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American Family Mutual Insurance Co. v. Vein Centers For Excellence, Inc.

United States Court of Appeals, Eighth Circuit

January 3, 2019

American Family Mutual Insurance Company Plaintiff - Appellee
v.
Vein Centers for Excellence, Inc. Defendant St. Louis Heart Center, Inc. Defendant-Appellant

          Submitted: September 26, 2018

          Appeal from United States District Court for the Eastern District of Missouri - Eastern Division

          Before COLLOTON, BEAM, and GRASZ, Circuit Judges.

          GRASZ, Circuit Judge.

         American Family Mutual Insurance Company ("American Family") filed a complaint for declaratory judgment against its insured, Vein Centers for Excellence, Inc. ("Vein Centers"), disputing American Family's duty under certain policies to defend and indemnify Vein Centers in a class action lawsuit. St. Louis Heart Center, Inc. ("St. Louis Heart") was the class representative in the underlying suit against Vein Centers and was later joined as a defendant in the declaratory action. The district court[1] concluded American Family's insurance policies did not cover the claims against Vein Centers in the class action lawsuit and awarded summary judgment in favor of American Family. On appeal, St. Louis Heart argues that subject matter jurisdiction is lacking and that summary judgment in favor of American Family was improper. We affirm.

         I. Background

         In 2011, St. Louis Heart filed a class action petition against Vein Centers for sending unsolicited advertisements via facsimile to multiple recipients, alleging a violation of the Telephone Consumer Protection Act ("TCPA"), 47 U.S.C. § 227.[2]The district court granted St. Louis Heart's motion for class certification on December 11, 2013. Vein Centers subsequently moved to decertify the class and the district court granted that motion in 2017.

         The merits of the class action are not the subject of this appeal. Rather, the issue presented is whether the insurance policies of Vein Centers obligated its insurance provider, American Family, to defend and indemnify the lawsuit.

         Vein Centers tendered the lawsuit to American Family for defense and indemnification under two insurance policies: a Businessowners Policy and a Commercial Liability Umbrella Policy. American Family agreed to provide a defense to Vein Centers subject to a full reservation of rights.

         Both policies contained an exclusion for the "Distribution of Material in Violation of Statutes." Under the Businessowners Policy, [3] the relevant portion of this exclusion barred coverage for:

"Bodily injury", "property damage", or "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[.]

         In 2015, American Family filed a complaint for declaratory judgment seeking a declaration that coverage did not exist for the claims alleged in the underlying lawsuit. American Family later amended its complaint in 2016, adding St. Louis Heart as an additional defendant.

         St. Louis Heart moved to dismiss the declaratory action, claiming the district court lacked subject matter jurisdiction because the amount in controversy did not exceed $75, 000 as required for diversity jurisdiction under 28 U.S.C. § 1332. St. Louis Heart contended the class members' claims were improperly aggregated to satisfy the ...


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