Relying in part on case law requiring courts to look to the factual background — and not the legal theories — found in an underlying complaint, a Superior Court panel has ruled an insurance company has no duty to defend an office supply company accused of sending spam faxes.

The 2-1 majority in the case reached the decision by ruling the insurance policy between the two parties considered the content of such faxes, but not issues concerning the costs associated with receiving unsolicited faxes, which was the basis for the underlying complaint. Further, the majority rejected arguments that the plaintiffs in the underlying complaint had sufficiently set forth a privacy claim because it used the Telephone Consumer Protection Act to file its complaint.

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