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Fidelity National Title Co. v. First American Title Insurance Co.

United States District Court, District of Colorado

March 20, 2015




THIS MATTER comes before the Court pursuant to the Plaintiffs’ Motion for Partial Summary Judgment (# 37), the Defendant’s response (# 38), and the Plaintiffs’ reply (# 46); the Defendant’s Motion for Summary Judgment (# 53), the Plaintiffs’ response (# 63), and the Defendants’ reply (# 67); and the Plaintiffs’ Motion to Strike (# 69) the Defendant’s reply or for leave to file a sur-reply, the Defendant’s response (# 70), and the Plaintiffs’ reply (# 74).


The Court generally summarizes the pertinent facts here and elaborates as necessary in its analysis. The Plaintiffs are various title insurance companies doing business in Colorado. They entered into contracts with the Defendant (“First American”), a title insurance underwriter, essentially to re-insure the title insurance policies they wrote for customers. The Underwriting Agreement between the parties provided that the Plaintiffs would be liable for what is essentially a deductible – they would reimburse First American up to $ 500 for each payment that First American made to an insured under the title policies. (The Court will refer to these as “deductible payments.”)

In August 2013, First American filed a lawsuit against the Plaintiffs in the Colorado District Court for Douglas County, alleging that it had made payment on dozens of insurance claims against each Plaintiff between 2007 and 2012. It alleged a single breach of contract claim against each Plaintiff, contending that the Plaintiffs failed to pay the requisite deductible to First American with regard to each such insurance claim as required by the Underwriting Agreements.

The Plaintiffs then commenced this action, seeking a declaratory judgment that they were not obligated to First American for various reasons.[1] As set forth in the Amended Complaint (#39), the Plaintiffs seek declarations: (i) that First American’s claims relating to settlements prior to September 1, 2009 were released by First American in a settlement agreement between the parties resolving prior litigation; (ii) that First American materially breached the Underwriting Agreement by failing to produce claim files and other records relating to the underlying insurance claims at the Plaintiffs’ demand; and (iii) that certain insurance claims for which First American sought reimbursement were not actually losses for which the Plaintiffs owe a deductible under the terms of the Underwriting Agreement. (The Plaintiffs also sought an award of attorney fees arising out of the terms of the 2009 Settlement Agreement.)

First American filed counterclaims (# 32) in this action against each Plaintiff – the same breach of contract claims that were asserted (and subsequently dismissed without prejudice) in the Douglas County action.

The Plaintiffs move (# 37) for summary judgment on First American’s counterclaims as well as their own requests for declaration of release and non-liability. They argue that: (i) First American cannot show that every insurance claim that was paid gave rise to a deductible payment under the terms of the Underwriting Agreement; (ii) all of First American’s claims against the Plaintiffs with regard to title insurance claims paid before September 2009 and claims based on title insurance policies written prior to September 2009 were released by operation of a settlement agreement between the parties; and (iii) that claims by First American for losses sustained prior to December 2010 are barred by the three-year statute of limitation (and that a six-year limitation period governing liquidated losses does not apply).

Separately, First American moves (# 53) for summary judgment on its breach of contract counterclaims against each Plaintiff.[2] (First American’s motion also contains argument addressing the Plaintiffs’ defense of release, including certain arguments it had not made in responding to the Plaintiffs’ summary judgment motion.)


A. Standard of review

Rule 56 of the Federal Rules of Civil Procedure facilitates the entry of a judgment only if no trial is necessary. See White v. York Intern. Corp., 45 F.3d 357, 360 (10th Cir. 1995). Summary adjudication is authorized when there is no genuine dispute as to any material fact and a party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). Substantive law governs what facts are material and what issues must be determined. It also specifies the elements that must be proved for a given claim or defense, sets the standard of proof and identifies the party with the burden of proof. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Kaiser-Francis Oil Co. v. Producer's Gas Co., 870 F.2d 563, 565 (10th Cir. 1989). A factual dispute is “genuine” and summary judgment is precluded if the evidence presented in support of and opposition to the motion is so contradictory that, if presented at trial, a judgment could enter for either party. See Anderson, 477 U.S. at 248. When considering a summary judgment motion, a court views all evidence in the light most favorable to the non-moving party, thereby favoring the right to a trial. See Garrett v. Hewlett Packard Co., 305 F.3d 1210, 1213 (10th Cir. 2002).

If the movant has the burden of proof on a claim or defense, the movant must establish every element of its claim or defense by sufficient, competent evidence. See Fed. R. Civ. P. 56(c)(1)(A). Once the moving party has met its burden, to avoid summary judgment the responding party must present sufficient, competent, contradictory evidence to establish a genuine factual dispute. See Bacchus Indus., Inc. v. Arvin Indus., Inc., 939 F.2d 887, 891 (10th Cir. 1991); Perry v. Woodward, 199 F.3d 1126, 1131 (10th Cir. 1999). If there is a genuine dispute as to a material fact, a trial is required. If there is no genuine dispute as to any material fact, no trial is required. The court then applies the law to the undisputed facts and enters judgment.

If the moving party does not have the burden of proof at trial, it must point to an absence of sufficient evidence to establish the claim or defense that the non-movant is obligated to prove. If the respondent comes forward with sufficient competent evidence to establish a prima facie claim or defense, a trial is required. If the respondent fails to produce sufficient competent evidence to establish its claim or defense, then ...

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