Chicago Title v. 100 Investment LP

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
CHICAGO TITLE INSURANCE COMPANY, 
Plaintiff-Appellant,
v.
 No. 02-2474
100 INVESTMENT LIMITED
PARTNERSHIP,
Defendant-Appellee.

Appeal from the United States District Court
for the District of Maryland, at Baltimore.
J. Frederick Motz, District Judge.
(CA-02-1138-JFM)
Argued: December 4, 2003
Decided: January 22, 2004
Before NIEMEYER, MICHAEL, and GREGORY, Circuit Judges.
Affirmed in part and reversed in part by published opinion. Judge
Niemeyer wrote the opinion, in which Judge Michael and Judge
Gregory joined.
COUNSEL
ARGUED: Richard Eugene Hagerty, TROUTMAN SANDERS,
L.L.P., McLean, Virginia, for Appellant. James E. Carbine, JAMES
E. CARBINE, P.C., Baltimore, Maryland, for Appellee. ON BRIEF:
Cathryn A. Le, TROUTMAN SANDERS, L.L.P., McLean, Virginia,
for Appellant.
2 CHICAGO TITLE INSURANCE v. 100 INVESTMENT LIMITED
OPINION
NIEMEYER, Circuit Judge:
In this appeal, we determine whether, under Maryland law, a title
insurance company must indemnify its insured for (1) expenses
incurred by the insured to resolve a defect in title to land when the
expenses were incurred after the insured conveyed the land away; and
(2) the cost of defending an action for trespass filed after the policy
period, based on damage sustained during the policy period. The dis-
trict court entered summary judgment, holding that the insurance
company was responsible for both the expenses incurred in resolving
the defect in title and the costs of defending the trespass action.
For the reasons that follow, we reverse the district court’s ruling
that the expenses incurred by the insured in resolving the title defect
were covered, and we affirm its ruling requiring a defense of the tres-
pass action.
I
In 1986, 100 Investment Limited Partnership ("100 Investment")
assembled a 300-acre tract of land in Howard County, Maryland,
which it intended to develop for residential homes. As part of the
assemblage, 100 Investment purchased a 1.145-acre tract from Fran-
ces L. Miller and Mildred C. Miller, sisters-in-law, receiving from
them a special warranty deed dated October 14, 1986. In connection
with the 300-acre assemblage, 100 Investment purchased title insur-
ance from Safeco Title Insurance Corporation, paying a premium of
more than $7 million. The effective date of that title policy was
December 18, 1986.
In furtherance of its development efforts, 100 Investment subdi-
vided the 300-acre tract and subjected it to a "Declaration of Cove-
nants, Easements, Charges and Liens." It also deeded common areas
to the Lyndwood Association, Inc., a homeowners association. The
1.145-acre Miller tract itself became part of a conveyance that 100
Investment made to a homebuilder, NVR Homes, Inc. The deed to
NVR Homes, dated July 7, 1995, included only a special warranty —
CHICAGO TITLE INSURANCE v. 100 INVESTMENT LIMITED 3
"Grantor covenants that it will warrant specially the property hereby
granted and conveyed."1 NVR Homes ultimately conveyed the 1.145-
acre Miller tract, now subdivided, to three separate homeowners.
As it turned out, some four years before 100 Investment purchased
the 1.145-acre Miller tract, the Millers had conveyed the same prop-
erty to the Ahsan S. Khan, M.D., P.A., Profit Sharing Plan ("Khan
Profit Sharing Plan"), and in 2001, Dr. Khan conveyed the 1.145-acre
Miller tract to Meadowridge Properties, Inc. Meadowridge Properties,
in turn, conveyed the property to Courtyards at Timbers, LLC, a
developer that was also assembling property. When 100 Investment
learned in July 2001 of this competing conveyance, it repurchased the
1.145-acre Miller tract from Courtyards at Timbers for $175,000,
enabling 100 Investment then to "clean up" title to the 1.145-acre tract
that it had conveyed to NVR Homes.
Also, in March 2002, Dr. Khan commenced an action against 100
Investment for trespassing on the 1.145-acre Miller tract during the
period 1986-1995, when 100 Investment purportedly owned the tract.
100 Investment notified Chicago Title Insurance Company, the
successor to Safeco Title Insurance Corporation, of the double con-
veyance and requested that Chicago Title indemnify 100 Investment
for the $175,000 that it paid to repurchase the 1.145-acre Miller tract,
plus the costs of reacquisition. In addition, shortly after Dr. Khan
commenced the trespass action, 100 Investment requested that Chi-
cago Title defend it in that litigation. Chicago Title denied both
requests, stating that when 100 Investment conveyed the 1.145-acre
Miller tract to NVR Homes in July 1995, its coverage with respect to
that property ended.
Chicago Title then commenced this action for a declaratory judg-
ment that its coverage determinations were correct. 100 Investment
filed a counterclaim for a determination that it was covered and for
damages, with respect to both the reacquisition of the 1.145-acre Mil-
1
A covenant of special warranty protects the grantee against any defect
in title created by the grantor but not against any defect created by the
grantor’s predecessors. Kendall v. Rogers, 31 A.2d 312, 314 (Md. 1943);
see also Md. Code Ann. Real Prop. § 2-106.
4 CHICAGO TITLE INSURANCE v. 100 INVESTMENT LIMITED
ler tract and the defense of the Khan litigation. The parties stipulated
to the operative facts, and the district court decided the case on cross-
motions for summary judgment. In entering judgment in favor of 100
Investment, the district court concluded that Chicago Title was obli-
gated both to indemnify 100 Investment for the expenses of reacquir-
ing the 1.145-acre Miller tract and to provide 100 Investment with a
defense in the Khan litigation. The court entered a money judgment
in favor of 100 Investment in the amount of $201,744.37 for the cost
of acquiring the 1.145-acre Miller tract and $64,123.29 for attorneys
fees incurred in defending the Khan litigation, plus any additional
expenses that 100 Investment might incur in that litigation.
From the district court’s judgment, Chicago Title filed this appeal.
II
Chicago Title argues that because 100 Investment "completely dis-
posed of any purported interest 100 Investment had in the Disputed
Tract, 100 Investment was no longer covered under the General State-
ment of Coverage" contained in the title insurance policy. Chicago
Title also argues that because the deed by which 100 Investment con-
veyed the disputed trust to NVR Homes did not contain a warranty
of title, coverage terminated in 1995 when the tract was conveyed.
100 Investment contends that under the terms of the title insurance
policy, so long as 100 Investment owned any interest in the "land,"
defined by the policy to comprise the 300-acre assemblage, coverage
continued after 100 Investment’s conveyance of the Miller tract to
NVR Homes. 100 Investment continued to own 12 acres of the 300-
acre tract, so in its view, it was still covered under the policy. Alterna-
tively, 100 Investment contends that coverage continued after the Mil-
ler tract conveyance because 100 Investment continued to have
warranty obligations in connection with the Miller tract. These obliga-
tions arose, according to 100 Investment, when (1) it subdivided the
property and certified the plat; (2) it imposed the Declaration of Cov-
enants on the 300-acre assemblage, stating that 100 Investment was
"the owner of all [the] land"; and (3) it represented to the homeowners
association in its conveyance of common areas that it had effectively
subdivided the property and imposed restrictions on "all of [the] real
property in [the assemblage]." The representations made in those doc-
CHICAGO TITLE INSURANCE v. 100 INVESTMENT LIMITED 5
uments were, it argues, "covenants of warranty" that imposed on 100
Investment continuing obligations after its conveyance to NVR
Homes — obligations for which it was covered by the policy.
Our resolution of these coverage issues is governed by the contrac-
tual terms contained in the insurance policy. Under Maryland law,
which applies in this case based on diversity jurisdiction, insurance
policies are to be construed as are any other contracts. See Catalina
Enterprises, Inc. Pension Trust v. Hartford Fire Ins. Co., 67 F.3d 63,
65 (4th Cir. 1995). Accordingly, courts applying Maryland law to
insurance contracts must, as with any other contract, "ascertain and
give effect to the intentions of the parties at the time of contracting."
Id.
By its terms, the title insurance policy in this case insured 100
Investment "against loss or damage . . . sustained or incurred by the
insured by reason of [t]itle to the estate or interest described in Sched-
ule A [a fee simple interest in the 300-acre assemblage] being
invested otherwise then as stated therein." The policy states that cov-
erage is subject to the exclusions, exceptions, conditions, and stipula-
tions contained in it. One of the "Conditions and Stipulations" in the
policy provided that coverage would continue "as long as [the]
insured retains an estate or interest in the land . . . or so long as such
insured shall have liability by reason of covenants of warranty made
by such insured in any transfer or conveyance of such estate or inter-
est." In short, the policy provided coverage for as long as the insured
"retain[ed] an estate or interest in the land," and the coverage
extended for as long as the insured had "liability by reason of cove-
nants of warranty" given in the transfer of the land.
A natural reading of this policy language evinces the intent of the
parties to limit the scope of title protection to the period running from
the effective date of the policy until the insured conveys away its
interest in the land, unless, in the conveyance, the insured gives war-
ranties to the grantee. If the insured does give a warranty to the
grantee, coverage extends to protect the insured’s obligation under
that warranty. But if it does not, then title insurance for that land ends,
and any risk of loss for defective title becomes the problem of the
new owner.
6 CHICAGO TITLE INSURANCE v. 100 INVESTMENT LIMITED
The allocation of risk by this agreement gives title insurance cover-
age to the insured during the period when the insured purportedly
owns the property, when most of the adverse consequences due to a
defective title would occur. If a preexisting defect in title were to
remain after the insured conveyed the land, the risk inherent in that
defect would pass to the purchaser and the insured would no longer
have risk, nor coverage. Of course, if the insured were to warrant the
property against title defects, then the insured would be retaining the
risk of a defective title, and coverage would continue for that risk.
Thus, if the conveyance were accomplished by a deed containing a
special warranty, the insured would be conveying no more than what
it received from its grantor, and coverage would end with the convey-
ance.2
In the circumstances of this case, 100 Investment purchased the
1.145-acre Miller tract with a defective title. When it conveyed that
tract to NVR Homes in July 1995, it passed the defective title to NVR
Homes, and it did not, in that conveyance, warrant that it had good
title or that title was free from defects. It gave a special warranty,
promising only that 100 Investment had not itself created any defect
in title — a warranty whose breach would be specifically excluded
from coverage. At the point of conveyance to NVR Homes, any pre-
existing defect in title became NVR Homes’ problem, and NVR
Homes would have to obtain its own title insurance to protect itself
from any problem that might be caused by that defect. See Gebhardt
Family Investments, L.L.C. v. Nations Title Ins. Co. of N.Y., Inc., 752
A.2d 1222, 1227 (Md. Ct. Spec. App. 2000). Thus, when 100 Invest-
ment undertook to correct the preexisting defect in title to the 1.145-
acre Miller tract after that tract had been conveyed to NVR Homes,
100 Investment was doing more than what it promised in its deed, and
therefore it was incurring expenses that were not covered by the title
insurance policy.
100 Investment argues that the coverage limitation should not
apply in this case. It reasons that by the language of the policy, cover-
2
Breach of a special warranty would not be covered under the coverage
extension, as the policy excluded "[d]efects, liens, encumbrances,
adverse claims, or other matters . . . attaching or created subsequent to"
the date the policy went into effect.
CHICAGO TITLE INSURANCE v. 100 INVESTMENT LIMITED 7
age continues in force "so long as such insured retains an estate or
interest in the land." Because 100 Investment retained "land," specifi-
cally 12 acres of the 300-acre assemblage, even after it conveyed the
1.145-acre Miller tract, coverage continued with respect to the entire
300-acre assemblage. We find this argument unpersuasive. If the pol-
icy language were to be read in such a mechanical way, it could just
as easily be construed to mean that because the term "land" referred
to the unreduced 300-acre assemblage, once 100 Investment sold a
single one-acre parcel of the 300-acre assemblage, it would therefore
no longer have retained "an estate or interest in the land," defined to
be the 300-acre assemblage. Accordingly, it would lose coverage for
the entire 300-acre assemblage the day it sold the first one-acre par-
cel. After all, the 299 acres would not, under this method of interpre-
tation, constitute "land" if it is to be defined as the entire 300-acre
assemblage. This mechanical reading, of course, would reach an
absurd result, but no more so than the reading suggested by 100
Investment. As we have noted, "[i]t is axiomatic under Maryland law
that a court should avoid reading a contract in a way that produces an
absurd result, especially when a reasonable interpretation is avail-
able." Catalina Enterprises, 67 F.3d at 66 (citing Ensor v. Wehland,
221 A.2d 699, 702 (1966)). Such a reasonable interpretation is avail-
able here. Based on the two disjunctive conditions for continued cov-
erage — (1) ownership or (2) continued liability through covenants
of warranty — the parties intended to extend coverage during owner-
ship and thereafter only to the extent that the insured bore the continu-
ing risk of a defect in title. Unless 100 Investment gave a general
warranty of title when it conveyed the 1.145-acre Miller tract to NVR
Homes, it was no longer responsible for a preexisting title defect in
the Miller tract when it conveyed that property to NVR Homes. Stated
in the contractual terms of the policy, when 100 Investment conveyed
the 1.145-acre Miller tract to NVR Homes, it no longer held "an
estate or interest in the land," and it did not convey the tract with a
warranty of title. Under this interpretation, which we find reasonable,
100 Investment would, of course, continue to have title protection for
the 12 acres that it still owned.
Finally, 100 Investment argues that it did, in effect, give covenants
of warranty when it conveyed the 1.145-acre Miller tract because its
conveyance to NVR Homes was subject to (1) a certificate given to
Howard County that 100 Investment had effectively laid out its plan
8 CHICAGO TITLE INSURANCE v. 100 INVESTMENT LIMITED
for subdividing the 300-acre assemblage, including the 1.145-acre
Miller tract; (2) the Declaration of Covenants imposing restrictions on
all of the land; and (3) the deed for common areas granted to the
homeowners association. But none of these documents contains any
language warranting title to the 1.145-acre Miller tract against actions
taken by previous owners of the tract, nor do they include the statu-
tory language that Maryland law sets out as an available shortcut for
creating a general warranty. See Md. Code Ann. Real Prop. §§ 2-105
to 2-112. The most that 100 Investment can argue is that it repre-
sented generally that it was the "owner" of the 300-acre tract that
included the 1.145-acre Miller tract. To infer from this language,
however, that 100 Investment warranted the title of the 1.145-acre
Miller tract in its conveyance to NVR Homes would be exactly the
kind of implied warranty of title that Maryland law refuses unequivo-
cally to recognize. See id. § 2-115.
In sum, 100 Investment’s conveyance of the 1.145-acre Miller tract
in July 1995 terminated any insurance coverage as to defects in title
to that tract because the conveyance ended 100 Investment’s "estate
or interest" in that tract and because 100 Investment did not give a
general warranty of title. Accordingly, Chicago Title is not responsi-
ble for the expenses incurred by 100 Investment six years later, when
it volunteered to resolve a preexisting defect in title to the 1.145-acre
Miller tract by repurchasing that tract and reconveying it to NVR
Homes and its purchasers. In this respect, we reverse the contrary
conclusion reached by the district court.
III
Chicago Title also contends that the termination of coverage in
1995 for the 1.145-acre Miller tract likewise ended 100 Investment’s
coverage for the defense of the Khan litigation. The complaint in that
litigation was filed in 2002, years after the conveyance of the 1.145-
acre Miller tract.
100 Investment argues that although the Khan litigation was filed
in 2002, the damage for which the claims were asserted arose because
of the defective title to the 1.145-acre Miller tract during the period
before 100 Investment conveyed the tract to NVR Homes. Thus, it
contends that even though the claim was made after the termination
CHICAGO TITLE INSURANCE v. 100 INVESTMENT LIMITED 9
of coverage in 1995, the claim occurred before that date, requiring
Chicago Title to provide a defense.
We agree with 100 Investment. Insofar as the basis of the Khan liti-
gation was a dispute over title to the 1.145-acre Miller tract while 100
Investment was still the purported owner of the tract, the policy cov-
ers the loss or damage. The policy provides that it insures against any
"loss or damage . . . and costs, attorneys’ fees and expenses which
[100 Investment] may become obligated to pay" during the policy
period because of a title defect.
Chicago Title argues that while 100 Investment may have been
insured during the period when 100 Investment purportedly owned
the 1.145-acre Miller tract, after it conveyed the tract to NVR Homes,
it was no longer insured for that tract. Accordingly, it argues, a claim
made in 2002 for damage sustained during the policy period must be
denied. We find this argument inconsistent with the language of the
policy.
There is no language in the policy identifying it as a "claims-made"
policy, covering an insured only for claims that are asserted during
the policy period. To the contrary, the language of the policy does not
refer to claims, but rather to loss or damage. The insuring language
provides that Chicago Title "insures, as of [December 18, 1986],
against loss or damage . . . which [100 Investment] may become obli-
gated to pay hereunder" (emphasis added). The policy, rather than
providing insurance for any "claim" asserted during the policy period,
provides that it covers any "loss or damage" during the policy period.
In this case, the policy period for the 1.145-acre Miller tract was from
December 18, 1986 until July 7, 1995, and the loss or damage alleged
in the Khan litigation occurred during that period.
Accordingly, we affirm the district court’s rulings relating to Chi-
cago Title’s obligations to provide 100 Investment a defense in the
Khan litigation.
IV
In summary, we reverse the district court’s ruling that Chicago
Title is obligated to indemnify 100 Investment for the expenses it
10 CHICAGO TITLE INSURANCE v. 100 INVESTMENT LIMITED
incurred in resolving the defect in title to the 1.145-acre Miller tract,
and we affirm the district court’s ruling that Chicago Title had a duty
to provide a defense to 100 Investment in the trespass suit brought by
the Khan Profit Sharing Plan.
AFFIRMED IN PART AND REVERSED IN PART