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Tuesday, January 03, 2017

Ind. Decisions - 7th Circuit issues two more Indiana-related opinions late this afternoon

In Dee Frye v. Auto-Owners Insurance Company (ND Ind., Lozano), a 13-page opinion, Judge Flaum writes:

Dee Frye was injured in a car accident caused by an underinsured driver. Frye sued his insurance company for coverage, and the parties reached a partial settlement, but Frye thought he was entitled to additional payments under the policy. The district court disagreed, and awarded summary judgment to the insurer. Frye appeals, and for the reasons that follow, we reverse the decision of the district court. * * * Frye argues that § 27-7-5-2 of the Indiana Code obligates insurers who provide UIM coverage to provide such coverage in amounts equal to the limits of liability for bodily injury in general. Thus, says Frye, although the umbrella policy here purported to cap Auto-Owners’s UIM liability at $1 million, the statute required a UIM liability limit equal to the policy’s general per-incident limit of $5 million. * * *

Section 27-7-5-2(d) allowed Auto-Owners to abstain from providing UIM coverage in the umbrella policy issued to Frye’s employer. Once the insurance company elected to afford such coverage, however, it was required under § 27-7-5-2(a) to provide that coverage in limits equal to or greater than the policy’s general liability limit: $5 million. We thus agree with Frye that the latter limit applies here by operation of statutory law. * * *

For the foregoing reasons, we REVERSE the judgment of the district court and REMAND for further proceedings consistent with this opinion.

In Patriotic Veterans, Incorporat v. State of Indiana(SD Ind., Lawrence), a 6-page opinion, Judge Easterbrook writes [ILB emphasis]:
Plaintiff, a veterans’ group, contends that an anti-robocall statute, Ind. Code §24-5-14-5, violates the First Amendment to the Constitution, applied to the states by the Fourteenth Amendment. The Telephone Consumer Protection Act, 47 U.S.C. §227, which contains a similar limit, has been sustained by two circuits. See Gomez v. Campbell-Ewald Co., 768 F.3d 871 (9th Cir. 2014), affirmed on other grounds, 136 S. Ct. 663 (2016); Van Bergen v. Minnesota, 59 F.3d 1541, 1549–56 (8th Cir. 1995); Moser v. FCC, 46 F.3d 970 (9th Cir. 1995). The same circuits have approved state laws as well. See Van Bergen (sustaining a Minnesota law in addition to §227); Bland v. Fessler, 88 F.3d 729 (9th Cir. 1996) (California law). But relying on Cahaly v. LaRosa, 796 F.3d 399 (4th Cir. 2015), which found South Carolina’s antirobocall law to be unconstitutional, plaintiff maintains that Reed v. Gilbert, 135 S. Ct. 2218 (2015), made these decisions obsolete and dooms both state and federal anti-robocall statutes as instances of content discrimination. We disagree with that contention and conclude that Indiana’s law is valid. * * *

Everyone has plenty of ways to spread messages: TV, newspapers and magazines (including ads), websites, social media (Facebook, Twitter, and the like), calls from live persons, and even recorded spiels if a live operator first secures consent. Plaintiff can ask its donors and potential donors to agree to receive robocalls. Preventing automated messages to persons who don’t want their peace and quiet disturbed is a valid time, place, and manner restriction. Other circuits’ decisions, which we have cited, spell out the reasoning; repetition would be otiose. Because Indiana does not discriminate by content—the statute determines who may be called, not what message may be conveyed—these decisions have not been called into question by Reed. AFFIRMED

Posted by Marcia Oddi on January 3, 2017 06:28 PM
Posted to Ind. (7th Cir.) Decisions