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er-employee relationship.25 In response, Carnagio and Karikari argued that the fingerprint requirement did not fall within the third clause because it is not the type of “employment-related practice” intended to be encompassed by the ERP exclusion.26

The Court agreed with Carnagio and Karikari, holding that the fingerprint requirement did not fall within the employment-related practices language of the exclusion based on the examples of activity included in the exclusion. The Court invoked the canon of noscitur a sociis, which holds that the meaning of neighboring words can help guide a particular word’s meaning.27 In this case, the examples of conduct excluded — i.e., coercion, demotion — involved conduct “directed at that person.”28 In the Karikari Action, by contrast, the fingerprinting requirement applied generally to all employees, and did not relate to an employee’s performance and, therefore, it did not fall within the scope of the exclusion.29

The Court thus concluded that the alleged BIPA claims arising out of Carnagio’s practice of requiring its employees to provide their fingerprints when clocking in and out of work did not fall within the ERP exclusion.30 The Court added, at a minimum,, “there is significant ambiguity as to whether the exclusion disavows coverage of Karikari’s claims”31 and, under Illinois law, such ambiguity must be resolved in the insured’s favor.32

The Court also addressed the parties’ arguments concerning the Statutory Violation exclusion, the applicability of which had been decided in West Bend. The Insurers attempted to distinguish West Bend based on differences in the title of the exclusion, despite the fact that the language of the exclusion itself was identical.33 The Court rejected that argument because it was not convinced that the difference in the titles makes these exclusions substantively different.34 The Court also observed that notwithstanding the different titles, the application of ejusdem generis to the pertinent form of exclusion would yield the same result as in Krishna because only violations of statutes, ordinances, or regulations “like the TCPA and the CAN-SPAM Act” are excluded from coverage, and BIPA is not “like the TCPA and the CAN-SPAM Act, because BIPA protects a different kind of privacy and uses a different method to do so.”35 At a minimum, therefore, coverage for Karikari’s claims was not unambiguously excluded by the Statutory Violation exclusion.36

The Court thus held that the underlying BIPA claims were at least potentially covered by the policies.37 Additionally, because American Family raised only the ERP exclusion and Statutory Violation exclusion, neither of which unambiguously excluded coverage, the Court granted Karikari’s cross-motion for summary judgment as to American Family.38

The Court reached a different ultimate conclusion with respect to the Austin Mutual policy’s Access/Disclosure exclusion. The Court construed that exclusion as making the insurance coverage inapplicable to “any access to or disclosure of any person’s … personal information.”39 Because the Court concluded this language was not ambiguous, the ejusdem generis rule of construction did not apply.40 The exclusion therefore was to be applied as written and when viewed in light of the allegations in the underlying litigation, precluded coverage.41

In sum, the Court found that the Karikari Lawsuit implicated coverage under the American Family policy, and none of the exclusions relied upon by American Family unambiguously precluded coverage. By contrast, because the Austin Mutual policy also included the Access/Disclosure exclusion, coverage was excluded and Austin Mutual had no duty to defend.

As with almost all insurance coverage cases, the language of the applicable policy is critical to the outcome. Illinois courts have construed standard coverage grants to include claims alleged under BIPA. Likewise, the Illinois Supreme Court, and others, including in the Carnagio case, have rejected efforts to shoehorn BIPA claims into typical exclusionary language. On the other hand, this decision shows that at least one insurance company has crafted a form of exclusion that will allow it to avoid defending these types of claims. Odds are good that other insurers will soon follow suit and add comparable language to future policies. In the meantime, however, insureds and their tortfeasors should continue to have success at parrying the insurers’ increasingly unattainable attempts to escape coverage.

25 Id. 26 Id. 27 Id. 28 Id. 29 Id. 30 Id. at *6. 31 Id. 32 Id., citing United Servs. Auto. Ass’n v. Dare, 357 Ill.App.3d 955. 964-65 (1st Dist. 2005). 33 Id. at *6. 34 Id., citing First Mercury Ins. Co. v. Triple Location LLC, 536 F.

Supp. 3d 326, 331–32 (N.D. Ill. 2021) (referring to the exclusion at issue in Krishna as “materially identical” to one with the title

“Distribution of Material in Violation of Statutes,” at issue, and otherwise identical in substance). 35 Id. at *7. 36 Id. 37 Id. 38 Id. 39 Id. at *7-8. 40 Id. at *8. 41 Id. at *9-10.