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NOT BUYING IT: Court Shows Healthy Skepticism of TCPA Plaintiff’s Claims Against Insurance Telemarketer
Tuesday, May 28, 2024

The Honorable Magistrate Judge Maynard is a name folks should remember.

He just issued an interesting ruling in Belleville v. Florida Insuance Services, Inc. 2024 WL 2342337 (S.D. Fl. May 23, 2024) and I wish more courts would adopt his reasoning.

In Belleville the Plaintiff sued the defendant–who allegedly went by Senior Life Services–related to calls for final expense and health insurance intended for a different person, Phyllis Pearson.

Plaintiff alleges he’s been receiving calls intended for Pearson for years–lead buyers might want to scrub their list for this person!–and that he received four calls from different numbers he believed to be telemarketing calls from Senior Life Services.

But there was a problem. Plaintiff didnt actually allege facts linking the calls to SLS.

On the last call he feigned interest and was connected to SLS, but on the first three calls he said he wasn’t interest and hung up.

SLS moved to dismiss arguing it was not liable for the first three calls and that Plaintiff cannot bring a claim under 227(c) based on the single confirmed call he received. The Court agreed.

Skeptical of plaintiff’s assertions that the fist three calls came from SLS the Court noted the following:

Plaintiff attempts to link the four calls to Defendant by noting the callers were all calling to provide an insurance quote, they began with the same sales pitch, and upon calling back each of the phone numbers, the same busy signal was produced. Id. ¶ 52. However, Plaintiff does not describe the sales pitch or how the busy signal links the callers. 4 The lone facts in the Amended Complaint that link the first three calls to Defendant, are the callers asking for Phyllis Pearson, and providing an insurance quote. Id. ¶¶ 41, 44, 47, 50. However, Plaintiff admittedly has been receiving calls asking for Phyllis Pearson for approximately three years. Id. ¶ 36. Further, a telemarketer asking if they can provide an insurance quote is like a police officer asking if you know why you are being pulled over. It is a common practice that fails to narrow down Defendant in any way. 

In his Response, Plaintiff argues an additional reason the calls are linked to Defendant. Plaintiff argues that the four calls all came “within a few days of each other.” DE 18 at 3. Specifically, the November 7 and November 8, 2023 calls were “within 1 day of each other” and came “from similar 314 telephone numbers” showing that if the last call came from Defendant, the rest must have as well. Id. However, this is a stretch, and still insufficient because the proximity of the last two calls and similarity in number could very well be coincidental, which is not enough to tie them together or to Defendant.


Get it?

Plaintiff tried to say all calls came from SLS because they started with the same pitch, offered the same product and came within a short time of one another but the Court viewed those facts as coincidental and not sufficient to state a claim against SLS.

It should be noted courts are supposed to read inference in favor of Plaintiff at the pleading stage. So most courts would view these facts as sufficient to state a claim. But the Honorable MJ Maynard was simply not buying it and sent the Plaintiff packing here.

This is a good one for defense lawyers to keep in mind. It is quite common for a plaintiff to allege a string of calls culminating in a single pick up resulting in the identification of a caller. Be VERY detail oriented in scanning the complaint to determine whether FACTS are alleged linking the calls to the Defendant. The complaint in this case repeatedly alleged the calls came from defendant–but those allegations were treated as mere conclusions and disregarded in light of the specific facts failing to tie the calls to SLS.

Very interesting (and helpful) stuff.

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