West Virginia Supreme Court Holds Title Insurer Has No Duty to Defend Action Regarding Shared Roadway Based on Survey and Parties in Possession Exceptions

The Supreme Court of Appeals of West Virginia recently held that a title insurance company had no duty to defend or indemnify an insured property owner for an issue regarding a shared roadway because the roadway itself was not part of the insured property, and the claim was barred by the survey and parties in possession exceptions.  See Tritapoe v. Old Republic Nat’l Title Ins. Co., 2020 WL 1487813 (W. Va. Mar. 23, 2020).  In the case, plaintiff purchased a property in 2015 and defendant issued a title insurance policy.  Shortly after plaintiff’s purchase, a neighbor brought an action because plaintiff allegedly blocked the neighbor’s access to a common roadway.  Plaintiff submitted a claim to defendant, and defendant denied it.  Plaintiff then brought this action seeking a declaratory judgment that defendant is required to defend it in the underlying action with the neighbor.  Defendant moved to dismiss, arguing that the shared roadway was not part of the insured property and that two of the policy exceptions prohibited the claim.  The court agreed and dismissed the action.

On appeal, the Supreme Court affirmed the dismissal of the complaint.  The Court found that the roadway itself was not on the insured property:  “Petitioner asks this Court to impose upon his title company the obligation to defend his title to property that was never insured by [the title company] or owned by petitioner. We disagree . . .”  Additionally, the Court found that the policy excluded this claim.  First, the policy contained an exception “for such state of facts discoverable by an accurate survey and inspection of the premises.”  Second, it contained an exception for “rights or claims of parties in possession not shown by the public records.”  In this case, the Court found that plaintiff actually did conduct a survey that showed the common roadway and, “[i]nasmuch as the complete survey would, and in fact did, resolve the issues in the [underlying action], we find that the circuit court did not err.”

For a copy of the decision, please contact Michael O’Donnell at modonnell@riker.com, Michael Crowley at mcrowley@riker.com, or Anthony Lombardo at alombardo@riker.com.