Yahoo, Inc. V. National Union Fire Insurance Company Of Pittsburgh, PA

• Published date: 23 December 2022
• Subject Matter: Insurance, Litigation, Mediation & Arbitration, Privacy, Data Protection, Insurance Laws and Products, Trials & Appeals & Compensation
• Law Firm: Lewis Brisbois Bisgaard & Smith LLP
• Author: Mr Michael Velladao and Aaron Knapp

(December 2022) - In Yahoo, Inc. v. National Union Fire Ins. Co. of Pitts. PA, 14 Cal.5th 58 (November 17, 2022), the California Supreme Court answered the following question certified by the Ninth Circuit Court of Appeals in connection with a declaratory relief action, wherein, Yahoo, Inc. ("Yahoo") contended that National Union Fire Insurance Company of Pittsburgh, PA ("National Union") was obligated to defend Yahoo against a class action alleging violation of the Telephone Consumer Protection Act ("TCPA"):

Yahoo! appealed, and the United States Court of Appeals for the Ninth Circuit certified a question of state law to this court. We granted the Ninth Circuit's request and rephrased its question (see Cal. Rules of Court, rule 8.548(f)(5)). As rephrased, we are called upon to answer the following question: "Does a commercial general liability insurance policy that provides coverage for 'personal injury,' defined as 'injury ... arising out of ... [o]ral or written publication, in any manner, of material that violates a person's right of privacy,' and that has been modified by endorsement with regard to advertising injuries, trigger the insurer's duty to defend the insured against a claim that the insured violated the [TCPA] of 1991 (47 U.S.C. ' 227) by sending unsolicited text message advertisements that did not reveal any private information?"

The Supreme Court described the potential ambiguity in the phrase "oral or written publication, in any manner, of material that violates a person's right of privacy" (the "invasion of privacy clause") as follows:

Here, it is unclear whether the restrictive clause "that violates a person's right of privacy" modifies a group of words of just a single word. Specifically, it is ambiguous whether the clause modifies the entire phrase "[o]ral or written publication, in any manner, of material" or whether it modifies only the word "material." If the former, then the intrusive way the material is published, not just its informational content, might give rise to the privacy violation at issue, and the violation would, nonetheless, be covered by the policy. Under this reading, even if the published material were something that was not in the least private (for example, weather forecasts or sports scores), its publication in a manner that violated a person's right of seclusion would still amount to a covered privacy violation. But if the clause "that violates a person's right of privacy" modifies only the word "material,"...