U.S. Bank, N.A. v. HLC Escrow, Inc. , 919 F.3d 17 ( 2019 )

United States Court of Appeals
For the First Circuit
No. 17-1121
US BANK, N.A., AS LEGAL TITLE TRUSTEE
FOR TRUMAN 2013 SC3 TITLE TRUST,
Plaintiff, Appellant,
v.
HLC ESCROW, INC.;
FIRST AMERICAN TITLE INSURANCE COMPANY,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. George Z. Singal, U.S. District Judge]
Before
Howard, Chief Judge,
Selya and Lipez, Circuit Judges.
Benjamin P. Campo, Jr., with whom Douglas McDaniel & Campo
LLC PC was on brief, for appellant.
David A. Soley, with whom Glenn Israel, James G. Monteleone,
and Bernstein Shur were on brief, for appellee First American Title
Insurance Company.
Kevin P. Polansky, with whom Christine M. Kingston and Nelson
Mullins Riley Scarborough LLP were on brief, for appellee HLC
Escrow, Inc.
March 18, 2019
LIPEZ, Circuit Judge. When Sara and Douglas Trask
refinanced their mortgage in 2007, their new mortgage incorrectly
identified a parcel of unimproved land, rather than the adjacent
parcel of improved land that encompassed their residence. The
current holder of the 2007 mortgage -- US Bank -- sued the closing
agent -- HLC Escrow, Inc. -- and the title insurer -- First
American Title Insurance Company ("First American") -- in 2016.
US Bank's complaint included causes of action for negligence and
"duty of care" against HLC Escrow, and negligence, unilateral
mistake, and violation of Maine's Unfair Claims Settlement
Practices Act ("UCSPA") against First American. The district court
dismissed the complaint, declining to apply Maine's twenty-year
statute of limitations for personal actions on certain types of
contracts and financial instruments, and further concluding that
Maine's six-year limitations period for civil actions barred the
bank's claims. See Me. Rev. Stat. Ann. tit. 14, §§ 751, 752.
We affirm the district court's judgment in substantial
part, vacating only its dismissal of US Bank's UCSPA claim against
First American. With respect to that claim, we conclude that it
was timely filed.
I.
The Trasks entered into a mortgage agreement with Sun
Mortgage New England, Inc. in February 2005. The parties agree
that the mortgage encumbered an improved parcel of land along
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Stream Road in Winterport, Maine. In April 2007, the Trasks
refinanced their mortgage with Home Loan Center Inc. d/b/a
LendingTree Loans. The property description in the 2007 mortgage
identifies a far less valuable parcel of unimproved land also along
Stream Road, and also owned by the Trasks. HLC Escrow acted as
the closing agent for the transaction, and First American insured
the title of the encumbered property. First American also supplied
the legal property description for the mortgage. Following a
series of assignments, US Bank took ownership of the 2007 mortgage
in March 2014.1
After defaulting on the 2007 mortgage, the Trasks filed
a Chapter 7 petition for bankruptcy in December 2009. Three months
later, the Trasks filed an adversary complaint against US Bank,
asking the bankruptcy court to limit US Bank's mortgage lien to
the unimproved parcel. Subsequently, US Bank filed an insurance
claim with First American. The insurance claim asserted coverage
based on the mortgage's errant identification of the unimproved
parcel. In its letter denying the insurance claim on May 10, 2010,
First American explained that the policy did not cover the improved
1 The named appellant in this case is technically "US Bank,
N.A., as Legal Title Trustee for Truman 2013 SC3 Title Trust." We
refer to appellant as "US Bank" for simplicity's sake.
Furthermore, we use the term "US Bank" to refer to appellant and
its predecessors in interest when discussing the background facts
of this case, as the transactional history of the mortgage is not
germane to this appeal.
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parcel, and insured only the parcel actually identified by the
mortgage -- that is, the unimproved parcel. US Bank filed another
insurance claim in early 2011. First American denied this second
claim in February of that year, offering the same explanation as
it did in denying the first claim.
On June 10, 2011, the bankruptcy court entered a judgment
concluding that the trustee of the Trasks' bankruptcy estate had
an interest in the improved parcel superior to US Bank's. The
Bankruptcy Appellate Panel for the First Circuit affirmed that
ruling in December 2011. See In re Trask, 462 B.R. 268 (B.A.P.
1st Cir. 2011). US Bank filed a foreclosure action on the
unimproved parcel in December 2013, obtained a favorable judgment
in December 2014, and took title to the unimproved parcel following
a public sale in April 2015. It then filed its third insurance
claim with First American in February 2016. First American denied
the claim on May 13, 2016, noting its previous denials, and
reasserting its prior interpretation of the policy.
US Bank responded to First American's latest denial by
filing suit in state court on August 9, 2016. As noted above, the
complaint alleges counts of negligence and duty of care against
HLC Escrow,2 and negligence, unilateral mistake, and violation of
2 While the issue is irrelevant to this appeal, we do not
understand how US Bank's "duty of care" claim is in any way
distinct from its negligence claim against HLC Escrow.
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the UCSPA against First American. The UCSPA claim asserts that
First American "failed to effectuate prompt, fair, and equitable
settlement" of US Bank's 2016 insurance claim, "where liability
was reasonably clear," and "knowingly misrepresented to US Bank
pertinent facts or policy provisions relating to coverage at
issue."3 The complaint does not mention US Bank's earlier-filed
insurance claims.
HLC Escrow removed the case to federal court, and both
defendants filed motions to dismiss under Federal Rule of Civil
Procedure 12(b)(6). The motions asserted, inter alia, that US
Bank's claims were time-barred by Maine's six-year statute of
limitations for civil actions. See Me. Rev. Stat. Ann. tit. 14,
§ 752. First American took the position that US Bank's claims
against it accrued no later than May 10, 2010, the date on which
it denied US Bank's initial insurance claim. Included as
attachments to First American's motion to dismiss were copies of
US Bank's 2010 claim letter, First American's letter denying that
claim, and First American's letters denying US Bank's 2011 and
2016 insurance claims. First American did not include copies of
US Bank's 2011 and 2016 claim letters.
3This terminology used in US Bank's complaint mirrors the
terms of the UCSPA. See Me. Rev. Stat. Ann. tit. 24-A, § 2436-
A(1)(A), (E).
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US Bank opposed the motions to dismiss by arguing that
Maine's twenty-year limitations period for personal actions on
certain types of contracts and financial instruments applied to
its causes of action against both defendants, making them timely.
See Me. Rev. Stat. Ann. tit. 14, § 751. As to its claims against
First American, US Bank alternatively argued that Maine's six-year
statute of limitations did not begin to run until First American
denied its 2016 insurance claim. According to US Bank, the denial
of its 2010 insurance claim did not trigger the statute of
limitations because that claim was premature. The bank did not
"experience[] damages that would demonstrate a cognizable loss"
until it took title to the unimproved parcel in April 2015,
following the foreclosure proceedings. When it then filed its
2016 insurance claim, "the scope of US Bank's damages was
realized," its insurance claim "was no longer hypothetical," and
"the remedy of payment on the policy was in place."
The district court granted the motions to dismiss. It
rejected US Bank's contention that Maine's twenty-year limitations
period applied, and found all of US Bank's claims barred by the
six-year statute of limitations. As to the bank's claims against
First American, the district court rejected US Bank's argument
that its claims did not accrue until First American denied its
2016 insurance claim. Without addressing the bank's prematurity
argument, the court reasoned that the limitations period was not
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"tolled or extended every time US Bank filed the same claim and
received a denial on the same basis from [First American]." US
Bank N.A. v. HLC Escrow Inc., No. 1:16-cv-00453, 2016 WL 7480269,
at *3 (D. Me. Dec. 29, 2016).
On appeal, US Bank contends that the district court erred
by failing to apply Maine's twenty-year statute of limitations.
It again alternatively argues that its causes of action against
First American were timely even under a six-year limitations
period.
II.
We review de novo a district court's Rule 12(b)(6)
dismissal of a complaint for failure to state a claim based on the
statute of limitations. See Santana-Castro v. Toledo-Davíla, 579
F.3d 109, 113 (1st Cir. 2009). Conducting this review requires us
to "accept as true all well-pleaded facts in the complaint and
draw all reasonable inferences in favor of the plaintiff[]."
Gargano v. Liberty Int'l Underwriters, Inc., 572 F.3d 45, 48 (1st
Cir. 2009). In addition to the complaint, we may consider
documents "incorporated into the movant's pleadings," so long as
"they are undisputed" and are "central to" the plaintiff's claims.
In re Citigroup, Inc., 535 F.3d 45, 52 (1st Cir. 2008); see also
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Ironshore Specialty Ins. Co. v. United States, 871 F.3d 131, 135
(1st Cir. 2017).4
A. Maine's Twenty-Year Statute of Limitations
Civil actions in Maine are subject to a six-year
limitations period, unless otherwise provided. See Me. Rev. Stat.
Ann. tit. 14, § 752. One exception to this rule is section 751,
title 14, of Maine Revised Statutes, which provides a twenty-year
limitations period for "personal actions on contracts or
liabilities under seal, promissory notes signed in the presence of
an attesting witness, or on the bills, notes or other evidences of
debt issued by a bank." There is no question that the 2007 mortgage
falls within the category of documents enumerated by section 751.
The issue is whether this case constitutes a "personal action[]
on" the mortgage. Me. Rev. Stat. Ann. tit. 14, § 751 (emphasis
added). US Bank contends that its case is "on" the mortgage
because its claims relate to, and revolve around, that document.
A long history of Maine case law forecloses this position.
In Young v. Weston, the plaintiff sued to enforce a
memorandum in which the defendant had promised to make payments on
a note referenced in the document. 39 Me. 492, 493-94 (1855).
The court held that the memorandum constituted a "separate promise"
4 The district court invoked this rule when it relied upon
the letters attached to First American's motion to dismiss. See
US Bank N.A., 2016 WL 7480269, at *2 n.5. US Bank does not dispute
the court's application of this rule.
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from the note itself, and therefore came within neither the "spirit
nor letter" of the twenty-year limitations provision. Id. at 495;
see also Bunker v. Ireland, 17 A. 706 (Me. 1889) (holding that a
suit against a guarantor of a note was not subject to the twenty-
year limitations period). Likewise, in Portland Savings Bank v.
Shwartz, the Maine Law Court held that an action against an
endorser to a note was not an action on the note itself, making
the twenty-year limitations period inapplicable. 196 A. 405, 406
(Me. 1938). The endorser's contract was "distinct from that of
the maker of the note," causing it to "not come within the
exception of the statute applicable to witnessed notes." Id.A more recent Law Court case similarly declined to extend
the state's twenty-year limitations period to cases that merely
relate to a mortgage. In U.S. Bank National Association v. Adams,
a bank sought to place an equitable lien on a brother's interest
in a property after his sister signed a mortgage encumbering her
jointly-held interest in the same. 102 A.3d 774, 776 (Me. 2014).
The court rejected the bank's argument that its claim was "based
on the note and mortgage" for purposes of section 751, because the
claim was "not an action to enforce the contested note." Id. at
776 n.2. Instead, the action involved an equitable claim against
the brother's interest in the property, and the brother was not a
party to the note. Id.- 9 -
These cases make plain that US Bank's claims are not
"on" the 2007 note and mortgage. Its claims arise from the
obligations created by its relationships with the closing agent
and title insurer. Those obligations surely relate to the mortgage
in some respects, but that is not enough. The district court
correctly followed over a century and a half of Maine case law
limiting the twenty-year limitations period to personal actions to
enforce qualifying instruments.
We thus affirm the district court's judgment dismissing
US Bank's claims against HLC Escrow, as US Bank does not argue
that those claims are timely under Maine's six-year statute of
limitations. This leaves only the question of whether US Bank's
claims against First American are timely under that limitations
period.
B. Maine's Six-Year Statute of Limitations
The district court treated US Bank's unilateral mistake,
negligence, and UCSPA claims against First American as a group,
and found that all three accrued, at the latest, when First
American denied US Bank's initial insurance claim on May 10, 2010
-- just more than six years before US Bank filed suit on August 9,
2016. That group approach to the timeliness issue ignored some
important differences in the causes of action.
The unilateral mistake and negligence claims are
unrelated to First American's denials of US Bank's insurance
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claims. Those two causes of action pertain to First American's
alleged provision of the incorrect property description at the
mortgage closing. Count II of US Bank's complaint asserts that
First American mistakenly provided the legal property description
for the unimproved parcel of land, while Count III alleges that
First American negligently provided that property description. On
the other hand, US Bank's UCSPA claim, set forth in Count I,
derives from First American's allegedly wrongful denial of its
2016 insurance claim. The complaint alleges that First American
"failed to effectuate prompt, fair, and equitable settlement" of
that insurance claim, "where liability was reasonably clear," and
"knowingly misrepresented to US Bank pertinent facts or policy
provisions relating to coverage at issue." As these causes of
action are based on different events, US Bank's UCSPA claim is
subject to a different statute of limitations analysis than are
its unilateral mistake and negligence claims.
1. Unilateral Mistake and Negligence
US Bank's unilateral mistake and negligence claims
accrued on the date of the mortgage closing in 2007, or -- at the
latest -- when US Bank discovered that the mortgage property
description was incorrect. The claims are untimely in either
event.
Negligence actions accrue under Maine law "'when the
plaintiff sustains harm to a protected interest,' i.e., when a
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plaintiff is 'entitled to seek judicial vindication.'" Miller v.
Miller, 167 A.3d 1252, 1256 (Me. 2017) (quoting McLaughlin v.
Superintending Sch. Comm., 832 A.2d 782, 788 (Me. 2003)). For a
limited number of tort actions, however, Maine commences the
statute of limitations period when the plaintiff discovered, or
should have discovered, her injury. See Johnston v. Dow &
Coulombe, Inc., 686 A.2d 1064, 1066 (Me. 1996). As for unilateral
mistake actions, the Law Court has yet to address whether the
limitations period runs from the time the mistake was made, or
from the time the plaintiff discovered the mistake.5
We do not need to determine whether the discovery rule
applies to unilateral mistake actions under Maine law, or whether
US Bank could somehow benefit from that rule in the negligence
context. US Bank could have discovered First American's allegedly
mistaken and negligent provision of the mortgage property
description no later than March 17, 2010, when the Trasks filed
their adversary complaint to limit US Bank's mortgage lien to the
unimproved parcel. As this date falls more than six years before
US Bank filed suit on August 9, 2016, its unilateral mistake and
5 Other jurisdictions appear to be divided on this issue. See
generally Diematic Mfg. Corp. v. Packaging Indus., Inc., 412 F.
Supp. 1367, 1373 (S.D.N.Y. 1976) (stating that under New York law,
an action based upon mistake accrues at "the time the alleged
mistake occurs"); State Dep't of Transp. v. Eighth Judicial Dist.
Court, 402 P.3d 677, 683 (Nev. 2017) (en banc) (applying the
discovery rule to a unilateral mistake action).
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negligence actions are time-barred by the six-year statute of
limitations.
2. The UCSPA
US Bank argues that the limitations period for its UCSPA
claim commenced on the day First American denied its 2016 insurance
claim because the UCSPA violation it alleges is premised on that
denial. First American, however, asserts that US Bank's 2016
insurance claim was the same, for UCSPA purposes, as the claim US
Bank submitted in May 2010. Hence, First American argues, its
denial of the earlier claim triggered the statute of limitations
-- meaning that US Bank's UCSPA cause of action, filed several
months beyond the six-year mark, is untimely.
If US Bank's 2016 insurance claim was merely a repetition
of its 2010 claim, First American would be correct. US Bank could
not extend the statute of limitations by eliciting a second denial,
years later, of the same insurance claim. See, e.g., Weaver v. N.
Eng. Mut. Life Ins. Co., 52 F. Supp. 2d 127, 130-31 (D. Me. 1999).
US Bank, however, insists that the two insurance claims are
necessarily distinct because the underlying facts had changed. In
2010, the Trasks' bankruptcy proceedings were ongoing, and US
Bank's effort to gain an interest in the improved parcel had not
yet failed. Thus, its UCSPA cause of action could not have accrued
with the 2010 claim denial, US Bank explains, because the UCSPA
violation it asserts in this litigation is First American's
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wrongful refusal to pay on a loss that US Bank had not yet
experienced in 2010. In other words, because First American had
no obligation in 2010 to indemnify US Bank for a loss -- because
the loss had not yet occurred -- US Bank could not bring a UCSPA
action alleging that the denial of its claim in 2010 was a wrongful
denial of indemnification. Hence, the 2010 claim denial could not
have started the clock on US Bank's UCSPA cause of action.6 We
agree with US Bank.
Under Maine law, an insurer does not have a duty to
indemnify its insured for a loss until the insured first incurs
the loss. See, e.g., Cambridge Mut. Fire Ins. Co. v. Perry, 692
A.2d 1388, 1391 n.3 (Me. 1997) (noting that a liability insurer's
"duty to indemnify is not determined until the liability of the
insured has been decided"); see also Osprey Landing, LLC v. First
Am. Title Ins. Co., 157 A.3d 247, 251 (Me. 2017) (concluding,
pursuant to property owner's title insurance policy, that title
insurer had no obligation to "preemptively indemnify" property
owner for a "hypothetical" loss). In cases involving a mortgagee's
title insurance policy, the mortgagee incurs a loss when "the
6 US Bank also argues that the denial of its 2010 claim did
not trigger the limitations period because that claim invoked First
American's duty to defend, while its 2016 insurance claim invoked
the insurer's duty to indemnify. Though we agree that an insurer's
refusal to defend and its refusal to indemnify are distinct events
under Maine law, see, e.g., Harlor v. Amica Mut. Ins. Co., 150
A.3d 793, 801 (Me. 2016), US Bank waived this argument by failing
to raise it before the district court.
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security for the loan proves inadequate to pay off the underlying
insured debt due to the presence of undisclosed defects." Hodas
v. First Am. Title Ins. Co., 696 A.2d 1095, 1097 (Me. 1997); see
also 11A Steven Plitt et al., Couch on Insurance § 159:6 (3d ed.
2017).7 Accordingly, a title insurer's duty to indemnify a
mortgagee does not arise until the security for the mortagee's
loan "proves inadequate." Hodas, 696 A.2d at 1097.
As described above, the security for US Bank's loan had
yet to "prove[] inadequate" when First American rejected US Bank's
2010 insurance claim. Id. If US Bank had prevailed in the ongoing
adversary proceeding with the Trasks -- i.e., if the bankruptcy
court had concluded that the mortgage encumbered the more valuable
improved parcel -- the bank's security presumably would have been
adequate to cover the Trasks' debt. US Bank thus did not incur a
loss until -- at the earliest -- the bankruptcy court rejected its
position and entered judgment finding that the bank's mortgage
encumbered only the unimproved parcel. That judgment entered on
June 10, 2011, after First American denied US Bank's 2010 insurance
claim.8
7 In contrast, a property owner's title insurance policy
"protects the value of an owner's fee interest" such that "[t]he
presence of a title defect immediately results in a loss . . .
since resale value will always reflect the cost of removing the
defect." Hodas, 696 A.2d at 1097.
8 We decide here only that US Bank's loss occurred at the
earliest when the bankruptcy court entered judgment. We do not
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This loss, subsequent to the denial of U.S. Bank's 2010
claim, thus distinguishes First American's denial of US Bank's
2016 insurance claim from its denial of the 2010 claim. In 2010,
First American could not have been expected to indemnify US Bank
for a loss, and US Bank could not have properly brought a UCSPA
action at that time based on First American's refusal to do so.
However, by the time First American denied US Bank's 2016 insurance
claim, it was established that US Bank had suffered a loss from
the mortgage's allegedly errant identification of the unimproved
parcel. US Bank could thus properly allege that First American's
refusal to provide indemnification was wrongful and violated the
UCSPA.9
We recognize that, in concluding that US Bank's UCSPA
claim could not have accrued in 2010, we have drawn upon precedent
developed in the context of contractual insurance disputes. That
precedent, however, properly informs our assessment of whether
First American's conduct constitutes an unfair claims settlement
reach US Bank's contention that its loss did not occur until it
later took possession of the unimproved parcel in April 2015.
9 The changed circumstances concerning First American's
alleged obligation to US Bank distinguish this case from those in
which the plaintiff complains about an ongoing refusal to pay
benefits. For example, in Weaver v. New England Mutual Life
Insurance Co., 52 F. Supp. 2d 127 (D. Me. 1999), cited by First
American, the court rejected the plaintiff's attempt to refresh
his claim for disability benefits simply by asserting that the
defendants "continue to refuse to pay his disability claim." Id.
at 130.
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practice in Maine. Under Maine law, "liability [could not] become
reasonably clear" as to First American's duty to indemnify US Bank
until at least 2011, see Me. Rev. Stat. Ann. tit. 24-A, § 2436-
A(1)(E), and a UCSPA cause of action based on the insurer's
unreasonable refusal to settle therefore could not accrue until
First American thereafter denied a claim from US Bank -- as it did
in 2016.10 The Maine Legislature could choose to differentiate
UCSPA causes of action from contractual insurance causes of action
and allow plaintiffs to pursue "premature" indemnification-based
UCSPA claims when an insurer first denies a claim for lack of
coverage. At present, however, we see no reason to depart from
the contractual analysis. See generally Chapman v. Standard Fire
Ins. Co., No. 1:11-cv-459, 2012 WL 3644778, at *3 (D. Me. Aug. 23,
2012) (inferring that the Maine Law Court views the UCSPA as
providing additional contractual remedies, rather than tort
remedies, citing Marquis v. Family Mut. Ins. Co., 628 A.2d 644,
652 (Me. 1993)).11
10 We need not address whether the statute of limitations for
US Bank's UCSPA misrepresentation claim also was triggered in 2016,
rather than in 2010, given our conclusion that US Bank has a UCSPA
claim that survives the motion to dismiss.
11Maine's UCSPA is derived from model legislation promulgated
by the National Association of Insurance Carriers ("NAIC"). See
NAIC, Unfair Claims Settlement Practices Act (Jan. 1997),
available at http://www.naic.org/store/free/MDL-900.pdf ("Model
UCSPA"). Courts in other states construing similar bad-faith
statutes have reached different conclusions on whether a claim
based on a failure to indemnify accrues upon an initial claim
denial, or whether it accrues after the insurer later incurs a
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To be clear, whether First American justifiably denied
US Bank's 2016 insurance claim based on the policy's lack of
coverage, or whether it has another defense to payment, are
separate questions not raised in this appeal. In First American's
motion to dismiss and in its appellate brief, the statute of
limitations was the only defense raised in support of dismissal of
US Bank's UCSPA claim. We take no view on the viability of any
other defenses going forward. We hold here only that the statute
of limitations for a Maine UCSPA cause of action alleging injury
from a wrongful denial of indemnification begins to run from the
date of denial, but only if the insurer at that time had a duty to
indemnify under Maine law. Absent such a duty, the denial cannot
be wrongful.
Accordingly, US Bank's UCSPA cause of action accrued on
May 13, 2016, when First American denied US Bank's claim seeking
indemnification for the established loss. Because that date is
within the statute of limitations, we must vacate the dismissal of
US Bank's UCSPA claim and remand for further proceedings.
contractual duty to indemnify. Compare, e.g., Adamski v. Allstate
Ins. Co., 738 A.2d 1033, 1036 (Pa. Super. Ct. 1999) (holding that
the insured could have commenced an action at any point after the
original denial of coverage), with Daugherty v. Allstate Ins. Co.,
55 P.3d 224, 228 (Colo. App. 2002) (holding that the insured's
claim for bad faith refusal to indemnify did not accrue until
judgment entered in the underlying case).
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III.
For the reasons given above, we affirm in part and vacate
in part the district court's judgment. We affirm as to the
dismissal of US Bank's claims against HLC Escrow, and its
unilateral mistake and negligence claims against First American.
We vacate the dismissal of US Bank's UCSPA claim against First
American and remand for further proceedings.
US Bank and First American shall bear their own costs on
appeal. HLC Escrow's costs shall be taxed to US Bank.
So ordered.
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