Fidelity National Title Insurance Company v. Captiva Lake Investments, LLC

Filing 227

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that the parties cross motions for partial summary judgment [Docs. #180, #184] are denied. Signed by District Judge Carol E. Jackson on 4/22/2013. (KMS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
FIDELITY NATIONAL TITLE
INSURANCE COMPANY,
Plaintiff,
vs.
CAPTIVA LAKE INVESTMENTS, LLC,
Defendant.

)
)
)
)
)
)
)
)
)
)

Case No. 4:10-CV-1890 (CEJ)

MEMORANDUM AND ORDER
This matter is before the Court on the parties’ cross motions for partial summary
judgment.

Upon review of the parties’ briefs, the Court concludes that factual

determinations preclude summary judgment on the parties’ claims. However, the
Court will address some of the parties’ arguments regarding interpretation of the
policy.
This dispute concerns the availability of coverage under a loan policy of title
insurance (loan policy) issued in conjunction with a development project. The loan
policy was issued by Lawyers Title Insurance Company (Lawyers Title) to National City
Bank to protect the priority of the bank’s interest in a deed of trust. Plaintiff Fidelity
National Title Insurance Company (Fidelity) is the successor by merger to Lawyers
Title. Defendant Captiva Lake Investments, LLC (Captiva), claims coverage under the
policy as a successor or assignee of National City Bank. Captiva asserts that Fidelity
must provide defense and indemnification with respect to various mechanics’ liens and
for unmarketability of title that Captiva asserts arises from the liens. Fidelity asserts
that it has provided a defense for the mechanics’ liens, that a policy exclusion bars
coverage, and that the policy does not provide coverage for Captiva’s alleged

unmarketability of title. Both parties bring claims for declaratory judgment; Captiva
additionally brings claims for breach of contract and tortious interference.
I.

Background

On March 13, 2006, National City Bank agreed to loan Majestic Pointe
Development Company, LLC, (Majestic Pointe) $21,280,000 for completion of a
condominium project. Majestic Pointe executed a deed of trust in favor of National City
Bank, which purchased title insurance to insure the priority of its interest in the deed
of trust. Lawyers Title issued a loan policy on March 15, 2006. [Doc. #1-1]. National
City Bank subsequently increased the amount of its loan to Majestic Pointe and, on
October 25, 2007, an amended deed of trust reflecting the increased loan amount was
recorded. Lawyers Title issued a Modification Endorsement to the policy that increased
the loan insurance amount to $22,380,00.00 and amended the date of the policy to
October 25, 2007. [Doc. #1-2]. No other changes material to this dispute were made
to the policy.
The construction project ran into difficulties and, starting in April 2008, several
mechanics’ liens were filed. In mid-2009, National City sold Majestic Pointe’s loan to
defendant Captiva which subsequently foreclosed on the property. On July 29, 2009,
Captiva made a claim under the policy, demanding that Lawyers Title provide a defense
against the mechanics’ liens and pay any resulting claims. [Doc. #2-4]. On October
1, 2009, Lawyers Title notified Captiva that it would provide a defense, subject to a
reservation of its right to later deny coverage under the policy. [Doc. #2-5]. Lawyers
Title retained the law firm of Sauerwein, Simon & Blanchard (SSB) as counsel to
defend Captiva in the mechanics’ liens actions. The claims of six contractors have been

-2-

decided in Captiva’s favor, five claimants have obtained a judgment against Captiva,
and the status of several more liens is not apparent from the record.
On November 3, 2009, Captiva entered into an agreement to sell the property
to a third party. It was a condition of the sale that Lawyers Title agree to issue a
lender’s policy of title insurance with full mechanics’ lien coverage without exception
for liens on the property prior to Captiva’s acquisition of the property, or provide
affirmative insurance coverage for the mechanics’ liens. [Doc. #184-10]. Lawyers
Title refused to commit to issuing the coverage. Id. On November 17, 2009, the
buyer notified Captiva that it would not complete the purchase of the property. [Doc.
#184-11]. On August 3, 2010, Captiva submitted a claim for unmarketability of title.
Captiva alleges that it is unable to sell or obtain a loan on the property, due to the
uncertainty created by the question of coverage for the pending mechanics’ liens. J.
Barnes letter [Doc. #2-6].
Additional facts will be provided as necessary.
II.

Legal Standard

Rule 56(a) of the Federal Rules of Civil Procedure provides that summary
judgment shall be entered if the moving party shows “that there is no genuine dispute
as to any material fact and the movant is entitled to a judgment as a matter of law.”
In ruling on a motion for summary judgment the court is required to view the facts in
the light most favorable to the non-moving party and must give that party the benefit
of all reasonable inferences to be drawn from the underlying facts. AgriStor Leasing
v. Farrow, 826 F.2d 732, 734 (8th Cir. 1987). The moving party bears the burden of
showing both the absence of a genuine issue of material fact and its entitlement to
judgment as a matter of law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986);

-3-

Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986).
Once the moving party has met its burden, the non-moving party may not rest on the
allegations of his pleadings but must set forth specific facts, by affidavit or other
evidence, showing that a genuine issue of material fact exists. United of Omaha Life
Ins. Co. v. Honea, 458 F.3d 788, 791 (8th Cir. 2006) (quoting Fed. R. Civ. P. 56(e)).
Rule 56 “mandates the entry of summary judgment, after adequate time for discovery
and upon motion, against a party who fails to make a showing sufficient to establish
the existence of an element essential to that party’s case, and on which that party will
bear the burden of proof at trial.” Celotex Corporation v. Catrett, 477 U.S. 317, 322
(1986).
III.

Discussion

Under Missouri law, which applies in this diversity case, the rules governing the
interpretation of insurance policies are well settled. Columbia Mut. Ins. Co. v. Schauf,
967 S.W.2d 74, 77 (Mo. 1998) (en banc). A court must apply the general rules of
contract construction when interpreting an insurance policy, because insurance policies
are contracts. Todd v. Missouri United Sch. Ins. Council, 223 S.W.3d 156, 160 (Mo.
2007) (en banc). If the language in an insurance contract is clear and unambiguous,
the court must construe the contract as written. Wasson v. Shelter Mut. Ins. Co., 358
S.W.3d 113, 120 (Mo. Ct. App. 2011) (quotation marks and citation omitted). The
words of a policy are given their ordinary meaning unless it is obvious that a technical
meaning was intended.

Gateway Hotel Holdings, Inc. v. Lexington Ins. Co., 275

S.W.3d 268, 275-76 (Mo. Ct. App. 2008) (citation omitted). The policy “must be given
effect according to the plain terms of the agreement, consonant with the reasonable
expectations, objectives and the intent of the parties.” Id. (citation omitted).

-4-

Where no ambiguity exists in the contract, the court enforces the policy as
written. Peters v. Employers Mut. Cas. Co., 853 S.W.2d 300, 302 (Mo. 1993) (en
banc); see also Black & Veatch Corp. v. Wellington Syndicate, 302 S.W.3d 114, 125
(Mo. Ct. App. 2009) (“Unless the insurance policy is ambiguous, the intent of the
parties is determined based on the contract alone, and not based on extrinsic or parol
evidence.”). An insurance policy is ambiguous when the language of the policy is
susceptible to multiple interpretations and its meaning is uncertain. Green v. PennAmerica Ins. Co., 242 S.W.3d 374, 383 (Mo. Ct. App. 2007) (citation omitted).
Ambiguous language is construed against the insurer. Peters, 853 S.W.2d at 302.
Where an insurer seeks to avoid coverage under a policy exclusion, it has the burden
of proving the applicability of the exclusion. Heringer v. American Family Mut. Ins. Co.,
140 S.W.3d 100, 103 (Mo. Ct. App. 2004).
A.

Unmarketability of Title

Captiva asserts that the pendency of mechanics’ liens renders its title to the
property unmarketable and claims coverage under the policy.
The policy states:
SUBJECT TO THE EXCLUSIONS FROM COVERAGE, THE EXCEPTIONS
FROM COVERAGE CONTAINED IN SCHEDULE B[,] AND THE CONDITIONS
AND STIPULATIONS, LAWYERS TITLE . . . insures, as of Date of Policy
shown in Schedule A, against loss or damage, not exceeding the Amount
of Insurance stated in Schedule A, sustained or incurred by the insured
by reason of:
***
3.

Unmarketability of the title;

***
“Unmarketability of title” is defined as:

-5-

[A]n alleged or apparent matter affecting the title to the land, not
excluded or excepted from coverage, which would entitle a purchaser of
the estate or interest described in Schedule A or the insured mortgage to
be released from the obligation to purchase by virtue of a contractual
condition regarding the delivery of marketable title.
[Doc. #1-1].
Fidelity asserts that the policy only covers unmarketability of title that arises
from conditions that existed before October 25, 2007, the amended policy date.
Generally, title insurance operates to protect a purchaser or mortgagee against defects
in or encumbrances on title which are in existence at the time the insured takes title.
Firstland Village Associates v. Lawyer’s Title Ins. Co., 284 S.E.2d 582, 583 (S.C. 1981).
Thus, title insurance differs from most other types of insurance because it seeks to
eliminate risk of loss arising from past events, rather than assuming risk of loss for
future events and then distributing the risk among policyholders.

Crossman v.

Yacubovich, 290 S.W.3d 775, 779 (Mo. Ct. App. 2009) (citation omitted); Ruisi v.
Connecticut Attorneys Title Ins. Co., No. FSTCV125013845S, 2012 WL 3854407, *2
(Conn. Super. Aug. 3, 2012) (title policy “is unique in that it is retrospective, not
prospective” and “is designed to protect against past events, not possible future
encumbrances.”). While insurers will be liable under most types of insurance policies
only for matters arising after the policy was issued, a title insurer will not be liable if
the defect, encumbrance or other matter for which the plaintiff is seeking benefits
came into being only after the issuance of the policy.1 Id. ; Evelyn I. Rechtzigel Trust
v. Fidelity Nat’l Title Ins. Co. of N.Y., 748 N.W.2d 312, 320 (Minn. Ct. App. 2008) (“The

1

While post-policy defects are generally excluded from coverage, there is a
limited exception for mechanics’ liens. 5 New Appleman on Insurance § 54.01[3][d][i].
Policies issued to lenders in conjunction with constructions loan may protect against
loss of a security interest resulting from mechanics’ liens. § 54.01[1][d].
-6-

risk of coverage is retrospective; only the discovery of the defect is usually
prospective.”)
Consistent with these principles, the loan policy in this case contains a provision
that explicitly excludes coverage for loss or damage arising from defects that attach
or are created subsequent to the date of the policy:
The following matters are expressly excluded from the
coverage of this Policy and [Fidelity] will not pay loss or
damage, costs, attorneys’ fees, or expenses which arise by
reason of:
***
3.

Defects, liens, encumbrances, adverse claims or other
matters . . . (d) attaching or created subsequent to Date of
Policy (except to the extent that this policy insures the
priority of the lien of the insured mortgage over any
statutory lien for services, labor or material).

Thus, Captiva must show that the condition causing the defect in marketability
(i.e., mechanics’ liens) occurred before October 25, 2007. Fidelity states that the
mechanics’ liens were recorded after October 25, 2007, and thus there is no coverage
for unmarketability. Captiva counters that, under Missouri law, unrecorded mechanics’
liens affect title.
Section 429.010, Mo. Rev. Stat., provides the circumstances in which a
mechanic’s lien attaches. It states, in relevant part:
Any person who shall do or perform any work or labor upon land . . .,
upon complying with the provisions of sections 429.010 to 429.340, shall
have for his or her work or labor done . . . a lien upon such building,
erection or improvements, and upon the land belonging to such owner or
proprietor on which the same are situated . . . to secure the payment of
such work or labor done.
§ 429.010.1.

-7-

Once a mechanic’s lien arises under § 429.010, it must be filed properly with the
relevant county’s circuit clerk to be enforceable.

§ 429.080.

However, “filing a

mechanic’s lien is irrelevant for the purpose of determining first-in-time priority
between competing encumbrances on real property.” Bob DeGeorge Associates, Inc.
v. Hawthorn Bank, 377 S.W.3d 592, 598 (Mo. 2012) (en banc). The “first spade rule”
under § 429.0602 gives the mechanic’s lien relation-back priority to the date when
work commenced so long as the lien arises on the land and is filed properly. Id. Under
Missouri law, the mechanics’ liens in this case “relate back” to the commencement of
construction, a date which precedes October 25, 2007.
Fidelity argues that, under Missouri law, mechanics’ liens do not encumber title
until they are filed.

In support, Fidelity cites Goodner v. Mosher-Roe Abstract &

Guaranty Co., 282 S.W. 698, 699 (Mo. 1926), in which the Missouri Supreme Court
stated that a mechanic’s lien “does not take tangible form as an incumbrance against
real estate until set forth in a document, verified and filed in conformity with statutory
provisions.” However, the lien at issue in Goodner was not filed in the proper office as
designated by statute.

Here, there is no dispute that the mechanics’ liens were

properly filed and Goodner is inapplicable.
Fidelity also cites Realty Sav. & Inv. Co. Washington Sav. & Bldg. Ass’n, 63
S.W.2d 167 (Mo. Ct. App. 1933). In Realty, the plaintiff was the holder of a second
deed of trust. The defendant, who held the first deed of trust, foreclosed on the
mortgaged property and used the excess proceeds to pay for labor and materials to

2

“The lien for work and materials . . . shall be preferred to all other
encumbrances which may be attached to or upon such buildings, bridges or other
improvements, or the ground, or either of them, subsequent to the commencement
of such buildings or improvements.” Mo. Rev. Stat. § 429.060.
-8-

persons who were entitled to file mechanics’ liens against the property but who had not
yet done so. Id. at 167-68. Defendant was aware of the debt secured by the second
deed of trust. In this circumstance, the state court rejected defendant’s contention
that the potential mechanics’ liens constituted an encumbrance on the title that took
priority over the second deed of trust. Id. “A claim may be developed into a lien upon
compliance with the law, but the mere possibility that it may become a lien does not
make it a lien.” Id. at 170. Again, in the present case, the mechanics’ liens were filed
and the principle for which Fidelity cites Realty does not apply.
“[T]he right of a mechanic to file a lien at the time a conveyance is made, is an
incumbrance within the meaning of a covenant against incumbrances.” Duffy v. Sharp,
73 Mo. App. 316, 322, 1898 WL 1925 (Mo. Ct. App. 1898) (rejecting argument that
claim arising from mechanic’s lien is “too remote” until lien is filed). On October 25,
2007, Lawyers Title insured National City Bank’s priority interest in the deed of trust.
Fidelity does not cite any provision of the October 25, 2007 endorsement that excludes
coverage for mechanics’ liens arising from work that was commenced before that date.
If contractors had a right to file liens as of that date, any subsequently-filed liens
related back by operation of § 429.060.
The Court is not persuaded by the argument Fidelity has presented here against
Captiva’s claim for coverage for unmarketable title. Nonetheless, the Court has been
unable to locate any cases finding an insurer liable for unmarketability arising from
mechanics’ liens under similar circumstances and thus is not persuaded that the
coverage is available. Captiva cites Guernsey Bank v. Milano Sports Enterprises, LLC,
No. 09AP-1015, 2011 WL 1780911 (Ohio Ct. App. May 5, 2011), in which the court
held that the insured was entitled to recover the costs it incurred to maintain property

-9-

it was unable to sell during the pendency of litigation, a situation which Captiva
describes as analogous to the present case. However, the damages in Guernsey were
awarded for a period of time that began when the trial court ordered the insurer to
provide coverage and ended when the insurer finally cleared the title. The Court
rejects Captiva’s assertion that, under Guernsey, an insured is entitled to all
consequential damages, including for unmarketabilty, that arise before the insurer’s
obligations have been determined.

Assuming, without deciding, that coverage is

available, whether Captiva’s title is unmarketable is a factual determination to be made
at trial.
B.

Mechanics’ Liens Coverage3

Sixteen contractors filed mechanics’ liens arising from their work on the Majestic
Pointe development. The claims of six contractors have been decided in Captiva’s
favor. On September 19, 2012, judgment was entered in favor of five lien claimants,
for an amount in excess of $900,000. Grau Contracting, Inc. v. National City Bank et
al., No. 08CM-CC00412 (26th Judicial Circuit Sept. 19., 2012). Fidelity has filed an
appeal of the judgment.
1.

Exclusion 3(a)

Fidelity has reserved its right to determine that coverage of the lien claims is
barred by exclusion 3(a), which bars coverage for losses that arise by reason of
“[d]efects, liens, encumbrances, adverse claims or other matters: (a) created,
suffered, assumed or agreed to by the insured claimant.”
The construction loan agreement between National City and Majestic Pointe
specified that loan proceeds would be disbursed on a periodic basis. Construction Loan

3

The loan policy provides coverage for mechanics’ liens at Insuring Provision 7.
-10-

Agreement, Art. 6 [Doc. #1-4]. As a condition of each disbursement, Majestic Pointe
was required to submit lien waivers for “all work done on the Premises, to a reasonably
current date, otherwise paid for or to be paid for by the Borrower.” § 6.3(e). Fidelity
asserts that National City advanced some loan proceeds without obtaining lien waivers
as an accommodation to Majestic Pointe. Without the lien waivers, Fidelity argues,
National City could not know that the contractors were being paid and thus “created”
a risk that mechanics’ liens would be filed. Fideilty asserts exclusion 3(a) applies and
bars coverage for the liens. Captiva asserts that, as a matter of law, the exclusion
does not apply to National City’s alleged conduct.
Missouri law strictly construes exclusionary clauses against the insurer, who
bears the burden of showing the exclusion applies. Burns v. Smith, 303 S.W.3d 505,
510 (Mo. 2010).

“The ‘created or suffered’ exclusion is a standard one in title

insurance contracts, and it is apparently ‘[o]ne of the most litigated’ clauses in the
field.” Home Fed. Sav. Bank v. Ticor Title Ins. Co., 695 F.3d 725, 732 (7th Cir. 2012)
(quoting Joyce Palomar, 1 Title Ins. Law § 6:10). The Eighth Circuit has held that the
exclusion is ambiguous and must be strictly construed against the insurer. Chicago
Title Ins. Co. v. Resolution Trust Corp., 53 F.3d 899, 907 (8th Cir. 1995).
The “created or suffered” language is intended to protect the insurer from
liability for matters caused by the insured’s own intentional misconduct, breach of duty,
or otherwise inequitable dealings. Id.
The cases discussing the applicability of the “created or suffered”
exclusion generally have stated that the insurer can escape liability only
if it is established that the defect, lien or encumbrance resulted from
some intentional misconduct or inequitable dealings by the insured or the
insured either expressly or impliedly assumed or agreed to the defects or
encumbrances in the course of purchasing the property involved. The
courts have not permitted the insurer to avoid liability if the insured was

-11-

innocent of any conduct causing the loss or was simply negligent in
bringing about the loss.
Brown v. St. Paul Title Ins. Co., 634 F.2d 1103, 1107–08 n. 8 (8th Cir. 1980); see also
Home Fed. Sav. Bank, 695 F.3d at 733 (“clear majority” of courts hold that exclusion
applies only to “intentional misconduct, breach of duty, or otherwise inequitable
dealings by the insured”).
Three cases are relevant to the application of exclusion 3(a) to this case: Brown
v. St. Paul Title Ins. Co., 634 F.2d 1103 (8th Cir. 1980), Chicago Title Ins. Co. v.
Resolution Trust Corp., 53 F.3d 899 (8th Cir. 1995), and First Assembly Church of West
Plains v. Ticor Title Ins. Co., 872 S.W.2d 577 (Mo. Ct. App. 1994). In Brown, the
insured lender stopped making disbursements after the developer failed to make an
interest payment. The disbursements were necessary to pay for completed work, so
when the lender stopped making payments it was guaranteed that mechanics’ liens
would arise. See Chicago Title, 53 F.3d at 906 (discussing Brown). The Eighth Circuit
held that the liens were created or suffered as a result of the lender’s refusal to
disburse funds necessary to pay for the work completed between the final
disbursement and the developer’s default. Brown, 634 F.2d at 1108-09. “To hold
otherwise,” the court said, “would give the insured an unwarranted windfall and would
place the title insurer in the untenable position of guaranteeing payment for work for
which the loan funds were never advanced.” Id. at 1110.
The Eighth Circuit distinguished Brown in Chicago Title Ins. Co. v. Resolution
Trust Corp., 53 F.3d 899 (8th Cir. 1995). The lender in Chicago Title took several
steps to keep the construction project moving forward despite cost overruns. The
lender gave up interest payments, distributed funds earmarked for future work to pay
for completed work, and convinced the developer to use funds budgeted for its own
-12-

fees to pay subcontractors. Id. at 902. The lender ultimately expended more money
than it had committed for the loan. Id. at 906. The insurer refused coverage for
mechanics’ liens under exclusion 3(a).

The Eighth Circuit rejected the insurer’s

assertion that an insured “creates” liens whenever it fails to provide sufficient funds to
complete a project. Unlike in Brown, the lender did not hold back funds; indeed, it
eliminated some potential lien claims by advancing funds to pay for completed work.
Id. Ultimately, the court determined that the lender “did not engage in affirmative
misconduct or intentionally cause liens.” Id. at 907. Though the lender may have
used poor judgment or acted negligently, “[i]ts actions were not inequitable . . . and
coverage would not [provide] an unwarranted windfall.” Id. at 908 (citing Brown).
Thus, the insurer failed to meet its burden of proving that the exclusion applied.
Fidelity acknowledges Brown and Chicago Title but argues that exclusion 3(a)
applies where an insured commits an intentional, rather than inadvertent, act. In
support, Fidelity cites First Assembly Church of West Plains v. Ticor Title Ins. Co., 872
S.W.2d 577 (Mo. Ct. App. 1994), in which the Missouri Court of Appeals held that
“where the conduct which forms the basis for the claim is intentional and deliberate,
as opposed to inadvertent or mistaken, the adverse claim will be considered as having
been ‘created’ and therefore excluded under the policy.” Id. at 583 (citing Safeco Title
Ins. Co. v. Moskopoulos, 172 Cal. Rptr. 248, 253 (1981)). Fidelity reads the holding
too broadly.
The named insured in First Assembly was a breakaway faction of a church that
attempted to transfer the church’s property to itself and then insure its interest in the
title. When litigation over title to the church property ensued, the breakaway group
made a claim for defense. The insurer refused, claiming that the claims flowed from

-13-

the insured’s action in attempting to disassociate from the larger church and take
control of the property in violation of the church’s constitution and bylaws and contrary
to the right of the proper authorities to control the affairs of the church. Id. at 583.
It was against this background that the Missouri Court of Appeals held that exclusion
3(a) applied. The court found that the claims for which coverage was sought arose
from the intentional, affirmative actions of the named insured. “Where the conduct
which forms the basis for the claim is intentional and deliberate, as opposed to
inadvertent or mistaken, the adverse claim will be considered as having been ‘created’
and therefore excluded under the policy.” Id. at 583. The breakaway church’s claims
to the property arose from its violation of organizational documents or its affirmative
action contrary to the supervision and control it authorized in those documents. Id.
at 583-84.
The Court disagrees with Fidelity that First Assembly Church lowers its burden
for establishing that exclusion 3(a) applies. The intentional act committed by the
insured in First Assembly Church was the improper assertion of title to the property in
the first instance. It thus “created” the adverse claim for which it sought coverage.
In this case, the allegation is that the properly insured title holder may have created
a risk of liens in the course of doing that which it was entitled to do -- disburse loan
proceeds. Setting off a chain of events that results in mechanics’ liens, without more,
will not result in exclusion under 3(a). Barlow Burke, Law of Title Ins., § 4.04 (absent
the insured’s bad faith or a conspiracy to create the defect, the insured who is remote
in a chain of events creating a defect, may still have the defect covered by the policy).
Exclusion 3(a) will apply if Fidelity can show “intentional misconduct, breach of
duty, or otherwise inequitable dealings” by National City Bank, or that recovery for

-14-

individual lien claims would amount to an unwarranted windfall because National City
received the benefit of the work reflected in the liens without disbursing payment.
2.

Breach of the duty to defend

Assuming that coverage is not excluded, the parties dispute whether Fidelity has
met its contractual obligations with respect to the liens.
Fidelity’s defense obligations are set forth in the Conditions and Stipulations.
4.

DEFENSE AND PROSECUTION OF ACTIONS . . .

(a)
Upon written request by the insured . . ., [Fidelity], at its
own cost and without unreasonable delay, shall provide for the defense
of an insured in litigation in which any third party asserts a claim adverse
to the title or interest as insured, but only as to those stated causes of
action alleging a defect, lien or encumbrance or other matter insured
against by this policy. [Fidelity] shall have the right to select counsel of
its choice (subject to the right of the insured to object for reasonable
cause) to represent the insured as to those stated causes of action . . .
(b)
[Fidelity] shall have the right, at its own cost, to institute
and prosecute any action or proceeding or to do any other act which in
its opinion may be necessary or desirable to establish title to the estate
or interest or the lien of the insured. [Fidelity] may take any appropriate
action under the terms of this policy, whether or not it shall be liable
hereunder, and shall not thereby concede liability or waive any provision
of this policy. If [Fidelity] shall exercise its rights under this paragraph,
it shall do so diligently.
Captiva alleges that Fidelity breached its duty to defend when it “refused to
defend and maintained its reservation of rights.” Missouri law permits an insurer to
defend its insured while reserving the right to later disclaim coverage. Truck Ins. Exch.
v. Prairie Framing, LLC, 162 S.W.3d 64, 88 (Mo. Ct. App. 2005) (citations omitted).
The insured has the option of either accepting the insurer’s defense under a
reservation of rights or refusing such defense. Id.; Brooner & Assoc. v. Western Cas.
& Sur., 760 S.W.2d 445, 447 (Mo. Ct. App. 1988) (insurer does not waive any policy
provisions if insured accepts defense subject to a reservation of its right to assert non-15-

liability “without protest and with full knowledge and passive acquiescence”).

If the

fully-notified insured accepts, the insurer’s defense under a reservation of rights will
not be considered a denial of coverage.

Truck Ins. Exch., 162 S.W.2d at 88.

Furthermore, the insurer is entitled to bring an action for declaratory judgment as to
its obligation in the underlying litigation. Central Bank v. St. Paul’s Fire & Marine Ins.,
929 F.2d 431, 433 (8th Cir. 1991) (citing State ex rel. Mid–Century Ins. Co. v.
McKelvey, 666 S.W.2d 457 (Mo. Ct. App. 1984)).
Captiva cites a number of cases to support its contention that Fidelity breached
the contract by offering a defense subject to a reservation of rights.

Ballmer v.

Ballmer, 923 S.W.2d 365 (Mo. Ct. App. 1996); State ex rel. Rimco, Inc. v. Dowd, 858
S.W.2d 307 (Mo. Ct. App. 1993); Whitehead v. Lakeside Hosp. Ass’n, 844 S.W.2d 475
(Mo. Ct. App. 1992); State ex rel. Mid-Century Ins. Co. v. McKelvey, 666 S.W.2d 457
(Mo. Ct. App. 1984). These cases all involved an insurer’s liability after an insured
rejects the defense subject to reservation. See Ballmer, 923 S.W.2d at 369 (if insured
rejects defense subject to reservation, insurer may represent the insured without a
reservation, withdraw from representing the insured altogether, or file a declaratory
judgment action to determine the scope of the policy.) Fidelity offered a defense of
the mechanics’ liens subject to a reservation of rights and there is no evidence that
Captiva rejected that defense. Thus, the cited cases are inapplicable.
Fidelity asserts that it has fully satisfied its obligations with respect to the liens
that were defeated and cites the following provision:
8.

LIMITATION OF LIABILITY

(a)
If the Company establishes the title, or removes the alleged
defect, lien or encumbrance . . . or cures the claim of unmarketability of
title, or otherwise establishes the lien of the insured mortgage, all as
insured, in a reasonably diligent manner by any method, including
-16-

litigation and the completion of all appeals therefrom, it shall have fully
performed its obligations with respect to that matter and shall not be
liable for any loss or damage caused thereby.
Multiple mechanics’ liens were filed against the Majestic Pointe development and,
while some have been defeated outright and others are being appealed, the status of
the remainder is unclear.

In addition, Captiva complains that Fidelity improperly

limited the scope of the defense to Captiva’s detriment. Under this circumstance, the
Court finds that questions of fact preclude a determination on summary judgment that
Fidelity has satisfied its obligations under the policy.
Captiva asserts additional claims that Fidelity determined that the policy did not
afford coverage but concealed this determination from Captiva, thereby breaching its
duty to Captiva, and that Fidelity tortiously interfered in Captiva’s relationship with
SSB. These claims will be taken up at trial.
Accordingly,
IT IS HEREBY ORDERED that the parties’ cross motions for partial summary
judgment [Docs. #180, #184] are denied.

___________________________
CAROL E. JACKSON
UNITED STATES DISTRICT JUDGE
Dated this 22nd day of April, 2013.

-17-