The Court of Appeals of Missouri recently affirmed that a title insurance company was entitled to summary judgment dismissing the claims against it when the insured failed to notify the insurer of a litigation until years after it settled.  See Lurie v. Commonwealth Land Title Co., LLC, 2018 WL 4087384 (Mo. Ct. App. Aug. 28, 2018).  In the case, the insured filed a lawsuit against his neighbor in 2008 based on the claim that the neighbor’s fence encroached onto the insured’s property.  The insured voluntarily dismissed the lawsuit in 2009, then brought a second action in 2010.  In 2012, he again voluntarily dismissed the action and settled with his neighbor.  In 2015, he brought a claim with the title insurance company seeking reimbursement for the $68,000 in legal fees he expended in his two actions and brought an action against the title insurance company alleging breach of contract, unjust enrichment and vexatious refusal to pay.  The title insurance company moved for summary judgment, and the trial court granted the motion.

On appeal, the Court affirmed.  The title insurance policy requires that the insured notify the insurer “promptly in writing in case of any litigation.”  In this case, the insured waited until eight years after he brought his first action and three years after he settled the claim with his neighbor to notify the title insurance company.  The Court held, “[t]here can be no reasonable conclusion this notice of litigation was prompt in any circumstance; therefore, it ceases to be a question of fact and becomes a determination of law for the court.”  Further, the policy gives the title insurance company the right to choose counsel and control the litigation, and the insured’s late notice of the claim prejudiced this right.  Thus, the Court affirmed the decision.

For a copy of the decision, please contact Michael O’Donnell at modonnell@riker.com or Dylan Goetsch at dgoetsch@riker.com.