Dish not insured against TCPA penalties – 10th Circuit - Reuters

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The Dish Network logo is seen on the side of an installer truck in Denver, Colorado March 2, 2009. REUTERS/Rick Wilking

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• Dish settled claims by U.S., four states for $210 mln

(Reuters) - An AIG unit's umbrella insurance policies provided no possible coverage for claims by the U.S. government and four states that Dish Network violated federal rules against robocalling tens of millions of times between 2003 and 2011, a federal appeals court said on Tuesday.

The 10th U.S. Circuit Court of Appeals affirmed a 2020 ruling for AIG’s National Union Fire Insurance Co. of Pittsburgh, which had filed suit in 2015 for a declaration that it had no duty to defend or indemnify Dish against the governments’ lawsuit.

The 10th Circuit said damages under the Telephone Consumer Protection Act are an uninsurable penalty under Colorado law.

AIG’s attorneys at Arnold & Porter Kaye Scholer did not immediately respond to requests for comment.Dish and its attorney, Lee Epstein of Flaster Greenberg, also had no immediate response. The company denied any wrongdoing last December, when it settled the underlying lawsuit by the states and U.S. Justice Department for a combined $210 million.

The Justice Department initially sued Dish in federal court in Springfield, Illinois, in 2009, alleging that Dish and its contractors had dialed consumers on the Do Not Call Registry and had placed marketing calls using prerecorded “robocall” messages.

Dish asked National Union and its primary insurers, Ace American and Travelers, to defend it against the lawsuit and to pay any judgments that might result from it.

Travelers eventually settled with Dish for an undisclosed amount. National Union and Ace filed separate lawsuits in federal court in Colorado, where Dish is headquartered, seeking declarations that they had no duty to defend or indemnify Dish under their policies.

Ace won its lawsuit in 2016, and the 10th Circuit affirmed that judgment in 2018. The court relied on a 2008 ruling by the Colorado Supreme Court, in a non-insurance case, that TCPA statutory damages are an uninsurable penalty.

National Union filed its own motion for summary judgment in 2019. The judge granted the motion, relying heavily on the 10th Circuit’s decision for Ace.

On appeal, Dish argued that the 10th Circuit was not bound by its February 2018 decision for Ace because, that May, the Colorado Supreme Court had overturned the 2008 decision the 10th Circuit had relied on.

The 10th Circuit disagreed in an opinion by Circuit Judge Scott Matheson Jr, joined by Circuit Judges Jerome Holmes and Bobby Baldock.

The panel said the Ace decision was still good law and that the state high court’s May 2018 decision “left intact the holding we relied upon in ACE — that TCPA statutory damages are penalties under Colorado law.”

The case decided Tuesday is National Union Fire Insurance Company of Pittsburgh v. Dish Network, 10th U.S. Circuit Court of Appeals No. 20-1215.

For National Union: R. Reeves Anderson and Timothy Macdonald of Arnold & Porter Kaye Scholer

For Dish Network: Lee Epstein of Flaster Greenberg

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