Florida/Georgia Personal Injury & Workers Compensation

...Telepman of Cohen, Norris, Scherer, Weinberger & Wolmer, North Palm Beach, FL; and Robert A. Cohen of Cohen/Fox, P.A., Miami, FL, for Respondents. QUINCE, J. We have for review a decision on the following question certified by the Third District Court of Appeal to be of great public importance: *995 WHETHER § 627.792, FLA....

...(1997). Hechtman v. Nations Title Ins. New York, Inc., 767 So.2d 505, 509 (Fla. 3d DCA 2000). We have jurisdiction. See art. V, § 3(b)(4), Fla. Const. For the reasons set forth below, we answer the certified question in the negative and find that section 627.792, Florida Statutes (1997), does not apply to attorneys who are acting as title insurance agents if those attorneys are exempt from the licensing requirements of section 626.8417, Florida Statutes (1997). Barry and Brenda Hechtman brought suit against Nations Title Insurance of New York (Nations Title) and Commonwealth Land Title Insurance Company (Commonwealth), pursuant to section 627.792, Florida Statutes (1997), alleging that Nations Title and Commonwealth were liable to them for the defalcation of funds committed by a licensed Florida attorney who was serving as a title insurance agent on behalf of the insurance companies. The attorney held the Hechtmans' funds in his attorney escrow account and subsequently misappropriated the funds for his own use. Section 627.792 makes title insurers liable for the defalcation of funds by their licensed title agents if the funds are held in trust pursuant to section 626.8473, Florida Statutes (1997). Specifically, section 627.792 provides as follows: A title insurer is liable for the defalcation, conversion, or misappropriation by a licensed title insurance agent of funds held in trust by the agent pursuant to s....

...by the Department of Insurance, and it does not matter if their funds were held in escrow pursuant to the authority granted *996 by section 626.8473 or the authority of the Rules Regulating the Florida Bar. The Hechtmans maintain that the intent of section 627.792 is to hold a title insurer liable for the defalcation of funds held in escrow by any of its agents, regardless of the authority under which the agent acts. The question presented here is whether the Legislature intended to include in section 627.792 title insurance agents not licensed under chapter 627, Florida Statutes (1997)....

...provisions in harmony with one another. See M.W. v. Davis, 756 So.2d 90 (Fla.2000); Hawkins v. Ford Motor Co., 748 So.2d 993 (Fla.1999). To that end, we are required to consider and give meaning to the Legislature's reference to section 626.8473 in section 627.792 and give meaning to the language which limits a title insurer's liability for defalcation of funds by its agents to those "funds held in trust by the agent pursuant to § 626.8473." § 627.792, Fla....

...rsuant to section 626.8473, we cannot impute liability to the insurer. The language of the statute, as well as the legislative intent, is clear in this regard. The Hechtmans argue that the word "licensed," which is used in the first two sentences of section 627.792, has a different meaning in each sentence....

...Additionally, victims of those lawyers who are exempt from the Department of Insurance licensing requirements, such as the Hechtmans, may seek compensation from the Clients' Security Fund offered through The Florida Bar. It is reasonable to conclude that by enacting section 627.792, the Legislature intended to create an avenue of relief for victims of nonattorney title insurance agents that otherwise did not exist....

...must be rejected if there is a "plausible reason for the classification"); Lewis v. Mathis, 345 So.2d 1066 (Fla.1977); Keys Title, 741 So.2d at 602 (citing North Ridge General Hosp. v. City of Oakland Park, 374 So.2d 461 (Fla. 1979)). In this case, section 627.792 serves the legitimate governmental purpose of providing an avenue of civil relief for a certain class of victims of defalcation, conversion, or misappropriation of funds held in escrow accounts pursuant to section 626.8473, as this particular class would not otherwise have a civil remedy....

...The appellants, Barry and Brenda Hechtman, appeal the entry of final summary judgment in favor of two title insurers, the appellees, Nations Title Insurance of New York ("Nations Title") and Commonwealth Land Title Insurance Company ("Commonwealth"), on the Hechtmans' statutory claims filed pursuant to section 627.792, Florida Statutes (1997). The lower court concluded that these title insurers were not liable to the Hechtmans under section 627.792 for a defalcation committed by a licensed Florida attorney because the attorney was not a licensed title agent as prescribed by this statute. We agree and affirm for the reasons outlined herein. *506 Section 627.792 imposes liability upon title insurers for defalcation by its licensed title insurance agents....

...The Hechtmans were two of several private mortgage lenders who filed various claims against the appellee title insurers on or about March and April 1997 for losses allegedly sustained when Hernandez defalcated funds held in his firm's trust account. [1] One such claim was filed pursuant to section 627.792. On October 15, 1997, Commonwealth filed its amended complaint for declaratory relief seeking a determination that it had no statutory liability for Hernandez's actions pursuant to section 627.792 because Hernandez was not a licensed title insurance agent regulated by the Department of Insurance, but instead was a licensed attorney regulated by the Florida Bar....

...Thereafter, Commonwealth moved for partial summary judgment on this statutory claim. Nations Title likewise filed its amended motion for partial summary judgment seeking similar relief. The trial court granted these motions finding that in order for liability to attach against a title insurance underwriter under section 627.792, for defalcations, conversions, or misappropriations committed by one of its title agents, that agent must be licensed by the Florida Department of Insurance in accordance with chapter 626, Florida Statutes (1997). Since Hernandez was never licensed as a title insurance agent by the Department of Insurance, the court concluded that no statutory liability could attach to the appellees. On this appeal, the Hechtmans argue that section 627.792 must be construed to impose liability against title insurers for the thefts of all of their duly appointed agents, regardless of whether such agents were subject to the licensure requirement under Chapter 626....

...om of a legislative enactment which allows title insurers to escape statutory liability for the misdeeds of its duly appointed attorney agents, we nevertheless are constrained to give effect to the plain and ordinary meaning of the words utilized in section 627.792. See Metropolitan Dade County v. State Dept. of Envtl. Prot., 714 So.2d 512, 516 (Fla. 3d DCA 1998); Christo v. State Dept. of Bank. and Fin., 649 So.2d 318, 320 (Fla. 1st DCA 1995). The plain and ordinary meaning of section 627.792 is that title insurers are only liable under its provisions for the defalcation, conversion or misappropriation of their title insurance agents who are duly licensed by the Department of Insurance....

...tatutory interpretation and construction; the statute must be given its plain and obvious meaning.") (quoting A.R. Douglass, Inc. v. McRainey, 102 Fla. 1141, 1144, 137 So. 157, 159 (1931)). We thus are not at liberty to broaden the plain language of section 627.792 to impose statutory liability against title insurers for the thefts of their attorney agents as urged by the appellants....

...bers of the Florida Bar. It is all the more incongruous to suppose that the legislature meant to, and did, achieve this result by the entirely offhanded method of providing (a) that the statute applies only to a "licensed title insurance agent," see § 627.792, Fla....

...erting the words "only" and "as" into a statute in which they do not appear so that the words "licensed title insurance agent" turn out to mean " only one licensed as a title insurance agent." I would instead effect the legislative intent by reading section 627.792 as written, that is, as non-exclusive, thus applying to all transactions which fall within its general ambit....

..."driving privileges" had been legally revoked. See § 322.721(1)(b), Fla. Stat. (1997). Similarly, perhaps identically, the term "licensed title insurance agent" must mean to include every person who is legally privileged to act as one. By enacting section 627.792, the legislature sought to provide a remedy for just the losses which occurred in this case....

...tial choice of words. ON MOTION FOR REHEARING PER CURIAM. Although appellants' motion for rehearing is denied, we certify to the Supreme Court of Florida that the decision herein passes upon the following question of great public importance: Whether § 627.792, Fla.Stat....

...Winkler, Bernardo J. Del Riesgo, Vivian Del Riesgo, Jaime L. Ortiz and Carmen A. Gallo (collectively "appellants") appeal a final declaratory judgment finding that the appellee, Lawyers Title Insurance Corporation ("Lawyers Title"), was not liable under section 627.792, Florida Statutes (2009), for the alleged misappropriation of the appellants' escrow deposits by Coastal Title Services, Inc....

...However, construction never began, and the developer eventually terminated the project. Neither the developer nor Coastal returned the escrow deposits to the appellants. The appellants then sought reimbursement for their escrow deposits from Lawyers Title pursuant to section 627.792, which imposes liability upon a title insurer for the defalcation of funds by their licensed title agents if the funds are held in trust pursuant to section 626.8473. Section 627.792, provides as follows: A title insurer is liable for the defalcation, conversion, or misappropriation by a licensed title insurance agent or agency of funds held in trust by the agent or agency pursuant to s....

...st funds received in a fiduciary capacity by the title insurance agent and shall be the property of the person or persons entitled thereto. (emphasis added). Lawyers Title filed a complaint seeking a declaratory judgment that it was not liable under section 627.792 for Coastal's alleged misappropriation of the appellants' escrow deposits....

...ppellants' transactions. As a result, "[b]ecause Coastal Title had not been designated as the title issuing agent in these transactions, these deposits did not constitute funds held in trust pursuant to section 626.8473, Florida Statutes. Therefore, section 627.792, Florida Statutes does not apply to these deposits, and Lawyers Title is not liable to replace them." This appeal ensued....

...Adkins v. Adkins, 650 So.2d 61, 62 (Fla. 3d DCA 1994); see also Hillier v. City of Plantation, 935 So.2d 105, 107 (Fla. 4th DCA 2006). As the Supreme Court explained in Hechtman v. Nations Title Insurance of New York, 840 So.2d 993, 996 (Fla.2003), section 627.792 does not protect the public from a title insurance agent who misappropriates any funds from a trust account, but rather, "limits a title insurer's liability for defalcation of funds by its agents to those `funds held in trust by the a...

...nd Lawyers Title, underwriters for Flagler Title, but both parties denied liability. The plaintiff sued Flagler Title's underwriters, Chicago Title, Lawyers Title, and Ticor Title. Count I of the complaint sought a return of the deposits pursuant to section 627.792, Florida Statutes (2008). Section 627.792 provides in relevant part: "A title insurer is liable for the defalcation, conversion, or misappropriation by a licensed title insurance agent or agency of funds held in trust by the agent or agency pursuant to s. 626.8473." The defendants moved to dismiss Count I, arguing that the deposits were not "funds held in trust," because Flagler Title acted solely as an escrow agent, not as a closing or title-issuing agent. Therefore, they argued, section 627.792 did not apply. The trial court granted the defendants' motion and ordered the dismissal of Count I with prejudice. This appeal followed. In Winkler, 41 So.3d at 417, this Court, citing the authority of the Florida Supreme Court, recognized that section 627.792 imputes liability to a title insurer only in the limited situation where the title insurer's agent misappropriates trust funds, as defined by section 626.8473....

...agent. Nevertheless, the plaintiff argues that the funds received by Flagler Title, and later misappropriated by Flagler Title's president, were trust funds as defined by section 626.8473(1), thereby exposing the defendants to liability pursuant to section 627.792. We disagree. A similar scenario was presented in Winkler, where a title insurer obtained a final declaratory judgment finding that it was not liable, pursuant to section 627.792, for the alleged misappropriation of the purchasers' escrow deposits held by Coastal Title Services, Inc....

...Coastal was a licensed title insurance agent of the title insurer. Id. However, the trial court found that because Coastal was never designated as the title-issuing or closing agent, the funds it received were not funds held in trust as defined by section 626.8473, and therefore, *334 section 627.792 did not impute liability to the title insurer....

...te transaction in its limited capacity as escrow agent, those deposits are not trust funds, as defined by section 626.8473. And in cases where such an escrow agent misappropriates those funds, the title insurer may not be held liable by operation of section 627.792....

...limited capacity as escrow agent. Accordingly, we hold that the Winkler rule is applicable, the funds received by Flagler Title were not section 626.8473 trust funds, and Flagler Title's liability cannot be imputed to the defendants by operation of section 627.792....