S-13-0111, Brad Woodle and Chase Woodle (Appellants) v. Commonwealth Land Title Insurance Company and Omaha Title & Escrow (Appellee)
Sarpy County District Court, Judge Max J. Kelch
Attorneys: Ronald E. Reagan, Richard W. Whitworth, A. Bree Swoboda (Senior Certified) (Reagan, Melton, & Delaney, L.L.P.) (Appellant); John D. Stalnaker, Robert J. Becker (Stalnaker, Becker & Buresh P.C.)
Civil: Appeal from District Court sustaining Commonwealth’s motion for summary judgment.
Proceedings below: The district court sustained Commonwealth’s motion for summary judgment based on the plain language of the Title Insurance Policy. The court determined that the language that excluded coverage for “defects, liens, encumbrances . . . attaching or created subsequent to Date of Policy” excluded coverage for easements by implication or prescription. The court determined that the policy was written in the disjunctive, and therefore when the easement was created was irrelevant to the specific exception. It determined that the easement did not attach until it was judicially recognized, which occurred after the date of the policy. Because the legal recognition of the implied easement occurred after the date of the Policy, the exception applied to the counterclaims raised by the property owners of Lots 1 and 3 in the separate proceeding. Since Commonwealth was not required to defend against the implied easement, the court found Commonwealth was entitled to judgment as a matter of law.
Issues: Appellant argues the district court erred in (1) relying on language of an exclusion or exception that was never raised by Commonwealth as an affirmative defense, (2) concluding that implied easements in favor of the adjoining property did not attach until the claims of implied easements were litigated, (3) finding no coverage under general language of an exclusionary clause when specific language in a policy exception provided coverage, (4) interpreting the specific exception and general exclusion contrary to the insured rather than construing the ambiguous language against the insurer who selects the language of the policy, (5) granting summary judgment in favor of Commonwealth, and (6) denying Appellant’s motion for partial summary judgment on liability.