DARLENE F. EDWARDS and LEWIS M. EDWARDS, III Plaintiffs
FIDELITY NATIONAL TITLE INSURANCE COMPANY Defendant
ORDER ON PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT
A.M. Horton, Justice Main Business and Consumer Court
Plaintiffs Darlene and Lewis Edwards [["the Edwards"]] have filed a Motion for Summary Judgment on the issue of whether Defendant Fidelity National Title Insurance Company [["Fidelity"]] has a duty to defend the Edwards under a title insurance policy issued by Fidelity with respect to property of the Edwards in Owls Mead, Knox County, Maine.
Fidelity opposes the Edwards' motion, and the Edwards have filed a reply to Fidelity's opposition. The Motion came before the court for oral argument November 21, 2014. Based on the entire record, the court denies the Motion and also lenders partial summary judgment against the Edwards on certain aspects of their motion, see M.R. Civ. P. 56(c) ("summary judgment, when appropriate, may be rendered against the moving party").
In March of 2011, the Edwards purchased certain real property in Owls Head, Maine (the "Edwards Property") and Fidelity issued an owner's policy of title insurance to the Edwards in connection with the Insured Property (the "Policy"). Plaintiffs' Statement of Material Fact ("PSOMF") ¶¶ 1, 2. The Policy was prepared by Mortgage Connect LP, an agent of Fidelity located in Moon Township, Pennsylvania. PSMOF ¶3. The Edwards' deed describes the real estate conveyed in terms of five parcels. Schedule A to the Fidelity Policy describes the Land referred to in the Policy in terms of exactly the same legal description as is contained in the Edwards' deed. PSOMP ¶ 4; .'Defendant's Statement of Material Fact ("DSOMF") ¶ 4.
The third-party claims as to which the Edwards contend Fidelity has a duty to defend arose in two civil actions in the Knox County Superior Court-Edwards v. Biackman, Super. Ct, Kno. Cty. Docket No. ROCSC-RE-11-4-7 and Gravison v. Fisher, Super. Ct., Kno. Cty. Docket No, ROCSC-RE-l1-51, Both cases have resulted in final judgments in the Superior Court, and are now on appeal in the Supreme Judicial Court of Maine, sitting as the Law Court.
In Edwards v. Biackman, the Edwards filed suit against the Town of Owls Head and several individual owners of nearby properties, seeking a declaratory judgment to the effect that neither the Town nor the individual defendants had rights of access or use over the Edwards' property, The individual defendants, all members of the Scott family and hence referred to in the parties' filings as "the Scott Defendants, " asserted counterclaims based on several different legal theories. See PSOMF Tab 6. Count I of the Scott Defendants' counterclaim asserted that the Scott Defendants hold certain appurtenant deeded easement rights based upon chain of title of recorded deeds and other records. Counts II, III, IV, and V asserted prescriptive easement claims, based on alleged use of the Edwards' land for at least 20 years. Count VI asserted a claim of the right to use the intertidal zone of the Edwards' land for fishing, fowling, navigation, and "any other ocean-based activities consistent with Maine common law . .." The Town of Owls Head, however, did not assert any affirmative claims in the nature of counterclaims in the Edwards v. Bhickman case, but it did enter general denials and affirmative defenses in response to the Edwards' claims against it.
The case of Gravison v. Fisher was initiated by David and Beverly Gravison, owners of nearby oceanfront property, against 11 neighboring owners and a trust who claim rights in the Gravison property, and the defendants impleaded the Edwards as necessary parties. These neighbors are referred to as the Cottage Lot Owners in the parties' summary judgment filings. Like the Scott Defendants in Edwards v. Blackmail, the Cottage Lot Owners in Gravison v. Fisher asserted affirmative claims against the Edwards' property on several different theories. Count I asserted that the Cottage Lot Owners hold appurtenant deeded easement rights based upon recorded deeds and other records. Counts II, III, and IV are all prescriptive easement claims, based on alleged, actual use of the Edwards' land for at least 20 years. Count VII asserted the right to use the intertidal zone of the Edwards' land for fishing, fowling, navigation, and "any other ocean-based activities consistent with Maine common law . . ."
The Edwards' Motion For Summary Judgment seeks summary judgment on Fidelity's duty to defend as to ail of the claims asserted against the Edwards by the Scott Defendants and the Cottage Lot Owners, and asserts that Fidelity also is obligated to reimburse the Edwards for the cost of litigating against the Town.
Standard of Review
M.R. Civ. P. 56(c) provides that summary judgment is warranted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any . . . show that there is no genuine issue as to any material fact set forth in those statements and that any party is entitled to a judgment as a matter of law."
For purposes of summary judgment, "[a] material fact is one that can affect the outcome of the suit." Burdzel v. Sohus, 2000 ME 84, ¶ 6, 750 A.2d 573 (citing Kenny v. Dep't of Human Services, 1999 ME 158, ¶3, 740 A.2d 560); see also Mcllroy v. Gibson's Apple Orchard, 2012 ME 59, ¶ 7, 4-3 A.3d 948. A genuine issue exists when sufficient evidence supports a factual contest to require a fact-finder to choose between competing versions of the truth at trial. See Prescolt v. Tax Assessor, 1998 ME 250, ¶ 5, 72 1 A.2d 169 (citing Garside v. Osco Drug, Inc., 895 F.2d 46, 48 (1st Cir. 1990)). The court will view the evidence in light most favorable to the non-moving party. See, e.g., Sleeves v. Bernstein, Shur, Sawyer & Nelson, P.A., 1998 ME 210, ¶ 11, 718 A.2d 186.
A party wishing to avoid summary judgment must present a prima facie case for each element of a claim or defense that is asserted. See Reliance Nal'l Indent, v. Knoxvles Indus. Services, 2005 ME 29, ¶ 9, 816 A.2d 63.
When the court rules on a motion for summary judgment, '"[[it]] is to consider only the portions of the record referred to, and the material facts set forth, in the Ride 7(d) statements, '" Handy Boat Serv., Inc. v. Prof I Services, Inc., 1998 ME 134, ¶ 16, 711 A.2d 1306 (quoting Gerrity Co. v. Lake Arrowhead Corp,, 609 A.2d 293 (Me. 1992)).
There are four types of claims at issue:
• the claims in Count I of the Scott Defendants' Counterclaim and Count I of the Cottage Lot Owners' claim against the Edwards, both asserting rights in the Edwards property based on deeds or plans of record
• the claims in Counts II, III, IV, and V of the Scott Counterclaims and Counts II, III, and IV of the Cottage Lot Owners Counterclaims, all asserting rights in the Edwards property based on prescriptive use
• the claims in Count VI of the Scott Counterclaims and Count VII of the Cottage Lot Owners Counterclaims to use of the intertidal zone of the beach
• the claim of the Town, asserted only in the Town's answer and affirmative defenses in Edwards v. Blackman and not in any counterclaim against the Edwards, to own a public easement road by dedication and acceptance
This Analysis begins with discussion of the legal principles defining a title insurer's duty to defend and then of the primary Policy provisions at issue, and thereafter addresses each type of claim in the order just listed.
A. Scope of A Title Insurer's Duty to Defend
The Law Court has indicated that a title insurer's duty to defend is to be determined in the same way as a general liability insurer's duty to defend. In N.K. Properties, Inc. v. Chicago Title his. Co., the Law Court indicated that Chicago Title's "duty to defend is determined by comparing the allegations in the underlying complaint with the provisions of the insurance policy. The insured is entitled to a defense if there exists any legal or factual basis which could be developed at trial which would obligate the insurer to pay under the policy." 660 A, 2d 926, 927 (Me. 1995) (internal citations and quotation marks omitted), citing Bayivood Corp. v. Maine Bonding & Casualty, 628 A.2d 1029 (Me. 1993). See ...