Ticknor et al v. Rouses Enterprises, LLC.

Filing 134

ORDER granting Evanston's 70 Motion for Summary Judgment; granting Starr's 81 Motion for Summary Judgment. Signed by Judge Susie Morgan. (Reference: All Cases)(bwn)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
ROBERT TICKNOR, et al.,
Plaintiffs

CIVIL ACTION

VERSUS

No. 12-1151
c/w 12-2964

ROUSE’S ENTERPRISES, LLC,
Defendant

SECTION “E”

ORDER AND REASONS
Before the Court are motions for summary judgment filed by Evanston Insurance
Company1 ("Evanston") and Starr Indemnity & Liability Company2 ("Starr"). Rouse's
Enterprises, LLC ("Rouse's") opposes Evanston's and Starr's motions.3 Robert Ticknor,
Matthew Russell, and Daniel Cutler, on behalf of themselves and others similarly situated
(collectively, "plaintiffs"), also filed oppositions to Evanston's and Starr's motions.4
Evanston filed a reply to the plaintiffs' opposition, and Starr filed replies to the plaintiffs'
opposition and Rouse's opposition.5
FACTUAL AND PROCEDURAL BACKGROUND
Plaintiffs filed suit against Rouse's on May 7, 2012, alleging that in April and May
2012, they each purchased groceries from Rouse’s, the operator of a chain of local grocery

1

R. Doc. 70.

2

R. Doc. 81.

3

R. Doc. 77, R. Doc. 94.

4

R. Doc. 76, R. Doc. 93.

5

R. Doc. 84, R. Doc. 106, R. Doc. 107.

1

stores.6 Plaintiffs allege they used their personal credit cards for these transactions and that
Rouse’s failed to truncate the expiration dates when it issued receipts for those
transactions.7 Plaintiffs claim other individuals have had this same experience at Rouse’s
stores across Louisiana and Mississippi, and thus seek to have this case certified as a class
action.8
Plaintiffs seek relief under the “Receipt Provision” of the Fair and Accurate Credit
Transactions Act (“FACTA”), 15 U.S.C. § 1681c(g)(3).9 Among other things, FACTA
prohibits merchants from printing certain credit and debit card information on receipts.
In particular, the Receipt Provision provides:
(g) Truncation of credit card and debit card numbers
Except as otherwise provided in this subsection,
no person that accepts credit cards or debit cards
for the transaction of business shall print more
than the last 5 digits of the card number or the
expiration date upon any receipt provided to the
cardholder at the point of the sale or transaction.
15 U.S.C. § 1681c(g)(1).
FACTA imposes civil liability for violations of the law’s provisions, including the
Receipt Provision. A negligent violation of the Receipt Provision entitles a plaintiff to
recover actual damages suffered as a result of the violation. Id. at § 1681o(a)(1). Statutory
damages are not available for negligent violations. Id. A willful violation of the Receipt

6

R. Doc. 1 at pp. 8-9.

7

Id.

8

9

Plaintiffs moved for class certification on December 24, 2013 (R. Doc. 86).
R. Doc. 1 at pp. 12-13.

2

Provision also entitles a plaintiff to recover actual damages. Id. at § 1681n(a)(1)(A). Unlike
a negligent violation, however, a willful violation allows a plaintiff to opt for statutory
damages, in lieu of actual damages, between $100 and $1,000 per consumer. Id. Statutory
damages are available even if the plaintiff does not claim to have suffered actual damage
as a result of the alleged willful violation. See, e.g., Ramirez v. Midwest Airlines, Inc., 537
F. Supp. 2d 1161, 1167-69 (D. Kan. 2008). A willful violation also makes punitive damages,
costs, and attorneys' fees available to the plaintiff in addition to actual or statutory
damages. 15 U.S.C. § 1681n(a)(2)-(3).10
Plaintiffs do not claim to have suffered any actual damage as a result of the alleged
violations. Instead, plaintiffs claim the fact that Rouse’s “knowingly, willfully, intentionally,
and reckless violated and continues to violate” the Receipt Provision entitles them to
statutory damages under 15 U.S.C. § 1681n, as well as punitive damages, costs, and
attorneys' fees.11 Finally, plaintiffs seek an order enjoining Rouse’s from violating the
Receipt Provision and directing Rouse’s to comply with the provision going forward.12
On December 14, 2012, Evanston filed a separate suit against Rouse's, seeking a
declaration that Evanston has no duty to defend Rouse's for the plaintiffs' lawsuit and owes
no coverage to Rouse's under the insurance policy between Evanston and Rouse's.13 Upon

10

The United States Supreme Court in Safeco Ins. Co. of Am. v. Burr, 551 U.S. 47 (2007)
interpreted "willful violations" under § 1681n to include any violations in reckless disregard of the
provision. As a result, a violation of FACTA in reckless disregard of the law is a willful violation, and a
plaintiff in such a case is entitled to seek statutory or actual damages, as well as punitive damages, costs,
and attorney’s fees.
11

R. Doc. 1 at p. 13.

12

Id. at p. 14.

13

12-2964, R. Doc. 1.

3

determining the Evanston's suit for a declaratory judgment and the plaintiffs' claims against
Rouse's were related, the Court consolidated the cases for purposes of discovery on April
5, 2013.14 After the cases were consolidated, Starr requested and was granted leave to file
a complaint in intervention against Rouse's.15 Starr, as Rouse's excess liability insurer, also
seeks a declaration that it owes no duty defend Rouse's and owes no coverage to Rouse's for
the claims asserted by the plaintiffs.16
Evanston and Starr both filed both motions for summary judgment that the
insurance policy Evanston issued to Rouse's provides no coverage for the claims made by
the plaintiffs and that neither insurance company owes a duty to defend those claims. The
policy Starr issued to Rouse's is an excess liability insurance policy that follows the policy
issued by Evanston to Rouse's. Thus, Starr's obligations hinge upon whether Evanston's
policy provides coverage.17
LEGAL STANDARD
Summary judgment is appropriate when "the pleadings, the discovery and disclosure
materials on file, and any affidavits show that there is no genuine issue as to any material
fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c)(2);
Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Little v. Liquid Air Corp., 37 F.3d

14

R. Doc. 32.

15

R. Doc. 41.

16

R. Doc. 44.

17

Starr's policy provides: "We will pay on behalf of the Insured, the 'Ultimate Net Loss' in excess of
the 'Underlying Insurance' .... the coverage provided by this Policy shall follow the terms, definitions,
conditions and exclusions of the applicable First Underlying Insurance Policy(ies)..." R.Doc. 81-2, p. 11
(Starr Policy No. SISCSEL01603011). The "First Underlying Insurance Policy(ies)" includes Evanston's
general commercial liability policy. See R. Doc. 70-2, p. 7 (Declarations, listing Evanston's Policy No.
3C30306 as a "First Underlying Insurance Policy").

4

1069, 1075 (5th Cir. 1994). When assessing whether a dispute as to any material fact exists,
the Court considers "all of the evidence in the record but refrains from making credibility
determinations or weighing the evidence." Delta & Pine Land Co. v. Nationwide
Agribusiness Ins. Co. 530 F.3d 395, 398 (5th Cir. 2008). All reasonable inferences are
drawn in favor of the nonmoving party, but "unsupported allegations or affidavits setting
forth ultimate or conclusory facts and conclusions of law are insufficient to either support
or defeat a motion for summary judgment." Galindo v. Precision Am. Corp., 754 F.2d 1212,
1216 (5th Cir. 1985)(internal quotations and citations omitted).
If the dispositive issue is one on which the moving party will bear the burden of proof
at trial, the moving party "must come forward with evidence which would 'entitle it to a
directed verdict if the evidence went uncontroverted at trial.'" Int'l Shortstop, Inc. v. Rally's
Inc., 939 F.2d 1257, 1263-64 (5th Cir. 1991). The nonmoving party can then defeat the
motion by either countering with sufficient evidence on its own, or "showing that the
moving party's evidence is so sheer that it may not persuade the reasonable fact-finder to
return a verdict in favor of the moving party." Id. at 1265.
If the dispositive issue is one on which the nonmoving party will bear the burden of
proof at trial, the moving party may satisfy its burden by merely pointing out that the
evidence in the record is insufficient with respect to an essential element of the nonmoving
party's claim. See Celotex, 477 U.S. at 325. The burden then shifts to the nonmoving party,
who must, by submitting or referring to evidence, set out specific facts showing that a
genuine issue exists. See id. at 324. The nonmovant may not rest upon the pleadings, but
must identify specific facts that establish a genuine issue for trial. Id. at 325; see also Little
37 F.3d at 1075 ("Rule 56 'mandates the entry of summary judgment, after adequate time
5

for discovery and upon motion, against a party who fails to make a showing sufficient to
establish the existence of an element essential to that party's case, and on which that party
will bear the burden of proof at trial.'")(citing Celotex, 477 U.S. at 332).
LAW AND ANALYSIS
A. The Policy
The parties disagree over whether coverage is provided under the "personal or
advertising injury" portion of the policy, and, if so, whether any exclusions apply. The
"personal and advertising injury" portion of the policy relied on by Rouse's and the
plaintiffs provides coverage for "[o]ral or written publication, in any manner, of material
that violates a person's right to privacy[.]"18 The Evanston Commercial General Liability
Policy, Number 3C30306-0 ("the policy"), issued to Rouse's includes the following relevant
provisions:
Coverage B - Personal and Advertising Injury Liability
1. Insuring Agreement
a. We will pay those sums that the insured becomes legally obligated
to pay as damages because of "personal and advertising injury" to which this
insurance applies. We will have the right and duty to defend the insured
against any "suit" seeking those damages. However, we will have no duty to
defend the insured against any "suit" seeking damages for "personal and
advertising injury" to which this insurance does not apply. We may, at our
discretion, investigate any offense and settle any claim or "suit" that may
result.
...
2. Exclusions
This insurance does not apply to :
a. Knowing Violation of Rights of Another
"Personal and advertising injury" caused by or at the direction of the
insured with knowledge that the act would violate the rights of another and
would inflict "personal and advertising injury."
18

R. Doc. 70-2, p. 28.

6

...
p. Distribution of Material in Violation of Statutes
"Personal and advertising injury" arising directly or indirectly out of
any action or omission that violates or is alleged to violate:
(1) The Telephone Consumer Protection Act (TCPA), including any
amendment of or addition to such law; or
(2) The CAN-SPAM Act of 2003, including any amendment of or
addition to such law; or
(3) Any statute, ordinance or regulation, other than the TCPA or
CAN-SPAM Act of 2003, that prohibits or limits the sending, transmitting,
communicating or distribution of material or information.
...
Section V - Definitions
...
14. "Personal and advertising injury" means injury, including
consequential "bodily injury", arising out of one or more of the
following offenses:
a. False arrest, detention or imprisonment;
b. Malicious prosecution;
c. The wrongful eviction from, wrongful entry into, or invasion of the
right of private occupancy of a room, dwelling or premises that a person
occupies, committed by or on behalf of its owner, landlord or lessor;
d. Oral or written publication, in any manner, of material that slanders
or libels a person or organization or disparages a person's or organization's
goods, products or services;
e. Oral or written publication, in any manner, of material that
violates a person's right of privacy;
f. The use of another's advertising idea in your "advertisement"; or
g. Infringing upon another's copyright, trade dress or slogan in your
"advertisement."19
As stated earlier, as a follow-form policy, Starr's policy adopts the conditions and
agreements of the underlying primary liability insurance policy issued by Evanston.20
Unless there is an express exception to the form of the underlying insurance, the excess
carrier (Starr) in a follow-form policy must act according to the underlying insurance
19

See R. Doc. 70-1. Emphasis added.

20

See, supra note 17.

7

policy's terms. See Orleans Parish Sch. Bd. v. Lexington Ins. Co., 99 So.3d 723, 727 (La. Ct.
App. 2012). None of the parties argues an exception to the underlying policy changes Starr's
obligations, thus Starr's obligations under the policy mirror those of Evanston's.
B. The Parties' Arguments
I. Insurers' Arguments
Evanston argues its policy does not provide coverage because Rouse's alleged FACTA
violations are not "personal or advertising injuries" arising out of "[o]ral or written
publication, in any manner, of material that violates a person's right to privacy[.]"21
Evanston maintains Rouse's alleged FACTA violations, printing expiration dates on
receipts, given only to the card holder, do not equal "publication" and publication is
required for there to be coverage. Evanston further argues, even if there was publication,
Rouse's liability resulting from plaintiffs' FACTA claims are expressly excluded as "personal
and advertising injuries" which "arise directly or indirectly out of any act 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."22 Lastly, Evanston maintains Rouse's has no coverage for plaintiffs' FACTA
claims because the policy excludes "personal and advertising injuries" that are "caused by
or at the direction of the insured with knowledge that the act would violate the rights of
another."23 Evanston asserts the allegations against Rouse's are for its willful violations of
FACTA, and thus coverage is excluded.

21

R. Doc. 70-2, p. 28.

22

R. Doc. 70-2, p. 22.

23

R. Doc. 70-2, p. 21.

8

Starr's motion for summary judgment is almost identical to Evanston's motion.24 In
addition to lodging the same arguments as Evanston, Starr also contends it is relieved from
providing coverage for claims of which Rouse's was aware during the policy period under
the "fortuity doctrine."
ii. Oppositions
Both plaintiffs and Rouse's filed oppositions to Evanston's and Starr's motions.25
Plaintiffs and Rouse's argue the alleged FACTA violations, failing to truncate credit card
expiration dates, constitute "publication" covered under the policy for "personal and
advertising injury." The plaintiffs and Rouse's assert "publication" does not require any
dissemination of information to parties other than the credit card holder. Alternatively, the
plaintiffs and Rouse's maintain the term "publication" is ambiguous, and should therefore
be interpreted against Evanston and in favor of coverage.
With respect to the exclusion for "personal and advertising injuries" which arise out
of alleged statutory violations, the plaintiffs and Rouse's argue the exclusion is ambiguous
because it effectively excludes coverage for all "oral or written publication," leads to absurd
consequences, and should be read in favor of coverage. Regarding the exclusion for
"personal and advertising injuries" which arise out of "willful" acts of the insured, plaintiffs
and Rouse's point out that a determination has not yet been made regarding whether or not
Rouse's conduct was "willful," and, as a result, Evanston and Starr cannot deny coverage
on that basis.

24

R. Doc. 81.

25

R. Doc. 76 (plaintiffs' opposition to Evanston's motion); R. Doc. 77 (Rouse's opposition to
Evanston's motion); R. Doc. 93 (plaintiffs' opposition to Starr's motion); R. Doc. 94 (Rouse's opposition to
Starr's motion).

9

Plaintiffs further argue the exclusion in Evanston's policy for statutory violations
does not apply because Rouse's alleged FACTA violations do not involve "sending,
transmitting, communicating or distribution." Alternatively, plaintiffs assert the exclusion
is ambiguous and should be interpreted in favor of coverage.
In addition to the above mentioned arguments, plaintiffs also assert Evanston and
Starr's motions for summary judgment are premature, and plaintiffs ask the Court to deny
the motions to allow additional discovery.26
C. Governing Law
Louisiana law governs the dispute over the interpretation of Evanston's policy.
Although plaintiffs' claims are based on FACTA and federal question jurisdiction, Starr and
Evanston's suits for declaratory judgment are based on diversity jurisdiction.27 A federal
court sitting in diversity jurisdiction must apply the substantive law of the forum state,
Eerie R.R. Co. v. Tompkins, 304 U.S. 64, 78, 58 S. Ct. 817, 82 L. Ed. 1188 (1938), including
its choice of law rules. Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496, 61 S. Ct.
1020, 85 L. Ed. 1477 (1941). Under Louisiana law, the provisions of an insurance policy are
interpreted in accordance with the law of the state in which the policy was delivered.
Thermo Terratech v. GDC Enviro-Solutions, Inc., 265 F.3d 329, 334 (5th Cir. 2001). Both

26

The plaintiffs seek information from Evanston relating to the circumstances in which it provides
coverage for "personal and advertising injuries" for "oral or written publications, in any manner, that
violate a person's right to privacy" under the policy. (See R.Doc. 78) Evanston filed a motion for a
protective order to prevent the plaintiffs from discovering this information (R.Doc. 71) that is pending
before Magistrate Judge Wilkinson.
27

Evanston is incorporated and has its principal place of business in Illinois. Starr is incorporated
in Texas and has its principal place of business in New York. Rouse's is a LLC and both of its members are
Louisiana citizens. Thus, under 28 U.S.C. § 1332, this Court has subject matter jurisdiction over Evanston
and Starr's claims.

10

Evanston and Starr's policies were delivered to Rouse's in Louisiana.28 Thus, Louisiana law
will apply to the interpretation of Evanston and Starr's policies issued to Rouse's.
D. Policy Coverage
i. Applicable Law
Under Louisiana law, "an insurance policy is a contract that must be construed in
accordance with the general rules of interpretation of contracts set forth in the Louisiana
Civil Code." Coleman v. Sch. Bd. of Richland Parish, 418 F.3d 511, 516 (5th Cir.
2005)(citing Am. Int'l Specialty Lines Ins. Co. v. Canal Indem. Co., 352 F.3d 254, 262 (5th
Cir. 2003)). When interpreting insurance contracts, the Civil Code requires the court to
"ascertain the common intent of the parties to the contract." Coleman, 418 F.3d at 516
(citing Mayo v. State Farm Mut. Auto. Ins. Co., 869 So.2d 96, 99 (La. 2004). As a contract,
"[w]ords and phrases used in an insurance policy are to be construed using their plain,
ordinary and generally prevailing meaning, unless the words have acquired a technical
meaning." Cadwallader v. Allstate Ins. Co. 848 So.2d 577, 580 (La. 2003)(internal
citations omitted). "An insurance policy should not be interpreted in an unreasonable or
strained manner so as to enlarge or restrict its provisions beyond what is reasonably
contemplated by the terms or so as to achieve an absurd conclusion." Carrier v. Reliance
Ins. Co., 759 So.2d 37, 43 (La. 2000).
With respect to coverage, an insured bears the burden of proving that the event
giving rise to a claim falls within the policy's terms. Doerr v. Mobil Oil Corp., 774 So.2d 119,
124 (La. 2000). However, "the insurer bears the burden of proving the applicability of an
exclusionary clause within the policy." Id. Exclusionary provisions are to be read with the
28

See R. Doc. 70-2, p. 13; R. Doc. 81-2, p. 4.

11

entire policy, and are construed strictly against the insurer and in favor of coverage.
Coleman, 418 F.3d at 517 (citing Garcia v. Saint Bernard Parish Sch. Bd., 576 So.2d 975,
976 (La. 1991)). Ambiguities within an exclusionary provision or the policy as a whole must
be construed against the insurer and in favor of coverage. Coleman, 418 F.3d at 517 (citing
La. C.C. art. 2056, stating "[i]n case of doubt that cannot be otherwise resolved, a provision
in a contract must be interpreted against the party who furnished its text."). Whether or not
a term in an insurance policy is ambiguous is a question of law. La. Ins. Guar. Ass'n v.
Interstate Fire & Cas. Co., 630 So.2d 759, 764 (La. 1994). Any ambiguities in an insurance
policy are "resolved by ascertaining how a reasonable insurance policy purchaser would
construe the clause at the time the insurance contract was entered." Coleman, 418 F.3d at
417 (citing Breland v. Schilling, 550 So.2d 609, 610-11 (La. 1989)). This rule, known as the
"reasonable expectations doctrine," requires a court to construe an ambiguous policy "to
fulfill the reasonable expectations of the parties in light of the customs and usages of the
industry." Louisiana. Ins. Guar. Ass'n v. Interstate Fire & Casualty Co., 630 So.2d 759, 764
(La. 1994).
With respect to providing a defense, an insurer's duty to defend is broader than its
duty to indemnify. See Lamar Adver. Co. v. Cont'l Cas. Co., 396 F.3d 654, 660 (5th Cir.
2005); Selective Ins. Co. of S.E. v. J.B. Mouton & Sons, Inc., 954 F.2d 1075, 1077 (5th Cir.
1992). "The insurer's duty to defend suits brought against its insured is determined by the
allegations of the injured plaintiff's petition, with the insurer being obligated to furnish a
defense unless the petition unambiguously excludes coverage." Yount v. Maisano, 627
So.2d 148, 154 (La. 1993). An insurer's duty to defend depends on "whether any facts
pleaded in the complaint possibly fall within matters covered under the insuring clause."
12

Martco Ltd. P'ship v. Wellons, Inc., 588 F.3d 864, 872 (5th Cir. 2009)(citing Doerr v. Mobil
Oil Corp. 774 So.2d 119, 124 (La. 2000), modified on other grounds, 782 So.2d 573 (La.
2001)). The insured bears the burden on this point. Id. The court must look only to the
factual allegations in the complaint, and "statements of conclusions in the complaint that
are unsupported by factual allegations will not trigger a duty to defend." Jensen v.
Snellings, 841 F.2d 600, 612 (5th Cir. 1988)(citing Guidry v. Zeringue, 379 So. 2d 813, 816
(La. Ct. App. 1980)). "The duty to defend is determined solely from the plaintiff's pleadings
and the face of the policy without consideration of extraneous evidence." Exposition Dist.
v. BFS Diversified Prods., LLC, 49 So.3d 49, 51 (La. App. 2010). Furthermore, "allegations
in the complaint are liberally interpreted to determine whether they establish the insurer's
duty to defend." Jensen, 841 F.2d at 612.
If the complaint alleges a potentially covered event triggering an insurer's duty to
defend under the policy, the insurer then has the burden of proving that the complaint
states only facts that fall within an exclusion from coverage. Doerr, 774 So.2d at 124; La.
Maint. Servs., Inc. v. Certain Underwriters at Lloyds, 616 So.2d 1250, 1253 (La. 1993). To
prevail, the insurer must show the allegations in the complaint unambiguously fall within
one of the exclusionary clauses. Alert Centre, Inc. v. Alarm Protection Servs., Inc., 967 F.2d
161, 163 (5th Cir. 1992).
ii. FACTA Receipt Provision Violations as "Publication"
The "personal and advertising injury" portion of the policy relied on by Rouse's and
the plaintiffs provides coverage for "[o]ral or written publication, in any manner, of
material that violates a person's right to privacy[.]"29 The parties disagree over whether
29

R. Doc. 70-2, p. 28.

13

Rouse's alleged FACTA Receipt Provision violations constitute "publication" under
Evanston's policy. Although "publication" is not a defined term in the policy, Evanston and
Starr rely on an unpublished Eleventh Circuit decision, Creative Hospitality Ventures, Inc.
v. United States Liability Ins. Co., 444 Fed. Appx. 370 (11th Cir. 2011), and a decision by
the Western District of Pennsylvania, Whole Enchilada, Inc. v. Travelers Property Cas. Co.
of Am., 581 F. Supp. 2d 677 (W.D. Pa. 2008), in support of their motions. Both cases held
alleged FACTA violations did not constitute "publication" and were not covered by the
insurer's general commercial liability policy.
In Creative Hospitality, the insurer's policy contained a policy provision for
"personal and advertising injury" identical to Evanston's provision.30 The Eleventh Circuit
concluded a merchant providing a receipt to a customer during a retail transaction in
violation of FACTA did not constitute "publication." Creative Hospitality pointed to
another Eleventh Circuit decision in which the Eleventh Circuit issued a certified question
to the Florida Supreme Court for it to define the term "publication." See Penzer v. Transp.
Ins. Co., 545 F.3d 1303, 1312 (11th Cir. 2008). The Florida Supreme Court, citing Webster's
Third International Dictionary, defined the term "publication" as "communication (as of
news or information) to the public: public announcement" or "the act or process of issuing
copies (as a book, photograph, or musical score) for the general distribution to the public."
Id. at 1005-6 (quoting Webster's Third New International Dictionary 1836 (1981)).
Adhering to the Florida Supreme Court's definition of "publication" in Penzer, the Eleventh
Circuit in Creative Hospitality found the alleged FACTA violations were not covered by the
30

The policy in Creative Hospitality defined "personal and advertising injury" as: "oral or written
publication, in any manner, of material that violates a person's right of privacy..." 444 Fed. Appx. 370, 371
(11th Cir. 2008)

14

insurer's policy. The Eleventh Circuit determined the receipt provided was a
"contemporaneous record of a private transaction" and the merchant "neither broadcasted
nor disseminated the receipt or the credit card information to the general public." Creative
Hospitality, 444 Fed. Appx. at 376. Evanston and Starr urge this Court to adopt the
definition of "publication" provided by the Florida Supreme Court and adopted by the
Eleventh Circuit in Creative Hospitality.
Evanston and Starr also point to Whole Enchilada, in which the Western District of
Pennsylvania interpreted a policy providing coverage for "personal and advertising injury"
defined as including injuries "arising out of ... oral, written or electronic publication of
material that appropriates a person's likeness, unreasonably places a person in a false light
or gives unreasonable publicity to a person's private life." 581 F. Supp. 2d at 693.31 The
Western District of Pennsylvania also looked to the dictionary to define "publication," and
drew from the definition of "publish": "1. a. to make generally known; b. to make public
announcement of; 2. a. to disseminate to the public; b. to produce or release for
distribution." Id. at 697 (citing Merriam-Webster Dictionary, Online Ed. (2008). The court
also pointed to the Black's Law Dictionary definition of "publication": "1. Generally, the act
of declaring or announcing to the public." Id. (citing Black's Law Dictionary, 8th Ed. at 1261
(2004)). Reading these two definitions, the Whole Enchilada court found the defendant's
alleged FACTA violations did not constitute "publication." The plaintiffs' complaint in
Whole Enchilada alleged only that information was printed on a receipt and handed to the
customer at the point of sale. Id. The court noted that a receipt is merely a "record of a point
31

Both the plaintiffs and Rouse's point out that the policy provision in Whole Enchilda is
distinguishable from the provision in Evanston's policy. The Court acknowledges the differences, however,
Whole Enchilada's discussion of the term "publication" is helpful.

15

of sale transaction" that is "provided to the customer." Id. The complaint did not allege the
merchant made the plaintiffs' information generally known, announced publicly,
disseminated to the public, or released for distribution. Id. The court also declined to read
"publication" broadly as to include "production or releas[ing] for distribution." Id.
Accordingly, the court found there was no publication and no coverage for plaintiffs' FACTA
claims under the policy. Id.
Plaintiffs and Rouse's both encourage this Court to adopt a broader definition of
"publication." They argue "publication" is also defined as "to produce or release for
publication; specifically: print" and does not require publication to a third party.32 Plaintiffs
and Rouse's assert the mere fact that the alleged FACTA violations involve printing brings
the conduct within this definition of "publication." The cases cited by the plaintiffs and
Rouse's involve coverage for violations of the Telephone Consumer Protection Act (TCPA)
by "blast faxing."33 The TCPA prohibits the "use [of] any telephone facsimile machine,
computer, or other device to send, to a telephone facsimile machine, an unsolicited
advertisement." 27 U.S.C. §227(b)(1)(C). Blast faxing is the practice of faxing unsolicited
advertisements to recipients without their consent and is prohibited by the TCPA. Park
Univ. Enterp., Inc. v. Am. Cas. Co., 442 F.3d 1239, 1242 (10th Cir. 2006).
The purpose of the TCPA is to protect the privacy of individuals from receiving

32

2005)

See, e.g., Hooters of Augusta, Inc. v. Am. Global Ins. Co., 157 Fed. Appx. 201, 207 (11th Cir.

33

See W. Rim Inv. Advisors Inc. v. Gulf Ins. Co., 96 Fed. Appx. 960 (5th Cir. 2005)(unpub.), aff'g
W. Rim Inv. Advisors Inc. v. Gulf Ins. Co., 269 F. Supp. 2d 836, 847 (N.D. Tex. 2003); Universal
Underwriters Ins. Co. v. Lou Fusz Auto. Network, Inc., 401 F.3d 876 (8th Cir. 2005); Hooters of Augusta,
Inc. v. Am. Global Ins. Co., 157 Fed. Appx. 201 (11th Cir. 2005); Park University Enterprises, Inc. v.
American Cas. Co., 442 F.3d 1239 (10th Cir. 2006); Zurich Am. Ins. Co. v. Fieldstone Mort. Co., 2007 WL
3268460 (D. Md. Oct. 26, 2007).

16

unsolicited faxed advertisements. See, e.g., Park University Enterprises, Inc. v. American
Cas. Co. 442 F.3d at 1249. As a result, no publication to a third party is necessary for the
right of privacy to be violated. W. Rim Inv. Advisors, Inc., 269 F. Supp. 2d at 864-47
(finding an intrusion upon seclusion can violate an individual's right to privacy, and thus
a privacy violation does not necessarily require a publication to a third party). The cases
cited by the plaintiffs and Rouse's held that sending unsolicited faxed advertisements
constitutes "publication" because the advertisements were disseminated to the public and
"made generally known" in violation of the recipients' privacy right to be left alone. See,
e.g., Hooters of Augusta, Inc. v. Am. Global Ins. Co., 157 Fed. Appx. at 207.34
Unlike blast faxing, the transactions giving rise to the plaintiffs' FACTA claims do not
involve mass distribution of material to the general public or an intrusion into an
individuals' right to be left alone. The transactions at issue were initiated by the plaintiffs,
the receipts were provided only to the customer, and the receipts contained information
the plaintiffs already possessed. The plaintiffs' right to be left alone was not intruded upon
by Rouse's alleged FACTA violations.35 The court in Creative Hospitality explained the
difference between blast faxing under the TCPA and FACTA violations :
[the insured] allegedly violated FACTA by issuing a credit card receipt to a
costumer that contained more than five digits of the consumer's credit card
number or the card's expiration date. The receipt is a contemporaneous
34

To the contrary, the Seventh and Fourth Circuits have held violations of the TCPA do not fall
within an insurer's policy covering "publication" that "violates a person's right to privacy" because TCPA
violations do not involve divulging or sharing of private information to third parties. Those courts
recognized an individuals' privacy right to be left alone, but declined to extend the definition of
"publication" to circumstances in which information was not shared with a third party. See Resource
Bankshares Corp. v. St. Paul Mercury Ins. Corp., 407 F.3d 631, 640-41 (4th Cir. 2005); Am. States Ins.
Co. v. Capital Assocs. of Jackson County, Inc., 392 F.3d 939, 942-43 (7th Cir. 2004).
35

The Court notes that FACTA was enacted to prevent intrusions into consumers' privacy and
identity theft. However, the plaintiffs do not claim their identity was stolen as a result of Rouse's alleged
FACTA violations.

17

record of a private transaction between [the insured] and the customer, and
[the insured] neither broadcasted nor disseminated the receipt or the credit
card information to the general public. Indeed, [the insured] provided the
receipt only to the customer (who already knows the credit card number and
its expiration date). Additionally, unlike the unsolicited "blast-faxes" at issue
in [a TCPA case], the aggrieved customer initiated the transaction by paying
for his meal with a credit card. In sum, providing a customer a
contemporaneous record of a retail transaction involves no dissemination of
information to the general public and does not constitute publication within
the meaning of [the insurer's] policy.
Creative Hospitality, 444 Fed. Appx. at 376. The broad definition of "publication" used by
some courts in the context of TCPA violations is not applicable in this case.
Plaintiffs and Rouse's alternatively maintain the term "publication" is ambiguous
and, as a result, the Court is required to interpret the policy against the insurers and in
favor of coverage. Courts utilize a "strict construction rule" in Louisiana and a policy is
construed against the insurer and in favor of coverage only when an "ambiguous policy
provision is susceptible to two or more reasonable interpretations." Cadwallader, 848
So.2d at 580 (emphasis added). For the rule of strict construction to apply, the insurance
policy must be not only susceptible to two or more interpretations, but each of the
alternative interpretations must be reasonable. Id. Whether or not a term in an insurance
policy is ambiguous is a question of law. La. Ins. Guar. Ass'n v. Interstate Fire & Cas. Co.,
630 So.2d at 764.
An insurer's failure to define a term in a policy does not automatically render it
ambiguous. Sumner v. Mathes, 52 So.3d 931, 935 (La. Ct. App. 2010). "The rules of
construction do not authorize a perversion of the words or the exercise of inventive powers
to create an ambiguity where none exists." Mayo v. State Farm Mut. Auto. Ins. Co., 869
So.2d 96, 99-100 (La. 2004)(citing Cadwallader, 848 So.2d at 580). The Court finds that
the term "publication" as used in the Evanston policy is not ambiguous. Instead, it is used

18

in its ordinary, plain meaning and has only one reasonable interpretation.36
Although the decisions in Whole Enchilada and Creative Hospitality are not binding
on this Court, they are instructive. Both courts examined the exact issue presented by
Evanston's and Starr's motions - whether alleged FACTA violations involving receipts
provided only to the card holders amount to "publication." Furthermore, although the
policy discussed in Whole Enchilada had a slightly different provision regarding "violation
of a person's right to privacy,"37 the Court finds the Western District of Pennsylvania's
holding, which focused on the definition of "publication," persuasive.
The parties do not cite, and the Court cannot find, any other cases discussing
coverage of similar FACTA violations under similar policy provisions. Plaintiffs and Rouse's
do not point to any cases which contradict Whole Enchilada and Creative Hospitality. Nor
do they point to any Louisiana decisions defining or interpreting the word "publication" for
insurance coverage purposes.
The Louisiana Supreme Court instructs courts to give words their plain, ordinary,
and generally prevailing meaning. See Cadwallader, 848 So.2d at 58. The plain and
generally accepted meaning of the term "publication" is found under the dictionary
definition of "publish": "1. a.: to make generally known b.: to make public announcement
of; 2. a.: to disseminate to the public b.: to produce or release for distribution." Merriam

36

Although the decisions in Whole Enchilada and Creative Hospitality are not binding on this
Court, the fact that neither of these courts found the term "publication" ambiguous is also persuasive. See
Whole Enchilada, 581 F. Supp. 2d at 668; Creative Hospitality, 444 Fed. Appx. at 376.
37

Evanston's policy covers "personal and advertising injury arising from "oral or written
publication, in any manner, of material that violates a person's right to privacy." The policy at issue in
Whole Enchilada covered "personal and advertising injury" arising out of "oral, written or electronic
publication of material that appropriates a person's likeness, unreasonably places a person in a false light
or gives unreasonable publicity to a person's private life."

19

Webster Dictionary, Online Ed. (2014)(last visited January 22, 2014). Black's Law
Dictionary defines "publication" as "[g]enerally, the act of declaring or announcing to the
public." Black's Law Dictionary, 9th Ed. (2009). Accordingly, this Court holds that for there
to be "publication" under the "personal and advertising" provision of the Evanston
insurance policy, the material must be made generally known, announced publicly,
disseminated to the public, or released for distribution. Only the plaintiffs and the putative
class members were provided receipts and only for their own personal transactions.38
Rouse's alleged FACTA violations do not constitute "publication" under the plain meaning
of that term adopted herein.
Because the Court has determined the term "publication" as used in the Evanston
policy is unambiguous and does not provide coverage unless there is publication to a third
party, Rouse's alleged FACTA violations are not covered by the "personal or advertising
injury" provision in Evanston's policy. As there is no coverage, there is no duty to defend
and the Court need not reach whether any exclusion applies.
E. Additional Discovery
In their oppositions, plaintiffs suggest a ruling on Evanston's and Starr's motions
would be premature because plaintiffs need additional time to conduct more discovery.
Under Federal Rule of Civil Procedure 56(d),39 a non-movant on summary judgment may
request a continuance for further discovery. In order to obtain a Rule 56(d) continuance,
the non-movant must "show[] by affidavit or declaration that, for specified reasons, it

38

R. Doc. 1, pp. 9, 12.

39

Rule 56 was amended in 2010, and subsection 56(d) carries forward without substantial change
the provisions of former subsection 56(f).

20

cannot present facts essential to justify its opposition." Fed. R. Civ. P. 56(d).40 However,
Rule 56(d) "may not be invoked by the mere assertion that discovery is incomplete; the
opposing party must demonstrate how the [requested discovery] will enable him to rebut
the movant's allegations of no genuine issue of material fact." Leatherman v. Tarrant
County Narcotics Intelligence and Coordination Unit, 28 F.3d 1388, 1396 (5th Cir.
1994)(citation and internal quotation marks omitted). "[A] plaintiff's entitlement to
discovery prior to ruling on a motion for summary judgment is not unlimited, and may be
cut off when the record shows that the requested discovery is not likely to produce the facts
needed by the plaintiff to withstand a motion for summary judgment." Washington v.
Allstate Ins. Co., 901 F.2d 1281, 1285 (5th Cir. 1990).
Plaintiffs have not shown how the requested discovery will enable them to defeat the
summary judgment motions. Plaintiffs' counsel attached a declaration stating that
plaintiffs' discovery requests "bear on the central issue" of coverage.41 However, plaintiffs
cannot rely on "vague assertions that discovery will produce needed, but unspecified, facts"
to obtain a Rule 56(d) continuance. Green v. CCS Energy Services, LLC 2008 WL 5157505,
at *6 (citing Washington v. Allstate Ins. Co., 901 F.2d at 1285). Furthermore, the discovery
plaintiffs seek concerns circumstances in which Evanston excludes coverage under the

40

Although plaintiffs did not submit a separate motion for a continuance under Rule 56(d), it is
settled that because of the "precautionary nature of the rule ... technical, rigid scrutiny of a Rule 56(d)
motion is inappropriate." Union City Barge Line v. Union Carbide Corp., 823 F.2d 129, 136 (5th Cir. 1987).
A Rule 56(d) continuance may be justified if the nonmovant identifies the need for a continuance in a brief
and not in an affidavit. See Arters v. Univision Radio Broad. TX, L.P., 2009 WL 1313285, at *8 n. 19 (N.D.
Tex. May 12, 2009). Therefore, Evanston's and Starr's argument that plaintiffs' 56(d) request should be
denied because it was not brought by separate motion is not persuasive. The Court notes that the language
of Rule 56(d) does not require a separate motion and plaintiffs attached an affidavit complying with the
procedural requirements of the Rule.
41

R. Doc. 93-2.

21

"personal and advertising injury" provision of its policy.42 At most, the information
plaintiffs seek may be relevant to its argument surrounding whether an exclusion in the
policy applies. Because the Court found Evanston's policy does not provide coverage for
Rouse's alleged FACTA violations and was not required to reach whether any exclusions
apply, any discovery relating to exclusions would be wholly irrelevant.
CONCLUSION
For the reasons stated above, IT IS ORDERED that Evanston's motion for
summary judgment be and hereby is GRANTED.
IT IS FURTHER ORDERED that Starr's motion for summary judgment be and
hereby is GRANTED.
New Orleans, Louisiana, this 20th day of February, 2014.
_____________________________
SUSIE MORGAN
UNITED STATES DISTRICT JUDGE

42

See R. Doc. 71. Evanston filed a motion for a protective order to prevent the plaintiffs from
discovering such information.

22