In Citizens Ins. Co. of America, et al. v. Thermoflex Waukegan, LLC v. Gregory Gates, 2025 WL 2767289 (N.D. Ill. Sept. 29, 2025) (“Citizens”), the Northern District of Illinois reversed its earlier March 2022 decision which found, in part, that Access or Disclosure exclusion did not unambiguously exclude coverage for liability arising out of a violation of the Illinois Biometric Information Privacy Act (“BIPA”). The Northern District determined that the relevant provision in the subject Access or Disclosure exclusions – which excluded coverage for claims arising out of access to or disclosure of confidential or personal information, including financial data, credit card data, health information, or any other type of non-public information – contained a mix of public and non-public items, and so presented uncertainty as to the scope of the excluded confidential and personal information. Since this March 2022 decision, the Seventh Circuit issued Thermoflex Waukegan, LLC v. Mitsui Sumitomo Ins. USA, Inc., 102 F.4th 438 (7th Cir. 2024) (“Mitsui”), which involved an identical Access or Disclosure exclusion. The Seventh Circuit found that this exclusion unambiguously applied to exclude coverage for BIPA claims. In its recent decision, the Court in Citizens recognized that Mitsui is directly on point and binds the Northern District, particularly because it involved the same insured, the same underlying allegations, and the same policy language. The exclusion was applied as written to exclude coverage for the underlying BIPA lawsuit.

One day later in Harleysville Lake Estates Ins. Co., et al. v. Thermoflex Waukegan, LLC, et al., 2025 WL 2778458 (N.D. Ill. Sept. 30, 2025), the Northern District similarly determined, in part, that the Harleysville insurers had no duty to defend or indemnify the insured under the subject 2017 policies in the underlying BIPA lawsuit under the Access or Disclosure exclusion. There, the 2017 policies contained an Access or Disclosure exclusion which applied to exclude coverage for “‘[p]ersonal 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 non-public information.” The court reaffirmed its decision in Citizens Ins. Co. of Am. v. Mullins Food Prods., Inc., 684 F. Supp. 3d 762, 782–83 (N.D. Ill. 2023), on reconsideration, 719 F. Supp. 3d 822 (N.D. Ill. 2024), which found that Mitsui left “no doubt that the Access or Disclosure Exclusion bars coverage for BIPA claims.” The court further denied that the subject Violations of Law and Knowing Violation of Rights exclusions in the Harleysville policies applied to exclude coverage for BIPA claims. The Harleysville insurers had no duty to defend or indemnify the insured under the subject 2017 policies.  However, they still had to defend themselves under the 2015 and 2016 policies because these did not include the Access or Disclosure exclusion.

The Northern District’s recent pro-insurer decisions are a welcome development, given the federal court’s reluctance to accept the Illinois appellate court’s pronouncement in Visual Pak relative to the Violation of Law exclusion.  Insurers litigating BIPA coverage disputes should weigh the pros and cons of initiating litigation in state as opposed to federal court. Illinois state courts are bound by Visual Pak, whose opinion plainly forecloses liability coverage where the policy contains the updated version of the Violation of Law exclusion considered in that case, which distinguishes it from the Illinois Supreme Court opinion in Krishna. Yet federal district courts continue to eschew this development in Illinois law because it is an appellate opinion. A federal court venue would be beneficial where the policies include the Access of Disclosure exclusion, which is a more recent addition in general liability policies.  Even so, the continued development of Illinois state law remains a valid reason to initiate coverage litigation in state court. Insurers should continue to closely consider their individual policy language and keep themselves apprised of rapid changes in BIPA coverage litigation under Illinois law when rendering its coverage determinations and deciding where to initiate litigation to confirm coverage positions.

About Rosa M. Tumialán

Rosa M. Tumialán is a partner and Co-Chair of Tressler’s Insurance Practice Group, Chair of the Appellate Team, and a member of the firm’s national Diversity, Equity, and Inclusion Committee. Rosa focuses her practice on insurance coverage and litigation. She is an accomplished defense attorney with more than twenty years of experience. Rosa’s insurer-related services include coverage opinion analysis and representing insurers in complex coverage disputes relating to personal and commercial lines, third-party claims, surplus lines, as well as claims handling practices and extracontractual liability. She has also litigated environmental coverage disputes throughout the Midwest for various insurers relating to superfund sites. Rosa assists with drafting coverage documents for insurance pools and counsels clients in the administration of the same. Her practice also includes serving as national coordinating coverage counsel for insurance clients who rely on her to develop and implement strategies nationwide in response to pattern litigation. Rosa is an accomplished class action defense lawyer and appellate practitioner, having appeared and argued in both state and federal courts nationwide. Click here to read Rosa’s full attorney bio.

About Alyssa N. Suareo

Alyssa N. Suareo is an associate attorney in the Insurance Practice Group. She focuses her practice on insurance coverage analysis and litigation. Alyssa provides comprehensive coverage analysis and defense in matters involving a wide range of policies, including commercial general liability coverage and professional liability coverage. Click here to read Alyssa’s full attorney bio.