Cabrera v. Gov't Emps. Ins. Co.

• Decision Date: 17 September 2014
• Docket Number: Case No. 12-61390-CIV-WILLIAMS
• Citation: 452 F.Supp.3d 1305
• Parties: Carlos CABRERA, Plaintiff, v. GOVERNMENT EMPLOYEES INSURANCE COMPANY, et al., Defendants.
• Court: U.S. District Court — Southern District of Florida

452 F.Supp.3d 1305

Carlos CABRERA, Plaintiff,

v.GOVERNMENT EMPLOYEES INSURANCE COMPANY, et al., Defendants.

Case No. 12-61390-CIV-WILLIAMS

United States District Court, S.D. Florida.

Signed September 17, 2014

Benjamin H. Richman, Pro Hac Vice, Christopher L. Dore, Pro Hac Vice, Rafey S. Balabanian, Pro Hac Vice, Edelson McGuire, LLC, Chicago, IL, Bret Leon Lusskin, Jr., Bret Lusskin, P.A., Aventura, FL, Patrick Christopher Crotty, Scott David Owens, The Law Office of Scott D. Owens, Hollywood, FL, for Plaintiff.

Edward Keenan Cottrell, John Patrick Marino, Lindsey Ryan Trowell, Smith Gambrell Russell, Jacksonville, FL, for Defendants.

SEALED ORDER GRANTING MOTION FOR SUMMARY JUDGMENT

KATHLEEN M. WILLIAMS, UNITED STATES DISTRICT JUDGE

THIS MATTER is before the Court on Defendant Government Employees Insurance Company's ("GEICO") Motion for Summary Judgment (DE 96) to which Plaintiff filed a Response (DE 140) and GEICO filed a Reply (DE 143). For the reasons set forth below, GEICO's Motion for Summary Judgment (DE 96) is GRANTED.

I. BACKGROUND

The undisputed facts are as follows. As part of its business, GEICO, an insurance company, pursues subrogation claims against purported tortfeasors (DE 97 ¶¶ 5, 7). In an effort to recover money GEICO has paid as a result of a car accident involving an insured, adjusters within GEICO's subrogation department send letters and personally place calls to the purported third-party tortfeasors (DE 97 ¶ 9). GEICO's subrogation department does not make calls using automated dialing equipment or an artificial or pre-recorded voice (DE 97 ¶¶ 16-17). When GEICO's subrogation department determines, based on the facts and circumstances of each claim, that it has exhausted its internal recovery efforts, GEICO adjusters may refer claims to third-party collection agencies, like Defendant Bell, LLC ("Bell") (DE 97 ¶¶ 10-12). GEICO adjusters are assigned to specific collection agencies, such as Bell, and the adjusters have the discretion to refer claims to their assigned collection agency as they see fit (DE 140-2, Bouvier Dep. 33:10-14; DE 140-1, Bateman Dep. 17:15-18:19, 52:1-9). GEICO adjusters refer claims to Bell by e-mailing Bell a referral sheet containing information GEICO has collected regarding the tortfeasor, such as (1) the torfeasor's name; (2) the tortfeasor's phone number; (3) the amount GEICO is seeking to recover; and (4) details about the accident.¹ (DE 140 at 3-4; Bateman Dep. 35:17-36:21, 45:8-14, 71:14-19; Bouvier Dep. 20:2-21:18, 57:22-24.) GEICO does not include any instructions with the referral form (Bateman Dep. 45: 19-24) and Bell plays no role in determining the amount of money purportedly owed by a tortfeasor (Bouvier Dep. 23:6-14).

Although Bell considers GEICO a client, there is no contract setting forth the parties’ relationship (Bouvier Dep. 25:22-26:7; 30:5-10, 32-33; Bateman Dep. 46:11-13). According to Mr. Bouvier, Bell's managing director, Bell receives 33% of any funds it recovers on a GEICO claim (Bouvier Dep. 33:11-16). As part of Bell's standard collections practice, Bell's employees place phone calls to the referred tortfeasors to recoup monies owed (Bouvier Dep. 76:12-25). Prior to allowing its employees to place calls, Bell trains its employees on its "strictly applied" process to recover funds (Bouvier Dep. 102:10-106:11). For example, Bell provides its employees with a "Columbo list" – a list of questions Bell expects its employees to ask during their first contact with a purported tortfeasor (Bouvier Dep. 106:19-107:12).² This training lasts for approximately one month and includes training on the rules and regulations Bell believes applies to its business (Bouvier Dep. 103:13-104:9). Bell's managers and assistant managers monitor the phone calls made by Bell's employees by listening in and by physically walking behind and watching over the employees as they place calls (Bouvier Dep. 108:1-109:10).

Bell's employees and managers decide, on a file-by-file basis, how many calls to place to the purported tortfeasor (Bouvier Dep. 82:5-12). In addition to manually placing calls, Bell also used LiveVox, a non-attended dialing system, to place calls and leave a pre-recorded message (Bouvier Dep. 117:1-118:2). Bell's managers decided which files would be serviced by LiveVox (Bouvier Dep. 120:1-12, 122:20-123:2). Beginning in October 2012, Bell ceased using LiveVox and decided to increase the number of manual dials placed by Bell's employees (Bouvier Dep. 81:23-82:4, 132:23-25). If Bell receives a complaint about calls placed by its employees, Bell "take[s] steps to correct it, identify it, train, and get past it." (Bouvier Dep. 143:5-144:21.) In the event a Bell employee handles a call poorly, Mr. Bouvier reviews the call with employee (Bouvier Dep. 146:13-147:3).

GEICO is not involved in the process or methods Bell uses to recover funds (Bouvier Dep. 41:8-16).³ GEICO does not give Bell instructions regarding how to collect funds and they did not discuss the specifics of how Bell attempts to recover funds (Bouvier Dep. 41:8-21; Bateman Dep. 12:20-24,⁴ 29:17-21,⁵ 33:16-35:13,⁶ 74:10-15). And Mr. Bouvier does not know if any Bell employee ever discussed Bell's use of LiveVox with GEICO (Bouvier Dep. 133:17-134:4). However, GEICO does have the ability to sign-on to Bell's website and view an activity log containing a list of the actions Bell has taken on a particular claim (Bouvier Dep. 68:13-69:7; Bateman Dep. 42:2-20). The activity log indicates if calls have been made, if a letter has been sent, and contains notations made by Bell's employees (Bouvier Dep. 68:13-69:7, 125:9-126:5).

GEICO has received complaints about Bell's recovery methods (Bateman Dep. 30:24-31:5). On occasion, GEICO will direct Bell to close a file and Bell will comply by closing the file and taking no further action on the claim (Bouvier Dep. 43:14-44:5, 64:1-16). After receiving complaints about Bell, a GEICO employee spoke with Mr. Bouvier and explained that she felt that Bell "was not conducting [its] business well." (Bouvier Dep. 147:22-148:4). Mr. Bouvier disagreed, stating that one of the calls at issue "wasn't unprofessional. It wasn't threatening, and it wasn't, in my opinion, horrific or anything that would have been thought that way." (Bouvier Dep 147:22-148:12.) However, "there were some things in the call that I would have – we instructed the people as to handle differently in the future because we didn't like the way it was done." (Bouvier Dep. 148:3-12.) Mr. Bateman, GEICO's corporate designee, also discussed the call with Mr. Bouvier (Bateman Dep. 43:20-44:18). Mr. Bateman testified that he did not instruct or direct Bell to behave differently or to conduct its business in a particular manner; rather, the conversation was a more general discussion on professionalism (Bateman Dep. 44:4-18).

Plaintiff Carlos Cabrera was involved in an automobile accident in May 2010 (DE 1 ¶ 19; DE 11 ¶ 19). Following the accident, GEICO's subrogation department sent two letters and manually dialed Plaintiff's cell phone in an effort to recover money GEICO had paid to its insured as a result of the accident (DE 97 ¶¶ 13-14).⁷ Plaintiff does not have a residential telephone line (DE 97 ¶ 24). GEICO subsequently referred Plaintiff's file to Bell which resulted in Plaintiff receiving more than 120 calls featuring a pre-recorded message (DE 137-1 ¶ 5). This lawsuit followed.

Plaintiff brings this action, on behalf of himself and all others similarly situated, against Defendants GEICO and Bell under the Telephone Consumer Protection Act ("TCPA"), codified at 47 U.S.C. § 227, et seq. GEICO has moved for summary judgment on the grounds that Plaintiff lacks standing to pursue any claims under 47 U.S.C. § 227(b)(1)(B) because Plaintiff does not have a residential line. GEICO has also moved for summary judgment on the grounds that: (1) Plaintiff has failed to plead vicarious liability in his Complaint; (2) the TCPA does not recognize a cause of action under § 227(b) based on a theory of vicarious liability; and (3) even if Plaintiff could proceed under a theory of vicarious liability and had plead it in his Complaint, GEICO is entitled to summary judgment because no agency relationship existed between GEICO and Bell. In response, Plaintiff argues that he has standing to pursue claims on behalf of individuals with residential lines, that the TCPA permits causes of action based on vicarious liability, that Plaintiff adequately plead vicarious liability, and that summary judgment in GEICO's favor is inappropriate.

II. LEGAL STANDARD

Summary judgment is appropriate "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). Under this standard, "[o]nly disputes over facts that might affect the outcome of the suit under the governing [substantive] law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). And any such dispute is "genuine" only "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id.

In evaluating a motion for summary judgment, the Court considers the evidence in the record, "including depositions, documents, electronically stored information, affidavits or declarations, stipulations ..., admissions, interrogatory answers, or other materials ...." Fed. R. Civ. P. 56(c)(1)(A). The Court "must view all the evidence and all factual inferences reasonably drawn from the evidence in the light most favorable to the nonmoving party, and must resolve all reasonable doubts about the facts in favor of the non-movant." Rioux v. City of Atlanta , 520 F.3d 1269, 1274 (11th Cir. 2008) (quotation marks and citations omitted). At the summary judgment stage, the Court's task is not to "weigh the evidence and determine the truth of the matter but to determine whether there is a...