Henn et al v. Fidelity National Title Insurance Company
ORDER granting 51 Motion to Consolidate Cases; denying 58 Motion to Dismiss. All future filings in either action shall bear the above caption and be docketed under Civil Action No. 12-cv-03077-RM-KLM. by Judge Raymond P. Moore on 12/17/2013.(trlee, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Raymond P. Moore
Civil Action No. 12-cv-03077-RM-KLM
(Consolidated with Civil Action No. 13-cv-01217-PAB-BNB)
PRESTON B. HENN and BETTY D. HENN, individually,
FIDELITY NATIONAL TITLE INSURANCE COMPANY, a California
Defendant and Third-Party Plaintiff,
PITKIN COUNTY TITLE, INC.,
(1) GRANTING DEFENDANT/THIRD-PARTY PLAINTIFF
FIDELITY NATIONAL TITLE INSURANCE COMPANY’S
MOTION TO CONSOLIDATE PURSUANT TO FED. R. CIV. P. 42(a) (ECF No. 51);
(2) DENYING THIRD-PARTY DEFENDANT PITKIN COUNTY TITLE, INC.’S
MOTION TO DISMISS THE THIRD PARTY COMPLAINT (ECF No. 58)
THIS MATTER comes before the Court on: (1) Defendant/Third-Party Plaintiff Fidelity
National Title Insurance Company’s (“Fidelity”) Motion to Consolidate Pursuant to Fed.R.Civ.P
42(a) (“Motion to Consolidate”) (ECF No. 51), requesting an Order consolidating into this case
the action titled Fidelity National Title Insurance Company v. Pitkin County Title, Inc., Civil
Action No. 13-cv-01217-PAB-BNB (“Stand-Alone Action”); and (2) Third-Party Defendant
Pitkin County Title, Inc.’s (“Pitkin”) Motion to Dismiss the Third-Party Complaint (“Motion to
Dismiss”) (ECF No. 58), requesting a dismissal of the Third-Party Complaint to allow the StandAlone Action to proceed. The Court has reviewed the Motion to Consolidate, the Motion to
Dismiss, the Court’s files in this action and in the Stand-Alone Action, and the applicable law.
Based on the current record, the Court finds the two actions should be consolidated and the
motion to dismiss should be denied.
In connection with Plaintiffs’ purchase of real property in Aspen, Colorado, they obtained
a title insurance policy (“Policy”) from Pitkin underwritten by Fidelity. Westpac Aspen
Investments LLC, the owner of adjoining property, filed suit in state court against Plaintiffs
claiming an unrecorded easement on their property and obtained preliminary injunctive relief.
Thereafter, Plaintiffs demanded Fidelity to defend and indemnify pursuant to the Policy. When
Plaintiffs and Fidelity could not resolve issues involving the Policy, Plaintiffs filed the instant
action before this Court asserting claims for breach of contract and bad faith breach of contract.
Plaintiffs’ alleged damages consist of attorney’s fees incurred in defense of the state court action
and the diminution in value of the property due to the claimed easement.
In response, Fidelity asserts, among other things, that Plaintiffs had knowledge of the
easement prior to the issuance of the Policy of which they failed to notify Fidelity, in breach of
the Policy provisions and their duty of good faith and fair dealing, and which prejudiced Fidelity
and relieved it from any liability. Also in response, Fidelity moved to file a third-party
complaint against Pitkin, which motion was granted over Plaintiffs’ objections by the Magistrate
Judge in her Order (“Order”) dated May 21, 2013 (ECF No. 33).
In the Third-Party Complaint, Fidelity alleges Pitkin was negligent and breached an
Issuing Agency Agreement (“Agreement”) by issuing the Policy which deleted certain policy
exceptions without Fidelity’s approval and without requiring a survey or inspection of the
property. The deleted exceptions allegedly provide that Fidelity did not insure against loss by
reason of unrecorded easements and/or by reason of unrecorded discrepancies which a correct
survey and/or inspection would have disclosed. If Fidelity is found liable to Plaintiffs, then
Fidelity seeks as damages: (1) the amounts expended in connection with the state court action,
including attorney’s fees and costs in defending, and judgments and settlements paid on behalf
of, Plaintiffs in that action; (2) attorney’s fees and costs in defending against Plaintiffs’ action
before this Court; and (3) attorney’s fees and costs in prosecution of the third-party action
Pitkin asserts the parties agreed to liquidated damages in the event the Agreement was
breached. Pitkin also represented it intends to file a motion to add a claim against Plaintiffs for
declaratory judgment/reformation of the Policy alleging: (1) Plaintiffs paid no consideration for
the Policy; and (2) a current survey and the payment of a fee were conditions to Pitkin’s
commitment to delete or insure over the exceptions, neither of which were satisfied.
Accordingly, Pitkin contends, the Policy provides Plaintiffs no insurance coverage for the
unrecorded easement. (ECF No. 48, pages 8-9.)
PITKIN’S MOTION TO DISMISS.
Pursuant to Fed.R.Civ.P. 14(a), a defending party may, as third-party plaintiff, serve a
summons and complaint on a nonparty who is or may be liable to it for all or part of the claim
against it. The general purpose of Rule 14 is to settle related matters in one litigation and obtain
consistent results from identical or similar evidence, thereby preventing a duplication of efforts
for the courts and serving the interests of judicial economy, convenience and fairness to the
parties. RAF Fin. Corp. v. Resurgens Commun. Group, Inc., 127 B.R. 458, 465 (D. Colo. 1991).
“A claim under Rule 14(a) must depend, at least in part, upon the resolution of the primary
lawsuit.” MaxFour Eng. & Architects, LLC v. ARB, Inc., 233 F.R.D. 602, 605 (D. Colo. 2006).
It does not, however, require identity between the primary and third-party claims or that the
third-party defendant be subject to the primary claims asserted by the plaintiff. Id. at 605. The
grant or denial of leave to prosecute a third-party proceeding rests in the sound discretion of the
trial court. Farmers & Merchants Mut. Fire Ins. Co. v. Pulliam, 481 F.2d 670, 673 (10th Cir.
Pitkin asserts the Third-Party Complaint fails to meet the requirements of Fed.R.Civ.P.
14, arguing there is no pass-through liability and no contingent connection between Plaintiffs’
claims and the third-party claims. Pitkin contends there are no common issues of disputed facts
and no overlapping legal issues between the claims in the Complaint and the Third-Party
Complaint, so no efficiencies would be gained. Pitkin also declares there is no dispute regarding
the issuance and existence of the Policy or its terms, and the only dispute with Plaintiffs is
whether, under the terms of the Policy, Fidelity was entitled to deny coverage. (ECF No. 58,
pages 3 & 11.)
Fidelity, on the other hand, argues its claims against Pitkin are dependent on the outcome
of the main claim (Plaintiffs’ claims) and Pitkin has pass-through liability or is secondarily liable
to Fidelity for Plaintiffs’ claimed damages. Fidelity contends its defenses to Plaintiffs’ claims
are based on the same set facts and circumstances as those surrounding its claims against Pitkin,
including the contention that a correct survey of the property would have revealed the
unrecorded easement. Fidelity argues that, under the terms of the Agreement, Pitkin is liable for
Fidelity’s “loss,” which includes sums paid or to be paid by Fidelity to settle or compromise
claims under the Policy, and attorney’s fees and costs paid or incurred in connection with
litigation or settlement of such claims.
In a well-reasoned Order, the Magistrate Judge addressed some of the arguments raised
by Pitkin’s Motion to Dismiss which this Court will not revisit. In addition, Pitkin’s declaration
that there is no dispute regarding the issuance and existence of the Policy or its terms is belied by
Fidelity’s defenses to the main claims as well as Pitkin’s own representations in the Scheduling
Order. Moreover, based on Fidelity’s submissions concerning Pitkin’s contractual obligation to
reimburse Fidelity for its losses, in essence, Fidelity’s claims include a request for indemnity
should it be determined liable to Plaintiffs under the Policy. See Black’s Law Dictionary 837 (9th
ed. 2009) (“indemnity” includes the duty to make good any loss or the right of an injured party to
claim reimbursement for its loss). Accordingly, dismissal is unwarranted.
FIDELITY’S MOTION TO CONSOLIDATE.
Pursuant to Fed.R.Civ.P. 42(a), the Court may consolidate actions which involve a
common question of law or fact. See also D.C.COLO.LCivR 40.1(c)(4)(C) & 42.1.
Consolidation permits a single trial of more than one case on the Court’s docket or of issues
within those cases. 9A Charles A. Wright, Arthur R. Miller, Mary K. Kane, Richard L. Marcus
and Adam N. Steinman, Federal Practice & Procedure § 2381 (3d ed. 2013) (“Wright &
Miller”). The objective is to give to the Court broad discretion to decide how cases on its docket
are to be tried so that the business of the Court may be handled with expedition and economy
while providing justice to the parties. Wright & Miller, supra; see Harris v. Illinois–Cal. Exp.
Inc., 687 F.2d 1361, 1368 (10th Cir.1982); Shump v. Balka, 574 F.2d 1341, 1344 (10th Cir.
1978). Thus, in exercising its discretion under Rule 42(a), the Court should consider judicial
economy and fairness to the parties.
In this case, judicial economy would be served by consolidation. The third-party claims
and the claims in the Stand-Alone Action are identical, i.e., they involve the same parties, the
same claims, and virtually identical allegations. Further, Fidelity’s claims and alleged damages
against Pitkin are contingent, in whole or in part, on the resolution of and arise from Plaintiffs’
claims against Fidelity, all of which include resolving the facts and circumstances surrounding
the issuance of the Policy. Common questions of fact and law include whether a survey of the
property was required and whether Plaintiffs knew about the easement prior to the issuance of
the Policy and failed to notify Fidelity or Pitkin. The papers before the Court show there is a
complete overlap of legal and factual issues between Fidelity’s two actions against Pitkin, and
material overlap between those two actions and Plaintiffs’ main action against Fidelity, sufficient
to establish consolidation of the Stand-Alone Action with the action before this Court is
Correspondingly, the Court finds consolidation would not unfairly prejudice any party.
Neither Plaintiffs1 nor Pitkin will suffer undue inconvenience, delay, or expense. No scheduling
order has been issued in the Stand-Alone Action and the Scheduling Order entered before this
Court already includes Pitkin as a participating third-party. Further, that Scheduling Order
shows an overlap in the parties’ expert and fact witnesses and, therefore, a substantial likelihood
Plaintiffs took no position on the Motion to Consolidate.
of common documents at issue. Also, as previously stated, the parties’ positions show an
overlap on issues to be litigated. These factors weigh in favor of consolidation.
For the reasons stated above, based on the record before it, the Court ORDERS as
1. Pitkin’s Motion to Dismiss (ECF No. 58) is DENIED;
2. Fidelity’s Motion to Consolidate (ECF No. 51) is GRANTED. The action titled
Fidelity National Title Insurance Company v. Pitkin County Title, Inc., Civil Action
No. 13-cv-01217-PAB-BNB, is hereby consolidated with this action, 12-cv-03077,
for all purposes, with 12-cv-03077 as the lead case;
3. All future filings in either action shall bear the above caption and be docketed under
Civil Action No. 12-cv-03077-RM-KLM;
4. Civil Action No. 13-cv-01217 shall hereafter be REASSIGNED and referred to the
Magistrate Judge assigned to the lowest case number, Magistrate Judge Mix; and
5. The Clerk of the Court shall docket this Order in Civil Action No. 12-cv-03077 and
DATED this 17th day of December, 2013.
BY THE COURT:
RAYMOND P. MOORE
United States District Judge
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