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Doctors Direct Ins., Inc. v. Bochenek

Court of Appeals of Illinois, First District, First Division

August 3, 2015

DOCTORS DIRECT INSURANCE, INC., Plaintiff-Appellee,
v.
DAVID BOCHENEK, Defendant-Appellant and Beaute'e'mergente, LLC, doing business as McAdoo Comestic Surgery, Defendant

Page 117

Appeal from the Circuit Court of Cook County. No. 13 CH 26258. Honorable Franklin Ulyses Valderrama, Judge Presiding.

For PLAINTIGG-APPELLEE: Charles A. Valente, William D. Nagel, KRASNOW SAUNDERS KAPLAN & BENINATI, LLP, Chicago, IL.

For DEFENDANT-APPELLANT: Daniel A. Edelman, Cathleen M. Combs, James O. Latturner, Rebecca A. Cohen, EDELMAN, COMBS, LATTURNER & GOODWIN, LLC, Chicago, Illinois.

JUSTICE CONNORS delivered the judgment of the court, with opinion. Presiding Justice Delort and Justice Harris concurred in the judgment and opinion.

OPINION

Page 118

CONNORS JUSTICE

[¶1] Defendant, David Bochenek (Bochenek), appeals from an order of the circuit court that granted the motion of plaintiff, Doctors Direct Insurance, Inc. (Doctors Direct), for judgment on the pleadings pursuant to section 2-615(e) of the Code of Civil Procedure (the Code) (735 ILCS 5/2-615(e) (West 2012)). The circuit court found that Doctors Direct did not have a duty to defend or indemnify defendant Beaute'E'mergente, LLC, doing business as McAdoo Cosmetic Surgery (McAdoo), in a federal class action lawsuit filed by Bochenek. On appeal, Bochenek contends that McAdoo's insurance policy with Doctors Direct covers the claims in Bochenek's federal lawsuit. We affirm.

[¶2] This matter involves two federal complaints apparently filed by Bochenek--an original complaint and a first amended complaint. The two complaints are nearly the same, but the first amended complaint added an allegation that will be noted below. In his original federal complaint, in which McAdoo and others who are not parties to this appeal were named as defendants, Bochenek alleged that in September and October 2013, he received unsolicited text messages on his cellular phone. The text messages read as follows:

" 50% off Rockford area Botox, now $7/unit. Call within 4 weeks (815) 397-3373 McAdoo
Cosmetic Surgery Reply STOP to opt-out.
25% off filler, Juvederm now $450/syringe when you schedule in the next 4

Page 119

weeks. 815 397-3373 McAdoo
Cosmetic Surgery Reply STOP to opt-out.
McAdoo Cosmetic Surgery
815-397-3373:
Please reply VIP to receive inside privileged offers: Botox, fillers, product, etc. Reply STOP to opt-out."

[¶3] Bochenek further alleged in his original federal complaint that McAdoo was " responsible for making or causing the making of the text message calls," Bochenek had not authorized the calls, and Bochenek had not provided McAdoo with his cellular phone number. According to Bochenek, the text messages came from an email address associated with SolutionReach, which was " engaged in the business of marketing and selling electronic communication solutions to healthcare practices." Bochenek stated that on information and belief, the text messages were part of a " mass broadcasting."

[¶4] In his original federal complaint, Bochenek asserted that defendants violated the Telephone Consumer Protection Act (47 U.S.C. § 227 (2012)). In addition, Bochenek alleged that defendants " engaged in unfair acts and practices" that violated section 2 of the Consumer Fraud and Deceptive Business Practices Act (the Consumer Fraud Act) (815 ILCS 505/2 (West 2012)). According to Bochenek, the text message calls were contrary to Illinois public policy and public policy as established by the Telephone Consumer Protection Act.

[¶5] McAdoo had medical professional liability insurance coverage with Doctors Direct. The policy included a cyber claims endorsement, which stated:

" Subject to all terms, conditions, definitions and exclusions of the Policy, we agree to reimburse protected parties, up to the applicable limit indicated in this endorsement, for costs protected parties become legally obligated to pay as a result of a Cyber Claim for any Network Security Wrongful Act or Privacy Wrongful Act including Patient Notification Costs and Credit Monitoring Costs incurred for any Privacy Wrongful Act and for Data Recovery Costs incurred due to a Data Interference Act, including Defense Costs of a Government Investigation for a Privacy Wrongful Act." (Emphases in original.)

[¶6] The endorsement defined a cyber claim as:

" a demand for money or services as compensation, such as a claim letter, notice of attorney's lien, or a civil suit, administrative proceeding, arbitration or mediation seeking to compel such compensation in which protected parties must participate."

Additionally, a privacy wrongful act was defined as:

" any breach or violation of U.S. federal, state, or local statutes and regulations associated with the control and use of personally identifiable financial, credit or medical information, whether actual or alleged, but only if committed or allegedly committed by protected parties."

[¶7] On October 30, 2013, McAdoo notified Doctors Direct of the federal lawsuit and asserted that Bochenek's allegations triggered Doctors Direct's obligation to defend and indemnify McAdoo. McAdoo further stated that coverage was triggered by the cyber claims endorsement and the definition of a privacy wrongful act.

[¶8] On November 22, 2013, Doctors Direct filed a complaint for declaratory relief in the Cook County circuit court. Doctors Direct contended that the policy did not cover McAdoo for the claims raised in the federal lawsuit and moreover, the ...


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