Fansler v. North American Title Insurance Company

Opinion

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

MARK FANSLER and LINDA ) GOLDSTEIN, ) ) Plaintiffs, ) ) v. ) ) C.A. No.: N17C-09-015 EMD NORTH AMERICAN TITLE ) INSURANCE COMPANY, R. ) MATTHEW LONGO, LONGO & ) ASSOCIATES, L.P., RICHARD M. ) LONGO, HILLCREST ASSOCIATES, ) INC. and GLOBAL TITLE, INC., ) ) Defendants. )

MEMORANDUM OPINION DENYING DEFENDANT GLOBAL TITLE, INC.’S MOTION TO DISMISS PLAINTIFFS’ SECOND AMENDED COMPLAINT

Upon consideration of Defendant Global Title, Inc.’s Motion to Dismiss Plaintiffs’

Second Amended Complaint (the “Motion”) filed by Defendant Global Title, Inc. (“Global

Title”); Plaintiffs’ Opposition to Global Title, Inc.’s Motion to Dismiss the Second Amended

Complaint (the “Opposition”) filed by Plaintiffs Mark Fansler and Linda Goldstein (collectively,

“Plaintiffs”); Global Title Inc.’s Reply to Plaintiffs’ Response to Global Title Inc.’s Motion to

Dismiss Plaintiffs’ Second Amended Complaint (the “Reply”); the Second Amended

Complaint; and the entire record of this civil action, the Court will, for the reasons set forth

below, DENY the Motion.

On March 19, 2019, the Court issued its Memorandum Opinion Denying in Part and

Granting in Part Defendant Global Title, Inc.’s Motion to Dismiss (the “Decision”). The Court

addressed the “Time of Discovery Rule” and held that it applied in this civil action. The Court gave leave to Plaintiffs to file an amended complaint to add (i) a claim for negligent procurement

and (ii) allegations regarding relation back of that claim to Global Title.

Plaintiffs filed the Second Amended Complaint on April 5, 2019. The Second Amended

Complaint asserts a claim of negligent procurement against Global Title. Global Title responded

to the Second Amended Complaint with the Motion. The Court has reviewed the Motion, the

Opposition, the Reply and the Second Amended Complaint. The Court has determined that it

can rule on the matter without a hearing.

In the Motion, Global Title again argues that Delaware Courts refuse to apply the Time of

Discovery Rule to negligent procurement claims as a matter of law. Plaintiffs argue that the

cases relied upon by Global Title do not hold that the Time of Discovery Rule cannot be utilized

in negligent procurement cases. The Court has, once again, reviewed the law and agrees with

Plaintiffs’ interpretation of the existing Delaware law.

First, the Court reaffirms the reasoning set forth in the Decision.1 Second, the Court

notes that a series of Delaware decisions support the principle that the Time of Discovery Rule

may be applied in negligent procurement and malpractice cases especially as those claims relate

to title defects.2 The key here is not the issuance of the policy but the purported reason for its

negligent procurement—i.e., a title defect as opposed to an omission of coverage. For these

reasons, the Court will DENY the Motion.

1 Fansler v. North Am. Title Ins. Co., 2019 WL 1281432, at *3-4 (Del. Super. March 19, 2019). 2 Pioneer Nat’l Title Ins. Co. v. Child, Inc., 401 A.2d 68, 71-72 (Del. 1979); Ruger v. Funk, 1996 WL 110072, at *3- 6 (Del. Super. Jan. 22, 1996) (discussing Kaufman v. C.L. McCabe & Sons, Inc. and still applying the Time of Discovery Rule as it relates to title defects); see also Dickerson v. Rich, 2001 WL 34083816, at *2 (Del. Super. Oct. 17, 2001) (stating that the Time of Discovery Rule applied in Pioneer Nat’l Title Ins. Co. was appropriate because title defects are, in most instances, “inherently unknowable”).

2 The Court notes, however, that the issue of “relation back” was not raised in the Motion.

The Court will not address whether the Second Amend Complaint’s negligent procurement claim

relates back as it was not raised by Global Title.

IT IS SO ORDERED.

Dated: June 19, 2019 Wilmington, Delaware /s/ Eric M. Davis Eric M. Davis, Judge