here to what passes for oral argument these days we all of us on the panel today would much prefer to be together in person but we just can't do that yet  is running our time keeping clock and it is very much like a traffic light system when you have two minutes left to go of your argument the clock will turn yellow and matter this is an insurance coverage action where the southern district of florida entered summary judgment in favor of the apple me liberty and we request this court to reverse and reaming him by way of background which case arises out of an amended underlying class action complaint filed by appellant against liberties and shirred i can for violations of the telephone consumer protection act although actual damages because it is ambiguous and because it should not apply here where the cause of action for and b for the c p a does not require an allegation or proof of invasion of way in favor of coverage and if there's any way to introvert the explosion both in favor of coverage and against coverage it should be interpreted in favor of the insured so it's not going to ask you a follow up question about the maybe the policy issue  anyway and i haven't tried to look through or do nor do i recall the language of the policy itself but the part of the decision there referred to something called the quote right of privacy which doesn't sound to me like a common law cause of action in addition to the coverage provision versus exclusion provision distinction that you're drawing is there something about a difference between an invasion of privacy which you take to become a tort and a right of privacy that was at issue in pens or well yes i mean i think this is  related statutory provisions also so it is our position that since liberty was able to draft an exclusion that excluded both common law torts and their related statutory violations that it could have done so in this case also just so i understand your position on pins or mean you can say look pins it was rightly decided but for two reasons one because it dealt with a coverage provision as opposed to exclusion provisions and two because it said  any you know what is this any publication of any material that violates a person's right to privacy you can say yes that captures a t c p ip perfectly in that it's your position just why understand that invasion of privacy is something different especially given the context situated among these rule in our favor the dissenting opinion in l a lakers stats for you know supports our argument and we urge the court to be persuaded by that analysis where the dissenting judge found judge coleman that were congress to find a cause of action based on specific and ambiguous elements what matters are the elements and not what is mentioned in the statute so where an invasion of privacy is part or you know it is part of legislative  privacy was not one of those elements and inside the court mentioned another statute a rico statute that also said look the intent of rico was to prevent organized crime but there is nothing within the elements of that statute that require proof of organized crime you just have to go by the elements and that is the sort of the basis of our position as far as the elements of the tea c p a and secondly you know as far as just looking at the language of the it was in the language itself can be found to be ambiguous because it doesn't provide fair notice and it doesn't specifically bar statutory claims based on those common law towards the would just one more question as if it let you let you talk what do you do with the recent supreme court case the barber says american association case that describes it as protecting against not quite invasions of privacy or privacy invasion pretty close well i think it goes back to the argument that look if you're going to look at what they t c p it was intended to protect and if you're going to read you know that invasion of privacy as you know being included in or just being part of any cause of action for t c p by lesions then you know i i would submit that we wouldn't prevail but i think in the coverage matter in an insurance coverage matter where you have you're analyzing more than the intent of the statute where you're looking at the allegations of the complaint where you have to look at what do you need to prove these elements of a cause of action and where the conduct that is excluded is not part of the elements of the you know the main cause of action and the fact that you need to prove the actual elements you know and there is some precedent for that like there is a case in line tree me state farm the court also examined whether exclusions for intentional a discrimination and discrimination barred coverage for a complaint which alleged discrimination and restraint of trade in violation of federal and state statute and the court said that because the plaintiffs do not need to  against the insured in order to prevail coverage should not be excluded so to the extent of the response from this complaint that are alleged to do not need to be proven in order to prove that you're entitled to remedy under the c p a we asked the court to you know look look at the other allegations and interpret you know the the exclusion in the broadest possible way in favor of coverage tamara your comment this is st off a breach of contract case and yes it's an insurance coverage case so there are necessarily some construction principles that deal with insurance contracts that we take into account  but judge nuisance questions about hands or go to the for st of two issues on whether or not the right of privacy was was part of the complaint now judge martin raised the issue of whether or not to send to you even have to get there because the st argument is a right of privacy is inherently part of a t c p a complaint and one of the arguments that the  policyholder and actually not the policyholder let's be clear the class plaintiffs on a code once assignment are raising is that it's not inherently part of a t c p a complaint and that's what makes answer and the recent bar decision important and to be clear there are two sections of the t c p a which explicitly cite privacy you don't have to go into the legislative history and the plaintiffs in the underlying privacy sort of generically and nobody disputes that t c p aims to protect privacy at some level but she her position is and i'll just put my cards on the table i find it pretty convincing that the exclusion here is a list of about a dozen common law tort one of which is invasion of privacy which has elements you know just like defamation does just like false arrest does just like malicious prosecution does just like assault do and then separately there's an exclusion for federal statutory causes of action that doesn't include the t c b a and then thirdly i suppose you do have these construction principles arrayed against you which so it's as if the law of the florida supreme court decided in the florida supreme court did not decide that this was an ambiguous issue candidly the two justices who concurred would have gone on ambiguity but the majority decision of the law of florida is that it was not an ambiguous provision that's why panza hands are matters here your honor because the supreme court of florida decided that a t c p a claim privacy and it didn't do so because of ambiguity that matters your honor because the only construction issue that treats an insurance grant differently than an exclusion is when you take into account ambiguity and construe exclusions as a result narrowly and ix and construe coverage grants broadly the supreme court refused to go there that's also totally consistent with the l a lakers decision which counsel for the plaintiffs mentioned the l a lakers decision now with an exclusion and it dealt with both legislative history as well as the statutes language and said that this is a privacy statute your honor the florida law and now i'm dealing with with the nd issue you had mentioned but florida law is very clear that an exclusion to be enforceable does not have to give a list either of statutes or suits and common law and i think it's important to run against just you know is an interpretive matter do you deny when you look at the exclusion i guess let me ask you this just sort of yes or no is that a list of common law torts if it's a list of common law torts they're also taken into account in some florida statutes as well as if he's p a which obviously is a federal statute your honor and to be clear the he c p a when referring to the ri considering georgia law not florida law but the district court dealt with an issue that was confronting courts around the country which is how do you construe privacy when some common law cases we'll tell you just for my purposes which you know that's only one rd of the purposes you carry of course but for my purposes we need to stop talking about privacy in the abstract and start talking about invasion  which you know to me sort of carries a common law connotation just like everything else that is in that list just like assault just like malicious prosecution does mean malicious prosecution you know for instance doesn't have some sort of abstract gestalt meaning something it's got a real meaning with real elements and i think that by virtue of invasion of privacy situation in this list that's a pretty strong indication that that's what the policy is you need to act exclude your honor an invasion of privacy though is precisely what the t seclusion or something like that there's a common there's a common law to work out of the violation of the right or privacy which includes the right of seclusion it can also include and it varies by state your honor but it can also include the right to have secrets not disclose those are common law rights they're not state statutes but the most part and that p c p a and pens are are recognizing that but the other thing is your honor i go to judge martin's point just to emphasize that i think obviously because we argue this that the c c p a and pens are an l a lakers which specifically dealt with an exclusion found no ambiguity found th statute itself was grounded in privacy and applied an exclusion like here you say that implicit in that the c p a is the right of privacy but the court doesn't even have to get there and the reason the court doesn't have to get there is because of what we brief and what judge martin was asking about namely your honor this complaint was filled with allegations of a breach of the right of privacy and it also mention other things yes but every single count incorporated to refer to the right of privacy and as the court knows from our briefing the exclusion which is a very broad exclusion and under florida law brought this not mean ambiguous bro defined as having a connection to a claim that is defined in this policy as the lawsuit now what we argued in the district court and also argued here is that a crime is it is clearly pure contract construction and there's nothing in the rules of insurance construction that there is this this claim is a lawsuit that alleged invasion of privacy and every count even though we argue you don't have to go to every count you have a lawsuit that's the civil proceeding to come the claim alleges an invasion of privacy and to be clear because it also implicates the allocation asked counsel whether or not it's true that the complaint has allegations of invasion of privacy throughout and her answer was she didn't draft back and point it does not the other answer of course was and you don't have to have invasion of privacy as an element of the t c p a but our exclusion does not depend on whether or not an beijing of privacy is an element important here because one under florida law it's not a sense it's a requirement and the policy holder has the power secondly if there's anything not covered and clearly there it's because of the invasion of privacy allegations in the complaint if there's anything not covered and we believe because of the breath of the arising out of or having a connection to for a claim nothing's cover but even i think the plainest would have to concede something's not covered because invasion of privacy is here so something would have to be allocated and there was no attempt to allocate this  for that there will be one hundred percent of defense provided and that's if something is covered which the policy holder hasn't shown we believe and secondly if provides for the standard in the event that a court the parties or anyone else has to allocate its relative relative legal exposure it does not shift the burden does not say the insurer now has the burden and guess i'm having a hard time figuring out why there is any middle ground with respect allocation it sounds like a mission i don't spew invasion of privacy is soley a common law tor that's not the count here and so nothing is excluded in on your view this is about the right of privacy more generally the t c p is about privacy and so everything it's how are we in it how are we how we kind of bind ourselves allocation land where some stuff is and some stuff is out i just don't quite get your honor i don't see frankly how one can read the exclusion for a claim that arises out of invasion of privacy because it doesn't have to be a claim that states a cause of action for a right of privacy hear it i agree with your honor it wait wait wait wait what system now you're answering like the sort of the erst half of the case now i'm just asking about allocation assume that mission items got a position all or nothing every nothing is excluded because this is just about invasion of understand how allocation has the any independent like because they also allege things relating to wear and tear nuisance use of batteries inconvenience and individualized damages they made a decision that they didn't want t work to do that because they were afraid that it would harm their chances of getting class action certification under rule twenty three for it to pick out the uncommon now eighty that was their decision when they made that strategic decision instead of trying to allocate for things that clear we had a value and may have been different values for different potential plaintiffs and they would have had to put on evidence of that and those things if if the screws in is not applied the way we've argued it should testimony by the attorneys who represented i can't in this case which state of that only statutory damages in a liquidated amount were were settled and that's the positions of stephanie fineman and gary harm and the statute does not require that you have to prove actual harm all it says is that if you meet the elements you are entitled to either actual harm or to five hundred dollars per violation and in this case the party settled for approximately twenty these factors are not based on policy exclusion exclusions but on certain conditions and conditions are or were florida law and that should have been released and it we should have been provided with notice about that affirmative defense and in kilowatts m  wants the southern district of florida states that an affirmative defense its one but admits to the complaint but avoids liability by new allegations of excuse justification or other negating matters so this  was you know if this is something that this is something that liberty should have raised in their answer to the original complaint we filed an amended complaint and they had time to  images or a loss to the extent that there is covered lost and uncovered lost and finally allocation is also a coverage defense which requires compliance with florida's claims of ministration statute sixty seven  s and because it is defense to coverage that otherwise exist that otherwise is not excluded by any policy explosions but it it otherwise exists but certain things prevent or there are  i will conclude my argument if the courts not have any questions right thank you very much