Crescenzo

UMNIIDTEDDL ES TDAISTTERS IDCITS TORFI FCLTO CROIDUART

TAMPA DIVISION

CRESS COLLISION SERVICES, INC.,

et al,

Plaintiffs,

v.

CASE NO. 8:25-cv-01542-SDM-TGW

STATE FARM FIRE AND CASUALTY

COMPANY,

Defendant.

___________________________________/

ORDER

Cress Collision Services, Inc., and William Crescenzo sue (Doc. 27) State

Farm Fire and Casualty Company, which moves (Doc. 33) to dismiss under Rules

12(b)(1) and 12(b)(6), Federal Rules of Civil Procedure. The plaintiffs respond. (Doc.

34) An earlier order (Doc. 26) dismissed the original complaint with leave to amend.

BACKGROUND

In Georgia on November 11, 2023, a 2021 Mercedes G63 was stolen from the

original owner. (Doc. 1-6) State Farm, the original owner’s insurer, paid the owner

for a total loss and took title to the Mercedes after the vehicle was recovered. (Doc. 1

¶ 8; Doc. 1-4) In a listing online, State Farm advertised the Mercedes as a theft recov-

ery with “CLEAR” title. (Doc. 27 Ex. A)

On June 6, 2024, Cress, as Crescenzo’s agent, purchased the Mercedes from

State Farm for $157,235. (Doc. 1-5; Doc. 1-7; Doc. 27 ¶¶ 13–18) A contemporaneous

Experian AutoCheck report states that the Mercedes had a “clean” title but was “Re-

ported as Theft Recovery” on February 21, 2024. (Doc. 1 ¶ 13; Doc. 1-6) State Farm

provided Cress a Georgia certificate of title showing no lien or encumbrance. (Doc.

1-7) Cress Collision Services transferred title in the Mercedes to Cress, and Cress as-

signed the title to Crescenzo. (Doc. 27 Ex. E)

When Crescenzo tried to register the Mercedes in Florida, the Department of

Motor Vehicles refused to issue a clear title and explained that the Mercedes carried

a salvage history reported by State Farm to the National Motor Vehicle Title Infor-

mation System. (Doc. 1 ¶ 18; Doc. 1-H) As a result, the Mercedes was branded as a

salvage vehicle, a brand that voided the factory warranty and reduced the market

value. (Doc. 1 ¶¶ 19–21, 25)

The plaintiffs sue under the Georgia Fair Business Practices Act (FBPA),

O.C.G.A. § 10-1-393(b)(5), and the Georgia Uniform Deceptive Trade Practices Act

(UDTPA), O.C.G.A. § 10-1-370 et seq., and assert claims for fraud, negligence,

promissory estoppel, and unjust enrichment.

DISCUSSION

Rule 12(b)(1)

State Farm argues that Crescenzo lacks Article III standing because State

Farm sold the Mercedes to Cress, not to Crescenzo, and that any representations

were to Cress, not to Crescenzo. (Doc. 33 at 4–7) However, the amended complaint

alleges that Crescenzo “engaged Cress Collision to act as his agent to secure a vehicle

for his personal use” (Doc. 27 ¶ 6), that Cress purchased the Mercedes “on behalf

of” Crescenzo (Doc. 27 ¶¶ 14–18), and that Cress assigned the title to Crescenzo.

(Doc. 27 Ex. E) The amended complaint alleges that State Farm’s representations

were “to Plaintiff Cress and to Crescenzo by means of representation to his agent.”

(Doc. 27 ¶ 41)

Because the amended complaint alleges a concrete economic injury to

Crescenzo by State Farm’s representations to his agent and by the later salvage re-

port, each plaintiff establishes Article III standing.

Rule 12(b)(6)

Each count warrants dismissal under Rule 12(b)(6) because the complaint is

internally inconsistent, and each count individually fails to state a claim for relief.

Internal Inconsistency

The amended complaint alleges, on the one hand, that:

• “The vehicle was advertised as having a clear title.” (Doc. 27 ¶ 16)

• “State Farm issued a letter to the Department of Motor Vehicles to have a

clear title only.” (Doc. 27 ¶ 17)

• “Cress won the BID and Plaintiff paid $157,235 for a clear title vehicle.”

(Doc. 27 ¶ 18)

• “On 06/06/2024, State Farm sent the clear title to Cress Collision.” (Doc. 27

¶ 20)

Nonetheless, the plaintiffs allege that State Farm’s “violations” include:

• “[R]epresenting to Plaintiff Cress and to Crescenzo by means of representa-

tion to his agent that it was selling a vehicle with clear title,” “producing to

Plaintiffs a clear title,” and “subsequently issuing a salvage history.” (Doc. 27

¶ 41)

• “[R]epresenting that the subject 2021 Mercedes G63 had a clear title.” (Doc.

27 ¶ 56)

• [A]dvertis[ing] and offer[ing] for sale a 2021 Mercedes G63 as having a

‘clean/clear’ title, furnish[ing] a clear Georgia title after the sale” (Doc. 27 ¶

62)

• “[A]dvertising and conveying the vehicle as ‘clear title,’ issuing or causing is-

suance of documents representing a clean title, and reporting or causing the

vehicle to be reported as salvage in NMVTIS after the sale.” (Doc. 27 ¶ 72)

and

• “[A]dvertising the vehicle as ‘clean/clear title,’ providing a premium Au-

toCheck reflecting no salvage history, issuing a June 6, 2024 clear title, and

executing DMV paperwork reflecting a clean title.” (Doc. 27 ¶ 77)

As with the original complaint, the amended complaint simultaneously alleges

that State Farm delivered clear title and that State Farm misrepresented that the Mer-

cedes would have clear title. Applicable rules permit alternative legal theories but not

directly contradictory factual predicates for the same claim. The amended complaint

never reconciles how a transaction in which State Farm delivered a certificate of

clear title to the plaintiffs can support the claim that State Farm falsely promised to

convey clear title.

Because the amended complaint rests on inconsistent factual allegations

about whether State Farm conveyed clear title, each count fails.

Count I – Georgia Fair Business Practices Act

Count I fails to allege conduct within the scope of the FBPA, which regulates

“transactions affecting the general public,” but not an essentially private, one-off

transaction between two parties. (Doc. 26 at 3) The Act “does not encompass suits

based upon allegedly deceptive or unfair acts or practices which occur in an essen-

tially private transaction,” Brown v. Morton, 617 S.E.2d 198, 202 (Ga. Ct. App. 2005),

and that “only transactions affecting the general public are regulated under the

FBPA.” Jenkins v. BAC Home Loan Servicing, LP, 822 F. Supp. 2d 1369, 1375 (M.D.

Ga. 2011) (citing Brown); see also Pryor v. CCEC, Inc., 571 S.E.2d 454 (Ga. Ct. App.

2002) (same). Tiismann v. Linda Martin Homes Corp. dismisses an FBPA claim in

which the plaintiff challenged only a single home sale and explains that even a de-

ceptive act “would have no impact on the consumer marketplace unless the company

routinely” engaged in the activity. 625 S.E.2d 32, 36 (Ga. Ct. App. 2005). The

amended complaint still alleges only a single sale of a single vehicle from State Farm

to Cress. (Doc. 27 ¶¶ 13–21, 35–41) Although the plaintiffs cite an Insurance Journal

article and an unrelated class action, those citations neither establish that State Farm

“routinely” engaged in the challenged conduct nor otherwise convert this private sale

into one affecting the consumer marketplace.

Also, the FBPA requires justifiable reliance on a material misrepresentation.

Zeeman v. Black, 273 S.E.2d 910, 916 (Ga. Ct. App. 1980); Credithrift of Am., Inc. v.

Whitley, 380 S.E.2d 489, 491 (Ga. Ct. App. 1989). Count I alleges no fact showing

that either plaintiff justifiably relied on any misrepresentation. Clear title was issued

and delivered to the plaintiffs as promised and each plaintiff was on notice of the fact

that the Mercedes was a theft recovery.

The amended complaint fails both to bring the transaction within the FBPA’s

public-impact requirement and to establish that either plaintiff relied on a material

misrepresentation. See Marrale v. Gwinnett Place Ford, 609 S.E.2d 659 (Ga. Ct. App.

2005)

Count II – Georgia UDTPA

Count II requests injunctive and other relief under the Georgia UDTPA. The

UDTPA authorizes injunctive relief only to a plaintiff “likely to be damaged” by a

deceptive trade practice. O.C.G.A. § 10-1-373(a). The plaintiff must show a likeli-

hood of future harm, not only a past injury. Amin v. Mercedes-Benz USA, LLC, 301 F.

Supp. 3d 1277, 1293 (N.D. Ga. 2018). A “hypothetical” future harm is insufficient.

Byung Ho Cheoun v. Infinite Energy, Inc., 363 F. Appx 691, 695 (11th Cir. 2010).

The amended complaint alleges only that Cress has “suffered ascertainable

losses” including payment of the purchase price and transport costs. (Doc. 27 ¶ 59)

The “loss of ability to resell the vehicle at market value” is contingent on a future de-

cision to resell, the existence of a willing buyer, and a concrete offer below “market

value.” Because Count II alleges only a past loss and no likelihood of future harm to

either plaintiff, Count II fails to state a claim under the UDTPA.

Count III – Fraud

The amended complaint fails to allege a material misrepresentation. Georgia

issued clear title, and State Farm transferred clear title to Cress. (Doc. 1-7; Doc. 27

Ex. E) The amended complaint concedes that the Mercedes was advertised as a theft

recovery. (Doc. 27 ¶¶ 12–13, 16–20, 62)

To the extent the claim rests on State Farm’s reporting to NMVTIS, the

amended complaint similarly fails. The plaintiffs allege that State Farm reported the

Mercedes as a total loss after the sale and that the plaintiffs discovered the salvage

brand only when attempting to register the Mercedes in Florida. (Doc. 27 ¶¶ 22–24,

63) A later report to a third-party database cannot serve as a misrepresentation on

which the plaintiffs justifiably relied when deciding to buy the Mercedes.

Count IV – Negligence

Count IV alleges that State Farm owed the plaintiffs duties arising from un-

specified “reporting obligations under federal law” and from a supposed duty to en-

sure that its reporting practices did not harm the plaintiffs. (Doc. 27 ¶¶ 68–73) With-

out identifying a basis for either alleged duty, the plaintiffs’ negligence claim fails.

Brookview Holdings, LLC v. Suarez, 285 Ga. App. 90, 91 (2007).

Also, the damages alleged in Count IV are purely economic: the purchase

price, transport costs, and diminished resale value. (Doc. 27 ¶ 73) The amended com-

plaint alleges no personal injury and no property damage. Under these circum-

stances, negligence is not an appropriate claim for relief. Chrysler Corp. v. Taylor, 141

Ga. App. 671 (Ga. Ct. App. 1977).

Count V – Promissory Estoppel

Count V asserts promissory estoppel based on State Farm’s “promise” that the

Mercedes would have clear title. (Doc. 27 ¶¶ 76–81) The claim fails because the

amended complaint alleges no unfulfilled promise.

The only identified “promise” is that the Mercedes would have clear title, and

the amended complaint concedes that State Farm delivered clear title to Cress on

June 6, 2024. (Doc. 27 ¶¶ 17–20; Ex. E) The complaint’s theory is not that State

Farm failed to deliver clear title, but that State Farm later reported the Mercedes as a

total loss in NMVTIS, which in turn caused the Florida DMV to brand the Mercedes

as salvage. (Doc. 27 ¶¶ 22–24, 63, 72, 77) That report does not retroactively convert a

fulfilled promise (delivery of a clear title) into an unfulfilled one.

Because the amended complaint alleges that State Farm did exactly what it

promised — sell the Mercedes and deliver a clear certificate of title — and alleges no

other promise that State Farm failed to perform, Count V fails to state a claim for

promissory estoppel.

Count VI — Unjust Enrichment

Count VI alleges that State Farm was unjustly enriched “by being compen-

sated for a vehicle with clear title, when in reality it is a salvage vehicle.” (Doc. 27 J

82-87; Doc. 34 at 10-11) State Farm agreed to sell, and did sell, a theft-recovery ve-

hicle with a clear certificate of title. The plaintiffs allege that State Farm received

$157,235 and, in exchange, transferred the Mercedes and the clear certificate of title.

(Doc. 27 4§ 16-21; Ex. E) Those allegations describe a bargained-for exchange, not a

benefit “unjustly” retained. Count VI fails to state a claim for unjust enrichment.

CONCLUSION

State Farm’s motion under Rule 12(b)(1) ts DENIED and State Farm’s mo-

tion under Rule 12(b)(6) is GRANTED. The amended complaint is DISMISSED.

Because a future attempt to amend appears futile, the clerk must enter a judgment for

the defendant and against the plaintiffs and must close the case.

ORDERED in Tampa, Florida, on December 2, 2025.

STEVEND.MERRYDAY__

UNITED STATES DISTRICT JUDGE

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