MAINE	SUPREME	JUDICIAL	COURT	                                       Reporter	of	Decisions	
Decision:	 2017	ME	46	
Docket:	   Lin-16-298	
Argued:	   February	7,	2017	
Decided:	  March	9,	2017	
	
Panel:	    SAUFLEY,	C.J.,	and	ALEXANDER,	MEAD,	GORMAN,	JABAR,	and	HUMPHREY,	JJ.	
	
	
                           OSPREY	LANDING,	LLC	
                                     	
                                    v.	
                                     	
                 FIRST	AMERICAN	TITLE	INSURANCE	COMPANY	
	
	
JABAR,	J.	

      [¶1]	 	 Osprey	 Landing,	 LLC	 (Osprey)	 appeals	 from	 a	 judgment	 of	 the	

Superior	 Court	 (Lincoln	 County,	 Billings,	 J.)	 granting	 First	 American	 Title	

Insurance	 Company’s	 (First	 American)	 motion	 for	 summary	 judgment	 and	

denying	Osprey’s	cross-motion	for	summary	judgment	on	Osprey’s	complaint	

related	to	a	title	insurance	policy	issued	by	First	American.		Osprey	contends	

that	policy	coverage	was	triggered	when	a	deposition	and	affidavits	provided	

in	 litigation	 involving	 Osprey	 and	 a	 different	 party	 in	 2012	 and	 2013	

contained	 facts	 that	 Osprey	 alleges	 could	 constitute	 a	 potential	 claim	 for	 a	

public	 prescriptive	 easement	 over	 property	 covered	 by	 the	 policy.	 	 We	

disagree	and	affirm.	
2	

                                               I.		BACKGROUND	

          [¶2]	 	 Osprey	 acquired	 a	 parcel	 of	 oceanfront	 property	 in	 Southport,	

Maine	 (the	 property)	 from	 Osprey	 Perch,	 LLC,	 a	 company	 owned	 and	

managed	by	Byron	Miller,	and	purchased	a	title	insurance	policy	(the	policy)	

from	 First	 American.	 	 After	 transfer	 of	 the	 parcel,	 Osprey	 sued	 Thomas	 and	

Janet	 Blevins,	 owners	 of	 a	 lot	 abutting	 the	 property,	 claiming	 that	 a	 deeded	

easement	 over	 the	 Blevinses’	 lot	 permitted	 passage	 of	 motor	 vehicles.	 	 The	

Blevinses	 counterclaimed,	 asserting	 the	 existence	 of	 a	 private	 prescriptive	

easement	 over	 the	 Osprey	 property.	 	 Osprey	 requested	 that	 First	 American	

defend	it	against	the	Blevinses’	counterclaim,	and	First	American	declined	to	

do	so.		Osprey	then	sought	a	declaratory	judgment	that	First	American	had	a	

duty	 to	 defend	 Osprey	 in	 the	 litigation,	 which	 the	 trial	 court	 granted	 on	

June	26,	2013.			

          [¶3]	 	 In	 conjunction	 with	 the	 Blevins	 litigation,	 Miller	 executed	 an	

affidavit	 in	 which	 he	 expressed	 his	 knowledge	 of	 a	 history	 of	 public	 use	 of	 a	

path	 over	 the	 property.1	 	 In	 October	 of	 2012,	 however,	 the	 Blevinses	

stipulated	 to	 a	 dismissal	 with	 prejudice	 of	 their	 prescriptive	 easement	

counterclaim.		Miller	was	later	deposed	in	the	ongoing	discovery	for	Osprey’s	


     1	 	 Miller	 originally	 executed	 the	 affidavit	 on	 April	 12,	 2012,	 but	 did	 not	 do	 so	 under	 oath	 until	

May	14,	2012.			
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suit,	and	reiterated	his	knowledge	of	a	history	of	public	use	of	a	path	over	the	

property.		

      [¶4]	 	 Following	 the	 Miller	 deposition,	 Osprey	 sent	 another	 request	 to	

First	American	invoking	title	insurance	coverage,	independently	of	the	Blevins	

litigation,	to	“put	First	American	on	notice	of”	Miller’s	affidavit	and	deposition,	

asking	First	American	to	take	“appropriate	action	.	.	.	to	defend,	vindicate	and	

safeguard	 Osprey’s	 title.”	 	 First	 American	 again	 declined,	 and	 procured	 a	

second	affidavit	from	Miller,	in	which	Miller	stated	that	he	asserted	no	claim	

to	a	prescriptive	easement	over	the	property,	and	knew	of	no	one	who	could	

do	so.		Osprey	filed	suit	to	enforce	First	American’s	purported	duty	to	defend	

and	indemnify	Osprey.			

      [¶5]		First	American	moved	for	summary	judgment	as	to	all	counts	and	

Osprey	 filed	 a	 cross-motion	 for	 summary	 judgment.	 	 On	 May	 31,	 2016,	 the	

Superior	 Court	 (Lincoln	 County,	 Billings,	 J.)	 granted	 First	 American’s	 motion,	

and	 denied	 Osprey’s	 cross-motion.	 	 Osprey	 timely	 appeals.	 	 See	 M.R.	

App.	P.	2(b)(3).			

                                   II.		DISCUSSION	

	     [¶6]	 	 Osprey	 contends	 on	 appeal	 that	 the	 court	 erred	 in	 granting	 First	

American’s	motion	for	summary	judgment	and	denying	Osprey’s	cross-motion	
4	

for	 summary	 judgment.	 	 Although	 Osprey	 parses	 its	 arguments	 into	 three	

separate	 issues,	 each	 is	 an	 iteration	 of	 a	 single	 issue:	 Osprey	 believes	 that	

Miller’s	deposition	and	affidavits	create	the	risk	of	a	future	public	prescriptive	

easement	claim	adverse	to	Osprey’s	title,	and	therefore,	according	to	Osprey,	

the	 policy	 requires	 First	 American	 to	 take	 some	 action	 to	 either	 perfect	

Osprey’s	 title	 or	 compensate	 Osprey	 for	 this	 perceived	 title	 defect.	 	 We	

disagree	 with	 Osprey	 that	 Miller’s	 statements	 have	 created	 a	 “triggering	

event”	 requiring	 First	 American	 to	 take	 any	 action,	 and	 therefore	 affirm	 the	

court’s	judgment.	

	      [¶7]	 	 Cross-motions	 for	 summary	 judgment	 do	 not	 “alter	 the	 basic	

Rule	56	 standard.”	 	 F.R.	 Carroll,	 Inc.	 v.	 TD	 Bank,	 N.A.,	 2010	 ME	 115,	 ¶	 8,	

8	A.3d	646.	 	 We	 review	 de	 novo	 the	 grant	 or	 denial	 of	 cross-motions	 for	

summary	 judgment,	 “and	 consider	 both	 the	 evidence	 and	 any	 reasonable	

inferences	that	the	evidence	produces	in	the	light	most	favorable	to	the	party	

against	whom	the	summary	judgment	has	been	granted	in	order	to	determine	

if	 there	 is	 a	 genuine	 issue	 of	 material	 fact.”	 	 Grant	 v.	 Foster	 Wheeler,	 LLC,	

2016	ME	 85,	 ¶	12,	 140	 A.3d	 1242	 (quotation	 marks	 omitted).	 	 Summary	

judgment	is	properly	granted	when	there	is	no	genuine	issue	of	material	fact	
                                                                                            5	

and	 the	 moving	 party	 is	 entitled	 to	 judgment	 as	 a	 matter	 of	 law.	 	 M.R.	

Civ.	P.	56(c);	Doe	v.	Williams,	2013	ME	24,	¶	10,	61	A.3d	718.	

	      [¶8]	 	 We	 also	 review	 de	 novo	 the	 interpretation	 of	 a	 title	 insurance	

policy.	 	 Travelers	 Indem.	 Co.	 v.	 Bryant,	 2012	 ME	 38,	 ¶	 8,	 38	 A.3d	 1267.		

We	accord	any	unambiguous	language	in	the	policy	its	plain	meaning.		Id.	¶	9.		

A	 contract	 provision	 is	 only	 “ambiguous	 if	 it	 is	 reasonably	 susceptible	 of	

different	interpretations	or	if	any	ordinary	person	in	the	shoes	of	the	insured	

would	 not	 understand	 that	 the	 policy	 did	 not	 cover	 claims	 such	 as	 those	

brought.”	 	 City	 of	 S.	 Portland	 v.	 Me.	 Mun.	 Ass’n,	 2008	 ME	 128,	 ¶	 7,	 953	 A.2d	

1128	(quotation	marks	omitted).	

	      [¶9]	 	 The	 language	 of	 the	 policy	 is	 unambiguous.	 	 It	 provides	 that,	

subject	 to	 certain	 exclusions,	 First	 American	 will	 insure	 Osprey	 “against	 loss	

or	 damage	 .	.	 .	 sustained	 or	 incurred	 by	 the	 insured	 by	 reason	 of	 .	 .	 .	 [a]ny	

defect	in	or	lien	or	encumbrance	on	the	title,	[or]	.	.	.	[u]nmarketability	of	the	

title.”	 	 Expressly	 excluded	 from	 coverage	 of	 the	 policy	 are	 “[d]efects,	 liens,	

encumbrances,	 adverse	 claims	 or	 other	 matters	 .	 .	 .	 resulting	 in	 no	 loss	 or	

damage	to	the	insured	claimant.”		The	policy	also	states	that	“[u]pon	written	

request	 .	 .	 .	 [First	 American]	 shall	 provide	 for	 the	 defense	 of	 an	 insured	 in	

litigation	 in	 which	 any	 third	 party	 asserts	 a	 claim	 adverse	 to	 the	 title	 or	
6	

interest	 as	 insured.”	 	 Finally,	 First	 American	 “shall	 have	 the	 right,	 at	 its	 own	

cost,	to	institute	and	prosecute	any	action	or	proceeding	or	to	do	any	other	act	

which	in	its	opinion	may	be	necessary	or	desirable	to	establish	the	title	to	[the	

property],	.	.	.	or	to	prevent	or	reduce	loss	or	damage	to	the	insured.”		Despite	

Osprey’s	 contentions,	 the	 facts	 of	 this	 case	 do	 not	 trigger	 coverage	 of	 the	

policy.	

       [¶10]	 	 The	 policy	 only	 imposes	 an	 obligation	 on	 First	 American	 to	

“provide	for	the	defense”	of	Osprey’s	title	upon	Osprey’s	request	when	a	third	

party	makes	a	claim	adverse	to	Osprey’s	title.		Although	Osprey’s	statement	of	

material	facts	includes	assertions	of	“a	public	right	of	way	over”	the	property,	

First	 American	 denies	 those	 assertions,	 and	 there	 is	 no	 evidence	 in	 the	

summary	 judgment	 record	 to	 support	 those	 assertions.	 	 Because	 the	

Blevinses’	 counterclaim	 was	 dismissed	 with	 prejudice,	 there	 is	 currently	 no	

known	claim	against	Osprey’s	title;	Osprey	itself	concedes	that	it	is	unaware	of	

any	 litigation	 claiming	 the	 existence	 of	 a	 prescriptive	 easement	 over	 the	

property.	 	 Osprey	 does	 not	 identify	 any	 cloud	 on	 its	 title	 or	 any	 other	 title	

defect	that	would	implicate	First	American’s	duty	to	defend.		For	this	reason,	

First	American	has	no	obligation	to	initiate	legal	action	to	clear	Osprey’s	title,	

or	to	indemnify	Osprey	for	the	asserted	title	defect.		See	Harlor	v.	Amica	Mut.	
                                                                                              7	

Ins.	 Co.,	 2016	 ME	 161,	 ¶	 23,	 150	 A.3d	 793	 (stating	 that	 an	 insurer’s	 duty	 to	

indemnify	 “runs	 to	 claims	 that	 are	 actually	 covered,	 in	 light	 of	 the	 facts	

proved”	 (quotation	 marks	 omitted));	 N	 E	 Props.,	 Inc.	 v.	 Chi.	 Title	 Ins.	 Co.,	

660	A.2d	 926,	 927	 (Me.	1995)	 (“The	 duty	 to	 defend	 is	 determined	 by	

comparing	the	allegations	in	the	underlying	complaint	with	the	provisions	of	

the	insurance	policy.”).	

       [¶11]	 	 Nor	 can	 Osprey	 identify	 specific	 “loss	 or	 damage”	 within	 the	

meaning	of	the	policy	caused	by	the	alleged	easement.		Other	than	the	Miller	

affidavit	and	the	Blevinses’	now-resolved	counterclaim,	which	was	dismissed	

with	 prejudice,	 Osprey	 does	 not	 even	 identify	 a	 person	 or	 group	 who	 could	

potentially	 assert	 rights	 to	 a	 prescriptive	 easement	 over	 the	 property.	 	 Any	

encumbrance	 on	 the	 title	 is	 therefore	 merely	 hypothetical,	 as	 is	 any	 loss	 or	

damage	due	to	the	hypothetical	encumbrance.				

	      [¶12]	 	 Nonetheless,	 Osprey	 contends	 that	 the	 alleged	 potential	 title	

defect	 triggers	 coverage	 because	 “the	 fact	 that	 no	 individual	 person	 has	

asserted	a	public	prescriptive	easement	claim	does	not	eliminate	the	potential	

loss	or	damage	to	Osprey.”		Even	assuming	that	the	policy	covers	a	potential	

loss,	 rather	 than	 an	 identifiable	 loss	 due	 to	 a	 title	 defect,	 section	 4(b)	 of	 the	

policy	 provides	 that	 First	 American	 “shall	 have	 the	 right,	 at	 its	 own	 cost,	 to	
8	

institute	and	prosecute	any	action	or	proceeding	.	.	.	to	prevent	or	reduce	loss	

or	damage	to	the	insured.”		Because	there	is	no	pending	litigation,	this	is	the	

only	 provision	 of	 the	 policy	 that	 might	 obligate	 First	 American	 to	 defend	

Osprey’s	title,	and	the	policy	vests	the	right	to	initiate	preemptive	legal	action	

in	First	American.	

	      [¶13]		Thus,	the	policy—in	light	of	Osprey’s	assertion	that	there	may	be	

a	potential	future	claim	of	a	public	prescriptive	easement	over	the	property—

gives	First	American	the	right	to	prosecute	any	action	First	American	believes	

necessary.	 	 No	 obligation	 is	 imposed	 on	 First	 American	 under	 these	

circumstances	to	preemptively	indemnify	Osprey	Landing	despite	the	lack	of	

proof	 of	 the	 existence	 of	 an	 easement	 or	 litigation	 claiming	 one.	 	 See	 also	

N.	Sec.	 Ins.	 Co.	 v.	 Dolley,	 669	 A.2d	 1320,	 1322	 (Me.	 1996)	 (noting	 that	 an	

insurer	 cannot	 pre-litigate	 the	 issue	 of	 indemnity	 before	 fulfilling	 its	 duty	 to	

defend).	

	      [¶14]	 	 We	 have	 never	 before	 held	 that	 the	 mere	 possibility	 of	 future	

claims	 for	 public	 easements	 renders	 title	 unmarketable,	 and	 will	 not	 do	 so	

here.	 	 Other	 courts	 have	 rejected	 landowners’	 claims	 against	 title	 insurers	

where	there	was	merely	a	possibility	that	a	future	lien	or	encumbrance	might	

affect	 title	 to	 the	 property,	 reasoning	 that	 economic	 unmarketability	 of	 a	
                                                                                           9	

property	is	not	the	same	thing	as	unmarketability	of	title.		See	Chi.	Title	Ins.	Co.	

v.	 Investguard,	 449	 S.E.2d	 681,	 682	 (Ga.	 Ct.	 App.	 1994);	 Chi.	Title	 Ins.	 Co.	 v.	

Kumar,	506	N.E.2d	154,	156-57	(Mass.	App.	Ct.	1987);	Rood	v.	Commonwealth	

Land	Title	Ins.	Co.,	936	A.2d	488,	497	(Pa.	Super.	Ct.	2007).		Even	if	economic	

unmarketability	were	covered	by	the	policy,	Osprey	has	failed	to	demonstrate	

that	the	property	has	become	less	valuable,	let	alone	unmarketable.		

       [¶15]	 	 Despite	 Osprey’s	 assertions,	 there	 are	 currently	 no	

encumbrances	 and	 no	 claims	 adverse	 to	 Osprey’s	 title	 to	 trigger	 coverage	 of	

the	 policy.	 	 If	 we	 were	 to	 hold	 that	 a	 title	 becomes	 unmarketable	 merely	

because	there	is	a	possibility	that	a	claim	for	an	easement	could	be	brought	in	

the	 future,	 an	 untold	 quantity	 of	 titles	 across	 the	 state	 would	 subsequently	

become	unmarketable,	resulting	in	uncertainty	of	ownership	and	a	profusion	

of	litigation.		For	the	above	reasons,	we	affirm.	

       The	entry	is:	

                     Judgment	affirmed.		
	
	      	      	      	      	      	
10	

	
Jeffrey	 T.	 Edwards,	 Esq.	 (orally),	 Preti	 Flaherty	 Beliveau	 &	 Pachios,	 LLP,	
Portland,	for	appellant	Osprey	Landing,	LLC	
	
Paul	F.	Driscoll,	Esq.,	and	James	D.	Poliquin,	Esq.	(orally),	Norman,	Hanson	&	
DeTroy,	LLC,	Portland,	for	appellee	First	American	Title	Insurance	Company	
	
	
Lincoln	County	Superior	Court	docket	number	CV-2014-1	
FOR	CLERK	REFERENCE	ONLY	
