                                       PRECEDENTIAL

        UNITED STATES COURT OF APPEALS
             FOR THE THIRD CIRCUIT

                     _____________

                      No. 11-3123
                     _____________


     NATIONWIDE LIFE INSURANCE COMPANY

                            v.

           COMMONWEALTH LAND TITLE
             INSURANCE COMPANY,
                           Appellant
                   _______

     On Appeal from the United States District Court
          for the Eastern District of Pennsylvania
                 (D.C. No. 2-05-cv-00281)
     District Judge: Honorable Ronald L. Buckwalter
                          _______

                  Argued June 25, 2012

     Before: SLOVITER, CHAGARES, and JORDAN,
                    Circuit Judges

                  (Filed: July 24, 2012)
                          ______

Craig R. Blackman (Argued)
Michelle C. Orloski
Neal R. Troum
Stradley, Ronon, Stevens & Young
Philadelphia, PA l9l03

      Attorneys for Appellant
Justin K. Miller
C. Paul Scheuritzel (Argued)
Larsson & Scheuritzel
Philadelphia, PA l9l02

       Attorneys for Appellee

Edward J. Hayes
Lauren P. McKenna
Fox Rothschild
Philadelphia, PA l9l03

       Attorneys for Amicus-Appellants
                       ___________

                 OPINION OF THE COURT
                      ____________

SLOVITER, Circuit Judge.

         This interlocutory appeal requires interpretation of a
title insurance policy that contains a widely-used endorsement
known as the American Land Title Association 9
Endorsement (“the ALTA 9 Endorsement”). Specifically,
this court must decide whether the scope of coverage under
¶ 1(b)(2) of the ALTA 9 Endorsement encompasses losses
resulting from entire instruments, or whether the coverage is
limited to losses caused by the particular types of
encumbrances listed in that paragraph.

                                I.

                         Background

        Commonwealth Land Title Insurance Co.
(“Commonwealth”) issued the title insurance policy at issue
in this case to Nationwide Life Insurance Co. (“Nationwide”)
in connection with real property in the Franklin Mills Mall in
Philadelphia County, Pennsylvania (“the Property”). The
Franklin Mills Mall is a large shopping center specializing in
retail stores. The Property was owned by Liberty Mills
                                2
Limited Partnership (“Liberty Mills”) when Liberty Mills
entered into a Master Declaration and Agreement of
Easements, Covenants, Conditions and Restrictions (the
“Master Declaration”) with Liberty Mills Residual Limited
Partnership in 1988, which governs all stores in the Mall.
Later that year, PMI Associates (“PMI”) purchased the
Property from Liberty Mills, at which time PMI and Liberty
Mills also entered into a Declaration of Restrictions. The
Declaration of Restrictions vested Liberty Mills with, inter
alia, the right to prior approval of future purchasers of the
Property and an express option to purchase.

       PMI borrowed $3.5 million from Nationwide in 2001,
using the Property as collateral. Nationwide purchased a title
insurance policy (“the Policy”) from Commonwealth to
insure its lender‟s interest in the Property. The Policy
contains a specific endorsement that is known as the ALTA 9
Endorsement, which states (in relevant part):

       The Company [Commonwealth] insures the
       owner of the indebtedness secured by the insured
       mortgage [Nationwide] against loss or damage
       sustained by reason of:

         1. The existence at Date of Policy of any of
         the following:
         …
           (b) Unless expressly excepted in Schedule B
                …
              (2) Any instrument referred to in
              Schedule B as containing covenants,
              conditions or restrictions on the land
              which, in addition, (i) establishes an
              easement on the land; (ii) provides a lien
              for liquidated damages; (iii) provides for
              a private charge or assessment;
              (iv) provides for an option to purchase, a
              right of first refusal or the prior approval
              of a future purchaser or occupant
              ….

                               3
J.A. at 317.1 Among the documents listed in Schedule B Part
I were the Declaration of Restrictions and the Master
Declaration, but no specific restriction found within those
documents was explicitly listed.

        PMI defaulted on its loan from Nationwide in 2003
and conveyed the Property to Nationwide by fee simple deed
in lieu of foreclosure. Nationwide attempted to sell the
Property to Ironwood Real Estate, LLC (“Ironwood”), but
Liberty Mills‟ successor in interest—Franklin Mills Limited
Partnership (“Franklin Mills”)—refused to approve Ironwood
as a buyer in accordance with the rights conferred by the
Declaration of Restrictions.2 Ironwood‟s offer to purchase
the Property was contingent upon Franklin Mills‟ approval of
the anticipated use by Ironwood of the Property as a technical
school. Franklin Mills rejected this proposed use, perhaps as
being inconsistent with the use restrictions found within the
Declaration of Restrictions, which required the Property to be
used “only for the purposes of a variety or general
merchandise store” absent prior consent from Franklin Mills.
J.A. at 329. These use restrictions were left in force under a
settlement agreement reached in another case, in which
Nationwide had sued Franklin Mills in an attempt to
invalidate the encumbrances on title that prevented this sale.
See Nationwide Life Ins. Co. v. Franklin Mills Assocs. Ltd.
P’ship, No. 04-5049 (E.D. Pa. Feb. 28, 2008), ECF No. 30.



   1
     The restrictions listed in (i)-(iv) will hereinafter be
referred to as “the ¶ 1(b)(2) restrictions.”
   2
      The parties dispute whether this refusal was based on
one of the ¶ 1(b)(2) restrictions or, instead, the use
restrictions. The parties agree, however, that whatever
restrictions formed the basis for the refusal were found within
the Declaration of Restrictions. See Appellee‟s Br. at 6;
Reply Br. at 2 n.1 (“There is no dispute that the use
restrictions contained within the Declaration of Restrictions
were largely (if not solely) to blame for the fall through of
this particular sale.”).
                                 4
       Nationwide submitted a claim for coverage to
Commonwealth, asserting that the restrictions relied upon by
Franklin Mills to justify its refusal of Ironwood as a purchaser
rendered the Property unusable and unsalable.
Commonwealth denied Nationwide‟s claim.

       Nationwide filed a complaint in the District Court, and
Commonwealth filed a motion to dismiss, asserting that
Nationwide was seeking coverage for harm alleged to arise
from the Declaration of Restrictions, which was listed in
Schedule B and was thus expressly excepted from coverage
under the Policy. The District Court granted
Commonwealth‟s motion, and Nationwide appealed.

        After oral argument, this court reversed and remanded,
holding that “Commonwealth bore the burden of detecting the
restrictions stated in the Declaration, and had to list those
restrictions explicitly [and not just the Declaration itself] as
exceptions to avoid covering loss from them.” Nationwide
Life Ins. Co. v. Commonwealth Land Title Ins. Co., 579 F.3d
304, 319 (3d Cir. 2009) (“Nationwide I”).3


   3
      Nationwide argues that Commonwealth‟s current
position is barred by the law of the case doctrine. To the
extent that the language in this court‟s prior opinion appears
to suggest that Commonwealth is obligated to cover
Nationwide‟s claim, the procedural posture of the last appeal
restricts the impact of this language: this court held only that
Commonwealth is obligated to cover Nationwide‟s claim if
the facts as alleged in Nationwide‟s complaint are true. In
other words, this court only held that Commonwealth must
cover Nationwide‟s claim if the restriction causing
Nationwide‟s harm was covered by the ALTA 9 Endorsement
and not expressly excepted from coverage on Schedule B.
Because Nationwide asserted its harm was caused by a ¶
1(b)(2) restriction, this court had no reason to determine
whether the failure to list a ¶ 1(b)(2) restriction on Schedule B
meant the entire instrument containing that restriction was
covered by the ALTA 9 Endorsement. Thus, the question
certified for this interlocutory appeal has not yet been
                                 5
        On remand, Nationwide filed an amended complaint,
and Commonwealth and Nationwide filed cross-motions for
summary judgment. The District Court denied
Commonwealth‟s motion in its entirety and granted
Nationwide‟s motion in part, holding, inter alia, that the
Policy with the ALTA 9 Endorsement affords insurance
coverage for losses and damages incurred by Nationwide as a
result of the Declaration of Restrictions. See Nationwide Life
Ins. Co. v. Commonwealth Land Title Ins. Co., No.
05-281, 2011 WL 611802 (E.D. Pa. Feb. 17, 2011).4

       Commonwealth filed a motion for reconsideration or,
alternatively, for interlocutory appeal, and Nationwide filed a
response in opposition. The District Court denied the motion
for reconsideration but granted a certificate of appealability.
The question certified by the District Court is:

          Whether the American Land Title
          Association 9 Endorsement provides
          title insurance coverage for whole
          instruments listed in Schedule B or
          whether the scope of coverage is limited
          to particular types of encumbrances.

Nationwide Life Ins. Co. v. Commonwealth Land Title Ins.
Co., Order at 1, No. 05-281 (E.D. Pa. Mar. 23, 2011), ECF
No. 67.

                              II.

           Jurisdiction and Standard of Review


answered by this court, and the law of the case doctrine is
inapplicable.
   4
     The District Court also held that Nationwide is entitled
to appropriate prejudgment interest but that issues of material
fact preclude summary judgment as to the questions of
Commonwealth‟s alleged bad faith and the precise
determination of damages. See id. at *32.
                               6
       The District Court had jurisdiction pursuant to 28
U.S.C. § 1332. This court has jurisdiction over this
interlocutory appeal pursuant to 28 U.S.C. § 1292(b).

        When this case was previously before us, we noted
that “[i]nterpretation of an insurance policy is a question of
law over which we exercise plenary review.” Nationwide I,
579 F.3d at 307. We stated, “[u]nder Pennsylvania law,
which applies to this action, we ascertain the intent of the
parties by reading the policy as a whole, and we give
unambiguous terms their plain meaning. We also consider
evidence of industry custom and practice. We construe
ambiguous terms strictly against the insurer, but avoid
reading the policy to create ambiguities where none exist.”
Id. at 307-08 (internal citations and quotation marks omitted);
see also Sunbeam Corp. v. Liberty Mut. Ins. Co., 781 A.2d
1189, 1193 (Pa. 2001) (“If words have a special meaning or
usage in a particular industry, then members of that industry
are presumed to use the words in that special way, whatever
the words mean in common usage and regardless of whether
there appears to be any ambiguity in the words.”).

                               III.

                           Discussion

       Commonwealth does not dispute that Nationwide‟s
harm was caused by provisions within the Declaration of
Restrictions. Commonwealth also does not dispute that ¶
1(b)(2) of the ALTA 9 Endorsement applies to the
Declaration of Restrictions.5 Commonwealth argues only that

   5
       See also Nationwide I, 579 F.3d at 309-10 (“[B]ecause
the Declaration is an „instrument referred to in Schedule B as
containing . . . restrictions on the land which . . . provides for
an option to purchase, a right of first refusal or the prior
approval of a future purchaser or occupant,‟ loss arising from
it is covered under paragraph 1(b)(2) of the ALTA 9
Endorsement „[u]nless expressly excepted in Schedule B.‟”
(alterations in original) (quoting the Policy)). Specifically,
Commonwealth agrees that the Declaration of Restrictions
                                  7
its listing the Declaration of Restrictions on Schedule B
excluded losses arising from that instrument from coverage
except as to the ¶ 1(b)(2) restrictions found therein, which
(under this court‟s prior decision) must be expressly listed in
Schedule B to be excluded from coverage. Therefore, the
remaining question is whether the failure to expressly except
a ¶ 1(b)(2) restriction in Schedule B places only losses arising
from that specific restriction back into coverage, or whether
losses sustained by reason of any provision in the entire
instrument in which the ¶ 1(b)(2) restriction is found are
placed back into coverage.

        The District Court held that “[a]ny loss arising as a
result of any portion of that instrument—and not from any
particular provision contained therein—falls within the scope
of the ALTA 9 Endorsement coverage.” Nationwide, 2011
WL 611802, at *14 (footnote omitted). The District Court
reasoned that “[b]y its plain language, . . . the Endorsement
only defines what types of instruments are covered and then
clearly insures against any loss sustained from the instrument
itself.” Id. The District Court noted that “[h]ad the
Endorsement meant otherwise, it would have eliminated the
language „any instrument‟. . . .” Id.

         We agree, and thus hold that the ALTA 9 Endorsement
provides coverage to losses arising from entire instruments
that fit within its plain language, not just the ¶ 1(b)(2)
restrictions within those instruments that have not been
expressly excepted. If ¶ 1(b)(2) was not intended to cover
losses arising due to entire instruments, then the phrase “any
instrument” would have been omitted, as it was in ¶ 1(b)(1),
(3), (4), and (5) of the same ALTA 9 Endorsement.

      Commonwealth and the Amici argue that this plain
language interpretation of the ALTA 9 Endorsement provides
far more coverage to the insured than the interpretation that is
accepted by the vast majority of the title insurance industry.
Commonwealth argues that “evidence of the ALTA 9

contains at least an option to purchase and a prior approval of
a future purchaser provision. See Reply Br. at 6.
                                8
endorsement‟s customary usage within the title insurance
industry makes clear that ALTA 9 is intended to provide
additional coverage only for harm arising from a very specific
category of extraordinary encumbrances that would affect the
validity, priority, or enforceability of the insured mortgage—
i.e., the ALTA 9 [¶] 1(b)(2) encumbrances.” Appellant‟s Br.
at 24. Indeed, it may be that the title insurance industry has
been using the ALTA 9 Endorsement with the understanding
that it only provides coverage for loss resulting from the
¶ 1(b)(2) restrictions.6 Nevertheless, caselaw requires us to
follow the plain language of the ALTA 9 Endorsement rather
than deferring to industry custom and usage that does not give
the phrase “any instrument” special meaning, but instead
simply ignores that language. J.C. Penney Life Ins. Co. v.
Pilosi, 393 F.3d 356, 363 (3d Cir. 2004) (Under Pennsylvania
law, “[w]here . . . the language of an insurance contract is
clear and unambiguous, a court is required to enforce that
language.” (internal quotation marks and citation omitted));
Sunbeam, 781 A.2d at 1193 (allowing evidence of the
“special meaning” of words within an industry); see also
Meyer v. CUNA Mut. Ins. Soc., 648 F.3d 154, 167 (3d Cir.
2011) (“[U]nder Pennsylvania law, in close cases, a court
should resolve the meaning of insurance policy provisions in
favor of coverage for the insured.” (citing Motley v. State
Farm Mut. Auto. Ins. Co., 466 A.2d 609, 611 (Pa. 1983))).

                               IV.

                          Conclusion

    We will affirm the District Court‟s holding that the
ALTA 9 Endorsement insures against any loss sustained from

   6
      Both parties address recent proposed amendments to the
ALTA 9 Endorsement, which will ensure that the effect of
this court‟s decision will be limited to title insurance policies
that were issued with the older version of the ALTA 9
Endorsement. Because the amendments show only that the
ALTA 9 Endorsement was changed to reflect a recent
relevant court opinion, the significance of the changes can
only be determined through speculation.
                                9
an instrument that is covered by the plain language of
¶ 1(b)(2). This case will return to the District Court for the
determination of damages owed to Nationwide.




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