.
Hamilton also agreed that American Family has no duty to pay St. Louis Heart or any other plaintiff in the class action any amount under Vein Center's policies.
When Vein Centers was initially sued – first at St. Louis County Circuit Court and then removed to federal court – it sought defense and indemnification from American Family.
Hamilton wrote that American Family satisfied its obligations under Missouri law when it issued Vein Centers correspondence, agreeing to provide a defense subject to a reservation of rights.
"American Family informed Vein Centers of specific policy provisions that might preclude coverage, and encouraged Vein Centers to consider employing its own attorney to protect its interests," Hamilton wrote. "Finally, while American Family stated that any attorney so retained would be at Vein Centers’ expense, as noted above such expense would have been subject to reimbursement from American Family if the underlying suit was found to be covered by the policy."