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.