Shotwell v. Transamerica Title Ins. Co., 1953--II
| Decision Date | 29 December 1976 |
| Docket Number | No. 1953--II,1953--II |
| Citation | 16 Wn.App. 627,558 P.2d 1359 |
| Parties | Jonathan G. SHOTWELL and Candace Shotwell, his wife, Appellants, v. TRANSAMERICA TITLE INSURANCE COMPANY, Respondent. |
| Court | Washington Court of Appeals |
David Johnson, Richard J. Niichel, Niichel & Rutz, P.S., Port Angeles, for appellants.
S. Brooke Taylor, Port Angeles, for respondent.
Plaintiffs, Jonathan G. Shotwell and Candace Shotwell, husband and wife, seek to recover damages from defendant title insurance company for breach of the provisions of a title insurance policy. The trial court entered findings of fact and dismissed plaintiffs' complaint. Plaintiffs have appealed to this court.
The trial court's findings of fact are not challenged. Essentially, they provide:
3.
That the Plaintiffs own certain real property located in Clallam County and legally described as follows:
The Northwest Quarter of the Northwest Quarter, Section 34, Government Lot 4, Section 27; Government Lot 1, Section 28; all in Township 31 North, Range 7 West W.M., EXCEPT right of way for existing roads. Situated in Clallam County, State of Washington.
4.
That on or about July 19, 1974, Defendants entered into a contract with the Plaintiffs whereby the Defendants agreed to insure Plaintiff's title to said real property in the amount of Eighty-Five Thousand Dollars ($85,000.00) against defects and liens or encumbrances on said title, with certain specified exceptions.
5.
That prior to the issuance of said policy of title insurance, the Defendant issued to the Plaintiffs a preliminary commitment for title insurance. That both the preliminary commitment and the title insurance policy itself Listed the following exception under SCHEDULE B,
6.
That a Court Decree in Clallam County v. Robinson, et al., Clallam County cause No. 9075, quieted title in Clallam County to a forty foot (40 ) wide strip of land, which runs through the Plaintiffs' property from the west boundary to the west boundary of the Elwha River for the purposes of a public road.
7.
That at the time of the Plaintiff's purchase of the subject property, and the issuance of the title insurance policy by the Defendant, there was in existence on and across the Plaintiff's property, a road varying in width from 10 to 15 feet gunerally lying within the said forty foot (40 ) wide right of way, a road, the existence of which was obvious and conspicuous which terminated westerly of the Elwha River at least 200 feet.
8.
That at the time of the Plaintiff's purchase of the subject property, the Plaintiffs were aware of the existence of said road on their property, were also aware of the existence of two (2) gates on or across said road owned by the County of Clallam, and were also aware of the existence of a dike constructed by the County of Clallam and beginning approximately at the terminus of said existing road and located between the terminus of the road and the west bank of the Elwha River.
9.
That the Plaintiff Jonathan G. Shotwell is a man of above average intelligence who is involved in the road construction business and has considerable experience in matters involving real estate, roads, easements and rights of way. At the time of the purchase the Plaintiffs were not aware of the existence of Clallam County Cause No. 9075.
(Emphasis added.)
Not included within the trial court's findings, but nevertheless uncontroverted as a fact, is the 'General Exceptions' clause which excepts policy coverage for:
Encroachments or questions of location, boundary and area, which an accurate survey may disclose; Public or private Easements, streets, roads, alleys or highways, Unless disclosed of record by recorded Plat or conveyance, or Decree of a Court of record; rights or claims of persons in possession, or claiming to be in possession, not disclosed by the public records; . . .
(Emphasis added.)
Further, the following condition and stipulation is expressly set forth in the policy:
All actions or proceedings against the Company must be based on the provisions of this policy. Any other action or actions or rights of action that the insured may have or may bring against the Company with respect to services rendered in connection with the issuance of this policy, are merged herein and shall be enforceable only under the terms, conditions and limitations of this policy.
We note, initially, that both the title policy and the plaintiffs' deed of conveyance specifically except 'right of way for existing roads.' Further, when plaintiffs purchased their property...
To continue reading
Request your trial
-
Walker Rogge, Inc. v. Chelsea Title & Guar. Co.
...found a duty to search and disclose that arose by implication from the nature of the policy, Shotwell v. Transamerica Title Ins. Co., 16 Wash.App. 627, 631, 558 P.2d 1359, 1361 (1976), on appeal the Washington Supreme Court expressly reserved the question of the existence of such a duty; 91......
-
Shotwell v. Transamerica Title Ins. Co.
...Justice. Petitioner Transamerica Title Insurance Co. seeks review of the Court of Appeals decision in Shotwell v. Transamerica Title Ins. Co., 16 Wash.App. 627, 558 P.2d 1359 (1976). We affirm the Court of Appeals, but on narrower In 1974 respondents Shotwell purchased unimproved property b......
-
L. Smirlock Realty Corp. v. Title Guarantee Co.
...search. (McLaughlin v. Attorneys' Tit. Guar. Fund, 61 Ill.App.3d 911, 18 Ill.Dec. 891, 378 N.E.2d 355; Shotwell v. Transamerica Tit. Ins. Co., 16 Wash.App. 627, 628-631, 558 P.2d 1359, affd. 91 Wash.2d 161, 588 P.2d 208; see 9 Appleman, Insurance Law and Practice, § 5213.) This duty may not......
-
Rooms with a View v. Privat Nat'l Mort.
...company and held not liable for title defects unless they assumed responsibility for searching title); Shotwell v. Transamerica Title Ins. Co., 558 P.2d 1359, 1361 (Wash. Ct. App. 1976) (title insurance company called both title company and title insurance company); J.H. Trisdale, Inc. v. S......
-
Washington Title Insurers' Duty to Search and Disclose
...county right-of-way across plaintiffs' property." Brief of Appellants at 2, Shotwell v. Transamerica Title Ins. Co., 16 Wash. App. 627, 558 P.2d 1359 (1976). But plaintiffs-appellants' reply brief states that "the marketability of that portion of their [plaintiffs'] property is seriously im......