Opinion
No. 11–P–1669.
2013-03-4
Wolf WEINHOLD v. CHICAGO TITLE INSURANCE COMPANY.
(citations omitted). 2
By the Court (BERRY, FECTEAU & CARHART, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff appeals from a Superior Court judgment on the pleadings dismissing his contract-based claims against the defendant, Chicago Title Insurance Company (Chicago Title). The plaintiff's core argument is that Chicago Title breached a title insurance policy issued in 1986 by failing to defend and indemnify the plaintiff in proceedings that led to foreclosure on the plaintiff's Back Bay property in 1992. We affirm.
“We review de novo the judge's order allowing a motion for judgment on the pleadings under [Mass.R.Civ.P.] 12(c).” Wheatley v. Massachusetts Insurers Insolvency Fund, 456 Mass. 594, 600 (2010). The underlying proceedings, for which the plaintiff claims he was improperly denied defense and indemnification, were based on theories of breach of contract and warranty. The title insurance policy issued by Chicago Title provides coverage only for issues involving liens, encumbrances, right of access, and marketability of title. The plaintiff's complaint, therefore, fails to make out a claim covered by the title insurance policy. “[W]hen the allegations in the underlying complaint ‘lie expressly outside the policy coverage and its purpose, the insurer is relieved of the duty to investigate’ or defend the claimant.” Herbert A. Sullivan, Inc. v. Utica Mut. Ins. Co., 439 Mass. 387, 394–395 (2003), quoting from Timpson v. Transamerica Ins. Co., 41 Mass.App.Ct. 344, 347 (1996). We need not repeat the findings and analysis set forth in a thoughtful and comprehensive memorandum and order of decision issued by the Superior Court judge. We adopt that analysis and quote pertinent parts below.
“The plaintiff's breach of contract claim fails to establish a claim upon which relief can be granted....
“[T]he underlying litigation did not involve any claims implicating title. Plaintiffs brought affirmative claims for breach of contract and breach of warranty arising out of the renovation work performed by its general contractor on the Property. These claims centered on issues of workmanship and did not involve issues of title. [Chicago Title] issued a standard policy insuring title to the Property that was being purchased and the claims arising out of the renovation work did not implicate title to the Property. As such, [Chicago Title] had no duty to pursue the claims of breach of contract and breach of warranty on the plaintiff's behalf.
“As a result of the plaintiffs' failure to make proper and timely payments on their mortgage, the plaintiffs were obligated to defend a foreclosure action brought by [the mortgagee] as a counterclaim in the underlying litigation. The foreclosure action did not implicate issues of title to the Property by way of encumbrances to title or other defects in title that would have been covered under the policy of title insurance issued by [Chicago Title]....
“The plaintiffs' inability to pay their note did not trigger coverage under the Owner's Policy. [Chicago Title] agreed to provide for the defense of its insured in litigation ‘founded upon an alleged defect, lien, encumbrance, or other matter insured against by this policy.’ The Owner's Policy did not insure the plaintiffs against any future litigation that was connected in some way with the Property. An inability to pay a mortgage as a result of a failed real estate transaction does not trigger coverage under the title insurance policy. Because there is no defect, lien or encumbrance on title, nor unmarketability of title, coverage under the Owner's Policy is not implicated and, as a matter of law, [Chicago Title] had no duty to defend or indemnify the plaintiffs for the underlying litigation.
“Because the plaintiff has failed to establish a cause of action for breach of contract, the plaintiff's claims of breach of implied covenant of good faith must also fail.”
(citations omitted).
The plaintiff argues that the trial judge based his decision on “irrelevant” documents, pleadings, and court opinions. We disagree. The trial judge squarely addressed the allegations in the complaint, drawing almost entirely on information contained within the pleadings. As for the trial judge's references to the plaintiff's prior court proceedings, a trial judge ruling on a 12(c) motion “may take judicial notice of the court's records in a related action.” Jarosz v. Palmer, 436 Mass. 526, 530 (2002). We also reject the plaintiff's contention that the trial judge ignored evidence of a “facially defective, forged deed.” Such evidence has no bearing on the underlying proceedings in this case—namely, the plaintiff's contract—based claims against the general contractor and the foreclosure action commenced by the mortgagee after the plaintiff failed to make payments according to the terms of the loan.
Judgment affirmed.