On January 24, 2014, the Honorable Gonzalo P. Curiel of the United States District Court, Southern District of California, denied defendant Progressive Casualty Insurance Company’s Motions to Dismiss and Strike in the matter of Olney v. Progressive Casualty Insurance Company, 13-cv-2058 GPC (NLS). Read the full Order here. In Olney, plaintiff Olney alleges that Progressive violated the Telephone Consumer Protection Act, 47 U.S.C. § 227, et seq. (“TCPA”) by calling Olney on Olney’s cellular telephone while using an autodialer in conjunction with prerecorded voices. The purpose of Progressive’s telephonic communications was to collect an alleged debt alleged to be owed by an unknown third party. In response to Olney’s allegations, Progressive argued that (i) Olney lacked standing since Olney was not the “intended recipient” of the calls; and, (ii) the TCPA does not apply to the debt collection calls at issue.
Intended Recipient – Judge Curiel quickly rejected this argument while noting the plethora of case law to the contrary. For example, Judge Curiel cited Breslow v. Wells Fargo Bank, N.A., 857 F. Supp. 2d 1316 (S.D. Fla 2012) stating that “companies who make automated calls bear the responsibility of regularly checking the accuracy of their account records or placing intermittent live verification calls…[I]t seems to the Court that entities like [the defendant]…are in a much better position to bear this responsibility than are individuals.” Judge Curiel’s Order, page 5, lines 21-24. Therefore, this argument was rejected.
The TCPA Applies to Debt Collection Calls – This argument was also rejected by Judge Curiel based upon both binding case law and public policy. Judge Curiel stated “[a]cknowledging that debt collectors are exempt from liability under TCPA, regardless of whose cell phone number is called, would leave without redress an individual who receives prerecorded messages simply because he has a phone number that previously belongs to a debtor.” See page 10, lines 5-9 of Judge Curiel’s Order. Therefore, this argument was rejected.
Based upon the discussion above, Judge Curiel rejected Progressive’s Motions.