Steve Columb v. Gregory Cox

2022 WI App 32COURT OF APPEALS OF WISCONSIN
PUBLISHED OPINION
Case No.: 2020AP1593
†Petitions for Review filed
Complete Title of Case:
STEVE COLUMB AND NORB COLUMB,
PLAINTIFFS,
V.
GREGORY COX AND KATHERINE COX,
DEFENDANTS-THIRD-PARTY
PLAINTIFFS-APPELLANTS,†
V.
BAY TITLE & ABSTRACT, INC. AND BUDDE FIFAREK,
THIRD-PARTY DEFENDANTS,
WFG NATIONAL TITLE INSURANCE COMPANY,
THIRD-PARTY DEFENDANT-RESPONDENT,
PETER L. PUTIRSKIS AND DEBORAH ANN PUTIRSKIS,
THIRD-PARTY DEFENDANTS-CO-APPELLANTS.†
Opinion Filed: June 7, 2022
Submitted on Briefs: June 8, 2021
JUDGES: Stark, P.J., Hruz and Nashold, JJ.
Concurred:
Dissented:
Appellant
ATTORNEYS: On behalf of the defendants-third-party plaintiffs-appellants, the cause
was submitted on the briefs of Brian T. Flood of Gerbers Law, S.C.,
Green Bay.
On behalf of the third-party defendants-co-appellants, the cause was
submitted on the briefs of George Burnett of Conway, Olejniczak &
Jerry, S.C., Green Bay.
Respondent
ATTORNEYS: On behalf of the third-party defendant-respondent, the cause was
submitted on the brief of Bridget M. Hubing and Malinda J. Eskra of
Reinhart Boerner Van Deuren s.c., Waukesha.
2
2022 WI App 32COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
June 7, 2022
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10 and
RULE 809.62.
Appeal No. 2020AP1593 Cir. Ct. No. 2019CV115
STATE OF WISCONSIN IN COURT OF APPEALS
STEVE COLUMB AND NORB COLUMB,
PLAINTIFFS,
V.
GREGORY COX AND KATHERINE COX,
DEFENDANTS-THIRD-PARTY
PLAINTIFFS-APPELLANTS,
V.
BAY TITLE & ABSTRACT, INC. AND BUDDE FIFAREK,
THIRD-PARTY DEFENDANTS,
WFG NATIONAL TITLE INSURANCE COMPANY,
THIRD-PARTY DEFENDANT-RESPONDENT,
PETER L. PUTIRSKIS AND DEBORAH ANN PUTIRSKIS,
THIRD-PARTY DEFENDANTS-CO-APPELLANTS.
No. 2020AP1593
APPEAL from an order of the circuit court for Marinette County:
JANE M. SEQUIN, Judge. Affirmed.
Before Stark, P.J., Hruz and Nashold, JJ.
¶1 NASHOLD, J. This appeal relates to a dispute between neighbors—
Steve and Norb Columb and Gregory and Katherine Cox—about the use and
location of an easement running through the Coxes’ property. The Columbs sued
the Coxes for interfering with the Columbs’ easement rights, and the Coxes sought
coverage under their title insurance policy (“the Policy”) with WFG National Title
Insurance Company (“WFG”). After WFG denied the claim, the Coxes brought a
third-party complaint against WFG for breach of contract. Among other parties, the
Coxes also sued the sellers of the property, Peter L. and Deborah Ann Putirskis,
alleging that the Puteriskises had misrepresented the easement’s location. The
circuit court granted WFG’s motion for summary judgment and dismissed the
Coxes’ complaint against WFG, determining that WFG owed no coverage under the
Policy. The Coxes and the Putirskises separately appeal.
¶2 We conclude that, under the circumstances of this case, the fact that
WFG issued the Policy three years after its commitment to do so does not affect its
ability to assert coverage defenses. We further conclude that the Policy excepts
coverage for the claims at issue in this dispute. Accordingly, we affirm.
BACKGROUND
¶3 The material facts are not in dispute. The Columbs and the Coxes
own parcels in Marinette County. Both parcels are located north of County
Highway X, which runs east-west. The Coxes’ property abuts County Highway X
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No. 2020AP1593
to the north. The Columbs’ property lies north of the Coxes’ property, with two
side-by-side parcels separating the Columbs’ and the Coxes’ properties.
¶4 Willard DeGroff formerly owned the Columbs’ property, the Coxes’
property, and the two properties between them. In the mid-1990s, in four
transactions, DeGroff deeded the northern portion of his property to the Columbs,
the southern portion of his property to the Putirskises, and the two properties in
between to other owners.1 We refer to these deeds collectively as “the DeGroff
Deeds” and to specific deeds, in chronological order, by number.
¶5 DeGroff Deed 1, for the Columbs’ property, establishes an easement
(“the Original Easement”). The Original Easement starts at County Highway X and
runs northeast through the Putirskises’ property and onto the Columbs’ property,
thereby providing the Columbs with access to the highway. DeGroff Deeds 2 and
3, for the properties not relevant to this appeal, convey an interest in the Original
Easement. DeGroff Deed 4, for the Putirskises’ property, reserves the Original
Easement for the use of several parcels, including the parcel owned by the Columbs.
¶6 In 2016, the Putirskises recorded a modification of the Original
Easement (“the Modification”). The Modification purports to reroute the
easement’s location to the east, away from the house and other buildings on the
property. We refer to the easement in its purported new location as “the Modified
Easement.” The Columbs, however, did not sign the Modification and apparently
never agreed to move the easement from its original location.
1
The owners of the properties between the Coxes’ and the Columbs’ properties
are: (1) Norb Columb; and (2) Norb and Dennis Columb, as joint tenants. Norb Columb, as one
of the plaintiffs in this suit, is not asserting any claims as the owner of either of these other
properties.
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No. 2020AP1593
¶7 In January 2017, the Putirskises sold their property to the Coxes. An
addendum to this deed states that the property is “subject to that ingress/egress
easement set forth in [DeGroff Deed 1], as modified in [the Modification].”
¶8 In 2019, the Columbs sued the Coxes for wrongful interference with
the easement, alleging that the Coxes consistently parked vehicles in or otherwise
blocked the Original Easement. The Columbs alleged that the Coxes’ actions began
around the time of the Coxes’ purchase, were ongoing, and persisted even after the
Columbs, their counsel, and the Marinette County Sheriff’s Department told the
Coxes to stop interfering with the Columbs’ use of the easement. The Columbs
sought compensatory damages and an order enjoining the Coxes from interfering
with their easement rights. The Coxes answered and requested an injunction
prohibiting the Columbs from further trespass and a judicial determination of the
location, scope, and other provisions of any easement in which the Columbs retained
easement rights.
¶9 The Coxes tendered their defense of the Columbs’ claims to their title
insurer, WFG, which denied the claim. The Coxes then filed a third-party complaint
against WFG for breach of contract. The third-party complaint also sues: (1) Bay
Title & Abstract, Inc. (“Bay Title”), WFG’s policy-issuing agent; (2) Budde Fifarek,
a Bay Title employee who drafted the Modification for the Putirskises; and (3) the
Putirskises. The Coxes’ claims against these third-party defendants are not at issue
in this appeal.
¶10 On WFG’s motion, the circuit court bifurcated the merits and
coverage determinations and stayed the underlying lawsuit. WFG moved for
summary judgment, arguing that there was no coverage under the Policy. The court
granted WFG’s motion, dismissed the Coxes’ claim against WFG, and dismissed
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No. 2020AP1593
WFG as a party. The Coxes and the Putirskises separately appeal. Additional facts
are provided below where pertinent.
DISCUSSION
¶11 We review a circuit court’s grant of summary judgment de novo,
affirming when the pleadings and evidence submitted demonstrate that there is no
genuine issue of material fact and that the movant is entitled to judgment as a matter
of law. See WIS. STAT. § 802.08(2) (2019-20)2; State Farm Mut. Auto. Ins. Co. v.
Langridge, 2004 WI 113, ¶12, 275 Wis. 2d 35, 683 N.W.2d 75. Likewise, the
interpretation of an insurance policy is a question of law that we decide de novo.
Langridge, 275 Wis. 2d 35, ¶13.
¶12 The Coxes3 raise two categories of argument on appeal. First, they
argue that WFG cannot rely on Policy exceptions that might otherwise preclude
coverage because WFG issued the Policy three years late. Second, they argue that
2
All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise
noted.
3
The Coxes and the Putirskises submitted separate briefing, but their arguments largely
overlap. For ease of reading, we refer to the Coxes as raising all of the arguments made in either
the Coxes’ or the Putirskises’ briefing.
Relatedly, WFG argues that “the Putirskises have no right to appeal the circuit court’s
decision” because “only the Coxes are in privity of contract with WFG.” This argument confuses
the Putirskises’ contractual rights, if any, with the Putirskises’ standing to appeal as aggrieved
parties. See Koller v. Liberty Mut. Ins. Co., 190 Wis. 2d 263, 266, 526 N.W.2d 799 (Ct. App.
1994) (“The right to appeal is limited to parties aggrieved in some appreciable manner by the
judgment…. A person is aggrieved if the judgment bears directly and injuriously upon his or her
interests.” (citation omitted)). WFG does not engage with the standard for determining whether an
appellant is an aggrieved party. Accordingly, we do not address this argument. See State v. Pettit,
171 Wis. 2d 627, 646, 492 N.W.2d 633 (Ct. App. 1992) (we may decline to review issues
inadequately briefed or unsupported by legal authority).
5
No. 2020AP1593
the Policy itself requires WFG to defend and indemnify them in this lawsuit. We
reject these arguments and conclude that the circuit court properly granted summary
judgment to WFG on the coverage issue.
I. WFG’s Untimely Issuance of the Policy Does Not
Affect Its Coverage Obligations.
¶13 As background, WFG issued the Coxes’ title insurance commitment
(“the Commitment”) on January 10, 2017, thirteen days before the Coxes recorded
their deed.4 It is undisputed that, through some error on WFG’s part, WFG did not
issue the Policy until April 2020, several months after the Coxes filed their third-
party complaint against WFG. The initial issue before us is what effect, if any, the
late issuance of the Policy should have on WFG’s coverage obligations. In
particular, as we discuss below, Schedule B of the Policy excepts coverage for
disputes relating to the “rights and/or claims of others in and to,” and the “terms and
provisions as to the use and maintenance of,” “that ingress/egress easement as set
forth in [DeGroff Deeds 1-4] and as modified in [the Modification].”5 We refer to
the two Schedule B exceptions relating to the “ingress/egress easement” as “the
Easement Exceptions.” Before we analyze whether the Easement Exceptions do
4
For ease of reading, we refer to WFG (and not its agent, Bay Title) as issuing the
Commitment and the Policy.
5
Specifically, these exceptions refer to “that ingress/egress easement … as modified in
Doc. No. 810096.” For the majority of this decision, we assume that “Doc. No. 810096” is the
Modification (i.e., we treat these exceptions as referencing the Modification). We address in
¶¶38-39 of this decision the Coxes’ argument that these exceptions should not apply because WFG
mistakenly referenced the wrong document number. (The correct document number ends with a 4,
not a 6.)
To avoid unnecessary distraction to the reader, throughout this decision we omit some
capitalization where quoting from the Commitment and the Policy.
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No. 2020AP1593
apply, however, we must address the Coxes’ arguments that they cannot apply, as a
matter of law, because the policy was issued late.
¶14 At this point, it will be helpful to discuss the effects and purposes of
the title insurance policy versus the commitment, and the rights to the insured that
stem from both. We do so with reference to this Policy: a standard 2006 American
Land Title Association (“ALTA”)6 owner’s policy.
¶15 “Title insurance is a contract of indemnity which obligates the title
insurer to pay loss as defined by the policy.” First Am. Title Ins. Co. v. Dahlmann,
2006 WI 65, ¶12, 291 Wis. 2d 156, 715 N.W.2d 609 (citation omitted). “The
purpose of title insurance is to indemnify the insured for impairment of its interest
due to failure of title as guaranteed in the title insurance report.” Id. (citation
omitted); see also Laabs v. Chicago Title Ins. Co., 72 Wis. 2d 503, 510, 241
N.W.2d 434 (1976) (“A policy of title insurance means the opinion of the company
which issues it, as to the validity of the title, backed by an agreement to make that
opinion good, in case it should prove to be mistaken, and loss should result in
consequence to the insured.” (citation omitted)); J. BUSHNELL NIELSEN, TITLE
ESCROW CLAIMS GUIDE § 9.1.1 (2021 ed.) (“The title insurance policy protects
6
“The American Land Title Association, founded in 1907, is the national trade association
representing the title insurance industry.” First Am. Title Ins. Co. v. Dahlmann, 2006 WI 65, ¶26
n.13, 291 Wis. 2d 156, 715 N.W.2d 609.
7
No. 2020AP1593
against all manner of defects or infirmities in title, and encumbrances and liens that
attach to the title.”).7
¶16 Accordingly, the Coxes’ Policy states that, “subject to the exclusions
from coverage, the exceptions from coverage contained in Schedule B, and the
conditions,” WFG insures against “loss or damage, not exceeding the amount of
insurance, sustained or incurred by the insured by reason of” ten covered risks. 8
This appeal implicates Covered Risk 2, covering losses stemming from “any defect
in or lien or encumbrance on the title.” Our supreme court has defined a “title
defect” as “a claim or interest that is inconsistent with the title purportedly
transferred,” and it has classified an encumbrance (including an easement) as one
type of title defect.9 See Dahlmann, 291 Wis. 2d 156, ¶¶14-15.
7
In this decision, we rely extensively on J. BUSHNELL NIELSEN, TITLE ESCROW CLAIMS
GUIDE (2021 ed.), excerpts of which were submitted to the circuit court on summary judgment, and
which our courts have cited as an authority on title insurance. See Dahlmann, 291 Wis. 2d 156,
¶25; Piper v. Nitschke’s N. Resort Condo. Owner’s Ass’n, LLC, 2009 WI App 182, ¶15, 322
Wis. 2d 604, 777 N.W.2d 677.
8
A separate condition of the Policy makes clear that WFG will provide a defense to the
insured where a third-party plaintiff asserts a covered claim.
9
The parties dispute whether, for purposes of applying Covered Risk 2, an encumbrance
(i.e., an easement) is a title defect. Defined broadly, “[a] title defect is a claim or interest that is
inconsistent with the title purportedly transferred,” so an encumbrance is considered a title defect.
Dahlmann, 291 Wis. 2d 156, ¶¶14-15. Defined narrowly, a “title defect” is “an insufficiency …
in the records by which the title is proven” (such as a forgery or an inaccurate legal description),
whereas “[a]n encumbrance is any right of a third person in real property that diminishes the value
of the insured’s title but does not prevent the passing of the interest.” JOYCE PALOMAR, 1 TITLE
INSURANCE LAW § 5.5 (2021 ed.). Thus, under the narrower definition, an encumbrance is distinct
from a title defect. The Policy reflects this view, in that Covered Risk 2 distinctly and separately
addresses losses stemming from title defects, liens, and encumbrances. We note that “[c]ourts tend
to use the terms [“title defect,” “lien,” and “encumbrance”] loosely and interchangeably in cases
pertaining to title insurance coverage.” See id. Moreover—as we explain further in Section II—
we do not decide whether or which provision of Covered Risk 2 in fact provides an initial grant of
coverage because we conclude that Schedule B excepts coverage. Accordingly, we do not further
address the parties’ arguments on this issue.
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No. 2020AP1593
¶17 A title insurance policy insures title for an identified piece of land—
the land described in Schedule A of the policy. NIELSEN, TITLE ESCROW CLAIMS
GUIDE § 9.2. A policy also contains two types of provisions that limit
coverage: exclusions and exceptions. Dahlmann, 291 Wis. 2d 156, ¶25.
“[E]xclusions refer to subjects beyond the ambit of the policy, while exceptions are
matters generally within the scope of the insuring provision.” Id. (citation omitted).
Schedule B sets forth general (applicable to all insureds) and specific (applicable to
the particular insured) exceptions to coverage. NIELSEN, TITLE ESCROW CLAIMS
GUIDE § 9.1.1. As stated, this appeal concerns the application of the Easement
Exceptions: two specific Schedule B exceptions relating to the Columbs’ and the
Coxes’ “ingress/egress easement.”
¶18 In contrast, a title insurance commitment or title binder is an offer of
title insurance. NIELSEN, TITLE ESCROW CLAIMS GUIDE § 6.1; see also Greenberg
v. Stewart Title Guar. Co., 171 Wis. 2d 485, 488, 492 N.W.2d 147 (1992) (“A title
commitment is a document which describes the property as the title insurer is willing
to insure it and contains the same exclusions and general and specific exceptions as
later appear in the title insurance policy.”). Thus, the Coxes’ Commitment states
that it “is a contract to issue one or more title insurance policies.”
¶19 Generally speaking, the commitment merges with the policy when the
policy is issued, precluding a cause of action under the commitment. NIELSEN,
TITLE ESCROW CLAIMS GUIDE § 6.2. The Coxes’ Commitment reflects this fact,
stating that “[a]ll liability and obligation under this Commitment shall cease and
terminate ninety (90) days … after the effective date [of the Commitment] or when
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No. 2020AP1593
the policy … committed for shall issue, whichever first occurs.”10 Likewise, the
Coxes’ Policy states that liability is limited to the Policy and that the Policy, together
with any endorsements, constitutes the entire contract between the Coxes and WFG.
¶20 A commitment contains Schedules A and B11 that mimic those in the
policy but serve different purposes, in that the schedules in the commitment
necessarily concern the offer of insurance. See NIELSEN, TITLE ESCROW CLAIMS
GUIDE § 6.1. Thus, here, the Coxes’ Policy Schedule B sets forth exceptions to
coverage, whereas Commitment Schedule B notifies the Coxes that the Policy will
contain “the following” “exceptions” “unless the same are disposed of to the
satisfaction of” WFG.
¶21 Here, it is undisputed that Commitment Schedule B and Policy
Schedule B contain identically worded Easement Exceptions. Accordingly, we
reject the Coxes’ argument that, because they did not timely receive the Policy, they
were unaware that their contract excepts coverage for disputes relating to this
easement. The case law upon which the Coxes rely for this proposition is
distinguishable because that authority concerns the insured’s lack of notice of policy
terms. For example, in Kozlik v. Gulf Insurance Co., 2003 WI App 251, ¶¶12-17,
268 Wis. 2d 491, 673 N.W.2d 343, we concluded that an insurer was estopped from
enforcing an exclusion in a policy for personal accident insurance, where the insured
did not receive a copy of the policy or a summary of its terms when he rented the
10
By its terms, the Commitment does create some potential liability on WFG’s part, but
limited to specified types of actual losses—not at issue here—that the insured reasonably incurs in
reliance on the Commitment before the Policy is issued.
11
The 2006 ALTA commitment contains two Schedules B (Schedule B-1 and B-2).
Schedule B-1 (not at issue here) sets forth the requirements and conditions that the prospective
insured must fulfill before the insurer issues the final policy. NIELSEN, TITLE ESCROW CLAIMS
GUIDE § 6.1 (2021 ed.). Schedule B-2 sets forth exceptions to coverage. Id. For ease of reading,
we use the term “Schedule B” to refer to Schedule B-2 of this Commitment.
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No. 2020AP1593
car. Our decision hinged on the circuit court’s determination that the insured “did
not have notice of the terms and conditions contained in the … rental agreement.”
Id., ¶11. We recognized that the insured was a repeat customer of the car rental
agency; however, the rental agreement “was an independent contract—and although
unlikely, it was possible that the terms of the insurance policy had changed.” Id.,
¶16. Here, the Coxes’ Commitment is not the equivalent of a prior independent
contract with WFG—it is an offer to issue the Policy the Coxes actually received,
containing the very exceptions WFG now relies on to except coverage.12
¶22 In seeking to avoid this conclusion, the Coxes argue that Commitment
Schedule B and Policy Schedule B are not, in fact, identical. The Coxes point out,
for example, that Commitment Schedule B contains four more exceptions than
Policy Schedule B. It follows, the Coxes argue, that the Commitment could not
provide notice of which exceptions would be contained within the Policy because
the Commitment exceptions were “not set in stone.”
¶23 As should be evident from our discussion of title insurance, this
argument is meritless. A commitment and a policy are not required to be
identical: they are separate contracts and confer separate and distinct contractual
rights on the insured. Specifically, Schedule B of this Commitment sets forth all
12
The additional authority the Coxes rely on in support of this argument is inapposite.
See, e.g., Gross v. Lloyds of London Ins. Co., 121 Wis. 2d 78, 87-89, 358 N.W.2d 266 (1984);
Roeske v. Diefenbach, 75 Wis. 2d 253, 260-61 & n.2, 249 N.W.2d 555 (1977); Heezen v. Hartland
Cicero Mut. Ins. Co., 63 Wis. 2d 449, 453-54, 217 N.W.2d 272 (1974). Like Kozlik v. Gulf
Insurance Co., 2003 WI App 251, ¶¶12-17, 268 Wis. 2d 491, 673 N.W.2d 343, each of these cases
supports the proposition that a prospective insured must have notice of the terms of the policy,
without supporting the Coxes’ separate argument that their Commitment did not provide such
notice. In fact, one of these cases, Gross, supports our conclusion here. In holding that the insurer
could not deny coverage because of the insured’s lack of notice of a policy limitation, the Gross
court relied, in part, on the fact that “the binder was silent concerning [the insurer’s] obligation to
defend.” Gross, 121 Wis. 2d at 88. Here, in contrast, the Coxes’ Commitment sets forth the
operative exceptions to coverage.
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No. 2020AP1593
the exceptions that will be contained in the Policy unless they “are disposed of to
the satisfaction of” WFG. Of course, an insurer cannot add additional exceptions to
a policy that are not contained in the commitment—but this is not the Coxes’
argument. See JOYCE PALOMAR, 1 TITLE INSURANCE LAW § 7.1 (2021 ed.) (“Once
an insured has accepted the insurer’s offer and met the commitment’s requirements
… the insurer should not be able to change its offer or add new exceptions to the
policy’s coverage.”). In sum, the fact that certain exceptions were “disposed of” to
WFG’s “satisfaction”—and, accordingly, omitted from the Policy—has no bearing
on WFG’s contractual right to preclude coverage based on exceptions contained in
both the Commitment and the Policy.
¶24 The Coxes further point out that Schedule B of the Policy expressly
sets forth the legal effect of the Easement Exceptions: that “this Policy does not
insure against loss or damage, and [WFG] will not pay costs, attorneys’ fees or
expenses that arise by reason of: [lists exceptions].” In contrast, Schedule B of the
Commitment states, “Schedule B of the Policy … to be issued will contain
exceptions to the following unless the same are disposed of to the satisfaction of
[WFG]: [lists exceptions].” According to the Coxes, the Commitment’s failure to
mimic the terms of the Policy means that “a reasonable person in [their] position …
would not have been put on notice and understood [Commitment Schedule B] to bar
coverage.”
¶25 We disagree. The Commitment states that WFG commits to issuing
the Policy “subject to the provisions of” Schedule B. The Commitment also informs
the Coxes that any policy eventually issued will control (i.e., “[WFG’s] liability and
obligation under this Commitment shall cease and terminate ninety (90) days after
the effective date [of the Commitment] or when the Policy … committed for shall
issue, whichever first occurs”). Moreover, the Commitment states that WFG “will
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No. 2020AP1593
provide a sample of the Policy form upon request.” The Policy, in turn, informs the
insured that liability is limited to the Policy; it also notifies the insured that the
Schedule B exceptions operate to preclude coverage. Thus, on receiving the
Commitment, the Coxes were provided information from which they could
reasonably ascertain that the Policy would not provide coverage for those matters
excepted under Commitment Schedule B. WFG had no additional obligation to
explain the legal effect of the Policy exceptions.
¶26 Aside from the notice issue, the Coxes identify three reasons why the
late issuance of the Policy should preclude WFG from relying on the Policy
exceptions. First, the Coxes imply that WFG cannot rely on any Policy exceptions
because it made arguments before the circuit court that it later abandoned or
contradicted. For example, WFG’s answer asserted that there was no breach of
contract because WFG never issued a policy; then, three months later, WFG issued
the Policy. The Coxes have not shown, however, why WFG’s changing its position
during the litigation might preclude it from denying coverage under the terms of the
Policy. Accordingly, we do not address their argument further. See State v. Pettit,
171 Wis. 2d 627, 646, 492 N.W.2d 633 (Ct. App. 1992) (we may decline to review
issues inadequately briefed).
¶27 Second, the Coxes argue that WFG breached either the Commitment
or the Policy by not timely issuing the Policy. This argument is difficult to follow,
as it is unclear which contractual language (and which contract) the Coxes rely on
to support this conclusion. Along similar lines, the Coxes argue that WFG failed to
comply with WIS. STAT. § 631.05, requiring insurers to “issue a policy as soon as
reasonably possible after issuance of any binder.” Thus, the Coxes’ larger argument
seems to be that the mere “[f]ailure to [timely] supply a policy forfeits coverage
defenses.”
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No. 2020AP1593
¶28 To support this point, the Coxes reference legal authority concerning
the insurer’s notice defense, asking us to conclude that, “[j]ust as [the insured’s]
failure to provide timely notice [of the claim] breaches an insurance contract and
negates coverage, the unfulfilled obligation to issue a policy [pursuant to WIS. STAT.
§ 631.05] only appropriately negates policy defenses.” See, e.g., Neff v. Pierzina,
2001 WI 95, ¶¶29-32, 245 Wis. 2d 285, 629 N.W.2d 177 (discussing the insurer’s
notice defense). Aside from citing this inapposite case law, however, the Coxes
provide no legal authority for their assumption that this court may “negate WFG’s
policy defenses” because WFG did not timely issue the Policy. In the absence of
such authority, it is within the purview of the legislature, not this court, to create the
Coxes’ desired remedy for an insurer’s alleged failure to comply with § 631.05. We
therefore reject this argument.
¶29 Finally, the Coxes imply that WFG may not rely on the Easement
Exceptions because it engaged in misconduct by “fabricating” or wrongfully
backdating the Policy. Again, the Coxes do not cite any authority permitting us to
impose this remedy on WFG. Nor do the Coxes point to any evidence in the record
supporting their assertion that WFG engaged in misconduct. Although WFG issued
the Policy in April 2020, the Policy’s effective date is January 23, 2017—the same
date on which the Coxes recorded their deed. As WFG explains, and the record
reflects, the Policy therefore “properly provided … coverage from the date that the
Coxes’ deed was recorded forward.” Thus, WFG assigned an effective date to the
Policy not to “fabricat[e]” a policy but to begin coverage on the proper date.
¶30 We conclude that, under the circumstances of this case, WFG’s
issuing the Policy after the Coxes’ lawsuit—while not a favored practice—does not
prohibit WFG from denying coverage per the Policy’s terms. We turn now to
whether the Easement Exceptions preclude coverage for this dispute.
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No. 2020AP1593
II. The Easement Exceptions Preclude Coverage
for the Columb/Cox Lawsuit.
¶31 The Coxes argue that the Policy covers this dispute and that no
exclusions or exceptions preclude coverage. WFG disagrees that there is an initial
grant of coverage under Covered Risk 2; it further argues that various exclusions
and exceptions apply. For the following reasons, we conclude that the Easement
Exceptions preclude coverage for this dispute. Accordingly, we assume without
deciding that there is an initial grant of coverage under the Policy, and we do not
address whether other Policy provisions might also preclude coverage. See Barrows
v. American Fam. Ins. Co., 2014 WI App 11, ¶9, 352 Wis. 2d 436, 842 N.W.2d
508 (2013) (“An appellate court need not address every issue raised by the parties
when one issue is dispositive.”).
¶32 As stated, the Easement Exceptions in Policy Schedule B are as
follows:
This policy does not insure against loss or damage,
and [WFG] will not pay costs, attorneys’ fees or expenses
that arise by reason of:
….
8. Rights and/or claims of others in and to that
ingress/egress easement as set forth in [DeGroff Deeds 1-4]
and as modified in [the Modification]. (Easements benefit
several parcels located adjoining or near to the insured
premises.)
9. Terms and provisions as to use and maintenance
of that ingress/egress easement as set forth in [DeGroff
Deeds 1-4] and as modified in [the Modification].
(Easements benefit several parcels located adjoining or near
to the insured premises.)
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No. 2020AP1593
(Emphasis added.) The Coxes’ central argument is that these exceptions only refer
to a single easement: the Modified Easement. It follows, in their view, that
coverage is not excepted for any losses or disputes relating to the Original Easement.
¶33 This argument attaches an improper significance to the Easement
Exceptions’ use of the phrase “and as modified.” A title insurance policy is an
indemnity contract, not a warranty that title is as described. See Greenberg, 171
Wis. 2d at 493-94 (“[T]he insurer does not represent expressly or impliedly that the
title is as set forth in the policy; it merely agrees that … the insurer will pay for any
losses resulting from, or he will cause the removal of, a cloud on the insured’s title
within the policy provisions.” (alterations in original; citation omitted)). Thus,
Schedule B’s reference to “that ingress/egress easement as set forth in [DeGroff
Deeds 1-4] and as modified in [the Modification]” is not a representation that the
Original Easement was (or was not) validly modified or that coverage would be
excepted only for an easement in some specific modified location. See id.¶34 Rather, in issuing the Policy, WFG determined which records were
associated with “that ingress/egress easement” (namely, the four DeGroff Deeds
and the Modification), and it listed those instruments where pertinent, including in
the Easement Exceptions. See PALOMAR, 1 TITLE INSURANCE LAW § 1.15 (before
issuing the policy, the title insurer “performs a search of the real property records
pertaining to the interest to be insured”; “[i]f this search uncovers any encumbrances
or title defects, the title insurer initially writes those not already excluded from the
policy as exceptions to any policy to be issued, and in this way discloses them to
the applicant”). In this way, WFG notified the Coxes of which title defect or
encumbrance was being excepted.
16
No. 2020AP1593
¶35 Thus, by their plain terms, the Easement Exceptions preclude
coverage for an identified easement—“that ingress/egress easement”—and provide
the Coxes with the additional information they need to determine the title defect or
encumbrance these exceptions are meant to reference. This is the only purpose and
effect of the Policy’s listing all of the recorded instruments relating to this easement.
It may very well be that one of these instruments—the Modification—is invalid, but
this is a separate issue unrelated to whether the Easement Exceptions have
adequately provided notice of the terms of coverage. In short, the phrase “and as
modified” does not substantively limit the scope of the Easement Exceptions in the
manner the Coxes suggest. Rather, the Policy excepts coverage for “that
ingress/egress easement” regardless of which path is ultimately determined to be
enforceable.
¶36 Moreover, even assuming that the Easement Exceptions could be
construed to except coverage for only certain types of disputes (i.e., disputes relating
to the easement in its modified location), WFG still would not owe coverage. We
have used the terms “Original Easement” and “Modified Easement” for ease of
reading, but of course, there is only a single easement in one location or the other.
This is not, as the Coxes suggest, a dispute about an Original Easement that is
wholly unrelated to any dispute about a second easement (the Modified Easement).
Thus, the underlying merits—the exact path this easement runs over the Coxes’
property—is in fact a dispute about the easement in both its original and modified
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No. 2020AP1593
locations. Accordingly, even if we accepted the Coxes’ desired interpretation of the
Easement Exceptions, we would still conclude that this dispute is excepted.13
¶37 The Coxes also attempt to shoehorn their negligence claims against
Bay Title and Fifarek into our contractual analysis. Recall that Bay Title, acting as
WFG’s agent, issued the Coxes’ policy and that Fifarek, Bay Title’s employee, also
drafted the Modification for the Putirskises. The Coxes have alleged that Fifarek
drafted the Modification without a signature line for the Columbs, which caused the
13
The Coxes’ overarching argument is that the Easement Exceptions “clearly” except
coverage only for those losses or disputes relating to the Modified Easement. Nonetheless, the
Coxes repeatedly refer to ambiguity in the Policy. It is difficult to follow these arguments, but for
the sake of completeness, we will attempt to address them here.
First, the Coxes attach significance to the fact that the description of the property in
Schedule A states that the property is subject to “that ingress/egress easement set forth in [DeGroff
Deed 1], as modified in [the Modification],” whereas the Easement Exceptions in Schedule B
except coverage for “that ingress/egress easement as set forth in [DeGroff Deeds 1-4] and as
modified in [the Modification].” (Emphases added.) The Coxes do not explain why the omission
of the word “and” in the Schedule A description of the easement creates ambiguity in the Schedule
B Easement Exceptions.
Second, the Coxes imply that Schedule A is ambiguous because it “should have identified
all of the easements.” But there is only one recorded easement on the Coxes’ property; thus, the
Coxes apparently mean to argue that Schedule A should have identified the additional DeGroff
Deeds (Deeds 2-4) conveying or reserving the Original Easement. Because Schedule A is a
description of the land to which the title insurance pertains, however, we do not discern why
Schedule A needed to include information about DeGroff Deeds 2-4, which relate to the easement
established by DeGroff Deed 1.
Finally, the Coxes point out that “there were more parcels with easement rights over the
Original Easement … than contained in the Modification.” The Coxes may be trying to point out
that, per DeGroff Deed 4, the Original Easement benefits two parcels in addition to the Columbs’
parcel. The Coxes do not explain why this fact causes or pertains to ambiguity in the Easement
Exceptions.
Because these three arguments are inadequately briefed, we note them without addressing
them further. See Pettit, 171 Wis. 2d at 646.
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No. 2020AP1593
Putirskises to record a Modification without legal effect.14 It is somewhat difficult
to follow the Coxes’ arguments on how the actions of Bay Title and Fifarek pertain
to our policy analysis. Broadly speaking, however, our role in policy interpretation
is not to determine whether or why the Modification is invalid but to discern the
meaning of the Easement Exceptions. The fact that the Easement Exceptions
reference recorded instruments, including the Modification, does not mean that Bay
Title’s or Fifarek’s actions in regard to the Modification are relevant to our coverage
analysis.
¶38 Finally, we must address a separate argument regarding the wording
of the Easement Exceptions. Throughout this decision, we have discussed the
Easement Exceptions as referencing the Modification. In fact, through a mistake on
WFG’s part, the Easement Exceptions reference the wrong document. Specifically,
the Easement Exceptions state that the “ingress/egress easement” is “as modified in
Doc. No. 810096.” The Modification, however, was recorded as document number
810094. In his deposition, Fifarek described this single-digit difference as a
“scrivener’s error.” The parties agree that the Easement Exceptions should have
referenced document number 810094 and that document number 810096 is
unrelated to the Coxes’ parcel.
¶39 The Coxes argue that we “should deem that th[is] unilateral mistake
nullifies the exceptions.” The Coxes cite to no law holding that an error of this type,
standing alone, allows a court to “nullify” a policy exception. Moreover, and
14
It is undisputed that Bay Title, as WFG’s agent, issued the Coxes’ title policy; however,
the parties dispute whether Bay Title and Fifarek were also acting as WFG’s agents when Fifarek
drafted the Modification for the Putirskises. We do not decide this issue because it is irrelevant to
our analysis of the Easement Exceptions.
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No. 2020AP1593
significantly, the Coxes do not argue that this mistake actually caused them to be
unaware of the terms of coverage (i.e., that they were unclear about which title
defect or encumbrance was being excepted). We therefore do not address this
argument further. See Pettit, 171 Wis. 2d at 646.15
CONCLUSION
¶40 WFG’s delay in issuing the Policy does not preclude it from denying
coverage per the Policy’s terms. Furthermore, by operation of the Easement
Exceptions, the Policy does not require WFG to defend or indemnify the Coxes in
their suit with the Columbs. Accordingly, we affirm the circuit court order granting
summary judgment to WFG, dismissing the Coxes’ breach of contract claim against
WFG, and dismissing WFG from this lawsuit.16
By the Court.—Order affirmed.
15
The Coxes cite Clark v. Moru, 19 Wis. 2d 503, 506, 120 N.W.2d 888 (1963), for the
proposition that this is not a situation where a contract can be reformed because of mutual mistake.
See id. (“In order to reform a contract on the ground of mistake, the general rule is that the mistake
must be mutual, or mistake on one side and fraud on the other.” (citation omitted)). As WFG rightly
points out, however, WFG is not attempting to reform the Policy; it is merely seeking to apply the
Policy’s terms.
16
The Coxes argue that WFG’s summary judgment motion is “procedurally deficient”
because WFG did not provide “evidence about the facts underlying this suit—how or why the
Coxes blocked the easement.” But the duty to defend is broader than, and encompasses, the duty
to indemnify, in that the duty to defend implicates arguable and not actual coverage. Estate of
Sustache v. American Fam. Mut. Ins. Co., 2008 WI 87, ¶20, 311 Wis. 2d 548, 751 N.W.2d 845;
Great Lakes Beverages, LLC v. Wochinski, 2017 WI App 13, ¶15, 373 Wis. 2d 649, 892 N.W.2d
333. Accordingly, it was not “procedurally deficient” for WFG to rely on the terms of the Policy
to argue that it had no duty to defend the Coxes (and, accordingly, no duty to indemnify the Coxes
should they later be found liable for intentional interference with the easement).
20