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             DISTRICT OF COLUMBIA COURT OF APPEALS

                                  No. 13-CV-0216

                           MATTHEW FOGG, APPELLANT,

                                          v.

           FIDELITY NATIONAL TITLE INSURANCE COMPANY, APPELLEE.

                       Appeal from the Superior Court of the
                               District of Columbia
                                  (CAB-454-12)

                      (Hon. Anthony C. Epstein, Trial Judge)

(Submitted January 9, 2014                                  Decided April 24, 2014)

      Douglas R. Taylor for appellant.

      Griffin Vann Canada, Jr., and Bradford S. Bernstein, Miles & Stockbridge
P.C., were on the brief, for appellee.

     Before BLACKBURNE-RIGSBY and MCLEESE, Associate Judges, and
NEBEKER, Senior Judge.

      BLACKBURNE-RIGSBY, Associate Judge: Appellant Matthew Fogg seeks

review of an order granting summary judgment to appellee Fidelity National Title

Insurance Company (―Fidelity‖). Fogg specifically challenges the trial court‘s

order on the basis that the trial court erred in: (1) determining that Fidelity had no

duty to defend Fogg in a third-party lawsuit pursuant to the ―eight corners rule‖;
                                         2

and (2) failing to conclude that Fidelity owed a fiduciary duty of disclosure to

Fogg. We affirm.



                                         I.



      In 2008, Matthew Fogg loaned Newbirth Investment & Development

Company (―Newbirth‖) $700,000 for the purchase of a commercial property

located at 2914 Sherman Avenue, N.W. (―the property‖). The loan was secured by

the property and was to be repaid in two installments, the first of which was due on

March 1, 2009.      Newbirth purchased the property from Sherman Avenue

Management Corporation (―SAMC‖) on October 31, 2008.                    Worldwide

Settlements (―Worldwide‖) acted as the settlement agent for that transaction and

provided Newbirth with title insurance from Fidelity.



      Newbirth later defaulted on the loan from Fogg.         Rather than institute

foreclosure proceedings against Newbirth, Fogg agreed to purchase the property

outright in consideration for the sum of $225,000 and cancellation of Newbirth‘s

debt. Milestone Title (―Milestone‖) acted as the settlement agent for this second

sale. As part of its services, Milestone performed a title examination, finding that

Fogg had the only lien of record against the property.         Additionally, at the
                                        3

settlement on April 8, 2009, Fogg purchased title insurance from Fidelity, through

its agent Milestone, in the face amount of $225,000 and paid a premium of

$1,282.50.



      On June 18, 2009, SAMC filed suit against multiple defendants, including

Fogg, in the Superior Court of the District of Columbia. SAMC alleged that it had

made a $200,000 loan to Newbirth that was now in default and sought to have an

equitable lien imposed on the property because the deed of trust that was supposed

to secure SAMC‘s loan was never recorded. The complaint alleged that ―[w]hen

taking title to the Property, Fogg was aware of [SAMC‘s] loan to Defendant

Newbirth and [SAMC‘s] claim of a security interest in the Property, and . . . Fogg

is therefore not a bona fide purchaser for value and without notice of [SAMC‘s]

claim.‖



      Fogg requested that Fidelity defend him in the SAMC lawsuit. Fidelity

refused to defend Fogg in the SAMC suit because it determined such a defense was

not covered by Fogg‘s title insurance policy. Fidelity contends that its denial of

coverage is supported by paragraph 5(a) of the conditions to the policy and
                                          4

paragraphs 3(a) and 3(b) of the exclusions from coverage of the policy,1 which

state in pertinent part:

                                   CONDITIONS

              5.     DEFENSE AND PROSECUTION OF ACTIONS

              (a) Upon written request by the Insured . . . the
              Company, at its own cost and without unreasonable
              delay, shall provide for the defense of an Insured in
              litigation in which any third party asserts a claim covered
              by this policy adverse to the Insured. This obligation is
              limited to only those stated causes of action alleging
              matters insured against by this policy. . . . [The
              Company] shall not be liable for and will not pay the fees
              of any other counsel. The Company will not pay any
              fees, costs, or expenses incurred by the Insured in the
              defense of those causes of action that allege matters not
              insured against by this policy.

                                         ***

                           EXCLUSIONS FROM COVERAGE

              The following matters are expressly excluded from the
              coverage of this policy, and the company will not pay
              loss or damage, costs, attorney‘s fees, or expenses that
              arise by reason of:

              3.    Defects, liens, encumbrances, adverse claims, or
              other matters:



       1
        In its initial correspondence with Fogg, Fidelity cited to paragraph 3(a) of
the exclusions from coverage of the policy to support its denial of coverage. In its
motion for summary judgment, Fidelity additionally cited paragraph 3(b) of the
exclusions from coverage of the policy.
                                         5

            (a) created, suffered, assumed, or agreed to by the
            Insured Claimant;

            (b) not Known to the Company, not recorded in the
            Public Records at Date of Policy, but Known to the
            Insured Claimant and not disclosed in writing to the
            Company by the Insured Claimant prior to the date the
            Insured Claimant became an Insured under this policy[.]

Fidelity also cited the ―eight corners rule,‖ set forth in Stevens v. United General

Title Insurance Co., 801 A.2d 61 (D.C. 2002), to support its denial of coverage.

The rule states: ―[T]he duty to defend is determined generally by the terms of the

insurance policy and the allegations in the complaint against the insured[.]‖

Stevens, supra, 801 A.2d at 67 (citation and internal quotation marks omitted).

Applying Stevens, Fidelity relied on paragraphs 5(a) and 3(a) of the relevant

portions of the insurance policy, and it looked to the facts alleged in the SAMC

complaint to determine that Fogg‘s alleged knowledge of SAMC‘s security interest

excluded Fogg‘s request for defense from coverage.



      Fogg retained his own counsel after Fidelity declined to represent him and

ultimately prevailed in the SAMC suit after a jury found that Fogg was in fact a

bona fide purchaser for value, without notice of SAMC‘s purported security

interest. Fogg then brought the instant lawsuit against Fidelity, seeking to recover

$950,000 in damages for breach of contract and breach of fiduciary duty. Fidelity

moved for summary judgment as to all counts, arguing that paragraphs 3(a) and
                                          6

3(b) of the exclusions from coverage to the policy excluded defense of the SAMC

suit from coverage. Additionally, Fidelity argued that paragraphs 15(a) and 15(b)

of the conditions to the policy expressly limited Fidelity‘s liability to the terms of

the insurance contract. Finally, Fidelity argued that no fiduciary relationship exists

between a title insurer and insured. Paragraphs 15(a) and 15(b) of the conditions to

the policy state in pertinent part:

                                      CONDITIONS

             15. LIABILITY LIMITED TO                 THIS    POLICY;
             POLICY ENTIRE CONTRACT

             (a) This policy together with all endorsements, if any,
             attached to it by the Company is the entire policy and
             contract between the Insured and the Company. In
             interpreting any provision of this policy, this policy shall
             be construed as a whole.

             (b) Any claim of loss or damage that arises out of the
             status of the Title or by any action asserting such claim
             shall be restricted to this policy.



      On January 29, 2013, the trial court granted Fidelity‘s motion for summary

judgment on the basis that defense of the SAMC lawsuit was excluded from

coverage by paragraph 3(b) of the exclusions from coverage to the policy, and that

Fogg‘s breach of fiduciary duty claim, which he argued was not based on the title

insurance policy, was precluded because under the ―express, unambiguous

language of [paragraph] 15(b) . . . ‗[a]ny claim of loss or damage that arises out of
                                          7

the status of the [t]itle or by any action asserting such claim shall be restricted to

[the] policy.‘‖



                                         II.



                                         A.



      Fogg raises two issues on appeal. We first address his contention that

Fidelity breached a fiduciary duty of disclosure. We note at the outset that Fogg‘s

breach of fiduciary duty claim is not based on the terms of the insurance policy, as

he concedes in his brief. Nonetheless, Fogg seeks to establish: (1) that Worldwide,

which acted as the settlement agent for the first sale of the property from SAMC to

Newbirth, had knowledge of a ―secondary loan transaction‖; (2) that knowledge

should be imputed to Fidelity because Worldwide was authorized to issue title

insurance on Fidelity‘s behalf; and (3) that Fidelity owed Fogg a fiduciary duty of

disclosure beyond the terms of their contractual relationship.



      The policy plainly limits a claim for loss or damage to its terms as set forth

in paragraphs 15(a) and 15(b) of the conditions to the policy.           While Fogg

concedes that ―there is no dispute over the terms and provisions of the [insurance]
                                          8

policy,‖ he argues that Fidelity had a fiduciary duty of disclosure based on an

―apparent conflict of interest‖ that arose because Fidelity issued title insurance to

two buyers of the same property in two separate transactions. We agree with the

trial court that, on its face, there is no conflict of interest when an insurer issues

title insurance to different buyers of the same property. We are not persuaded that

the act of issuing title insurance, and thereby entering into a contractual

relationship with the insured, creates a fiduciary duty beyond the terms of the title

insurance policy. Consequently, Fogg‘s breach of fiduciary duty claim fails.



      Moreover, even if the policy covered Fogg‘s breach of fiduciary duty claim,

which it does not, Fogg ignores another provision of the policy — the ―Schedule B

Exceptions from Coverage‖ — which state in paragraph 6 that any title search and

examination conducted in connection with the issuance of a title insurance policy

is solely for the benefit of Fidelity.     Accordingly, the title examination that

Worldwide conducted at the time of the first sale was not for Fogg‘s benefit, and

he cannot use that title examination as the factual predicate for his breach of

fiduciary duty claim.
                                         9

                                        B.



      We turn next to Fogg‘s argument that the trial court erred in denying him

coverage in the third party lawsuit and in granting summary judgment in favor of

Fidelity by relying on Stevens. Fogg argues that the ―eight corners rule,‖ set forth

in Stevens, does not apply in his case because his case is distinguishable from

Stevens. Alternatively, he argues that Stevens should be overruled. We disagree.



      ―In reviewing a grant of summary judgment[,] . . . this court must

independently review the record to determine whether genuine issues of material

fact exist and whether the movant is entitled to judgment as a matter of law.‖

Stevens, supra, 801 A.2d at 65–66 (citations, internal quotation marks, and

brackets omitted). We review the record in the light most favorable to the non-

movant, and any doubt regarding the existence of a factual dispute is to be resolved

against the movant. Id. at 66. An insurance policy is a contract that this court

construes according to contract principles.      Id.   ―Where insurance contract

language is not ambiguous, summary judgment is appropriate because a written

contract duly signed and executed speaks for itself and binds the parties without

the necessity of extrinsic evidence.‖ Id. (citations, internal quotation marks, and

brackets omitted).
                                         10

      We are unpersuaded by Fogg‘s attempts to distinguish his case from Stevens.

Contrary to Fogg‘s contention, Stevens is applicable to the instant matter because

the facts are very similar and the insurance policy language is identical to the

policy language at issue in this case.2 In Stevens, supra, 801 A.2d at 67, we

reiterated that an insurance company‘s ―duty to defend depends only upon the facts

as alleged to be, so that the insurer‘s obligations should be measured by comparing

the policy it issued with the complaint filed in the underlying case.‖ (citation,

internal quotation marks, and brackets omitted); see also Levelle, Inc. v. Scottsdale

Ins. Co., 539 F. Supp. 2d 373, 377 (D.D.C. 2008) (―District of Columbia courts

follow the so-called ‗eight corners rule‘ with respect to insurance coverage

disputes.‖ (citation omitted)).   Furthermore, ―[t]he obligation to defend is not

affected by facts ascertained before suit[,] or developed in the process of

litigation[,] or by the ultimate outcome of the suit.‖ Stevens, supra, 801 A.2d at 67

(internal quotation marks omitted) (citing Boyle v. Nat’l Cas. Co., 84 A.2d 614,

615 (D.C. 1951)). Based on these considerations, our jurisdiction, like the majority

      2
         Fogg attempts to distinguish his case by arguing that the underlying
complaint in Stevens alleged active or intentional deception on Stevens‘ part in that
Stevens knew of a prior contract for sale but induced the owner to ignore that
contract and sell the property for a higher price. In contrast, Fogg claims that the
underlying complaint in this case mentioned only Fogg‘s knowledge of a
secondary lien without any discussion of how he obtained that knowledge,
suggesting that Fogg played a more passive role than Stevens, or, at a minimum,
did not intentionally disregard SAMC‘s security interest when purchasing the
property. This argument is not persuasive.
                                          11

of jurisdictions, adheres to the ―eight corners rule,‖ which has been explained as

follows:

             Under the ‗eight corners rule,‘ an insurer‘s duty to defend
             is determined by comparing the complaint . . . with the
             policy. If the facts alleged in the complaint . . . would
             give rise to liability under the policy if proven, the
             insurer must defend the insured. . . . The rule potentially
             allows an insurer to deny its insured a defense even if the
             insurer is aware of facts which, if pleaded, would entitle
             the insured to a defense . . . .

Id. at 66 n. 4 (citation and brackets omitted). Accordingly, Stevens‘ ―eight corners

rule‖ is directly applicable to Fogg‘s case.



      First, the insurance contract, in paragraph 3(b) of the exclusions from

coverage from the policy, plainly excludes ―loss or damage, costs, attorneys‘ fees,

or expenses that arise by reason of . . . [d]efects, liens, encumbrances, adverse

claims, or other matters . . . not Known to [Fidelity], not recorded in the Public

Records at Date of Policy, but Known to the Insured Claimant . . . .‖ Second, the

complaint against Fogg alleged in paragraph 22 that ―Fogg was aware of

[SAMC‘s] loan to . . . Newbirth and [SAMC‘s] claim of a security interest in the

Property[.]‖ SAMC‘s claimed security interest constitutes a ―lien, encumbrance,

[or] adverse claim,‖ and by alleging that Fogg ―was aware,‖ SAMC alleged actual

knowledge of its security interest. Third, Fidelity denies knowledge of SAMC‘s

claimed security interest. Fourth, SAMC admitted that its deed of trust was never
                                         12

recorded, and Milestone‘s title search revealed that the only lien against the

property was Fogg‘s. Consequently, because of the paragraph 3(b) exclusions

from coverage, Fogg‘s alleged knowledge of SAMC‘s unrecorded security interest,

and Fidelity‘s lack of knowledge regarding the same, we conclude that Fidelity had

no duty to defend Fogg.



      Fogg alternatively asks us to overrule Stevens by adopting a ―factual

exception test‖ to the ―eight corners rule.‖ That test, as explained in Fitzpatrick v.

American Honda Motor Co., Inc., 575 N.E.2d 90, 93 (N.Y. 1991), upon which

Fogg relies, would ―require the insurer to provide a defense when it has actual

knowledge of facts establishing a reasonable possibility of coverage[.]‖ See also

Stevens, supra, 801 A.2d at 70. We are not persuaded that Fidelity had actual

knowledge of any outside lien, especially in light of the fact that Milestone‘s title

examination revealed nothing more than Fogg‘s security interest in the property.



      Even if Fidelity knew of some outside lien, we decline to adopt the ―factual

exception test.‖ See Stevens, supra, 801 A.2d at 71; see also M.A.P. v. Ryan, 285

A.2d 310, 312 (D.C. 1971) (―[N]o division of this court will overrule a prior

decision of this court[.]‖ (footnote omitted)). We passed on a previous opportunity

to adopt the ―factual exception test‖ by reference to countervailing policy
                                         13

considerations in favor of the ―eight corners rule,‖ because the ―factual exception

test‖ would cause uncertainty for insurers who would ―be less clear as to what, if

any, investigation [they] must make into a demand to defend and when it is

permissible to decline representation.‖ Stevens, supra, 801 A.2d at 71 (citing

Fitzpatrick, supra, 575 N.E.2d at 96–97 (footnote omitted) (Alexander, J.,

dissenting)).   We were also wary of the potential for additional collateral

proceedings. The ―factual exception test‖ would obligate courts ―to look beyond

the allegations in the complaint to discover the ‗actual‘ facts, or at a minimum

whether the insurer ‗knew‘ or perhaps even ‗should have known‘ of such ‗actual

facts.‘‖ Id. Finally, we expressed concern over the possibility that the ―factual

exception test‖ could ―place the insured in the position of dictating the theory of

the action[.]‖ Id. This could ―conceivably requir[e] the carrier to defend a claim

the plaintiff has no intention of asserting merely because allegedly there are ‗facts‘

which support such a claim.‖ Id. The facts of this case and our precedent do not

counsel us to otherwise adopt the ―factual exception test.‖



      Accordingly, we affirm the judgment of the trial court.



                                                    So ordered.
