William Downing v. Fidelity National Title Insura, et al

Filing

Opinion issued by court as to Appellant William D. Dowing. Decision: Affirmed. Opinion type: Non-Published. Opinion method: Per Curiam. The opinion is also available through the Court's Opinions page at this link http://www.ca11.uscourts.gov/opinions.

Case: 17-14299

Date Filed: 04/12/2018

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 17-14299
Non-Argument Calendar
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D.C. Docket No. 3:16-cv-00119-TCB
WILLIAM D. DOWNING,
Plaintiff-Appellant,
versus
FIDELITY NATIONAL TITLE INSURANCE COMPANY, et al.,
Defendants- Appellees.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
________________________
(April 12, 2018)
Before WILLIAM PRYOR, NEWSOM, and ANDERSON, Circuit Judges.
PER CURIAM:
Plaintiff William Downing appeals from the district court’s order granting
the defendant insurance companies’ motion to dismiss. Even when viewing the

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facts in the light most favorable to Downing, 1 we hold that he failed to state a
claim upon which relief can be granted. We affirm.
I
Title insurers sometimes offer discounts to a title-insurance purchaser when
an existing policy already covers the title that he seeks to insure. This type of
discount is known as a “reissue credit.” Plaintiff alleges that, beginning in 2009,
Defendants “conspired to defraud consumers into paying higher prices through a
campaign of continuing misrepresentations to their agents that title insurers were
required by law to charge their published prices,” and that Defendants “used this
scheme to eliminate discounts generally and eliminate reissue credits specifically.”
Plaintiff argues that, but for Defendants’ alleged scheme, he would have “received
a discount, i.e. a reissue credit, and paid a lower net price on his purchase of title
insurance on or about May 25, 2012.”
Plaintiff maintains that the following communications between Defendants
and their individual agents “create[d] the false impression that title insurers were
required by law to charge list prices,” and thus provide evidence of a scheme to
dismantle the reissue credit:

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When reviewing a grant of a motion to dismiss, we “accept[] the allegations in the complaint as
true and constru[e] them in the light most favorable to the plaintiff.” Belanger v. Salvation
Army, 556 F.3d 1153, 1155 (11th Cir. 2009).
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“In accordance with instructions from the Georgia Insurance
Commissioner, these charges have been filed with the Department of
Insurance and are those that must be charged to the consumer.”
“[I]t is our present understanding that the Georgia Department of
Insurance requires that the rates Old Republic National Title
Insurance Company has published to you are the rates you must
charge.”
“In accordance with the Georgia Department of Insurance’s
instructions . . .” “[t]hese rates are published and are the rates that you
are required to charge and upon which you are required to remit in
accordance with O.C.G.A. § 33-6-5(6)(B)(i).”
“In accordance with the Georgia Department of Insurance’s
instructions . . .” “these published rates are the rates that you are
required to charge and on which your remittance must be made in
accordance with O.C.G.A. § 33-6-5(6)(B)(i).”
“In accordance with the Georgia Department of Insurance’s
instructions . . .” “these published rates are the rates that you are
required to charge and on which your remittance must be made.”

Plaintiff brings two claims against Defendants, both of which allege
violations of Georgia’s RICO Act. Plaintiff first claims that Defendants violated
O.C.G.A. § 16-14-4(a), under which it is “unlawful for any person, through a
pattern of racketeering activity or proceeds derived therefrom, to acquire or
maintain, directly or indirectly, any interest in or control of any enterprise, real
property, or personal property of any nature, including money.” Plaintiff next
argues that Defendants “have conspired and endeavored” to violate the above
provisions, thereby transgressing subsection (c) of the same statute. Importantly,

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Plaintiff does not allege in his Complaint that Defendants engaged in price-fixing,
despite seeming to implicitly (and, at times, explicitly) rely on a price-fixing theory
in his original complaint and on appeal.
II
After Plaintiff filed his Complaint, the district court issued an order granting
Defendants’ motion to dismiss for failure to state a claim. The court granted
Defendants’ motion on two separate grounds. First, the court held that “the alleged
misrepresentations are misrepresentations of law that are not actionable.” Dist. Ct.
Op. 21. Second, the court held that, “even if the [alleged] misrepresentations of
law were actionable,” Plaintiff’s claim would still fail because none of the alleged
misrepresentations could have constituted the proximate cause of Plaintiff’s
alleged injury. Id. at 24.
Plaintiff timely appealed to this Court.
III
A
Plaintiff alleges that, in order to eliminate reissue credits, Defendants falsely
represented to their agents that the Georgia Department of Insurance required title
insurers to charge their full “list” prices. “[T]he well-settled meaning of ‘fraud’
require[s] a misrepresentation or concealment of material fact.” Neder v. United
States, 527 U.S. 1, 22, (1999) (emphasis omitted); see also McDaniel v. Elliott,

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497 S.E.2d 786, 788 (1998) (“The tort of fraud is defined in Georgia law as the
willful misrepresentation of a material fact, made to induce another to act, upon
which such person acts to his injury.”) (citing O.C.G.A. § 51–6–2(a)). We note at
the outset that it does not seem that Defendants’ communications constitute any
sort of misrepresentation. Rather, Defendants appear to have explained just what
Georgia law requires—i.e., that “[t]he premiums and charges for insurance” that
agents may offer “shall not be in excess of or less than those specified in the policy
and as fixed by the insurer.” O.C.G.A. § 33-6-5(6)(B)(i).
But even if Defendants’ communications did contain misrepresentations,
Plaintiff’s argument nevertheless founders. “The general rule is well settled that
fraud cannot be predicated upon misrepresentations of law or misrepresentations as
to matters of law,” Thomas v. Byrd, 129 S.E.2d 566, 567–68 (1963), “[a]nd this is
especially so where there is no confidential relation between the parties,” Swofford
v. Glaze, 63 S.E.2d 342, 344 (1951). “[W]here the truth of the representations
would depend upon the legal effect of the policy provisions, then the alleged
misrepresentations were misrepresentations of law.” Marett Properties, Inc. v.
Prudential Ins. Co. of Am., 307 S.E.2d 69, 72 (1983). Here, the communications’
material content is self-evidently legal, and their veracity “depend[s] upon the legal

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effect of the policy provisions.” Thus, under Georgia law, the communications do
not give rise to a claim of fraud. 2
B
Although Plaintiff insists in response that “Defendants are liable for all
misstatements of fact or law . . . because they had a fiduciary relationship with
their agents,” Reply Br. at 20, the argument is ultimately moot because Plaintiff
failed to show that any alleged misrepresentation—factual or legal—proximately
caused his alleged injury. “When a court evaluates a RICO claim for proximate
causation, the central question it must ask is whether the alleged violation led
directly to the plaintiff’s injuries.” Anza v. Ideal Steel Supply Corp., 547 U.S. 451,
461 (2006). Here, Plaintiff cannot answer this “central question” in the
affirmative.
As explained above, Plaintiff does not allege that Defendants set the price of
insurance illegally, only that Defendants’ allegedly fraudulent communications
regarding insurance pricing worked to deprive Plaintiff of a reissue credit. But
Defendants’ actual price-setting decisions occurred well upstream of their
communications with their agents, and (as Defendants explained in those

2

Plaintiff insists that when Defendants referred to the Georgia Department of Insurance’s
“instructions” they were in effect stating that “the Department of Insurance instructed them to
charge their list prices for title insurance”—a factual claim—and that “[t]hose events never took
place,” ergo fraud. Br. of Appellant at 9. We reject Plaintiff’s attempt to recharacterize the
inherently legal substance of Defendants’ communications.
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communications) Georgia law requires agents to charge whatever premium prices
their insurers set. See O.C.G.A. § 33-6-5(6)(B)(i). Thus, even if we were to
accept Plaintiff’s argument and hold that Defendants defrauded their agents, the
alleged misrepresentation would be of no consequence; the Georgia law requiring
that agents charge whatever prices their insurers set is agnostic to the insurer’s
rationale or motivation. As the district court put it: “Once Defendants decided to
eliminate reissue credits, there was no room for their agents to rely on any
representations (false or otherwise) about the reasons for doing so. The agents had
to charge the premiums set by Defendants. They did just that.” Dist. Ct. Op. at 27.
IV
For the foregoing reasons, we AFFIRM the district court’s judgment.

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