Trinder v. Conn. Attorneys Title Ins. Co., No. 681-9-08 Rdcv (Cohen, J., June 7, 2010)

[The text of this Vermont trial court opinion is unofficial. It has been reformatted from the original. The accuracy of the text and the
accompanying data included in the Vermont trial court opinion database is not guaranteed.]
                                                STATE OF VERMONT
                                                 RUTLAND COUNTY

                                                                                )
KENNETH G. TRINDER and                                                          )          Rutland Superior Court
LARISSA F. TRINDER                                                              )          Docket No. 681-9-08 Rdcv
                                                                                )
                                             Plaintiffs,                        )
                                                                                )
v.                                                                              )
                                                                                )
CONNECTICUT ATTORNEYS TITLE                                                     )
INSURANCE COMPANY and MOUNT                                                     )
HOLLY COMMUNITY HISTORICAL                                                      )
MUSEUM, INC.,                                                                   )
                                                                                )
                                             Defendants                         )


                 FINDINGS OF FACT, CONCLUSIONS OF LAW, and ORDER

           This is a title-insurance-coverage dispute concerning Kenneth and Larissa

Trinder’s septic tank and leach field. A bench trial was held on December 21, 2009. The

Trinders are represented by Stephen S. Ankuda, Esq. Connecticut Attorneys Title

Insurance Company is represented by Michael J. Harris, Esq.

                                                 FINDINGS OF FACT

           (1)        Kenneth Trinder and Larissa Trinder purchased a parcel of land and a

                      house at [address redacted] in Mount Holly, Vermont, on January 3,

                      2005.

           (2)        The Trinders were represented in that transaction by Attorney Susan

                      Meany of Ludlow, Vermont, who also was the title insurance agent for

                      Connecticut Attorneys Title Insurance Company (CATIC).

           (3)        CATIC is a title insurance company licensed to do business in the State of

                      Vermont.
(4)    Mount Holly Community Historical Museum, Inc. owns the property

       immediately to the north of the Trinders’ property on Maple Hill Road.

(5)    The Trinders gave power of attorney to Attorney Susan Meaney to close

       the transaction on their behalf.

(6)    The Trinders purchased title insurance from CATIC and were issued a

       policy commitment at closing (PC 2000290), signed by Susan Meaney on

       behalf of CATIC.

(7)    The “Expanded Protection Owner Policy” issued by CATIC was dated

       January 5, 2005.

(8)    The policy states: “We will defend your title in any court case as to that

       part of the case that is based on the Covered Title Risk Insured against by

       this Policy. We will pay the costs, attorney’s fees and expenses we incur

       in that defense.”

(9)    Under the policy, the Covered Title Risks includes: “11. Your title is

       unmarketable, which allows another person to refuse to perform a contract

       to purchase, to lease, or to make a mortgage loan.”

(10)   The Covered Title Risks also includes: “12. You are forced to remove

       your existing structure—other than a boundary wall or fence—because: it

       extends on to adjoining land or on to any easement.”

(11)   In the early fall of 2007, Kenneth Trinder received a telephone call from a

       person at Kelley Real Estate suggesting that the Trinders make a donation

       to the Mount Holly Historical Museum because the Museum was planning

       to expand and that this donation could be used to settle any disputes




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       concerning the location of the Trinders’ right to maintaining their septic

       system on the Museum’s property.

(12)   This was the first notice the Trinders had that their septic system and leach

       field may be located on the Museum’s property.

(13)   On October 24, 2007, the Trinders received a letter from the Museum in

       which the Museum informed them that after speaking with the prior owner

       of the Museum property (called “The Perkins House”), it was the

       Museum’s understanding that there was a prior verbal agreement in place

       between the former owners of both properties and that the Trinders’ septic

       system was permissively on the Museum’s property and was subject to

       removal upon request.

(14)   The October 24, 2007 letter did not contain a request by the Museum for

       the Trinders to remove the septic system or a threat to assert a claim to

       remove the septic system.

(15)   After receiving the October 24 letter, the Trinders contacted their attorney,

       Suzanne Meaney, and she placed CATIC on notice of the Trinders’ claim

       by letter dated January 29, 2008.

(16)   Thereafter, the Trinders obtained independent counsel for the purpose of

       continuing with their title insurance claim.

(17)   On May 30, 2008, the Trinders received a letter from CATIC informing

       them that its findings were not yet complete, but that it “does not appear

       that title rights are implicated.” CATIC further stated that its investigation

       was expected to be completed by June.




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(18)   On August 5, 2008, the Trinders were notified, through counsel, by the

       Museum, through its counsel, that the Museum intended to recommence

       construction activity on the former Perkins homesite which was adjacent

       to the Trinder property.

(19)   The August 5 letter further states: “Not having had a reply to my letter of

       May 8. I am uncertain whether your failure to reply suggests an

       abandonment of any claim on the part of the Trinders to the use of the

       septic system on the Museum’s property. Please understand that activity

       which will soon commence may well compromise any such use. We

       remain willing to meet with you to consider any suggestions the Trinders

       may have to deal with their problem.”

(20)   The August 5 letter does not contain a request by the Museum for the

       Trinders to remove the septic system, nor does it contain a threat of claim

       by the Museum to have the septic system removed.

(21)   On August 19, 2008, the Trinders received a letter from CATIC in which

       CATIC concluded that the Trinders claim was excepted from coverage

       under Schedule B of the policy, which states “This policy does not insure

       against loss or damage (and the Company will not pay costs, attorney’s

       fees or expenses) which arise by reason of: General Exceptions: B. any

       facts which an accurate survey or personal inspection of the land would

       disclose.”

(22)   The Museum never filed suit against the Trinders.




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(23)   On September 5, 2008, the Trinders filed suit, requesting declaratory relief

       providing for insurance coverage from CATIC, a claim for adverse

       possession, easement, or license against the Museum, and a claim for

       contract damages against CATIC.

(24)   The Museum did not file a counterclaim against the Trinders. It requested

       that the Trinders’ claim by dismissed.

(25)   The Museum never filed a pleading asking the Court to require the

       removal of any portion of the Trinders’ septic system.

(26)   The Museum never filed any pleading asking for any injunctive relief

       relating to the Trinder septic system.

(27)   There has never been any civil lawsuit or complaint or request by the

       Museum to any town or state office asking for any finding or order to

       require the Trinders to remove or cease use of any part of their septic

       system.

(28)   In August 2009, the Trinders and the Museum reached an agreement as to

       the placement of the septic system.

(29)   The Trinders and the Museum agreed that the Trinders had the right to

       maintain and replace their existing leach field in the same location where

       it existed as long as the Trinders replaced their existing 600 gallon septic

       tank with a 1,500 gallon concrete septic tank with filters.

(30)   The replacement septic tank was placed in the same location as the prior

       one.




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       (31)       The Trinders and the Museum also agreed to give the Museum a right to

                  share in the Trinders’ drilled well and an easement for the location of the

                  Museum’s propane tank.

       (32)       The Trinders and the Museum also agreed to a mutual boundary line

                  between the Trinder and Museum property.

                                        DISCUSSION

       The Trinders seeks coverage under the title insurance policy to reimburse them

for engineering costs, septic tank replacement costs, and attorney’s fees. Specifically, the

Trinders seek coverage under the covered title risk in the case that “[y]ou are forced to

remove your existing structure—other than a boundary wall or fence—because: it

extends on to adjoining land or on to any easement.” They argue that they were forced to

remove their septic system by the Museum because it extended on to the Museum’s

adjoining land.

       The Trinders also argue that because the Museum asserted that the Trinders had

only permissive use of the septic system location, subject to removal upon request, that

this formed a cloud on the Trinders’ title and made the title unmarketable. Thus, they also

seek to invoke the clause of the policy which provides coverage if “[y]our title is

unmarketable, which allows another person to refuse to perform a contract to purchase, to

lease, or to make a mortgage loan.”

       In Vermont, construction of the language of an insurance contract is a question of

law, not of fact; accordingly a court makes its own inquiry into the legal effect of the

contracts' terms and the relationships between them. Fireman’s Fund Ins. Co. v. CNA Ins.

Co., 2004 VT 93, ¶ 8, 177 Vt. 215. Insurance contracts are to be interpreted according to




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their terms and the intent of the parties as expressed by the policies' language. Fireman’s

Fund Ins. Co., 2004 VT 93, ¶ 9. Insurance contracts must be given a practical,

reasonable, and fair interpretation, consonant with the apparent object and intent of the

parties, and strained or forced constructions are to be avoided. McAlister v. Vermont

Property and Cas. Ins. Guar. Ass’n, 2006 VT 85, ¶ 17, 180 Vt. 203.

       Any ambiguities in insurance policies are construed in favor of finding coverage.

DeBartolo v. Underwriters at Lloyd’s of London, 2007 VT 31, ¶ 9, 181 Vt. 609.

Ambiguity arises where insurance policy language can be reasonably or fairly susceptible

of different constructions. Chamberlain v. Metropolitan Property and Cas. Ins. Co., 171

Vt. 513, 515 (2000). If a disputed term is susceptible to two or more reasonable

interpretations, the ambiguity must be resolved in favor of the insured. Serecky v.

National Grange Mut. Ins., 2004 VT 58, ¶ 17, 177 Vt. 58.

       A dispute, however, over the proper interpretation of a contract or insurance

policy does not automatically render the language ambiguous. Towns v. Vermont Mut.

Ins. Co., 169 Vt. 545, 546 (1999). An insurer will not be deprived of unambiguous terms

placed in the contract for its benefit. Fireman’s Fund Ins. Co., 2004 VT 93, ¶ 9.

       Here, the pertinent policy clause states ““[y]ou are forced to remove your existing

structure—other than a boundary wall or fence—because: it extends on to adjoining land

or on to any easement.” (emphasis added). The parties disagree over the meaning of the

term forced and the Vermont Supreme Court has yet to interpret the meaning of this

clause. When a disputed term has not been specifically defined in an insurance policy, it

should be defined according to its plain, ordinary and popular meaning. Fireman’s Fund

Ins. Co., 2004 VT 93, ¶ 8; see also Northern Sec. Ins. Co. v. Perron, 172 Vt. 204, 210




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(2001) (holding that the word “accident” was not defined in the policy, thus term should

be defined according to the usual understanding of the term's significance to the ordinary

person); 2 Couch on Ins. § 22:38 (3d ed. 2008) (“Usual and ordinary meaning” has been

stated variously to be that meaning which the particular language conveys to the popular

mind; to most people; to the average, ordinary, normal, or reasonable man; to persons

with usual and ordinary understanding; and to a businessman or a layman, rather than a

lawyer or insurance professional).

       According to Merriam-Webster’s Collegiate Dictionary, the verb force means “to

compel by physical, moral, or intellectual means.” Merriam-Webster’s Collegiate

Dictionary 489 (2003). Black’s Law Dictionary defines force to mean “to compel by

physical means or by legal requirement.” Black’s Law Dictionary 673 (8th ed. 2004).

       Under the plain meaning of the word, the Court does not find that the Trinders

were forced to remove their existing septic system. Not only did the Museum never file

suit against the Trinders to force the removal of the septic system, the Museum did not

even file a counterclaim against the Trinders when they filed suit. Furthermore, the

Museum never once requested in any of its letters that the Trinders actually remove the

septic system. It merely informed them of its belief that it could request removal at any

time. Finally, the Trinders and the Museum entered into an agreement whereby the

Trinders were able to place a brand new septic tank in the same location as the prior one.

Therefore, to find that the Trinders were forced to remove the septic tank would be “a

strained or forced” construction, which is to be avoided. McAlister, 2006 VT 85, ¶ 17; see

also Manneck v. Lawyers Title Ins. Corp., 28 Cal.Rptr.2d 771 (Cal. Ct. App. 1994)

(holding clause in policy pertaining to forced removal only comes into play if in fact




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there is a forced removal of the insured’s structures which encroach on the property of

another).

        The Trinders also seek to invoke the clause providing coverage in the case that

“[y]our title is unmarketable . . .” The Trinders argue that a memorandum filed in the

Mount Holly Town Records for the neighboring land made their title unmarketable and

CATIC had a duty to defend. The memorandum stated the prior owners’ (of the Perkins

House) stance that the septic tank was on their property by verbal agreement and could be

removed at any time. The Trinders argue this constituted a cloud and encumbrance on

their parcel.

        However, as stated above, no claim was ever filed by the Museum asserting a

right to remove the septic system and the Museum did not even seek to establish this right

by counterclaim when the Trinders sued it. Furthermore, the memorandum did not make

the Trinders title unmarketable because it only stated that the septic system was subject to

removal, not that the Trinders could not keep it there and have access to it. In sum, there

was never was any actual challenge to the Trinders’ title. The Trinders have not proved

that their title was ever unmarketable.

        In conclusion, CATIC has no duty to defend or to indemnity the Trinders under

the title insurance policy.

                                          ORDER

     The Court finds in favor of the defendant Connecticut Attorneys Title Insurance
Company. Judgment will entered in Defendant’s favor.

        Dated at Rutland, Vermont this _____ day of ________________, 2010

                                                      ____________________
                                                      Hon. William Cohen
                                                      Superior Court Judge


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