Thermoflex Waukegan, LLC v. Mitsui Sumitomo Insurance USA, Inc.

In an insurance coverage matter arising out of the plaintiff’s alleged violation of the Illinois Biometric Information Privacy Act, the Seventh Circuit sitting in diversity jurisdiction was tasked with determining if there was coverage under any of three insurance policies issued by the defendant, a basic policy, an excess policy, and an umbrella policy. The appellate court affirmed the judgment of the district court, concluding that there was no coverage under the basic and excess policies due to exclusionary language contained in those policies but that there was no language in the umbrella policy that would exclude coverage. The appellate court also noted that because there was at least one other policy that applied to the plaintiff’s BIPA claims, the duty to defend under the umbrella policy would only arise when the limits of that policy were exhausted. The appellate court did not address whether there was a duty to indemnify. (FLAUM and PRYOR, concurring)