Fredy D. Osorio v. State Farm Bank, F.S.B.
746 F.3d 1242
| 11th Cir. | 2014Background
- Betancourt applied for car insurance and a State Farm credit card in 2007; she provided a cell phone number 8626 that State Farm listed as her work number on the insurance form and on the credit-card app.
- Osorio lives with Betancourt; Betancourt says 8626 is Osorio’s number to be used only for emergencies, while State Farm treated it as Betancourt’s work number.
- 327 autodialed calls were placed to 8626 over about six months in 2010–2011 to collect Betancourt’s delinquent credit-card balance.
- Osorio sued State Farm under TCPA for unauthorized autodialed calls; State Farm counterclaimed for Betancourt’s debt and sued for negligent misrepresentation against Betancourt.
- The district court granted summary judgment to State Farm on Osorio’s TCPA claim and on several related claims, including Betancourt’s negligent misrepresentation; the appeals court reverses in part and remands.
- The core issues: whether Betancourt could authorize calls to 8626 (as Osorio’s number) and whether consent could be revoked orally; and whether Betancourt’s alleged misrepresentation supported State Farm’s fees.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Betancourt could authorize calls to 8626 on Osorio’s behalf | Osorio contends Betancourt lacked authority to consent | State Farm argues Betancourt had common authority to consent | Material fact question; jury must decide authority |
| Whether Betancourt could revoke consent to calls orally | Betancourt could revoke consent orally under common-law | No written revocation required under TCPA | Jury question about revocation stance and scope |
| Whether the TCPA’s ‘called party’ and consent provisions apply to the facts | Osorio is the called party regardless of Betancourt’s consent | Betancourt’s consent could exempt calls under §227(b)(1)(A)(iii) | Question for the jury; not resolvable on summary judgment |
| Whether Betancourt’s alleged misrepresentation supported State Farm’s negligent-misrepresentation claim | State Farm relied on Betancourt’s representation that 8626 was hers | Betancourt disputed misrepresentation or its reliance | Disputed facts; trial needed |
| Whether the “wrongful-act” doctrine supports attorney’s fees against Betancourt | Fees arose from Betancourt’s wrongful act | Doctrine insufficiently established; depends on resilience of other findings | Remanded for further consideration; factual issues remain |
Key Cases Cited
- Meadows v. Franklin Collection Service, Inc., 414 F. App’x 230 (11th Cir. 2011) (limited relevance; concerns ‘intended recipient’ vs. ‘called party’ under TCPA)
- Gager v. Dell Fin. Servs., LLC, 727 F.3d 265 (3d Cir. 2013) (revocation of consent under common-law framework; consumer-friendly approach)
- Soppet v. Enhanced Recovery Co., LLC, 679 F.3d 637 (7th Cir. 2012) (called-party vs. intended-recipient; consent must come from current subscriber)
- Neder v. United States, 527 U.S. 1 (Supreme Court 1999) (statutory interpretation: incorporate common-law meaning of terms)
- In re Rules & Regs Implementing the Tel. Consumer Prot. Act of 1991, 23 F.C.C. Rcd. 559 (FCC 2007) (FCC rulemaking on exemptions for debt-collection calls (not binding on §227(b)(1)(A)(iii)))
- Maryland v. Universal Elections, Inc., 729 F.3d 370 (4th Cir. 2013) (legislative history supports consumer-interest in opting out)
- Satterfield v. Simon & Schuster, Inc., 569 F.3d 946 (9th Cir. 2009) (not requiring per-call charging to prove TCPA violation)