FILED 

U.S. COURT OF APPEALS

 ELEVENTH CIRCUIT 

 December 6, 2005 

 THOMAS K. KAHN 

 CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 04-11077

________________________

D. C. Docket No. 02-00061-CV-1-DHB

HOOTERS OF AUGUSTA, INC., 

SAM NICHOLSON, and all other persons 

or entities similarly situated, 

 

Plaintiffs-Appellees, 

versus 

AMERICAN GLOBAL INSURANCE COMPANY, 

Defendant-Appellant, 

________________________

Appeal from the United States District Court

for the Southern District of Georgia

_________________________

(December 6, 2005)

Before EDMONDSON, Chief Judge, MARCUS and PRYOR, Circuit Judges.

PER CURIAM:
2

American Global Insurance Co. (“American Global”) appeals from a final

order of summary judgment entered in favor of Hooters of Augusta, Inc.,

(“Hooters”) in a dispute over an umbrella liability policy. At issue is whether the

insurance policy’s coverage of “advertising injury” obligates American Global to

pay amounts levied against Hooters for sending unsolicited fax advertisements in

violation of the federal Telephone Consumer Protection Act (“TCPA”), 47 U.S.C.

§ 227.

The district court concluded that Georgia principles of contract interpretation

compel viewing the fax advertising as a “publication” that violated “a person’s

right to privacy” for purposes of the policy’s advertising-injury coverage. After

thorough review, we agree with the district court and accordingly affirm its

summary judgment order. However, we also find that the district court erred when

it ordered American Global to pay post-judgment interest on Hooters’s outstanding

liability, and therefore vacate the portion of the judgment that ordered American

Global to pay post-judgment interest and remand for further proceedings consistent

with this opinion.

I.

The essential facts and procedural history are these: In 1995, Hooters

purchased advertising space on weekly flyers faxed to a database of Augusta
The relevant portion of the statute reads:

1

(b) Restrictions on use of automated telephone equipment

(1) Prohibitions

It shall be unlawful for any person within the United States –

(A) to make any call (other than a call made for emergency purposes or made

with the prior express consent of the called party) using any automatic telephone

dialing system or an artificial or prerecorded voice –

(i) to any emergency telephone line (including any “911” line and any

emergency line of a hospital, medical physician or service office, health

care facility, poison control center, or fire protection or law enforcement

agency);

(ii) to the telephone line of any guest room or patient room of a hospital,

health care facility, elderly home, or similar establishment; or

(iii) to any telephone number assigned to a paging service, cellular

telephone service, specialized mobile radio service, or other radio

common carrier service, or any service for which the called party is

charged for the call;

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businesses. Sam Nicholson, an Augusta attorney, received one of the faxed copies

of Hooters’s advertisement. On June 23, 1995, Nicholson sued Hooters and sought

class certification in the Superior Court of Richmond County, Georgia; the court

granted class certification. The Nicholson class’s suit sought damages under the

TCPA, which, as codified at the time, made it unlawful “to use any telephone

facsimile machine, computer, or other device to send an unsolicited advertisement

to a telephone facsimile machine,” 47 U.S.C. § 227(b)(1)(C) (2000) (amended

2005), and provided a private right of action for violations of the Act, id. § 1
(B) to initiate any telephone call to any residential telephone line using an

artificial or prerecorded voice to deliver a message without the prior express

consent of the called party, unless the call is initiated for emergency purposes or

is exempted by rule or order by the Commission under paragraph (2)(B);

(C) to use any telephone facsimile machine, computer, or other device to send an

unsolicited advertisement to a telephone facsimile machine; or

(D) to use an automatic telephone dialing system in such a way that two or more

telephone lines of a multi-line business are engaged simultaneously.

. . .

47 U.S.C. § 227(b) (2000) (amended 2003 and 2005).

The statute also provides: 2

(3) Private right of action

A person or entity may, if otherwise permitted by the laws or rules of court of a State,

bring in an appropriate court of that State—

(A) an action based on a violation of this subsection or the regulations prescribed under

this subsection to enjoin such violation,

(B) an action to recover for actual monetary loss from such a violation, or to receive $500

in damages for each such violation, whichever is greater, or

(C) both such actions.

If the court finds that the defendant willfully or knowingly violated this subsection or the

regulations prescribed under this subsection, the court may, in its discretion, increase the

amount of the award to an amount equal to not more than 3 times the amount available

under subparagraph (B) of this paragraph.

47 U.S.C. § 227(b)(3) (2000).

4

227(b)(3).2

On March 21, 2001, after trial, a jury returned a verdict against Hooters for

knowingly and willfully violating the TCPA, and on April 25, 2001, the trial judge

entered judgment against Hooters in the amount of $11,889,000, calculated
5

according to statutory damages of $500 for each violation and trebled as allowed

by the TCPA. Hooters appealed the verdict, but soon thereafter, Hooters and

Nicholson, on behalf of the class, entered into a settlement agreement that lowered

Hooters’s liability to $9 million. In exchange, Hooters promised to drop its appeal

of the state court judgment, file a declaratory judgment action against American

Global and Zurich Insurance Company, and assign its claims against the insurance

carriers to the Nicholson class on request. The Superior Court approved the

settlement, and the first act in this extended litigation drama ended.

Hooters then brought this action against Zurich, American Global, and the

Nicholson class in the Superior Court of Richmond County, Georgia. Zurich and

American Global timely removed the cause to the U.S. District Court for the

Southern District of Georgia based on diversity of citizenship. The district court

realigned the parties, designating the Nicholson class as a plaintiff, and denied

Hooters’s motion for remand. Both Hooters and the Nicholson class separately

moved for summary judgment, and the defendants jointly filed a motion for

summary judgment as well.

The district court granted summary judgment in favor of Hooters and the

Nicholson class and entered final judgment in the amount of $5 million– –the

coverage amount provided for in the insurance policy– –and post-judgment interest
The coverage provision of the policy states: 3

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on the $6.45 million unpaid balance of Hooters’s settlement. American Global

appealed both the grant of summary judgment and the award of post-judgment

interest.

II.

We review a grant of summary judgment de novo, viewing the materials

presented and drawing all factual inferences in the light most favorable to the

non-moving party. See, e.g., Gerling Global Reinsurance Corp. of Am. v.

Gallagher, 267 F.3d 1228, 1233–34 (11th Cir. 2001). Summary judgment is

appropriate when “there is no genuine issue as to any material fact” and “the

moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c).

The movant bears the burden of demonstrating that this standard is satisfied by

presenting “pleadings, depositions, answers to interrogatories, and admissions on

file, together with the affidavits, if any,” that establish the absence of any genuine,

material factual dispute. Id.

The primary issue in the case is whether the amounts Hooters owes the

Nicholson class for their TCPA claims fit within the insurance policy’s coverage

for “Advertising Injury,” defined in part as harm from “[o]ral or written

publication of material that violates a person’s right of privacy.” The district court 3
I. Coverage

We will pay on behalf of the Insured those sums in excess of the Retained Limit that the

Insured becomes legally obligated to pay by reason of liability imposed by law or

assumed by the Insured under an Insured Contract because of Bodily Injury, Property

Damage, Personal Injury or Advertising Injury that takes place during the Policy Period

and is caused by an Occurrence happening anywhere in the world. . . .

American Global Insurance Company Policy at 1.

“Advertising Injury” is defined later:

IV. Definitions

A. Advertising Injury means injury arising solely out of your advertising activities as a

result of one or more of the following offenses:

1. Oral or written publication of material that slanders or libels a person or

organization or disparages a person’s or organization’s goods, products, or

services;

2. Oral or written publication of material that violates a person’s right of privacy;

3. Misappropriation of advertising ideas or style of doing business; or

4. Infringement of copyright, title or slogan.

Id. at 3.

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concluded that Georgia rules of contract interpretation favored reading the policy

broadly to cover the TCPA claims. The district court determined that the TCPA’s

protections against unsolicited faxes amount to a “right of privacy” within the

meaning of the advertising-injury provision.

The text of the policy and the language of the TCPA resolve these issues in

favor of coverage when read in light of controlling Georgia law. Both parties agree

that Georgia law governs the dispute. It is by now axiomatic that Georgia law
8

directs courts interpreting insurance policies to ascertain the intention of the parties

by examining the contract as a whole. Ryan v. State Farm Mut. Auto. Ins. Co., 413

S.E.2d 705, 707 (Ga. 1992) (citing James v. Pennsylvania General Insurance Co.,

306 S.E.2d 422, 425 (Ga. Ct. App. 1983)). A reviewing court must consider the

ordinary and legal meaning of the words employed in the insurance contract. Id.

Moreover, Georgia law teaches, ambiguous terms in the policy must be construed

in favor of the insured to provide maximum coverage, id., and when reasonable, a

court should read an insurance contract “as a layman would read it and not as it

might be analyzed by an insurance expert or an attorney,” Cont’l Ins. Co. v. Am.

Motorist Ins. Co., 542 S.E.2d 607, 610 (Ga. Ct. App. 2000) (quoting Jefferson

Insurance Co. of New York v. Dunn, 482 S.E.2d 383, 388 (Ga. Ct. App. 1997),

rev’d on other grounds, 496 S.E.2d 696 (Ga. 1998)) (internal quotation marks

omitted). These rules reflect Georgia’s judgment that the insurer, as the party with

greater control over the wording of terms in the policy, should bear the burden of

laying out the terms clearly and precisely. See James, 306 S.E.2d at 431.

American Global first argues that Hooters’s conduct violated no right of

“privacy” because a fax sent in violation of the TCPA would not constitute a

common-law tort for invasion of privacy under Georgia law. American Global’s

reading may be one reasonable interpretation, but, undeniably, it is at least as
9

reasonable to interpret “privacy” more broadly to include aspects of privacy

protected by other sources of law, including state privacy statutes and federal law.

Indeed, the statutory notion of being free from intrusive and unsolicited facsimile

transmissions is at least arguably embodied in the common law right to privacy

under Georgia law. An essential element of the right to privacy, Georgia’s courts

have recognized, is “the right ‘to be let alone,’” or “the right to seclusion or

solitude.” Yarbray v. S. Bell Tel. & Tel. Co., 409 S.E.2d 835, 836–37 (Ga. 1991). 

Notably, the insurance policy contains no language explicitly limiting the scope of

the term “privacy” or, for that matter, alerting non-expert policyholders that

coverage depends on the source of law underlying the relevant privacy right.

Following the Georgia rule and interpreting ambiguous terms in favor of the

insured, we are constrained to reject American Global’s suggestion that its

construction of the meaning of privacy is the only reasonable one under Georgia

law, as opposed to a broader interpretation that encompasses violations of privacy

rights established by federal statutes such as the TCPA. We are hard pressed to say

that a layman could not reasonably read the notion of privacy as broadly as the

district court did.

American Global also suggests that the TCPA provisions at issue do not

create a statutory right of privacy, although the statute plainly creates a statutory
10

right to be free from intrusions by unsolicited faxed or telephonic advertising.

While it acknowledges, as it must, that the statute at least partly aims at protecting

some privacy interests, American Global argues that the section governing

unsolicited faxes is concerned only with the commercial impact of unsolicited

faxes, not with privacy. In support of its position, American Global says that only a

small portion of the legislative record suggests that unsolicited faxes violate

privacy.

It is worth noting that the legislative record does indeed contain suggestions

that Congress thought of unsolicited faxes as akin to intrusive telephone calls. See,

e.g., H.R. Rep. 102-317, at 5–6 (1991) (“The purpose of the bill (H.R. 1304) is to

protect residential telephone subscriber privacy rights by restricting certain

commercial solicitation and advertising uses of the telephone and related

telecommunications equipment. . . . H.R. 1304 is designed to return a measure of

control to both individual residential telephone customers and owners of facsimile

machines.”). Indeed, the findings accompanying the TCPA legislation illustrate that

Congress was expressly concerned about protecting privacy interests, including

privacy interests in places of business. See, e.g., Telephone Consumer Protection

Act of 1991, Pub. L. No. 102-243, § 2(9), 105 Stat. 2394, 2394 (“Individuals’

privacy rights, public safety interests, and commercial freedoms of speech and
11

trade must be balanced in a way that protects the privacy of individuals and permits

legitimate telemarketing practices.”); id. §2(14) (“Businesses also have

complained to the Congress and the Federal Communications Commission that

automated or prerecorded telephone calls are a nuisance, are an invasion of

privacy, and interfere with interstate commerce.”).

We refuse, however, to allow the TCPA’s legislative history to sway us too

far in either direction. Whether Congress intended the provisions against

unsolicited faxes to protect “privacy,” and how much that intention factored into

the passage of the law, is not relevant today. Georgia law unambiguously directs us

to search for the intentions of the parties to this insurance contract, not the

intentions of distant federal lawmakers. We therefore must consider the ordinary

meaning of the term “privacy,” not whatever specialized meaning the word may

have taken on in the context of the TCPA.

After thorough review, we are satisfied that the term “privacy” can be

reasonably read as extending beyond a particular, narrow and more technical

definition of privacy and encompassing a broader layperson’s notion of privacy as

protected by various provisions of state or federal law. Following the Georgia

courts’ practice of interpreting ambiguous terms in favor of greater coverage, we

conclude that facsimile transmissions in violation of the TCPA amount to
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violations of “privacy” for the purposes of the insurance policy at issue.

Two other circuit courts of appeal appear to have reached similar

conclusions when interpreting similar insurance policies. Recently, the Eighth

Circuit held that a Missouri insurance policy that covered “private nuisance” and

“invasion of rights of privacy” covered unsolicited faxes in violation of the TCPA.

Universal Underwriters Ins. Co. v. Lou Fusz Auto. Network, Inc., 401 F.3d 876,

881, 883 (8th Cir. 2005). The insurer, the court wrote, “offers only technical and

restricted legal definitions to support its position that violations of the Act are

neither ‘private nuisances’ nor ‘invasions of privacy.’ Under Missouri law, we

cannot restrict the undefined terms in such a manner.” Id. at 882.

The Fifth Circuit also appears to have reached a similar conclusion. A

district court in the Northern District of Texas found that unsolicited faxes

amounted to “publication of material that violates a person’s right of privacy”

within the meaning of a commercial liability policy. W. Rim. Inv. Advisors, Inc. v.

Gulf Ins. Co., 269 F. Supp. 2d 836, 847 (2003), aff’d per curiam, 96 F.Appx. 960

(5th Cir. 2004). A panel of the Fifth Circuit issued an unpublished per curiam

opinion affirming the judgment for “essentially the reasons stated by the district

court.” Western Rim, 96 F. Appx. at 960 (per curiam).

American Global nevertheless contends that the Fifth Circuit’s decision in
13

Western Rim is distinguishable because it concerned a duty to defend against suit,

not the issue of the insurer’s ultimate liability. The Eighth Circuit case similarly

involved a duty to defend. But nothing in either opinion suggests that either court’s

decision turned on the possibility that the lawsuits at issue could have proceeded

under alternative theories. Indeed, in each of the two cases, advertising injury in

the form of TCPA violations was the only theory that the court considered and

found capable of triggering the duty to defend. Universal Underwriters, 401 F.3d at

881–83; Western Rim, 269 F. Supp. 2d at 842–50.

American Global claims, however, that even if the TCPA protects privacy

rights, the insurance contract’s reference to “oral or written publication of material

that violates a person’s right to privacy” does not cover Hooters’s conduct because

there was no act of “publication.” American Global first says that an intrusion into

the private sphere fundamentally contradicts the very notion of “publication,”

which suggests a public act of dissemination of information. This argument simply

conflates two distinct perspectives. The act of transmitting an unsolicited fax

indeed involves a public act by the sender. But the act is thought to violate the

recipient’s privacy. There is no contradiction. The conduct by which Hooters was

found to violate the TCPA, and for which it now seeks coverage under the

insurance policy, is using a fax machine “to send an unsolicited advertisement.”
The definition reads:

4

publish . . . 1 a: to make generally known b: to make public announcement of 2 a:

to place before the public : disseminate b: to produce or release for publication; specif :

print c : to issue the work of (an author) . . . .

Webster’s Ninth New Collegiate Dictionary 952 (1984).

14

American Global also argues that we should interpret the term “publication”

in a narrow, legal sense, as an element of three privacy-related torts: public

disclosure of private facts, portrayal of a plaintiff in a false light, and

misappropriation. As we have noted, though, Georgia law suggests that a

reviewing court must consider both the ordinary and legal meanings of a term in an

insurance contract and, when faced with ambiguity, adopt the interpretation that

favors greater coverage. While it may be reasonable to read the terms “publication”

and “privacy” in a technical legal sense, it is at least equally plausible to read both

terms in their ordinary non-technical sense. Plainly, Georgia law directs us to adopt

the interpretation that favors greater coverage.

Hooters’s conduct amounted to an act of “publication” in the ordinary sense

of the word. American Global cites three definitions of the term “publish” found in

Webster’s Ninth New Collegiate Dictionary: “to make generally known,” “to make

public announcement,” and “to place before the public: disseminate.” Webster’s 4

Ninth New Collegiate Dictionary 952 (1984). Hooters purchased advertising space

on weekly fliers disseminated by fax to nearly 8,000 businesses. This course of
15

conduct squarely fits at least the third of American Global’s definitions and

arguably fits the other two as well. Notably, the dictionary that American Global

cites also includes a fourth definition of “publish” not mentioned in the appellants’

brief: “to produce or release for publication; specif[ically] : print.” Id. Hooters’s

conduct fits this definition even more closely.

As we have noted, our conclusion is altogether consonant with the

conclusions reached by the Fifth and Eighth Circuits in interpreting similar

insurance policies. Our conclusion differs, however, from decisions rendered by

the Seventh and Fourth Circuits, which have interpreted similar advertising-injury

provisions as extending only to a particular species of privacy violation– –

violations of a right to secrecy of personal information, not intrusions into a private

domain. Res. Bankshares Corp. v. St. Paul Mercury Ins. Corp., 407 F.3d 631,

640–41 (4th Cir. 2005); Am. States Ins. Co. v. Capital Assocs. of Jackson County,

Inc., 392 F.3d 939, 942–43 (7th Cir. 2004).

We do not need to discuss the Seventh and Fourth Circuit opinions at length,

since American Global does not contend that the insurance contract’s reference to

“violations of privacy” does not encompass intrusions into a person’s private

domain. Rather, American Global’s argument is that a violation of the TCPA is not

the kind of intrusion into seclusion that the policy covers. See Brief of Appellant at
16

31 (“The only means . . . by which Nicholson could have established a violation of

privacy in the context of facsimile transmissions was under the concept of an

‘intrusion into seclusion.’”); id. at 37 (“[T]he parties and the district court agreed

that the only ‘privacy’ interest arguably violated by the receipt of unauthorized

facsimiles was the result of intrusion into the recipient’s affairs.”). Because the

chief aim in contract interpretation is to discern and implement the intent of the

parties, we decline to lend the contract a meaning that neither party has suggested

it has.

There are, however, additional reasons for distinguishing the Seventh and

Fourth Circuit cases from this one. The Fourth Circuit case was decided under

Virginia law, Resource Bankshares, 407 F.3d at 636; the Seventh Circuit case,

under Illinois law, American States, 392 F.3d at 943. In addition, the Fourth

Circuit case involved a more tightly worded advertising-injury provision that

described the covered activity as “making known to any person or organization

written or spoken material that violates a person’s right to privacy.” Resource

Bankshares, 407 F.3d at 641. This wording seems to have been a significant factor

in the court’s decision. See id. at 641–42. The insurance contract in this case,

however, refers to “[o]ral or written publication” of such material, which does not

suggest the focus on secrecy that “making known” does.
At trial, American Global also cited a policy exclusion for advertising injury “arising out 5

of the willful violation of a penal statute or ordinance.” The district court found that the TCPA

was a remedial statute, not a penal statute, and that the exclusion therefore did not apply. 272 F.

Supp. 2d at 1376. American Global has not challenged this ruling on appeal, so we have no

occasion to review it.

17

American Global also argues that the insurance policy was restricted to

amounts identified as “damages” and that a statutory award under the TCPA does

not amount to “damages” within the meaning of the policy. The district court

correctly rejected this argument, too, noting that the policy refers to “sums . . . that

the Insured becomes legally obligated to pay by reason of liability imposed by law

or assumed by the Insured,” without excluding statutory penalties. American

5

Global points to several policy provisions referring to “damages” rather than

“sums.” These provisions, however, do not purport to narrow the insurer’s initial

obligation to pay “sums.”

Even if we were to read the word “damages” more narrowly than the word

“sums,” the most natural way to read the policy would be to assume that the policy

intends the narrower meaning only when it actually employs the term “damages.”

For example, the provision specifying that “damages that arise from the same or

related injurious material or act” fall within the same “Occurrence” would only

affect the allocation of “damages” among “Occurrences,” without affecting the

allocation of sums other than “damages,” and certainly without affecting the base
18

obligation to pay “sums.”

Finally, American Global cites Endorsement No. 4, a “Publishing Liability

Exclusion” that excludes “Personal Injury or Advertising Injury arising out of the

utterance or dissemination of matter published by or on behalf of the Insured.”

American Global argues that the endorsement, which took effect at the same time

as the main policy, excludes any advertising injury claim related to publishingrelated activities, including the fax campaign.

Read as broadly as American Global suggests, however, the endorsement

would completely wipe out the policy’s coverage of advertising injury, since no

readily conceivable advertising activity could take place without publishing

activities. It is not absolutely clear how Georgia law looks upon such an

endorsement. American Global argues that Georgia law would grant the

exclusionary endorsement precedence over conflicting terms in the policy, as it

would do with an endorsement adopted at a later time, see Utica Mut. Ins. Co. v.

Dunn, 129 S.E.2d 94, 96 (Ga. Ct. App. 1962) (holding that an endorsement

adopted at a later date takes precedence over the original policy terms because it

reflects a later expression of intent). Not surprisingly, Hooters argues that we

should treat the endorsement as equal with the conflicting terms in the policy and

follow the Georgia rule holding that “where one provision of the policy excludes
19

liability and another accepts liability . . . the provision most favorable to the

insured will be applied,” Welch v. Gulf Ins. Co., 190 S.E.2d 101, 103 (Ga. Ct.

App. 1972).

When an endorsement is entered at the same moment as the policy it

accompanies, rather than at a later time, and the endorsement purports to obliterate

coverage, as opposed to merely clarifying, narrowing, or modifying the terms of

coverage, we believe the approach more consistent with Georgia law is to read the

endorsement and the terms of the policy as being coequal and thus to enforce the

provision that grants coverage. Georgia rules of contract interpretation aim to

protect purchasers of insurance from misleading contracts by placing the burden on

the insurer to draft the insurance contract clearly. See James v. Pa. Gen. Ins. Co.,

306 S.E.2d 422, 431 (Ga. Ct. App. 1983) (“Since insurance policies are contracts

of adhesion penned by the insurer, when ambiguity is present, construction of the

policy is in favor of the insured, although it must not be unreasonable or strained.”)

(quoting Imperial Enterprises, Inc. v. Fireman’s Fund Insurance Co., 535 F.2d 287,

290 (5th Cir. 1972)) (internal quotation marks omitted); Alley v. Great Am. Ins.

Co., 287 S.E.2d 613, 616 (Ga. Ct. App. 1981) (“Exceptions, limitations and

exclusions to insuring agreements require a narrow construction on the theory that

the insurer, having affirmatively expressed coverage through broad promises,
20

assumes a duty to define any limitations on that coverage in clear and explicit

terms.”) (quoting Krug v. Millers’ Mut. Ins. Ass’n of Ill., 495 P.2d 949, 954 (Kan.

1972)) (internal quotation marks omitted). Through the lens of this state policy,

granting coverage and simultaneously sweeping it away through another provision

entered at the same time seems to pose the same risk to the purchaser regardless of

whether the exclusion clause appears within the insurance policy itself or within an

endorsement. We add that American Global has offered no alternative reading of

the publishing exclusion that excludes coverage for violations of the TCPA but

does not go as far as wiping out all coverage for advertising injury.

In short, because under Georgia law the policy’s coverage of advertising

injury applied to Hooters’s liabilities under the TCPA and was not nullified by

Endorsement No. 4, we affirm the district court’s order granting final summary

judgment in favor of Hooters and the Nicholson class.

III.

We conclude, however, that the district court erred when it found that the

insurance contract requires American Global to pay post-judgment interest on

Hooters’s liability, and we vacate the portion of the district court’s judgment that

awarded post-judgment interest.

The contract terms specifically mentioning post-judgment interest appear
21

under a section titled “Defense.” The policy provides that when American Global

“assume[s] the defense of any claim or suit,” American Global will pay “all

interest that accrues after entry of judgment and before we have paid, offered to

pay or deposited in court the part of the judgment that is within our applicable

Limit of Insurance.” American Global Insurance Company Policy at 1–2. The

structure and language of the policy thus suggest that American Global took on an

obligation to pay post-judgment interest only when it assumed the defense of the

associated claim.

The district court, however, reasoned that this post-judgment interest

provision could not be reconciled with the general coverage provision obligating

American Global to pay “those sums . . . that the Insured becomes legally

obligated to pay by reason of liability imposed by law.” The district court decided

to interpret the contract in favor of coverage by giving precedence to the coverage

provision and effectively disregarding the post-judgment interest provision.

Hooters of Augusta, Inc. v. Am. Global. Ins. Co., CV102-061, at 3–4 (S.D. Ga.

2004).

We disagree with the district court’s approach. Georgia law favors an

interpretation that gives effect to all provisions if such an interpretation is possible.

Boardman Petroleum, Inc. v. Federated Mut. Ins. Co., 498 S.E.2d 492, 494 (Ga.
22

1988) (“The contract is to be considered as a whole and each provision is to be

given effect and interpreted so as to harmonize with the others.”) (citing McCann

v. Glynn Lumber Co., 34 S.E.2d 839, 843 (Ga. 1945)). Disregarding provisions in

the contract should be a last resort.

A harmonious interpretation of the contract provisions is not only possible

but reasonable in this case. Both the provisions of the contract have effect if we

interpret the coverage provision as broadly establishing American Global’s general

obligations to cover Hooters’s liabilities and interpret the post-judgment interest

provision as more specifically controlling the scope of American Global’s

obligation to pay post-judgment interest. This approach also better comports with

the principle that in cases of apparent conflict, specific terms in a contract should

be interpreted to control general terms. See, e.g., Cent. Ga. Elec. Membership

Corp. v. Ga. Power Co., 121 S.E.2d 644, 646 (Ga. 1961); Broome v. Allstate Ins.

Co., 241 S.E.2d 34, 35 (Ga. Ct. App. 1977).

Georgia law thus favors interpreting the contract as imposing a duty to pay

post-judgment interest only when American Global took on the defense of the

associated claim. Because American Global did not defend Hooters from the

Nicholson class’s initial claim, American Global had an obligation to pay postjudgment interest only if it had a duty to defend the claim and simply failed to
23

satisfy that duty.

We are convinced that American Global never had a duty to defend the

claim. The first part of the “Defense” section reads as follows:

II. Defense

A. We [American Global] shall have the right and duty to defend any

claim or suit seeking damages covered by the terms and conditions of

this policy when:

1. The applicable Limits of Insurance of the underlying policies

listed in the Schedule of Underlying Insurance and the Limits of

Insurance of any other underlying insurance providing coverage

to the Insured have been exhausted by payment of claims to

which this policy applies; or 

2. Damages are sought for Bodily Injury, Property Damage,

Personal Injury or Advertising Injury covered by this policy but

not covered by any underlying insurance listed in the Schedule

of Underlying Insurance or any other underlying insurance

providing coverage to the Insured.

American Global Insurance Policy at 1 (emphasis added).

The insurance contract thus specified that American Global assumed an

obligation to defend Hooters only after Hooters’s primary coverage was exhausted.

When Hooters’s primary coverage was exhausted, it had already settled its dispute

with the Nicholson class and terminated its appeal. American Global’s contractual

duty to defend therefore never materialized. Because American Global never had a

duty to defend Hooters against the Nicholson class claim, it could not have had a
24

duty to pay post-judgment interest.

IV.

Having carefully reviewed the record, the district court’s opinion, and the

arguments of the parties, we conclude that the district court committed no error

when it found that the advertising-injury provisions of the insurance contract

provide coverage for amounts owed for TCPA violations. We therefore affirm the

entry of summary judgment in favor of Hooters and the Nicholson class. However,

the district court erred when it ruled that the insurance contract required American

Global to pay post-judgment interest on all of Hooters’s outstanding liability.

AFFIRMED IN PART, VACATED IN PART, AND REMANDED.