MILTON N. WHYNES, Appellant,
AMERICAN SECURITY INSURANCE COMPANY and WELLS FARGO BANK, N.A., Appellees.
final until disposition of timely filed motion for rehearing.
Consolidated appeals from the Circuit Court for the Fifteenth
Judicial Circuit, Palm Beach County; Richard L. Oftedal,
Judge; L.T. Case No. 50-2015-CA-013127-XXXX-MB.
Jeffrey Golant of The Law Offices of Jeffrey N. Golant, P.A.,
Coral Springs, for appellant.
Farrokh Jhabvala, Frank Burt and Peter D. Webster of Carlton
Fields Jorden Burt, P.A., Miami, for appellee, American
Security Insurance Company.
F. Holladay-Tobias and Emily Y. Rottmann of McGuireWoods LLP,
Jacksonville, for appellee, Wells Fargo Bank, N.A.
N. Whynes ("Whynes") appeals the dismissal of his
complaint against American Security Insurance Company
("ASIC") and Wells Fargo Bank, N.A. ("Wells
Fargo"). The complaint alleged a violation of a consumer
protection statute, section 626.9551(1)(d), Florida Statutes
(2015), and sought a declaratory judgment. Because the trial
judge correctly determined that the statute is inapplicable
to any of the allegations contained in the complaint, we
a borrower, challenges the exchange of information between
his mortgagee bank, Wells Fargo, and the servicer that
monitors required levels of insurance on its mortgaged
properties, ASIC, pursuant to section 626.9551(1)(d). Whynes
alleges that, in exchange for this mortgage monitoring
service, ASIC has the exclusive right to impose
"force-placed insurance" on the Wells Fargo
properties if the properties become uninsured through lapses
or otherwise under-insured.
this action is section 626.9551(1)(d)'s provision that no
person may use or provide to others insurance information
required to be disclosed by a borrower to a lending
institution in connection with a loan "for the purpose
of soliciting the sale of insurance" without
the borrower's consent. (Emphasis added). Whynes alleged
that, despite his maintenance of insurance, ASIC force-placed
insurance on Whynes' home. Further, he essentially
alleged a specific violation of section 626.9551(1)(d) in
that ASIC used Whynes' information to solicit
the sale of a force-placed insurance policy to Wells Fargo.
Whynes sought a declaratory judgment stating that ASIC may
not retain his insurance information and that Wells Fargo may
not provide any more protected information to ASIC.
and Wells Fargo separately moved to dismiss, alleging, among
other things, that Whynes failed to state a cause of action:
He did not allege a "solicitation" within the
meaning of section 626.9551(1)(d) since his insurance was
force-placed and Whynes, the borrower, was not directly
solicited. The trial court agreed and dismissed the
the issue before this court is whether section 626.9551(1)(d)
requires the prohibited solicitation to be directed to a
borrower. We agree with the trial court that it does and,
because there is no binding authority interpreting section
626.9551(1)(d), we offer our interpretation.
It is a fundamental principle of statutory interpretation
that legislative intent is the "polestar" that
guides this Court's interpretation. We endeavor to
construe statutes to effectuate the intent of the
Legislature. To discern legislative intent, we look
"primarily" to the actual language used in the
statute. Further, "[w]hen the statute is clear and
unambiguous, courts will not look behind the statute's
plain language for legislative intent or resort to rules of
statutory construction to ascertain intent."
Borden v. East-European Ins. Co., 921 So.2d 587, 595
(Fla. 2006) (alteration in original) (citations omitted).
"In determining legislative intent, we must give due
weight and effect to the title . . . which was placed at the
beginning of the section by the legislature itself" and
which "is a direct statement by the legislature of its
intent." State v. Webb, 398 So.2d 820, 824-25
(Fla. 1981). Further, "[a] phrase must be viewed in the
context of the entire statutory section." WFTV, Inc.
v. Wilken, 675 So.2d 674, 678 (Fla. 4th DCA 1996).
to the subject statute, section 626.9551 is part of
Florida's Unfair Insurance Trade Practices Act,
see section 626.951(2), Florida Statutes (2015), and
is entitled "Favored agent or insurer; ...