Jordan v. AVCO Financial Services of Georgia, Inc.

117 F.3d 1254, 1997 U.S. App. LEXIS 18946, 1997 WL 378150
CourtCourt of Appeals for the Eleventh Circuit
DecidedJuly 24, 1997
DocketNo. 96-9168
StatusPublished
Cited by1 cases

This text of 117 F.3d 1254 (Jordan v. AVCO Financial Services of Georgia, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eleventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Jordan v. AVCO Financial Services of Georgia, Inc., 117 F.3d 1254, 1997 U.S. App. LEXIS 18946, 1997 WL 378150 (11th Cir. 1997).

Opinion

STAGG, Senior District Judge.

Plaintiffs/appellees are consumers who have filed suit against defendants/appellants, five insurance companies, pursuant ■ to the Truth In Lending Act (“TILA”), 15 U.S.C. § 1601, et seq., the Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. § 1961, et seq., the Sherman Act, 15 U.S.C. § 1, et seq., and the Clayton Act, 15 U.S.C. § 12, et seq. Plaintiffs allege that defendants fraudulently induced them to purchase “non-filing insurance,” which the plaintiffs allege is not, in fact, insurance, but is an undisclosed finance charge. The defendants filed a motion to dismiss pursuant to Fed. R.Civ.Proc. 12(b)(6), claiming that the McCarran-Ferguson Act, 15 U.S.C. §§ 1011-1015, grants them immunity from suit because this dispute is covered by state insurance law. The district court denied defendants’ motion, ruling that the complaint states a cause of action and that the McCar-ran-Ferguson Act (the “Act”) does not apply to bar the plaintiffs’ claims.

At oral argument, the parties were ordered by this court to submit briefs on the issue of whether this court has jurisdiction over this interlocutory appeal. Having reviewed the cases cited by the parties, we conclude that this court does not have jurisdiction to entertain this appeal, and the appeal is dismissed. ■

I. BACKGROUND

Plaintiffs, consumers in credit transactions with various'merchants and financing institutions, have applied to the district court for class certification in this matter. Plaintiffs allege that defendants induced them to purchase a product claimed by the defendants to be “non-filing insurance.” The alleged “insurance” was marketed by the defendants [1256]*1256and sold to merchants and financing institutions to “insure” against losses that these institutions might incur as a result of their failure to file a Form UCC-1, which would perfect a security interest in the items that were purchased on credit by the consumers. Plaintiffs allege that the “premiums” for this “insurance” were paid by the consumer rather than by the merchants and financing institutions. Plaintiffs allege that the product in question is not insurance because, inter alia, there is no insurance policy between them and the defendants; there is no transfer of risk to the defendants once the “insurance” is purchased; and the defendants receive the “premiums” based on a pre-arranged percentage, not based on actual losses incurred by each defendant. Plaintiffs contend that these characteristics, which are indicia of insurance, are lacking in the present case.

Defendants/appellants claim that the product sold to the plaintiff/appellees is insurance. Defendants claim that there is an insurance policy; that risk is transferred to themselves immediately upon the purchase of the “insurance;” and that merely because the premiums are divided by an agreed percentage does not preclude the product from being insurance. Because defendants claim that the plaintiffs-eonsumers were sold insurance, the defendants argue that this issue should be handled by the Georgia Insurance Department, the Georgia Insurance Commissioner, and Georgia state laws regarding insurance. Defendants claim that the Act grants them immunity from suit on issues regarding the business of insurance.

On November 15, 1996, a motion’s panel of this court denied a motion by plaintiffs to dismiss this appeal, ruling that the denial of the district court’s motion to dismiss based on the Act was immediately appealable under the collateral order doctrine. In support of this ruling the panel cited Mitchell v. Forsyth, 472 U.S. 511, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985); Coopers & Lybrand v. Livesay, 437 U.S. 463, 468, 98 S.Ct. 2454, 2458, 57 L.Ed.2d 351 (1978); Uniforce Temporary Personnel, Inc. v. National Council on Compensation Insurance, Inc., 87 F.3d 1296 (11th Cir.1996); and TEC Cogeneration, Inc. v. Florida Power & Light Co., 76 F.3d 1560, 1563 n. 1 (11th Cir.), modified, 86 F.3d 1028 (1996). Based on the aforementioned order, this appeal was presented to this court for decision on the merits.

II. DISCUSSION

The issue presented here is whether this court has jurisdiction to hear this appeal pursuant to the collateral order doctrine announced in Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). Defendants sought a certificate for interlocutory appeal pursuant to 28 U.S.C. § 1292(b)1, but were denied. Thus, this court has jurisdiction to hear this appeal only if such jurisdiction is provided by the collateral order doctrine.

In Cohen, the Court stated that 28 U.S.C. § 1291 does not “permit appeals, even from fully consummated decisions, where they are but steps towards final judgment in which they will merge.” Id. at 546, 69 S.Ct. at 1225. “The purpose is to combine in one review all stages of the proceeding that effectively may be reviewed and corrected if and when final judgment results.” Id. The collateral order doctrine carves out a “narrow exception to the normal application of the final judgment rule,” Midland Asphalt Corp. v. United States, 489 U.S. 794, 798, 109 S.Ct. 1494, 1498, 103 L.Ed.2d 879 (1989), limited to orders that (1) conclusively determine (2) important legal questions which are (3) completely separate from the merits of the underlying action and are (4) effectively unreviewable on appeal from a final judgment. See Cohen, 337 U.S. at 546, 69 S.Ct. at 1225-26. The defendants contend that the district court’s order denying their Rule 12(b)(6) mo[1257]*1257tion to dismiss based on the Act meets these four preconditions and, therefore, is immediately appealable.

Defendants argue that this issue is immediately appealable because it is analogous to the issue of immunity. They contend that the Act operates as an immunity from suit in federal court on issues related to the “business of insurance.”2 In support thereof, appellants cite the following: Mitchell v. Forsyth, 472 U.S.

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117 F.3d 1254, 1997 U.S. App. LEXIS 18946, 1997 WL 378150, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jordan-v-avco-financial-services-of-georgia-inc-ca11-1997.