In Appeal No. A07A1139, Lawyers Title Insurance Corporation “Lawyers Title” appeals the judgment entered, following a jury verdict, in favor of New Freedom Mortgage Corporation “New Freedom” for $190, 195.30 in compensatory damages, $49,097.49 in prejudgment interest, and $53,685.31 in expenses and attorneys fees. Lawyers Title contends the trial court erred by giving charges on “Causation; Plaintiff’s sole negligence,” “Causation; Arising Out of,” “Misrepresentation and Concealment,” mitigation of damages, and “Confidential Relationship,” and by failing to give Lawyers Title’s proposed charge on “Causation, Plaintiff’s acts, vicarious liability.” Lawyers Title also alleges the trial court erred by granting New Freedom’s motion to exclude evidence of any contributing cause to New Freedom’s loss other than the closing attorney’s fraud or dishonesty. In Appeal No. A07A1140, New Freedom cross-appeals, challenging the trial court’s ruling that the closing protection letter issued to New Freedom by Lawyers Title is not an insurance agreement, and thus preventing New Freedom from seeking recovery of the statutory penalties contained in OCGA § 33-4-6 because of Lawyers Title’s bad faith denial of New Freedom’s claim based upon the closing protection letter.
This is one of three appeals1 between these parties arising from substantially similar facts and issues. The general facts and circumstances are stated in Lawyers Title Ins. Corp. v. New Freedom Mortgage Corp. , 285 Ga. App. 22 645 SE2d 536 2007, cert. denied, July 12, 2007, “Lawyers Title v. New Freedom I “, the first case to be decided by this court: New Freedom is a residential mortgage lender, whereas Lawyers Title is in the business of issuing title insurance policies to residential home buyers and lenders. In an effort to induce New Freedom to purchase title insurance, Lawyers Title issued to New Freedom an indemnification agreement known in the insurance industry as a “closing protection letter” “CPL”. Under the CPL, Lawyers Title agreed to indemnify New Freedom under certain circumstances for actual losses New Freedom incurred in connection with residential real estate closings conducted by an agent authorized to issue title insurance on behalf of Lawyers Title an “issuing agent”. Among other things, the CPL provided that Lawyers Title would reimburse New Freedom when its actual loss “arises out of” 1 the issuing agent’s failure to follow New Freedom’s written closing instructions relating to the collection and payment of funds due to New Freedom, or 2 the issuing agent’s “fraud or dishonesty SYMBOL 188 “Symbol” 10 in handling New Freedom’s funds or documents in connection with such closings.” Id. at 23.
