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Whynes v. American Security Insurance Co.

Florida Court of Appeals, Fourth District

March 21, 2018

MILTON N. WHYNES, Appellant,
v.
AMERICAN SECURITY INSURANCE COMPANY and WELLS FARGO BANK, N.A., Appellees.

         Not 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.

          Sara F. Holladay-Tobias and Emily Y. Rottmann of McGuireWoods LLP, Jacksonville, for appellee, Wells Fargo Bank, N.A.

          CIKLIN, J.

         Milton 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 affirm.

         Whynes, 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"[1] on the Wells Fargo properties if the properties become uninsured through lapses or otherwise under-insured.

         Underlying 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.

         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 complaint.

         Accordingly, 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).

         Turning 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; ...


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