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In the case of Stinespring v. Fidelity National Financial (Case No. 12 C 5866; Decided April 15, 2013) the US District Court (N.D. Illinois, Eastern Div.) granted a title insurer’s motion to dismiss claims that it was liable for its agent’s fraud in connection with the issuance of a fraudulent title insurance commitment. The facts are as follows:

 

In 2005, Harry and Janice Stinespring (“Stinesprings “) and Manfred Pino Sbravatti (“Pino”) formed Inmobiliaria Tres Peniques (“ITP”), a partnership dedicated to investing in Costa Rican real estate. Pino, an attorney licensed in Costa Rica and the CEO of Latinamerica Title Co. (“LATCO”), was to handle the real estate transactions on behalf of ITP and also pay an equal share of the purchase price for the properties. LATCO was an exclusive policy-issuing agent of Chicago Title from 2006 through 2010 pursuant to an Agency Agreement.

 

In 2006 Pino negotiated the purchase of two farms (“Tambor” and “Tamarindo”) on behalf of ITP. Despite his prior agreement to do so, Pino did not pay his share of the purchase price, estimated to be more than $2 million per partner. In 2007 and 2010 Pino obtained loans secured by liens on Tambor and Tamarindo without the Stinesprings’ knowledge by fraudulently claiming to have been authorized to do so on behalf of ITP and kept the proceeds. From 2006 through 2010 Pino presented the Stinesprings with several contracts for the sale of Tambor and Tamarindo but the deals were never completed and Pino was unable to explain why. In August 2010, without the Stinesprings’ knowledge or consent, Pino transferred Tamarindo from ITP to another entity.

 

At some point, the Stinesprings requested that Pino provide them with a title insurance commitment for Tamarindo. In September 2010, Pino produced an unsigned commitment stating that Chicago Title would issue a title insurance policy providing nearly $5 million in coverage “upon payment of the premiums and charges therefore” and that the commitment would “become valid when countersigned by an authorized signatory” (“Commitment”). Later that month, the Stinesprings learned that Pino had stolen money from their son while representing him in his own Costa Rican real estate investments, hired an attorney, and discovered Pino’s wrongdoings with respect to Tambor and Tamarindo.

 

The Stinesprings sued Fidelity National Financial, Chicago’s successor (collectively referred to as “Chicago Title”), alleging that Pino’s and LATCO’s status as Chicago Title ’s exclusive agent and the issuance of the fraudulent Commitment gave the Stinesprings the “reasonable reassurance” that Pino’s fraudulent actions had been “approved and overseen by Chicago Title, as principle.” The Stinesprings sought monetary damages from Chicago Title under theories of agency liability and negligent hiring and retention. Chicago Title moved to dismiss the case.

 

The Complaint did not make clear the Stinesprings’ allegations regarding the nature of the agency relationship between LATCO and Chicago Title or the duties Pino and LATCO were authorized to perform on behalf of Chicago Title. Viewing the Complaint in the light most favorable to the Stinesprings, the court found that the Stinesprings alleged that Chicago Title was liable to them for: 1) the liens Pino caused to be placed on the Costa Rican properties in August 2007 and July 2010; 2) the lien Pino caused to be placed on the Stinesprings’ condominium in June 2010; 3) the August 2010 transfer of the Tamarindo farm; and 4) Pino’s production of the fraudulent Commitment.

 

The court first addressed Chicago Title’s liability under the theory of actual authority. Since the Stinesprings did not allege that Chicago Title authorized Pino to place liens on or sell the condominium or Costa Rican properties, the court limited its analysis to Pino’s production of the fraudulent Commitment. The court based its analysis on the Agency Agreement, which required LATCO to obtain Chicago Title’s written approval before committing Chicago Title to insure where the underlying transaction involved  a risk in excess of $500,000 or where a “partner, member, or shareholder of [LATCO] has or will have a legal or equitable interest.” Because both of these elements were present when Pino produced the Commitment and the Stinesprings alleged no facts suggesting that Chicago Title gave Pino written approval to issue the Commitment, the court found that Chicago Title could not be found liable to the Stinesprings under an actual authority theory of agency liability.

 

The court next considered Chicago Title’s liability under the theory of apparent authority. The court explained that to succeed on an actual authority argument, the Stinesprings had to show that “(1) the principal consented to or knowingly acquiesced in the agent's exercise of authority; (2) based on the actions of the principal and agent, the third person reasonably concluded that the party was an agent of the principal; and (3) the third person justifiably and detrimentally relied on the agent's apparent authority (emphasis added).” Since the Stinesprings pled that Pino sold the Tamarindo farm and consented to the 2007 and 2010 liens without their knowledge and by misrepresenting himself as an authorized agent of ITP (and not Chicago Title), the court held that the Stinesprings could not demonstrate that they justifiably and detrimentally relied on Pino’s status as an agent of Chicago Title.

 

The court focused the rest of its apparent authority analysis on Pino’s production of the Commitment. The court reasoned that the Stinesprings could have “reasonably concluded” that Pino was authorized to issue title insurance commitments as an agent of Chicago Title because the Commitment bore the Chicago Title logo and several of Chicago Title’s international officers allegedly told the Stinesprings that Pino was a “star” of the company. However, the court determined that the “totality of the circumstances” prevented the Stinesprings from justifiably relying on Pino’s status. The Commitment was unsigned and the Stinesprings did not claim to have paid any premium for the Commitment – two express requirements that were to be met before the Commitment could be considered valid. The court further reasoned that the Stinesprings should have already been suspicious of Pino, based on the many contracts to sell the Costa Rican properties that mysteriously fell through without explanation. Lastly, the court noted that the Stinesprings had not alleged that their alleged reliance was detrimental to them in any way as Pino caused the liens to be placed on the Tamarindo farm and transferred the Tamarindo farm before he presented the Commitment to the Stinesprings.

 

 

The court declined to address the Stinesprings’ claim that Chicago Title was liable to them for negligently hiring and retaining Pino. To be successful, the Stinesprings would have had to have shown that Chicago Title’s negligence was the proximate cause of their injuries. Because the court determined that Pino’s production of the fraudulent Commitment did not cause the Stinesprings any injury, the court found it unnecessary to determine whether Chicago Title owed them any duty.