Date: 01-07-2013

Case Style: Brown O'Haver of Oklahoma, LLC v. Ceasar Davis

Case Number: CJ-2010-5830

Judge: Bill Graves

Court: District Court, Oklahoma County, Oklahoma

Plaintiff's Attorney: George H. Brown, Anthony David Gould and Joshua Clayton Stockton

Defendant's Attorney: John Matthew DeVilliers for Ceasar Davis

Mark Edward Hardin for America's Servicing Company

Description: Brown O'Haver of Oklahoma, LLC sued Ceasar Davis and America's Servicing Company, a division of Wells Fargo Home Mortgage, Inc. on a breach of contract theory claiming:

1. Plaintiff Brown O’Haver is, and at all times relevant to this Petition was, an Oklahoma limited liability company engaged in thebusiness ofproviding services as public adjusters to insureds throughout the state of Oklahoma. Plaintiff s principal place ofbusiness is located at 220 Southeast 19th Street, Moore, Oklahoma 73160, and its registered service agent is Alice Young.

2. Defendant Ceasar Davis is, and at all times relevant to this Petition was, an individual resident of Oklahoma County, Oklahoma.

3. Defendant America’s Servicing Company, a division ofWells Fargo Home Mortgage, Inc., is, and at all times relevant to this Petition was, a foreign company authorized to do business in the state of Oklahoma that may be served with process by and through its registered service agent, Susan Savage, Oklahoma Secretary of State, 2300 N. Lincoln Blvd., Suite 101, Oklahoma City, OK 73 105-4897. IL

JURISDICTION AND VENUE

4. The Court has general and original jurisdiction over Plaintiffs claims for breach of contract, unjust enrichment, constructive trust, conversion, assumpsit, money had and received, and declaratory judgment. Furthermore, Plaintiff has sustained damages and other losses in excess of the amount required for diversity jurisdiction pursuant to Section 1332 of Title 28 of the United States Code.

5. Venue is proper in Oklahoma County, Oklahoma because it is where Plaintiffs claim occurred, where Defendant America’s Servicing Company conducts business, where it is subject to personal jurisdiction, and where it has a designated agent for the purpose of process. Venue is also proper in this Court against Defendant Davis because it is where he is a resident.

6. All conditions precedent to instituting this action have occurred, been performed, were waived or have otherwise been satisfied.

III.

STATEMENT OF FACTS

7. PlaintiffBrown O’Haver is an Oklahoma public adjuster and loss claim representative company that provides services to Oklahoma residents pursuant to the Insurance Adj usters Licensing Act, OKLA. STAT. tit. 36, § 6201, etseq.

8. As a public adjuster firm, Brown O’Haver contracts with Oklahoma insureds to assist in evaluating, preparing, and adjusting an insured’s claim for insurance policy benefits for property insured by an insurance company doing business in the State of Oklahoma.

9. Defendant Davis home and personal propertywere damaged and/or destroyed by fire on or about January 7, 2010. At the time of the fire, Davis home and property were insured by American Security Insurance Company (“ASIC”). Defendant America’s Servicing Company was the mortgagee on the home.

10. On or about January 8, 2010, Davis entered into an Agreement and Assignment (“Agreement and Assignment”) with Brown O’Haver, attached as Exhibit “1”, to assist with the adjustment of his claim for insurance policy benefits in association with his fire loss.

11. The Agreement and Assignment granted Brown 0 ‘Haver a fifteen percent (15 %) lien and assignment “to the extent of the adjustment fee, on any assignment, settlement, or verdict due or to become due from the insurance company(ies) and other parties arising out of Davis’s loss claim in exchange for Brown O’Haver’s “assistance, evaluation, claim preparation, and/or adjustment” of Davis loss. Significantly, the Agreement and Assignment also provides: “All payment for loss or damage shall include the name of BROWN O’HA’VER on checks or drafts issued in conjunction with the loss.” See Exhibit “1”.

12. The Agreement and Assignment between Brown O’Haver and Davis was a valid and enforceable contract under Oklahoma law.

13. Brown O’Haver lawifilly performed its obligations under the Agreement and Assignment with Davis by assisting Davis with the adjustment of his claim for insurance policy benefits with ASIC.

14. On January 11, 2010, Davis sent a letter to his mortgagee, America’s Servicing Company’s Loss Draft Department, attached as Exhibit “2”, to noti& it that he authorized Brown O’Haver to “discuss and obtain information concerning the payment and restoration of my home (as authorized in our Agreement and Assignment) in conjunction with his fire loss claim.” Significantly, Davis informed America’s Servicing Company that “Brown O’Haver LLC is to be named as additional payee on all checks in conjunction with the fire loss.”

15. Meanwhile, Davis’s insurer, ASIC, sent a letter, attached as Exhibit “3”, to Davis and America’s Serving Company indicating that a “check in the amount of$l 17,953.12 has been issued to Cesar [sic] Davis and ASC MTG [America’s Serving Company] and is being mailed to ASC MTG under separate cover.” Brown O’Haver was copied on this correspondence but was not named as ajoint payee on the distribution check to Davis and America’s Servicing Company (“ASIC Initial Distribution”).

16. Under the express terms of the Agreement and Assignment, Brown O’Haver is entitled to its contractual fee in the amount of$17,692.97.

17. On June 21, 2010, America’s Servicing Company disbursed a portion of the ASIC Initial Distribution to Davis in the amount of $39,151.04 without naming Brown O’Haver as ajoint payee, despite its prior notice from Davis to do so. Thus, Brown O’Haver is entitled to $5,872.66 (i.e., fifteen percent of $39,151 .04) per the terms of the Agreement and Assignment for assisting Davis with his fire loss claim.

18. Brown O’Haver is also entitled to its contractual fee for any additional distribution made to Davis by America’s Servicing Company in conjunction with Davis’s fire loss claim under the terms and conditions of the Agreement and Assignment. Therefore, once the remainder $78,802.08 is disbursed by America’s Servicing Company, Brown O’Haver is entitled to its contractual fee of$11,820.31.

19. As a direct and proximate result of America’s Servicing Company and Davis’s actions, Brown O’Haver suffered damages as set forth below.

Iv.

THEORIES OF RECOVERY

A. First Claim

Breach of Contract

Plaintiff incorporates all of its prior allegations by reference and further alleges and states as follows:

20. This claim is against Defendant Ceasar Davis only.

21. Davis arbitrarily and capriciously breached his contractual obligations to Brown O’Haver by denying Brown O’Haver its contractual fee of fifteen percent (15%) on any claim paid to Davis in relation to his fire loss claim as set forth in the Agreement and Assignment.

22. As a result ofDavis’s breach ofhis contractual obligations, Brown 0’ Haver sustained damages and other losses.

B. Second Claim

Uniust Enrichment/Constructive Trust

Plaintiff incorporates all of its prior allegations by reference and further alleges and states as follows:

23. Brown O’Haver advanced services to Davis with the reasonable expectation that Davis would pay Brown O’Haver for these services.

24. Instead, Defendants have intentionally withheld payment to Brown O’Haver.

25. As a result, Defendants presently holds monies that in good conscience and equity belong to Brown O’Haver for services Davis received yet for which Davis failed to compensate Brown O’Haver. Moreover, Defendants would be unjustly enriched if allowed to retain these monies. Thus, Davis should be ordered to compensate Brown O’Haver for its services.

26. In the alternative, the Court should impose a constructive trust on the monies retained by Davis and America’s Servicing Company but owed to Brown O’Haver in order to avoid Defendant’s unjust enrichment of these monies.

C. Third Claim

Conversion

Plaintiff incorporates all of its prior allegations by reference and further alleges and states as follows:

27. Davis and America’s Servicing Company intentionally, maliciously and wrongfully exercise dominion over monies that rightfully belong to Brown O’Haver.

28. As a direct and proximate result of the intentional, malicious and wrongful conduct of the Defendants, Brown O’Haver has sustained damages and other losses. 29. The conduct of the Defendants was intentional, willful and deliberate and/or was in reckless disregard for the rights of others, thus entitling Brown O’Haver to punitive damages.

D. Fourth Claim

Assumpsit

Plaintiff incorporates all of its prior allegations by reference and further alleges and states as follows:

30. Davis and America’s Servicing Company intentionally, maliciously and wrongfully absconded with monies that rightfully belong to Brown O’Haver.

31. As a direct and proximate result of the intentional, malicious and wrongful conduct of Defendants, Brown O’Haver has sustained damages and other losses.

E. Fifth Claim

Money Had and Received

Plaintiff incorporates all of its prior allegations by reference and further alleges and states as follows:

32. Davis and America’s Servicing Company owe monies to Brown O’Haver for money had and received, a portion of which should be paid to Brown O’Haver by Defendants.

33. As a direct and proximate result of the wrongful and intentional conduct of the Defendants, Brown O’Haver has sustained damages and other losses.

F. Sixth Claim

Declaratory Judgment

Plaintiff incorporates all of its prior allegations by reference and further alleges and states as follows:

34. There exists an actual controversy between Brown O’Haver, Ceasar Davis, and America’s Servicing Company, pursuant to Oklahoma’s Declaratory Judgments Act, OKLA. STAT. tit. 12, § 1651 et seq.. within the jurisdiction of this court and involving the rights and liabilities under the Agreement and Assignment.

35. Brown O’Haver asks this Court to determine under the Agreement and Assignment that it is entitled to fifteen percent (15%) for all past and future payments made in conjunction with Davis’s fire loss claim: (a) by America’s Servicing Company to Davis; (b) to America’s Servicing Company from Davis’s insurance carriers; or (c) to Davis from his insurance carriers.

V.

PRAYER

WHEREFORE, Plaintiff prays that itbe awarded actual and compensatory damages against Davis, including but not limited to unpaid benefits and contractual interest on benefits owed; punitive damages; prejudgment and post judgment interest; costs, including but not limited to court costs, expert fees, attorney’s fees and expenses; restitution; that the Court impose a constructive trust to prevent an unjust enrichment to Davis; that the Court declare the rights and liabilities of Brown O’Haver under the Agreement and Assignment; and all other and further relief as the Court deems appropriate under the circumstances presented.

Outcome: Plaintiff's verdict for $21,750.00.

Plaintiff's Experts:

Defendant's Experts:

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