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The Collaborative Clearinghouse for Lawsuits and Other Claims Against ACE Group Insurance Companies

MARYLAND CASUALTY COMPANY et al v. COMBINED INSURANCE GROUP, LTD.

ATTENTION: It is possible that this information may no longer be current and therefore may be inaccurate. The index contains both open and closed cases and is not a complete list of cases in which an ACE Insurance Group company is involved. This information is provided to give interested persons an idea of the issues disputed in the indexed cases. For a full understanding of a case, one should read the rest of the court file, including the response. For the most up-to-date and complete information on a case, visit www.pacer.gov or contact the clerk of the relevant court.

Case Number: 
2:12-cv-06129 Search Pacer
ACE Group party(s): 
Opposing Party: 
Maryland Casualty Company
Court Type: 
Federal
US District Court: 
Eastern District of Pennsylvania
Date Filed: 
Oct 26 2012

"COUNTI TELEPHONE CONSUMER PROTECTION ACT, 47 U.S.0 & 227

18. Plaintiff incorporate the preceding paragraphs as though fully set forth herein.

19. In accordance with FRCP 23, Plaintiff brings Count I pursuant to the Telephone Consumer Protection Act, 47 U.S.C. § 227, on behalf of the following class of persons: All persons who were successfully sent one or more faxes on April 17, 2006 or April 18, 2006, about an "Ohio grand opening" for InsureDirect.com stating, "We insure everybody.. .regardless of driving record!" and offering to "quote all 30 companies with one call." Excluded from the Class are the Defendant, its employees, agents and members of the
Judiciary.

20. Commonality IFed R. Civ, P. 23 (A) (2): Common questions of law and fact apply to the claims of all class members. Common material questions of fact and law include, but are not limited to, the following:
a) Whether the Defendant sent unsolicited fax advertisements;
b) Whether the Defendant's faxes advertised the commercial availability of property, goods, or services;
c) The manner and method the Defendant used to compile or obtain the list of fax numbers to which it sent Exhibit "A" and other unsolicited faxed advertisements;
d) Whether the Defendant faxed advertisements without first obtaining the recipient's prior permission or invitation;
e) Whether the Defendant sent the faxed advertisements knowingly;
f) Whether the Defendant violated the provisions of 47 U.S.C. § 227;
g) Whether the Defendant should be enjoined from faxing advertisements in the future;
h) Whether the Plaintiff and the other members of the class are entitled to statutory damages;
i) Whether Exhibit A and Defendant's other advertisements displayed a proper opt out notice as required by 64 C.F.R.. 1200; and
j) Whether the Court should award treble damages

21. Typicality [Fed R. Civ. P. 23 (A) (3): The Plaintiff's claims are typical of the claims of all class members. The Plaintiff 'received a fax sent on behalf of the Defendant advertising goods and services of the Defendant during the Class Period. The Plaintiff are making the same claims and seeking the same relief for themselves and all class members based upon the federal statute. The Defendant has acted the same or in a similar manner with respect to the Plaintiff and all the class members.

22. Fair and Adequate Representation [Fed. R. Civ. P. 23 (A) (4): The Plaintiff will fairly and adequately represent and protect the interests of the class. They are interested in this matter, have no conflicts and have retained experienced class counsel to represent the class.

23. Need for Consistent Standards and Practical Effect of Adjudication [Fed R. C iv. P. 23 (B) (1): Class certification is appropriate because the prosecution of individual actions by class members would: a) create the risk of inconsistent adjudications that could establish incompatible standards of conduct for the Defendant, and/or b) as a practical matter, adjudication of the Plaintiff's claims will be dispositive of the interests of class members who are not parties.

24. Common Conduct [Fed R. Civ. P. 23 (B) (2): Class certification is also appropriate because the Defendant has acted and refused to act in the same or similar manner with respect to all class members thereby making injunctive and declaratory relief appropriate. The Plaintiff demand such relief as authorized by 47 U.S.C. §227.

25. Predominance and Superiority [Fed R. Civ. P. 23 (B) (3): Common questions of Iaw and fact predominate and a class action is superior to other methods of adjudication:
a) Proof of the claims of. the Plaintiff will also prove the claims of the class without the need for separate or individualized proceedings;
b) Evidence regarding defenses or any exceptions to liability that the Defendant may assert and prove will come from the Defendant's records and will not require individualized or separate inquiries or proceedings;
c) The Defendant has acted and is continuing to act pursuant to common policies or practices in the same or similar manner with respect to all class members;
d) The amount likely to be recovered by individual class members does not support protested individual litigation. A class action will permit a large number of relatively small claims involving virtually identical facts and legal issues to be resolved efficiently in one (1) proceeding based upon common proofs;
e) This case is inherently managed as a class action in that:
(i) The Defendant identified persons or entities to receive the fax transmissions and it is believed that the Defendant's computer and business records will enable the Plaintiff to readily identify class members and establish liability and damages;
(ii) Liability and damages can be established for the Plaintiff and the class with the same common proofs;
(iii) Statutory damages are provided for in the statute and are the same for all class members and can be calculated in the same or a similar manner;
(iv) A class action will result in an orderly and expeditious administration of claims and it will foster economics of time, effort and expense:
(v) A class action will contribute to uniformity of decisions concerning the Defendant's practices; and
(vi) As a practical matter, the claims of the class are likely to go unaddressed absent class certification.

26. The TCPA makes unlawful the "use of any telephone facsimile machine, computer or other device to send an unsolicited advertisement to a telephone facsimile machine..." 47 U.S.C. § 227.

27. The TCPA defines "unsolicited advertisement" as "any material advertising the commercial availability or quality of any property, goods, or services which is transmitted to any person without that person's express invitation or permission." 47 U.S.C. § 227 (a) (4).

28. The TCPA provides:
"3. Private right of action. A person may, if otherwise permitted by the laws or rules of court of a state, bring in an appropriate court of that state:
(A) An action based on a violation of this subsection or the regulations prescribed under this subsection to enjoin such violation;
(B) An action to recover actual monetary loss from such a violation, or to receive $500 in damages for each such violation, whichever is greater, or
(C) Both such actions."

29. . The TCPA is a strict liability statute, so the Defendant is liable to the Plaintiff and the other class members even if its actions were only negligent.

30. The Defendant knew or should have known that a) the Plaintiff and the other class members had not given express invitation or permission for the Defendant or anybody else to fax advertisements about the Defendant's goods or services; b) that the Plaintiff and the other class members did not have an established business relationship; c) that Exhibit "A" is an advertisement; and d) that the opt out notice did not comply with 64 C.F.R. 1200.

31. The Defendant's actions caused damages to the Plaintiff and the other class members. Receiving the Defendant's junk faxes caused the recipients to lose paper and toner consumed in the printing of the Defendant's faxes. Moreover, the Defendant's faxes used the Plaintiff's fax machines. The Defendant's faxes cost the Plaintiff time, as the Plaintiff and their employees wasted their time receiving, reviewing and routing the Defendant's illegal faxes. That time otherwise would have been spent on the Plaintiffs business activities. The Defendant's faxes unlawfully interrupted the Plaintiff's and other class members' privacy interests in being left alone. Finally, the injury and property damage sustained by Plaintiff and the other class members from the sending of Exhibit A occurred outside of Defendant's premises.

32. The Defendant violated 47 U.S.C. § 227, et seq., by transmitting Exhibit "A" to the Plaintiff and the other members of the class without obtaining their prior express permission or invitation.

WHEREFORE, Plaintiff, THE SIDING AND INSULATION CO. f/k/a THE ALUMINUM SIDING & INSULATION CO., INC., individually and on behalf of all others similarly situated, demands judgment in its favor and against Defendant, COMBINED INSURANCE GROUP LTD., as follows:.
A. That the Court adjudge and decree that the present case may be properly maintained as a class action, 'appoint the Plaintiff as the representatives of the class and appoint the Plaintiffs counsel as counsel for the class;
B. That the Court award actual monetary loss from such violations or the sum of five hundred dollars ($500.00) for each violation, whichever is greater;
C. That Court enjoin the Defendant from additional violations; and
D. That the Court award costs and such further relief as the Court may deem just and proper.

COUNT II CONVERSION

33. Plaintiff incorporate paragraphs 3 and 4, 6 through 15, and 17 as though fully set forth herein.

34. In accordance with FRCP 23, Plaintiff brings Count II for conversion under the common law for the following class of persons: All persons who on or after June 24, 2005 were sent telephone facsimile messages by or on behalf of Defendant.

35. A class action is proper in that:
(a) On information and belief the class consists of forty or more persons and is so numerous that joinder of all members is impracticable.
(b) There are questions of fact or law common to the class predominating over all questions affecting only individual class members, including:
(i) Whether Defendant engaged in a pattern of sending unsolicited faxes;
(ii) The manner and method Defendant used to compile or obtain the
list of fax numbers to which it sent Exhibit A and other unsolicited faxes; and
(iii) Whether Defendant committed the tort of conversion.

36. Plaintiff will fairly and adequately protect the interests of the other class members. Plaintiff has retained counsel who is experienced in handling class actions, and claims involving unlawful business practices. Neither Plaintiff nor Plaintiff's counsel have any interests adverse or in conflict with the class.

37 A class action is an appropriate method for adjudicating this controversy fairly and efficiently. The interest of the individual class members in individually controlling the prosecution of separate claims is small and individual actions are not economically feasible.

38. B.y sending Plaintiff and the other class members unsolicited faxes, Defendant improperly converted their fax machines, toner and paper to its own use. Defendant also converted Plaintiff's employees' time to Defendant's own use.

39. Immediately prior to the sending of the unsolicited faxes, Plaintiff and the other class members owned an unqualified and immediate right to possession of their fax machines, paper, toner, and employee time.

40. By sending the unsolicited faxes, Defendant permanently misappropriated the class members' fax machines, toner, paper, and employee time to Defendant's own use. Such misappropriation was wrongful and without authorization.

41. - Defendant knew or should have known that its misappropriation of paper, toner, and employee time was wrongful and without authorization.

42. Plaintiff and the other class members were deprived of the use of the fax machines, paper, toner, and employee time, which could no longer be used for any other purpose. Plaintiff and each class member thereby suffered damages as a result of their receipt of unsolicited faxes from Defendant.

43. Each of Defendant's unsolicited faxes effectively stole Plaintiff's employees' time because multiple persons employed by Plaintiff were involved in receiving, routing, and reviewing Defendant's unauthorized faxes. Defendant knew or should have known employees' time is valuable to Plaintiff.

44. Defendant's actions caused damages to Plaintiff and the other members of the class because their receipt of Defendant's unsolicited faxes caused them to lose paper and toner as a result. Defendant's actions prevented Plaintiff's fax machines from being used for Plaintiff's business purposes during the time Defendant was using Plaintiff's fax machines for Defendant's unauthorized purpose. Defendant's actions also cost Plaintiff employee time, as Plaintiffs employees used their time receiving, routing, and reviewing Defendant's unauthorized faxes, and that time otherwise would have been spent on Plaintiff's business activities.
WHEREFORE, Plaintiff, THE SIDING AND INSULATION CO. f/k/a THE ALUMINUM SIDING & INSULATION CO., INC., individually and on behalf of all others similarly situated, demands judgment in its favor and against Defendant, COMBINED INSURANCE GROUP LTD., as follows:
A. That the Court adjudge and decree that the present case may be properly maintained as a class action, appoint Plaintiff as the representatives of the class, and appoint Plaintiffs counsel as counsel for the class;
B. That the Court award appropriate damages;
C. That the Court award costs of suit; and
D. Awarding such further relief as the Court may deem just and proper, but in any event, not more than $75,000.00 to any individual class member."

The provided text is an excerpt from a document filed in this case. For a full understanding of the case, one should read the complete court file, including the response.

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