Kay H. Cox v. Commonwealth Land Title Insurance Co.

2013 ME 8, 59 A.3d 1280, 2013 WL 151126, 2013 Me. LEXIS 8
CourtSupreme Judicial Court of Maine
DecidedJanuary 15, 2013
StatusPublished
Cited by21 cases

This text of 2013 ME 8 (Kay H. Cox v. Commonwealth Land Title Insurance Co.) 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
Kay H. Cox v. Commonwealth Land Title Insurance Co., 2013 ME 8, 59 A.3d 1280, 2013 WL 151126, 2013 Me. LEXIS 8 (Me. 2013).

Opinions

SILVER, J.

[¶ 1] Kay Cox appeals from the entry of a summary judgment in the Superior Court (York County, Fritzsche, J.) in favor of Commonwealth Land Title Insurance Company (Commonwealth) determining that Commonwealth had no duty to defend Cox against a claim from a third party that Cox’s property is subject to a view easement. We vacate the judgment.

I. BACKGROUND

[¶ 2] On April 8,1998, Cox took title to condominium unit three of the Turbat’s Creek Preserve Condominium in Kenne-bunkport (the unit is also known as Junipers) from Turbat Creek Preservation Limited Liability Company (Turbat Creek). The deed conveying the property to Cox (Cox deed) describes the property in an attached and incorporated Exhibit A. Exhibit A states that Junipers is conveyed “together with” and “SUBJECT TO” all easements “described” or “referred to” in the Declaration1 and “all matters” in a March 11, 1998, Agreement Respecting Easements and Restrictions between Jill B. Knoth, Turbat Creek, and The Turbat’s Creek Preserve Condominium Association (1998 Easement Agreement). Among other easements, the Condominium Declaration describes and refers to a view easement that burdened the property that Cox purchased. This view easement was created by, and further described in, a 1966 deed from Felicia Sholik to Malcolm H. Frost and Mathilde Gray Frost (Sholik deed). This deed granted the Frosts a view easement over the Sholik property for the benefit of the adjacent Frost property. However, the 1998 Easement Agreement releases this view easement.

[¶ 3] In connection with her purchase of Junipers, Cox also signed an agreement certifying that she received and reviewed a copy of the Condominium Declaration and was aware of all of its terms and conditions (Cox Agreement). The Condominium Declaration makes reference to the view easement.

[¶ 4] Cox purchased title insurance for the property from Commonwealth, effective April 10, 1998. The Commonwealth policy insures “against loss or damage ... sustained or incurred by the insured by reason of ... (2) Any defect in or lien or encumbrance on the title.” The Commonwealth policy insures the property described in Exhibit A of the policy, which is virtually identical to Exhibit A of the Cox deed.2

[¶ 5] The coverage provided by the policy is limited by numerous exclusions and exceptions. Of note, standard exclusion 3(a) excludes “[djefects, liens, encumbrances, adverse claims or other matters ... created, suffered, assumed or agreed [1282]*1282to by the insured claimant.” The policy’s specific exceptions are enumerated in Schedule B, Part I, which provides in relevant part:

This policy does not insure against loss or damage by reason of the following:

6. Any easement, exception, reservation, covenant, condition or restriction as may appear in the attached Exhibit A.
7. Subject to conditions, restrictions, covenants and conditions of Declaration of Condominium of Turbat’s Creek Preserve Condominium, Kennebunkport, Maine, dated June 13, 1997, and recorded in the York County Registry of Deeds in Book 8300, Page 001, and Plans of Tur-bat’s Creek Preserve Condominium, recorded in the York County Registry of Deeds, in File Book 472, Page 1.
15. Agreement between Turbat Creek Preservation Limited Liability Company and Kay H. Cox dated April 8, 1998 and recorded at Book 8733, Page 135 in the York County Registry of Deeds.

[¶ 6] In July 2010, Cox’s neighbor, Kenan E. Sahin, initiated a lawsuit against Cox alleging that as the owner of the property previously owned by the Frosts, he was entitled to the benefit of the view easement created by the Sholik deed. Sa-hin’s complaint alleges that, despite the 1998 Easement Agreement’s release of the view easement before Cox took title to the property, the references to the view easement in the Condominium Declaration and Cox deed show that the easement existed when Cox took title, and that it still exists.3 Cox tendered Sahin’s complaint to Commonwealth requesting a defense pursuant to her title insurance policy. Commonwealth denied Cox’s request based on exclusion 3(a) and exceptions 6, 7, and 15.

[¶ 7] Cox sued Commonwealth alleging a breach of contract and requesting a declaratory judgment that Commonwealth had a duty to defend Cox against the Sahin complaint.4 Cox and Commonwealth each moved for summary judgment. The Superior Court granted Commonwealth’s motion and denied Cox’s motion, finding that the Commonwealth policy specifically excluded the view easement from coverage. Cox appeals.

II. DISCUSSION

[¶ 8] Cox argues that Commonwealth has a duty to defend Cox against [1283]*1283the Sahin complaint pursuant to the title insurance policy. We review both the entry of a summary judgment and the interpretation of an insurance policy de novo. Travelers Indem. Co. v. Bryant, 2012 ME 38, ¶8, 38 A.3d 1267. We interpret any unambiguous language in the policy according to its plain meaning. Id. ¶ 9. We construe ambiguous policy language strictly against the insurance company and liberally in favor of the policyholder. Id. Policy language “is ambiguous if it is reasonably susceptible of different interpretations or if any ordinary person in the shoes of the insured would not understand that the policy did not cover claims such as those brought.” Id. (quotation marks omitted).

[¶ 9] We determine whether an insurer has a duty to defend by comparing the allegations of the complaint with the language of the policy. Mitchell v. Allstate Ins. Co., 2011 ME 133, ¶9, 36 A.3d 876. An insurer’s duty to defend is triggered if the complaint tendered contains any allegations that, if proved, could fall within the coverage afforded by the policy. Id. ¶ 10. An insurer’s refusal to defend is proper only when the allegations of the complaint fall completely outside the policy. Id. ¶ 13. Regardless of extrinsic evidence, if the complaint — read in conjunction with the policy — reveals a mere potential that the facts may come within the coverage, then the duty to defend exists. Penney v. Capitol City Transfer, Inc., 1998 ME 44, ¶¶ 5-7, 707 A.2d 387. Accordingly, we must evaluate the policy in its entirety, including any exclusions and exceptions, to determine whether Commonwealth has a duty to defend Cox. Home Ins. Co. v. St. Paul Fire & Marine Ins. Co., 229 F.3d 56, 63 (1st Cir.2000) (applying Maine law); see Johnson v. Amica Mut. Ins. Co., 1999 ME 106, ¶¶ 6-7, 733 A.2d 977.

[¶ 10] As described above, Cox’s policy provides title coverage for the property described in Exhibit A of the Cox deed. Exhibit A includes a reference to the Condominium Declaration, which refers to the view easement. However, Exhibit A also includes a reference to the 1998 Easement Agreement, which extinguished the disputed view easement. Due to this ambiguity, it is unclear whether the policy anticipated that the property was burdened by a view easement. The exclusions and exceptions do not clarify this ambiguity.

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Cite This Page — Counsel Stack

Bluebook (online)
2013 ME 8, 59 A.3d 1280, 2013 WL 151126, 2013 Me. LEXIS 8, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kay-h-cox-v-commonwealth-land-title-insurance-co-me-2013.