Florida/Georgia Personal Injury & Workers Compensation

...The Florida Constitution is the source of jurisdiction for Florida's courts. Under article V, section 5(b), Florida circuit courts are courts of general jurisdiction. [7] As such, they are competent to hear the type of claim filed by Condon. And they do hear similar claims under section 365.1657, Florida Statutes (2001), which makes it unlawful to send unsolicited fax advertisements and provides for enforcement by the Attorney General. Because section 365.1657 was passed prior to the 1991 enactment of the TCPA, see ch....

...rely because a state's constitution provides for a trial court of general jurisdiction. In 1989, the Florida Legislature enacted a statute that prohibited certain unsolicited advertising by facsimile machine. See ch. 89-95, Laws of Fla. (codified at § 365.1657, Fla....

...(A) an action based on a violation of this subsection.... 47 U.S.C. § 227(b)(3)(A). No one suggests that Florida has any "rules of court" that expressly allow the circuit courts to entertain this federal claim. The Florida Legislature never amended section 365.1657 to create a private right of action or to give Florida courts jurisdiction over the federal claim....

...Transportation, however, has not met its burden to prove that coverage is inapplicable under any of the policy exclusions or other defenses. Transportation first alleges that coverage is excluded because Penzer’s claims actually arose from Southeast’s willful violation of a penal statute, namely, Fla. Stat. § 365.1657 ....

...torts.” Penzer, 509 F.Supp.2d at 1285 (quoting Ginsberg, 863 So.2d at 162 ). Ginsberg , however, neither affirmed Compu-pay nor discussed the applicability of its holding outside of the context of the duty to defend claims of sexual harassment. . Section 365.1657 provides that: (1) It is unlawful for any person to use a machine that electronically transmits facsimiles of documents through connection with a telephone network to transmit within this state unsolicited advertising material for the sale of any real property, goods, or services....

...Transportation, however, has not met its burden to prove that coverage is inapplicable under any of the policy exclusions or other defenses. Transportation first alleges that coverage is excluded because Penzer’s claims actually arose from Southeast’s willful violation of a penal statute, namely, Fla. Stat. § 365.1657.7 The exclusion easily and logically can be read as limited to the statute giving rise to liability, thus Transportation’s broader reading does not control....

...Rim, 269 F. Supp. 2d at 848–49; Terra Nova, 869 N.E.2d at 574–75. Transportation also alleges that the breach of contract exclusion applies because Southeast breached a contract with Nextel by failing to get Nextel’s 7 Section 365.1657 provides that: (1) It is unlawful for any person to use a machine that electronically transmits facsimiles of documents through connection with a telephone network to transmit within this state unsolicited advertis...

...1-2, ¶ 19). This paragraph is incorporated into Count I, the TCPA claim, but not Count II, the conversion claim (see id., ¶¶ 27, 37 ). With respect to the conversion claim, Florida First alleged that it is brought “[i]n accordance with Florida Statute § 365.1657” on behalf of All persons who on or after a date of four years prior to the filing of this action, were sent telephone facsimile messages by or on behalf of Defendants....

...93 at 19). In its reply, American Casualty argues for the first time that the third subsection of the Violation of Statutes exclusion also bars coverage for the conversion claim because that claim is brought “[i]n accordance with Florida Statute 365.1657” (Dkt....

...or limits the sending, transmitting, communicating or distribution of material or information.” They argue that Florida First’s use of the phrase “in accordance with” means that Florida First’s conversion claim is merely “in harmony with Section 365.1657” (id....

...Co., 969 So.2d 288, 293 (Fla.2007). Applying these principles, First Florida’s conversion claim is fairly considered to have arisen out of an alleged violation of the TCPA. Its complaint alleged that the conversion claim is brought “[i]n accordance with Florida Statute § 365.1657.” (Dkt....

...That statute makes it “unlawful for any person to use a machine that electronically transmits facsimiles of documents through connection with a telephone network to transmit within this state unsolicited advertising material for the sale of any real property, goods, or services.” Fla. Stat. § 365.1657 (emphasis added)....

...duty to defend is determined solely by the allegations against the insured, not the actual facts or the insurer’s version of the facts. See Irvine, 630 So.2d at 579-80 . ii. Subsection Three The conversion claim also arises out of Florida Statute § 365.1657. § 365.1657 makes it “unlawful for any person to use a machine that electronically transmits facsimiles of documents through connection with a telephone network to transmit within this state unsolicited advertising material for the sale of any real...

...*1315 As discussed, the only reasonable interpretation of Florida First’s allegations is that the conversion claim arises from the sending of unsolicited advertising faxes similar to Exhibit A. 4 Accordingly, the underlying complaint alleges a conversion that arose out of an alleged violation of the TCPA and § 365.1657 and therefore falls within both subsections of the Violation of Statutes Exclusion....

...o June 18, 2007 (“06-07 Policy”); June 18, 2007 to June 18, 2008, ("07-08 Policy”); June 18, 2008 to June 18, 2009, ("08-09 Policy”); June 18, 2009 to June 18, 2010, (“09-10 Policy”); June 18, 2010 to June 18, 2011, ("10-11 Policy”). . § 365.1657 does not provide for a private right of action....

...atutory reference, and therefore this issue is not ripe. Whether there is a duty to defend, however, is determined solely by the allegations against the insured. The operative complaint alleges that the conversion claim is brought in accordance with § 365.1657 and is controlling for the purposes of this declaratory judgment action....