Sunday, July 30, 2017

FYI: Ill Fed Ct Holds No "Bad Faith Denial Of Coverage" Against Title Insurers in Illinois

The U.S. District Court for the Northern District of Illinois recently held that a title insurer may exclude coverage under the exception for defects "created, suffered, assumed, or agreed to by the insured claimant" without intentional or wrongful conduct by the insured. 


In so ruling, the Court also held that the Illinois statute for bad faith denial of coverage by insurers did not apply to title insurers.


A copy of the opinion is available at:  Link to Opinion


In 2007, a developer ("Developer") sought to purchase real estate in Yorkville, Illinois, to build a shopping center.  The lender ("Bank") and Developer entered into a construction loan agreement which was secured by a construction mortgage, security agreement, assignment of rights and leases and fixture filing on the property.


As part of the project, Developer sold land to an anchor tenant ("Tenant") pursuant to a purchase agreement.  Under that purchase agreement, Developer agreed to reimburse Tenant for a portion of a special tax imposed on the property by Yorkville.  The purchase agreement also provided lien rights to Tenant should Developer fail to timely pay the reimbursement, and stated that Developer's obligation shall be a covenant running with the land and bind Developer's successors and assigns.


The purchase agreement, development agreement, and the mortgage were recorded in that order.  A title insurer ("Title Insurer") provided title insurance to Bank for the transaction.


Developer defaulted under the construction loan agreement and Bank sued for foreclosure in state court.  With respect to the Tenant, the foreclosure complaint alleged that Tenant's rights were subordinate and inferior to the liens and interest of the Bank.  Tenant counterclaimed for a declaration of its rights under the agreements that ran with the land and were binding on Developer's successors and assigns.  The parties filed cross motions for summary judgment. 


The state court in the foreclosure held that Bank's mortgage had priority, Tenant's tax reimbursement and lien rights were personal between Developer and Tenant, did not run with the property, and would be foreclosed and terminated upon entry of final order of foreclosure. 


The state appellate court affirmed in part and reversed in part, agreeing that Bank's mortgage had priority over any lien of Tenant, but concluded that Tenant's tax reimbursement and lien rights were covenants that ran with the land binding on Bank and its successors, and were not extinguished, because Bank had actual knowledge of the tax reimbursement and lien rights before Bank recorded the mortgage, and because the mortgage was recorded after the memorandum of agreement and memorandum of development agreement.  


As a result of the state appellate court ruling, Bank filed a complaint in federal court against the Title Insurer.  Bank alleged that due to the state appellate court ruling, it sold the mortgaged property for $1,780,000 less than what it would have sold without the tax obligation.  Title Insurer, which represented Bank in the state court action against Tenant, denied coverage and refused to indemnify Bank because it claimed that Bank's loss was excluded from the policy.


Bank's complaint asserted a claim for breach of contract (Count I), and a claim titled "bad faith" (Count II).  Title Insurer answered Count I, moved to dismiss Count II, and raised a number of affirmative defenses, and filed a counterclaim for declaratory judgment and/or "reformation of the policy to reflect the bargained for coverage."


Bank moved to strike and/or dismiss Title Insurer's counterclaim and first affirmative, both of which asserted that the underlying policy excluded Bank's claims.


The Title Insurer's motion to dismiss argued that § 155 of the Illinois Insurance Code, which provides a cause of action against insurers for bad faith denial of coverage, did not apply because the Insurance Code specifically exempted title insurance companies.  See 215 ILCS 5/451.  Moreover, the Title Insurer argued that Illinois law does not provide an independent tort claim for breach of good faith and fair dealing.  See Voyles v. Sandia Mortgage Corp., 196 Ill.2d 288, 297-98 (2001). 


The Court granted the Title Insurer's motion and dismissed Count II.


Next, Bank's motion to strike and dismiss the counterclaim and first affirmative defense, argued that: 1) the counterclaim should be stricken because it was duplicative of Title Insurer's first two affirmative defenses, and 2) neither the first affirmative defense nor Count I of the counterclaim, both of which sought to avoid coverage based on an exclusion for encumbrances, stated a cause of action because Title Insurer did not allege that Bank's intentional misconduct or inequitable behavior created the tax encumbrances at issue.  The Court rejected both arguments.


First, the Court determined that Bank suffered no prejudice by having to respond to the counterclaim, even if the counterclaim was duplicative of Title Insurer's first two affirmative defenses.  The issue of whether the exclusion applied was the key issue in this case.  The Court held that striking the counterclaim as redundant will not remove the issue, and would not save plaintiff any time or money. 


Second, the Court held that the title insurance policy excluded from coverage "defects, liens, encumbrances, adverse claims or other matters (a) created, suffered, assumed, or agreed to by the insured claimant."   Title Insurer's affirmative defense and counterclaim alleged that Bank was aware: (1) of the documents created the tax encumbrance; (2) that the documents provided for the encumbrance to run with the land; and (3) the documents that created the encumbrance were intended to be and were recorded prior to Bank's mortgage. 


Because the tax encumbrance was recorded before the mortgage, the Court held that the foreclosure could not extinguish it.   


The Court also held that the exclusion could be applied without intentional or wrongful conduct by Bank to create the encumbrance.  By agreeing to the order of recordation, the Court found that the Bank implicitly agreed that the encumbrance for tax reimbursements would survive a foreclosure. 


Accordingly, the Court granted Bank's motion to dismiss Count I and denied its motion to strike and dismiss Title Insurer's counterclaim and first affirmative defense.




Ralph T. Wutscher
Maurice Wutscher LLP
The Loop Center Building
105 W. Madison Street, 18th Floor
Chicago, Illinois 60602
Direct:  (312) 551-9320
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Admitted to practice law in Illinois




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