117 F.3d 1254 (11th Cir. 1997), 96-9168, Jordan v. AVCO Financial Services of Georgia, Inc.

Docket Nº:96-9168.
Citation:117 F.3d 1254
Party Name:Weekly Fed. C 219 Elaine M. JORDAN; Theresa Sheldon; Marilyn Evone Mulrain; Denise Bryant; Byllye J. Comer, et al., Plaintiffs-Counter-Defendants, Appellees, v. AVCO FINANCIAL SERVICES OF GEORGIA, INC., et al., Defendants, Pioneer Credit Company, A Tennessee Corporation, et al., Counter-Claimants, American Bankers Insurance Company of Florida; Voya
Case Date:July 24, 1997
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit
 
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Page 1254

117 F.3d 1254 (11th Cir. 1997)

Weekly Fed. C 219

Elaine M. JORDAN; Theresa Sheldon; Marilyn Evone Mulrain;

Denise Bryant; Byllye J. Comer, et al.,

Plaintiffs-Counter-Defendants, Appellees,

v.

AVCO FINANCIAL SERVICES OF GEORGIA, INC., et al., Defendants,

Pioneer Credit Company, A Tennessee Corporation, et al.,

Counter-Claimants,

American Bankers Insurance Company of Florida; Voyager

Guaranty Insurance Company, A Florida Corporation; Voyager

Indemnity Insurance Company, A Georgia Corporation; Voyager

Life and Health Insurance Company, A Georgia Corporation;

Voyager Property and Casualty Insurance Company, A South

Carolina Corporation, Defendants-Appellants.

No. 96-9168.

United States Court of Appeals, Eleventh Circuit

July 24, 1997

Page 1255

Frank Burt, James F. Jorden, Miami, FL, for Defendants-Appellants.

Charles Neal Pope, Wade H. Tomlinson, Max R. McGlamry, Columbus, GA, Michael L. McGlamry, Atlanta, GA, for Plaintiffs-Counter-defendants-Appellees.

Appeal from the United States District Court for the Middle District of Georgia.

Before COX, Circuit Judge, KRAVITCH, Senior Circuit Judge, and STAGG [*], Senior District Judge.

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 McCarran-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

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and 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...

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