A Milwaukee heating and air conditioning company's insurance provider must cover damages the company allegedly caused when it sent out an unsolicited "junk" fax, a state appeals court ruled Tuesday.
According to the ruling and other court documents, Atlas Heating and Sheet Metal Works, Inc., faxed a widespread advertisement in December 2005. Isaac Sawyer's business, A-1 Security Locksmiths, received one of the faxes.
Sawyer filed a federal class action lawsuit in 2010 in Milwaukee alleging Atlas violated the Telephone Consumer Protection Act, punishable by up to $500 per violation. Sawyer also contended Atlas damaged his property by consuming paper and toner and causing general wear and tear on his fax machine and violated his privacy rights.
Sawyer sued in state court that same year seeking a ruling on whether Atlas' insurance company, West Bend Mutual, is responsible for damages.
Milwaukee County Circuit Judge Timothy G. Dugan decided it did, ruling Atlas' policy says the insurance company must pay damages for injuries arising from publishing material that violates a person's privacy rights. Dugan concluded the fax was a publication and Sawyer's privacy rights were violated.
The insurance company's attorneys appealed. They argued the policy covers only individual privacy rights and Sawyer is listed in the lawsuit as doing business as A-1 Security Locksmiths, making the plaintiff a business. They also maintained the fax didn't amount to a publication.
The 1st District Court of Appeals voted 2-1 to reject those arguments. Presiding Judge Patricia S. Curly wrote for the majority that Sawyer is a person and is seeking relief for himself and all other similarly situated persons. A person is defined as a business in a number of contexts, Curly added.
As for whether the fax was a publication, Curly wrote the advertisement was transmitted printed material and communicated to the public. Federal law expressly prohibits such unsolicited fax advertisements, which means it violated Sawyer's right to be left alone, she added.
Judge Ralph Adam Fine wrote in the dissent that a privacy violation depends on a publication's content and nothing in Atlas' fax was offensive to a reasonable person. The majority opinion essentially means every piece of junk mail could be construed as a highly offensive trespass, creating a boon for class-action lawyers, Fine added.
Sawyer's attorney, Charles Barr, didn't immediately return a phone message for comment. West Bend Mutual's attorney, Jeff Leavell, said he hadn't seen the decision and had no immediate comment.
Atlas' attorney, John Slein, said the decision means the company won't have to pay any potential damages out of its own pocket.
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