HHH v. Port Harbor Marine, Inc.

• Court: Superior Court of Maine
• Decided: February 2, 2005
• Docket: CUMcv-03-380
• Status: Unpublished

Opinion

oF MAIRE STATE OF MAINE eRL AN 0. SS SUPERIOR COURT CUMBERLAND, ss. A'S OFFISE CIVIL ACTION DOCKET NO, CV-03-380_ fo 105 FEB -2 PW WOPA [peo HHH, LLC,, Plaintiff Vv. ORDER Port Harbor Marine, Inc., Port Harbor ‘Holdings I, Herbert E. Tyler and Grace M. Tyler, Irving Oil Corporation, and Lawyers Title Insurance Corporation, Defendants ES 7 ag

current or former Property owners at Spring Point in South Portland, Maine. In May 1999, HHH acquired slightly over 20 acres of land at Spring Point from Irving Oil Corporation (Irving Oil) by quitclaim deed. The Property included certain easements. In July 2003, HHH erected a fence over portions of its property, blocking access to property held by Port Harbor Marine Inc. and Port Harbor Holdings I (Port Harbor) and Herbert and Grace Tyler (the Tylers). Port Harbor brought suit (CV-03-380), seeking injunctive and declaratory relief, claiming that access across HHH’s property was protected by easements in Port Harbor’s favor to use Breakwater Annex, formerly known as Cross Street. On July 11, 2003, this Court issued a temporary restraining order against HHH, finding Port Harbor was likely to succeed in proving their right to use their Cross

Street easements, and ordering HHH to remove the fence. Port Harbor was ordered to refrain from putting boats, vehicles, equipment or trash on HHH's property.

On March 30, 2004, while a trial on this matter was pending, HHH brought suit (CV-04-2 14) against Port Harbor, the Tylers, Irving Oil, and Lawyers Title Insurance Corporation (LTIC) regarding the easements to which HHH’S Property was subject.’ In Count III of its second amended complaint, HHH charged LTIC with breach of contract for failing to defend HHH in the suit brought by Port Harbor. On November 4, 2004, LTIC filed its Motion for Summary Judgment on Count II. LTIC argues that the property rights disputed in Port Harbor’s suit are expressly excluded from coverage in the policy LTIC issued to HHH. Therefore, LTIC asserts, it has no duty to defend HHH. HHH argues that the rights at issue are not excluded from HHH’s policy, and that LTIC has a duty both to defend and indemnify HHH.

DISCUSSION

To determine whether an insurer has a duty to defend, the court will “compare the complaint in the underlying action with the insurance policy. The duty to defend arises if there is any potential basis for recovery against the insured and the recovery is an insured risk.” York Golf and Tennis Club v. Tudor Ins. Co., 2004 ME 52, 7 8, 845 A.2d 1173, 1175 (citations omitted). “If the allegations in the underlying action are within the risk insured against and there is any potential basis for recovery, the insurer must defend the insured . . ..” Gibson 0. Farm Family Mut. Ins, Co., 673 A.2d 1350, 1352 (Me. 1996)(emphasis in the

original). However, the court does not look beyond the face of the complaint and

" The two cases were consolidated on August 4, 2004 (CV-03-380). Summary judgment was granted to Irving Oil on Counts I and II of HHH ’s first amended complaint. 7,711 A.2d 1310, 1312. A. The Complaint

Here, Port Harbor’s complaint alleges that HHH erected a fence in

complaint. Port Harbor brought an additional claim of nuisance in relation to the same fence.

B. The Policy

LTIC issued a policy to HHH that expressly provided “This policy does not insure against loss or damage by reason of the following: .. .(16) Rights and easements of others to use water mains, common utilities, sewers, railroad tracks and streets and ways set forth in the following instruments: . . . ” Policy at Schedule B. Among the instruments setting forth easements expressly excluded

in the policy are the deeds from: On summary judgment, LTIC argues these deeds, excluded from coverage under the policy, are to the Property now known as 110 Breakwater and 120 Breakwater and include the very easements in favor of Port Harbor said to be violated in Port

Harbor’s complaint, HHH has acknowledged that the deeds and the policy

Here, the parties do not dispute that the ri ghts in Property expressly excluded from LTIC’s coverage at Schedule B, (16)(d) and (e) are the same rights in property to 110 and 120 Breakwater that Port Harbor claims were violated by HHH when it erected a fence. N, onetheless, HHH argues a recovery by Port

Harbor is an insured risk under the policy and trigger’s LTIC’s duty to defend.

First, HHH claims it is insured under another policy exception from coverage for July 8, 2004. Finally, HHH contends that LTIC has no proof that Cross Street, and therefore any Cross Street easements, actually exist. None of HHH’s contentions raises a disputed issue of fact about whether HHH’s is insured for the risk of Port Harbor’s Tecovery under the LTIC policy. The exception cited by HHH would provide a second basis for exclusion from coverage for the disputed Cross Street easements if Cross Street and its easements, as HHH claims, are unrecorded in the Irving Oil survey. It is also undisputed that Port Harbor’s complaint is for violation of easements alleged to exist at the time HHH erected the fence in July 2003, and is unaffected by any later alleged termination of those easements. Finally, the existence of Cross Street and its accompanying rights and easements may affect the outcome of litigation between HHH and Port Harbor, but does not affect the fact that the alleged street and those alleged easements are expressly excluded under LTIC’s policy without condition as to their existence. HHH’s speculation that Cross Street could be found to be Front Street, an easement protected under the policy, is too remote to hold weight under these facts; however, LTIC may have a duty to defend HHH if

a suit involving a Front Street arises. Such is not now the case.

Because the allegations in Port Harbor’s underlying complaint is for violation of property rights in easements or rights of way that are expressly excluded from coverage under the LTIC policy, LTIC has no duty to defend

HHH ina suit over those easements or rights of way, and summary judgment

should be granted to LTIC.

This Court GRANTS Defendant Lawyers Title Insurance Company’s

Motion for Summary Judgment on Count III of Plaintiff HHH’s second amended

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YY. Dated - Lang %, 2-065

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