746 F.3d 1242 (11th Cir. 2014), 13-10951, Osorio v. State Farm Bank, F.S.B.

Docket Nº:13-10951
Citation:746 F.3d 1242
Opinion Judge:GILMAN, Circuit Judge
Party Name:FREDY D. OSORIO, Plaintiff - Appellant, v. STATE FARM BANK, F.S.B., Defendant - Third-Party Plaintiff - Appellee, v. CLARA BETANCOURT, Third-Party Defendant - Appellant
Attorney:For Fredy D. Osorio, Clara Betancourt, Plaintiffs - Appellants: Gregory Andrew Beck, Gupta Beck PLLC, Washington, DC; Roy D. Wasson, Wasson & Associates, Chartered, Miami, FL; Donald A. Yarbrough, Donald A. Yarbrough, Esq, Fort Lauderdale, FL. For State Farm Bank, F.S.B., Defendant - Appellee: Pa...
Judge Panel:Before ANDERSON and GILMAN,[*] Circuit Judges, and JOHNSON,[**] District Judge.
Case Date:March 28, 2014
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit
 
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746 F.3d 1242 (11th Cir. 2014)

FREDY D. OSORIO, Plaintiff - Appellant,

v.

STATE FARM BANK, F.S.B., Defendant - Third-Party Plaintiff - Appellee,

v.

CLARA BETANCOURT, Third-Party Defendant - Appellant

No. 13-10951

United States Court of Appeals, Eleventh Circuit

March 28, 2014

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Appeal from the United States District Court for the Southern District of Florida. D.C. Docket No. 0:11-cv-61880-DMM.

For Fredy D. Osorio, Clara Betancourt, Plaintiffs - Appellants: Gregory Andrew Beck, Gupta Beck PLLC, Washington, DC; Roy D. Wasson, Wasson & Associates, Chartered, Miami, FL; Donald A. Yarbrough, Donald A. Yarbrough, Esq, Fort Lauderdale, FL.

For State Farm Bank, F.S.B., Defendant - Appellee: Paul L. Nettleton, Alina Alonso Rodriguez, Aaron Stenzler Weiss, Carlton Fields Jorden Burt, PA, Miami, FL.

Before ANDERSON and GILMAN,[*] Circuit Judges, and JOHNSON,[**] District Judge.

OPINION

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GILMAN, Circuit Judge

This is a consumer-protection case arising from the unwanted receipt of autodialed debt-collection calls to a cell phone. It began when Clara Betancourt applied for a car-insurance policy with State Farm in 2007. At the conclusion of the car-insurance application process, the State Farm agent suggested that Betancourt open a State Farm credit-card account so that the policy premium could be charged to the credit card. During the application process, Betancourt gave State Farm the phone number 754-244-8626 (No. 8626). Betancourt contends that she gave this number only as an emergency-contact number that belonged to her housemate Fredy D. Osorio, with whom she shares a cell-phone plan. State Farm, on the other hand, maintains that Betancourt gave the number as her work-phone number and that it does not collect emergency-contact information from policyholders.

In 2010, Betancourt failed to timely pay the minimum balance due on her credit card. This caused State Farm's agent to place 327 autodialed calls to No. 8626 over a six-month span in an attempt to collect the balance due. Osorio sued State Farm under the Telephone Consumer Protection Act (TCPA), 47 U.S.C. § 227, which provides a damages remedy for cellular-phone subscribers who receive autodialed phone calls without having given prior express consent to receive such calls. State Farm, in turn, sued Betancourt for the balance due (plus legal expenses) on her delinquent credit-card account and for its legal expenses in defending itself against Osorio's TCPA lawsuit, the latter claim being based on Betancourt's alleged negligent misrepresentation regarding the telephone number that she had provided to State Farm.

On cross-motions for summary judgment, the district court ruled for State Farm with regard to both complaints. The court first held that Betancourt had consented to Osorio receiving calls from State Farm and that neither Betancourt nor Osorio had effectively revoked this consent because they did not do so in writing. Second, on State Farm's breach-of-contract claim, the court held that Betancourt was delinquent on her credit-card debt. The court's final ruling was that Betancourt had negligently misrepresented that No. 8626 was her phone number, thereby causing State Farm to incur approximately $132,000 in legal fees defending itself against Osorio's action.

It entered judgment accordingly. For the reasons set forth below, we REVERSE the district court's grant of summary judgment to State Farm on Osorio's TCPA claim, REVERSE its grant of summary judgment to State Farm on the latter's negligent-misrepresentation claim against Betancourt, and REMAND the case for further proceedings consistent with this opinion.

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I. BACKGROUND

A. Factual background

In May 2007, Clara Betancourt met with a State Farm agent to apply for car insurance from State Farm Mutual Automobile Insurance Company. She also applied for a credit card from State Farm Bank to pay for the insurance policy. Betancourt applied for the car-insurance policy first. During the application process, State Farm's agent asked Betancourt questions orally and then entered Betancourt's responses into his computer. The parties agree that State Farm asked for Betancourt's home number, her work number, and her cell number during the application process.

At some point during this process, Betancourt gave State Farm the No. 8626. She testified in her deposition that " I put it down as an emergency contact[,] . . . to be for an emergency or something serious." Betancourt acknowledged, however, that the number appears on the car-insurance application on the line marked " Work Phone." She further concedes that she signed the application after it was filled in, but contends that she did not understand it.

After completing Betancourt's car-insurance application, the agent offered to put Betancourt's insurance payment on a State Farm credit card. Betancourt agreed. She says that the agent then used the information that he had already taken for the insurance application to apply for the credit card. The credit-card application listed 954-963-1917 (No. 1917) as Betancourt's home phone, 954-549-7596 (No. 7596) as Betancourt's work phone, and No. 8626 as Betancourt's cell phone.

Documents produced by the phone company, Metro PCS, indicate that No. 8626, along with 754-244-5645 (No. 5645) and 754-244-2131 (No. 2131), were all connected to a single " individual" account that belonged to Osorio. Betancourt and Osorio both testified in their respective depositions that No. 8626 belonged to Osorio, and Betancourt testified that No. 5645 belonged to her. She further testified that No. 2131 belonged to John Fredy Osorio, who is the adult son of Betancourt and Osorio.

Betancourt and Osorio have known each other for many years. They lived together in South Florida at all times relevant to this case.

Betancourt modified her contact information in connection with the credit card several times in the years that followed. In June 2007, she returned a change-of-address form to State Farm Bank that she had received along with her bill. Betancourt testified that she did not understand the form, but nonetheless filled it out, listing No. 1917 as her home phone and No. 8626 as her work phone. State Farm's records subsequently show that " [o]n May 29, 2008, Betancourt requested that State Farm Bank update its records to reflect her home phone number had changed to [No. 8626], replacing the home number of [No. 1917]." She apparently did this over the telephone.

Of particular importance for the purpose of this appeal, Betancourt testified in her deposition that on September 29, 2010, she again spoke with someone from State Farm and informed the agent that (1) No. 5645 was her cell-phone number, and (2) No. 8626 was Osorio's number to be used " only for emergencies." She also says that at this time she told State Farm to call her only on No. 1917. State Farm acknowledges that Betancourt called on September 29, 2010 to request that her records be updated, but contends that she gave No. 5645 as her home number and that she made no change to the listing of No. 8626 as her work number.

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Betancourt made regular payments on her credit card until November 26, 2010, on which date she failed to make a payment. As a result, State Farm authorized a collection agency, FMS, Inc., to attempt to collect the debt as State Farm's agent. State Farm gave FMS No. 5645 as Betancourt's home number and No. 8626 as Betancourt's work number. FMS made calls to these numbers beginning on November 29, 2010 and concluding on May 31, 2011, including 327 autodialed calls to No. 8626.

State Farm maintains that at no time did anyone answering No. 8626 tell it that the number did not belong to Betancourt. The person answering simply said that Betancourt was not available. State Farm says that it did not learn that No. 8626 was Osorio's number until after the filing of this lawsuit. Osorio, on the other hand, testified that he twice told State Farm's agent to " Please stop calling" when the agent called him on No. 8626. He says that these callers always spoke in English, and that he did not understand them.

Betancourt acknowledges that she had an outstanding credit-card balance of $7,945.10 as of June 1, 2011. She explained that this amount was in large part due to State Farm's decision to raise her annual interest rate to 24%.

B. Procedural background

Osorio sued State Farm in August 2011, alleging violations of the TCPA. Four months later, State Farm filed a Third-Party Complaint against Betancourt, asserting claims for (1) common-law indemnification because " [t]he credit agreement between State Farm and Betancourt formed a legal special relationship," making any " damages Osorio alleges in his complaint . . . a result of Betancourt's acts or omissions" ; (2) contractual indemnification based on the credit-card agreement's provision making Betancourt liable for collection costs; (3) breach of contract for Betancourt's failure to pay her credit-card bill; (4) negligent misrepresentation for Betancourt giving Osorio's number as her own; (5) account stated for the outstanding balance on Betancourt's credit card; and (6) open account for debts under the credit-card agreement.

Betancourt, Osorio, and State Farm all separately moved for summary judgment on their respective claims and defenses. The district court granted summary judgment to State Farm on Osorio's claim and also granted summary judgment to State Farm on four of its claims against Betancourt. Relying on this court's unpublished opinion in Meadows v. Franklin Collection Services, Inc., 414 F.Appx. 230...

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