appeal from the district court's decision to grant summary judgment in favor of travelers insurance coverage of this court refused the district court's decision you know this is also a diversity case so the the blow off of ohio applies to the d's there are three dates that are important in this case the first goes back to two thousand one thousand to when travelers issued a commercial general liability in two thousand and nine the companies were named in a class action in california the plaintiff inequities was universal health resources and the allegations were that the companies violated the telephone consumer protection act and the junk back prevention act by transmitting approximately six hundred and fifty thousand faxes to their customers who  there was sufficient notice of the change actually rather than the district court never really breached the underlying coverage issues because it concluded because the company and its you received notice of the changes it did not have to reach the coverage issues other than construing the unsolicited communication exclusion itself you know that there was a change in the policy that's correct so all the law will restate is that if the change in the policy was sufficiently communicated to the insured then in this case the ordinarily an insurance company doesn't have to an insurance company could expect that insured understand the policy provision however there is an exception to that rule when there is a renewal policy when there is a renewal policy if there is a reduction in coverage then the insurance company is required to provide actual notice to its insured of the change in cover and several how public or if the fall and there's a question here is whether they did provide appropriate appellate quote notice that's correct or on i think in order for actual actual notice has to include meaningful note and well they wrote a letter both through the company that is the insurance company wrote a letter to its insured and said that this was a change in the policy apparently the letter from although received didn't get given to an appropriate official or company so mile but they also accompanied that letter to the person or company that they communicated with which was the broker for the insurer and told him the same thing now that seems like a zero billion effort to give a notice to the policy is silent as to how the notice is to be provided in the situation the only notice provision other than for a claim is in the event of nonrenewable and in the event of nonrenewable travers has an obligation to name to send a notice to the first named insured on the declaration and in this case first name the church is r g h enterprises inc no notice was sent to g h enterprises and it was sent to fetch park surgical which is a d b a and is named insured along with ten or eleven other name then was also sent to the insured to bring what you're entered i'm it's not clear from the record what the legal relationship is between the broker and the insured or the broker and travel there it was sent to the broker but there's no evidence that the broker ever sent that to the company other than the fact that during discovery there was a binder  insurance paper from the broker five hundred seventy some pages in which there was a letter inserted into them but again a to see a follow in charge of procuring insurance coverage but never received it didn't know anything about his affidavit he said there was no individual at the company who knew anything about this changing and this is an important change in coverage and it's a question of whether the company itself was sufficiently diligent with respect to the receipt and communication of the notice to the officials of the company right i policy to do that your honor however the courts have said that you need to have actual notice and i think the actual notice has to be meaningful and you have to consider the context of what is being taken away from the company most cases this is that there has to be established in the roberts so again and in this case it's the factual question of whether the meaningful actual notice was given to the insured of the significant reduction in coverage and that has to be determined at a trial where the fact finder could listen to the witnesses and explore the credibility of the district court seemed to have some concern over the affidavit filed by k packer the c f o of the company where he founded the by the district court found it was carefully worded you can't really get into a credibility issue in determining an affidavit that could only be done through life as well there is a case and say of whom yeah but they got to do with the company just you know when it came to the company both companies and to the personnel where it is one communicated they got a if you've got a system at your company that doesn't communicate anything around the government that yes then it's not the insurance company's fault is it no your honor it would not be the insurance company's fault but there is no evidence that that the policy is not to read anything  please the court counsel i'm chuck's be back from minneapolis minnesota representing travelers property casualty or any of america before i get into my argument i think there are two misconceptions created by counsel's argument that i'd like to clear up the first has to do with this idea of actual the second address is something i think judge staffers already zeroed in on and that is this issue of whether the notice was sent to the first named insured into the policy or not at the address identified on the policy let me take the second one first because just after i think you've already answered half  instead it was sent to edge of park medical the policy identifies the first named insured as r g a enterprises inc d b a as per i l t a zero zero which is a reference to a policy form the policy form ohio which is exactly where the notice was sent to so it was sent to the specifically identified first named insured be a hedge park service that's who they're doing business as it will be who you expect that you would address the policy to at the address listed in the policy so this it tends to create an inference that there was a problem with the notice because it wasn't sent to r g h enterprises it's believed by the policies themselves and the record citations of the policies in the record but they're generally at r thirty six dash for tar thirty six dash a second with regard to this concept of what constitutes actual notice how so i believe is trying to make a misconception that actual notice means proof of actual receipt and reading by the person to whom it was delivered and while high a law may require actual notice it's also clear under ohio law that actual notice can be created by presumption the presumption in the common law that a letter has been received provided it is in closing in on below correctly addressed stamped in place in the mail it in this case the evidence is uncontroverted to create that common law presumption of actual notice a policy change notification in the sample language itself was placed in a novel oh it was addressed to the proper address that was placed in the mail and there's nothing in the record to contravene th dallas order on page ten of his order so the point that is before this court therefore setting aside these misconceptions is that the traveller's policies in effect at the time of this loss all contain an exclusion the unsolicited communications exclusion that precludes all coverage defense and indemnity for these claims and counsel acknowledge that if that exclusion is part of the policy then there is no coverage their claim is that judge dowd erred in determining the traveller's notification of this in addition to their policies was legal insufficient and that they presented no facts to raise any questions that they were the single issue again is dispositive the case as to travelers the other issue is whether there is in fact covered property damage or advertising injury or additional hurdles for the hello but for travellers they are simply additional grounds for a firm and as they were for a judge down rendered moot if the court firm's judge thousand germination of the exclusion was properly made part of the policy again as i alluded to the beginning of my argument the facts are undisputed that on march eleventh the two thousand and five traveler's account manager brenda when your deposit in the us mail the creates a presumption of actual receipt actual notice of appellant only evidence to rebut this presumption the parker affidavit does not dispute that the notification was sent to or received by  that m d c never got the notice nor does he say that he himself never got the notice all says and it's carefully drafted in judge dallas found this carefully draft beam to be significant because he felt that the affiant was trying to say something he could say consistent with the oh oh but without actually addressing the issue of rebutting the presumption all the affidavit says is quote the edition of the unsolicited communications it's gluten was never sent to any individual in either company and the answer to that is judged out said it more are fully that i'm going to say i'm going to say it rather directly so what the standard has nothing to do with whether it was sent to an individual after the standard has to do with whether it was properly addressed to the first named insured under the policy and in that case the facts are on disputed it doesn't say an individual didn't receive it the affidavit doesn't say an individual didn't receive it it doesn't say that it didn't make it into the hands of an individual which doesn't make any difference one way or another the lawyers so i ask you a question of course about this junk mail faxes and your mail why exactly did they start doing is this or what is the problem here you know they discovered something that they didn't lie in so they put in  know that your honor it was a risk they never intended to cover into the policy as they were originally written and they won some of those cases they lost some of those cases one of the cases that they lost was here in ohio the dainty jim case that decided that you were receipt  a facsimile that you don't want somehow constitutes an invasion of your right to privacy i'm still a little boggled by it but that's what the ohio supreme court says well that's the law so the insurance company now is what happens in a lot of situations or god sued the the  would get sued for very the right to privacy no they would never get sued for invasion right to privacy they would get sued for a violation of the telephone consumer protection act which says that i can't send a fax advertisement to you unless i have an esta business relationship with you or you've given me express consent to receive facsimiles there's not a single thing that says that this is a privacy rights violation it's intended to protect against privacy rights in fact the reason the statute was enacted was way back when before we had computers and e mails facsimile was the way to communicate and if the fax machines were tired of printing out free coupons to go bowling on thursday night that put sand in the greens of the wheels of commerce so congress decided that we're going to make it illegal to fill up people's fax machines with this advertisement unless you say you want to get them or unless i've got a business relationship with you this previously established that would give me reason believe you'd like to hear from me was nothing to the effort to her or  legitimate commerce it was exactly your honor it was enacted for the purposes of commerce and there are courts for example the fourth circuit court of appeals the seven circuit court of appeals who have held that the c p a the telephone consumer protection act has nothing to do with privacy interest in your likeness privacy right we have a privacy interest in your personal information in a privacy right to have privacy interest in your right to be free from unwanted intrusions upon your seclusion and some courts including the ohio supreme court said that receiving a fax that you don't want somehow intrudes upon your seclusion and then shoehorn that into coverage that talks about publication of material that violates a person's right of privacy and in this case even if you have a privacy right in the right to be free from unwanted intrusions upon your seclusion that privacy right is violated by the manner of delivery not the content of the material so the defense says publication material most courts first circuit third circuit circuit and the fourth circuit and the first circuit so i'm pretty familiar with these but some states like ohio said now we're going to find covers for the insurance companies we never underwrote for that so we're going to change the language to make it clear that we don't want to cover this by putting an exclusion the policy to specifically talks about the jump back statute in the telephone consumer protection act says we're just not going to cover this and so that's why this happened and so what we have in this case is two types of notice that went to this insurer first presumptive actual notice that comes from when i put something in the mail and there's no evidence to rebut the fact that it went in the mail is presumed that you received it and again at the risk of repeating myself the affidavit in this case says nothing about the fact that i didn't put it in the mail doesn't say anything about the fact we didn't receive it it just says that it was never addressed to any individual and the answer to that is so what but we also have actual notice in this case the facts of this case are actually pretty quite good for us in that we're not just relying on the presumption we're relying on the fact that they designated their broker as their agent for the purposes of negotiating the renewal of these insurance policies and it is undisputed and in fact  the admit that that language from the broker made it into their own files because the produced the notice back to us from their own files in discovery and the knowledge in their brief on page twenty of their brief that they got the material from their broker doesn't matter is that we got six hundred pages of stuff from our broker failing to mention that the six hundred pages of stuff they got from the brokers tapped off by each type of policy that they're getting and i submit the fact that they've got six hundred pages of material from their broker a status is why it is they shouldn't be relieved from opening up that binder and taking a look at it because if you're a big enough sophisticated enough company with risk so substantial that your broker sending you six hundred pages of material on renewal for you to look at to make sure that you're getting the right type of coverage but it's particularly egregious to say you know i never open the lid to take a look at the thing and i should be relieved from opening the lid to take a look at me because it was too much for me to look at so what we have here your hon is an exclusion that on its face clearly precludes all coverage and by all coverage i mean both defense and indemnity well settled ohio law that while the offense may be broader than indemnity it's not broader than the coverage and if there is no possibility of covers there is no possibility for defense and the only argument as to why this exclusion doesn't apply is because we didn't get proper notice of it and that exclusion is absolutely unsupported by the law and by the facts they got actual notice of it in two respects actual notice under the law that says if we can prove that we mailed it you have to rebut that presumption before the case and go forward are quite a few federal or will people cases out there in coverage the massachusetts supreme court applying pennsylvania law has said there is coverage but the first circuit court of appeals applying massachusetts law so that there isn't a fourth circuit was the first case that came down said that there is and i argued that to the fourth circuit seven circuit has done it twice and they said first that there is no coverage under illinois law in the illinois supreme court says we think you're wrong and we think there is coverage so then the seventh circuit was presented in a case under diversity asking to interpret all iowa law in the seventh circuit said i think the only so legal system is a model of consistency it is you'll you'll find this amusing however to set a circuit gets the case the second time asking to look at it under iowa law where there is no law be t c p a coverage but for the exclusion because the iowa supreme court has said so under dandy but the exclusion takes this clearly out of the dandy jim realm because it takes out any of the language of aunt jane the g m relied upon and there is absolutely no doubt that they knew in two thousand and five that they were going to have this exclusion on their policy they knew in two thousand and six when it was renewed we knew in two thousand and seven was a new before they got sued in two thousand and nine for those reasons we asked that the that the dear policy holder letter was never known to anyone of the company including him and that he is the person responsible for procuring insurance coverage and from two thousand and two through two thousand and ten week when he received the notice from travelers that this exclusion had been added to the policy during the discovery in this case that he thought that the policies had not been changed and that there was still coverage for fax program that was conducted by the company i believe that his affidavit coupled with this winders affidavit creates a material issue a fact for trial and should not be disposed of