Security Union Title Insurance v. Citibank (Florida), N.A.

715 So. 2d 973, 1998 Fla. App. LEXIS 6577
CourtDistrict Court of Appeal of Florida
DecidedJune 10, 1998
DocketNo. 97-841
StatusPublished
Cited by4 cases

This text of 715 So. 2d 973 (Security Union Title Insurance v. Citibank (Florida), N.A.) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Security Union Title Insurance v. Citibank (Florida), N.A., 715 So. 2d 973, 1998 Fla. App. LEXIS 6577 (Fla. Ct. App. 1998).

Opinion

MINER, Judge.

Raising several issues, appellant (Safeco) seeks review of a multi-million dollar judgment based on an adverse jury verdict. Because we conclude that Safeco was entitled to a directed verdict below on the issue of its vicarious liability for fraud committed by its agent, we reverse and remand for further consistent proceedings. In view of this disposition, we find it unnecessary to reach the other points on appeal.

The facts of this case involve relatively tangled financial transactions and need not be recited here in exhaustive detail. It is enough to say that Safeco (defendant below) was found by a jury to be vicariously liable solely on the basis of the conduct of an attorney who was its agent authorized to issue commitments to insure title and thereafter policies of title insurance. The attorney, one Tom Turner, issued Safeco title policies in five transactions in which Cari-bank (hereafter the bank) provided real estate loans. On one of these loans Turner was a borrower in the name of a partnership involved in a real estate venture (Mallard loan). As part of the transaction, the partners assigned a second mortgage they held to one partner’s relative, who was merely a strawman with no real interest. On the other loans, Turner served as attorney for the borrower (Ellis Neder) and as closing agent. Although they were not parties to these proceedings, the jury found that Turner and Neder had conspired to defraud the bank in connection with the subject loans. Appellant was found to be vicariously liable for Turner’s misdeeds.

The bank’s proof below indicated that Safeco designated Turner by written appointment to serve as a title insurance policy issuing agent. A copy of this letter of appointment was furnished to the bank. In pertinent part, the appointment letter stated: “Turner ... shall have authority on behalf of (Safeco) to sign, countersign and issue commitments ... and title insurance policies on policy forms provided by Safeco.” This letter of appointment was apparently the sole written evidence of the relationship between Safeco and Turner.

It is undisputed that Turner was representing either himself with regard to the Mallard loan or as counsel for Neder in all of the other transactions and that the bank issued written loan commitments to the borrowers in these deals before any request for title insurance was made. It is equally clear that in his capacity as agent for Safeco, Turner had actual authority only to sign and issue commitments and title insurance for Safeco and that the bank was provided with written documentation representing Turner’s limited appointment as title insurance agent for Safeco.

Apparently, the bank’s theory of Safeco’s responsibility for the fraud and therefore the liability for the bank’s losses was based largely on the following rules of agency:

A principal who puts a servant or other agent in a position which enables the agent, while apparently acting within his authority, to commit a fraud upon third persons is subject to liability to such third persons for the fraud.
A person who otherwise would be liable to another, for the misrepresentations of one apparently acting for him is not relieved from liability by the fact that the servant or other agent acts entirely for his own purposes, unless the other has notice of this.

Restatement (Second) of Agency §§ 261, 262 (1958).

As the above sections of the Restatement illustrate, the liability of a principal for the acts of its agent is not limited to what is expressly authorized. A principal also may be responsible for the acts of its agent if these acts lie within the apparent authority of the agent, unless the circumstances are such as to put one on inquiry.1 Stiles v. [975]*975Gordon Land Co., 44 So.2d 417, 421 (Fla.1950).

By apparent authority is meant, such authority as the principal wrongfully permits the agent to assume or which the principal by his actions or words holds the agent out as possessing. Apparent authority rests on the doctrine of estoppel and arises from the fact of representations or actions by the principal and a change of position by a third party who in good faith relies on such representations or actions.

Id. at 421-22 (citations omitted)(emphasis added). In Fidelity & Cas. Co. v. D.N. Morrison Constr. Co., 116 Fla. 66, 156 So. 385, 387 (1934), appeal dismissed, 293 U.S. 534, 55 S.Ct. 348, 79 L.Ed. 642 (1935), the Florida Supreme Court stated that the principle of apparent authority embraces the following three elements: 1) a representation by the principal, 2) reliance on that representation by a third person, and 3) a change of position by the third person in reliance on the representation. Clearly, the reliance of a third party on the “apparent authority” of a principal’s agent must be reasonable and rest in the actions of or appearances created by the principal, Rushing v. Garrett, 375 So.2d 903, 906 (Fla. 1st DCA 1979), and “not by agents who often ingeniously create an appearance of authority by their own acts.” Taco Bell of California v. Zappone, 324 So.2d 121, 124 (Fla. 2d DCA 1975).

The jury in the case at bar found that Turner did not commit any wrongful act while serving as a closing agent but nonetheless held Safeco liable for Turner’s actions based upon its finding that his actions in aid of the frauds were committed within his apparent authority as agent for Safeco. Applying the elements delineated above for determining whether an agent is acting within a principal’s apparent authority reveals that the jury’s verdict is without a basis in law. First, the determination of whether an agent acts within apparent authority requires, as previously noted, that the principal create the appearance of apparent authority. The record in the case, at bar is wholly devoid of any evidence that Safeco took any action or made any representation that Turner had authority to act as Safeco’s agent except within the confines of his,actual authority to act as Safeco’s title insurance issuing agent.

In Sommers v. Smith and Berman, P.A., 637 So.2d 60 (Fla. 4th DCA 1994), a lawyer representing the buyers in a real estate purchase acted as the closing agent and also issued a title insurance policy through Chicago Title Company. When the' buyers subsequently discovered that the lot legally described was smaller than had been represented by the seller, they sued, among others, the lawyer and Chicago Title. Chicago Title’s alleged liability was based on the lawyer’s agency to issue title insurance for the company. The complaint did not allege a defect in title or that Chicago Title was the closing agent. The district court found there was no authority supporting the proposition that a title insurance' company is liable under such circumstances and affirmed dismissal of the complaint with prejudice as to Chicago Title. See Resolution Trust Corp. v. American Title Ins. Co., 901 F.Supp. 1122 (M.D.La.1995); Bodell Constr. Co. v. Stewart Title Guar. Co., 945 P.2d 119 (Utah Ct.App.1997); Cameron County Sav. Ass’n v. Stewart Title Guar. Co., 819 S.W.2d 600, 604 (Tex.App.

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SECURITY UNION TITLE INS. v. Citibank
715 So. 2d 973 (District Court of Appeal of Florida, 1998)

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Bluebook (online)
715 So. 2d 973, 1998 Fla. App. LEXIS 6577, Counsel Stack Legal Research, https://law.counselstack.com/opinion/security-union-title-insurance-v-citibank-florida-na-fladistctapp-1998.