From the May, 2002 issue of of The Title Insurance Law Newsletter
The attachment of a plat map to a title insurance policy does not broaden the access coverage to assure that the streets shown on the plat are still public and worked, according to a Washington appeals court.
Art and April Dishman bought a house and several adjacent vacant lots in Goldendale, Washington. One lot fronted on north-south Klickitat Street, with the others lying to the west along the platted east-west Putman Street. Stewart Title issued their title insurance policy. A map attached to the policy showed the lots and the two adjacent platted streets.
North-south Klickitat Street was a traveled public road. Where east-west Putman Street was supposed to be, however, there was a garage, fence and at least one tree. Nonetheless, the city told the Dishmans that Putman was still a public road.
The Dishmans bought some adjacent lots to the south, intending to divide the combined land into two parcels. They wanted to replace Putman Street with a private easement. Their development plans ran aground when the city refused to vacate Putman. The Dishmans sold off the lots in several recombined blocks, one group fronting solely on Putman. After the sales, the city informed the Dishmans that Putman had been vacated all along, because it had not been worked in more than five years. Thus, the reconfiguration of lots by the Dishmans "cut off access to the remaining lots from Klickitat Street."
The Dishmans sued Stewart Title, claiming that their access coverage was invoked because Putman was vacated. The land in the Stewart policy fronted on Klickitat, and thus had a right of access. The Dishmans argued that the policy assured that Putman was public because the map attached to the policy showed the street. The trial court gave Stewart Title summary judgment. The appeals court affirmed.
The higher court said that the policy did not contain an assurance of more than one access point, or access to any particular street.
The policies guarantee 'a right of access to the land.' The 'land' in each policy is described as comprising a number of lots. Further, the policies do not guarantee a right of access from any particular street. Thus, the plain language of the policies indicates a promise of only one right of access to each insured parcel, not access from multiple points or to any specific lot within each parcel.
Washington is home to the difficult decision of Santos v. Sinclair, 76 Wn.App. 320, 884 P.2d 941 (1994), which the court distinguished. In Santos, the policy insured platted land. The plat described an easement. The Santos court found that the policy legal description, by referring to the plat, incorporated the easement on the plat by reference. Although a reference in a deed to another document "becomes a part of the legal description" in Washington, the court found no case saying that such a reference gives an assurance of rights "outside the described property." In this case, the court found no incorporation by reference:
[T]he Dishmans do not ask the court to use the plat map to clear up ambiguities regarding which property is covered by the policy. Instead, they claim the policy, by incorporating the plat, guaranteed the legal status of property not conveyed to them. But there is no reasonable construction of the policy that would lead an average purchaser of insurance to believe that by guaranteeing 'a right of access to the land,' Stewart Title meant to guarantee 'the existence of all streets shown on the incorporated plat map.' The Dishmans seek coverage for something that is simply not covered under the policy. We hold that the policy guaranteed only that some right of access to the property existed at the time of sale, and did not guarantee a right of access from Putman Street or any other particular street shown on the referenced plat.
Further, the court noted that the insured caused their own access problem by the manner in which they conveyed the property after the date of policy. It pointed out that the Dishmans were fully aware that Putman was not a worked street when they purchased. Also,
It is undisputed that each insured parcel had access to Klickitat Street when the Dishmans bought the property. The Dishmans did not lose that right of access until they sold the portions of their properties adjacent to Klickitat Street. Accordingly, the trial court correctly concluded as a matter of law that the Dishmans did not suffer an insurable loss under the policy.
Dishman v. Stewart Title Guar. Co., 2002 WL 491493 (Wash.App.Div. 1) (unpublished).
