Saturday, January 7, 2017

Bad Faith Action Affirmed by Pennsylvania Superior Court against Fidelity National Title

The Superior Court of Pennsylvania recently affirmed the trial court’s opinion involving a bad faith action in Davis v. Fidelity National Title Insurance Company (674 MDA 2014). In the bad faith action law suit brought against Fidelity National Title in the lower court, the plaintiffs were awarded over $2 million in damages.
The plaintiffs, Richard and Maria Davis, purchased a 15 acre-plot in Lackawanna County, Pennsylvania to develop a residential housing project. Three years later in 2007, a neighboring property owner, Louis Norella claimed that a part of that property, a 1.86 acre-plot, belonged to him. Fidelity, the title insurance company that had insured the Davises’ property, recognized later that year that there was a problem with the title and assured the Davises that the matter would be resolved. It wasn’t until 2012 that Fidelity finally purchased Norella’s property for $50,000. The plaintiffs claimed that this five-year delay on Fidelity’s part prevented the project from coming to fruition at the time, thus causing a lost profit damage.
In affirming the lower court’s opinion, the Superior Court of Pennsylvania stated that the “excessive delay” experienced by the Davises implicated Fidelity National Title in bad faith action. The court also stated this excessive delay caused direct damage to the plaintiffs.
In an appeal of the trial court’s decision, Fidelity National Title argued that the plaintiffs’ housing project was merely speculative, and therefore Fidelity’s delay could not have had any effect on said development. In concurrence with the trial court, the Superior Court emphasized that there was plenty of evidence indicating that the Davises had already begun the project.
The court also noted that Fidelity’s appeal specifically challenged the amount of punitive damages granted by the trial court, rather than the issue of bad faith itself. Fidelity National Title argued that $224,760.00 for compensatory damages and $1,572,909.24 in punitive damages, in addition the simple interest accrued and the plaintiffs’ attorney’s fees and costs, were excessive and not supported by the Pennsylvania law. In response, the Superior Court cited the U.S. Supreme Court cases (see Haslip and Gore) that provide precedent for the 4-to-1 ratio of punitive to compensatory damages.
Legal precedence (see Gore and Campbell) establishes that the “most important indicium” is the degree of reprehensibility in evaluating an estimation of punitive damages. The Superior Court noted the factual reprehensibility of Fidelity’s actions in this matter, and also noted how the trial court had been “appalled” by how the defendant handled the plaintiffs’ case. After citing a long list of failings by part of the defendant, the court stated, “Indeed, it is difficult to find an area in which Fidelity National Title acted in conformance with accepted statutory, regulatory or internal standards”.
Fidelity National Title also argued that degree of reprehensibility must be determined by plurality of factors including, in particular, physical harm. While the court agreed that Fidelity National Title had not induced any physical harm to the plaintiffs, the other factors that had caused harm to the plaintiffs were sufficient to establish the high degree of reprehensibility in Fidelity’s conduct.
The court further stated that attorney fees can reasonably be accounted as compensatory damages finding no evidence in past trials that establish the contrary.
With this case, the Superior Court has established three important parts that will be key to future bad faith actions. First, in concurrence with legal precedent, this case affirms that damages are estimated on a 4-to-1 or 5-to-1 punitive to compensatory damage ratio. Second, that bad faith actions are largely based on asserting the degree of reprehensibility which may not necessarily include all factors, such as physical harm. Thirdly, Davis establishes that attorney fees may be considered as part of compensatory damages in such matters. In effect, the Superior Court of Pennsylvania asserted the legitimacy of the plaintiffs’ claims and upheld the long legal precedent against bad faith actions

"the trial court was appalled by Fidelity's conduct"

J-A31019-14

This is a portion of the document referred to in previous post.  (I bolded some interesting parts)

The degree of reprehensibility is the most important of the factors in assessing the appropriateness of punitive damages. Here, it can fairly be said, the trial court was appalled by Fidelity’s conduct.

The trial court found Fidelity was aware of both the delay it caused Davis and likely consequences thereof. Final Memorandum and Order, 3/28/2014, at 11.

In December 2007, shortly after Davis filed the claim, Fidelity notified Davis it was evaluating the claim and hoped to get back to him shortly. Memorandum and Order, 8/15/2013, Finding of Fact 14, at 4.7 Approximately one year later, Fidelity notified Davis that Norella may have a valid claim to the 1.86 acres. FF. 15, at 4. Six months later, 20 months after the claim had been filed, Fidelity accepted Davis’ claim and again stated it would contact Davis shortly regarding resolution of the claim. FF. 17, at 4. Fidelity waited another three months to hire counsel. FF. 18, at 4. Fidelity investigated the possibility of filing a quiet title action against Norella, but admitted there was scant chance of success. FF. 23, at 5. Nonetheless, Fidelity threatened Norella with filing the suit. CL. 22, at 14. By August 2010, counsel for Fidelity was warning Fidelity of the possibility of bad faith. FF. 24, at 5. Davis repeatedly made inquiry about the status of his claim. CL. 24, at 14. Fidelity breached its own contract by failing to act diligently, failing to pay the loss within 30 days of fixing the ____________________________________________ 7

 All citations to findings of facts (FF) or conclusions of law (CL) are taken from the August 15, 2013 Memorandum and Order. Additionally, the trial court did not issue omnibus findings of fact and conclusions of law, rather, they were broken down into sub-categories, not always specifically labeled as findings or conclusions. For ease we refer to all citations as either FF or CL. Rather than clutter this memo with sub-category titles, we will cite to the FF or CL number and the page on which it is found. J-A31019-14 - 12 - amount and failing to act in good faith and fair dealing. FF. 8, at 17. It failed to follow its own internal claims handling procedures. FF. 13, at 18. Fidelity violated 31 Pa. Code 146.6 and 146.5(c) regarding prompt investigations of claims and communications with clients, as well as Pennsylvania Statutes 40 P.S. 1171.5(a)(10)(ii),(v) regarding communications with clients and failure to affirm or deny claims promptly. FF. 15, 16, 17, at 18-19. Fidelity made no offer to either Norella or Davis until after Davis filed the instant bad faith claim. FF. 36, at 7. Indeed, it is difficult to find an area in which Fidelity acted in conformance with accepted statutory, regulatory or internal standards.

Fidelity National Title Breach of Contract and Bad Faith - Davis awarded $2,062,746.89

J-A31019-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 RICHARD AND MARIA DAVIS IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee v. FIDELITY NATIONAL TITLE INSURANCE COMPANY D/B/A FIDELITY NATIONAL TITLE INSURANCE COMPANY OF NEW YORK
Appellant No. 672 MDA 2014 Appeal from the Judgment Entered May 28, 2014 In the Court of Common Pleas of Lackawanna County Civil Division at No(s): 10-00-8868 BEFORE: BOWES, J., OTT, J., and STABILE, J. MEMORANDUM BY OTT, J.:
 FILED MARCH 18, 2015

Fidelity National Title Insurance Company d/b/a Fidelity National Title Insurance Company of New York (Fidelity) appeals from the judgment entered on May 28, 2014, in the Court of Common Pleas of Lackawanna County. Plaintiffs, Richard and Maria Davis (collectively Davis), filed a complaint against Fidelity alleging breach of contract and bad faith regarding a dispute over ownership of a 1.86 acre parcel of land. The parties proceeded to a bench trial before the Honorable Carmen D. Minora who found in favor of Davis on both counts and awarded an aggregate verdict of $2,062,746.89. Fidelity raises five issues in this timely appeal. After a thorough review of the submissions by the parties, relevant law, and the certified record, we affirm.

Read the entire document at:

http://www.pacourts.us/assets/opinions/Superior/out/J-A31019-14m.pdf

Thursday, December 1, 2016

Phillips Station Middle LP says title insurers breached contract

Dec. 1, 2016, 9:35am


PITTSBURGH — A Pennsylvania partnership has filed a class action lawsuit against Chicago Title Insurance Company and Fidelity National Title Group, title insurers, citing alleged breach of contract.

Phillips Station Middle LP filed a complaint on Oct. 25 in the Court of Common Pleas of Allegheny County against the defendants, alleging that they owe money in connection with the plaintiff paying for a piece of property that turned out to have a cloud on its title.
According to the complaint, the plaintiff alleges that Phillips Station Middle LP suffered monetary damages because of a title that can't be transferred. The plaintiff holds Chicago Title Insurance Company and Fidelity National Title Group responsible because they allegedly insured the supposedly "fee simple" title against clouds.
The plaintiff seeks judgment against the defendants in an amount that exceeds $35,000 plus all damages, court costs and any further relief this court grants. It is represented by Charles I. Phillips of Leisawitz Heller Abramowitch Phillips, P.C. in Wyomissing.
Court of Common Pleas of Allegheny County Case number GD-16-020343

Sunday, July 31, 2016

Hansen v. Fidelity National Title Insurance Company

I just found this and am researching more.  az

HANSEN v. FIDELITY NATIONAL TITLE INSURANCE COMPANY

No. 03:12-CV-183-HZ.

RICHARD C. HANSEN, an individual, and JEAN A. HANSEN, an individual, Plaintiffs, v. FIDELITY NATIONAL TITLE INSURANCE COMPANY, a California corporation, Defendant.
United States District Court, D. Oregon, Portland Division.
May 8, 2012.

Paul B. Barton, James D. Zupancic, Zupancic Rathbone Law Group, PC, Lake Oswego, OR, Attorney for Plaintiffs.
Erin M. Stines, Fidelity National Law Group, A Division of Fidelity National Title Group, Inc., Seattle, WA, Attorney for Defendant.


OPINION & ORDER

MARCO A. HERNANDEZ, District Judge.
Plaintiffs Richard and Jean Hansen bring this action to recover costs and attorney fees from Defendant Fidelity National Title Insurance Company, alleging that Defendant breached its duty to defend their title when Plaintiffs were sued for adverse possession. Defendant moves to dismiss for failure to state a claim upon which relief can be granted. I grant in part and deny in part the motion.

BACKGROUND

For the purpose of this motion to dismiss, I treat the alleged facts in the complaint as true. In 2004, Plaintiffs Richard and Jean Hansen purchased property located in Wilsonville, Oregon. Compl. ¶¶ 1, 4. The Hansens obtained title insurance from Defendant Fidelity to insure against any loss or damage from title of the property being vested in someone other than the Hansens. Id. at ¶¶ 5-6. Fidelity agreed to defend the Hansens against claims adverse to the title of interest for their property.Id. at ¶ 7.
In 2010, the Hansens were sued by the trustees of the Rogers Family Living Trust ("Rogers action"). Id. at ¶ 8. The trustees alleged that they were fee simple owners of a portion of the Hansens' property. Id. at ¶ 9. The Hansens notified Fidelity of the Rogers action. Id. at ¶ 11. Fidelity denied coverage and refused to defend the Hansens, citing to several exceptions in the title policy that precluded coverage. Id.at ¶ 12. The Hansens successfully defended the Rogers action without Fidelity and now seek reimbursement for the costs and attorney's fees incurred. Id. at ¶¶ 14-15.

STANDARDS

On a motion to dismiss, the court must review the sufficiency of the complaint.Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). All allegations of material fact are taken as true and construed in the light most favorable to the nonmoving party. American Family Ass'n, Inc. v. City & County of San Francisco, 277 F.3d 1114, 1120 (9th Cir. 2002). However, the court need not accept conclusory allegations as truthful. Holden v. Hagopian, 978 F.2d 1115, 1121 (9th Cir. 1992).
A motion to dismiss under Rule 12(b)(6) will be granted if plaintiff alleges the "grounds" of his "entitlement to relief" with nothing "more than labels and conclusions, and a formulaic recitation of the elements of a cause of action[.]" Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). "Factual allegations must be enough to raise a right to relief above the speculative level, . . . on the assumption that all the allegations in the complaint are true (even if doubtful in fact)[.]" Id.(citations and footnote omitted).
To survive a motion to dismiss, the complaint "must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face[,]" meaning "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged."Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation omitted). Additionally, "only a complaint that states a plausible claim for relief survives a motion to dismiss." Id. The complaint must contain "well-pleaded facts" which "permit the court to infer more than the mere possibility of misconduct." Id. at 679.

DISCUSSION

Plaintiffs allege four claims against Defendant: (1) breach of contract, (2) breach of contractual implied duty of good faith and fair dealing, (3) violation of ORS § 746.230 for Unfair Claim Settlement Practices1, and (4) attorney's fees pursuant to the title policy and ORS § 742.061. Compl. ¶¶ 16-36. Defendant moves to dismiss the complaint.2

I. Breach of Contract

The gravamen of Plaintiffs' breach of contract claim is Fidelity's refusal to defend in the Rogers action. "Whether an insurer has a duty to defend an action against its insured depends on two documents: the complaint and the insurance policy. An insurer has a duty to defend an action against its insured if the claim against the insured stated in the complaint could, without amendment, impose liability for conduct covered by the policy." Ledford v. Gutoski, 877 P.2d 80, 82 (Or. 1994) (citations omitted). From the face of the complaint, an insurer should be able to determine whether it has a duty to defend. Id. "The insurer has a duty to defend if the complaint provides any basis for which the insurer provides coverage." Id. at 83 (emphasis in original). Any ambiguity in the complaint with respect to whether the allegations could be covered by the policy must be resolved in favor of the insured.Id.
I begin by reviewing the complaint in the Rogers action. Compl. Ex. 2. The complaint is captioned "Quiet Title/Adverse Possession". Id. at 1. In the Rogers complaint, the trustees alleged the following:
Plaintiffs [Rogers] are the fee simple owners of real property adjacent to the Hansens' property.The real property . . . is not in the actual possession of any person other than the Plaintiffs [Rogers].Defendants [Hansens] claim some interest adverse to Plaintiffs [Rogers] in the real property[.]
Id. at ¶¶ 3-7. Defendant Fidelity refused to defend based on the second, third, and fourth exceptions in the title policy:
2. Any facts, rights, interests or claims which are not shown by the public records but which could be ascertained by an inspection of said land or by making inquiry of persons in possession.3. Easements, or claims of easements or encumbrances, not shown by the public records . . .4. Discrepancies, conflicts in boundary lines, shortage in area, encroachments or any other facts which a correct survey would disclose.
Compl. Ex. 1 at 5.
Defendant Fidelity argues that it had no duty to defend based on the allegations in the Rogers complaint and the title policy. Fidelity MTD, 6. Fidelity interpreted the Rogers complaint as a claim for adverse possession, found that the exceptions for coverage applied, and concluded that it had no duty to defend the Hansens. Id. at 6-7. The third and fourth exceptions do not seem implicated by the Rogers complaint. Fidelity focuses on the second exception and cites to Cooper v. Commonwealth Land Title Ins. Co. in support of its argument. 73 Or.App. 539 (Or. Ct. App. 1985). The facts of Cooper are very similar to this case. Cooper involved a title company's refusal to defend the property owner for an adverse possession claim. Id. at 541. In Cooper, the title policy exception at issue mirrors the second exception of the Fidelity policy purchased by the Hansens. Id. at 542 ("Any facts, rights, interests or claims which are not shown by the public records but which could be ascertained by an inspection of said land or by making inquiry of persons in possession."). The Cooper court reversed the granting of the title company's motion to dismiss because the claim for adverse possession was based on a claim of right and a deed. Id. at 543 (emphasis added). "In the absence of the language about the deed, there would be no duty to defend, because that duty only arises when there is some claim shown of record."Cooper, 73 Ore. App. at 543.
Fidelity argues that Cooper's holding applies directly to this case. Plaintiffs do not disagree with the holding in Cooper. Instead, Plaintiffs argue that the Rogers complaint did not specify the basis for the adverse possession claim, so the claim could be interpreted as based on a claim of right or a deed. Pls.' Resp., 7. It is apparent that the parties dispute the interpretation of "adverse possession" as used in the Rogers complaint. Fidelity implies that a claim for adverse possession does not include a claim by deed. Fidelity MTD, 7 ("In this case the Rogers did not claim ownership by virtue of a deed. Rather, the Rogers' claims were based solely on the theory of adverse possession."). Plaintiffs on the other hand, point out that the statute expressly defines "hostile possession", an element of adverse possession, as possession "under claim of right or with color of title". ORS § 105.620(2)(a). "Color of title" means a deed, i.e., "a written conveyance of the property or by operation of law from one claiming under a written conveyance." Id. In other words, a claim for adverse possession can be based on either a claim of right or a deed. The Rogers complaint was ambiguous because the basis for the adverse possession claim was not specified. Ambiguities in the complaint as to whether an allegation could be covered by the policy must be resolved in favor of the insured. Plaintiffs have alleged sufficient facts for its breach of contract claim for Fidelity's refusal to defend in the Rogers action.

II. Breach of Contractual Duty of Good Faith and Fair Dealing

Plaintiffs allege that Fidelity breached its contractual obligation of good faith and fair dealing by (1) failing to reasonably investigate the claim and (2) by imposing requirements on Plaintiffs that were not contained in the title policy. Compl. ¶¶ 24-27.
Every contract contains an implied duty of good faith in the performance of the contract. Uptown Heights Assocs. Ltd. Partnership v. Seafirst Corp., 320 Or. 638, 645 (Or. 1995). This duty obliges each party to "perform the contract . . . in a way that will effectuate the objectively reasonable contractual expectations of the parties. The focus is on the parties' agreed common purpose and justified expectations, both of which are closely related to the express provisions of the contract." Pollock v. D.R. Horton, Inc. Portland, 190 Or.App. 1, 11-12 (Or. Ct. App. 2003) (citations omitted). This duty, however, does not "vary the substantive terms of a contract or require a party to refrain from doing what the contract expressly permits it to do." Pollock, 190 Ore. App. at 12.
Defendant Fidelity argues that it cannot breach its duty of good faith and fair dealing by invoking its rights under the contract because it simply invoked the exceptions of the title policy when refusing to defend Plaintiffs. Fidelity MSJ, 10. But this rationale depends on the correctness of Fidelity's interpretation of the policy. At this stage of the proceeding, I view the sufficiency of the complaint, and not the merits. Accepting the material facts alleged in the complaints as true, I find that Plaintiffs have stated a claim upon which relief may be granted.

III. Unfair Claim Settlement Practice

Plaintiffs allege a violation of ORS § 746.230 for Unfair Claim Settlement Practices ("UCSP") for "refusing coverage without conducting a reasonable investigation" and "failing to promptly provide a proper explanation of the basis relied on in the Title Policy" for denial of coverage. Compl. ¶¶ 29-30; ORS § 746.230(1)(d), (m). Plaintiffs rely on the following two provisions:
(d) Refusing to pay claims without conducting a reasonable investigation based on all available information, . . . and(m) Failing to promptly provide the proper explanation of the basis relied on in the insurance policy in relation to the facts or applicable law for the denial of a claim.
ORS § 746.230(d), (m). Plaintiffs argue that an insurer's violation of the UCSP may be a breach of its duty of good faith and fair dealing. Pls.' Resp., 12; Galicia-Orozco v. Country Mut. Ins. Co., 2010 U.S. Dist. LEXIS 59423 (D. Or. June 15, 2010) (holding that a failure to investigate an automobile liability insurance claim may support a claim for breach of contractual good faith). As noted earlier, this claim alleges conduct in support of claim two, breach of duty of good faith and fair dealing, and is not an independent claim. Claim three is dismissed, but Plaintiffs may use the allegations in claim three as an additional basis for their second claim.

CONCLUSION

Based on the foregoing, Defendant's motion to dismiss (#7) for failure to state a claim is granted for claim three and denied for claims one and two.
IT IS SO ORDERED.

FootNotes


1. During oral argument on May 2, 2012, Plaintiffs clarify that this is not an actual claim. Plaintiffs also argue in its brief that the conduct alleged in this claim supports its second claim for breach of the duty of good faith and fair dealing. Pls.' Resp., 12.
2. Defendant does not discuss claim four in its motion.

Friday, May 6, 2016

Fidelity Tries to get Seller to Pay a Claim Made by Their Client 12 years later??????

Hello Ann,
I found your name on a blog about Fidelity National Title Insurance. I recently received a certified letter from Fidelity National Title Group stating that a they settled a claim with a person (their client) who bought a house from me over 12 years ago and they are demanding that I pay the settlement of $28,425.00 they made with their client. They claim that upon investigation of the claim it was determined that a neighbor had valid ownership over a disputed part of the property. I purchased this row home in Philadelphia in 2002 from a prior owner, rented the home for two years, and sold the home to Fidelity's client. There was never any property dispute when I owned the home for 2 years and everything I did when I bought the home and sold the home was legitimate through mortgage and title companies. All the proper title searches were done etc... So essentially it looks like they settled a claim and are looking for someone else to pay the bill so they sought out the prior owner, Me. This is  100+ year old home in Philadelphia so who knows when this small discrepancy over property lines started. Fidelity is accusing me of "conveying a property I did not own" and "Demanding" I indemnify them for all costs associated with resolving the title insurance claim, $28,425.00. I am shocked and appalled. I didn't even think something like this was possible. Is title insurance supposed to cover home owners from this sort of thing? How does Fidelity have any legal leg to stand on in trying to have me pay for a claim the settled with their client? It seems crazy to me. I think the figure they have more money for lawyers than I do, which is true. Any thoughts on how to proceed? Best, D
 
 
from AZ
I am merely what I consider to be another victim of Fidelity's unethical practices so I have no real advice as to how to proceed especially since I am not an attorney.

It does seem to me though that as the Seller if the Buyer was going to go after you it would have been at the same time and it would be for the reason that you knew this fact and did not disclose it.  If indeed you had no idea and purchased the property yourself not knowing then I do not see where the responsibility to insure the property is yours.

I have never heard (and a lot of people write to me with their problems as if I am an advocate attorney) of anything like this where they are coming after you for their insurance claim.  I did not think this was possible either and it could be there are just trying an end run.  I do not know but I think it is possible that Fidelity as a company might try this.

If indeed you had no knowledge of this problem I would just either ignore their "demand" or write them a simple sentence telling them that you have absolutely no knowledge of the dispute that they are talking about and that it is between them and their client as you were not a party to that title insurance contract or, obviously, hire a real estate attorney but that will be very expensive.

 
Thank Ann I appreciate the guidance!
 
As he stated perhaps Fidelity has more money for lawyers than he does????  I do not know.  Has anyone else heard of a situation like this one?

Saturday, December 5, 2015

From a former Claims Counsel Fidelity National Title Insurance Company

Good morning,
 
I just stumbled onto your blog.  I used to work at this crap hole.  
95% of the claims attorneys are trying to do the right thing, but road blocks are put in their path at every turn.  It appears, from my experience, that the minute the attorney figures out how to do the job and jump through the hoops effectively, or grows a spine they are terminated. 
I'm so sick of trying to explain my termination in 'nice' terms (don't bad mouth a past employer to a potential employer) when the truth is I was terminated because I was making more than the first year grads and told my manager he was wrong and I wasn't going to do what I was told. The minute I started doing my job instead of doing what I was told my days were numbered.  And I can't say anything about it because it's 'sour grapes' due to the fact I was fired. 
Don't really have a point to my email, other than commiseration. 
 
My response: 
 
I agree with you as every claims attorney I spoke to at the beginning (like the Title Officer who opened the claim) thought that Fidelity had made an error that was costly for me.  Unfortunately as the claim was processed it became apparent that they were going to need to pay me a lot of money so from that point forward everything was done to lessen the credibility of my claim.
 
So yes, I believe that 95% at least started their employment with good intentions.
 
It is unfortunate that it appears that the conflict between representing the client and their insurance needs rather than the bottom line of the company becomes in my opinion a loss for the client.