Columb v. Cox, 2020AP1593

CourtCourt of Appeals of Wisconsin
Writing for the CourtNASHOLD, J.
PartiesSteve Columb and Norb Columb, Plaintiffs, v. Gregory Cox and Katherine Cox, Defendants-Third-Party Plaintiffs-Appellants, v. Bay Title & Abstract, Inc. and Budde Fifarek, Third-Party Defendants, WFG National Title Insurance Company, Third-Party Defendant-Respondent, Peter L. Putirskis and Deborah Ann Putirskis, Third-Party Defendants-Co-Appellants.
Docket Number2020AP1593
Decision Date07 June 2022

Steve Columb and Norb Columb, Plaintiffs,
v.

Gregory Cox and Katherine Cox, Defendants-Third-Party Plaintiffs-Appellants,
v.

Bay Title & Abstract, Inc. and Budde Fifarek, Third-Party Defendants,

WFG National Title Insurance Company, Third-Party Defendant-Respondent, Peter L. Putirskis and Deborah Ann Putirskis, Third-Party Defendants-Co-Appellants.

No. 2020AP1593

Court of Appeals of Wisconsin, District III

June 7, 2022


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APPEAL from an order of the circuit court for Marinette County No. 2019CV115: JANE M. SEQUIN, Judge.

Before Stark, P.J., Hruz and Nashold, JJ.

NASHOLD, J.

¶1 This appeal relates to a dispute between neighbors-Steve and Norb Columb and Gregory and Katherine Cox-about the use and location of an easement running through the Coxes' property. The Columbs sued the Coxes for interfering with the Columbs' easement rights, and the Coxes sought coverage under their title insurance policy ("the Policy") with WFG National Title Insurance Company ("WFG"). After WFG denied the claim, the Coxes brought a third-party complaint against WFG for breach of contract. Among other parties, the Coxes also sued the sellers of the property, Peter L. and Deborah Ann Putirskis, alleging that the Puteriskises had misrepresented the easement's location. The circuit court granted WFG's motion for summary judgment and dismissed the Coxes' complaint against WFG, determining that WFG owed no coverage under the Policy. The Coxes and the Putirskises separately appeal.

¶2 We conclude that, under the circumstances of this case, the fact that WFG issued the Policy three years after its commitment to do so does not affect its ability to assert coverage defenses. We further conclude that the Policy excepts coverage for the claims at issue in this dispute. Accordingly, we affirm.

BACKGROUND

¶3 The material facts are not in dispute. The Columbs and the Coxes own parcels in Marinette County. Both parcels are located north of County

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Highway X, which runs east-west. The Coxes' property abuts County Highway X to the north. The Columbs' property lies north of the Coxes' property, with two side-by-side parcels separating the Columbs' and the Coxes' properties.

¶4 Willard DeGroff formerly owned the Columbs' property, the Coxes' property, and the two properties between them. In the mid-1990s, in four transactions, DeGroff deeded the northern portion of his property to the Columbs, the southern portion of his property to the Putirskises, and the two properties in between to other owners.[1] We refer to these deeds collectively as "the DeGroff Deeds" and to specific deeds, in chronological order, by number.

¶5 DeGroff Deed 1, for the Columbs' property, establishes an easement ("the Original Easement"). The Original Easement starts at County Highway X and runs northeast through the Putirskises' property and onto the Columbs' property, thereby providing the Columbs with access to the highway. DeGroff Deeds 2 and 3, for the properties not relevant to this appeal, convey an interest in the Original Easement. DeGroff Deed 4, for the Putirskises' property, reserves the Original Easement for the use of several parcels, including the parcel owned by the Columbs.

¶6 In 2016, the Putirskises recorded a modification of the Original Easement ("the Modification"). The Modification purports to reroute the easement's location to the east, away from the house and other buildings on the property. We refer to the easement in its purported new location as "the Modified

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Easement." The Columbs, however, did not sign the Modification and apparently never agreed to move the easement from its original location.

¶7 In January 2017, the Putirskises sold their property to the Coxes. An addendum to this deed states that the property is "subject to that ingress/egress easement set forth in [DeGroff Deed 1], as modified in [the Modification]."

¶8 In 2019, the Columbs sued the Coxes for wrongful interference with the easement, alleging that the Coxes consistently parked vehicles in or otherwise blocked the Original Easement. The Columbs alleged that the Coxes' actions began around the time of the Coxes' purchase, were ongoing, and persisted even after the Columbs, their counsel, and the Marinette County Sheriff's Department told the Coxes to stop interfering with the Columbs' use of the easement. The Columbs sought compensatory damages and an order enjoining the Coxes from interfering with their easement rights. The Coxes answered and requested an injunction prohibiting the Columbs from further trespass and a judicial determination of the location, scope, and other provisions of any easement in which the Columbs retained easement rights.

¶9 The Coxes tendered their defense of the Columbs' claims to their title insurer, WFG, which denied the claim. The Coxes then filed a third-party complaint against WFG for breach of contract. The third-party complaint also sues: (1) Bay Title & Abstract, Inc. ("Bay Title"), WFG's policy-issuing agent; (2) Budde Fifarek, a Bay Title employee who drafted the Modification for the Putirskises; and (3) the Putirskises. The Coxes' claims against these third-party defendants are not at issue in this appeal.

¶10 On WFG's motion, the circuit court bifurcated the merits and coverage determinations and stayed the underlying lawsuit. WFG moved for

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summary judgment, arguing that there was no coverage under the Policy. The court granted WFG's motion, dismissed the Coxes' claim against WFG, and dismissed WFG as a party. The Coxes and the Putirskises separately appeal. Additional facts are provided below where pertinent.

DISCUSSION

¶11 We review a circuit court's grant of summary judgment de novo, affirming when the pleadings and evidence submitted demonstrate that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law. See Wis. Stat. § 802.08(2) (2019-20)[2]; State Farm Mut. Auto. Ins. Co. v. Langridge, 2004 WI 113, ¶12, 275 Wis.2d 35, 683 N.W.2d 75. Likewise, the interpretation of an insurance policy is a question of law that we decide de novo. Langridge, 275 Wis.2d 35, ¶13.

¶12 The Coxes[3] raise two categories of argument on appeal. First, they argue that WFG cannot rely on Policy exceptions that might otherwise preclude

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coverage because WFG issued the Policy three years late. Second, they argue that the Policy itself requires WFG to defend and indemnify them in this lawsuit. We reject these arguments and conclude that the circuit court properly granted summary judgment to WFG on the coverage issue.

I. WFG's Untimely Issuance of the Policy Does Not Affect Its Coverage Obligations.

¶13 As background, WFG issued the Coxes' title insurance commitment ("the Commitment") on January 10, 2017, thirteen days before the Coxes recorded their deed.[4] It is undisputed that, through some error on WFG's part, WFG did not issue the Policy until April 2020, several months after the Coxes filed their third-party complaint against WFG. The initial issue before us is what effect, if any, the late issuance of the Policy should have on WFG's coverage obligations. In particular, as we discuss below, Schedule B of the Policy excepts coverage for disputes relating to the "rights and/or claims of others in and to," and the "terms and provisions as to the use and maintenance of," "that ingress/egress easement as set forth in [DeGroff Deeds 1-4] and as modified in [the Modification]."[5] We refer to the two Schedule B exceptions relating to the "ingress/egress easement" as "the Easement Exceptions." Before we analyze whether the Easement Exceptions

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do apply, however, we must address the Coxes' arguments that they cannot apply, as a matter of law, because the policy was issued late.

¶14 At this point, it will be helpful to discuss the effects and purposes of the title insurance policy versus the commitment, and the rights to the insured that stem from both. We do so with reference to this Policy: a standard 2006 American Land Title Association ("ALTA")[6] owner's policy.

¶15 "Title insurance is a contract of indemnity which obligates the title insurer to pay loss as defined by the policy." First Am. Title Ins. Co. v. Dahlmann, 2006 WI 65, ¶12, 291 Wis.2d 156, 715 N.W.2d 609 (citation omitted). "The purpose of title insurance is to indemnify the insured for impairment of its interest due to failure of title as guaranteed in the title insurance report." Id. (citation omitted); see also Laabs v. Chicago Title Ins. Co., 72 Wis.2d 503, 510, 241 N.W.2d 434 (1976) ("A policy of title insurance means the opinion of the company which issues it, as to the validity of the title, backed by an agreement to make that opinion good, in case it should prove to be mistaken, and loss should result in consequence to the insured." (citation omitted)); J. Bushnell Nielsen, Title Escrow Claims Guide § 9.1.1 (2021 ed.) ("The title insurance policy protects against all manner of defects or infirmities in title, and encumbrances and liens that attach to the title.").[7]

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¶16 Accordingly, the Coxes' Policy states that, "subject to the exclusions from coverage, the exceptions from coverage contained in Schedule B, and the conditions," WFG insures against "loss or damage, not exceeding the amount of insurance, sustained or incurred by the insured by reason of" ten covered risks.[8]This appeal implicates Covered Risk 2, covering losses stemming from "any defect in or lien or encumbrance on the title." Our supreme court has defined a "title defect" as "a claim or interest that is inconsistent with the title purportedly transferred," and it has classified an encumbrance (including an easement) as one type of title defect.[9] See Dahlmann, 291 Wis.2d 156, ¶¶14-15.

¶17 A title insurance policy insures title for an identified piece of land- the land described in Schedule A of the policy. Nielsen, Title Escrow Claims Guide § 9.2. A policy also...

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