A federal judge has determined an insurer isn’t obligated to fund the defense of a nursing home facing a class action accusing them of violating worker’s rights under Illinois’ biometrics privacy law.
Brian Field filed a lawsuit against his former employer, Prairie Village Supportive Living, alleging it failed to meet obligations of the Biometric Information Privacy Act. Shortly thereafter, Church Mutual Insurance sought a court order declaring none of the four policies issued to Prairie Village compel it to help fund the legal defense. In an order issued Aug. 11, U.S. District Judge Charles Kocoras granted that request.
According to court documents, Prairie Village had Church Mutual policies in effect from April 2018 and April 2022, including coverage for employment practices and general liability. Church Mutual argued those policies contained exclusions exempting it from covering “violations of laws applicable to employers” and “employment related practices” and said the general liability policy had a cyber liability exclusion.
Prairie Village argued that even if Kocoras agreed with Church Mutual on the general liability policy’s exclusions, the employment practices policy would still provide protection. Kocoras said that although Illinois insurance law is construed broadly in favor of the policyholder, Church Mutual’s policies contained adequate language to establish its position.
The employment practices policy provides Church Mutual has “no duty to defend the insured against any ‘suit’ seeking payment for ‘loss’ to which this insurance does not apply,” Kocoras wrote, quoting the policy. “Church Mutual argues that the EPL coverage part clearly provides that if the at-issue loss arises solely from a claim of injury constituting a ‘wrongful employment practice’ — as Church Mutual says is the case here — only EPL coverage is relevant and no other coverage part applies. This is because the EPL coverage form provides that ‘Except for the insurance provided by this coverage form, the policy to which this coverage form is attached does not apply to any claim or ‘suit’ seeking damages arising out of any ‘wrongful employment practice.’ ”
Kocoras further said Prairie Village didn’t address that argument, nor did it say Field’s allegations don’t stem from a “wrongful employment practice” as the policy defines. That effectively rendered the general liability policy irrelevant to the Church Mutual’s motion for summary judgment.
Church Mutual argued BIPA imposes responsibilities on Prairie Village as an employer, but Prairie Village said the BIPA law should be interpreted the same as other laws enacted to protect employee rights, such as the Pregnancy Discrimination Act, Genetic Information Nondiscrimination Act and Equal Pay Act, to which the policy exclusion doesn’t apply.
“The enumerated laws proscribe discrimination in one form or another and are applicable to (although not limited to) employers,” Kocoras wrote. “The court agrees with Church Mutual that the provisions of BIPA are not ‘similar’ to any of the enumerated laws, as BIPA has nothing to do with discrimination.”
What BIPA does, Kocoras said, is impose responsibilities on any private entity, including employers, regarding collection, retention and use of personal data like fingerprints and facial scans, making it “categorically different than the enumerated exempted statutes.” Many BIPA lawsuits have addressed privacy rights between customers and businesses, such as theme parks and tanning salons.
Kocoras granted summary judgment to Church Mutual and dismissed counterclaims from Field and Prairie Village, terminating the civil case.
Church Mutual has been represented by attorneys Daniel I. Babetch and Bradley M. Jones, of the firm of Meagher + Geer, of Chicago and Minneapolis.
Prairie Village has been represented in the case by attorney James A. Slowikowski, of Dickler, Kahn, Slowikowski & Zavell, of Arlington Heights.
Field is represented by attorneys David Fish and Mara Baltabols, of the firm of Fish Potter Bolaños, of Naperville.