Sec. Title Guarantee Corp. of Balt. v. 915 Decatur ST NW, LLC, Civil Action No. 18-1128 (CKK)

• Court: United States District Courts. United States District Court (Columbia)
• Writing for the Court: COLLEEN KOLLAR-KOTELLY, United States District Judge
• Citation: 427 F.Supp.3d 1
• Parties: SECURITY TITLE GUARANTEE CORPORATION OF BALTIMORE, Plaintiff, v. 915 DECATUR ST NW, LLC, Defendant.
• Docket Number: Civil Action No. 18-1128 (CKK)
• Decision Date: 11 December 2019

427 F.Supp.3d 1

SECURITY TITLE GUARANTEE CORPORATION OF BALTIMORE, Plaintiff,
v.
915 DECATUR ST NW, LLC, Defendant.

Civil Action No. 18-1128 (CKK)

United States District Court, District of Columbia.

Signed December 11, 2019
As Amended March 23, 2020

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Aaron Drew Neal, Mark W. Schweitzer, McNamee, Hosea, Jernigan, Kim, Greenan & Walker, P.A., Greenbelt, MD, for Plaintiff.

Amy Elizabeth Norris, Metropolitan Washington Law Consortium, PLLC, Potomac, MD, for Defendant.

AMENDED MEMORANDUM OPINION

COLLEEN KOLLAR-KOTELLY, United States District Judge

Plaintiff The Security Title Guarantee Corporation of Baltimore ("Security Title") and Defendant 915 Decatur St. NW LLC ("Decatur") dispute whether, under a title insurance policy, Security Title must defend Decatur in a separate lawsuit brought against Decatur and other defendants in the District of Columbia Superior Court. The parties further dispute whether Security Title must indemnify Decatur for any losses stemming from that lawsuit. Pending before the Court are the parties' renewed cross-motions for summary judgment. See 915 Decatur St. NW LLC's Renewed Mot. for Summ. J. ("Decatur's Renewed Summ. J. Mot."), ECF No. 22; Pl.'s Renewed Cross-Mot. for Summ. J. and Opp'n to Def.'s Mot. for Summ. J. ("Security Title's Combined Renewed Cross-Mot. and Opp'n"), ECF No. 23.

In broad strokes, Decatur argues that the policy provisions governing Security Title's obligation to defend cover the underlying case. Security Title disagrees. It contends that the underlying litigation does not trigger its duty to defend for two reasons. First, it argues that the lawsuit does not qualify as a covered risk under the policy because the policy has a provision limiting coverage to only certain claims. The claims at issue here are not covered because Decatur has transferred its interest in the property and because the underlying losses did not occur while Decatur owned the property. Second, Security Title argues that the claims in the underlying lawsuit do not fall within the policy's coverage and/or are excluded under certain conditions in the relevant policy excepting matters created or agreed to by Decatur. Both parties' indemnification arguments hinge upon their above arguments regarding whether the underlying litigation is covered under the relevant title insurance policy.

Upon consideration of the briefing,¹ the relevant legal authorities, and the record

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as a whole, the Court GRANTS IN PART and DENIES WITHOUT PREJUDICE IN PART Security Title's motion for summary judgment and DENIES IN PART and DENIES WITHOUT PREJUDICE IN PART Decatur's motion for summary judgment. In light of these rulings, the Court DENIES AS MOOT Decatur's Motion to Expedite. See Def. 915 Decatur St. NW LLC's Mot. to Expedite Ruling, ECF No. 28.

I. BACKGROUND

For purposes of summary judgment briefing, Security Title does not dispute Decatur's identification of certain facts underlying this case. Security Title's First Combined Cross-Summ. J. Mot. and Opp'n at 2; see Security Title's Mem. in Supp. of Combined Renewed Cross-Mot. and Opp'n at 2 (incorporating prior summary judgment briefing's statement of facts). In its original summary judgment briefing, which Security Title has incorporated into its renewed motion, Security Title simply discounts those facts' materiality to the pending motions, and supplies additional documents, including the insurance policy at issue. Security Title's First Combined Cross-Summ. J. Mot. and Opp'n at 2 at 2–3. Decatur does not object to those additional documents.

Moreover, in its renewed motion, Security Title identifies a few additional facts, all of which relate to allegations in the amended complaint in the underlying litigation. Security Title's Mem. in Supp. of Combined Renewed Cross-Mot. and Opp'n at 2–3. While Decatur objects to the underlying allegations, it does not dispute that these allegations are in the amended complaint in the underlying suit. Decatur's Combined Opp'n and Reply at 2–3.

The facts relevant to the present decision are quite few. Decatur's managing member, Frank Olaitan, toured and eventually purchased real property at 2022 1st Street, NW, Washington, DC from "a woman whom he believed to be Ms. Bridget Fordham." Decatur's First Summ. J. Mot. ¶¶ 4–6, 8–12.² Although Ms. Fordham was not present at the closing, a deed transferring the property was purportedly signed by Ms. Fordham and notarized as of the date of the deed, December 7, 2016. Id. ¶¶ 12, 15; id. Ex. A ("December 7 Deed"). The deed was recorded on December 15, 2016 at 12:37 PM with the District of Columbia's Recorder of Deeds. Id. ¶ 14; id. Ex. A at 2. Upon concluding the December 7, 2016 purchase, Decatur sold the property to Claremont Management, LLC ("Claremont"), on December 8, 2016. Id. ¶ 13; id. Ex. B ("December 8 Deed"). That deed dated December 8, 2016 was also

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recorded on December 15, 2016, two minutes after the first deed at 12:39 PM. Id. ¶ 14; id. Ex. B.

Separately, Decatur entered into a title insurance policy with Security Title to cover the property. See Security Title's First Combined Cross-Summ. J. Mot. and Opp'n Ex. 2 ("Title Insurance Policy" or "Policy"), ECF No. 11-3. The Policy lists the "Date of Settlement" as December 7, 2016, and the "Date of Policy" as December 15, 2016. Id. at 7.

Then, in October 2017, Ms. Fordham filed suit against Decatur, Mr. Olaitan, Claremont, and others in the Superior Court for the District of Columbia. Decatur's First Summ. J. Mot. ¶ 18; id. Ex. F (Ms. Fordham's original complaint). Ms. Fordham alleged that her signature on the deed was forged and that the conveyance to Decatur, and consequently the conveyance to Claremont, were fraudulent. Id. ¶¶ 18–21; see generally id. Ex. F. Security Title later declined Decatur's request for legal defense in Ms. Fordham's lawsuit. Id. ¶¶ 34–36; see id. Ex. I (April 26, 2018 Letter from Security Title). Decatur and Security Title then filed separate lawsuits seeking declaratory judgments that Decatur was and was not, respectively, entitled to legal defense against Ms. Fordham under the Policy. See id. ¶¶ 37–39. At this time, both suits are pending before this Court. See 915 Decatur St NW, LLC v. Sec. Title Guarantee Corp. of Baltimore, Inc. , No. 18-cv-1569 (D.D.C.) (Kollar-Kotelly, J.) (other case related to present matter). Ms. Fordham later amended her complaint to include, among other things, a count for negligence. See Decatur's Suppl. Ex. 1 ("Fordham's Am. Compl.").

After Decatur and Security Title first moved for summary judgment in this case, the Court denied their motions without prejudice for two reasons. See November 15, 2018 Order, ECF No. 20. First, there had been developments in the underlying D.C. Superior Court case, including the filing of Ms. Fordham's Amended Complaint with new claims. Id. at 1. Second, the Court required additional briefing from the parties on a specific issue relating to the parties' dispute over whether Decatur's transfer of interest in the property meant that the Policy's coverage no longer applied. See id. at 2–3. The Court now considers the parties' additional briefing and renewed cross-motions for summary judgment.

II. LEGAL STANDARD

Summary judgment is appropriate where "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). In ruling on cross-motions for summary judgment, a court shall grant summary judgment only if one of the moving parties is entitled to judgment as a matter of law upon material facts that are not genuinely disputed. See Rhoads v. McFerran , 517 F.2d 66, 67 (2d Cir. 1975) ; Long v. Gaines , 167 F. Supp. 2d 75, 84 (D.D.C. 2001). The mere existence of some factual dispute is insufficient on its own to bar summary judgment; the dispute must pertain to a "material" fact. Fed. R. Civ. P. 56(a). Accordingly, "[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Nor may summary judgment be avoided based on just any disagreement as to the relevant facts; the dispute must be "genuine," meaning that there must be sufficient admissible evidence for a reasonable trier of fact to find for the non-movant. Id.

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In order to establish that a fact is or cannot be genuinely disputed, a party must (A) cite to specific parts of the record—including deposition testimony, documentary evidence, affidavits or declarations, or other competent evidence—in support of its position, or (B) demonstrate that the materials relied upon by the opposing party do not actually establish the absence or presence of a genuine dispute. Fed. R. Civ. P. 56(c)(1). Conclusory assertions offered without any factual basis in the record cannot create a genuine dispute sufficient to survive summary judgment. See Ass'n of Flight Attendants-CWA, AFL-CIO v. U.S. Dep't of Transp. , 564 F.3d 462, 465–66 (D.C. Cir. 2009). Moreover, where "a...