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G.M. Sign, Inc. v. Pennswood Partners, Inc.

2014 IL App (2nd) 121276 (Ill. App., 2014)

Words & Phrases

Choice Of Law

Trial Judge

Hon. Margaret J. Mullen

Appellate Judge

Justice McLaren


Court followed Pennsylvania law to determine that TCPA complaint did not allege an accident and therefore insurer had no duty to defend or indemnify.

Fact Summary

In an action seeking a declaratory judgment that defendant’s insurers had no duty to provide coverage for defendant in an underlying suit alleging that defendant violated the Telephone Consumer Protection Act by sending unsolicited faxes, the entry of summary judgment for defendant was reversed on the ground that under the applicable Pennsylvania law, the underlying complaint did not allege an “accident” that was covered by defendant’s policies, and pursuant to Supreme Court Rule 366(a)(5), the appellate court entered summary judgment for defendant’s insurers, the claim against one insurer for statutory bad faith under Pennsylvania law was dismissed, and the denial of the defendant’s request for accrued postsettlement interest was affirmed.

G.M. Sign filed a class action complaint against Pennswood Partners (Pennswood), for sending it unsolicited faxes.  Maryland Casualty Company (Maryland Casualty) and Assurance Company of America (Assurance) then filed a declaratory judgment action against Pennswood and G.M. Sign, seeking a declaration that their insurance policies did not provide coverage to Pennswood in the underlying lawsuit for the unsolicited faxes.  Maryland Casualty and Assurance (collectively, Zurich) are underwriting insurance companies that issued insurance policies to Pennswood.  Zurich filed a motion for summary judgment, arguing that there was no coverage under Pennsylvania law as predicted by federal courts in Pennsylvania.  Pennswood and G.M. Sign argued that Illinois law applied and that under Illinois law there was coverage.  The trial court initially granted summary judgment in favor of Zurich and against Pennswood and G.M. Sign.  However, upon Pennswood and G.M. Sign’s motion to reconsider, the trial court withdrew its order and ultimately determined that the federal decisions did not establish a conflict between Pennsylvania law and Illinois law; therefore, Illinois law applied; and, under Illinois law, Zurich had a duty to defend Pennswood.  Thus, the trial court granted summary judgment in favor of Pennswood and G.M. Sign.  The trial court subsequently denied Pennswood and G.M. Sign’s request for accrued postsettlement interest. 

Pennswood and G.M. Sign appeal the trial court’s denial of their request for accrued postsettlement interest.  We reverse in part and affirm in part.

Disagreeing with Pekin Ins. Co. v. XData Solutions, Inc., 2011 IL App (1st) 102769, and agreeing with Bridgeview Health Care Center, Ltd. v. State Farm Fire & Cas. Co., 2013 IL App (1st) 121920, Second District, court held sister state's law should be determined by referring to decisions from the federal courts, in an attempt to predict how the sister state's courts would decide the issue.