Authored by Jason Clouser.

The U.S. Court of Appeals for the Eleventh Circuit affirmed a District Court’s grant of summary judgment to an insurer, agreeing that the alleged violations of the Fair and Accurate Credit Card Transaction Act (FACTA) did not constitute a “publication” under the insurance policy in question and, therefore, did not trigger a duty to defend.

E.T. Limited (ETL), a restaurant operator in Miami, was covered under an insurance policy with the defendant, Essex Insurance Company (Essex), for personal and advertising injury. Essex denied coverage and refused to defend ETL when ETL was sued in state court for allegedly violating FACTA by printing more than the last five digits of customers’ credit card account numbers and/or expiration dates on consumer receipts. Essex argued that a receipt is not a “publication” and that, therefore, the claims for violation of FACTA were not covered under the policy. The District Court granted summary judgment to Essex, noting the Florida Supreme Court had recently defined “publication” to mean a “communication . . . to the public,” that is, a “public announcement.”

On appeal, ETL emphasized that the policy under consideration in this case included the phrase “publication, in any manner” as opposed to simply the term “publication” as was the case when the Florida Supreme Court addressed the issue. ETL also argued that the term “publication” was not defined in the policy and is ambiguous and, therefore, must be construed against Essex. The Eleventh Circuit rejected ETL’s argument, holding that the policy should be construed according to its plain meaning and applied the dictionary definition employed by the Florida Supreme Court. Thus, the Court concluded that “publication” did not include the consumer receipts at issue, rejecting ETL’s argument that the phrase “in any manner” expanded the definition of “publication” wide enough to include the receipts.

E.T. Limited, Inc. v. Essex Insurance Co., No. 11-11781 (11th Cir. Sept. 30, 2011).