Amidano v. Donnelly

615 A.2d 654, 260 N.J. Super. 148
CourtNew Jersey Superior Court Appellate Division
DecidedOctober 28, 1992
StatusPublished
Cited by7 cases

This text of 615 A.2d 654 (Amidano v. Donnelly) is published on Counsel Stack Legal Research, covering New Jersey Superior Court Appellate Division primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Amidano v. Donnelly, 615 A.2d 654, 260 N.J. Super. 148 (N.J. Ct. App. 1992).

Opinion

260 N.J. Super. 148 (1992)
615 A.2d 654

EUGENE AMIDANO AND JOSEPHINE AMIDANO, PLAINTIFFS,
v.
KENNETH DONNELLY AND BARBARA DONNELLY, DEFENDANTS AND APPELLANTS/THIRD PARTY PLAINTIFFS,
v.
MERIDIAN TITLE INSURANCE CO. AND ARCHER LAWYERS' SERVICE, THIRD PARTY DEFENDANTS AND RESPONDENTS/THIRD PARTY DEFENDANTS.

Superior Court of New Jersey, Appellate Division.

Argued October 1, 1992.
Decided October 28, 1992.

*150 Before Judges BRODY, LANDAU and THOMAS[1].

Daniel W. Pariser argued the cause for appellants (Pariser & Grant, attorneys; Daniel W. Pariser on the brief).

Ben J. Slavitt argued the cause for respondent Meridian Title Insurance Co. (Slavitt, Fish & Cowen, attorneys; Ronald G. Schecter on the brief).

The opinion of the court was delivered by LANDAU, J.A.D.

*151 This is an appeal by defendants/third party plaintiffs Kenneth and Barbara Donnelly (the Donnellys) from summary judgment awarded to their title insurance company, third party defendant Meridian Title Insurance Company and a searching service, third party defendant Archer Lawyers' Service.

Plaintiffs Eugene and Joseph Amidano together own property in Washington Township which, as previously confirmed in the present case, has enjoyed the benefit of a recorded easement reserved by deed of an earlier common grantor named Ort[2] over certain non-contiguous lands purchased in 1986 by the Donnellys. The easement reserved to the original grantor "a perpetual right of ingress and egress unhindered, over the present roadway to and from other lands of grantors." The "other lands" embraced what was to become the Amidano property.

A recorded survey certified to the Donnellys in 1986 depicted an "Old Roadway (Dirt)" running across the property they were about to purchase. Immediately beneath the old roadway depicted on the survey are the words, "Right of way set forth in Book 2237 on Pg. 938 road formerly known as `Fisher Mine Road'." A "dirt driveway" is also shown on this survey, but is outside the periphery of the Donnelly property. Fisher Mine Road, it is undisputed, has been shown on Washington Township tax maps for over a century but has never been dedicated as a public right of way.

The chain of title to the Donnelly premises includes cross-deeds executed in December 1972 and recorded on Pages 938 and 943 of Deed Book 2237, pursuant to which two parcels were subdivided. Lot 43-1, which the Donnellys later acquired, was conveyed:

[t]ogether with the right and privilege of the grantors, their heirs and assigns, to use a right of way over an existing driveway as shown on survey of April, *152 1971 by Associated Consultants, as means of ingress and egress from lands retained by the respective grantors to Kings Highway, maintenance costs to be shared equally by the respective grantors, their heirs and assigns; and there shall be no widening or other major improvements of said driveway without the consent of the respective grantors, their heirs and assigns. (emphasis supplied).

This deed also reserves in the grantors a "perpetual right to park not more than two (2) automobiles in two (2) [20 feet X 10 feet] spaces" as shown on the referenced survey, which appears in the same Deed Book at Page 941. A "`[unintelligible]' right of way" following the course of Fisher Mine Road also appears on the Associated survey.

Following the metes and bounds description of the tract in the deed to the Donnellys, the premises are stated as:

Being the same lands described in Book 2237 of Deeds on Page 943.
Together with and subject to the right and privilege to use a right of way over an existing driveway as reserved in Deed Book 2237 page 934 [Lot 43] and in Deed Book 2237 page 941 [Associated Consultants survey].

When the Amidanos sought to enforce their easement in the Chancery Division, the Donnellys joined their title insurance carrier, Meridian Title Insurance Company ("Meridian") and Archer Lawyers' Service ("Archer") as third party defendants. The Amidano easement has since been recognized by a settlement which Meridian does not challenge.

This appeal is taken from an order of summary judgment in favor of both third party defendants dismissing the third party complaint, based upon the motion judge's interpretation of exceptions in the title policy. We reverse.

Meridian insured title following a title search performed at its behest by Archer. Among the risks specifically insured against "if they affect [the insured's] title on the policy date" were:

1. Someone else owns an interest in your title....
10. Someone else has an easement on your land....
14. Other defects, liens, or encumbrances.

Schedule B to the policy excepted from coverage:

1. Any facts about the land which a correct survey would disclose, and which are not shown by the public record....
*153 5. Easements as contained in Deed Book Z-39 Page 484 [utility easement] and Book 2237 Page 943 [mutual easement for "driveway"].
6. Restrictions as contained in Deed Book 2237 Page 943.
7. Rights in any stream, road or lane crossing premises.

Significantly, exception # 1 of Schedule B was deleted by a survey endorsement to the policy reading:

Based upon a survey made by Eldon D. Allen, Land Surveyor, dated July 30, 1986, the Company hereby insures against loss or damage which the insured shall sustain by reason of any encroachments, overlaps, boundary line disputes or easements except as follows: Survey shows (a) Pole line crossing the premises. (b) Stream crossing the premises. (c) Two parking spaces reserved for P. Pasini. (d) Dirt driveway crosses adjoining lands.

(emphasis supplied).

As Archer's search and property description were primarily for benefit of Meridian, the parties and the motion judge have properly focused on Meridian's contractual responsibility to the Donnellys under the title policy. See Walker Rogge, Inc. v. Chelsea Title & Guaranty Co., 116 N.J. 517, 535-36, 562 A.2d 208 (1989); N.J.S.A. 17:46B-9. However, our examination of the above enumerated title exceptions in light of the undisputed facts convinces us not only that Meridian failed to establish that its policy exceptions so clearly and unambiguously excluded the Amidano easement (see MacBean v. St. Paul Title Ins. Corp., 169 N.J. Super. 502, 509, 405 A.2d 405 (App.Div. 1979)) as to justify summary judgment for that insurance carrier, but that applicable principles of insurance law require that judgment should instead have been awarded to the Donnellys on their cross-motion.

The motion judge found from the policy survey and the submissions of the parties that Fisher Mine Road was tantamount to a right of way across the Donnelly property and an easement, and was therefore excepted from coverage. However, unlike Walker Rogge, Inc., supra 116 N.J. at 525, 562 A.2d 208, the "correct survey" exception was here deleted in favor of a specific survey endorsement. Quite simply, neither the above referenced exceptions numbered 5, 6 or 7 in Schedule B, nor the survey endorsement unambiguously removed the Amidano *154 easement, reserved under a deed recorded at Deed Book Z37, p.

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Bluebook (online)
615 A.2d 654, 260 N.J. Super. 148, Counsel Stack Legal Research, https://law.counselstack.com/opinion/amidano-v-donnelly-njsuperctappdiv-1992.