Guarantee Abstract & Title Ins. Co. v. St. Paul Fire & Marine Ins. Co., 68--130

• Citation: 216 So.2d 255
• Decision Date: 04 December 1968
• Docket Number: No. 68--130,68--130
• Parties: GUARANTEE ABSTRACT & TITLE INSURANCE COMPANY, Appellant, v. ST. PAUL FIRE AND MARINE INSURANCE COMPANY, Appellee.
• Court: Florida District Court of Appeals

Page 255

216 So.2d 255

GUARANTEE ABSTRACT & TITLE INSURANCE COMPANY, Appellant, v. ST. PAUL FIRE AND MARINE INSURANCE COMPANY, Appellee.

No. 68--130.

District Court of Appeal of Florida, Second District.

Dec. 4, 1968.

R. L. Ballou, of Law Offices of Roney & Ulmer, St. Petersburg, for appellant.

Law Offices of Richard T. Earle, Jr., St. Petersburg, for appellee.

LILES, Chief Judge.

This appeal is from a final judgment entered pursuant to motions for summary judgment filed by both appellant-Abstract Company and appellee-Insurance Company. Appellant, the plaintiff below, initiated this suit to seek declaratory relief relative to a policy of insurance.

On June 4, 1965, Oliver Mosely purchased a certain parcel of property in Pinellas County. Appellant, as agent for Louisville Title Insurance Co., caused a title insurance policy to be issued on that property to the purchaser.

From a time prior to June 1965, the St. Petersburg Water Co. owned a water transmission pipe line beneath the surface of certain land in Pinellas County, including that acquired by Mosely. The right to control this segment of property was incorporated in an easement to the Water Company recorded before Mosely's purchase. The pipe line was not visible from ground level, nor was its presence otherwise indicated except by the recorded easement.

The title insurance policy issued to Mosely failed to specifically except the easement, but did contain a provision excepting 'the rights or claims of parties other than the insured in actual possession of any or all of the property.' Mosely discovered the pipe line easement and filed a claim against Louisville Title Insurance Co. for the difference between the value of the land without the easement and with the easement. Lousville Title, seeking reimbursement in the event it were to be held liable, made a claim against appellant for its negligence in failing to except the recorded easement.

At all pertinent times, appellant Abstract Company was insured by appellee, St. Paul Fire and Marine Insurance Co., under an 'errors and omissions policy.' The Abstract Company apprised appellee of the above related facts, and demanded that it defend it against Louisville Title's claim pursuant to the errors and omissions policy. St. Paul Insurance Co., however, refused to defend on the ground that the exclusion provision excepting the rights of parties in actual possession applied to the Water Company. Appellee claimed, therefore, that Louisville Title was not liable to Mosely and that appellant was not liable to Louisville Title.

All parties agreed that $8,450 was the extent of damage suffered as a result of the easement, and Lousville Title paid that amount to Mosely. Appellant then brought suit for declaratory relief and contended that the words 'actual possession' in the exclusion clause contemplated open and obvious possession, thus rendering Louisville Title liable to Mosely and appellant liable for its negligence to Louisville Title. After both parties moved for summary judgment in the lower court, the trial judge granted appellee's motion and denied appellant's. This appeal ensued.

Under RCP 1.510(c), 31 F.S.A., a summary judgment is properly awarded where it is shown that 'there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.' We hold that appellee in the case before us was clearly not entitled to a judgment as a matter of law and, therefore, reverse.

The fundamental issue to be decided is whether the words 'actual possession' in an exclusion clause of a title insurance policy contemplate a pipe line buried under authority of a recorded easement. This issue can be resolved only by examining the intent of the parties to such a policy.

The rationale for including an actual possession exclusion in a title insurance policy stems from the fact that possession of the land is notice of an...