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Developer Finance Corporation and Prescott Orchards Land Development v. Chicago Title Insurance Company

March 6, 2012


The opinion of the court was delivered by: Landya McCafferty United States Magistrate Judge

Opinion No. 2012 DNH 050


Prescott Orchards Land Development, LLC ("Prescott"), seeks a declaratory judgment that it is entitled to coverage under an owner's policy of title insurance issued to it by Chicago Title Insurance Company ("Chicago Title").*fn1 Plaintiffs initially sued in two counts, but in an endorsed order dated January 3, 2012, the court granted their motion for a voluntary non-suit as to Count I, which pertained to two lender's policies. Before the court are cross-motions for summary judgment on Count II, which pertains to the owner's policy. For the reasons that follow, Chicago Title's motion for summary judgment is denied, and Prescott's motion is granted.

Summary Judgment Standard

Summary judgment shall be granted "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(a). "The object of summary judgment is to 'pierce the boilerplate of the pleadings and assay the parties' proof in order to determine whether trial is actually required.'" Davila v. Corporacion de P.R. para la Diffusion Publica, 498 F.3d 9, 12 (1st Cir. 2007) (quoting Acosta v. Ames Dep't Stores, Inc., 386 F.3d 5, 7 (1st Cir. 2004)). "[T]he court's task is not to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Noonan v. Staples, Inc., 556 F.3d 20, 25 (1st Cir. 2009) (citations and internal quotation marks omitted).

"Once the moving party avers an absence of evidence to support the non-moving party's case, the non-moving party must offer 'definite, competent evidence to rebut the motion,'" Meuser v. Fed. Express Corp., 564 F.3d 507, 515 (1st Cir. 2009) (citing Mesnick v. Gen. Elec. Co., 950 F.2d 816, 822 (1st Cir. 1991)), and "cannot rest on 'conclusory allegations, improbable inferences, [or] unsupported speculation,'" Meuser, 564 F.3d at 515 (quoting Welch v. Ciampa, 542 F.3d 927, 935 (1st Cir. 2008)). When ruling on a party's motion for summary judgment, a trial court "constru[es] the record in the light most favorable to the non-movant and resolv[es] all reasonable inferences in [that] party's favor." Meuser, 564 F.3d at 515 (citing Rochester Ford Sales, Inc. v. Ford Motor Co., 287 F.3d 32, 38 (1st Cir. 2002)).


In January of 2007, Prescott purchased a subdivision in Epping, New Hampshire, known as Prescott Orchards. Prescott is covered by a policy of owner's title insurance issued by Chicago Title. According to that policy, covered risks include:

2. Any defect in or lien or encumbrance on the Title. This Covered Risk includes but is not limited to insurance against loss from: . . .

(c) Any encroachment, encumbrance, violation, variation, or adverse circumstances affecting the Title that would be disclosed by an accurate and complete land survey of the Land.

Def.'s Mot. Summ. J., Hansen Aff., Ex. D (doc. no. 16-6), at 2. The policy also includes an exclusion from coverage referred to as the "survey exception," which provides:

This policy does not insure against loss or damage (and the Company will not pay costs, attorneys' fees or expenses) which arise by reason of the following: . . . .

2. Discrepancies, conflicts in boundary lines, shortages in area, encroachments, or any other facts which a correct survey would disclose, and which are not shown by the public records.

Id. at 4. As for what constitutes a "public record," the policy defines that term to mean

[r]ecords established under state statutes at Date of Policy for the purpose of imparting constructive notice of matters relating to real property to purchasers for value and without Knowledge.

Id. at 12.

In November of 2009, the Town of Epping issued a cease and desist order barring Prescott from engaging in construction activities or site disturbances on two roadways and eight lots within Prescott Orchards that are traversed by an ancient Class VI roadway known as New Lane. The Town vacated that order in January of 2010.

In October of 2010, Prescott filed a notice of claim with Chicago Title. Prescott observed that while the cease and desist order had been vacated, "the issue that formed the basis for the Order has not been resolved." Hansen Aff., Ex. G (doc. no. 16-9), at 3. In Prescott's view, that lack of resolution leaves its "security and equity interests in the subdivision . . . impaired because New Lane crosses a number of previously developable lots, and [it] has incurred significant costs and loss of opportunity due to the two month shut-down." Id.

In October of 2011, Chicago Title denied Prescott's claim. In so doing, it referred to a subdivision plan prepared by Doucet Survey Inc. ("Doucet") that identified New Lane, but depicted it as lying outside the boundaries of Prescott Orchards.*fn2 Chicago Title ...

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