Burr & Forman

10.2.2018   |   Blog Articles, Revocation, Telephone Consumer Protection Act

Indiana Court Holds Canceling Insurance Is Not Revocation of Prior Express Consent Under TCPA

Wilkes v. CareSource Management Group Co., No. 4:16-cv-38 JVB, 2018 WL 4680028 (N.D. Ind. Sept. 29, 2018)

Plaintiff husband and wife applied for health insurance coverage under the Affordable Care Act through the Health Insurance Marketplace at healthcare.gov (“Marketplace”). In their online application, Plaintiffs provided the wife’s cellular telephone number, which the website disclosed could be shared with insurance companies providing insurance plans. When consumers select a plan and submit an application to Marketplace, their application and contact information are reduced to an extract file, which is transmitted to an insurance provider.

Plaintiffs received coverage for 2015, and after making a final premium payment in 2015, their insurance policy automatically renewed for the 2016 calendar year. But in January 2016, the wife called Defendant, seeking to cancel coverage. Defendant instructed her to cancel coverage through Marketplace, which she did. Like applications for insurance, termination of coverage through Marketplace is communicated to insurance companies through extract files. Defendant received the extract file terminating coverage effective February 12, 2016, but continued processing claims for Plaintiffs through May 2016.

Defendant contracted with a co-defendant to place automated “welcome calls,” which were to “share information with Indiana Marketplace members regarding their healthcare benefits and assist them in accessing health care providers and wellness programs.” Five welcome calls were placed to the wife’s cell phone well after the family’s coverage ended. The wife called Defendant, inquiring about the automated calls and a representative offered to place her number on a do-not-call list; an offer the wife accepted. No more calls were made after this date.

Nonetheless, Plaintiffs filed suit, after which time Defendants moved for summary judgment. Concluding Defendants had prior express to contact Plaintiffs, the next question for the Court was whether Plaintiffs’ cancellation of insurance coverage revoked prior express consent to be contacted by Defendants. Holding that it did not, the Court stated that “simply canceling insurance coverage on February 12, 2016, though the Marketplace was not sufficient to revoke consent to be called under the TCPA.” The Court found instructive the U.S. Court of Appeals for the Ninth Circuit’s similar holding in Van Patten v. Vertical Fitness Group, LLC, 847 F.3d 1037 (9th Cir. 2017) that cancellation of a gym membership does not sufficiently communicate a desire to no longer be contacted, holding that “‘[r]evocation of consent must be clearly made and express a desire not to be called or texted.’”

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