By Rosa M.Tumialán and Alyssa N. Suareo

On March 26, 2025, the Illinois Supreme Court issued a one-line denial of the Petition for Leave to Appeal filed by Wexford Home Corporation (“Wexford”) against Ohio Security Insurance Company, Inc. and The Ohio Casualty Insurance Company (collectively, the “Insurers”) (the “Petition”). The Petition sought the reversal of a December 2, 2024, order issued by the Illinois Appellate Court, which reversed the Circuit Court of Cook County’s grant of Wexford’s motion for judgment on the pleadings. Wexford premised its Petition on the argument that the Illinois Appellate Court’s reversal of the Circuit Court’s order conflicts with the Illinois Supreme Court’s decision in West Bend Insurance Company v. Krishna Schaumburg Tan, Inc., et al., which held that an identically structured Recording and Distribution of Materials or Information in Violation of Law exclusion (the “Recording and Distribution Exclusion”) did not relieve an insurer’s duty to defend against an invasion of privacy claim arising out of the publication of biometric information in violation of the Illinois Biometric Information Privacy Act (“BIPA”), 740 ILCS 14/1 et seq. (“BIPA”).

In its Petition, Wexford argued that there was only one substantive difference between the subject Recording and Distribution Exclusion and the Distribution of Material in Violation of Statutes exclusion at issue in Krishna – i.e. the addition of the Fair Credit Reporting Act (“FCRA”) and its amendments – to the list of enumerated statutes preceding the catch-all “other than” provision. The Petition argues that, like Krishna, the Recording and Distribution Exclusion does not apply to the subject BIPA claims because BIPA was not a statute of the “same kind” as the enumerated statutes, as BIPA does not regulate consumer credit. Wexford argued that the Appellate Court, in reliance on National Fire Ins. Co., et al. v. Visual Pak Co., Inc., erroneously reached a contrary conclusion by focusing on the conduct that followed the “other than” clause rather than the subjects regulated in the statutes that preceded the “other than” clause to determine whether the exclusion applied to BIPA. Wexford pointed out that Krishna – and other Illinois federal courts – expressly rejected this interpretation, and thus the Petition for appeal should be granted.

The Illinois Supreme Court’s denial of Wexford’s petition for leave to appeal is particularly important because it signals that the court does not see a need to revisit the Visual Pak analysis.  Even so, there is still no clarity for insurers and policyholders alike as to whether other privacy exclusions commonly asserted apply to foreclose coverage for BIPA claims. In addition, there is still no Illinois state court case law addressing the application of the employment-related practices exclusion in this context.  Insurers should consider explicitly including BIPA in their exclusionary language to avoid potential conflicting verdicts and remain vigilant as to the implications of litigating their BIPA coverage actions in Illinois state versus federal courts.

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 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.