PUBLISH UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ EMCASCO INSURANCE COMPANY; EMPLOYERS MUTUAL CASUALTY COMPANY, Plaintiffs Count er Defendants - Appellees,

v. CE DESIGN, LTD, an Illinois corporation, Defendant Co unter Plaintiff - Appellant, and
CUSTOM MECHANICA L EQUIPMENT, INC.; CUSTOM MECHANICAL EQUIPMENT OF WISCONSIN; CUSTOM EQUIPMENT, LLC, Defendants. No. 14-6064

________________ _________________ APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA (D.C. NO. 5:11-CV-01494-M)

________________ _________________ Jeffrey A. Berman, Anderson + Wanca, Ro lling Meadows, Illinois; (David M. Oppenheim, Anderson + Wanca, Rolling Meadow s, Illinois, Phillip A. Bock, Bock & Hatch, LLC, Chicago, Illinois, and Michael E. Grant, Musser, Kouri, Bentwood & Grant, Oklahoma City, Oklahoma, with him on the briefs), fo r Defendant Counter PlaintiffAppellant CE Design Ltd. FILED United States Court of Appeals Tenth Circuit 

### May 4, 2015
Elisabeth A. Shumaker Clerk of Court- 2 - Brian A. O’Gallagher, Cremer, Spina, Shaughn essy, Jansen & Siegert, LLC, Chicago, Illinois (Kristina M. Beck, Cremer, Spina, Shaughnessy, Jansen & Siegert, LLC, Chicago, Illinois, and Chri stopher D. Wolek, Gibbs, Ar mstrong, Borochoff, Mullican, & Hart, Tulsa, Oklahoma, with him on the briefs), for Plaintiff Counter DefendantsAppellees Emcasco Insuran ce Company and Employers Mutual Casualty Company.

________________ _________________ Before TYMKOVICH , GORSUCH , and PHILLIPS , Circuit Judges.

________________ _________________ PHILLIPS , Circuit Judge.

________________ _________________ This case started with a junk fax. In April 2008, Custom Mechanical Equipment, Inc. (Custom), an Oklahoma compan y, faxed an advertisement to CE Design in Illinois. Unlike most junk fax recipients, who simply dispose of these faxes, CE Design sued Custom under federal and state law. CE De sign brought a class ac tion suit of people and businesses that had also received unsolicited faxes from Custom. After Custom’s insurer, Emcasco Insurance Company (E mcasco), declined to defend, Custom settled with CE Design for a considerable sum. In settling, CE Design agreed not to enforce the judgment against Custom but to procee d directly against Emcasco. After Emcasco refused to pay the judgme nt, CE Design and Emcasco filed rival declaratory judgment suits in separate fe deral courts (CE Design in Oklahoma, and Emcasco in Illinois). Ultimately, the federal dist rict court in Illinois transferred its case to the federal district court in Oklahoma. Based on the insurance policy’s terms, the district court held that Emcasco had no duty to de fend Custom or to pay the judgment. CE Design appealed. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.- 3 - I. BACKGROUND
A. The Insurance Policies CE Design is an Illinois corporation. Cust om is an Oklahoma corporation with its principal place of business in Oklahoma. 1 In September 2007, Custom purchased a oneyear commercial-insura nce policy from Emcasco. 2 The policy provid es two forms of insurance: Commercial Gene ral Liability (CGL) coverage , and Commercial Umbrella Liability (UL) coverage. Both the CGL and UL forms have two sec tions: Coverage A, which provides insurance for b odily injury and property dama ge; and Coverage B, which provides insurance for personal and advertising injury.

1. Coverage A Insurance under Coverage A applies to prope rty damage only if it is caused by an “occurrence.” Appellant’s App. vol. I at 174, vol. II at 278. The policy defines “occurrence” as “an accident, 3 including continuous or repeat ed exposure to substantially the same general harmful conditions.” Appellant’s A pp. vol. I at 187, vol. II at 293. It also defines “property damage” as “[p]hysical in jury to tangible property, including all resulting loss of that property,” and “[l]oss of use of tangible property that is not

1 Two other corporations are associat ed with Custom: Custom Mechanical Equipment of Wisconsin and Custom Mechanical Equipment, LLC.
2 Custom had purchased a similar policy th e year before, but it does not apply to the present controversy.
3 Because the policy equates “occurrence” with “accident,” this opinion uses the two terms interchangeably.- 4 - physically injured.” Appellant’s App. vol. I at 187–88, vol. II at 294. Summarizing its range of coverage, the policy pr ovides that Emcasco will “pay those sums that the insured [Custom] becomes legally obligated to pay as damages because of . . . ‘property damage’ to which this insurance applies.” Appellant’s Ap p. vol. I at 174; vol. II at 278. Similarly, the policy disclaims any “duty to defend the insured against any ‘suit’ seeking damages for . . . ‘property damage’ to which this insurance does not apply.” Appellant’s App. vol. I at 174; vol. II at 278. In addition, the policy lists several exclusi ons to coverage for property damage, two of which are at issue in this appeal. The first, an expected -or-intended-injury exclusion, provides that the insurance “does not apply to . . . ‘property damage’ expected or intended from the standpoint of th e insured. . . .” Appellant’s App. vol. I at 175; vol. II at 279. The second, a statutory-violation exclusi on, is titled, “EXCLUSION—VIOLATION OF STATUTES THAT GOVERN E-MAILS, FAX, PHONE CALLS OR OTHER
METHODS OF SENDING MATERIAL OR IN FORMATION,” and reads as follows: This insurance does not apply to: DISTRIBUTION OF MATERIAL IN VIOLATION OF STATUTES “[P]roperty damage” arising directly or indirectly out of any action or omission that violates or is alleged to violate: (a) The Telephone Consumer Prot ection Act (TCPA), including any amendment of or addition to such law; or (b) The CAN-SPAM Act of 2003, including any amendment of or addition to such law; or- 5 - (c) Any statute, ordinance or regu lation, other than the TCPA or CANSPAM Act of 2003, that prohibits or limits th e sending, transmitting, communicating, or distribution of material or information. Appellant’s App. vol. I at 189, vol. II at 296.
2. Coverage B Under Coverage B, Emcasco agreed that “[ w]e will pay those sums that the insured becomes legally obligated to pa y as damages because of ‘per sonal and advertising injury’ to which this insurance applies.” Appellant’s App. vol. I at 178; vol. II at 282. Although the definition of “personal and advertising in jury” lists seven separa te qualifying injuries, this appeal concerns just one of them: “Personal and advertising injury” means injury . . . arisi ng out of one or more of the following offenses: . . . (e) Oral or written publication, in any manner, of material that violates a person’s right of privacy[.] Appellant’s App. vol. I at 187-88; vol. II at 293-94. Coverage B lists fifteen sepa rate exclusions, one of whic h is at issue on appeal—a knowing-violation exclusion, which provide s that the insurance does not apply to: “Personal and advertising injury” caus ed by or at the direction of the insured with the knowledge that the ac t would violate the rights of another and would inflict “personal and advertising injury.” Appellant’s App. vol. I at 179. In addition, Emcasco amended Coverage B to provide the same statutory-violation exclusion as applies to Coverage A: This insurance does not apply to:- 6 - DISTRIBUTION OF MATERIAL IN VIOLATION OF STATUTES “[P]roperty damage” arising directly or indirectly out of any action or omission that violates or is alleged to violate: (a) The Telephone Consumer Prot ection Act (TCPA), including any amendment of or addition to such law; or (b) The CAN-SPAM Act of 2003, including any amendment of or addition to such law; or (c) Any statute, ordinance or regu lation, other than the TCPA or CANSPAM Act of 2003, that prohibits or limits th e sending, transmitting, communicating, or distribution of material or information. Appellant’s App. vol. I at 189, vol. II at 296.

B. CE Design’s Lawsuit Against Custom In April 2008, Custom faxed an unsolicited advertisement for screening enclosures to CE Design and then, or about then, sent the sa me or a similar fax to at least 2,551 others. CE Design contends that this unsolicited fax damaged it by cos ting it time, paper, and ink toner. Seeking redress, CE Design sued Custom in Illi nois state court and sought to certify a class of others that had also rece ived the fax or a similar fax from Custom. In its complaint, CE Design pleaded three claims fo r relief. First, CE Design alleged that Custom’s fax violated the Telephone Consumer Protection Act (TCPA), which provides $500 in damages for each TCPA violation. 47 U.S.C. § 227(b)(3). In support of this claim, CE Design sp ecifically alleged that: [Custom] knew or should have known that [CE Design] and the other class members had not given express invita tion or permission for [Custom] or anybody else to fax advertisements about [Custom’s] goods or services, that [CE Design] and the other class memb ers did not have an established- 7 - business relationship with [Custom], that [the advertisements Custom sent] were advertisem ents . . . . Appellant’s App. vol. I at 102. Second, CE Design alleged common-law conv ersion based on Custom’s faxes using the recipients’ paper, toner, and fax machin es, and it sought property damages for those losses. Similar to how it pleaded its TCPA count, CE Design allege d that “[Custom] knew or should have known that its misappropria tion of paper, toner, and employee time was wrongful and without authoriza tion.” Appellant’s App. vol. I at 105. Third, CE Design alleged that Custom’s fax violated the Illin ois Consumer Fraud and Deceptive Business Practices Act (ICFA), 815 Ill. Comp. Stat. 505/2. After CE Design served the complaint, Cust om tendered its defense to Emcasco. In
response, Emcasco denied coverage a nd declined to defend Custom. In June 2011, with the case so positioned, Custom and CE Design settled CE De sign’s lawsuit. The two parties agreed to request that the Illinois st ate court enter judgment against Custom for $1,276,000 (the TCPA’s $50 0 per violation multiplied by 2,552 unsolicited faxes). See 47 U.S.C. § 227(b)(3). As pa rt of the settlement, CE Design agreed to enforce the judgment only against Emcasco. 4 Custom settled because “[it did] not have significant assets other than insurance, and any judgment that is execut ed against [it] would likely force [it] into

4 The settlement stated that Custom “will assign to the Cl ass . . . to th e full extent permitted by law, all of [Custom’s] clai ms against and rights to payments from insurers, including [Emcasco], under any and all insurance policies issued by [Emcasco]. . . .” Appellant ’s App. vol. II at 344.- 8 - bankruptcy. . . .” Appellant’s App. vol. II at 364. In its notice of the proposed settlement to the class members, CE De sign recommended settling for the agreed sum, stating that a prevailing plaintiff could recover $ 500 for each TCPA violatio n proved. CE Design also informed the class members th at “[Custom’s] insurance policies are the only meaningful source of recovery.” Appellant’s App. vol. II at 364. In September 2011, the Illinois trial c ourt approved the settlement agreement and entered judgment. In disposing of the case, th e trial court adopted the parties’ proposed language, including these terms:

 The damages amount agreed to is wh at a reasonably prudent person in [Custom’s] position would ha ve settled for on the meri ts of the claims in this Litigation;

 2,552 unsolicited faxed advertisements were sent on [Custom’s] behalf to 2,552 persons between Februa ry 1, 2008 and April 30, 2008;

 [Custom] believed that [it] had the consent of the fax recipients when [it] sent the faxes; 5

 [Custom] did not intend to injure the fax recipients;

 [Custom] tendered this lawsuit to [Emcasco] and [Emcasco] refused to defend or indemnify this matter. Appellant’s App. vol. II at 474. The trial court entered “judgment on Counts I, II and III [the TCPA, conversion, and ICFA claims, resp ectively] . . . against [Custom], jointly and

5 As mentioned, CE Design’s complaint alleged that Custom “knew or should have known” that Custom se nt an unsolicited fax to CE Design and others, and that Custom “knew or should have known” th at its fax would c onvert CE Design’s property. Appellant’s App. vol. I at 102, 105. With CE Design’s about-face in the settlement, it positioned itself better to asse rt that Custom’s fa x was an accident.- 9 - severally, in the total amount of $1,276,000,” with Custom’s policy with Emcasco as the sole source of recovery. Ap pellant’s App. vol. II at 476.

C. The Current Lawsuit Almost immediately after agreeing to settle with Custom, CE Desi gn sued Emcasco in the United States District Court for the Western District of Oklahoma, seeking a declaratory judgment that Em casco’s insurance policy lega lly obligated it to pay CE Design’s judgment. In turn, Emcas co sued CE Design in the United Stat es District Court for the Northern District of Illinois, seeki ng a declaratory judgment that it was not liable for the judgment. Upon CE Design’s motion, the United States District Court for the Northern District of Illinois transferred Emcas co’s case to the United States District Court for the Western District of Oklahoma. In June 2013, both parties moved for summ ary judgment. Emcasco argued that it had properly denied coverage and refused to defend because Custom’s fax was neither an “occurrence” that caused proper ty damage nor a “personal and advertising injury.” Alternatively, Emcasco contended that th ree policy exclusions barred coverage—the statutory-violation exclusion (Coverages A and B), the expected -or-intended-injury exclusion (Coverage A), and the knowi ng-violation exclusion (Coverage B). In response, CE Design argu ed that Custom’s policy covered CE Design’s claims against Custom under the “property damage ” and “personal and advertising injury” clauses and that no exclusion applied. CE De sign also argued that the statutory-violation exclusion did not apply to CE Design’s conve rsion and ICFA claims, but instead applied- 10 - solely to the TCPA claim. CE Design furthe r argued that Emcasco’s failure to defend Custom estopped it from asserti ng any defenses to indemnity. After hearing arguments, the district c ourt granted Emcasco’s summary judgment motion and denied CE Design’s motion. With th e parties’ agreement, the district court applied Oklahoma law to interpre t the insurance policies. After doing so, the district court concluded that Emcasco had no duty to defend Custom against CE Design’s three claims. Addressing the TCPA claim, the district co urt concluded that the statutory-violation exclusion relieved Emcasco of any duty to de fend that claim. For the conversion claim, the district court observed that Oklahoma’s law of conversion requires an intentional diversion for one’s own personal benefit. See Harmon v. Cradduck , 286 P.3d 643, 649 (Okla. 2012). Applying the policy to exclude coverage for an insured’s intentional acts, the district court concluded that the expect ed-or-intended-in jury exclusion defeated any duty for Emcasco to defe nd the conversion claim. 6 Finally, the district court decided that Emcasco had excluded coverage for the ICFA cl aim because, to prevail under that claim, a defendant must intend for a plaintiff to rely on a deceptive act or unfair practice. 7 See Dubey v. Pub. Storage, Inc. , 918 N.E.2d 265, 277 (Ill. App. Ct. 2009). For these reasons,

6 Contrary to the district court’s view , we conclude that the policy excludes coverage not for intentional acts (such as intentionally sendi ng the faxes) but for nonaccidental property damage

. 7 Emcasco argues that, in add ition to the statutory-viola tion exclusion, either the knowing-violation exclusion or the expected -or-intended-injury ex clusion eliminated any possible duty to defend the ICFA claim. The district court did not identify what exclusions it applied.- 11 - the district court granted Emcasco’s su mmary judgment motion. CE Design timely appealed.

II. DISCUSSION
A. Standard of Review We review de novo a district court’s gran t of summary judgment, applying the same legal standard as applies in the district court. Dalpiaz v. Carbon Cnty., Utah , 760 F.3d 1126, 1131 (10th Cir. 2014). “We must view the factual record and make reasonable inferences therefrom in th e light most favorable to the party opposing summary judgment.” Bohn v. Park City Grp., Inc. , 94 F.3d 1457 , 1460 (10th Cir. 1996). We will uphold the district court’s grant of summary ju dgment only if “there is no genuine dispute as to any material fact and the movant is en titled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). CE Design argues that the district court erre d in concluding that Emcasco had no duty to defend Custom against CE Design’s thre e claims. We first analyze this argument by discussing Oklahoma’s law governing the interpre tation of insurance contracts. Then, in evaluating whether the district court erred, we consider whether e ither Coverage A or Coverage B of the insurance policy provid ed Custom coverage against any of CE Design’s three claims—and thus activated Emcas co’s duty to defend. Finally, we consider whether any of the policy’s exclus ions apply to defeat coverage.- 12 - B. Insurance Contract Interpretation Just as in the district court, CE Design and Emcasco agree that Oklahoma law applies in interpreting the insurance policy. In Oklahoma, “[a]n insurance policy, like any other contract of adhesion, is libe rally construed, consistent w ith the object sought to be accomplished, so as to give a reasonable effe ct to all of its provisions, if possible.” Dodson v. St. Paul Ins. Co. , 812 P.2d 372, 376 (Okla. 1991) . “The construction of an insurance policy should be a natural and reasonable one , fairly constructed to effectuate its purpose, and viewed in the light of common sense so as not to bring about an absurd result.” Wiley v. Travelers Ins. Co. , 534 P.2d 1293, 1295 (Okla. 1974). We construe the terms of the insurance po licy in their plain a nd ordinary sense if they are unambiguous, clear, and consistent. Dodson , 812 P.2d at 376. If the insurance policy language is doubtful and su sceptible to multiple constructions, then we interpret the policy language most fa vorably for the insu red and against the insurer. Id. at 376–77.

C. The TCPA Claim At oral argument on appeal, CE Design conceded that the statutory-violation exclusion removed Emcasco’s duty to defend the TCPA claim. It did so for good reason: the statutory-violation exclusi on explicitly exclude s from coverage any “property damage” or “persona l and advertising injury” “aris ing directly or indirectly out of any action or omissi on that violates or is a lleged to violate” the TCPA.- 13 - Appellant’s App. vol. I at 189, vol. II at 296. We agree w ith the district court that Emcasco had no duty to defend Custom against CE Design’s TCPA claim.

D. The Conversion Claim
1. Coverage A In its state court complaint, CE Design al leged in support of its conversion claim that, by sending unsolicited faxes, Cust om “improperly and unlawfully converted their [the class members’ ] fax machines, toner and paper to its own use” and “permanently misappropriated the class memb ers’ fax machines, toner, paper, and employee time to [its] own use.” Appellant’s App. vol. I at 105. It further alleged that Custom “knew or should have known that its misappropria tion of paper, toner, and employee time was wrongful and without aut horization.” Appellant’s App. vol. I at 105.

a. Intentional Conversion In Oklahoma, conversion is “the unauthorized assu mption and exercise of dominion over personal property of another which is incons istent with the rights of the owner.” Harmon , 286 P.3d at 649 (citing Welty v. Martinaire of Okla., Inc. , 867 P.2d 1273, 1275 (Okla. 1994)). One element of conversion is that a defendant “intentionally diverted [the propert y] for his own personal benefit.” Harmon , 286 P.3d at 649 (emphasis added). By alleging that Custom “knew” it had wrongfully and with out authorization misappropriated the fax recipi ents’ toner and paper for its own personal benefit, CE- 14 - Design sufficiently pleaded a claim for convers ion. But by proving its allegations, CE Design would be defeating policy covera ge. Custom could not know that its misappropriation of the recipients’ propert y was wrongful without also intentionally misappropriating the property. After all, everyone knows that sending a fax results in a receiving fax machine printing th e message on paper with toner. Cf. Equity Ins. Co.
v. Garrett , 178 P.3d 201, 205 (Okla. Civ. App. 2008) (concluding that injuries caused by driving an automobile into a pedest rian, even at a sl ow speed, “cannot be considered otherwise than ‘so natural a nd probable as to be expected by any reasonable person,’ and ‘the result . . . so na tural and probable as to be expected by any reasonable person,’ and ‘the result . . . so foreseeable as not to be accidental’”) (citation omitted). In such a case, the polic y does not provide coverage. And, even if it did, the policy would later exclude it under the expected-or-intended-injury exclusion. Under Coverage A, as mentioned, the po licy applies only if “‘property damage’ is caused by an ‘occurrence.’” Appellant’s App. vol. I at 174. The policy defines “occurrence” as an accident. Appellant’s A pp. vol. I at 187. In turn, Oklahoma defines “accident” using a plai n language, dictionary meani ng: “[a]n event that takes place without one’s foresight or expectation; an undersigned, s udden and unexpected event, chance, contingency.” U.S. Fid. & Guar. Co. v. Briscoe , 239 P.2d 754, 757 (Okla. 1951). Illinois (where the allege d conversion took pl ace) has a similar- 15 - definition. 8 See Viking Const. Mgmt., Inc. v. Liberty Mut. Ins. Co. , 831 N.E.2d 1, 6 (Ill. App. Ct. 2005) (defini ng “accident” as “an unforese en occurrence . . . or an undersigned sudden or unexpected event of an inflic tive or unfortunate character”). The problem for CE Design is that, by provi ng its intentional conversion claim, it would also disprove that an accident cause d its property damages. That would leave it with a claim that falls out side Emcasco’s duty to defe nd and the policy’s coverage.

b. Negligent Conversion Having shown that the policy does not cove r intentional conversion, we now turn to CE Design’s claim for what it calls “negligent conversion.” Although CE Design uses this term, we do not understand it to argue that Oklahoma or Illinois law would recognize a tort for negligent conversion in a real sense of that term—for instance, a traveler mistakenly but hone stly grabbing an identical-l ooking suitcase instead of the

8 The parties agree that Oklahoma law gove rns the interpretation of the insurance policy. Even so, we are unsur e we agree with the district court that Oklahoma’s law on conversion governs. Perhap s, because the conversion its elf took place in Illinois, its law of conversion—and not Oklahoma’s— should apply. In considering this, we recognize that Oklahoma’s choice- of-law principles control. See Boyd Rosene & Assocs. v. Kan. Mun. Gas Agency , 174 F.3d 1115, 1118 (10th Cir. 1999) (stating that, for substantive matters, a federal court sitting in di versity should look “to the substantive law of the forum state, in cluding its choice of law principles, to determine the applicable substantive law”). Under Oklahoma’s choice-of-law principles, we would apply I llinois’s law on conversion if Illinois had the “the most significant relationship to th e occurrence and the parties.” See Brickner v. Gooden , 525 P.2d 632, 637 (Okla. 1974). Because the conversion claim would fail under both Oklahoma and Illinois law, we need not deci de which state’s conve rsion law governs.- 16 - traveler’s own. 9 Nor do we understand CE Design to address that situation. Instead, we understand CE Design to speak to a trad itional, intentional conversion committed under a mistaken factual or legal belief of a right to appropriate the property. Appellant’s Br. at 20-21, citing Ins. Corp. of Hanover v. Shelborne Assocs. , 905 N.E.2d 976, 985 (Ill. App. Ct . 2009) (concluding, at declar atory judgment stage, that “[it] is possible that [the insured] was negligent in be lieving that the subject fax advertisements were authori zed and did not intend to c onvert the recipients’ paper and toner or dispossess them of their fax machine”); SportChassis, LLC v. Brownard Motorsports of Palm Beach, LLC 2011 WL 5429404, at *3 (W.D. Okla., Nov. 9, 2011) (unpublished) (concluding that fa ilure to return two cars provided on consignment was conversion despite a mi staken view about the consignment agreement’s provisions). We believe that CE Design pleaded this sort of “negligent conversion” by alleging that Custom “should have known” that it had

9 CE Design would have no legal basis to support a mistaken-suitcase theory of negligent conversion. Neith er Oklahoma nor Illinois law recognizes such a negligence claim. See Harmon , 286 P.3d at 649 (focusing on “whether [the defendant] intentionally diverted [the pr operty] for his own personal benefit”); Loman v. Freeman , 890 N.E.2d 446, 462 (Ill. 2008) (s tating that “[t]he essence of a claim for conversion is an allegation that the defendant engaged in an intentional , wrongful act”); Craig v. Citicorp Sav. , 578 N.E.2d 1331, 1336 (Ill. App. Ct. 1991) (concluding that an act “alleged to be a conversion must be positive and tortious but not necessarily wil[l]ful or corrupt; neit her negligence nor a breach of contract, though it results in the loss of specifi c property, constitut es conversion”).- 17 - misappropriated paper, toner, and CE Design’s employee’s time. 10 Appellant’s App. vol. I at 105. So we agree with CE Design that a fax- sender could intentiona lly convert its fax recipients’ paper, toner, and use of their fax machines wh ile mistakenly believing that the recipients had expressly permitted and welcomed its fa xed advertisement. And we agree with CE Design that, in certain circ umstances, such a mi staken belief could qualify as an occurrence (accident) cau sing property damages under the policy. Further, we agree that if Custom had a su pported, though mistaken, belief that its recipients welcomed its faxe s, it likely would meet eith er Oklahoma’s or Illinois’s definition of accident. In arguing that Custom’s “n egligent conversion” qualifie s as an accident causing property damages, CE Design relies heavily on this court’s decision in Park Univ. Enters., Inc. v. Am. Cas. Co. of Reading , 442 F.3d 1239 (10th Ci r. 2006). Indeed, that case bears many similarities to this one—it involved a class-action TCPA claim; the complaint alleged that the in sured fax-sender (Park Univers ity) “knew or should have known” that it did not have express permis sion to fax the advertisements; and Park University claimed that, at most, it accide ntally caused the prope rty damage (loss of paper, toner, and use of fax machines) because it belie ved that the recipient had solicited its fax. We concl uded that the insurer owed a duty to defend, because “an

10 Faced with this same “knew or shoul d have known” comp laint language in Park University , we noted that the occurrenc e (accident) “could result from negligent conduct . . . .” 442 F.3d 1246.- 18 - occurrence was possible under the insurance contract. . . .” Id . at 1247. Applying Kansas law, we noted that “ev en if an act itself is inte ntional, it may result in an unintended injury.” Id . at 1245 (citing Spruill Motors, Inc. v. Universal Ins. Co. , 512 P.2d 325, 327 (Kan. 1973)). But in Park University , we did not hold that any ba re claim of a mistake would trigger coverage as an accident. Instead, we evaluated Park University’s asserted bases it set forth to show th e reasonableness of its belief. Id . at 1242–43. In particular, we noted that Park University cl aimed that its fax to JC Hauling was “not unsolicited because Park Univ ersity had an existing business relationship with JC Hauling or, in the alternativ e, it had prior express invita tion or permission from JC Hauling to send the fax advertisement.” Id. at 1242. And this was no unsupported, self-serving conclusion. From the start, Park University had said th at it had sent its fax to a named employee of JC Hauling (t he fax recipient), who, acting in her employment, had registered for a Park Univ ersity seminar and supplied JC Hauling’s fax number to it. Id . at 1242-43. In determining that this established a sufficient basis for a duty to defend, we distinguished Park University’s circumstan ce from those in other cases where courts found no insurance coverage despite a fax- sender’s claim of a belief that it had permission to send its faxes. Id . at 1246-47. In this regard, we examined Resource Bankshares Corp. v. St. Paul Mercury Ins. , 407 F.3d 631, 638 (4 th Cir. 2005), a case in which the insured fax-sender claimed “it onl y intended to fax ad s to recipients who- 19 - actually wanted them, and only did otherwise inadvertently.” Park Univ. , 442 F.3d at 1246-47 (quoting Res. Bankshares Corp. , 407 F.3d at 638). We approvingly cited that court’s decision against policy coverage, noting that “the plaint iff there failed to present any evidence ‘that would cause a reasonable person to mistakenly believe that they had received prior express consent to send their ads . . . .”’ Id. (citing Res. Bankshares Corp. , 407 F.3d at 639). Here, any beli ef of Custom’s that its faxes would be welcomed more resemb les the unsupported belief in Resource Bankshares Corp. than the “clearly expressed” answer as sertions of Park University that “its actions were in fact solicited . . . .” 11 Park Univ. , 442 F.3d at 1247. For this reason, CE Design’s claim for c overage must fail. Unlike the insured in Park University , CE Design points us to nothing in the record showing that Custom identified to Emcasco any basis for its supp osed mistaken belief that even a single one of its 2,552 faxes was authorized. Inst ead it presents to us a bare claim of

11 We note that CE Design included in its appendix an affidavit from Custom’s President, Richard G. Peitz, alleging that it obtained fax numbers from a “Construction Blue Book.” Peitz claimed that Custom believed that, by providing contact information to the Bl ue Book, those individuals and businesses had consented to receiving faxes from Custom. But this a ffidavit came shortly be fore the state court entered judgment and accepted the settlement, and nothing in the record shows that Custom presented the affidavit to Emcas co before settling. This is unlike Park University , where the insured company clearly asse rted in its state- court answer that the recipient solicited the insured’s fax. See 442 F.3d at 1247. Moreover, we conclude that Peitz’s late affidavit a nd unexplained, blanke t assertion is not “evidence that could reasonably be mistak en as express permission to send these faxes.” See Res. Bankshares Corp. , 407 F.3d at 639.- 20 - mistake that any fax-sender can make . We disagree with CE Design that Park University would qualify such a deficiently s upported “mistake” as an occurrence (accident) causing property damage. If this sufficed as an accident, it is hard to imagine what would not. Accordingly, we conclude that Emca sco had no duty to defend Custom against CE Design’s “s hould have known” conversion claim.

2. Coverage B The policy defines “personal and advertis ing injury” to include seven general categories of conduct, none of which menti ons conversion. Even so, we agree with CE Design that a claim, such as the TC PA, need not be speci fically mentioned to qualify—it might qualify under a listed general category such as a privacy violation. That particular cate gory provides coverage for injuri es arising out of “[o]ral or written publication, in any manner, of mate rial that violates a person’s right of privacy.” Appellant’s App. vol. I at 187– 88, vol. II at 293–94. For instance, in Park University , evaluating a claim under the TCPA, we concluded that “[c]ourts have consistently held that the TCPA protect s a species of privacy in the sense of seclusion.” 442 F.3d at 1249. There we found coverage for a TCPA claim as a “personal or advertising injury.” Id. We did so recognizing that “[t]he transmission of an allegedly unsolicited fa x can constitute a publishing act , while receiving the same can result in an invasion of privacy.” Id . at 1251. But this does CE Design little good—it conced es that its TCPA claim is excluded. Thus, CE Design is left to direct us to a case finding that a conversion claim fits- 21 - within the privacy coverage . Instead, it gives us le ngthy string cites (with no parentheticals) to cases in which courts found a privacy right in TCPA claims. 12 We conclude that conversion clai ms do not qualify as “persona l and advertising injury.” Although a TCPA claim proves a “publication” of material with the sending of the fax, see Park Univ. , 442 F.3d at 1250, a conversi on claim does not—it simply proves a wrongful appropriation of property. Thus, converting another’s property does not qualify as a “written publication . . . of ma terial that violates a person’s right to privacy.” Appellant’s App. vol. I at 187–88, vol. II at 293–94. And even if it did, CE Design’s claim still would fail under the knowing-violation- of-rights-of-another exclusion. Again, because Custom offered no basis for any mistaken belief that its faxes were expressly permi tted or welcomed, we would conclude that it knew its faxes would inflict any cove red injuries. Accordingly, we conclude that Emcasco owed no duty to defend under Coverage B.

E. The ICFA (Illinois Consumer Fraud Act) Claim Finally, we consider whether Emcasco ha d a duty to defend Custom against CE Design’s ICFA claim. The district court did not determine whether the policy covered this claim, instead directing its attention to Emcasco’s position that three policy exclusions

12 In its brief, Emcasco contends that CE Design has waived this issue because “this position was not asserted (at least not clearly) in th is district court. . . .” Appellee’s Br. at 21. In its reply brief, CE Design does not contend otherwise. Appellant’s Reply Br. at 6-9.- 22 - applied: the expected-or-intend ed-injury exclusion, the know ing-violation exclusion, and the statutory-violation exclusio n. Because an ICFA claim requires that a defendant intend for a plaintiff to rely on a decep tive act, the district court c oncluded that “this intended act would exclude the ICFA claim from coverage.” Appellant’s App. vol. IV at 985. Although the district court did not then tie this back to the exclusions and sa y which applied or did not apply, we still have enough in the record to affirm. We agree with the district c ourt that, to prove its ICFA claim, CE Design would need to prove that Custom intended for it and the class members to rely on a deception. De Bouse v. Bayer , 922 N.E.2d 309, 313 (Ill. 2009) (stati ng that one requirement for an ICFA claim is “the defendant’ s intent that the plaintiff rely on the deception”). 13 This proof would necessarily be inconsistent with late r saying that the (unidentified) deception caused property damage, implicating possible coverage under Coverage A. Nor has CE Design pointed us to anything in the policy’ s definition of “pers onal and advertising injury” that would activate coverage under Coverage B. Moreover, the intent-to-deceive element wo uld also trigger all three exclusions Emcasco relies upon. The ICFA claim differs from the conversion claim in a material respect: although for conversion a fax-sender may claim to have intentionally faxed an advertisement thinking it was welcome when it was not, a fax-sender for ICFA cannot

13 “A Consumer Fraud Act claim requires (1) a deceptive act or practice by the defendant, (2) the defendant’s intent that the plaintiff rely on the deception , (3) the occurrence of the deception in a course of conduct involving trade or commerce, and (4) actual damage to the plaintiff th at is (5) a result of the deception.” De Bouse , 922 N.E.2d at 313 (emphasis added).- 23 - claim a “mistake” when it faxes an advertis ement intentionally m eaning to deceive the recipient. For each of these reasons, we c onclude that Emcasco had no duty to defend Custom against CE Design’s ICFA claim.

F. The Statutory-Violation Exclusion As an independent basis to defeat all th ree of CE Design’s claims, Emcasco relieson the policy exclusion for “VIOLATION OF STATUTES THAT GOVERN EMAILS, FAX, PHONE CALLS OR OTHE R METHODS OF SENDING MATERIAL OR INFORMATION.” Appellant’s App. vol. I at 189. Specifica lly, this exclusion provides that “[t]his insurance does not apply to: DISTRIBUTION OF MATERIAL IN VIOLATION OF STATUTES.” Appellant’s App. vol. I at 189. Under Coverages A and B, it excludes coverage for “propert y damage” and “pers onal and advertising injury” “arising directly or indirectly out of any action or omission that violates or is alleged to violate:” the Telephone Cons umer Protection Act (TCPA), the CANSPAM Act, or any other “statute, ordinance or regulation . . . that prohibits or limits the sending, transmitting, communicating or di stribution of material or information.” Appellant’s App. vol. I at 189. We agree with Emcasco that the statutory- violation exclusion de feats all three of CE Design’s claims. Under CE Design’s state-court complain t, it alleged that Custom had violated the TCPA by faxing unsolicited advertisemen ts without prior express permission. Accordingly, CE Design alleged that Custom had dist ributed material in violation of the TCPA. The statutory-vi olation exclusion denies insurance for- 24 - “property damage” and “personal and a dvertising injury” that arise—even indirectly—out of any act or omission vi olating the TCPA. Without Custom’s having faxed the advertisement to CE Design, ne ither CE Design’s conve rsion claim nor its ICFA claim would exist. Thus, we hold that any property dama ge or personal and advertising injury arose directly from Custom’s actions in sending the faxed advertisements. In addition, we find persuasive G.M. Sign, Inc. v. State Farm Fire and Cas. Co. , 18 N.E.3d 70, 78–83 (Il l. App. Ct. 2014). 14 In that case, a class of claimants sued an insured party for faxing unsolic ited advertisements and plead ed the same three claims under the TCPA, common-law conversion, and the ICFA. Id. at 72. Relying on a statutory-violation exclusion id entical to Emcasco’s, the c ourt held that the exclusion defeated all three claims. Id. at 80–81. In our case, CE Design makes some of the same arguments as did its counterparts in G.M. Sign . We reject them on the same bases.

14 See also Am. Cas. Co. of Readi ng, Pa. v. Superior Pharmacy, LLC , -- F. Supp. 3d --, 2015 WL 628382, at *6–7 (M.D. Fl a. 2015) (concluding that a statutoryviolation exclusion remove d a conversion claim from coverage because the act violating the TCPA (faxing of an advertisem ent) was also the act alleged to support plaintiff’s conversion claim); James River Ins. Co. v. Med Waste Mgmt., LLC , -- F. Supp. 3d --, 2014 WL 4749551, at *6–9 (S.D. Fla. 2014) (same); G.M. Sign, Inc. v. Auto-Owners Ins. Co. , 2012 WL 4840592, at *4 (Mich. Ct. App. Oct. 11, 2012) (unpublished) (same). But see Nationwide Mut. Ins. Co. v. Harris Med. Assocs., LLC , 973 F. Supp. 2d 1045, 1055–56 (E.D. Mo. 2013) (concluding that the insurance company could not establish suff icient facts at that stage of the case to establish that the statutory violation exclusion remove d the plaintiff’s conversion claim from coverage).- 25 - CE Design contends that th e statutory-violation exclus ion’s language “applies to damages that arise out of a violation of th e TCPA.” Appellant’s Rep. Br. at 9. From this, it argues that “[t]he only damages that arise out of the TCPA are the damages provided for by that statute.” Id. We understand CE Design to be speaking of monetary damages as opposed to “propert y damage” or “pers onal and advertising injury.” See id . at 9-10 (“Counts II and III of th e Complaint in the underlying action seek independent damages from those sou ght in Count I and would be cognizable even if the TCPA did not ex ist.”). This interpretation mi scharacterizes the statutoryviolation exclusion’s langua ge—it does not speak of “d amages” in the monetary sense, it speaks of “property damage,” here , the loss of paper, t oner, and use of the fax machine. CE Design also contends that the stat utory-violation excl usion’s language does not apply because its “conversi on and ICFA claims have di fferent elements and arise out of actions separate from the TCPA claim.” 15 Appellant’s Rep. Br . at 10. Although CE Design agrees that the TCPA claim “sha res some of the factual predicates” as the other two claims, CE Design co ntends that those claims “w ould be cognizable even if

15 We note that CE Design in corporated the following TC PA allegations into its conversion and ICFA claims: (1) that Custom faxed its recipients unsolicited faxes that it had no invitation or ex press permission to send; (2) that it sent Custom Design a faxed advertisement and sent the same or similar faxes to the other class members; and (3) that Custom’s faxes did not displa y an opt-out as required by 47 C.F.R. § 64.1200, a regulation implementing the TCPA. See 47 U.S.C. § 227. And we also note that CE Design’s judgm ent for $1,276,000 is calcula ted exclusively under the TCPA: $500 for each of the 2,552 advertisem ents faxed in violation of the TCPA.- 26 - the TCPA did not exist.” Id. Again, this misses the mark . The statutory-violation exclusion applies not when clai ms share the same elements, 16 but instead when the property damage (paper, toner, and use of the fax machine) aris es out of the same
actions (the sending of the faxes) violati ng or allegedly violating the TCPA. See G.M. Sign , 18 N.E.3d at 78 (“[W]e disagree that . . . the pertinent analysis requires comparing the elements of the alternativ e counts to the elements of the TCPA count.”). Next, CE Design contends th at its conversion and ICFA claims do not arise out of a TCPA violation. Appellant’s Reply Br. at 11. Again, th is ignores the exclusion’s language, which looks to whether the property damage and personal and advertising injury “arise directly or indirec tly out of any action or omis sion that violates or is alleged to violate” the TCPA. Appellant’s App. vol. I at 189 (emphasis added). CE Design seeks to propel itse lf through this language by arguing that its conversion claim “does not rely on the TCPA as the source of [CE Design’ s] right, and seeks separate damages.” Appellant’s Rep. Br. at 11. In this re gard, it notes that some of

16 By requiring the same elements as a TCPA claim, CE Design would limit the statutory exclusion’s first paragraph to TC PA claims. That ignores key language in the exclusion—“‘[p]roperty damage’ aris ing directly or indirectly out of any action or omission , that violates or is alleged to viol ate[.]” Appellant’s App. vol. I at 189 (emphasis added). If the statutory exclusi on meant what CE Design says it means— that only violations of the listed statutes qualified for the exclusion—this “action” language would be unneeded and have no place. With th is in mind, we have no difficulty concluding that Emcasco did not create a reasonable expectation of coverage that was unsupp orted by policy language. Max True Plastering, Co. v. U.S. Fid. & Guar. Co. , 912 P.2d 861, 863 (Okla. 1996).- 27 - Custom’s faxes might support a claim for conversion but not a TCPA claim. Specifically, it notes that a conversion clai m would avoid any need to prove that the fax was an advertisement or that the fax recipient had no business relationship with Custom. Appellant’s Rep. Br. at 11. For its ICFA claim, CE Design says that it “also did not arise out of any violation of the TCPA.” Id. Here, CE Design overlooks two problems. First, as mentioned, its $1, 276,000 judgment reflects 2,552 faxes multiplied by $500 (the TCPA penalty for each fax), the basis on which it recommended settlement to the class members. Second, as noted above, its conversion and ICFA claims pleaded the necessary facts to establish a TCPA violation. Ultimately, we conclude that the policy does not provide coverage for Custom’s junk faxes to CE Design and the clas s members. We have liberally construed the policy to give reasonable effect to its provisions. See Dodson , 812 P.2d at 376 (Okla. 1991). We are also mindful that, where a genuine ambiguity exists in an insu rance policy, Oklahoma courts will interpret the contract most favorably to the insured. See Houston Gen. Ins. Co. v. Am. Fence Co., Inc. , 115 F.3d 805, 806 (10th Cir. 1997). But we find no ambiguity in the policy, and we conclude that the policy excludes Custom’s fax from coverage. We also reject CE Design’s furthe r argument that Emcasco breached its duty to defend Custom and is now required to indemnify the judgment.

III. CONCLUSION We affirm the district court’s grant of summary judgment in favor of Emcasco.