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Fidelity National Title Insurance Company v. Wendell L Hawkins, PA

United States District Court, D. South Carolina, Greenville Division

November 29, 2016

FIDELITY NATIONAL TITLE INSURANCE COMPANY, Plaintiff,
v.
WENDELL L. HAWKINS, PA, Defendant.

          MEMORANDUM OPINION AND ORDER DENYING DEFENDANT'S MOTION TO DISMISS AND GRANTING PLAINTIFF'S PETITION TO COMPEL ARBITRATION

          MARY GEIGER LEWIS, UNITED STATES DISTRICT JUDGE

         I. INTRODUCTION

         This is an action filed by Fidelity National Title Insurance Company (Plaintiff) to compel Wendell L. Hawkins, PA (Defendant) to arbitrate under the Federal Arbitration Act. Pending before the Court are Plaintiff's Petition for an Order Compelling Arbitration and Defendant's Motion to Dismiss for lack of subject matter jurisdiction. Having carefully considered the Petition, the Motion, the response, the record, and the applicable law, it is the judgment of the Court that Defendant's Motion to Dismiss will be denied, whereas Plaintiff's Petition for an Order Compelling Arbitration will be granted.

         II. FACTUAL AND PROCEDURAL HISTORY

         Plaintiff is a corporation headquartered in the State of California in the business of providing title insurance for real estate transactions, and Defendant is a law firm doing business in Greenville County, South Carolina. ECF No. 1. Defendant entered into a Title Insurance Agency Agreement (Agreement) with Plaintiff's predecessor in interest, Lawyers Title Insurance Corporation (LTIC), on or about June 1, 2001, pursuant to which Defendant became LTIC's agent for the purpose of issuing title insurance policies for LTIC in South Carolina. ECF No. 1-1.

         Paragraph 16 of the Agreement provides:

Unless prohibited by applicable law or regulation, either PRINCIPAL [Plaintiff] or AGENT [Defendant] may demand arbitration pursuant to the Arbitration Rules of the American Arbitration Association. Arbitrable matters may include any controversy or claim between [Plaintiff] and [Defendant] arising out of or relating to this Agreement. Arbitration pursuant to this Agreement shall be under the rules in effect on the date the demand for arbitration is made. Judgment upon the award rendered by the Arbitrator(s) may be entered in any court having jurisdiction thereof.

Id. ¶ 16. Paragraph 4 of the Agreement states:

AGENT [Defendant] shall be liable to PRINCIPAL [Plaintiff] for, and hereby agrees to indemnify [Plaintiff] against, any loss, cost or expense, including attorneys' fees and costs of litigation, sustained or incurred by [Plaintiff] and arising from the fraud, negligence or misconduct of [Defendant], or any agent, servant or employee of [Defendant], whether or not such loss, cost or expense shall result from any Policy issued by [Defendant].

Id. ¶ 4.

         Through its Petition, Plaintiff is seeking to compel Defendant to arbitrate Plaintiff's indemnity claim filed with the American Arbitration Association (AAA). ECF No. 1. The facts of the underlying dispute are set forth in the “American Arbitration Association Online Filing Acknowledgment” for Plaintiff's demand, which states in relevant part:

Claimant [Plaintiff] seeks indemnification for a claim it paid under the provisions of Title Insurance Policy Number G910045489 (“Policy”) that it issued through its agent, [Defendant]. [Defendant] conducted a loan closing for Mary-Frances Liggett (“Mortgagor”) involving a mortgage given to Greenpoint Mortgage Funding, Inc. (“Insured”) for which real property served as collateral (“Property”). The Mortgagor, as a Member of Jasmine Place, LLC (“LLC”) had previously conveyed the Property, which at the time was titled in the name of the LLC, to herself. [Defendant] conducted a title search and failed to recognize that the Property was not properly vested in the name of the Mortgagor. Thereafter, as the result of a foreclosure action brought by Federal National Mortgage Association (“FNMA”), as successor in interest to the Insured, the LLC fought the foreclosure claiming, among other defenses, that the transfer of the Property to Mortgagor was invalid because the LLC required all members to sign the deed to the Mortgagor and not just one Member. [Plaintiff] retained counsel and negotiated settlement and paid a Claim under the provisions of the Policy in the amount of $65, 000 and incurred expenses in the amount of $9, 821.31 as a result of the foreclosure action.

ECF No. 1-1, at 9.

         The procedural history of this case is unusual. Plaintiff previously filed a petition for an order compelling arbitration in a related case on February 17, 2016. Pl.'s Pet. for an Order Compelling Arbitration, Fid. Nat. Title Ins. Co. v. Wendell L. Hawkins, PA, No. 6:16-cv-0531-MGL (D.S.C. Feb. 17, 2016) (Hawkins I), ECF No. 1. On the same date, Defendant opened another case in which it filed a motion to stay arbitration and/or dismiss Plaintiff's petition. Wendell L. Hawkins, PA v. Fid. Nat. Title Ins. Co., No. 6:16-cv-0455-MGL (D.S.C. Feb. 17, 2016) (Hawkins II), ECF No. 1. The Court subsequently consolidated Hawkins I and Hawkins II. Hawkins II, ECF. No. 4. After briefing by the parties, the Court entered an Order on May 17, 2016, dismissing Plaintiff's petition without prejudice with ...


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