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24-P-1027 Appeals Court
DOUGLAS SCOTT LESTER & another1 vs. OLD REPUBLIC TITLE INSURANCE COMPANY.
No. 24-P-1027.
Bristol. October 9, 2025. – April 10, 2026.
Present: Ditkoff, D'Angelo, & Wood, JJ.
Real Property, Title insurance, Ownership, Boundary, Deed. Insurance, Title insurance, Coverage, Defense of proceedings against insured, Construction of policy. Contract, Insurance, Construction of contract. Way. Practice, Civil, Summary judgment, Consumer protection case, Reconsideration, Amendment. Judgment, Amendment. Consumer Protection Act, Insurance.
Civil action commenced in the Superior Court Department on March 4, 2022.
The case was heard by Jackie Cowin, J., on motions for summary judgment, and motions for reconsideration and to amend the judgment also were considered by her.
John O. Postl for the plaintiffs. Shannon F. Slaughter for the defendant.
1 John Tyler Mandeville. 2
D'ANGELO, J. The plaintiffs purchased a piece of property
in Westport in 2013. They also secured a title insurance policy
(policy) from the defendant Old Republic Title Insurance Company
(Old Republic). The policy described the insured property
primarily based on the description offered in the land's deed.
Six years later, the plaintiffs were sued by neighbors in
connection with a stone wall adjacent to the property, and Old
Republic refused to defend the plaintiffs in that suit. A
Superior Court judge determined that the land under the stone
wall was part of the plaintiff's property pursuant to the
derelict fee statute, G. L. c. 183, § 58 (statute). In the
subsequent lawsuit commenced against Old Republic that gave rise
to this appeal, a different Superior Court judge declared that
the defendant did not wrongfully deny coverage and entered
summary judgment for the defendant on all of the plaintiffs'
claims. The judge then denied postjudgment motions by the
plaintiffs for reconsideration and to amend the judgment. We
affirm.
Background. The plaintiffs purchased a property on
Hillcrest Acres Lane in Westport in 2013. In connection with
this purchase, the plaintiffs secured a title insurance policy
from the defendant. The policy described the land which the
defendant contracted to insure, using language derived from the
property's deed. It stated that the insured land was sited "on 3
the northerly side of Hillcrest Acres Lane, so called, (private
way - min 40 feet wide)." The policy also enumerated specific
covered risks and exclusions.
In 2019, the plaintiffs were sued in Superior Court by the
owners of the adjacent lot, the Dromskys, regarding the
plaintiffs' restoration of a stone wall located south of the
metes and bounds of the land as described in both the deed and
the policy (Dromsky action). The plaintiffs filed a claim with
the defendant under the policy to defend them in the Dromsky
action. The defendant denied representation, claiming that the
land under the stone wall was outside the policy's coverage.
On cross motions for summary judgment in the Dromsky
action, a judge entered judgment for the instant plaintiffs on
the claims regarding the stone wall. The judge held that the
plaintiffs owned in fee simple the land under the stone wall, by
operation of the statute.
The plaintiffs filed this suit on March 4, 2022, seeking
declarations that the policy afforded coverage to the land under
the stone wall, that the defendant violated the policy by
denying representation to the plaintiffs in the Dromsky action,
and that the plaintiffs were entitled to reimbursement of all
legal fees spent in defense thereof. The plaintiffs also
asserted claims for breach of contract, breach of the covenant
of good faith and fair dealing, unjust enrichment, and 4
violations of G. L. c. 176D. On cross motions for summary
judgment, a Superior Court judge denied the plaintiffs' motion
for summary judgment and allowed the defendant's cross motion
for summary judgment. The plaintiffs subsequently filed (1) a
motion for reconsideration, claiming that the judge erred in not
applying the statute to the policy's description of insured
land; and (2) a motion to amend the judgment, claiming that
plaintiffs' counsel had been unaware of 940 Code Mass. Regs.
§ 3.16 (1993), and alleging that this regulation created
liability for the defendant under G. L. c. 93A. Both motions
were denied.
Discussion. 1. Summary judgment. The plaintiffs
challenge the entry of summary judgment for the defendant,
arguing that the judge erred by holding that the policy did not
insure the land under the stone wall, pursuant both to the plain
terms of the policy and by operation of the statute. We discern
no error.
Summary judgment is appropriate if, "viewing the evidence
in the light most favorable to the nonmoving party, all material
facts have been established and the moving party is entitled to
judgment as a matter of law" (citation omitted). Dorchester
Mut. Ins. Co. v. Miville, 491 Mass. 489, 492 (2023). See
Mass. R. Civ. P. 56 (c), as amended, 436 Mass. 1404 (2002). "If
the moving party establishes the absence of a triable issue, the 5
party opposing the motion must respond and allege specific facts
which would establish the existence of a genuine issue of
material fact in order to defeat a motion for summary judgment"
(citation omitted). Barbetti v. Stempniewicz, 490 Mass. 98, 116
(2022). Our review of a judge's grant of summary judgment is de
novo. Miville, supra.
We also review the judge's interpretation of the terms of
the policy de novo. See Balles v. Babcock Power Inc., 476 Mass.
565, 571 (2017). See also Save-Mor Supermkts., Inc. v. Skelly
Detective Serv., Inc., 359 Mass. 221, 226 (1971) (rules of
contract interpretation apply generally to interpretation of
insurance policy). "When contract language is unambiguous, it
must be construed according to its plain meaning." Balles,
supra at 571-572. And in determining "whether the language at
issue is ambiguous, we look both to the contested language and
to the text of the contract as a whole." Id. at 572.
a. The terms of the policy. i. Description of coverage.
Exhibit A of the policy is a legal description of the insured
property, describing that land as located "on the northerly side
of Hillcrest Acres Lane, so called, (private way - min 40 feet
wide)." Thus, the language detailing the boundaries of the
property to be insured, and agreed to by all contracting
parties, unambiguously frames that coverage as ceasing at the
border of Hillcrest Acres Lane; more specifically, a Hillcrest 6
Acres Lane that is at least forty feet wide. The land under the
stone wall lies beyond the described boundaries of the insured
property.
The plaintiffs invite us to apply the presumption codified
in the statute2 to the terms of the policy, asserting that doing
so would expand the boundaries of the policy to cover the land
under the stone wall. We decline to so broaden the statute, as
this expansion would contradict the statute's language and
purpose.
Prior to enactment of the statute, courts applied a common-
law presumption that "a deed bounding on a way conveys the title
to the centre of the way if the grantor owns so far." Rowley v.
2 The derelict fee statute, G. L. c. 183, § 58, states in full:
"Every instrument passing title to real estate abutting a way, whether public or private, watercourse, wall, fence or other similar linear monument, shall be construed to include any fee interest of the grantor in such way, watercourse or monument, unless (a) the grantor retains other real estate abutting such way, watercourse or monument, in which case, (i) if the retained real estate is on the same side, the division line between the land granted and the land retained shall be continued into such way, watercourse or monument as far as the grantor owns, or (ii) if the retained real estate is on the other side of such way, watercourse or monument between the division lines extended, the title conveyed shall be to the center line of such way, watercourse or monument as far as the grantor owns, or (b) the instrument evidences a different intent by an express exception or reservation and not alone by bounding by a side line." 7
Massachusetts Elec. Co., 438 Mass. 798, 803 (2003), quoting
Gould v. Wagner, 196 Mass. 270, 275 (1907). By enacting the
statute in 1971, the Legislature superseded this common-law
presumption with "an even stronger presumption in favor of
vesting title in abutters." Rowley, supra at 804. That
statutory presumption stands "unless the instrument of
conveyance evidences a different intent" (quotation and citation
omitted).3 Id. The purpose behind this "authoritative rule of
construction" was to "quiet title to sundry narrow strips of
land," the fee interest of which prior grantors had "unknowingly
failed to convey" (citation omitted). Id. at 803.
The statute's language, zeroing in as it does on the
interpretation of any "instrument passing title to real estate"
(emphasis added), G. L. c. 183, § 58, does not mandate a
corollary presumption be applied to title insurance policies.
Application of the statute is limited to instruments passing fee
interests to real estate abutting a way, as we will not
contravene the plain text of a statute to contradict the plain
terms of a contract.
ii. Exclusions. In what appears to be a drafter's
abundance of caution, the exclusion mandates the same result.
The policy's Schedule B excludes coverage for disputes regarding
3The statute recognizes two exceptions, neither relevant here. G. L. c. 183, § 58. 8
"[t]itle to and rights of the public and others entitled thereto
in and to those portions of the insured premises lying within
the bounds of Hillcrest Acres Lane and the adjoining streets and
ways." The land under the stone wall is within those bounds.
In assessing this exclusion, we are mindful that "an
exclusionary clause is construed narrowly," Finn v. National
Union Fire Ins. Co. of Pittsburgh, Pa., 452 Mass. 690, 695
(2008); and, where ambiguity exists, "the insured is entitled to
the benefit" of the more favorable interpretation (citation
omitted). Hakim v. Massachusetts Insurers' Insolvency Fund, 424
Mass. 275, 281 (1997).
The exclusion in Schedule B expressly concerns land "lying
within the bounds of Hillcrest Acres Lane." We accept the
Dromsky action judge's conclusion that the summary judgment
record in that case established Hillcrest Acres Lane as "a
private, single-lane road approximately ten (10) to twelve (12)
feet in width." We also accept that the land under the stone
wall is located "north of [Hillcrest Acres Lane]" and "south of
. . . the metes and bounds description . . . of the property."
Furthermore, we acknowledge the potential for confusion and
incorrect assumptions arising from a policy which excludes land
within the bounds of a way and a stone wall that visually does
not seem to be within those bounds at all. Schedule B
nevertheless excludes coverage of the land under that stone 9
wall. This is because the policy, per its plain and unambiguous
terms, construes Hillcrest Acres Lane to be at least forty feet
wide, and as neither party disputes, the land under the stone
wall lays inside that width.
Thus, we cannot endorse the plaintiffs' contention that
"reasonably intelligent persons" reading the policy as a whole
would interpret Schedule B's description of the road to tacitly
ascribe a width inconsistent with the width expressly stated in
the policy's only other reference to that same road (citation
omitted). Basis Tech. Corp. v. Amazon.com, Inc., 71 Mass. App.
Ct. 29, 36 (2008). See id. ("[p]rovisions are not ambiguous
simply because the parties have developed different
interpretations of them").
This lack of ambiguity also defeats the plaintiffs'
implication that they, like other "consumers," "would think that
their title insurance policies protect all the land that they
own." An argument that the reasonable expectations of the
insured mandate a particular interpretation of the policy's
terms will not survive where "there is neither an ambiguity in
the policy, nor are the terms in the policy 'bizarre or
oppressive.'" LaFrance v. Travelers Ins. Co., 32 Mass. App. Ct.
987, 988 (1992), quoting Markline Co. v. Travelers Ins. Co., 384
Mass. 139, 142 (1981). 10
"When the words of a contract are clear, they control, and
we must construe them according to their plain meaning, in the
context of the contract as a whole." Lieber v. President &
Fellows of Harvard College (No. 2), 488 Mass. 816, 823 (2022).
And "[a]lthough an exclusionary clause is construed narrowly,
[w]e are not free to revise it" (quotation and citations
omitted). Finn, 452 Mass. at 695. Schedule B excludes the land
under the stone wall.
iii. Covered risk number twenty-three. The plaintiffs'
argument, that "Covered Risk No. 23" contains ambiguity and must
therefore be resolved against the defendant, is unpersuasive.
That provision promises coverage where "[Plaintiffs] are forced
to remove [their] existing structures which encroach onto an
Easement or over a building set-back line, even if the Easement
or building set-back line is excepted in Schedule B." The
policy's stated definitions of "Easement" ("the right of someone
else to use the Land for a special purpose") and "Land" ("the
land or condominium unit described in paragraph 3 of [Exhibit] A
and any improvements on the Land which are real property"),
render unambiguous that Covered Risk No. 23 applies exclusively
to structures located on the insured land described in Exhibit A
-- which does not include the land under the stone wall. See
Balles, 476 Mass. at 571. 11
The land under the stone wall and at issue in the Dromsky
action was outside the bounds of the property as described in
the policy, and inside the bounds of Hillcrest Acres Lane as
described in the policy. To restate, the land under the stone
wall is unambiguously nowhere to be found in the policy's
coverage. The judge correctly declared that the defendant did
not owe the plaintiffs a defense in the Dromsky action.
c. Other claims. As the policy did not cover the land
under the stone wall, we discern no error in the judge's
declaration that the defendant did not owe the plaintiffs a
defense in the Dromsky action. Furthermore, the judge correctly
held that the defendant did not commit a breach of contract, did
not commit a breach of the covenant of good faith and fair
dealing, was not unjustly enriched, and did not violate G. L.
c. 176D. We therefore affirm summary judgment for the defendant
on those claims.4
2. Postjudgment motions. The plaintiffs' claim that the
judge abused her discretion in denying their motions for
reconsideration and to amend the judgment is likewise
unavailing.
A motion for reconsideration may be granted in the
discretion of the judge upon a showing of "changed
4 For that reason, the plaintiffs' request for attorney's fees is denied. 12
circumstances" or "particular and demonstrable error in the
original ruling or decision." Audubon Hill S. Condominium Ass'n
v. Community Ass'n Underwriters of Am., Inc., 82 Mass. App. Ct.
461, 470 (2012). The judge's determination that the statute did
not apply to the policy was not error, and so there was no abuse
of discretion in denying this motion.
We likewise review the judge's ruling on the plaintiffs'
motion to amend judgment for an abuse of discretion, and also
find none here. R.W. Granger & Sons, Inc. v. J & S Insulation,
Inc., 435 Mass. 66, 79 (2001). Even if the plaintiffs could
effectively argue for amendment on the basis that counsel was
"unaware" of 940 Code Mass. Reg. § 3.16,5 the plaintiffs cannot
substantiate a claim under G. L. c. 93A.6 The plaintiffs assert
that the defendant should have disclosed that "the land insured
5 Title 940 Code Mass. Regs. § 3.16, states in relevant part:
"Without limiting the scope of any other rule, regulation or statute, an act or practice is a violation of M. G. L. c. 93A, § 2, if: . . .
"(2) Any person or other legal entity subject to this act fails to disclose to a buyer or prospective buyer any fact, the disclosure of which may have influenced the buyer or prospective buyer not to enter into the transaction . . . ."
6 General Laws c. 93A, § 2 (a), states:
"Unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce are hereby declared unlawful." 13
under the [p]laintiffs' policy was not coextensive with the land
they owned in fee simple by virtue of the Derelict Fee Statute,"
arguing here that the defendant "is or should be aware" of the
statute. However, the duty to disclose under c. 93A extends
only to "material facts known to a party at the time of a
transaction." Underwood v. Risman, 414 Mass. 96, 99 (1993).
There is no liability based on "a suspicion or a likelihood,
rather than knowledge." Id. at 100. There is thus no colorable
dispute that the defendant failed to disclose a material fact,
and the judge's denial of the motion to amend judgment was not
an abuse of discretion.
Conclusion. The judgment is affirmed. The order denying
the motion for reconsideration is affirmed. The order denying
motion to amend the judgment is affirmed.
So ordered. WOOD, J. (concurring). I agree with the majority that the
title insurance policy (policy) in this case insured only the
land "on the northerly side of Hillcrest Acres Lane, so called,
(private way - min 40 feet wide)," which is north of the stone
wall that is the subject of the lawsuit at issue here. Exhibit
A of the policy describes the insured land more fully as "Lot 13
on 'Definitive Plan Westlook Farms in Westport, Mass. . . .
[W]hich said plan is recorded in the . . . Registry of Deeds in
Plan Book 111, Page 170." An exceptionally diligent property
owner could view this plan in the registry of deeds and see a
graphic representation of the described property. Because that
is sufficient to resolve this case, I concur in the result.
Nevertheless, I think it is understandable that the
appellant property owners may have had a legitimate reason to be
confused about the scope of their policy for two reasons.
First, both the policy and the plan relied on "Hillcrest Acres
Lane, so called, (private way - min 40 feet wide)" to describe
the southern boundary of the appellants' land. That Hillcrest
Acres Lane is both imaginary and wider than the real, ten-foot-
wide Hillcrest Acres Lane that lies within its boundaries and
south of the stone wall. In short, the plaintiffs might have
believed that the policy described the insured property as
extending to the real Hillcrest Acres Lane. Second, pursuant to
the derelict fee statute (statute), G. L. c. 183, § 58, the 2
plaintiffs actually owned the land on which the stone wall was
located, in fee simple. Accordingly, I think the plaintiffs
might reasonably have assumed, albeit erroneously, that the
policy would cover all of their land, including the stone wall.
I believe this case identifies a problem worth addressing.
I also think there is a relatively straightforward solution. I
suggest that the Legislature or the Commissioner of the Division
of Insurance should follow the lead of California and enact a
legal requirement that, "[w]hen a title company insures an
owner's title to property, by implication it likewise insures
the presumed ancillary titles and privileges attached to the
property and assumes liability for defects in those titles and
privileges." Murray v. Title Ins. & Trust Co., 250 Cal. App. 2d
248, 252 (1967). In this case, for example, Old Republic should
have been aware that there was a narrow strip of land between
the plaintiffs' deeded land and the actual way -- Hillcrest
Acres Lane -- that ran along its southern border, and so, when
the plaintiffs acquired their land, they also acquired ancillary
title to that narrow strip of land pursuant to the statute. Cf.
id. at 256-257 ("Coverage of title insurance extends to
reasonably anticipated implications of ownership which attach to
the insured property by reason of the record"). Indeed, this
seems especially reasonable to assume given that title insurance
companies are in the business of insuring title to land. 3
This solution is consistent with the purpose of the
statute: "to meet a situation where a grantor has conveyed away
all of his land abutting a way or stream, but has unknowingly
failed to convey any interest he may have in land under the way
or stream, thus apparently retaining his ownership of a strip of
the way or stream." Rowley v. Massachusetts Elec. Co., 438
Mass. 798, 803 (2003), quoting 1971 House Doc. No. 5307. The
statute sought to quiet title to these "sundry narrow strips of
land that formed the boundaries of other tracts." Rowley,
supra. Quieting title, in turn, establishes clear ownership of
land and an incentive to maintain it. Requiring that title
insurance policies extend to ancillary title provided by the
statute would complement this incentive.
The dispute at the center of this case illustrates the
value of requiring that title insurance policies extend to
ancillary property adjacent to public ways. The plaintiffs
wanted to repair a stone wall that had been on the southern edge
of their property since at least 1938. But their neighbors sued
to prevent this based on an assertion of a private easement,
which was ultimately deemed invalid. The plaintiffs were
engaged in precisely the sort of behavior that public policy
should encourage. Owners of property along public ways should
not be discouraged from improving that property by fear of the 4
costs of defending against spurious challenges to their title by
neighbors.