E.T. Limited, Inc. v. United States Liability Insurance Company and Essex Insurance Company, 2011 U.S. App. LEXIS 19990 (11th Cir. Fla. Sep. 30, 2011)

Facts: Plaintiff-Appellant E.T. Limited, Inc., ("ETL") appealed the district court's grant of summary judgment to Defendant-Appellee Essex Insurance Company ("Essex") pertaining to an alleged violation of the Fair and Accurate Credit Card Transaction Act ("FACTA") which occurred in a restaurant when a credit card receipt revealed more than five digits of a customer's credit card number. The district court concluded that Defendant Essex's commercial general liability policy (the "Policy") imposed no duty to defend ETL in the underlying litigation in state court. Specifically, the district court concluded that Defendant Essex owed no duty to defend ETL under the Policy because ETL's issuance of a credit card receipt does not constitute a "publication" as required under the Policy's coverage for "personal and advertising" injury. The 11th Circuit agreed with the district court's finding that "publication" as used in the Policy was unambiguous and that the provision of a credit card receipt to a customer involves no "publication" within the meaning of the Policy.

  • FACTA Requirements. Section 1681c(g)(1) provides: "[N]o person that accepts credit cards or debit cards for the transaction of business shall print more than the last 5 digits of the card number or the expiration date upon any receipt provided to the cardholder atthe point of the sale or transaction."
  • FACTA Requirements. The providing of a credit card or debit card receipt to a customer fails to constitute a "publication" within the meaning of Essex's Policy. Note: the Court specifically stated that it rejected ETL's argument that the language of "publication, in any manner" was ambiguous, and instead applied the dictionary definition of "publication" as used by the Florida Supreme Court in prior case decisions that "publication" meant "communication (as of news or information) to the public: public announcement" or "the act or process of issuing copies . . . for general distribution to the public." (quoting Webster's Third New International Dictionary 1836 (1981)).
  • FACTA Requirements. The credit card receipt was a contemporaneous record of a private transaction between ETL and the customer, and ETL neither broadcasted nor disseminated the receipt or the credit card information to the general public. ETL provided the receipt only to the customer (who already knows the credit card number and its expiration date).

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