Hodas v. First American Title Insurance

1997 ME 137, 696 A.2d 1095, 1997 Me. LEXIS 144
CourtSupreme Judicial Court of Maine
DecidedJune 25, 1997
StatusPublished
Cited by4 cases

This text of 1997 ME 137 (Hodas v. First American Title Insurance) is published on Counsel Stack Legal Research, covering Supreme Judicial Court of Maine primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hodas v. First American Title Insurance, 1997 ME 137, 696 A.2d 1095, 1997 Me. LEXIS 144 (Me. 1997).

Opinion

ROBERTS, Justice.

[¶ 1] First American Title Insurance Company appeals from the judgment entered in the Superior Court (Cumberland County, Bradford, J.) in favor of Martin Hodas on his claim for a breach of a title insurance policy. First American argues the court misconstrued the policy and erred in determining that Hodas suffered a compensable loss. By cross-appeal, Hodas argues the court erred in failing to find that First American engaged in unfair claims practices, pursuant to *1096 24-A M.R.S.A. § 2436-A (1990). We disagree with both contentions, and affirm the judgment.

[¶ 2] In 1989 Hodas received a mortgage from Keith Studer to secure a $71,000 loan and any future advances to be made to Stu-der. The mortgage encumbered property Studer owned in South Portland. Hodas contracted with First American to insure his mortgage interest against defects in Studer’s title. The insurance contract was evidenced by a policy issued by First American to Hodas. The policy stated there were no interests in the property other than those of Studer and Hodas. Subsequently Hodas assigned the mortgage to a pension plan, of which he is the trustee.

[¶ 3] In 1990 Studer defaulted on the loan and Hodas obtained a judgment of foreclosure on the property. A foreclosure sale took place in April 1991, at which Hodas bought the property for $80,000. The foreclosure sale report Hodas filed stated that Studer’s total outstanding debt secured by the mortgage, including future advances, was $108,348.87.

[¶ 4] Hodas began to market the South Portland property immediately after obtaining title. In September 1991 he contracted to sell the property to Leonard Lawrence for $57,500. In preparation for the closing, Lawrence discovered a title defect in the form of a previously undiscovered ownership interest retained by Sara Studer, the former spouse of Keith Studer. On November 6, 1991, Ho-das filed a notice of claim with First American, which responded a week later that it would exercise its right under the policy to pursue a quiet title action to extinguish Sara Studer’s interest. As a result of the title defect, Lawrence rescinded the purchase and sale agreement.

[¶ 5] A short time later Hodas made another demand on First American for indemnification pursuant to the policy. First American rejected the demand, stating again that it intended to pursue a quiet title action against Sara Studer, and, on December 12, 1991, retained counsel to do so. During this time Hodas continued to market the property, and in March 1992 sold it to John Somers for $40,000. On April 17,1992, First American’s attorney filed a quiet title action in the name of Somers against Sara Studer. One year later, on April 21,1993, a summary judgment on the quiet title action was entered in favor of Somers.

[¶ 6] In this suit Hodas alleges First American breached its contract by failing to indemnify him for the loss he sustained as a result of the title defect. After a jury-waived trial a judgment was entered for Hodas for $18,000, reflecting the difference between the sale price he would have received from Lawrence and the price Hodas received from Somers plus real estate taxes Hodas paid after the Lawrence sale fell through. This appeal followed.

I.

Breach of Contract

[¶7] First American argues it did not breach its insurance contract with Hodas because the quiet title action against Sara Stu-der was eventually successful. First American directs our attention to section 7 of the policy, which provides:

7. LIMITATION OF LIABILITY
No claim shall arise or be maintainable under this policy (a) if the Company, after having received notice of an alleged defect, ... by litigation or otherwise, removes such defect ... within á reasonable time after receipt of such notice; (b) in the event of litigation until there has been a final determination by a court of competent jurisdiction, and disposition of all appeals therefrom, adverse to the title or to the lien of the insured mortgage ...; or (c) for liability voluntarily assumed by an insured in settling any claim or suit without prior written consent of the Company.

Relying on clause (b), First American contends it fulfilled its obligations by obtaining a final judgment extinguishing Sara Studer’s interest in the property. We disagree. Clause (a) gives First American the right to cure a title defect and thus avoid a claim under the policy, but only if it does so “within a reasonable time” after receiving a notice of the defect. The trial court found that First *1097 American failed to satisfy that requirement, thus breaching its insurance contract.

[¶ 8] What constitutes a reasonable time to cure a title defect, in the context of a title insurance policy, is a question of fact. See Nebo v. Transamerica Title Ins. Co., 21 Cal.App.3d 222, 98 Cal.Rptr. 237, 241 (1971) (construing language substantially similar to section 7(a)). Findings of fact are reviewed for clear error and will be upheld unless there is no competent evidence in the record to support them. H.E. Sargent, Inc. v. Town of Wells, 676 A.2d 920, 923 (Me.1996). The court’s finding that First American failed to cure the title defect within a reasonable time is based on competent evidence and therefore is not clearly erroneous. 1

II.

Compensable Loss

[¶ 9] First American contends the court overlooked the distinction between loan policies and owner policies of title insurance, which led the court to conclude erroneously that Hodas suffered a compensable loss. A loan policy, such as Hodas had in this ease, protects the value of the mortgagee’s security interest against loss due to undisclosed title defects. An owner policy protects the value of an owner’s fee interest against similar risks. The presence of a title defect immediately results in a loss to the holder of a fee interest since resale value will always reflect the cost of removing the defect. In contrast, the holder of a loan policy incurs a loss only if the security for the loan proves inadequate to pay off the underlying insured debt due to the presence of undisclosed defects. Blackhawk Production Credit Ass’n v. Chicago Title Ins. Co., 144 Wis.2d 68, 423 N.W.2d 521, 525 (1988). See also Focus Inv. Assocs. v. American Title Ins. Co., 992 F.2d 1231, 1237 (1st Cir.1993) (in the case of loan policies “what is insured is the loss resulting from a defect in the security”); D. Barlow Burke, Jr., Law of Title Insurance § 2.1.1, at 2:7 (2d ed. 1993) (there is no loss on a loan policy unless the amount of the undisclosed lien reduces the value of the property to less than the underlying debt or, because of the lien, the insured fails to recover the amount of its loan).

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Bluebook (online)
1997 ME 137, 696 A.2d 1095, 1997 Me. LEXIS 144, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hodas-v-first-american-title-insurance-me-1997.