CASE N /2 PRICE CHECKS CASHED, Petitioner, UNITED AUTOMOBILE INSURANCE COMPANY, Respondent. ASSOCIATION OF AMERICA

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1 CASE N IN THE SUPREME COURT OF TEXAS 1/2 PRICE CHECKS CASHED, Petitioner, v. UNITED AUTOMOBILE INSURANCE COMPANY, Respondent. BRIEF OF AMICUS CURIAE PROPERTY CASUALTY INSURERS ASSOCIATION OF AMERICA On Appeal from Cause No CV from the Fifth District Court of Appeals Dallas, Texas E. Thomas Bishop State Bar No Alexander N. Beard State Bar No BISHOP & HUMMERT, P.C North Central Expressway Suite 1600 Dallas, Texas Telephone: (214) Facsimile: (214) COUNSEL FOR AMICUS CURIAE PROPERTY CASUALTY INSURERS ASSOCIATION OF AMERICA

2 TABLE OF CONTENTS PAGE TABLE OF CONTENTS i INDEX OF AUTHORITIES iii INTEREST OF AMICUS CURIAE STATEMENT OF FACTS AND PROCEDURAL HISTORY ARGUMENT I. Even if a check is a contract, 1/2 Price Checks s status is that of a holder in due course, whose rights are governed by statute, not the common law of contracts II. III. Authorizing recovery of attorneys fees by a holder in due course would place check drawers like United Auto in an inescapable quandary given their obligations under the Property Code As a matter of sound public policy, the check cashers, not property and casualty insurers, should bear the financial consequences of accepting questionable and fraudulent endorsements A. The check cashers do far more than simply cash checks B. Most property and casualty insurers only sell insurance IV. The numbers don t lie A. The property and casualty insurers Texas statistics B. A cross-section of the county mutual business C. Even United Auto s numbers demonstrate the devastating effect that would result if they are forced to bear the check cashers attorneys fees i

3 D. The very figure supplied by Petitioner s Amici demonstrate that they, not the property and casualty insurers, should bear the cost and attorneys fees associated with check collection efforts V. The needs of the many outweigh the needs of the few CERTIFICATE OF SERVICE ii

4 TABLE OF AUTHORITIES CASES PAGE(S) Citizens Nat l Bank v. Texas & P. Ry. Co., 159 S.W.2d 1003 (Tex. 1941) Dairyland County Mut. Ins. v. Childress, 650 S.W.2d 770 (Tex. 1983) Great Am. Ins. v. North Austin Util., 908 S.W.2d 415 (Tex. 1995) , 4 Lesieur v. Fryar, 325 S.W.3d 242 (Tex. App. San Antonio 2020, no pet.) Paragon Sales Co. v. New Hampshire Ins. Co., 774 S.W.2d 659 (Tex. 1989) Quilter v. Wendland, 403 S.W.2d 335 (Tex. 1966) United Auto. v. 1/2 Price Checks Cashed, 310 S.W.3d 197 (Tex. App. Dallas 2010, pet. granted) STATUTES PAGE(S) Tex. Prop. Code Ann (Vernon 2007) Tex. Prop. Code Ann (Vernon 2007) MISCELLANEOUS PAGE(S) STAR TREK II: THE WRATH OF KHAN (Paramount Pictures 1982) iii

5 INTEREST OF AMICUS CURIAE 1 The Property Casualty Insurers Association of America ( PCI ), is a trade association representing more than one thousand property and casualty insurance company members. The PCI s members are domiciled and transact business in all fifty states, as well as the District of Columbia and Puerto Rico. Its member companies account for over $174 billion in direct written premium, which represents over 37 percent of all the property and casualty insurance written within the United States. PCI members write 43.1 percent of the nation s auto insurance, 30.6 percent of all homeowners policies, and 41.5 percent of the private workers compensation insurance market. In addition, PCI members account for $11 billion in direct written premium, or 30.4 percent of all the property and casualty insurance written in Texas, 36.9 percent of its auto insurance, and 17.7 percent of its homeowners policies. PCI member companies include all types of insurers, from large national insurance companies to mid-size regional insurers, from insurers doing business in a single state to specialty companies that serve specific niche markets in multiple states. PCI member companies include stock and mutual companies, as well as companies that write on a nonadmitted basis. Quite literally, the PCI membership is a cross-section of United States property and casualty insurers. The fee for preparation of this Amicus Brief is being paid by PCI. 1 All of the information and statistics are as of calendar year

6 STATEMENT OF FACTS AND PROCEDURAL HISTORY PCI relies on and incorporates the Statement of Facts and Procedural History described in the Brief of Respondent. ARGUMENT I. Even if a check is a contract, 1/2 Price Checks s status is that of a holder in due course, whose rights are governed by statute, not the common law of contracts. As the court of appeals recognized, even though 1/2 Price Checks pleaded a claim for breach of contract, it alleged that United Auto s legal obligation to pay on the check arose under the Business and Commerce Code. United Auto. v. 1/2 Price Checks Cashed, 310 S.W.3d 197, 199 (Tex. App. Dallas 2010, pet. granted). The court of appeals looked beyond 1/2 Price Check s characterization of its claim and instead focused on the true nature of the dispute. Id. The court recognized that United Auto s liability was purely statutory, and thus attorneys fees were not recoverable under Section (8) of the Civil Practice and Remedies Code. In this Court, 1/2 Price Checks argues that it has a valid breach of contract claim. Its argument that Section (8) applies is founded primarily upon United Auto s tacit admission that a check is a contract. According to 1/2 Price Checks, because this case involves a contract, attorneys fees are recoverable under Section (8). But 1/2 Price Checks s argument falsely assumes that all it need prove is that its claim involves a contract. What 1/2 Price Checks s argument overlooks is its own status in relation to the purported contract. The parties to the contract are United Auto, Patrick Bretton, Brandy 2

7 Bretton, and DBD Motor Co., Inc. CR 41, 64. 1/2 Price Checks is not a party to the contract, nor is it an intended third-party beneficiary. Its status is that of a holder in due course, whose rights are afforded solely by commercial statutory law, not common law principles governing breach of contract claims. Long ago, this Court recognized that only a party to the contract or an intended thirdparty beneficiary has the right to enforce a contract through a common law breach of contract claim: It is the law of this State that a person not a party to a contract may enforce it if it appears that it was made for his benefit. Parties are presumed to contract for themselves. It follows that a contract will not be construed as having been made for the benefit of a third person unless it clearly appears that such was the intention of the contracting parties. Citizens Nat l Bank v. Texas & P. Ry. Co., 159 S.W.2d 1003, 1006 (Tex. 1941). This bedrock principle of contract law has provided the starting point for analyzing whether attorney fees are recoverable by a particular party under Section of the Civil Practice and Remedies Code. See, e.g., Great Am. Ins. v. North Austin Util., 908 S.W.2d 415, 427 (Tex. 1995) (citing Paragon Sales Co. v. New Hampshire Ins. Co., 774 S.W.2d 659, 660 (Tex. 1989); Dairyland County Mut. Ins. v. Childress, 650 S.W.2d 770, 775 (Tex. 1983); and Quilter v. Wendland, 403 S.W.2d 335, 337 (Tex. 1966)). The proper analytical approach is found in this Court s Great American decision. There, the issue was whether a common law duty of good faith and fair dealing exists between a commercial surety and its performance bond obligee, similar to that which exists 3

8 between an insurer and its insured. This Court was required to determine whether the surety on the bond, Great American, was liable for attorneys fees incurred by the entity to whom the bonds were issued, the North Austin Municipal Utility District ( MUD ). Id. at 427. This, in turn, required the Court to analyze whether MUD s claim against Great American under the surety bond is a claim on a written contract. Id. In resolving the issue, this Court began by noting that the common law of contracts is applied to questions relating to a surety s liability. The Court then noted that [s]uretyship is a contract with three parties: the principal, the surety, and the obligee, and that [t]he surety makes a direct promise to the obligee. Id. Because MUD was specifically named in the bond, this Court held that MUD was an intended beneficiary of the contract, and as such, could bring suit to enforce the contract. Id. The Court ultimately concluded that because MUD had such a right, it was entitled under Section of the Texas Civil Practice and Remedies Code to recover attorneys fees as a result of Great American s default on the terms of its bond. Id. at 428. Great American reveals the flaws in 1/2 Price Checks s analytical approach. Unlike a surety, whose obligations are governed by the common law of contracts, the obligations of an issuer of a check are governed by statutory law, namely the Uniform Commercial Code. Even if that were not the case, 1/2 Price Checks still has no common law cause of action to enforce the contract because it is not a party to that contract. It is not specifically named in the contract, nor is it an intended beneficiary of the contract. See Lesieur v. Fryar, 325 S.W.3d 242, (Tex. App. San Antonio 2020, no pet.). It is a stranger to the 4

9 transaction between United Auto, the Brettons, and DBD Motor Company. For this reason, 1/2 Price Checks cannot recover attorneys fees under Section of the Texas Civil Practice & Remedies Code. II. Authorizing recovery of attorneys fees by a holder in due course would place check drawers like United Auto in an inescapable quandary given their obligations under the Property Code. 1/2 Price Checks s argument not only fails to adequately take into account its own status in relation to the contract, it also fails to recognize the unique obligations imposed upon insurers like United Auto when they issue checks in satisfaction of liability claims for property damage. Under Chapter 61 of the Property Code, an entity who furnishes a loan for the purchase of a motor vehicle has a lien on a claim of the borrower in connection with an accident that involves the vehicle and which is attributable to the negligence of another person. See Tex. Prop. Code Ann (Vernon 2007). The financing company s lien attaches to the proceeds of any settlement. Tex. Prop. Code Ann (Vernon 2007). The existence of the lien by the financing company places liability insurers like United Auto on the horns of a dilemma when they are called upon to honor a check which has been referred back to them by the bank. They can either (1) direct the bank to honor the check (but risk paying the check twice, if it turns out that the lienholder did not in fact endorse the check, and asserts that United Auto violated its obligation under the Property Code to protect an existing lien), or (2) elect to dishonor the check (but risk suit by the holder, in this case, 1/2 Price Checks). Insurers like United Auto should not have to decide between two equally unappealing options, neither of which enables the insurer to simply pay the benefits that are 5

10 owed. Regardless of which option it chooses, the insurer can be harshly penalized, when all it desires is to pay the claim and close its file. The Court need only look at the actual check made the basis of the present suit in order to see the predicament that United Auto and other liability insurers are placed in if attorneys fees are recoverable on a claim for a dishonored check. Below is a true and correct copy of the back of the check that was presented for payment in the present case: The bank referred the above check to Maker, because the endorsement of the lienholder DBD Motors is virtually impossible to read (it is obscured by the 1/2 Price Checks stamp). Can the reader of this brief honestly say there is no legitimate basis upon which to question the authenticity of the endorsement? Would a sensible person direct the bank to honor this check, knowing that it otherwise might have to pay the check twice? Or would our reasonable man dishonor the check, knowing that if he guessed wrong, he would have to pay the holder of the check s attorneys fees? 6

11 When you add to the mix the real world time crunch in which all of this occurs, the dilemma faced by insurers like United Auto becomes all the more apparent. In the day-today world in which claims are paid, once the draft is deposited into an individual account, the bank holding that account seeks funds by posting the check through the United States Federal Reserve banking system. This can take 24 to 72 hours. Then and only then does the check reach the insurer s bank s server. In this particular instance, the insurer only has 24 hours from the time the check is posted at its bank to review the draft in a browser window furnished via the bank s web-based portal for the purpose of funding or rejecting. Practically speaking, the insurer has only a matter of hours, as the deadline for fund or don t fund is 2:00 p.m. EST for all drafts presented overnight. As an examination of the sheer numbers of checks discussed below demonstrates (which checks are addressed by not only United Auto but by other property and casualty insurers), it is not at all unusual to have several hundred checks per day on which the fund or don t fund decision must be made, often in a period (in real world work days) between 7:00 a.m. and 2:00 p.m. Finally, the PCI reminds the Court to not forget about payees who falsely claim that they lost or never received the first draft, thereby exploiting the 72 hour window of the banking process, while demanding with all sorts of urgency that the insurer reissue the check. After the call ends, they walk away from the check cashing store money in hand eagerly awaiting a replacement draft, which they will also cash in a few days. Not surprisingly, they thereafter vanish, and it can typically take a week or more before their disappearance is ever known. When one considers that some of the check cashers will fund up to $1,000 to 7

12 $1,500 for a regular customer, the incredible financial burden that this entire process can foist onto the shoulders of property and casualty insurers becomes apparent. The above-created dilemma engineered by the actions of a stranger to the transaction explains why the legislatures in other states have at least qualified the right to recover attorneys fees in suits on dishonored checks. They recognize that drawers of checks like United Auto are caught between a rock and a hard place. If this Court were to broadly interpret Section to apply to suits on dishonored checks, it would only make that place for United Auto, and hundreds of other similarly situated insurers, uninhabitable. Rather than broadly interpreting Section to afford rights to a stranger to the contract, this Court should embrace the rationale offered by the court of appeals, and hold that 1/2 Price Checks s remedy is afforded solely by the Texas Business and Commerce Code. Whether attorneys fees are recoverable by a stranger to the contract, and the circumstances under which they are recoverable, are issues that should be left up to the Texas Legislature. The Texas Legislature, like the legislatures in other states, should be afforded the opportunity to determine:! Whether attorneys fees are mandatory in a suit on a dishonored check;! Whether they are recoverable in any suit involving a dishonored check;! Whether attorneys fees should be limited to the prevailing party; and! Whether the amount of attorneys fees should be limited in any way. By affirming the court of appeals s decision, this Court will afford the Texas Legislature the opportunity to make these important policy decisions. 8

13 III. As a matter of sound public policy, the check cashers, not property and casualty insurers, should bear the financial consequences of accepting questionable and fraudulent endorsements. Stripped of its bark, this case will decide who should bear the costs and attorneys fees associated with the check cashers acceptance of what at best may be questionable endorsements, and at worst downright fraudulent signatures. Is it the property and casualty insurers of Texas, or the check cashers? As this case so aptly illustrates, the check cashers are not so much concerned about collecting on a check (that was questionable from the beginning), as they are with tacking onto their collection attorneys fees which sometimes are many times the amount of the check. While the PCI submits that the weight of authority supports the position of United Auto, this Court must ultimately balance the public policy interests of Texas in determining where the burden of loss should ultimately rest. To do that requires an examination of the nature of the businesses involved, and which group not only can but should bear the ultimate expense of attorneys fees incurred in pursuing collection efforts. A. The check cashers do far more than simply cash checks. First and foremost, the check cashing entities some of which are also liquor stores, 2 convenience stores, bright yellow storefronts in shopping centers, and former gas stations are not required to cash any specific check. By any standard, these entities (which in many cases are mere part-time financial businesses) make an extraordinary amount of money for 2 The Court need look no further than the Petitioner s own website to see the vast array of over 38 separate businesses that Petitioner operates: 9

14 doing nothing more than the vast majority of Americans get free of charge with traditional bank checking and savings accounts. To use 1/2 Price Checks Cashed as but one example, 3 when one factors in the cut this business receives on cashing checks for a two-income family of four, with each worker earning a very modest $20,000 per year, it becomes apparent that the reward is quite substantial. Simply for cashing our hypothetical wage earners checks, Petitioner is paid $1,200. And because there are no financial regulations which specify or limit the percentage that the check cashers can demand and receive, the three percent figure charged by the Petitioner could be five percent in other locations, and a flat fee in yet others. B. Most property and casualty insurers only sell insurance. The situation is by no means as simple with property and casualty insurers, whose premiums (which account for the vast majority of income member insurers receive) are regulated. It is easy enough for liquor stores and mini-marts to tack on another one to three percent to cover the risk of their accepting checks that may ultimately be dishonored, and for which attorneys fees will be incurred. Many of these storefront establishments offer the 4 5 notorious title and pay day loans, some of which yield up to 400 percent interest. They can easily spread and absorb the normal risks and costs associated with collection efforts, /2 Price Checks charges three percent for every check it cashes. See Brief of Petitioner, p. 1. See, e.g., website of Check n Go, which has multiple offices in the Texas City/Galveston area: Editorial, It s Time to Close the Payday Lending Loophole, Dallas Morning News, Feb. 4, 2011 (copy attached as Appendix A). 10

15 including attorneys fees. But when comes to property and casualty insurers, the increased cost associated with paying in attorneys fees that may amount to ten times the amount of the check, must ultimately be passed on to the insurance consumers who pay the premiums charged. Can it be doubted that in this system, the entities that act like banks but are not, are obviously better suited to bear the burden of attorneys fees incurred in collecting questionable or dishonored checks? A simple examination of the numbers removes any doubt as to who can and should bear that burden. IV. The numbers don t lie. A. The property and casualty insurers Texas statistics. In its position as the largest property and casualty insurance association in our nation, the PCI is privy to statistical information on Texas personal auto claims and the total amount of checks written. For the period ending third quarter of 2010 (i.e., fourth quarter of 2009 through the third quarter of 2010), Texas personal auto insurers recorded 2,726,938 total 6 7 claims. This translated into losses paid, for the most part by checks, of $8.17 billion. It does not take long to see that tacking on a mere $1,000 in attorneys fees to just ten percent of the Texas claims would produce a staggering $272,694,000 tab, which would ultimately be born by Texas automobile insurance consumers. Is that where the burden should be placed? Or should those establishments that operate outside of the mainstream financial and 6 7 See Letter of Diana Lee, Assistant Vice President of Research for PCI, to E. Thomas Bishop, counsel for PCI (Feb. 15, 2011) (attached as Appendix B). See Appendix B. 11

16 banking markets simply be required to bear the risk that they assume: that an endorsement will be dishonored and the validity of that endorsement will have to be proven by the check cashers, with attorneys fees and costs for the collection efforts being part of their doing business expense? The question answers itself, but even more forcefully when the additional statistics described below are considered. B. A cross-section of the county mutual business. Even the figures for a much smaller niche market those recorded by Old American County Mutual Fire Insurance Company one of the oldest and best in servicing Texans with modest incomes through managing general agents, proves that the risks associated with accepting bad checks should remain where they always have been: on the check cashers. Here is why. During the year December 1, 2009 through October 30, 2010, 83,173 indemnity checks were issued by managing general agents under the Old American umbrella, totaling 8 $322,993, in indemnity claims paid. Once again, if even a mere $1,000 in attorneys fee is tacked onto ten percent of the above claims, so that the check cashers can recover their fees for collection efforts, another $8,317,000 in revenue has to be collected from the Texas auto insurance consumer so that the member managing general agent companies can simply stay in business. This is not about insurers profits, it is about their survival. The margins of the managing general agents are notoriously slim and competitive, with profits 8 See Letter from Michael G. Hanson, SCLA, Vice President Claims & Compliance, Old American County Mutual Fire Insurance Company, to E. Thomas Bishop, counsel for PCI (Feb. 24, 2011) (attached as Appendix C). 12

17 commonly at or below five percent of total revenue. And while the check cashers are free to tack on additional charges in virtually any way they want, Texas property and casualty insurers are not. The ever-threatening potential of an order to refund millions of dollars as per the directive of the Texas Department of Insurance, already looms over certain Texas 9 property and casualty insurers. They do not need another anvil placed above their heads. C. Even United Auto s numbers demonstrate the devastating effect that would result if they are forced to bear the check cashers attorneys fees. Finally, even the numbers recorded by United Automobile Insurance Company demonstrate that with the number of drafts issued and the total amount of payments made, the system simply cannot bear the additional cost associated with check cashers tacking on attorneys fees for every check they cash which has been questioned or dishonored. In alone, United Auto issued 37,512 indemnity drafts. These drafts totaled $68,779, United Auto serves a niche market which includes many individuals who, for reasons known only to them, pay check cashers a cut out of every paycheck they receive simply for the privilege of cashing it. It takes little more than a calculator to determine that if the $2,995 in attorneys fees awarded in this case were tacked onto as few as ten percent of the checks Chad Hemenway, Allstate Raises Rates in Texas; State Farm Readies for Refund Hearing, PropertyCasualty360.com (Dec. 16, 2010), allstateraises-rates-in-texas-state-farm-readies-for-refund-hearing- (describing how State Farm Lloyds is currently in litigation with the Texas Department of Insurance for over $310,000,000 in policyholder refunds (copy attached as Appendix D). See Letter from Keith Reindl, Property Damage Manager for United Automobile Insurance Services, to E. Thomas Bishop, counsel for PCI (Feb. 15, 2011) (attached as Appendix E). Id. 13

18 cashed by United Auto payees, an additional $11,234,844 exposure would suddenly exist for United Auto. Respectfully, no insurance company can withstand that type of exposure for any significant amount of time, especially in the absence of sizeable premium increases. While the check cashers can protect themselves simply by declining to cash checks, holding the checks until the validity of the endorsements has been verified, or insisting upon irrefutable signatures and identification, there is no simple means for property and casualty insurers to avoid what would be an incredible loss to them, and in the end, an incredible burden for Texas insurance consumers. D. The very figures supplied by Petitioner s Amici demonstrate that they, not the property and casualty insurers, should bear the cost and attorneys fees associated with check collection efforts. 12 If one simply takes the $111,000,000 in checks that the nine Amicus Curiae cashed during the twelve-month period described by their attorney, the fees that these nine 13 businesses alone receive for their check cashing amount to $3.3 million. That pays for an awful lot of attorneys fees, and an awful lot of collection efforts. Moreover, as previously stated, this does not even take into account the flexibility that many of the stores have to raise additional income by bumping the price of their products. Nor does it take into account the vast sums made by many check cashers on the controversial pay day and title loans See p. vi of Amicus Brief submitted by the Texas Association of Check Cashers. This assumes the common three percent check cashing fee which Petitioner charges. (See Brief of Petitioner, p. 3). 14

19 The check cashers are in the business of addressing and dealing with the financial risk of cashing questionable or bad checks that may subsequently be dishonored. By their own Amici s admission, they make a very handsome profit doing just that. Some check cashers, like Check n Go, boldly advertise on the internet and elsewhere their willingness and ability to make pay day loans and car title loans practices that are the subject of current legislation pending in the Texas Legislature, to regulate what the Texas head of the American 14 Association of Retired Persons describes as loan sharking. In the end, the public policy question presented is simply this: Who should bear the risk associated with a voluntary activity check cashing which in many cases is merely a part-time advocation of the business or establishment involved? PCI respectfully submits that the cost of this enterprise, including the burden of attorneys fees incurred to collect on dishonored instruments, rests where the Texas courts of appeal who have addressed this issue hold that it belongs: with the check cashers. V. The needs of the many outweigh the needs of the few. 15 When examining critical public policy considerations, PCI respectfully submits that the needs of the many Texas insurance consumers outweigh the financial desires of the See AARP Texas: End Loansharking in Texas (Feb. 22, 2011), (attached as Appendix F); see also supra note 4, p. 10. STAR TREK II: THE WRATH OF KHAN (Paramount Pictures 1982) (The character of Mr. Spock s dying words to Captain James T. Kirk: The needs of the many outweigh the needs of the few, or the one. ). 15

20 16 Petitioner and its allied check cashers. Ultimately, the risks associated with an enterprise have to be placed on someone s shoulder. Traditionally, those risks are placed on the shoulder of the person who engages in the enterprise, in this case the check cashers. It is beyond dispute that liquor stores and convenience stores which cash checks do so with an eye toward obtaining the check casher s purchase of liquor and snack food. They have a way to absorb losses associated with collection efforts. The casualty insurers do not. As this Court well knows, insurers, in and of themselves, are not the ultimate repositories of risk. Texas automobile insurance purchasers which include virtually all of the population who drive automobiles ultimately pay the costs associated with funding property and casualty insurers. If body shops triple their fees, the insurance consumer suffers. If insurers have to pay millions of dollars in attorneys fees to check cashers who got stiffed for taking a questionable, bad, or ultimately dishonored check, Texas insurance purchasers will also bear the brunt of that loss. Perhaps that is the way that people and the judiciary of the District of Columbia or Washington State feel it should be. But in Texas, we do not place upon our driving public the burden of financing bad check collection efforts for checks presented to check cashers that are ultimately dishonored. For that reason, and for the reason that the needs of the millions of Texas insurance consumers truly do outweigh the needs of a 16 Petitioner s website nayebgroup.com demonstrates that 1/2 Price Checks is merely one of several business enterprises operated by the Nayeb Group. The Nayeb Group sells discount cigarettes, runs coin laundries, and operates convenience stores under such pseudonyms as Tobacco Row, Omar s Convenience Store, and Speed King Laundry. Far from being a mom and pop check casher, Nayeb s own website demonstrates operation of 39 retail businesses. 16

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