BV Jordanelle LLC et al v. Old Republic National Title Insurance

Filing 29

MEMORANDUM DECISION AND ORDER granting 15 Motion for Judgment on the Pleadings. Signed by Judge David Nuffer on 8/5/15 (alt)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, CENTRAL DIVISION
BV JORDANELLE, LLC, an Idaho, limited
liability company, and BV LENDING, LLC,
an Idaho limited liability company,

MEMORANDUM DECISION AND ORDER
GRANTING MOTION FOR JUDGMENT
ON THE PLEADINGS

Case No. 2:14-cv-00351-DN

Plaintiffs,
v.

District Judge David Nuffer

OLD REPUBLIC NATIONAL TITLE
INSURANCE COMPANY, a Minnesota
corporation,

Defendant.

Defendant Old Republic National Title Insurance Company (“Old Republic”) filed a
motion for judgment on the pleadings (the “Motion”). 1 For the reasons set forth below, the
Motion is GRANTED, and the Complaint 2 filed by BV Jordanelle, LLC (“BVJ”) and BV
Lending LLC’s (“BVL”) (collectively “Plaintiffs”), is DISMISSED with prejudice.
BACKGROUND
BVJ and BVL allege that in October 2005, Wasatch County Council (“WCC”), acting as
the governing authority of Jordanelle Special Service District (“JSSD”), adopted a resolution
declaring an intention to finance certain improvements in JSSD; create Jordanelle Special
Service Improvement District (“SID”); defray the costs and expenses of the improvements by
special assessment to be levied against the properties benefited by the improvements; provide

1

Old Republic National Title Insurance Company’s Motion for Judgment on the Pleadings and Memorandum in
Support (Motion), docket no. 15, filed January 8, 2015.

2

Complaint, docket no. 2-1, filed May 7, 2014.

notice of intention to authorize such improvements; and set a time and place for a protest hearing
against the improvement or creation of the SID. 3 In February 2006, WCC issued a resolution
creating the SID (the “Creation Resolution”). 4
In March 2008, BVL made two loans (the “Loans”) to PWJ Holding (“PWJ”) for a total
of $6,349,206.00, secured by a Deed of Trust (the “Mortgage”). In April 2008, Old Republic
issued a Loan Policy of Title Insurance (the “Policy”) 5 to BVL insuring the Mortgage for the
total amount of the Loans.
In June 2009, WCC recorded a notice of the proposed assessment against the property
secured by the Mortgage (the “Insured Property”). 6 In July 2009, WCC adopted an ordinance
levying an assessment on the Insured Property (the “Ordinance”). 7 In August 2009, JSSD
adopted and, in September of the same year, recorded a notice of the assessment interest against
the Insured Property. 8
In October 2009, because of PWJ’s default on the Loans, BVL foreclosed on the Insured
Property. 9 Subsequently BVL transferred the title of the Insured Property to BVJ. 10
BVJ and BVL allege that they learned about the assessment sometime in January 2010. 11
In September 2010, they submitted to Old Republic a claim to indemnify and defend them

3

Id. ¶¶ 9-13, and attached Ex. A.

4

Id. ¶ 14, and attached Ex. A.

5

Id. ¶ 26, and attached Ex. B.

6

Id. ¶ 34.

7

Id. ¶ 35, and attached Ex. C.

8

Id. ¶ 44.

9

Id. ¶¶ 48, 49.

10

Id. ¶ 52.

11

Id. ¶ 43.

2

against the assessment. 12 Old Republic declined to indemnify them and stated that the risk
claimed occurred after the Policy was issued and thus is not covered by the Policy. 13
BVJ and BVL brought suit against Old Republic on May 7, 2014, alleging that Old
Republic breached the insurance contract by denying them indemnity under the Policy, failing to
defend them against claims related to the Insured Property, and violating the implied covenant of
good faith and fair dealing.
Old Republic’s motion for judgment on the pleadings argues that the complaint is not
supported by factual allegations. Old Republic argues that the Policy is unambiguous; does not
include the risk claimed by Plaintiffs, but expressly excepts the risk even if the Policy is read to
cover the risk; 14 and does not obligate Old Republic to defend BVJ and BVL against risks not
provided for in the Policy.
BVJ and BVL respond 15 that the alleged risk is covered by and not excepted from the
Policy. They also argue that regardless of the risk’s coverage, Old Republic breached its duty to
defend them because the duty to defend is broader than the duty to indemnify.
Old Republic replied 16 that BVJ and BVL did not assert facts that show Old Republic’s
obligation to indemnify or defend Plaintiffs from the alleged risk.

12

Id. ¶ 58, and attached Ex. E.

13

Id. ¶¶ 62, 63.

14

Motion at 14; Old Republic National Title Insurance Company’s Reply Memorandum in Support of Motion for
Judgment on the Pleadings (Reply) at 14, docket no. 22, filed March 20, 2015.
15

Plaintiffs’ Memorandum in Opposition to Defendant’s Motion for Judgment on the Pleadings (Opposition),
docket no. 19, filed February 23, 2015.

16

Reply at 2.

3

JUDGMENT ON THE PLEADINGS STANDARD OF REVIEW ............................................... 4
DISCUSSION ................................................................................................................................. 4
Title Insurance Policy Does Not Cover the Improvement Assessment Levied After
the Date of the Policy.............................................................................................. 5
Creation of a Special Improvement District Does Not Create an Improvement
Assessment on the Property ........................................................................ 5
An Improvement Assessment Levied After the Date of the Policy Does Not
Constitute a Defect, Lien, or Encumbrance on the Title to the Insured
Property ....................................................................................................... 6
Construction on the Insured Property and the Policy Exceptions........................... 9
Brewer Does Not Apply........................................................................................ 11
An Insurer Has No Duty to Defend an Insured against Claims Not Covered by the
Policy .................................................................................................................... 13
Good Faith and Fair Dealing May Not Imply a Duty Beyond the Contract ..................... 13
ORDER ......................................................................................................................................... 15
JUDGMENT ON THE PLEADINGS STANDARD OF REVIEW
A motion for judgment on the pleadings under Rule 12(c) of the Federal Rules of Civil
Procedure is evaluated by the same standard as a Rule 12(b)(6) motion to dismiss for failure to
state a claim. 17 The factual details supporting a claim must be sufficient to make the claim
plausible, rather than merely possible; i.e., “enough to raise a right to relief above the speculative
level . . . .” 18 It must be reasonable for a court to draw the inference that the defendant is liable
based on the facts stated. 19 Recitations of elements of a claim and conclusory statements lack
sufficient detail, and cannot trigger a court’s assumption that all of the statements made in the
pleading are true. 20
DISCUSSION
The issue presented is whether the intention to create the SID and levy the assessment on
the Insured Property; creation of the SID and its recording; construction work on the Insured

17

See, e.g., Myers v. Koopman, 738 F.3d 1190, 1193 (10th Cir. 2013); Fed. R. Civ. P. 12(c); Fed. R. Civ. P.
12(b)(6).
18

Bell Atlantic v. Twombly, 550 U.S. 544, 545 (2007).

19

See Ashcroft v. Iqbal, 556 U.S. 662, 663 (2009).

20

Id.

4

Property conducted prior to the Ordinance; or any combination of these events constitute a risk
covered by the Policy.
“An insurance policy is merely a contract between the insured and the insurer and is
construed pursuant to the same rules applied to ordinary contracts.” 21 “Whether ambiguity exists
in a contract is a question of law.” 22 “[W]ords and phrases do not qualify as ambiguous simply
because one party seeks to endow them with a different interpretation according to his or her
own interests.” 23
“Title insurance, as opposed to other types of insurance, does not insure against future
events.” 24 Where a party claims that the ambiguity in the insurance contract arises from the
exclusions to the policy, the court first determines whether the claims are covered by the
policy. 25 If the “claims are not covered by the policy, then the exclusions are not relevant.” 26
Title Insurance Policy Does Not Cover the Improvement Assessment Levied
After the Date of the Policy
Creation of a Special Improvement District Does Not Create an
Improvement Assessment on the Property
Plaintiffs claim that WCC’s Creation Resolution created an assessment lien on the
Insured Property. 27 They further allege that the assessment lien thus created was senior to the
Mortgage, and was not extinguished by BVL’s foreclosure on the Insured Property. If this is true,

21

Alf v. State Farm Fire & Cas. Co., 850 P.2d 1272, 1274 (Utah 1993).

22

Winegar v. Froerer Corp., 813 P.2d 104, 108 (Utah 1991).

23

Saleh v. Farmers Ins. Exch., 133 P.3d 428, 433 (Utah 2006).

24

Vestin Mortg., Inc. v. First Am. Title Ins. Co., 101 P.3d 398, 402 (Utah Ct. App. 2004), aff'd, 139 P.3d 1055 (Utah
2006).
25

Id. at 401.

26

Id.

27

Complaint ¶ 91.

5

they say, their loss is covered by the Policy. 28 Plaintiffs’ arguments fail for the reasons set forth
below.
According to Utah Code Ann. § 11-42-501(1) 29 the “assessment levied . . . constitutes a
lien against the property assessed as of the effective date of the assessment resolution or
ordinance.” Utah Code Ann. §§11-42-201 to -202 requires local entities intending to levy an
assessment on property to designate an assessment area, give notice to owners of the property,
consider protests, and hold a public hearing.
“Neither the creation of the SID nor the filing of the Notice of Intention creates a lien on
real property that affects the title.” 30 The SID or notice to levy an assessment on property does
not create an encumbrance or defect. 31 Only a resolution or ordinance actually levying the
assessment on the property can create a lien.
Old Republic issued the Policy on April 4, 2008. The Ordinance levying the assessment
was passed on July 8, 2009, more than a year after the Policy issued. Thus, the Policy did not
cover the assessment levied by the Ordinance (the “Assessment Lien”) because the lien was
created after the date of the Policy.
An Improvement Assessment Levied After the Date of the Policy Does Not Constitute a
Defect, Lien, or Encumbrance on the Title to the Insured Property
Plaintiffs argue that Covered Risks 2, 5, and 8 of the Policy provide insurance coverage
against local entities’ recorded intention to create the SID and the Assessment Lien, 32 which
28

Id. ¶ 91-93.

29

This provision of the statute became effective on April 30, 2007, after the notice of intention to create the SID on
October 19, 2005 and the SID creation on February 15, 2006, but before the Ordinance was issued on July 8, 2009.
Prior to April 30, 2007 another provision, regulating the matter substantially in the same manner, was in force. (See
Utah Code Ann. § 17A–3–304(3)(b) (1999)).
30

Vestin Mortg., Inc. v. First Am. Title Ins. Co., 139 P.3d 1055, 1057 (Utah 2006).

31

Id.

32

Opposition at 24-26, 28-31.

6

distinguishes this case from the Vestin case relied on by Old Republic. In Vestin, a city adopted a
resolution that created a special improvement district. The title insurance on the real property
was issued after the creation of a special improvement district, but before the resolution levying
the assessment. In its decision affirmed by the Utah Supreme Court, the Utah Court of Appeals
found that the creation of a special improvement district with intention to levy an assessment for
the improvements on the property does not affect the title to real property. 33
First, Plaintiffs argue that Covered Risk 2 of the Policy contains “broad and more specific
language” than in the title insurance policy in Vestin. Covered Risk 2 of the Policy, although it
contains language not found in Vestin, is not broader than the similar provision of the title
insurance policy in Vestin.
In Vestin, Covered Risk 2 of the insurance policy provided coverage for “[a]ny defect in
or lien or encumbrance on the Title.” 34 Here, in addition to the language in the insurance policy
in Vestin, this Policy contains the following provision: “This Covered Risk includes but is not
limited to insurance against loss from (a) A defect in the Title . . . ; (b) The lien of real estate
taxes or assessments imposed on the Title . . . ; (c) Any encroachment, encumbrance, violation,
variation, or adverse circumstance affecting the Title . . . .” 35 The provision in this Policy is not
any more broad than the similar provision in Vestin. The additional language does not broaden,
but only provides non-exclusive examples of covered risks. Plaintiffs’ attempt to distinguish
Vestin from this case based on the additional language in Covered Risk 2 of the Policy fails.
Second, Plaintiffs argue that Vestin is also distinguishable from this case because
Covered Risk 5 of the Policy provides insurance against subdivision of land, which was not an

33

Vestin Mortg., 101 P.3d at 403 (Utah Ct. App. 2004).

34

Policy of Title Insurance, attached as Ex. F to Opposition.

35

Loan Policy of Title Insurance (Policy) at 1, attached as Ex. C to Opposition.

7

issue in Vestin. 36 Plaintiffs did not raise the subdivision issue in the Complaint, and raise it for
the first time in their Opposition. Vestin is applicable to this case because it establishes that
regardless of any potential subdivision issues the insurance policy covers risks arising from the
improvement assessment. According to Covered Risk 5 (c) of the Policy, Old Republic insured
Plaintiffs against
the violation or enforcement of any law, ordinance, permit, or governmental
regulation . . . relating to: . . . (c) the subdivision of land . . . . If a notice,
describing any part of the Land, is recorded in the Public Records setting forth the
violation or intention to enforce . . . . 37
Plaintiffs argue that the Creation Resolution and the notice of intention to levy
assessment on the Insured Property triggered protection against violation or enforcement of law
relating to the subdivision. 38 This argument fails because neither the Creation Resolution nor the
notice of intention to levy assessment on the Insured Property constitutes a recording of a
violation or enforcement of law related to the subdivision of land.
Plaintiffs further allege that in their state litigation with JSSD, 39 JSSD argued that the
Insured Property was illegally subdivided. 40 However, the issue JSSD argued before the state
court was the amount of the assessment on the property and did not relate to the coverage under
the Policy. Because Plaintiffs did not seek indemnity from Old Republic for any losses or
damages incurred due to illegal subdivision of land and because there is no evidence of a
recorded “violation or enforcement of any law, ordinance, permit or governmental regulation”
against the Insured Property, Covered Risk 5 was not triggered.
36

Vestin Mortg., 101 P.3d at 401-02 (Utah Ct. App. 2004).

37

Policy at 1, attached as Ex. C to Opposition.

38

Opposition at 24-26.

39

See BV Lending, LLC v. Jordanelle Special Serv. Dist., Case No. 100500444 (Utah Fourth Dist., Heber, Wasatch
Cty.).

40

Opposition at 26.

8

Third, Plaintiffs argue that Covered Risk 8 of the Policy provides insurance coverage
against “[a]ny taking by a governmental body that has occurred and is binding on the rights of a
purchaser for value without Knowledge.” 41 Plaintiffs assert that because this provision on
protection against governmental takings was not at issue in Vestin, but was at issue in litigation
between Plaintiffs and JSSD, Vestin does not apply to this case. 42 Vestin does apply to this case
because taking is not the basis for claims under the Policy in this case as it was not in Vestin.
Also, Plaintiffs’ complaint does not assert Old Republic’s failure to indemnify under
Covered Risk 8 of the Policy. The provision of Covered Risk 8 covers only governmental takings
that have occurred as of the date of the Policy. Because Plaintiffs do not allege that as of the date
of the Policy a taking of the Insured Property occurred, or that they claimed and were denied the
coverage provided for in Covered Risk 8 of the Policy, this argument fails.
Construction on the Insured Property and the Policy Exceptions
Plaintiffs argue that because of the “the superiority of the assessment lien that stemmed
from the construction of the improvements that had begun prior to the issuance of the Old
Republic Policy, Old Republic is responsible for BV’s losses . . . .” 43 The Complaint alleges that
construction on the Insured Property that was underway before the Ordinance was passed and the
Policy was issued. 44 Plaintiffs also argue that Old Republic’s failure to list the Creation
Resolution in the exceptions from coverage shows that the Creation Resolution is not excluded
from, and therefore is included in, Policy coverage. 45 In their opposition memorandum, Plaintiffs

41

Policy at 2, attached as Ex. C to Opposition.

42

Opposition at 30, 31.

43

Id. at 28.

44

Complaint ¶ 67.

45

Id. ¶¶ 29, 30; Opposition at 43, 44.

9

argue that they have coverage under Covered Risk 11 and Schedule B-1 of the Policy. 46 The
Policy provides that it is effective “as of Date of Policy and, to the extent stated in Covered Risks
11, 13, and 14, after Date of Policy, against loss or damage, not exceeding the Amount of
Insurance . . . .” 47 Risk 11 of the Policy insures BVL for
[t]he lack of priority of the lien of the Insured Mortgage upon the Title (a) as
security for each and every advance of proceeds of the loan secured over statutory
lien for services, labor, or material arising from a construction of an improvement
or work related to the Land . . . . 48
An improvement district lien is not a “statutory lien for services, labor, or material arising
from a construction of an improvement or work . . . .” 49 The lien arises under authority of statute
but only on a detailed course of action by the JSSD. An assessment lien is not a statutory lien.
Title insurance loan policies today also insure against loss caused by
certain mechanic’s liens and materialmen’s liens being given priority over the
insured mortgage lien. The mechanic’s liens and materialmen’s liens covered are:
(1) those arising from an improvement or work related to the land which was
contracted for or commenced before the day of the policy, and (2) those arising
from an improvement or work related to the land which was contracted for or
commenced after the policy date, but which was financed by proceeds of the
indebtedness secured by the insured mortgage that the insured had advanced or
was obligated to advance at the policy date . . . . This insurance clause does not
. . . cover municipal liens for special assessments for other public works. 50
The risk covered by subparagraph (a) does not apply.
Even assuming that the purported construction created an assessment lien on the Insured
Property and is within the Covered Risks defined in the Policy, Schedule B-1 expressly provides
that the Policy does not cover assessments levied on the Insured Property merely because it is
46

Opposition at 27, 42.

47

Policy at 2, attached as Ex. C to Opposition.

48

Id.

49

Id.

50

1 Joyce D. Palomar, Title Ins. Law § 5:16 (2014-2015 ed.). See also Cole v. Home Title Guar. Co., 285 N.Y.S.2d
914, 915 (N.Y. App. Div. 1967) (“[A]ny other determination would be inconsistent with the concept of assessments
as distinguished from mechanics’ liens and would impose a risk which the title company . . . did not assume.) aff’d,
296 N.Y.2d 760 (N.Y. 1968).

10

located within the boundaries of WCC or JSSD 51. Specifically, the Policy states that it “does not
insure against loss or damage . . . costs . . . or expenses that arise by reason of: [Insured Property]
lies within the boundaries of Wasatch County . . . , Jordanelle Special Service District, and is
subject to any and all charges and assessment thereof.” 52
Plaintiffs further argue that Old Republic’s failure to list the Creation Resolution in
Schedule B-1 of the Policy proves that the Creation Resolution is a risk covered by the Policy. 53
This argument fails because the exceptions to the Policy cannot expand the risks covered by the
Policy. Subject to certain exceptions, the Policy protects the insured against the liens created as
of the date of the Policy and listed in the Policy. The Policy does not cover the Assessment Lien
because that lien did not exist as of the date of the Policy. Consequently, Old Republic was not
obligated to indemnify Plaintiffs for any losses and damages Plaintiffs incurred because of the
Assessment Lien or Creation Resolution.
Brewer Does Not Apply
Plaintiffs claim that Brewer v. Peatross 54 supports the position that the encumbrance on
the Insured Property was created before the Ordinance and Policy were issued. 55 Plaintiffs argue
that this case should be resolved consistently with Brewer. 56 This argument is without merit.
Brewer was a dispute over a warranty deed, not an insurance contract. In Brewer,
defendant transferred land to plaintiff by a warranty deed and falsely represented to plaintiff that
the purchase price of the land included the cost of the improvements under way. The defendant

51

Complaint Ex. B, Schedule B-1 ¶ 3.

52

Id.

53

Complaint ¶¶ 29, 30; Opposition at 43, 44.

54

Brewer v. Peatross, 595 P.2d 866 (Utah 1979).

55

Opposition at 37-39.

56

Id. at 39, 40.

11

affirmatively assured plaintiff that plaintiff would not have any future obligations in connection
with the improvements. The court in Brewer specifically stated that it saw “no reason to disagree
with the argument . . . that the mere existence of . . . an improvement district does not necessarily
constitute an encumbrance.” 57
The court in Brewer stated that
[i]n order to [constitute an encumbrance], [an improvement] district must have
progressed to the point that the fact that there is some burden upon the property is
either discoverable from the record, or the circumstances are such that the grantor
either had or should have had knowledge that there was such a burden. 58
The reason the court in Brewer held the defendant responsible for the cost of the construction is
that when the deeds were executed, the defendants had actual knowledge of the
existence and purpose of the improvement district; that they were aware that the
improvements were in various stages of completion; and that the costs being
incurred were to be assessed against the properties in question. Moreover, there
was evidence that when plaintiff purchasers inquired as to whether the purchase
price of the lots included the improvements, they were assured that it did. 59
Brewer is inapplicable to this case because the issue in Brewer was the breach of
warranty in the deed compounded by seller’s misrepresentation of the buyer’s obligations after
the transfer of the land, not the effective date of a lien created by an improvement assessment
that triggers an insured risk. Moreover, WCC, as shown in Plaintiffs’ Exhibit E to the Complaint,
stated in multiple notices that the Assessment Lien arises out of the Ordinance. It follows that the
Assessment Lien was levied after the date of the Policy and therefore it is not covered by the
Policy.

57

Brewer, 595 P.2d at 868.

58

Id.

59

Id.

12

An Insurer Has No Duty to Defend an Insured against Claims Not Covered by the Policy
Plaintiffs claim that in addition to the obligation to indemnify, Old Republic has a broad
duty to defend Plaintiffs against claims related to the Assessment Lien. Plaintiffs argue that the
duty to defend is broader than the duty to indemnify and arises “when the insurer ascertains facts
giving rise to potential liability under the insurance policy.” 60 Plaintiffs incorrectly emphasize
the “potential liability” portion of this statement. Instead, the focus should be on “when insurer
ascertains facts giving rise . . . .”
The Policy unambiguously states in Covered Risk 14 that Old Republic will be
responsible for “the costs, attorney’s fees, and expenses incurred in defense of any matter insured
against by this Policy . . . .” 61 The “matter” claimed by Plaintiffs – the matter from which their
claimed loss arises – is the purported lien created by the Creation Resolution, which is not
covered by the Policy because it does not constitute an event that triggers insurance coverage.
Similarly, the Assessment Lien was not covered by the Policy because it was created after the
Policy was issued. Consequently, Plaintiffs’ claim to Old Republic for coverage did not assert
“facts giving rise” to Plaintiffs’ liability under the Policy. Thus, Old Republic was not obligated
to defend Plaintiffs in connection with the Assessment Lien and Plaintiffs’ second cause of
action claim fails.
Good Faith and Fair Dealing May Not Imply a Duty Beyond the Contract
Plaintiffs claim that Old Republic breached the implied covenant of good faith and fair
dealing. Neither the Complaint, nor the opposition to the Motion states which actions or
inactions Plaintiffs allege to constitute the breach. Plaintiffs did not support this assertion with
factual allegations or supporting legal authority.
60

Sharon Steel Corp. v. Aetna Cas. & Sur., 931 P.2d 127, 133 (Utah 1997).

61

Policy at 2, attached as Ex. C to Opposition.

13

The implied covenant of good faith and fair dealing is a contract claim. 62 Under this
covenant, “each party impliedly promises that he will not intentionally or purposely do anything
which will destroy or injure the other party’s right to receive the fruits of the contract.” 63 The
covenant cannot be read to establish independent rights or duties not agreed by the parties. 64 The
covenant cannot create rights and duties inconsistent with express contractual provisions. 65 The
covenant cannot compel a party to act “to its own detriment for the purpose of benefitting
another party to the contract.” 66 A court will not interpret the covenant in a way that is
“inconsistent with the express terms of the applicable contract.” 67
A court may find that the parties are bound by an affirmative implied covenant “where it
is clear” either “from the parties’ ‘course of dealings’ or a settled custom or usage of trade that
the parties undoubtedly would have agreed to the covenant if they had considered and addressed
it.” 68 But, “[n]o such covenant may be invoked . . . if it would create obligations ‘inconsistent
with express contractual terms.”’ 69
Here, Old Republic agreed to insure Plaintiffs, with certain exceptions, against risks
covered by the Policy as of the date of the Policy. There is no indication that any of Old
Republic’s actions prevented Plaintiffs from receiving the agreed fruits of the insurance contract.
Title insurance contracts protect from existing defects of the title as of the date of the insurance
policy. Holding Old Republic responsible for an assessment created after the date of the policy
62

Beck v. Farmers Ins. Exch., 701 P.2d 795, 800 (Utah 1985).

63

St. Benedict's Dev. Co. v. St. Benedict's Hosp., 811 P.2d 194, 199 (Utah 1991).

64

Oakwood Vill. LLC v. Albertsons, Inc., 104 P.3d 1226, 1240 (Utah 2004).

65

Id.

66

Olympus Hills Shopping Ctr., Ltd. v. Smith's Food & Drug Ctrs., Inc., 889 P.2d 445, 457 (Utah Ct. App. 1994).

67

Oakwood, 104 P.3d at 1240.

68

Young Living Essential Oils, LC v. Marin, 266 P.3d 814, 817 (Utah 2011).

69

Id.

14

would give Plaintiffs rights not provided for in the contract, contradict the express terms of the
contract, and compel Old Republic to involuntarily benefit Plaintiffs to its own detriment.
Plaintiffs’ claim as to Old Republic’s breach of the implied covenant of good faith and fair
dealing is without merit.
ORDER
IT IS HEREBY ORDERED that Defendant’s Motion for Judgment on the Pleadings 70 is
GRANTED and Plaintiffs’ Complaint is DISMISSED with prejudice. The clerk is directed to
close this case.
Dated August 5, 2015.
BY THE COURT

________________________________________
David Nuffer
United States District Judge

70

Old Republic National Title Insurance Company’s Motion for Judgment on the Pleadings and Memorandum in
Support (Motion), docket no. 15, filed January 8, 2015

15