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Zersen v. Pt Insurance Group

November 27, 2012


Name of Assigned Judge Ronald A. Guzman Sitting Judge if Other or Magistrate Judge than Assigned Judge



For the reasons stated herein, Plaintiff's motion for summary judgment [51-1] is denied. Underwriter's motion for summary judgment [45-1] is granted as to the TCPA claim. The Court declines to exercise supplemental jurisdiction over the IFDBPA claim and remands the case with the remaining claim to the Circuit Court of Cook County. The case is terminated and the clerk is directed to enter a Rule 58 judgment in Underwriters' favor on the TCPA claim.

O[ For further details see text below.] Docketing to mail notices.


Jerry Zersen filed the instant suit after he received an unsolicited fax on June 5, 2006. Both Zersen and defendant American Consumers Insurance Group, Ltd., n/k/a Underwriters Insurance Group, Ltd. ("Underwriters") have filed motions for summary judgment. For the reasons stated herein, the plaintiff's motion is denied and Underwriters' motion is granted as to the TCPA claim.

I. Facts

On April 7, 2009, Zersen filed his original complaint against PT Insurance Group, LLC d/b/a Performance Trust Insurance Group ("PT Insurance") in the Circuit Court of Cook County alleging causes of action under the Telephone Consumer Protection Act, 47 U.S.C. § 227 ("TCPA"), the Illinois Fraud and Deceptive Business Practices Act, 815 Ill. Comp. Stat. 505/2 ("IFDBPA"), and common law conversion. (Def.'s LR 56.1(a) Stmt., Dkt. # 47, at ¶ 6.) The original complaint names only PT Insurance as a defendant. (Id. ¶ 2.) On January 6, 2011, Zersen filed his first amended complaint ("FAC"), which added Underwriters as a defendant, but otherwise alleged the same causes of action. (Id. ¶ 8.) After two more amendments by Plaintiff, newly-added defendant Barry Powitz, who has since been voluntarily dismissed from the case, filed a notice of removal on November 7, 2011. (Notice Removal, Dkt. # 1.) The conversion claim has been dismissed (Dkt. # 21), so only the TCPA and IFDBPA claims remain pending. In addition, PT Insurance has filed for bankruptcy (Dkt. #18), so the claims against it are stayed. Moreover, while Zersen initially filed this as a class action, he now seeks only individual relief. (Pl.'s Comb. Resp. Mot. Summ. J., Dkt. # 51, n.1.)

Powitz and Michael Mikulka each have fifty percent (50%) ownership in Underwriters and Powitz was also an insurance manager for PT Insurance Group from 2004 to 2008. (Pl.'s LR 56.1(a) Stmt. Fact, ¶¶ 5-7.) Both Underwriters and PT Insurance Group were at times located at 1301 South Wolf Road, Prospect Heights, Illinois. (Id. ¶ 8.) On June 5, 2006, the date the fax was sent, Underwriters and PT Insurance were insured under the same insurance policy by Hartford Casualty Insurance Company. (Id. ¶ 13.) Additionally, both Powitz and Mikulka had check-signing authority for Underwriters. (Id. ¶¶ 9, 10.)

From August 2005 until September 2007, Caroline Abraham did business as Business to Business Solutions ("B2B"). (Id. ¶ 14.) She identified targets from a database she had purchased from InfoUSA and, after receiving a customer's approval for an advertisement, caused the document to be faxed to the targets. (Id. ¶¶ 15, 16.) Abraham did not contact the companies on the list she had obtained from the InfoUSA database to request their permission to send fax advertisements. (Id. ¶ 17.)

In 2006, Powitz, while employed by PT Insurance and half owner of Underwriters, contacted B2B to send advertisements via fax that advertised Performance Trust, which is the doing business as name for PT Insurance. (Id. ¶ 18.) Powitz sent B2B a "marketing kit" for B2B to use in creating the advertisement. (Id. ¶ 19.) The final advertisement that was approved advertised "Performance Trust" and identified its address as 1301 Wolf Road, Suite 202, Prospect Heights, Illinois, 60070. (Id. ¶ 20.)

Although Underwriters denies that B2B physically transmitted any fax advertisements and asserts that a company in Romania called Macaw sent the faxes using B2B's phone lines, Underwriters sent B2B a check for $279.20 dated May 24, 2006. (Pl.'s LR 56.1(a) Stmt. Fact, ¶ 21; Def.'s LR 56.1(b)(3) Resp., ¶ 21.) The address for Underwriters on the May 24, 2006 check is the same address listed on the approved fax that B2B caused to be transmitted. (Pl.'s LR 56.1(a) Stmt. Fact ¶ 22.)

On June 5, 2006, Zersen received the fax that was paid for by Underwriters at the fax number (847) 356-5589. (Pl.'s LR 56.1(a) Stmt. Fact, ΒΆ 24.) Prior to receiving this fax, Zersen had never done any business with ...

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