NEIL P. OLACK, Bankruptcy Judge.
There came on for consideration (1) Mississippi Valley Title Insurance Company and Old Republic National Title Insurance Company's Motion for Partial Summary Judgment (the "Motion") (Adv. Dkt. 301)
Having reviewed the pleadings and all the exhibits attached thereto, together with other pleadings on file and the briefs submitted by the parties, the Court finds that partial summary judgment should be granted in favor of the Title Companies on the tort claims of FSB, Patriot, First Alliance, Holmes, First State, and OmniBank (the "Banks"), as set forth below.
This Court has jurisdiction over the subject matter of and the parties to this proceeding pursuant to 28 U.S.C. § 1334. This matter is a core proceeding as defined in 28 U.S.C. § 157(b)(2)(K).
In making its determination of facts on the Motion, this Court must view the evidence submitted by the parties in the light most favorable to the non-moving party. McPherson v. Rankin, 736 F.2d 175, 178 (5th Cir.1984). With that standard in mind, the Court finds that there are no genuine issues with respect to the following facts set forth in the briefs submitted to the Court:
1. In 2004, Jon Christopher Evans ("Chris Evans") approached First Alliance about obtaining a loan secured by two parcels of land, Tracts 10E and 10F, in Southaven, DeSoto County, Mississippi.
2. Charles H. Evans ("Charles Evans") and Chris Evans are brothers (the "Evans Brothers").
3. Charles Evans served as the "approved attorney" for the Title Companies in this transaction.
4. On November 11, 2004, the Title Companies issued two title commitments, bearing commitment numbers M-306425 and M-306426 (the "First Alliance Title Commitments") to First Alliance. (First Alliance Crossclaim Ex. 1).
5. On November 22, 2004, First Alliance loaned $760,000.00 to Snowden Grove Investors, LLC ("Snowden"), an entity controlled by Chris Evans. (First Alliance Crossclaim Ex. 2). To secure the loan, Snowden executed a deed of trust in favor of First Alliance on Tracts 10E and 10F.
6. On December 2, 2004, the Title Companies issued First Alliance two title insurance policies, bearing policy numbers M-306425 and M-306426, on Tracts 10E and 10F. (First Alliance Crossclaim Ex. 3). Loan policy numbers M-306425 and M-306426 are hereinafter referred to as the Snowden Policies.
7. The Snowden Policies insured First Alliance against loss or damage sustained
8. In 2005, Chris Evans approached First State about obtaining a loan secured by two parcels of land, Tracts 10G and 10H, in Southaven, DeSoto County, Mississippi.
9. Charles Evans served as the "approved attorney" for the Title Companies in this transaction.
10. On or about June 10, 2005, the Title Companies issued a title commitment, bearing commitment number M-306506 (the "First State Title Commitment"), to First State. (First State Crossclaim Ex. 1). The First State Title Commitment stated that Tracts 10G and 10H were owned by Woodgreen. Additionally, the First State Title Commitment stated that Tracts 10G and 10H were free of any liens or encumbrances. On the date the First State Title Commitment was issued, however, there were numerous deeds of trust and other liens on the properties in favor of other banks from whom the Evans Brothers had borrowed funds.
11. On June 17, 2005, First State loaned approximately $420,000.00 to Cedar Lake Investors, LLC ("Cedar Lake"), an entity controlled by Chris Evans. The loan was secured by a first lien position on Tracts 10G and 10H. (First State Crossclaim Ex. 2)
12. On June 23, 2005, the Title Companies issued First State a title insurance policy, bearing policy number M-306506, on Tracts 10G and 10H. (First State Crossclaim Ex. 3). Loan policy number M-306506 is hereinafter referred to as the Cedar Lake Policy I.
13. The Cedar Lake Policy I insured First State against loss or damage sustained by the occurrence of certain conditions, including title to the estate or interest not being vested in Cedar Lake and any defect in, or lien or encumbrance on the title. (First State Crossclaim Ex. 3).
14. In 2005, Chris Evans approached Patriot about obtaining a loan on two parcels of land, Tracts 10J and 10K, in Southaven, DeSoto County, Mississippi.
15. Charles Evans served as the "approved attorney" for the Title Companies in this transaction.
16. On or about July 7, 2005, the Title Companies issued a title commitment, bearing commitment number M-306520 (the "Patriot Title Commitment"), to Patriot. (Patriot Crossclaim Ex. 1). The Patriot Title Commitment stated that Tracts 10J and 10K were owned by Woodgreen. Additionally, the Patriot Title Commitment stated that Tracts 10J and 10K were free of any liens or encumbrances. On the date the Patriot Title Commitment was issued, however, there were numerous deeds of trust and other liens on the properties in favor of other banks from whom the Evans Brothers had borrowed funds.
17. On July 22, 2005, Patriot loaned Cedar Lake $500,000.00. The loan was secured by a first lien position on Tracts 10J and 10K. (Patriot Crossclaim Ex. 2).
18. On August 2, 2005, the Title Companies issued Patriot a title insurance policy, bearing policy number M-306520, on Tracts 10J and 10K. (Patriot Crossclaim Ex. 3). Loan policy number M-306520 is hereinafter referred to as the Cedar Lake Policy II.
19. The Cedar Lake Policy II insured Patriot against loss or damage sustained by the occurrence of certain conditions, including title to the estate or interest not
20. In 2007, Chris Evans approached OmniBank about obtaining loans secured by two parcels of land, Tracts 2B and 2C, in Madison County, Mississippi.
21. Charles Evans served as the "approved attorney" for the Title Companies in these transactions.
22. In 2007, OmniBank loaned approximately $1.5 million to Madison Avenue Development Company, LLC ("Madison Avenue"), an entity controlled by Chris Evans. The loans were secured by a first lien position on Tracts 2B and 2C.
23. On February 6, 2007, the Title Companies issued OmniBank a title insurance policy, bearing policy number M-306737, on Tract 2B. (OmniBank Crossclaim Ex. A). Then, on March 14, 2007, the Title Companies issued to OmniBank another title insurance policy, bearing policy number M-306758, on Tract 2C. (OmniBank Crossclaim Ex. B). Loan policy numbers M-306737 and M-306758 are hereinafter referred to as the Madison Avenue Policies.
24. The Madison Avenue Policies stated that Madison Avenue owned Tracts 2B and 2C. Additionally, the Madison Avenue Policies stated that Tracts 2B and 2C were free of any liens or encumbrances. On the dates the Madison Avenue Policies were issued, however, Tracts 2B and 2C were owned by C & L, Inc. and Highland Development Group, Inc., respectively, both entities controlled by Chris Evans. In addition, there were numerous deeds of trust and other liens on the properties in favor of other banks from whom the Evans Brothers had borrowed funds.
25. The Madison Avenue Policies insured OmniBank against loss or damage sustained or incurred by reason of any defect in, or lien or encumbrance on the title. (OmniBank Crossclaim Ex. B).
26. In 2008, Chris Evans approached Holmes about obtaining a loan secured by a parcel of land, Tract 1G, in Madison County, Mississippi.
27. Charles Evans served as the "approved attorney" for the Title Companies in this transaction.
28. On April 22, 2008, Holmes loaned $780,127.00 to Park Place Commons, LLC ("Park Place"), an entity controlled by Chris Evans. The loan was secured by a first lien position on Tract 1G. (Holmes Crossclaim Ex. 1).
29. On April 28, 2008, the Title Companies issued Holmes a title insurance policy, bearing policy number LP 107019, on Tract 1G. (Holmes Ex. 2). Loan policy number LP 107019 is hereinafter referred to as the Park Place Policy.
30. The Park Place Policy stated that Tract 1G was free of any liens or encumbrances. On the date the Park Place Policy was issued, however, there were numerous deeds of trust and other liens on the property in favor of other banks from whom the Evans Brothers had borrowed funds.
31. The Park Place Policy insured Holmes for loss or damage sustained by the occurrence of certain conditions, including title to the estate or interest not being vested in Park Place and any defect in, or lien or encumbrance on the title. (Holmes Crossclaim Ex. 2).
32. In 2009, Chris Evans again approached Holmes about obtaining a loan
33. Charles Evans served as the "approved attorney" for the Title Companies in this transaction.
34. On February 11, 2009, Holmes loaned $800,292.00 to Nottaway Pointe, LLC ("Nottaway"), an entity controlled by Chris Evans. The loan was secured by a first lien position on Tract 1F. (Holmes Crossclaim Ex. 3).
35. On February 12, 2009, the Title Companies issued Holmes a title insurance policy, bearing policy number LP107085, on Tract 1F. (Holmes Crossclaim Ex. 4). Loan policy number LP107085 is hereinafter referred to as the Nottaway Policy.
36. The Nottaway Policy stated that Tract 1F was free of any liens or encumbrances. On the date the Nottaway Policy was issued, however, there were numerous deeds of trust and other liens on the property in favor of other banks from whom the Evans Brothers had borrowed funds.
37. The Nottaway Policy insured Holmes against loss or damage sustained by the occurrence of certain conditions, including title to the estate or interest not being vested in Nottaway and any defect in, or lien or encumbrance on the title. (Holmes Crossclaim Ex. 4).
38. In 2008, Chris Evans approached FSB about obtaining a lien secured by two parcels of land, Tracts 10E and 10O, in Southaven, DeSoto County, Mississippi.
39. Charles Evans served as the "approved attorney" for the Title Companies in these transactions.
40. On April 28, 2008, FSB loaned $900,165.00 to Brashear Heath LLC ("Brashear"), an entity controlled by Chris Evans. The loan was secured by a first lien position on Tracts 10E and 10O.
41. On May 22, 2008, the Title Companies issued FSB a title insurance policy, bearing policy number LP107030, on Tracts 10E and 10O. (FSB Crossclaim Ex. 1). Loan policy number LP107030 is hereinafter referred to as the Brashear Policy.
42. The Brashear Policy stated that Tracts 10E and 10O were free of any liens or encumbrances. On the date the Brashear Policy was issued, however, there were numerous deeds of trust and other liens on the properties in favor of other banks from whom the Evans Brothers had borrowed funds.
43. The Brashear Policy insured FSB against any loss or damage sustained because of "Title [to Tracts 10E and 10O] being vested other than as stated in Schedule A" and/or because of a "defect in the Title caused by fraud." (FSB Crossclaim Ex. 1).
44. In 2009, Chris Evans approached FSB about obtaining a loan secured by a parcel of land, Tract TC-2B, in Southaven, DeSoto County, Mississippi.
45. Charles Evans served as the "approved attorney" for the Title Companies in this transaction.
46. On January 16, 2009, FSB loaned $801,128.00 to Twin City Commons Development LLC ("Twin City"), an entity controlled by Chris Evans. The loan was secured by a first lien position on Tract TC-2B.
47. On January 20, 2009, the Title Companies issued FSB a title insurance policy, bearing policy number LP107084, on Tract TC-2B. (FSB Crossclaim Ex. 2). Loan policy number LP107084 is hereinafter referred to as the Twin City Policy.
48. The Twin City Policy stated that Tract TC-2B was free of any liens or encumbrances. On the date the Twin City
49. The Twin City Policy insured FSB against any loss or damage sustained because of "Title [to Tract TC-2B] being vested other than as stated in Schedule A" and/or because of a "defect in the Title caused by fraud." (FSB Crossclaim Ex. 2).
50. On January 18, 2010, Derek A. Henderson, the duly appointed chapter 7 trustee for the bankruptcy estate of Chris Evans and for jointly-administered related cases (the "Trustee"), filed a First Amended Complaint (the "Amended Complaint") (Adv. Dkt. 3) against the Banks, as well as other banks, and the Title Companies. The Trustee asked the Court to determine the extent, validity, and priority of the liens granted by entities controlled by Chris Evans on multiple tracts of real property. At issue here are parcels of land that comprise Tracts 1, 2, 10, and TC.
51. On December 1, 2010, FSB filed an Amended Crossclaim Against Mississippi Valley Title Insurance Company and Old Republic National Title Insurance Company (the "FSB Crossclaim") (Adv. Dkt. 135). In the FSB Crossclaim, FSB asserts causes of action against the Title Companies for: (1) breach of contract, (2) breach of the obligation of good faith and fair dealing in claims handling, (3) negligence, including the negligent supervision and retention of Charles Evans, and (4) aiding and abetting. In response, the Title Companies filed Mississippi Valley Title Insurance Company and Old Republic National Title Insurance Company's Answer and Affirmative Defenses to Amended Cross-Claim of First Security Bank (Adv. Dkt. 142) on December 27, 2010.
52. On April 28, 2011, Patriot filed the Crossclaim of Patriot Bank (Adv. Dkt. 177), in which it asserts causes of action against the Title Companies for: (1) direct fraud, (2) negligent misrepresentation, (3) imputed fraud, (4) failure to audit, supervise and monitor Charles Evans, (5) breach of contract-title policy, (6) bad faith and tortious breach of contract, (7) promissory and/or equitable estoppel, (8) breach of contract-independent promise to cure, (9) contempt, and (10) attorney's fees. In response, the Title Companies filed Mississippi Valley Title Insurance Company and Old Republic National Title Insurance Company's Amended Answer and Affirmative Defenses to Patriot Bank's Cross-Claim (Adv. Dkt. 217) on May 16, 2011.
53. On April 28, 2011, First Alliance filed the Crossclaim of First Alliance Bank (Adv. Dkt. 178). The Crossclaim of First Alliance Bank asserts causes of action against the Title Companies for: (1) direct fraud, (2) negligent misrepresentation, (3) imputed fraud, (4) failure to audit, supervise and monitor Charles Evans, (5) breach of contract-title policy, (6) bad faith and tortious breach of contract, (7) promissory and/or equitable estoppel, (8) breach of contract-independent promise to cure, (9) contempt, (10) indemnification under the closing protection letter, and (11) attorney's fees. In response, the Title Companies filed Mississippi Valley Title Insurance Company and Old Republic National Title Insurance Company's Amended Answer and Affirmative Defenses to First Alliance Bank's Cross-Claim (Adv. Dkt. 212) on May 16, 2011.
54. On April 29, 2011, Holmes filed an Amended Crossclaim of Holmes County Bank (Adv. Dkt. 187). The Amended Crossclaim of Holmes County Bank asserts causes of action against the Title Companies for: (1) breach of contract-title policy, (2) bad faith and tortious breach of
55. On April 29, 2011, First State filed an Amended Crossclaim of First State Bank (Adv. Dkt. 188). The Amended Crossclaim of First State Bank asserts causes of action against the Title Companies for: (1) direct fraud, (2) negligent misrepresentation, (3) imputed fraud, (4) failure to audit, supervise or monitor Charles Evans, (5) breach of contract-title policy, (6) bad faith and tortious breach of contract, (7) promissory and/or equitable estoppel, (8) breach of contract-independent promise to cure, (9) contempt, and (10) attorney's fees. In response, the Title Companies filed Mississippi Valley Title Insurance Company and Old Republic National Title Insurance Company's Amended Answer and Affirmative Defenses to First State Bank's Amended Cross-Claim (Adv. Dkt. 213) on May 16, 2011.
56. On May 4, 2011, OmniBank filed a Crossclaim (Adv. Dkt. 198) against the Title Companies. OmniBank in its Crossclaim asserts causes of action against the Title Companies for: (1) breach of contract, (2) breach of obligation of good faith and fair dealing in claims handling, (3) negligence including negligent supervision and retention of Charles Evans, and (4) aiding and abetting. In response, the Title Companies filed Mississippi Valley Title Insurance Company and Old Republic National Title Insurance Company's Amended Answer and Affirmative Defenses to OmniBank's Cross-Claim (Adv. Dkt. 216) on May 16, 2011.
57. On August 10, 2011, the Title Companies filed the Motion (Adv. Dkt. 301) against FSB, Patriot, First Alliance, Holmes, First State, and OmniBank seeking judgment as a matter of law on their claims for (1) direct and indirect fraud, (2) negligent misrepresentation, (3) negligent failure to audit, supervise, monitor and retain Charles Evans, (4) breach of independent agreement to cure, (5) promissory/equitable estoppel, (6) aiding and abetting, (7) breach of closing protection letter, and (8) contempt.
Before addressing the merits of the Motion, the Court pauses here to discuss the procedural posture of the present Motion. The Motion is the first of two motions that the Title Companies have filed in the Adversary in which they seek partial summary judgment on claims asserted by Patriot, First Alliance, Holmes, First State, and OmniBank, and is the second of three such motions on claims asserted by FSB.
The Banks do not oppose all of the relief requested by the Title Companies in the Motion. Specifically, First Alliance
For ease of reference, the Court sometimes refers to some of the Banks as the "Fraud-Claim Banks" or the "Negligence-Claim Banks." These subgroups are based on the predominate nature of the claims they asserted against the Title Companies. The discussion below defines these groups and addresses their claims separately.
Under Federal Rule of Civil Procedure 56(a),
Fed.R.Civ.P. 56(c)(1).
"Summary judgment . . . serves, among other ways, to root out, narrow, and focus the issues, if not resolve them completely." Calpetco 1981 v. Marshall Exploration, Inc., 989 F.2d 1408, 1415 (5th Cir.1993). The effect of a partial summary judgment, if granted, is to lessen "the length and complexity of trial on the remaining
First Alliance, Patriot, and First State (hereinafter, the "Fraud-Claim Banks" in section "B" only) allege causes of action for direct and imputed fraud
The Title Companies assert in the Motion that the Fraud-Claim Banks waived their claims of direct and imputed fraud. They also assert, in the same vein, that these fraud claims are barred by the doctrine of election of remedies.
Under Mississippi law, allegations of fraud render a title insurance policy "voidable," not "void." Allen v. Mac Tools, Inc., 671 So.2d 636, 641 (Miss.1996), citing Turner v. Wakefield, 481 So.2d 846, 848-49 (Miss.1985). As a result, the decision whether to void a policy must be "promptly made" by the party wishing to rescind, otherwise the agreement is ratified and a waiver occurs. Id. Similarly, the doctrine of election of remedies holds that where an individual claims to be fraudulently induced to enter into a contract, the defrauded party must elect either to rescind the contract and pursue his claim for fraud, or affirm the contract and sue for contractual damages. See Bogy v. Ford Motor Co., 538 F.3d 352, 354-55 (5th Cir.2008), citing Turner, 481 So.2d at 848-49. Once the election has been made, that decision is final. Turner, 481 So.2d at 848.
The Title Companies contend that the Fraud-Claim Banks had the option either to rescind their title insurance policies and sue for fraud, or to affirm the title insurance policies and sue for breach of contract. Because it is undisputed that the Fraud-Claim Banks submitted claims under their respective title insurance policies,
The Fraud-Claim Banks counter that the false statements in the title insurance commitments induced them into entering into the loan agreements, not the title insurance policies. They insist that the only contracts that they could have rescinded and that would have rendered them whole, were the loan agreements. Under the rationale of the Title Companies, however, the Fraud-Claim Banks had to rescind the title insurance commitments and the title insurance policies. The Fraud-Claim Banks complain that rescission of those contracts would have resulted in little benefit to them.
The Court does not trod on completely new ground in considering the application of these legal doctrines under these circumstances. In G&B Investments, Inc. v. Henderson (In re Evans) ("Evans I"), No. 10-00040-NPO, 2011 WL 4712176, *21 (Bankr.S.D.Miss. Oct. 7 2011) (Adv. No. 10-00040-NPO, Adv. Dkt. 446), this Court ruled after the trial of a separate adversary proceeding with very similar facts that the doctrines of waiver and election of remedies precluded a bank from seeking recovery against the Title Companies for fraud.
The Title Companies maintain that the fraud claims of the Fraud-Claim Banks are barred by the three-year statute of limitations under Miss.Code Ann. § 15-1-49, which provides, in pertinent part:
Miss.Code Ann. § 15-1-49. Because the Fraud-Claim Banks initiated litigation against the Title Companies more than five years after the title insurance commitments had been issued, their claims are time-barred. See Dunn v. Dent, 169 Miss. 574, 153 So. 798 (1934) ("action for such deceit accrues upon the completion of the sale induced by such false representation, or upon the consummation of the fraud").
The Court agrees with the Fraud-Claim Banks that the statute of limitations in these circumstances did not begin to run until the alleged fraud became known, or should have become known, to the policyholder. See Parker v. Horace Mann Life Ins. Co., 949 So.2d 57, 59 (Miss.Ct.App. 2006). Because there are fact issues as to when the Fraud-Claim Banks knew, or should have known through the exercise of reasonable diligence about the alleged misrepresentations, the Court finds that the Title Companies are not entitled to partial summary judgment on the ground that their fraud claims are time-barred under Mississippi law.
The Title Companies assert that there is no genuine issue of fact that the title insurance commitments they issued the Fraud-Claim Banks contained accurate information about the condition of the titles for their respective properties, assuming for the sake of argument that the title insurance commitments contained any such representations. The Title Companies, therefore, contend that the Fraud-Claim Banks cannot satisfy the first two elements of their fraud claims. In Mississippi, the elements of a fraudulent representation/intentional misrepresentation claim are: (1) a representation, (2) its falsity, (3) its materiality, (4) the speaker's knowledge of its falsity or ignorance of its truth, (5) his intent that it should be acted on by the hearer and in the manner reasonably contemplated, (6) the hearer's ignorance of its falsity, (7) his reliance on its truth, (8) his right to rely thereon, and (9) his consequent and proximate injury. Trim v. Trim, 33 So.3d 471, 478 (Miss. 2010), citing McCord v. Healthcare Recoveries, Inc., 960 So.2d 399, 406 (Miss.2007).
In support of the Motion, the Title Companies submit to the Court the Affidavit of W. Parrish Fortenberry ("Fortenberry"), the executive vice-president, senior claims and title counsel for Mississippi Valley Title Insurance Company. (Title Companies Ex. 1). Although Mississippi law requires that chancery clerks maintain an alphabetical index, both direct and reverse, of grantors and grantees, Fortenberry testified that in the chain of title of the respective properties, there were no prior liens in the official grantor/grantee indices maintained by the Clerk of the Chancery Court of DeSoto County, Mississippi (the "Chancery Clerk").
The Fraud-Claim Banks disagree. The Fraud-Claim Banks submit to the Court
In response, the Title Companies maintain that there were no outstanding liens because the liens created by the deeds of trust were "wild deeds" not found in the "chain of title," and, therefore, not part of the public record. In this way, the Title Companies make no distinction between "chain of title" and "of record." According to the Title Companies, Mississippi law does not require that an attorney search for "wild deeds" outside the chain of title. See Morgan v. Mars, 207 Miss. 848, 43 So.2d 563, 564 (1949). In other words, the Title Companies do not dispute that there were in fact liens on the properties. Instead, the Title Companies argue that they had no duty to search outside the chain of title for "wild deeds," such as the deeds of trust granted by Snowden. See Miss.Code Ann. § 89-5-3. "Locating a wild deed is the prototypical `needle in a haystack' search," according to the Title Companies. (Title Companies Reply Brief at 7).
The Fraud-Claim Banks counter that the words "chain of title" do not appear in the title commitments, which simply state that there are "no liens and encumbrances to be satisfied and discharged of record." (First Alliance Ex. 1). The Fraud-Claim Banks consider it immaterial whether the deeds of trust appeared in the chain of title, because the plain language of the title insurance policies required the Title Companies to list all encumbrances and liens on their properties. The Title Companies could have included language in the title insurance policies that excluded "wild deeds" from coverage but did not do so. Here, all of the deeds of trust did appear "in the public records" in the official grantor/grantee indices.
Mississippi applies the plain meaning of a contract where the contract's term are unambiguous. Leonard v. Nationwide Mut. Ins. Co., 499 F.3d 419, 429 (5th Cir.2007), citing Robley v. Blue Cross/ Blue Shield, 935 So.2d 990, 996 (Miss. 2006). The Court finds that the plain meaning of the title insurance commitments is clear. The title insurance commitments state that Schedule B lists all "exceptions to defects, liens, encumbrances, adverse claims or other matters, if any, created, first appearing in the public records or attaching subsequent to the effective date hereof but prior to the date the proposed Insured acquires for value of record the estate or interest or mortgage thereon covered by the Commitment." (First Alliance Ex. 1). Schedule B in each of the title insurance commitments lists two right-of-ways to Mississippi Power & Light and a 10-foot easement to DeSoto County, Mississippi. (First Alliance Ex. 1). The title insurance commitments, however, fail to list the encumbrances and liens held by other banks. The Court finds that the Title Companies have not shown that they are entitled to partial summary judgment on the merits of the fraudulent misrepresentation claims.
The Court has already found that the doctrines of waiver and/or election of remedies bar the fraud claims of First Alliance, Patriot, and First State, including their claims for fraudulent representation and negligent misrepresentation.
First Alliance, Patriot, and First State assert claims of negligent misrepresentation based on allegedly false statements contained in the title commitments issued by the Title Companies. For a plaintiff to successfully assert a claim of negligent misrepresentation, the plaintiff must prove by a preponderance of the evidence: (1) a misrepresentation or omission of a fact; (2) that the representation or omission is material or significant; (3) that the person/entity charged with the negligence failed to exercise that degree of diligence and expertise the public is entitled to expect of such person/entities; (4) that the plaintiff reasonably relied upon the misrepresentation or omission; and (5) that the plaintiff suffered damages as a direct and proximate result of such reasonable reliance. Weible v. Univ. of S. Miss., No.2010-CA-00442-COA, 2011 WL 5027203, *15 (Miss.Ct.App. Oct. 18, 2011), quoting Holland v. Peoples Bank & Trust Co., 3 So.3d 94, 101 (Miss.2008).
As previously discussed, the plain language of the title insurance commitments stated that it would list all liens and encumbrances on the properties. The title insurance commitments, however, did not disclose liens on the properties held by other banks. (First Alliance Ex. 1). Therefore, the Court finds that a genuine issue exists as to whether the title insurance commitments contained a misrepresentation. Even so, the negligence representation claims of First Alliance, Patriot, and First State are barred by the doctrines of election of remedies and waiver, and as a result, the Motion should be granted for the reasons previously stated.
The Banks allege that the Title Companies had a duty to audit, monitor, and supervise, Charles Evans, their approved attorney. The Title Companies contend that the Banks cannot prove the existence of a duty under Mississippi law. See, e.g., Enterprise Leasing Co. v. Bardin, 8 So.3d 866, 868 (Miss.2009) (plaintiff's first obligation in a negligence case is proving that a duty exists). To successfully assert a claim of negligence, the Banks must prove: (1) a duty, (2) a breach of duty, (3) a reasonably close causal connection between the conduct complained of and the resulting injury, and (4) actual loss or damage resulting to the interests of another. Little v. Miller, 909 So.2d 1256, 1259 (Miss.Ct.App.2005), citing Foster by Foster v. Bass, 575 So.2d 967, 972 (Miss. 1990).
The Banks maintain that the Supervision and Control Guidelines for Agencies and Approved Attorneys (the "ALTA Guidelines"), developed by the American Land Title Association ("ALTA"), of which the Title Companies are members, create a legal duty requiring title companies to audit, monitor, and supervise their approved attorneys.
The Banks contend that the Title Companies breached the duty because they "[n]ever conduct[ed] any investigation or inquiry," but "accepted Charles Evans' certifications as to status of title and verbatim copied them onto their Title Commitments and Title Polices." (First Alliance Response Brief at 35). The Title Companies did not audit, monitor, or supervise Charles Evans, the Negligence-Claim Banks argue, even though they had an auditing department. (First Alliance Ex. 21). Indeed, if the Title Companies had audited, monitored, or supervised Charles Evans, they would have learned that he was writing checks to a men's clothing shop in Jackson, Mississippi, and paying charges on his American Express card from funds drawn on the attorney trust account used for escrow and disbursement of the loan proceeds in which the Title Companies' issued their policies. (First Alliance Ex. 25). Indeed, the Title Companies admit that if they known about Charles Evans' behavior, they would have removed him from their approved attorney's list earlier. (First Alliance Ex. 23).
The Title Companies do not dispute that they failed to audit, monitor or supervise Charles Evans. Additionally, the Title Companies admit that they have an in-house auditing department that audits their agents by "pull[ing] . . . closing files and look[ing] at the deed, deeds of trust, [to] see if the different notices had been signed" and monitoring escrow accounts. (First Alliance Ex. 21). The auditing department, however, does not oversee the actions of the Title Companies' approved attorneys. The Title Companies state that they check approved attorneys only to ensure they have errors and omissions insurance in place and to find out if any clients have filed complaints against them with the applicable bar association. (First Alliance Ex. 21).
The Title Companies argue that an insurer has no duty to audit, monitor or supervise its approved attorneys as a matter of law. The Title Companies believe this issue is squarely settled by the Mississippi Supreme Court's decision in Hartford Steam Boiler Inspection & Ins. Co. v. Cooper, 341 So.2d 665, 666 (Miss.1977). There, the Mississippi Supreme Court held that an insurer of certain industrial equipment had no duty to an employee of its insured to inspect the equipment for safety hazards. Id. The employee sued the insurance company to recover damages from personal injuries he sustained as the result of the insurer's alleged negligent inspection of the equipment. Id. The Mississippi Supreme Court explained that if the insurer "had a duty to inspect, the obligation must derive either from the policy or because [the insurer] assumed responsibility for performing inspections to the extent that they should have recognized the inspection of the machines was necessary for the protection of third persons." Id. at 667. "The incidental benefits that accrued to [the insured's] employees and the public by . . . inspections and recommendation should not rationally give rise to liability for failure to inspect a particular piece of equipment." Id., citing Zamecki v. Hartford Accident & Ind. Co., 202 Md. 54, 95 A.2d 302 (1953).
According to the Title Companies, because the Hartford Steam court held that any underwriting efforts done by an insurer are solely for its own benefit and not for
Simply put, the issue before this Court is a question of law that no reported case in Mississippi has yet addressed, that is, whether a title insurance company owes a duty to a third party to audit, supervise, or retain an approved attorney. Generally, Mississippi law imposes a duty on persons to take reasonable and due care in performing an act, even in the absence of a contract. River Prod. Co. v. Baker Hughes Prod. Tools, Inc., 98 F.3d 857, 859 (5th Cir.1996), citing Dr. Pepper Bottling Co. v. Bruner, 245 Miss. 276, 148 So.2d 199, 201 (1962). "Determining whether a duty is owed is approached by asking `whether the plaintiff's interests are entitled to legal protection against the defendant's conduct,' rather than focusing solely on the level of relationship between the parties." Scafide v. Bazzone, 962 So.2d 585, 592 (Miss.App.2006), quoting PROSSER AND KEETON ON TORTS § 53, at 356-58 (5th ed. 1984). In general, Mississippi law does not recognize a fiduciary relationship or duty between an insurance company and its insured because courts deem the purchase of insurance to be an arms-length business transaction. Frye v. Am. Gen. Fin., Inc., 307 F.Supp.2d 836, 843 (S.D.Miss.2004).
Whether a duty is owed in a negligence action is a question of law. Here, the Court agrees with the construction and application of the Hartford Steam decision posited by the Title Companies. The Hartford Steam court held that an insurer has a duty to inspect its insured only when it is provided for in the policy. In this same vein, a insurer should have a duty to audit, monitor, or supervise an approved attorney only when it is provided for in the policy. Were this Court to impose a duty upon the Title Companies to audit, monitor, or supervise its approved attorneys, it would in essence create a fiduciary relationship between an insurance company and its insured in contravention of well-settled Mississippi law. See Frye, 307 F.Supp.2d at 843. This finding is also consistent with the Eighth Circuit's decision in Bluehaven finding that an insurer had no duty to supervise its own agent. See Bluehaven, 594 F.3d 1055. The Court rejects the contention of the Negligence-Claim Banks that the ALTA Guidelines create a duty for the Title Companies to audit, monitor, or supervise their approved attorneys. The ALTA Guidelines are just that, guidelines,
In addition to their other negligence claims, FSB and OmniBank, (hereinafter, the "Negligence-Claim Banks"), assert claims against the Title Companies for the negligent retention of their approved attorney, Charles Evans. A claim of negligent retention "is simply a negligence claim, requiring a finding of duty, breach of duty, causation and damage." Roman Catholic Diocese v. Morrison, 905 So.2d 1213, 1229 (Miss.2005). Mississippi law requires the presence of an employer-employee relationship to assert a claim of negligent retention. See Commercial Bank v. Hearn, 923 So.2d 202, 204 (Miss. 2006). Moreover, an employer who exercised due care in hiring its employee may be held liable for the negligent retention of that employee only when the employer had either actual or constructive knowledge of the employee's incompetence or unfitness. Doe ex rel. Brown v. Pontotoc Cnty. School Dist., 957 So.2d 410, 417 (Miss.Ct. App.2007), citing Eagle Motor Lines, Inc. v. Mitchell, 223 Miss. 398, 78 So.2d 482, 487 (1955).
The Title Companies argue that partial summary judgment is proper because the Negligence-Claim Banks do not dispute that Charles Evans was never employed by them. Further, the Title Companies maintain that even if they were his employer, the Negligence-Claim Banks cannot meet their burden of showing that the Title Companies had actual or constructive knowledge of Charles Evans's unfitness. Their argument is premised on a finding that they acted properly when they added Charles Evans to the approved attorney list in 1984 and again in 2002.
The Negligence-Claim Banks counter that by keeping Charles Evans on the approved attorneys list after they knew or should have known about his fraudulent conduct, the Title Companies are liable for negligent retention. They contend that the existence of numerous title insurance policies on the same property should have alerted them that something was amiss.
The Court finds that because Charles Evans was never an employee of the Title Companies, the Title Companies cannot be held liable for negligent retention as a matter of law. Thus, the Motion as to the claim of negligent retention should be granted on the merits on the ground that there is no evidence of an employer-employee relationship. Given this finding, it is unnecessary for the Court to determine if genuine issues of fact exist as to whether the Title Companies had notice of Charles Evans' fraudulent scheme.
The Negligence-Claim Banks also allege that the Title Companies substantially assisted Charles Evans in his fraudulent scheme. As a result of these actions, the Negligence-Claim Banks contend that the Title Companies are liable for aiding and abetting Charles Evans pursuant to the RESTATEMENT (SECOND) OF TORTS § 876(c). They base their claims of aiding and abetting against the Title Companies primarily upon representations in the title insurance policies they issued, which reflected that the Negligence-Claim Banks had a first lien position on their mortgages, when in fact they did not.
The two subsections on aiding and abetting, § 876(b) and § 876(c), differ in important ways. Under § 876(b), liability exists when a party "knows that [another tortfeasor's] conduct constitutes a breach of duty and gives substantial assistance or encouragement to the other." RESTATEMENT (SECOND) OF TORTS § 876(b). Under § 876(c), liability exists "for harm resulting to a third person from the tortious conduct of another, . . . if he . . . gives substantial assistance to the other in accomplishing a tortious result and his own conduct, separately considered, constitutes a breach of duty to the third person." RESTATEMENT (SECOND) OF TORTS § 876(c). Thus, to meet the elements of aiding and abetting under § 876(c) the plaintiff must demonstrate that (1) the defendant's actions constituted a breach of duty and (2) the defendant provided substantial assistance to the primary party's breach. Norman v. Brandt, 397 Ill.App.3d 1074, 340 Ill.Dec. 710, 929 N.E.2d 14, 21 (2010). Notably, § 876(c) does not require knowledge about the primary party's wrongdoing.
No Mississippi court has ever recognized any of the three subsections of the RESTATEMENT (SECOND) OF TORTS § 876 as viable causes of action. Mississippi recognizes a common-law claim for civil conspiracy, but not under the auspices of § 876(a). See Perkins v. Wal-Mart Stores, Inc., 46 So.3d 839 (Miss.Ct.App.2010). Additionally, no Mississippi court has recognized a claim for civil aiding and abetting, whether under § 876(b) or § 876(c). Significantly, however, the federal district court in Dale v. Ala Acquisitions, Inc., 203 F.Supp.2d 694 (S.D.Miss.2002), made an Erie
In conclusion, the Court finds that the Title Companies are entitled to partial summary judgment as a matter of law on the following tort claims:
(1) claims of First Alliance and Patriot for promissory and/or equitable estoppel arising out of representations made by the Title Companies regarding the Title Resolution Order;
(2) claims of First Alliance and Patriot for breach of independent promise of the Title Companies to cure the title defects by way of the Title Resolution Order;
(3) claims of First Alliance for indemnification under a closing protection letter issued by the Title Companies on October 26, 2004;
(4) claims of First Alliance, Patriot, and First State for contempt against the Title
(5) claims of First Alliance, Patriot, and First State for fraudulent representation and/or intentional misrepresentation arising out of statements in the title insurance policies on the ground that the claims are precluded by the doctrines of waiver and/or election of remedies;
(6) claims of First Alliance, Patriot, and First State for negligent misrepresentation arising out of statements in the title insurance policies on the ground that the claims are precluded by the doctrines of waiver and/or election of remedies;
(7) claims of the Banks for negligent failure to audit, monitor, or supervise Charles Evans on the ground that the Title Companies owed no duty to the Banks to audit, monitor, or supervise Charles Evans;
(8) claims of FSB and OmniBank for negligent retention of Charles Evans on the ground that there was no employer/employee relationship between the Title Companies and Charles Evans; and
(9) claims of FSB and OmniBank for civil aiding and abetting under the RESTATEMENT (SECOND) OF TORTS § 876(c) on the ground that Mississippi does not recognize such a cause of action.
All other relief requested by the Title Companies that is not specifically granted herein is denied.
SO ORDERED.
