Sunday, December 02, 2007

consumer - title insurance - TICA & UTPCPL - exhaustion of admin. remedies

Markocki v. Old Republic Natl. Title Ins. Co. v. Citizens Abstract Co. - ED Pa. - Nov. 19, 2007

Held, plaintiff was entitled to sue under the Consumer Protection Law, 73 PS 201-9.2, for an alleged violation of the state Title Insurance Company Act (TICA), 40 PS 910-37(h), without first exhausting her remedies under TICA.

Plaintiff brought her case when she refinanced her mortgage and was charged a "basic rate" of $978.75 rather than a "refinance rate" of $704.70, to which she was entitled under the Rate Manual of the Title Insurance Rating Bureau, 40 PS 910-37(h). When she found out about the improper charges, she sued under RESPA, 12 USC 2607, as well as for violations of the CPL, because of the improper charges under TICA.

Old Republic joined Citizens as a 3d party defendant, because Citizens, acting as its agent under TICA, had collected the improper charges, in spite of Old Republic having told Citizens about the proper changes under the Rate Manual.

Citizens' 12(b) (6) motion to dismiss was denied. Citizens claimed that Markocki had to exhaust her remedies under TICA, which says that an aggrieved person "may be heard" under TICA concerning its insurance rating, 40 PS 910-44(b).
Relying on the "weight of authority" under

- Cohen v. Ciicago Title Insurance Co., 2006 US Dist. Lexis 36689 (ED Pa. )
- Highmark Inc v. UPMC Health Plan, 276 F3d 160 (, 168 (3d Cir. 2001), and
- Ohio Casualty Group v. Argonaut Insurance, 525 A2d 1195, 1197 (Pa. 1987)

The court held that the remedy under TICA was discretionary, optional and incomplete rather than mandatory and exclusive, and that plaintiff's case under the Consumer Protection Law should not be dismissed.