JJM GROUP LIMITED v. WEST BEND MUTUAL INSURANCE COMPANY (2025)

Memorandum and Order

In this insurance coverage dispute, funeral provider JJM Group Limited (“JJM”) claims that its insurer, West Bend Mutual Insurance Company (“West Bend”), breached its duty to defend against a putative class action claiming that JJM unlawfully harvested the fingerprints of deceased individuals for commercial gain. See Mayo et al. v. Legacy Touch, Inc. et al., Case No. 3:24-CV-01827 (S.D. Ill.) (the “underlying action”).¹ The underlying complaint asserts violations of the Biometric Information Privacy Act (“BIPA”), 70 ILCS 14/1 et seq., the Illinois Consumer Fraud and Deceptive Business Practices Act (“ICFA”), 18 ILCS 505/1 et seq., and similar consumer statutes of other states. It also asserts various common law theories of liability, including invasion of privacy, tortious interference with the right to possess a decedent's remains, civil conspiracy, negligent misrepresentation, and intentional misrepresentation. ECF 1-3 at 37–54.

JJM tendered the underlying suit to West Bend, which declined to defend on the ground that the claims against JJM fell outside the governing policies’ coverage. JJM then filed this action to recover the litigation expenses it incurred as a result of West Bend's alleged breach of its duty to defend. Currently pending is West Bend's motion for judgment on the pleadings, which I grant for the reasons that follow.

I.

On August 2, 2024, three named plaintiffs filed a putative class action against several defendants, including JJM (then doing business as Glueckert Funeral Home, Ltd.). The suit alleged that without prior consent, several funeral homes collected the fingerprints of deceased individuals in their care using technology provided by their co-defendant, Legacy Touch, Inc., and uploaded the prints to Legacy Touch's server for storage and commercial use. Thereafter, Legacy Touch bombarded the deceased's relatives—including the underlying plaintiffs—with unsolicited invitations to purchase commemorative items bearing the deceased's fingerprints. The funeral home defendants allegedly received financial incentives to participate in this venture, including commissions on sales of Legacy Touch products.

As relevant here, the underlying complaint alleges that after entrusting her deceased son's remains to JJM, plaintiff Lauren Weiner “began receiving solicitations via email inviting her to purchase jewelry and/or keepsakes” featuring her son's fingerprints. Compl., ECF 1 at ¶ 96. The language in these solicitations suggested that JJM had already collected her son's fingerprints and uploaded them to Legacy Touch's servers. Id. Yet, Ms. Weiner claims she received no notice of the purpose for which her son's fingerprints were collected, how they would be used, or how long they would be stored; signed no release authorizing JJM to collect, store, use, or disseminate her son's biometric data; and was afforded no opportunity to prevent JJM from collecting, storing, or disseminating his fingerprints. Id. at ¶¶ 99-102.

Indeed, the underlying complaint alleges that Legacy instructed funeral homes to “[t]ake prints as early in the process as possible. Always capture them BEFORE refrigeration and embalming.” ECF 1-3 at ¶ 49 (original emphasis). In fact, Legacy Touch encouraged funeral homes not to await consent, emphasizing that “[s]ince there is no law prohibiting a business from taking a preliminary print of the Deceased, your business can take prints from each Decedent upon every removal and then ask for permission when you meet the family” (emphasis in underlying complaint). Id. at ¶ 58. Legacy also offered funeral providers practical tips, such as using “a light application of foundation makeup” to the deceased's fingertips before scanning, and suggested that funeral providers “[e]xperiment with different pressures to get the best result.” Id. at ¶ 49.

The underlying plaintiffs describe the alleged misconduct against the backdrop of federal and state regulations governing the funeral industry, which they describe as “designed to protect consumers and ensure the professionalism and integrity of funeral service providers.” ECF 1-3 at ¶ 28. For example, they point to the Illinois Funeral Directors and Embalmers Licensing Code, 225 ILCS 41/1-1 et seq., which safeguards “the proper handling and disposition of human remains,” and they underscore the Code's stated purpose of ensuring that “the preparation, care and final disposal of a deceased human body be attended with appropriate observance and understanding, having due regard and respect for the reverent care of the human body and for those bereaved and the overall spiritual dignity of every person.” Id. at ¶¶ 29-30 (quoting 225 Ill. Comp. Stat. Ann. 41/1-5) (emphasis in underlying complaint).²

Two policies of insurance governed the parties’ contractual relationship during the relevant period. The first, policy number A494042 (the “Smartbusiness Policy”), was in force from October 1, 2021, to October 1, 2022. The second, policy number B136127 (the “Businessowners Policy”), was effective from October 1, 2022, to October 1, 2023. Both policies provided coverage for “personal and advertising injury,” which was defined as injury arising out of, inter alia, “[o]ral or written publication, in any manner, of material that violates a person's right to privacy.” Both policies further included umbrella commercial coverage for “personal and advertising injury,” and the Smartbusiness Policy also contained a Funeral Directors Professional Liability endorsement, which applied to “personal and advertising injury” or other injury arising out of the rendering of or failure to render professional services as a funeral director. ECF 1 at ¶¶ 1-22.

II.

Rule 12(c) allows a party to “move for judgment on the pleadings” after the pleadings are closed “but early enough not to delay trial[.]” Fed. R. Civ. P. 12(c). Such motions are reviewed under the same standard as Rule 12(b)(6) motions to dismiss. Pisciotta v. Old Nat'l Bancorp, 499 F.3d 629, 633 (7th Cir. 2007). “Judgment on the pleadings is appropriate when there are no disputed issues of material fact and it is clear that the moving party ․ is entitled to judgment as a matter of law.” Unite Here Loc. 1 v. Hyatt Corp., 862 F.3d 588, 595 (7th Cir. 2017) (citation omitted).

Under Illinois law, which applies to this diversity action, see Mesa Lab'ys, Inc. v. Fed. Ins. Co., 994 F.3d 865, 867 (7th Cir. 2021) (citations omitted), “[a]n insurer has a duty to defend its insured ‘unless it is clear from the face of the underlying complaint that the facts alleged do not potentially fall within the policy's coverage.’ ” Zurich Am. Ins. Co. v. Ocwen Fin. Corp., 990 F.3d 1073, 1078 (7th Cir. 2021) (quoting G.M. Sign, Inc. v. State Farm Fire and Cas. Co., 385 Ill.Dec. 70, 18 N.E.3d 70, 77 (Ill. App. Ct. 2014)). In determining an insurer's duty to defend, “a court ordinarily looks first to the allegations in the underlying complaint and compares those allegations to the relevant provisions of the insurance policy.” Pekin Ins. Co. v. Wilson, 237 Ill.2d 446, 341 Ill.Dec. 497, 930 N.E.2d 1011, 1017 (2010). “[A]llegations of the underlying complaint must be construed liberally, and any doubt as to coverage must be resolved in favor of the insured.” Del Monte Fresh Produce N.A., Inc. v. Transportation Ins. Co., 500 F.3d 640, 643 (7th Cir. 2007).

I begin with what is not in dispute. First, all agree that the underlying claims potentially fall within the scope of the policies’ “personal and advertising” coverages. Second, JJM tacitly acknowledges that its BIPA claims are excluded from coverage by the policies’ “Access or Disclosure” exclusion.³ This exclusion provides:

This insurance does not apply to:

p. Personal and Advertising Injury

“Personal 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 nonpublic information.

ECF 1-4 at 7-8. In Thermoflex Waukegan, LLC v. Mitsui Sumitomo Insurance USA, Inc., 102 F.4th 438, 440-41 (7th Cir. 2024), the Seventh Circuit held that an identical exclusion unambiguously excluded coverage for BIPA claims. The court drove the point home in Citizens Ins. Co. of Am. v. Mullins Food Prods., Inc., 135 F.4th 1082, 1091 (7th Cir. 2025), where it held that “[t]he Access or Disclosure Exclusion is clear on its face, and we are confident that the Illinois Supreme Court would find, as we have, that it excludes coverage for BIPA claims.” Accordingly, the BIPA claims against JJM do not trigger West Bend's duty to defend.

The parties’ dispute thus boils down to whether the non-BIPA claims potentially fall within the scope of the policies’ coverage. Although they argue the issue on two fronts—whether the non-BIPA claims are merely derivative of the BIPA claims, and whether the non-BIPA claims are potentially within policy coverages other than for “personal and advertising injury”—both can be resolved in a single analysis.

“While an insurer's duty to defend in Illinois is broad, it is not without limits. The duty to defend applies only to facts that are explicitly alleged.” Amerisure Mut. Ins. Co. v. Microplastics, Inc., 622 F.3d 806, 812 (7th Cir. 2010). This means that courts “must focus on the allegedly tortious conduct on which the lawsuit is based,” id. at 815, and must read the complaint “as a whole in order to assess its true nature,” Del Monte Fresh Produce, 500 F.3d at 644 (citations omitted).

In response to West Bend's observation that JJM's complaint traces West Bend's duty to defend explicitly to the policies’ “personal and advertising injury” coverages and omits reference to any other coverage provision, JJM string-cites a list of paragraphs in the underlying complaint that it insists “trigger the Policies’ coverage for ‘bodily injury,’ ‘property damage,’ or ‘other injury arising out of the rendering of or failure to render professional services as a funeral director.’ ” Resp., ECF 19 at 7.

JJM argues that the underlying complaint contains “express allegations of interference with the right to possess a decedent's remains, manipulation of a decedent's remains, data storage impacts and receipt of marketing materials, as well as emotional distress and mental suffering.” Resp., ECF 19 at 7. But “Illinois cases distinguish between allegations of fact and allegations of legal theories,” Microplastics, Inc., 622 F.3d at 815, and these allegations are plainly of the latter ilk.

Moreover, JJM makes no effort to connect the dots between the allegations it cites and the additional coverages it invokes. JJM does not explain how any of its factual allegations potentially falls within the scope of coverage for “bodily injury,” which the policies define as “bodily injury, sickness[,] or disease sustained by a person, including death.” ECF 1-1 at 71. Nor does JJM suggest how the acts or omissions it attributes to JJM meet the policies’ definition of covered “property damage,” as “[p]hysical injury to tangible property, including all resulting loss of use of that property,” or “[l]oss of use of tangible property that is not physically injured.” Id. at 74.⁴ However liberally construed in JJM's favor, the underlying factual allegations do not reasonably suggest such damages.

And while the catch-all coverage in the Funeral Directors Professional Liability Endorsement for “other injury arising out of the rendering of or failure to render professional services as a funeral director” appears broad enough to encompass claims for “interference with the right to possess a decedent's remains,” and “manipulation of a decedent's remains” “in connection with [JJM's] business,” the factual allegations supporting these claims are none other than JJM's collection and disclosure of the decedents’ fingerprints—the very acts excluded from coverage by the Access and Disclosure exclusion. JJM does not dispute that the Access and Disclosure exclusion applies to the Funeral Directors Professional Liability Endorsement, and the endorsement itself carves out liability for “acts and omissions included within the definition of personal and advertising injury.” ECF 1-1 at 180. So while the endorsement generally expands Business Liability coverage to include “other injury arising out of” JJM's rendering of professional services in connection with its business, it does not cover JJM's access to or disclosure of the decedents’ biometric information.

In the end, whether the non-BIPA claims are framed as derivative of their BIPA claims and thus excluded by the Access or Disclosure exclusion, see Zurich Am. Ins. Co. v. Ocwen Fin. Corp., 990 F.3d 1073, 1079 (7th Cir. 2021) (“if the plaintiff would not have been injured but for the conduct that violated an enumerated law, then the exclusion applies to all claims flowing from that underlying conduct”),⁵ or whether those claims are construed as independently outside the scope of the policies’ affirmative coverages for “bodily injury,” “property damage,” and “other injury arising out of” JJM's professional services, the outcome is the same: they do not trigger West Bend's duty to defend.

III.

For the foregoing reasons, West Bend's motion for judgment on the pleadings is granted.

FOOTNOTES

1.   Although the underlying complaint identifies JJM by its former name, “Glueckert Funeral Home, Ltd.,” I refer to it as JJM for consistency and ease of reference.

2.   To be clear, the underlying plaintiffs do not assert a claim under the Code, which “does not imply a private right of action for the survivors of a decedent who have suffered emotional distress due to violation of the Code.” Rekosh v. Parks, 316 Ill. App. 3d 58, 74, 249 Ill.Dec. 161, 735 N.E.2d 765, 779 (2000), abrogated on other grounds by Cochran v. Securitas Security Services USA, Inc., 419 Ill.Dec. 374, 93 N.E.3d 493 (Ill. 2017).

3.   Although JJM does not explicitly concede the point, its fifteen page response devotes just one sentence to this issue, which states, “West Bend's argument ignores that the underlying plaintiffs are not seeking relief related to the disclosure of their own personal and confidential biometric identifiers.” Resp., ECF 19 at 15. This undeveloped assertion offers no reasoned basis for departing from the authorities West Bend cites.

4.   It is true that Illinois courts recognize a quasi-property right in a decedent's body arising out of the next-of-kin's duty “to take possession and control of the dead body for the purpose of giving it a decent burial.” See Cochran v. Securitas Sec. Servs. USA, Inc., 419 Ill.Dec. 374, 93 N.E.3d 493, 498 (Ill. 2017). But the policies’ definition of “property damage” does not suggest coverage for injuries to this sort of property right. See Thermoflex 102 F.4th at 440 (scope of coverage “depends on the meaning of the policy” rather than the meaning of the law allegedly violated).

5.   The underlying claims for civil conspiracy, violation of ICFA, and negligent or intentional misrepresentation clearly fall into this category, as each originates in the very practice alleged to violate BIPA—JJM's collection and disclosure of the deceased's fingerprints.

Elaine E. Bucklo, United States District Judge