Submitted: September 26, 2018
from United States District Court for the Eastern District of
Missouri - Eastern Division
COLLOTON, BEAM, and GRASZ, Circuit Judges.
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 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.
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.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.
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.
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.
policies contained an exclusion for the "Distribution of
Material in Violation of Statutes." Under the
Businessowners Policy,  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[.]
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.
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 ...