Filed: Sep. 15, 2015
Latest Update: Mar. 02, 2020
Summary: NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _ No. 14-2976 _ ONEBEACON AMERICA INSURANCE COMPANY v. URBAN OUTFITTERS, INC.; ANTHROPOLOGIE, INC. v. HANOVER INSURANCE GROUP Urban Outfitters, Inc.; Anthropologie, Inc., Appellants _ On Appeal from the District Court for the Eastern District of Pennsylvania (D.C. Civil No. 2-13-cv-05269) District Judge: Honorable Stewart Dalzell _ Submitted Pursuant to Third Circuit LAR 34.1(a) March 6, 2015 Before: SHWARTZ, SCIRICA, and ROTH
Summary: NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _ No. 14-2976 _ ONEBEACON AMERICA INSURANCE COMPANY v. URBAN OUTFITTERS, INC.; ANTHROPOLOGIE, INC. v. HANOVER INSURANCE GROUP Urban Outfitters, Inc.; Anthropologie, Inc., Appellants _ On Appeal from the District Court for the Eastern District of Pennsylvania (D.C. Civil No. 2-13-cv-05269) District Judge: Honorable Stewart Dalzell _ Submitted Pursuant to Third Circuit LAR 34.1(a) March 6, 2015 Before: SHWARTZ, SCIRICA, and ROTH,..
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
________________
No. 14-2976
________________
ONEBEACON AMERICA INSURANCE COMPANY
v.
URBAN OUTFITTERS, INC.; ANTHROPOLOGIE, INC.
v.
HANOVER INSURANCE GROUP
Urban Outfitters, Inc.; Anthropologie, Inc.,
Appellants
________________
On Appeal from the District Court
for the Eastern District of Pennsylvania
(D.C. Civil No. 2-13-cv-05269)
District Judge: Honorable Stewart Dalzell
________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
March 6, 2015
Before: SHWARTZ, SCIRICA, and ROTH, Circuit Judges
(Filed: September 15, 2015)
________________
OPINION*
________________
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
SCIRICA, Circuit Judge
This appeal arises out of requests for defense coverage made by Urban Outfitters,
Inc. and its subsidiary, Anthropologie, Inc. (collectively, “Urban Outfitters”) to their
insurers, OneBeacon America Insurance Company (“OneBeacon”) and the Hanover
Insurance Group (“Hanover”)1 for three putative class action lawsuits filed against Urban
Outfitters related to its collection of customer ZIP code data. Both Urban Outfitters, Inc.
and Anthropologie, Inc. are co-defendants in underlying actions Hancock v. Urban
Outfitters, Inc., No. 1:13-cv-00939 (D.D.C.) (“Hancock”) and Dremak v. Urban
Outfitters Inc., No. 37-2011-00085814-CU-BT-CTL (Cal. Super. Ct., San Diego Cty.)
(“Dremak”), and Urban Outfitters, Inc. is the sole defendant in the third underlying
action, Miller v. Urban Outfitters, Inc., No. 13-2955 (Mass. Super. Ct., Suffolk Cty.)
(“Miller”).
OneBeacon initiated this declaratory judgment action on September 10, 2013,
seeking a declaration that it owed no duty to defend or indemnify Urban Outfitters in the
underlying actions. App. Vol. II at 1. Urban Outfitters then joined Hanover as a third-
party defendant on October 25, 2013, and sought declarations that both insurers owed
Urban Outfitters duties of defense and indemnity in the actions. App. Vol. II at 54-57, 68-
70. Hanover subsequently filed an answer and counterclaim seeking a declaratory
1
OneBeacon issued Urban Outfitters combined general liability (“CGL”) and umbrella
policies for the periods July 7, 2008, to July 7, 2009, and July 7, 2009, to July 7, 2010.
OneBeacon issued a similar “fronting” policy for July 7, 2010, to July 7, 2011, for which
Hanover is the responsible insurer. Hanover issued Urban Outfitters CGL and umbrella
policies for the periods July 7, 2011, to July 7, 2012, and July 7, 2012, to July 7, 2013.
2
judgment that it had no obligation to defend or indemnify Urban Outfitters. App. Vol. II
at 84. All three parties then filed motions for summary judgment, with Urban Outfitters
seeking a determination that both insurers had a duty to defend the underlying suits, and
the insurers seeking determinations that they had no such duties. The District Court
denied Urban Outfitters’s motion and granted the insurers’ motions, declaring that neither
insurer had a duty to defend in any of the underlying actions. For the reasons that follow,
we will affirm.2
I.
The Hancock plaintiffs initiated their lawsuit in June 2013 in the United States
District Court for the District of Columbia. The complaint alleged that Urban Outfitters
“request[s] and collect[s] the customer’s ZIP code when a customer chooses to use a
credit card to make a purchase,” and that Urban Outfitters “can use the ZIP codes for [its]
own pecuniary benefit, including by engaging in direct marketing campaigns . . . by
matching the customers’ names with their ZIP codes to identify the customers’
home/business address via commercially available databases.” App. Vol. II at 92. The
plaintiffs assert two causes of action: (1) violation of District of Columbia Code §§ 47-
3153 and 47-3154, which provide that “no person shall, as a condition of accepting a
credit card as payment for a sale of goods or services, request or record the address or
telephone number of a credit card holder on the credit card transaction form,” App. Vol.
II at 100; and (2) violation of District of Columbia Code § 28-3904, which makes it
2
The District Court had jurisdiction under 28 U.S.C. § 1332(a), and we have jurisdiction
under 28 U.S.C. § 1291. Our review of a district court’s grant of summary judgment is
plenary. Alexander v. Nat’l Fire Ins. of Hartford, 454 F.3d 214, 219 n.4 (3d Cir. 2006).
3
illegal to “misrepresent as to a material fact which has a tendency to mislead; fail to state
a material fact if such failure tends to mislead; or use deceptive representations . . . in
connection with the sale of goods.” App. Vol. II at 102. The complaint alleges defendants
violated this statute because “[b]y asking for a consumer’s ZIP code when the consumer
chooses to pay by credit card, the Defendants . . . misrepresent[] . . . that provision of a
ZIP code is necessary to complete the transaction.” Id.
Urban Outfitters argues that Hanover and OneBeacon are obligated to defend this
action because the relevant policies require them to defend against any suit seeking
damages caused by “personal and advertising injury.” Each of the policies defines
“personal and advertising injury” to include injury “arising out of” “[o]ral or written
publication, in any manner, of material that violates a person’s right of privacy,” and
Urban Outfitters contends that Hancock alleges injury arising out of “publication.” See,
e.g., App. Vol. II at 338. The District Court rejected that argument, however, reasoning
that publication requires dissemination to the public at large, and the Hancock complaint
failed to allege such publication.
We agree. Although neither the policies nor the Pennsylvania Supreme Court have
defined “publication,” that does not render the term ambiguous. Rather, “[w]ords of
common usage in an insurance policy are to be construed in their natural, plain, and
ordinary sense, and we may inform our understanding of these terms by considering their
dictionary definitions.” Madison Constr. Co. v. Harleysville Mut. Ins. Co., 735 A.2d 100,
4
106 (Pa. 1999).3 The District Court cited three separate dictionary definitions of
“publication,” all of which support the conclusion that “publication” requires
dissemination to the public. This conclusion is consistent with Whole Enchilada, Inc. v.
Travelers Property Casualty Co. of America, 581 F. Supp. 2d 677, 697 (W.D. Pa. 2008),
which also held that “publication” means provision of information to the public at large.
The fact that the policies specify that “publication” may be made “in any manner” does
not alter the analysis; as the Eleventh Circuit correctly noted, the phrase “in any manner”
“merely expands the categories of publication (such as e-mail, handwritten letters, and,
perhaps, ‘blast-faxes’) covered by the [p]olicy,” but “cannot change the plain meaning of
the underlying term ‘publication.’” Creative Hosp. Ventures, Inc. v. U.S. Liab. Ins. Co.,
444 F. App’x 370, 375 (11th Cir. 2011). Accordingly, we hold that the actions of Urban
Outfitters as alleged in the Hancock complaint do not constitute “publication” within the
policy’s definition of “personal and advertising injury,” and that neither OneBeacon nor
Hanover has a duty to defend or indemnify for the Hancock action.
II.
The second action, Dremak v. Urban Outfitters, Inc., involves six consolidated
putative class actions pending in the California Superior Court in San Diego County. The
3
In a diversity case, “we apply the choice-of-law rules of the state in which the district
court sat.” Canal Ins. Co. v. Underwriters at Lloyd’s London, 435 F.3d 431, 434 (3d Cir.
2006). This action was filed in the Eastern District of Pennsylvania and thus, we apply
the Pennsylvania choice-of-law rules, which provide that an insurance policy is governed
by the law of the state in which the policy was issued and delivered. See Frog, Switch, &
Mfg. Co., Inc. v. Travelers Ins. Co.,
193 F.3d 742, 746 (3d Cir. 1999). Because the
policy was issued and delivered in Pennsylvania, App. Vol. II. at 193, 243, 310, 347,
Pennsylvania law applies.
5
plaintiffs in that action allege that Urban Outfitters “request[s] that cardholders provide
personal identification information, including their ZIP codes, during credit card
transactions, and then record[s] that information in electronic database systems.” App.
Vol. II. at 120. The complaint further alleges that Urban Outfitters “use[s] the unlawfully
collected personal identification information for business-related purposes,” including
“targeted marketing, and may also sell the personal information to other businesses.” Id.
at 120, 124. Initially, the Dremak plaintiffs asserted both statutory and common law
claims, but they later stipulated to dismissal of the common law claims, leaving a single
cause of action for violations of the Song-Beverly Credit Card Act of 1971. App. Vol. II
at 126-27, 449. Under that California statute, businesses may not:
Request, or require as a condition to accepting [a] credit card as payment in full or
in part for goods or services, the cardholder to provide personal identification
information, which the person, firm, partnership, association, or corporation
accepting the credit card writes, causes to be written, or otherwise records upon
the credit card transaction form or otherwise.
Cal. Civ. Code § 1747.08(a)(2).
The District Court concluded that although the Dremak plaintiffs alleged injuries
within the scope of the “personal and advertising injury” policy discussed above,
coverage was barred by an exclusion contained in both the OneBeacon and Hanover
policies. Specifically, the OneBeacon “Recording And Distribution Of Material Or
Information In Violation Of Law” exclusion precludes coverage for:
‘Personal and advertising injury’ arising directly or indirectly out of any action or
omission that violates or is alleged to violate . . . [a]ny federal, state or local
statute, ordinance or regulation . . . that addresses, prohibits, or limits the printing,
dissemination, disposal, collecting, recording, sending, transmitting,
communicating or distribution of material or information.
6
App. Vol. II at 221. Hanover’s policies contain a nearly identical exclusion.4
Once again, we agree with the District Court. The Dremak complaint plainly
alleges actions that purportedly violate a state statute prohibiting the collection and
recording of information. Appellants argue that the District Court overlooked the
Pennsylvania rule that factual allegations, rather than particular causes of action, control
the duty to defend. Appellants’ Br. 46-48; see Mut. Benefit Ins. Co. v. Haver, 725 A.2d
743, 745 (Pa. 1999) (“[T]he particular cause of action that a complainant pleads is not
determinative of whether coverage has been triggered. Instead it is necessary to look at
the factual allegations contained in the complaint.”). But the District Court did no such
thing. Instead, the Court looked to the factual allegations of the complaint in determining
that the complaint alleged “action[s] or omission[s]” that were alleged to violate the
Song-Beverly Credit Card Act. The fact that those same “action[s] or omission[s]” were
also alleged to give rise to common law claims (claims that were dismissed) is irrelevant
to the analysis. See, e.g., James River Ins. Co. v. Med Waste Mgmt., LLC,
46 F. Supp. 3d
1350, 1358 (S.D. Fla. 2014) (finding exclusion that barred claims “arising directly or
indirectly out of any action or omission that violates or is alleged to violate” the
Telephone Consumer Protection Act (“TCPA”) applied to common law claims “premised
4
Specifically, Hanover’s policies exclude coverage of “‘Personal and advertising injury’
arising directly or indirectly out of any action or omission that violates or is alleged to
violate . . . [a]ny statute, ordinance, or regulation . . . that prohibits or limits the sending,
transmitting, communicating or distribution of material or information.” App. Vol. II at
409.
7
on the same underlying conduct” as the TCPA claims). Accordingly, neither insurer has a
duty to defend or indemnify in the Dremak action.
III.
Finally, we turn to the Miller action. In that putative class action, originally filed
in the Suffolk County, Massachusetts Superior Court and then removed to the United
States District Court for the District of Massachusetts, plaintiffs allege that Urban
Outfitters engages in a practice of “collecting ZIP codes at checkout at its Massachusetts
stores from customers who make purchases with Credit Cards, recording that information
as part of the Credit Card transaction, and then using that information for its own
marketing and promotional purposes, including to send unsolicited marketing and
promotional materials, or ‘junk mail.’” App. Vol. II at 106-07. The Miller complaint
alleges two counts: one for violation of a Massachusetts statute that prohibits businesses
from “writ[ing], caus[ing] to be written or requir[ing] that a credit card holder write
personal identification information, not required by the credit card issuer, on the credit
card transaction form,” Mass. Gen. Laws ch. 93, § 105(a), and another for unjust
enrichment.
The District Court correctly concluded that the Miller complaint does not allege
injury arising out of publication of material that violates a person’s “right to privacy,” as
is required under the policies. The Pennsylvania Superior Court has recognized that the
privacy right that is protected under such a clause is the right to secrecy, rather than the
right to seclusion. Telecoms. Network Design v. Brethren Mut., 5 A.3d 331, 337 (Pa.
Super. Ct. 2010); see also Melrose Hotel Co. v. St. Paul Fire & Marine Ins. Co.,
432 F.
8
Supp. 2d 488, 501-02 (E.D. Pa. 2006); Am. States Ins. Co. v. Capital Assocs. of Jackson
Cty., Inc.,
392 F.3d 939, 941 (7th Cir. 2004) (“A person who wants to conceal a criminal
conviction, bankruptcy, or love affair from friends or business relations asserts a claim to
privacy in the sense of secrecy. A person who wants to stop solicitors from ringing his
doorbell and peddling vacuum cleaners at 9 p.m. asserts a claim to privacy in the sense of
seclusion.”). But the factual allegations of the Miller complaint evince a concern with
seclusion, and not secrecy. The complaint asserts that plaintiffs “have suffered an injury
as a result of Defendant’s unlawful conduct by receiving unsolicited marketing and
promotional materials, or ‘junk mail,’ from Defendant.” App. Vol. I at 110. Although the
complaint asserts that Urban Outfitters did collect plaintiffs’ ZIP code information, that
information was collected allegedly “to identify the customer’s address and/or telephone
number . . . to send unsolicited marketing and promotional materials.”
Id. at 109-10. Put
simply, the complaint does not assert harms based on the plaintiffs’ interests in keeping
their ZIP codes secret. Accordingly, it does not allege publication of material that violates
a person’s “right to privacy” under the policies, and the insurers have no duty to defend
or indemnify in the Miller action.
IV.
For the foregoing reasons, we will affirm the District Court’s order. We will tax
costs against appellants under Federal Rule of Appellate Procedure 39(a)(2).
9
