IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF ILLINOIS 

EASTERN DIVISION 

HARLEYSVILLE PREFERRED 

INSURANCE COMPANY, An Ohio 

Corporation; and HARLEYSVILLE 

WORCESTER INSURANCE COMPANY, 

an Ohio Corporation, 

Plaintiffs, 

v. 

FOUR SEASONS HEATING & AIR 

CONDITIONING INC., an Illinois 

Corporation; and KEVIN TRUSS, 

Defendants. 

) 

) 

) 

) 

) 

) Case No. 

) 

) 

) 

) 

) 

) 

) 

) 

) 

COMPLAINT FOR DECLARATORY JUDGMENT 

Plaintiffs, HARLEYSVILLE PREFERRED INSURANCE COMPANY, An Ohio 

Corporation; and HARLEYSVILLE WORCESTER INSURANCE COMPANY, an Ohio 

Corporation, by and through its attorneys, MEAGHER & GEER, P.L.L.P., states the following as 

its Complaint for Declaratory Judgment, pursuant to 28 U.S.C. § 2201 and Fed. R. Civ. P. 57, 

against Defendants, FOUR SEASONS HEATING & AIR CONDITIONING INC., an Illinois 

Corporation; and KEVIN TRUSS: 

Introduction 

1. This is a Declaratory Judgment action to obtain a declaration of the rights and 

obligations under a commercial general liability insurance policy, Certificate Number 

MPA5387AP issued by Harleysville Preferred Insurance Company, and a commercial umbrella 

insurance policy, Certificate Number CMB38473M issued by Harleysville Worcester Insurance 

Company, both of which were issued to their named insured, Four Seasons Heating & Air 

Conditioning, Inc. (“Four Seasons”). Plaintiffs seek a declaration from this Court regarding the 

Case: 1:20-cv-02146 Document #: 1 Filed: 04/06/20 Page 1 of 27 PageID #:1
extent of the Plaintiffs’ rights and obligations, if any, under the Policy for the allegations in the 

lawsuit entitled, Kevin Truss, Individually and on Behalf of All Others Similarly Situated v. Four 

Seasons Heatign & Air Conditioning, Inc., Case No. 2019 CH 9633, filed in the Chancery 

Division of the Circuit Court of Cook County, State of Illinois (the “Underlying Complaint”). (A 

copy of the Underlying Complaint is attached as Exhibit A.)

2. Plaintiffs seek a declaration from this Court that it owes no obligation under their 

respective policies to defend and/or to indemnify Four Seasons with regard to the allegations in 

the Complaint. 

Jurisdiction and Venue 

3. Plaintiff, Harleysville Preferred Insurance Company (“HPIC”), was an 

insurance company with its principal place of business in Columbus, Ohio and was authorized 

to issue policies of insurance in the state of Illinois. 

4. Plaintiff, Harleysville Worcester Insurance Company (“HWIC”), was an 

insurance company with its principal place of business in Columbus, Ohio and was authorized 

to issue policies of insurance in the state of Illinois. 

5. Defendant, Four Seasons Heating & Air Conditioning, Inc. (“Four Seasons”), 

is a corporation organized under the laws of Illinois with its principle place of business in 

Chicago, Illinois. Four Seasons is the named insured under the commercial general liability 

insurance policy issued by HPIC and the commercial umbrella policy issued by HWIC, which 

are at issue and further described in this Complaint. 

6. Defendant, Kevin Truss (“Truss”), is a resident of Illinois. Plaintiffs name 

Truss as a potentially interested party by virtue of his status as the named plaintiff and putative 

Case: 1:20-cv-02146 Document #: 1 Filed: 04/06/20 Page 2 of 27 PageID #:2
class representative in the Underlying Complaint. No affirmative relief is sought against 

Truss. 

7. The violations of BIPA alleged in the Underlying Complaint all occurred at 

various unidentified locations within the State of Illinois. 

8. Diversity jurisdiction exists because: (a) there is complete diversity of 

citizenship between Plaintiffs, HPIC and HWIC, on the one hand, and Defendants, Four 

Seasons and Truss, on the other hand; and (b) the amount in controversy, including the 

potential cost of defending and indemnifying Four Seasons in the Underlying Lawsuit well 

exceeds $75,000. 

9. Venue is appropriate under 28 U.S.C. § 1391(b)(2), as a substantial part of the 

events or omissions giving rise to this lawsuit occurred in this District, including where the 

HPIC and HWIC Policies were issued and delivered, where the statutory violations alleged in 

the Underlying Complaint occurred, and where the underlying lawsuit is pending. 

10. An actual justiciable controversy exists between HPIC and HWIC, on the one 

hand, and Four Seasons, on the other hand, and by the terms and provisions of Rule 57 of the 

Federal Rules of Civil Procedure and 28 U.S.C. §§ 2201 and this Court is invested with the 

power to declare the rights and liabilities of the parties hereto and to grant such relief as it 

deems necessary and proper. 

The Underlying Putative Class Action Lawsuit 

11. Defendant Truss has brought a putative class action complaint directed against 

Four Seasons in the Chancery Division of the Circuit Court of Cook County, Illinois, which is 

entitled, Kevin Truss, individually, and on behalf of all others similarly situated, v. Four Seasons 

Case: 1:20-cv-02146 Document #: 1 Filed: 04/06/20 Page 3 of 27 PageID #:3
Heating & Air Conditioning, Inc., Case No. 2019 CH 9633 (the “Underlying Complaint”). 

(Exhibit A.) 

12. The Underlying Complaint contains three counts, which allege that Four Seasons 

violated the Illinois Biometric Information Privacy Act (“BIPA”) [740 ILCS 14/1 et seq.] by 

engaging in the “unlawful collection, use, storage, and disclosure of Plaintiffs’ sensitive and 

proprietary information” (Exhibit A, ¶¶ 13-15, 33-47). 

13. Counts I through III of the Underlying Complaint seek statutory damages available 

under BIPA to Truss and each putative class member, of $1,000 per negligent violation, $5,000 

per intentional or reckless violation. (Exhibit A, ¶¶ 84, 94, 103, and Prayer for Relief). 

14. The Underlying Complaint seeks to certify a purported class of “all persons who 

were enrolled in the biometric timekeeping system and subsequently used a biometric timeclock 

while employed/working for Defendant in Illinois during the applicable statutory period.” 

(Exhibit A, ¶ 71). The putative class is alleged to include “in excess of forty (40) potential class 

members.” (Exhibit A, ¶ 72). 

15. The Underlying Complaint alleges that Four Seasons “has required or coerced 

employees to comply [with its biometric timekeeping policy] in order to receive a paycheck, after 

they have committed to the job.” (Exhibit A, ¶ 70). 

16. The Underlying Complaint alleges that Four Seasons “has violated and continues 

to violate BIPA because it did not and, upon information and belief, continues not to: 

a. Properly inform Plaintiffs and others similarly situated in writing of the 

specific purpose and length of time for which their hand scan(s) were being 

collected, stored, and used, as required by BIPA; 

b. Provide a publicly available retention schedule and guidelines for 

permanently destroying Plaintiffs' and other similarly-situated individuals' 

hand scan(s), as required by BIPA; 

Case: 1:20-cv-02146 Document #: 1 Filed: 04/06/20 Page 4 of 27 PageID #:4
c. Receive a written release from Plaintiffs and others similarly situated to 

collect, store, disseminate, or otherwise use their hand scan(s), as required 

by BIPA; and 

d. Obtain consent from Plaintiffs and others similarly situated to disclose, 

redisclose, or otherwise disseminate their biometric identifiers and/or 

biometric information to a third party as required by BIPA.” (Exhibit A, ¶¶ 

15, 77-83, 86-93, 96-102). 

The HPIC CGL Policy 

17. HPIC issued to Four Seasons Heating & Air Conditioning, Inc. (“Four Seasons”) 

a Commercial General Liability Policy, No. MPA5387AP, effective October 1, 2018 through 

October 1, 2019, with limits of $1 million each occurrence, $1 million for personal and 

advertising injury, and $2 million in the general aggregate. (A copy of the HPIC Policy is 

attached hereto and made a part hereof as Exhibits “B”). 

18. The HPIC Policy provides, in relevant part, as follows: 

COMMERCIAL GENERAL LIABILITY COVERAGE FORM 

Various provisions in this policy restrict coverage. Please read the entire policy 

carefully to determine rights, duties and what is and is not covered. 

Throughout this policy the words "you" and "your" refer to the Named Insured 

shown in the Declarations, and any other person or organization qualifying as a 

Named Insured under this policy. The words "we", "us" and "our" refer to the 

Company providing this insurance. 

The word "insured" means any person or organization qualifying as such under 

Section II – Who Is An Insured. 

Other words and phrases that appear in quotation marks have special meaning. 

Refer to Section V. Definitions. 

SECTION I. COVERAGES 

COVERAGE A – BODILY INJURY AND PROPERTY DAMAGE LIABILITY

1. Insuring Agreement 

a. We will pay those sums that the insured becomes legally obligated to pay as 

damages because of "bodily injury" or "property damage" to which this 

insurance applies. We will have the right and duty to defend the insured 

against any "suit' seeking those damages. However, we will have no duty to 

Case: 1:20-cv-02146 Document #: 1 Filed: 04/06/20 Page 5 of 27 PageID #:5
defend the insured against any "suit" seeking damages for "bodily injury" or 

"property damage" to which this insurance does not apply. We may, at our 

discretion, investigate any "occurrence" and settle any claim or "suit" that may 

result. But: 

(1) The amount we will pay for damages is limited as described in Section 

III — Limits Of Insurance; and 

(2) Our right and duty to defend ends when we have used up the 

applicable limit of insurance in the payment of judgments or 

settlements under Coverages A or B or medical expenses under 

Coverage C. 

No other obligation or liability to pay sums or perform acts or services is 

covered unless explicitly provided for under Supplementary Payments — 

Coverages A and B. 

b. This insurance applies to "bodily injury" and "property damage" only if: 

(1) The "bodily injury" or "property damage" is caused by an "occurrence" 

that takes place in the "coverage territory"; 

(2) The "bodily injury" or "property damage" occurs during the policy 

period; and 

(3) Prior to the policy period, no insured listed under Paragraph 1. of 

Section II — Who Is An Insured and no "employee" authorized by you 

to give or receive notice of an "occurrence" or claim, knew that the 

"bodily injury" or "property damage" had occurred, in whole or in part. If 

such a listed insured or authorized "employee" knew, prior to the policy 

period, that the "bodily injury" or "property damage" occurred, then 

any continuation, change or resumption of such "bodily injury" or 

"property damage" during or after the policy period will be deemed to 

have been known prior to the policy period. 

c. "Bodily injury" or "property damage" which occurs during the policy period and 

was not, prior to the policy period, known to have occurred by any insured 

listed under Paragraph 1. of Section II — Who Is An Insured or any 

"employee" authorized by you to give or receive notice of an "occurrence" or 

claim, includes any continuation, change or resumption of that "bodily injury" 

or "property damage" after the end of the policy period. 

d. "Bodily injury" or "property damage" will be deemed to have been known to 

have occurred at the earliest time when any insured listed under Paragraph 1. 

of Section II — Who Is An Insured or any "employee" authorized by you to 

give or receive notice of an "occurrence" or claim: 

Case: 1:20-cv-02146 Document #: 1 Filed: 04/06/20 Page 6 of 27 PageID #:6
(1) Reports all, or any part, of the "bodily injury" or "property damage" to 

us or any other insurer; 

(2) Receives a written or verbal demand or claim for damages because of 

the "bodily injury" or "property damage"; or 

(3) Becomes aware by any other means that "bodily injury" or "property 

damage" has occurred or has begun to occur. 

e. Damages because of "bodily injury" include damages claimed by any person 

or organization for care, loss of services or death resulting at any time from 

the "bodily injury".

2. EXCLUSIONS 

This insurance does not apply to:

[. . . ] 

e. Employer's Liability 

 "Bodily injury" to: 

(1) An "employee" of the insured arising out of and in the course 

of: 

(a) Employment by the insured; or 

(b) Performing duties related to the conduct of the insured's 

business; or 

[. . .] 

 This exclusion applies whether the insured may be liable as an 

employer or in any other capacity and to any obligation to share 

damages with or repay someone else who must pay damages because 

of the injury. 

 This exclusion does not apply to liability assumed by the insured under 

an "insured contract". 

[. . .] 

COVERAGE B — PERSONAL AND ADVERTISING INJURY LIABILITY 

1. Insuring Agreement 

a. We will pay those sums that the insured becomes legally obligated to pay as 

damages because of "personal and advertising injury" to which this insurance 

Case: 1:20-cv-02146 Document #: 1 Filed: 04/06/20 Page 7 of 27 PageID #:7
applies. We will have the right and duty to defend the insured against any 

"suit" seeking those damages. However, we will have no duty to defend the 

insured against any "suit" seeking damages for "personal and advertising 

injury" to which this insurance does not apply. We may, at our discretion, 

investigate any offense and settle any claim or "suit" that may result. But: 

(1) The amount we will pay for damages is limited as described in 

Section III — Limits Of Insurance; and 

(2) Our right and duty to defend end when we have used up the 

applicable limit of insurance in the payment of judgments or 

settlements under Coverages A or B or medical expenses under 

Coverage C. 

No other obligation or liability to pay sums or perform acts or services is 

covered unless explicitly provided for under Supplementary Payments — 

Coverages A and B. 

b. This insurance applies to "personal and advertising injury" caused by an 

offense arising out of your business but only if the offense was committed in 

the "coverage territory" during the policy period. 

2. Exclusions 

This insurance does not apply to: 

a. Knowing Violation Of Rights Of Another

"Personal and advertising injury" caused by or at the direction of the 

insured with the knowledge that the act would violate the rights of another 

and would inflict "personal and advertising injury". 

[. . .]

SECTION V – DEFINITIONS 

1. "Advertisement" means a notice that is broadcast or published to the 

general public or specific market segments about your goods, products or 

services for the purpose of attracting customers or supporters. For the 

purposes of this definition: 

a. Notices that are published include material placed on the Internet or on 

similar electronic means of communication; 

[. . . ] 

3. "Bodily injury" means bodily injury, sickness or disease sustained by a 

person, including death resulting from any of these at any time. 

Case: 1:20-cv-02146 Document #: 1 Filed: 04/06/20 Page 8 of 27 PageID #:8
13. "Occurrence" means an accident, including continuous or repeated 

exposure to substantially the same general harmful conditions. 

14. "Personal and advertising injury" means injury, including consequential 

"bodily injury", arising 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; 

[ . . . ] 

22. "Your work": 

a. Means: 

(1) Work or operations performed by you or on your behalf; and 

(2) Materials, parts or equipment furnished in connection with such 

work or operations.

The following Endorsements were incorporated into and modified the Policy: 

RECORDING AND DISTRIBUTION OF MATERIAL OR 

INFORMATION IN VIOLATION OF LAW EXCLUSION

This endorsement modifies insurance provided under the following: 

COMMERCIAL GENERAL LIABILITY COVERAGE PART 

A. Exclusion q. of Paragraph 2. Exclusions of Section I — Coverage A — 

Bodily Injury And Property Damage Liability is replaced by the following:

2. Exclusions 

This insurance does not apply to: 

q. Recording And Distribution Of Material Or Information In Violation 

Of Law 

"Bodily injury" or "property damage" arising directly or indirectly out of any 

action or omission that violates or is alleged to violate: 

[. . .] 

(4) Any federal, state or local statute, ordinance or regulation, other than 

the TCPA, CAN-SPAM Act of 2003 or FCRA and their amendments 

and additions, that addresses, prohibits, or limits the printing, 

dissemination, disposal, collecting, recording, sending, transmitting, 

communicating or distribution of material or information. 

Case: 1:20-cv-02146 Document #: 1 Filed: 04/06/20 Page 9 of 27 PageID #:9
B. Exclusion p. of Paragraph 2. Exclusions of Section I — Coverage B — 

Personal And Advertising Injury Liability is replaced by the following: 

2. Exclusions 

This insurance does not apply to: 

p. Recording And Distribution Of Material Or Information In Violation Of Law 

"Personal and advertising injury" arising directly or indirectly out of any 

action or omission that violates or is alleged to violate: 

 [. . .] 

(4) Any federal, state or local statute, ordinanceor regulation, other than 

the TCPA, CAN-SPAM Act of 2003 or FCRA and their amendments 

and additions, that addresses, prohibits, or limits the printing, 

dissemination, disposal, collecting, recording, sending, transmitting, 

communicating or distribution of material or information. 

[. . .] 

* * * * * 

THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. 

EXCLUSION – ACCESS OR DISCLOSURE OF CONFIDENTIAL OR 

PERSONAL INFORMATION AND DATA-RELATED LIABILITY – WITH 

LIMITED BODILY INJURY EXCEPTION 

This endorsement modifies insurance provided under the following: 

COMMERCIAL GENERAL LIABILITY COVERAGE PART 

A. Exclusion 2.p. of Section I — Coverage A — Bodily Injury and Property Damage 

Liability is replaced by the following: 

2. Exclusions 

 This insurance does not apply to: 

p. Access Or Disclosure Of Confidential Or Personal Information And Data-

 related Liability 

Damages arising out of: 

(1) Any access to or disclosure of any person's or organization's confidential or 

personal information, including patents, trade secrets, processing methods, 

customer lists, financial information, credit card information, health information 

or any other type of nonpublic information; or 

(2) The loss of, loss of use of, damage to, corruption of, inability to access, or 

inability to manipulate electronic data. 

Case: 1:20-cv-02146 Document #: 1 Filed: 04/06/20 Page 10 of 27 PageID #:10
 This exclusion applies even if damages are claimed for notification costs, credit 

monitoring expenses, forensic expenses, public relations expenses or any other 

loss, cost or expense incurred by you or others arising out of that which is 

described in Paragraph (1) or (2) above. 

 However, unless Paragraph (1) above applies, this exclusion does not apply to 

damages because of "bodily injury". 

 As used in this exclusion, electronic data means information, facts or programs 

stored as or on, created or used on, or transmitted to or from computer software, 

including systems and applications software, hard or floppy disks, CD-ROMs, 

tapes, drives, cells, data processing devices or any other media which are used 

with electronically controlled equipment. 

B. The following is added to Paragraph 2. Exclusions of Section I – COVERAGE 

B – Personal and Advertising Injury Liability: 

2. Exclusions 

 This insurance does not apply to: 

 Access Or Disclosure Of Confidential Or Personal Information 

"Personal and advertising injury" arising out of any access to or disclosure of 

any person's or organization's confidential or personal information, including 

patents, trade secrets, processing methods, customer lists, financial 

information, credit card information, health information or any other type of 

nonpublic information.

This exclusion applies even if damages are claimed for notification costs, 

credit monitoring expenses, forensic expenses, public relations expenses or 

any other loss, cost or expense incurred by you or others arising out of any 

access to or disclosure of any person's or organization's confidential or 

personal information. 

* * * * * 

THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. 

EMPLOYMENT-RELATED PRACTICES EXCLUSION 

This endorsement modifies insurance provided under the following: 

COMMERCIAL GENERAL LIABILITY COVERAGE PART 

A. The following exclusion is added to Paragraph 2., Exclusions of Section I — 

Coverage A — Bodily Injury And Property Damage Liability: 

 This insurance does not apply to: 

 "Bodily injury" to: 

Case: 1:20-cv-02146 Document #: 1 Filed: 04/06/20 Page 11 of 27 PageID #:11
(1) A person arising out of any: 

[. . .] 

(c) Employment-related practices, policies, acts or omissions, such as 

coercion, demotion, evaluation, reassignment, discipline, defamation, 

harassment, humiliation, discrimination or malicious prosecution 

directed at that person; or 

 [. . .] 

This exclusion applies: 

(1) Whether the injury-causing event described in Paragraphs (a), (b) or (c) 

above occurs before employment, during employment or after employment 

of that person; 

(2) Whether the insured may be liable as an employer or in any other capacity; 

and 

(3) To any obligation to share damages with or repay someone else who must 

pay damages because of the injury. 

B. The following exclusion is added to Paragraph 2., Exclusions of Section I — 

Coverage B — Personal and Advertising Injury Liability:

 This insurance does not apply to: 

 "Personal and advertising injury" to: 

(1) A person arising out of any: 

[. . .] 

(c) Employment-related practices, policies, acts or omissions, such as 

coercion, demotion, evaluation, reassignment, discipline, defamation, 

harassment, humiliation, discrimination or malicious prosecution 

directed at that person; or 

[. . .] 

This exclusion applies: 

(1) Whether the injury-causing event described in Paragraphs (a), (b) or (c) 

above occurs before employment, during employment or after employment 

of that person; 

(2) Whether the insured may be liable as an employer or in any other capacity; 

and 

Case: 1:20-cv-02146 Document #: 1 Filed: 04/06/20 Page 12 of 27 PageID #:12
(3) To any obligation to share damages with or repay someone else who must 

pay damages because of the injury. 

The HWIC Commercial Umbrella Liability Policy 

19. HWIC issued to Four Seasons a Commercial Umbrella Liability Policy, No. 

CMB38473M, effective October 1, 2018 through October 1, 2019, with limits of $10 million each 

occurrence, $10 million for personal and advertising injury, and $10 million in the general 

aggregate. (A copy of the HWIC commercial umbrella policy is attached hereto and made a part 

hereof as Exhibits “C”).

20. The HWIC Policy provides, in relevant part, as follows: 

COMMERCIAL GENERAL LIABILITY UMBRELLA COVERAGE FORM 

Various provisions in this policy restrict coverage. Read the entire policy carefully 

to determine rights, duties and what is and is not covered. 

Throughout this policy the words "you" and "your" refer to the Named Insured 

shown in the Declarations, and any other person or organization qualifying as a 

Named Insured under this policy. The words "we", "us" and "our" refer to the 

company providing this insurance. 

The word "insured" means any person or organization qualifying as such under 

Section II — Who Is An Insured. 

Other words and phrases that appear in quotation marks have special meaning. 

Refer to Section V — Definitions. 

SECTION I — COVERAGES 

COVERAGE A — BODILY INJURY AND PROPERTY DAMAGE LIABILITY 

1. Insuring Agreement 

a. We will pay on behalf of the insured the "ultimate net loss" in excess of 

the "retained limit" because of "bodily injury" or "property damage" to 

which this insurance applies. We will have the right and duty to defend 

the insured against any "suit" seeking damages for such "bodily injury" or 

"property damage" when the "underlying insurance" does not provide 

coverage or the limits of "underlying insurance" have been exhausted. 

When we have no duty to defend, we will have the right to defend, or to 

participate in the defense of, the insured against any other "suit" seeking 

damages to which this insurance may apply. However, we will have no 

duty to defend the insured against any "suit" seeking damages for "bodily 

injury" or "property damage" to which this insurance does not apply. At 

Case: 1:20-cv-02146 Document #: 1 Filed: 04/06/20 Page 13 of 27 PageID #:13
our discretion, we may investigate any "occurrence" that may involve this 

insurance and settle any resultant claim or "suit", for which we have the 

duty to defend. But: 

(1) The amount we will pay for the "ultimate net loss" is limited as 

described in Section III — Limits Of Insurance; and 

(2) Our right and duty to defend ends when we have used up the 

applicable limit of insurance in the payment of judgments or 

settlements under Coverages A or B. 

 No other obligation or liability to pay sums or perform acts or services 

is covered unless explicitly provided for under Supplementary 

Payments — Coverages A and B. 

b. This insurance applies to "bodily injury" and "property damage" only if: 

(1) The "bodily injury" or "property damage" is caused by an 

"occurrence" that takes place in the "coverage territory"; 

(2) The "bodily injury" or "property damage" occurs during the policy 

period; and 

(3) Prior to the policy period, no insured listed under Paragraph 1.a. of 

Section II — Who Is An Insured and no "employee" authorized by 

you to give or receive notice of an "occurrence" or claim, knew that 

the "bodily injury" or "property damage" had occurred, in whole or in 

part. If such a listed insured or authorized "employee" knew, prior to 

the policy period, that the "bodily injury" or "property damage" 

occurred, then any continuation, change or resumption of such 

"bodily injury" or "property damage" during or after the policy period 

will be deemed to have been known prior to the policy period. 

c. "Bodily injury" or "property damage" which occurs during the policy period 

and was not, prior to the policy period, known to have occurred by any 

insured listed under Paragraph 1.a. of Section II — Who Is An Insured or 

any "employee" authorized by you to give or receive notice of an 

"occurrence" or claim, includes any continuation, change or resumption of 

that "bodily injury" or "property damage" after the end of the policy period. 

d. "Bodily injury" or "property damage" will be deemed to have been known 

to have occurred at the earliest time when any insured listed under 

Paragraph 1.a. of Section II — Who Is An Insured or any "employee" 

authorized by you to give or receive notice of an "occurrence" or claim: 

(1) Reports all, or any part, of the "bodily injury" or "property damage" to 

us or any other insurer; 

(2) Receives a written or verbal demand or claim for damages because 

of the "bodily injury" or "property damage"; or 

(3) Becomes aware by any other means that "bodily injury" or "property 

damage" has occurred or has begun to occur. 

Case: 1:20-cv-02146 Document #: 1 Filed: 04/06/20 Page 14 of 27 PageID #:14
e. Damages because of "bodily injury" include damages claimed by any 

person or organization for care, loss of services or death resulting at any 

time from the "bodily injury". 

2. Exclusions 

This insurance does not apply to: 

[. . .] 

g. Employer's Liability 

"Bodily injury" to: 

(1) An "employee" of the insured arising out of and in the course of: 

(a) Employment by the insured; or 

(b) Performing duties related to the conduct of the insured's 

business; or 

[. . .] 

This exclusion applies whether the insured may be liable as an employer 

or in any other capacity, and to any obligation to share damages with or 

repay someone else who must pay damages because of the injury. 

This exclusion does not apply to liability assumed by the insured under an 

"insured contract". 

[. . .] 

This exclusion does not apply to the extent that valid "underlying 

insurance" for the employer's liability risks described above exists or would 

have existed but for the exhaustion of underlying limits for "bodily injury". 

Coverage provided will follow the provisions, exclusions and limitations of 

the "underlying insurance" unless otherwise directed by this insurance.

h. Employment-Related Practices 

"Bodily injury" to: 

(1) A person arising out of any: 

[. . .] 

(c) Employment-related practices, policies, acts or omissions, such as 

coercion, demotion, evaluation, reassignment, discipline, 

defamation, harassment, humiliation, discrimination or malicious 

prosecution directed at that person; or 

[. . .] 

This exclusion applies whether the injury causing event described in 

Paragraphs (a), (b) or (c) above occurs before employment, during 

employment or after employment of that person 

This exclusion applies whether the insured may be liable as an employer 

or in any other capacity, and to any obligation to share damages with or 

repay someone else who must pay damages because of the injury. 

Case: 1:20-cv-02146 Document #: 1 Filed: 04/06/20 Page 15 of 27 PageID #:15
COVERAGE B — PERSONAL AND ADVERTISING INJURY LIABILITY 

1. Insuring Agreement 

a. We will pay on behalf of the insured the "ultimate net loss" in excess of 

the "retained limit" because of "personal and advertising injury" to which 

this insurance applies. We will have the right and duty to defend the 

insured against any "suit" seeking damages for such "personal and 

advertising injury" when the "underlying insurance" does not provide 

coverage or the limits of "underlying insurance" have been exhausted. 

When we have no duty to defend, we will have the right to defend, or to 

participate in the defense of, the insured against any other "suit" seeking 

damages to which this insurance may apply. However, we will have no 

duty to defend the insured against any "suit" seeking damages for 

"personal and advertising injury" to which this insurance does not apply. 

At our discretion, we may investigate any offense that may involve this 

insurance and settle any resultant claim or "suit", for which we have the 

duty to defend. But: 

(1) The amount we will pay for the "ultimate net loss" is limited as 

described in Section III — Limits Of Insurance; and 

(2) Our right and duty to defend end when wehave used up the 

applicable limit of insurance in the payment of judgments or 

settlements under Coverages A or B. 

No other obligation or liability to pay sums or perform acts or services is 

covered unless explicitly provided for under Supplementary Payments — 

Coverages A and B. 

b. This insurance applies to "personal and advertising injury" caused by an 

offense arising out of your business but only if the offense was committed 

in the "coverage territory" during the policy period. 

2. Exclusions 

This insurance does not apply to: 

a. "Personal and advertising injury": 

 [. . .] 

(14) Employment-Related Practices 

To: 

 (a) A person arising out of any: 

 [. . .] 

(iii) Employment-related practices, policies, acts or 

omissions, such as coercion, demotion, evaluation, 

reassignment, discipline, defamation, harassment, 

humiliation, discrimination or malicious prosecution 

directed at that person; or 

[. . .] 

Case: 1:20-cv-02146 Document #: 1 Filed: 04/06/20 Page 16 of 27 PageID #:16
This exclusion applies whether the injury causing event described in 

Paragraphs (i), (ii) or (iii) above occurs before employment, during 

employment or after employment of that person. 

This exclusion applies whether the insured may be liable as an employer 

or in any other capacity, and to any obligation to share damages with or 

repay someone else who must pay damages because of the injury. 

[. . .] 

SECTION V — DEFINITIONS 

1. "Advertisement" means a notice that is broadcast or published to the 

general public or specific market segments about your goods, products or 

services for the purpose of attracting customers or supporters. For the 

purposes of this definition: 

a. Notices that are published include material placed on the Internet or on 

similar electronic means of communication; 

[. . . ] 

3. "Bodily injury" means bodily injury, disability, sickness, or disease sustained 

by a person, including death resulting from any of these at any time. “Bodily 

injury” includes mental anguish or other mental injury resulting from “bodily 

injury”. 

 [. . .] 

13. "Occurrence" means an accident, including continuous or repeated 

exposure to substantially the same general harmful conditions. 

14. "Personal and advertising injury" means injury, including consequential 

"bodily injury", arising 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; 

[ . . . ] 

20. "Self-insured retention" means the dollar amount listed in the Declarations 

that will be paid by the insured before this insurance becomes applicable 

only with respect to "occurrences" or offenses not covered by the 

"underlying insurance". The "self-insured retention" does not apply to 

"occurrences" or offenses which would have been covered by "underlying 

insurance" but for the exhaustion of applicable limits. 

[. . .] 

28. "Your work": 

Case: 1:20-cv-02146 Document #: 1 Filed: 04/06/20 Page 17 of 27 PageID #:17
a. Means: 

(1) Work or operations performed by you or on your behalf; and 

(2) Materials, parts or equipment furnished in connection with such 

work or operations. 

b. Includes: 

(1) Warranties or representations made at any time with respect to the 

fitness, quality, durability, performance or use of “your work”, and 

(2) The providing or failure to provide warnings or instructions. 

The following Endorsements were incorporated into and modified the HWIC Policy: 

THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY.

RECORDING AND DISTRIBUTION OF MATERIAL OR 

INFORMATION IN VIOLATION OF LAW EXCLUSION

This endorsement modifies insurance provided under the following: 

COMMERCIAL LIABILITY UMBRELLA COVERAGE PART 

A. Exclusion u. of Paragraph 2. Exclusions of Section I — Coverage A — 

Bodily Injury And Property Damage Liability is replaced by the following:

2. Exclusions 

This insurance does not apply to: 

u. Recording And Distribution Of Material Or Information In 

Violation Of Law 

"Bodily injury" or "property damage" arising directly or indirectly out of 

any action or omission that violates or is alleged to violate: 

[. . .] 

(4) Any federal, state or local statute, ordinance or regulation, other 

than the TCPA, CAN-SPAM Act of 2003 or FCRA and their 

amendments and additions, that addresses, prohibits, or limits 

the printing, dissemination, disposal, collecting, recording, 

sending, transmitting, communicating or distribution of material 

or information. 

B. Exclusion a.(17) of Paragraph 2. Exclusions of Section I — Coverage B — 

Personal And Advertising Injury Liability is replaced by the following: 

2. Exclusions 

This insurance does not apply to: 

Case: 1:20-cv-02146 Document #: 1 Filed: 04/06/20 Page 18 of 27 PageID #:18
a. “Personal and advertising injury”: 

(17) Recording And Distribution Of Material Or Information In 

Violation Of Law 

 “Personal and advertising injury" arising directly or indirectly out 

of any action or omission that violates or is alleged to violate: 

 [. . .] 

(4) Any federal, state or local statute, ordinanceor regulation, 

other than the TCPA, CAN-SPAM Act of 2003 or FCRA and 

their amendments and additions, that addresses, prohibits, 

or limits the printing, dissemination, disposal, collecting, 

recording, sending, transmitting, communicating or 

distribution of material or information. 

[. . .] 

* * * * * 

THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. 

EXCLUSION – ACCESS OR DISCLOSURE OF CONFIDENTIAL OR 

PERSONAL INFORMATION AND DATA-RELATED LIABILITY – WITH 

LIMITED BODILY INJURY EXCEPTION 

This endorsement modifies insurance provided under the following: 

COMMERCIAL LIABILITY UMBRELLA COVERAGE PART 

A. Exclusion 2.t. of Section I — Coverage A — Bodily Injury and Property Damage 

Liability is replaced by the following: 

2. Exclusions 

 This insurance does not apply to: 

t. Access Or Disclosure Of Confidential Or Personal Information And Datarelated Liability 

Damages arising out of: 

(1) Any access to or disclosure of any person's or organization's confidential or 

personal information, including patents, trade secrets, processing methods, 

customer lists, financial information, credit card information, health 

information or any other type of nonpublic information; or 

(2) The loss of, loss of use of, damage to, corruption of, inability to access, or 

inability to manipulate electronic data. 

 This exclusion applies even if damages are claimed for notification costs, credit 

monitoring expenses, forensic expenses, public relations expenses or any other 

Case: 1:20-cv-02146 Document #: 1 Filed: 04/06/20 Page 19 of 27 PageID #:19
loss, cost or expense incurred by you or others arising out of that which is 

described in Paragraph (1) or (2) above. 

 However, unless Paragraph (1) above applies, this exclusion does not apply to 

damages because of "bodily injury". 

 As used in this exclusion, electronic data means information, facts or programs 

stored as or on, created or used on, or transmitted to or from computer software, 

including systems and applications software, hard or floppy disks, CD-ROMs, 

tapes, drives, cells, data processing devices or any other media which are used 

with electronically controlled equipment. 

B. The following is added to Paragraph 2. Exclusions of Section I – COVERAGE 

B – Personal and Advertising Injury Liability: 

2. Exclusions 

 This insurance does not apply to: 

 Access Or Disclosure Of Confidential Or Personal Information 

"Personal and advertising injury" arising out of any access to or disclosure of 

any person's or organization's confidential or personal information, including 

patents, trade secrets, processing methods, customer lists, financial 

information, credit card information, health information or any other type of 

nonpublic information.

This exclusion applies even if damages are claimed for notification costs, 

credit monitoring expenses, forensic expenses, public relations expenses or 

any other loss, cost or expense incurred by you or others arising out of any 

access to or disclosure of any person's or organization's confidential or 

personal information. 

* * * * * 

THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. 

EXCLUSION - PERSONAL DATA COMPROMISE AND NETWORK 

SECURITY LIABILITY - COVERAGE A 

This endorsement modifies insurance provided under the following: 

COMMERCIAL LIABILITY UMBRELLA POLICY 

The following exclusions are added under Exclusions, 2. Applicable to 

Coverage A: 

Under Coverage A, this insurance does not apply to: 

Personal Data Compromise 

Any loss, theft, accidental release, accidental publication, disposal or 

abandonment of personally identifying information or personally sensitive 

information. 

Case: 1:20-cv-02146 Document #: 1 Filed: 04/06/20 Page 20 of 27 PageID #:20
[. . .] 

All terms and conditions of this policy apply unless modified by this endorsement. 

Four Seasons’ Tender to Harleysville 

20. On or about August 26, 2019, Four Seasons tendered to HPIC and HWIC 

(“Harleysville”) the defense and indemnity of Four Seasons in relation to the Underlying 

Complaint. 

21. On or about September 27, 2019, Harleysville notified Four Seasons that it had 

reviewed the applicable Policies and determined that there was no coverage for either defense or 

indemnity in connection with the Underlying Complaint. 

COUNT I – DECLARATORY JUDGMENT (Harleysville Preferred) 

22. Harleysville Preferred Insurance Company (HPIC) repeats and realleges the 

allegations in Paragraphs 1 through 21 as though fully set forth herein as paragraph 22. 

23. The HPIC Policy defines “bodily injury” as “bodily injury, sickness or disease 

sustained by a person, including death resulting from any of these at any time” (Exhibit B). 

24. The HPIC Policy defines “personal and advertising injury”, in relevant part, as 

an injury arising from an “oral or written publication, in any manner, of material that violates a 

person’s right of privacy.” (Exhibit B). 

25. The endorsement titled “Recording and Distribution of Material in Violation of 

Law Exclusion” contained in the HPIC Policy, which excludes coverage for any bodily injury, 

property damage, or personal and advertising injury that arises from any act or omission in 

violation of any state statute that “addresses, prohibits or limits the [ ] dissemination, disposal, 

collecting, recording, sending, transmitting, communicating, or distribution of material or 

information”, precludes coverage for Four Seasons under the HPIC Policy’s Coverages A and B 

Case: 1:20-cv-02146 Document #: 1 Filed: 04/06/20 Page 21 of 27 PageID #:21
in connection with the Underlying Complaint because it arises directly from alleged violations 

of the Biometric Information Privacy Act (“BIPA”) [740 ILCS 14/1 et seq.], which is an 

Illinois state statute that regulates “the collection, use, safeguarding, handling, storage, 

retention, and destruction of biometric identifiers and information”. (Exhibits A and B). 

26. Additionally, and in the alternative, the endorsement titled “Exclusion – Access 

or Disclosure of Confidential or Personal Information and Data-Related Liability – With 

Limited Bodily Injury Exception” that is contained in the HPIC Policy excludes coverage any 

bodily injury, property damage, or personal and advertising injury that arises from “any access 

to or disclosure of any person's [ ] confidential or personal information, [ ] health information or 

any other type of nonpublic information”, precludes coverage for Four Seasons under the HPIC 

Policy’s Coverages A and B in connection with the Underlying Complaint as it arises directly 

from Four Seasons’ access to and disclosure of its employees’ biometric data. BIPA defines 

"confidential and sensitive information" as “nonpublic information” and “health information” 

[740 ILCS 14/10]. 

21. Additionally, and in the alternative, the endorsement titled, “Employment-Related 

Practices Exclusion” contained as part of the HPIC Policy, which excludes coverage for bodily 

injury, property damage, or personal and advertising injury that arises from “employment-related 

practices, policies, acts or omissions, such as coercion [ ] [or] evaluation [ ] directed at that 

person”, precludes coverage for Four Seasons in connection with the Underlying Complaint 

because the entire complaint is premised on Four Seasons’ employment policy requiring its 

employees clock in and out of work using a biometric timekeeping device. (Exhibits A and B). 

Moreover, the Underlying Complaint specifically alleges that that Four Seasons “has required or 

Case: 1:20-cv-02146 Document #: 1 Filed: 04/06/20 Page 22 of 27 PageID #:22
coerced employees to comply [with its biometric timekeeping policy] in order to receive a 

paycheck.” (Exhibit A, ¶ 70). 

27. Additionally, and in the alternative, the “Employer’s Liability” exclusion 

contained in the HPIC Policy, which excludes coverage for “bodily injury” to an employee of 

Four Seasons “arising out of and in the course of [ ] the employment” or “performing duties 

related to the conduct of the insured’s business”, precludes coverage for Four Seasons under the 

HPIC Policy’s Coverage A in connection with the Underlying Complaint because the entire 

complaint is premised on allegations related to Four Seasons’ employment policy requiring its 

employees clock in and out using a biometric timekeeping device. 

28. Additionally, and in the alternative, the “Knowing Violation of Rights of 

Another” exclusion contained in the HPIC Policy, which excludes coverage for personal and 

advertising injury “caused by or at the direction of the insured with knowledge that the act 

would violate the rights of another and would inflict ‘personal and advertising injury”, precludes 

coverage for Four Seasons under the HPIC Policy’s Coverage B in connection with the 

Underlying Complaint because it alleges and prays for a declaratory finding that Four Seasons’ 

actions in violation of the plaintiff’s and purported class’ “protected privacy rights” were 

intentional. (Exhibit A, Prayer for Relief, ¶ E.). 

29. HPIC specifically denies any and all liability under the terms and provisions 

of the aforementioned policy of insurance and insists that it is not obligated to defend or 

indemnify any judgment entered in the underlying suit and, by reason of such demand, 

HPIC is in peril and in danger of loss unless the policies of insurance be properly construed 

and the rights of all parties hereto determined in this action. 

Case: 1:20-cv-02146 Document #: 1 Filed: 04/06/20 Page 23 of 27 PageID #:23
30. An actual controversy exists between HPIC and Four Seasons, and by the 

terms and provisions of 28 U.S.C. § 2201, this Court is vested with the authority to declare 

the rights and liabilities of the parties hereto and to grant such further and other relief as 

may be necessary. 

WHEREFORE, the plaintiff, HARLEYSVILLE PREFERRED INSURANCE 

COMPANY, respectfully prays that this Honorable Court: 

A. Determine and adjudicate the rights and liabilities of the parties hereto with 

respect to the HPIC Policy; 

B. Declare that HPIC owes no duty to defend Four Seasons under the HPIC 

Commercial General Liability Coverage policy, No. MPA5387AP, in 

connection with the underlying class action complaint filed in the Chancery 

Division of the Circuit Court of Cook County, Illinois, under case no. 2019 

CH 9633; and 

C. And any and all other relief that this Court deems just and equitable under the 

facts and circumstances. 

COUNT II – DECLARATORY JUDGMENT (Harleysville Worcester) 

31. Harleysville Worcester Insurance Company (HWIC) repeats and realleges the 

allegations in Paragraphs 1 through 21 as though fully set forth herein as paragraph 31. 

32. The HWIC Policy defines “bodily injury” as “bodily injury, disability, sickness 

or disease sustained by a person, including death resulting from any of these at any time” 

(Exhibit C). 

33. The HWIC Policy defines “personal and advertising injury”, in relevant part, as 

an injury arising from an “oral or written publication, in any manner, of material that violates a 

person’s right of privacy.” (Exhibit C). 

34. The endorsement to the HWIC Policy titled, “Recording and Distribution of 

Material in Violation of Law Exclusion”, which excludes coverage for any bodily injury, 

Case: 1:20-cv-02146 Document #: 1 Filed: 04/06/20 Page 24 of 27 PageID #:24
property damage, or personal and advertising injury that arises from any act or omission in 

violation of any state statute that “addresses, prohibits or limits the [ ] dissemination, disposal, 

collecting, recording, sending, transmitting, communicating, or distribution of material or 

information”, precludes coverage for Four Seasons under the HWIC Policy’s Coverages A and 

B in connection with the Underlying Complaint because it arises directly from alleged

violations of the Biometric Information Privacy Act (“BIPA”) [740 ILCS 14/1 et seq.], which 

is an Illinois state statute that regulates “the collection, use, safeguarding, handling, storage, 

retention, and destruction of biometric identifiers and information”. (Exhibits A and C). 

35. Additionally, and in the alternative, the endorsement to the HWIC Policy titled, 

“Exclusion – Access or Disclosure of Confidential or Personal Information and Data-Related 

Liability – With Limited Bodily Injury Exception”, excludes coverage any bodily injury, 

property damage, or personal and advertising injury that arises from “any access to or 

disclosure of any person's [ ] confidential or personal information, [ ] health information or any 

other type of nonpublic information”, precludes coverage for Four Seasons under the HWIC 

Policy’s Coverages A and B in connection with the Underlying Complaint as it arises directly 

from Four Seasons’ access to and disclosure of its employees’ biometric data. BIPA defines 

"confidential and sensitive information" as “nonpublic information” and “health information” 

[740 ILCS 14/10]. 

36. Additionally, and in the alternative, the exclusions titled, “Employment-Related 

Practices” contained in the HWIC Policy as exclusions under Coverages A and B, exclude 

coverage for bodily injury, property damage, or personal and advertising injury that arises from 

“employment-related practices, policies, acts or omissions, such as coercion [ ] [or] evaluation [ 

] directed at that person.” These exclusions preclude coverage for Four Seasons under the 

Case: 1:20-cv-02146 Document #: 1 Filed: 04/06/20 Page 25 of 27 PageID #:25
HWIC policy in connection with the Underlying Complaint because the entire complaint is 

premised on Four Seasons’ employment policy requiring its employees clock in and out of work 

using a biometric timekeeping device. (Exhibits A and C). Moreover, the Underlying 

Complaint specifically alleges that that Four Seasons “has required or coerced employees to 

comply [with its biometric timekeeping policy] in order to receive a paycheck.” (Exhibit A, ¶ 

70). 

37. Additionally, and in the alternative, the “Employer’s Liability” exclusion 

contained in Coverage A of the HWIC Policy excludes coverage for “bodily injury” to an 

employee of Four Seasons “arising out of and in the course of [ ] the employment” or 

“performing duties related to the conduct of the insured’s business”, precludes coverage for Four 

Seasons under the HWIC Policy’s Coverage A in connection with the Underlying Complaint 

because the entire complaint is premised on allegations related to Four Seasons’ employment 

policy requiring its employees clock in and out using a biometric timekeeping device. 

38. HWIC specifically denies any and all liability under the terms and provisions 

of the aforementioned policy of insurance and insists that it is not obligated to defend or 

indemnify any judgment entered in the underlying suit and, by reason of such demand, 

HWIC is in peril and in danger of loss unless the policies of insurance be properly 

construed and the rights of all parties hereto determined in this action. 

39. An actual controversy exists between HWIC and Four Seasons, and by the 

terms and provisions of 28 U.S.C. § 2201, this Court is vested with the authority to declare 

the rights and liabilities of the parties hereto and to grant such further and other relief as 

may be necessary. 

Case: 1:20-cv-02146 Document #: 1 Filed: 04/06/20 Page 26 of 27 PageID #:26
WHEREFORE, the plaintiff, HARLEYSVILLE WORCESTER INSURANCE 

COMPANY, respectfully prays that this Honorable Court: 

A. Determine and adjudicate the rights and liabilities of the parties hereto with 

respect to the HWIC Policy; 

B. Declare that HWIC owes no duty to defend Four Seasons under the HWIC 

Commercial Umbrella Liability Coverage policy, No. CMB38473M, in 

connection with the underlying class action complaint filed in the Chancery 

Division of the Circuit Court of Cook County, Illinois, under case no. 2019 

CH 9633; and 

C. And any and all other relief that this Court deems just and equitable under the 

facts and circumstances. 

HARLEYSVILLE PREFERRED INSURANCE 

COMPANY, and HARLEYSVILLE WORCESTER 

INSURANCE COMPANY, 

By: 

One of Their Attorneys 

Kurt Zitzer 

Matthew R. Bloom 

MEAGHER & GEER, P.L.L.P. 

216 N. Jefferson Street, Suite 100 

Chicago, Illinois 60661 

(312) 463-1045 

Attorney No. 6292410 

Our File No.: 56597-00121 

kzitzer@meagher.com 

mbloom@meagher.com

Case: 1:20-cv-02146 Document #: 1 Filed: 04/06/20 Page 27 of 27 PageID #:27