7th Circ revives lawsuit over insurer 'agent' robocalls

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REUTERS/Tim Wimborne

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  • 7th Circuit reverses, remands case to lower court
  • Lawsuit will proceed against Chubb affiliate Federal Insurance Company, Health Insurance Innovations Inc

(Reuters) - A federal appeals court on Tuesday revived an Illinois man's lawsuit seeking to hold two companies vicariously liable for two pre-recorded unauthorized robocalls allegedly made by lead generators on their behalf as part of a telemarketing campaign to solicit health insurance.

The 7th U.S. Circuit Court of Appeals disagreed with an Illinois district court's decision last year to dismiss Christopher Bilek's complaint against Health Insurance Innovations Inc and Chubb Ltd affiliate Federal Insurance Company, finding that his allegations are sufficient to let the proposed class action proceed for now.

Bilek sued the companies in 2019 under the federal Telephone Consumer Protection Act and the Illinois Automatic Telephone Dialing Act. He alleged Federal Insurance Company contracted with Health Insurance Innovations to advertise its insurance, which itself contracted with lead generators. That made the lead generators "agents" of the companies, which are vicariously liable for the calls under the agency theories of actual and apparent authority and ratification, he said.

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The 7th Circuit panel on Tuesday, in an opinion penned by U.S. Circuit Judge Thomas Kirsch, disagreed with the district court's dismissal based on a failure to allege agency.

"While we express no view on whether Bilek will ultimately succeed in proving an agency relationship between the lead generators and either Federal Insurance Company or Health Insurance Innovations, Bilek alleges enough at the pleading stage for his complaint to move forward," the court said.

"We're pleased that the Seventh Circuit reversed and made clear that companies cannot prevent victims of illegal robocalls from having their day in court simply by hiding behind their telemarketers," Neil Sawhney of Gupta Wessler, a lawyer for Bilek, said in an email.

John Pelzer of Greenspoon Marder, who represents Health Insurance Innovations, and Christopher Wadley of Walker Wilcox Matousek, who represents Federal Insurance Company, didn't immediately respond to requests for comment.

Bilek alleged the lead generators made robocalls to sell the insurance company's insurance and that the company allowed the agents to use approved scripts and proprietary information in the calls. The court found these allegations, with others, "support the inference that Federal Insurance Company authorized the lead generators to act on its behalf and subject to its control" under the actual authority theory.

The court also found Bilek "establishes a prima facie case of personal jurisdiction over Health Insurance Innovations," disagreeing with the district court. His claims that the company directly contracted with the agents and that it "participated in the calls in real-time" support there was an agency relationship, the court said.

The case is Bilek v. Federal Insurance Company, et al, 7th U.S. Circuit Court of Appeals, No. 20-2504

For Christopher Bilek: Neil Sawhney of Gupta Wessler

For Health Insurance Innovations Inc: John Pelzer of Greenspoon Marder

For Federal Insurance Company: Christopher Wadley of Walker Wilcox Matousek

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Sara Merken reports on privacy and data security, as well as the business of law, including legal innovation and key players in the legal services industry. Reach her at sara.merken@thomsonreuters.com