thank you runner steve wells on behalf of the appellant's in this case rolls it please the court counsel the trial court here committed three fundamental errors that were cryer reversal on the issue of duty on the issue of proximate cause and on the issue of rule fifty sixty and i'd like to deal with the issue of duty first if i make it in every case that's been cited by everybody in this case the very first inquiry that a court makes when trying to determine whether a professional has a tort duty of care is to determine the nature of the services that it has been instructed to perform or that it has agreed to perform whether that cases bar stat that was cited by the apple e's whether it's sealy whether it's loose the very fundamental inquiry that a district court has to make in determining whether or not there's a duty a tort duty is what were its instructions what were the obligations that it was supposed to perform under its contract well the distance you mention those cases what's wrong with the loose case why should we follow loose was very well analyzed by the arizona court arizona's part of the circuit because because in loose your honor there were no instruction such as there were here in other words that the fundamental problem here is that because the court never made an inquiry as to what the obligations were that were undertaken by by chicago title here it differs from lose and lose there were no instructions to make a determination as to the validity of a second li well that's a question sure but under the affiliated case the court make the increase for the court is what is it that they're doing are they exercising professional care are the exercising their professional discretion or are they mere messengers or are they mere clerks or ministers because if it's the latter we're not arguing that if that if this if they were merely messengers that this quarter any court should impose some sort of special duty on them what we're saying is just like an engineer when you undertake professional responsibilities where that is part of the instructions and you use those you exercise your professional discretion and judgment when you do that and just as unaffiliated if those obligations create risks to non parties then the court may impose may say a tort duty arises out of photos but i always thought title matters were covered by the terms of the contract itself well the instructions here in iran are are what's really critical i think and those were what were ignored by the district court and that's the critical point i want to i want to impress upon this court there were instructions in this case and the instructions there at there at  excerpts of the record you are fifty eight and the instructions from central to the title company in this case were you may record the leasehold d o t deed of trust provided your revocable irrevocably committed to ensure the enclosed mortgage on a mortgage is extended basis with coverage of ten million dollars as a valid second lien against the lease whole property those instructions necessarily required chicago title here to exercise professional judgment and skill like an engineer like a professional in another context not like a messenger not like a clerk not like a ministerial duty now sent from said itself this is the testimony of elizabeth baker it's an excerpt of the record five twenty four that sent from was relying on chicago title to determine validity in other words into determine whether these incumbrances were val immediately on the instructions do you think that it varies from case to case in other words there is not a freestanding duty but that it's then if it's dependent on whether there's a duty depending on the factual issue yes very much so you're i'm not saying that in some cases there might not be for example engineer liability where it's where the engineers duties are well known but i am saying your honor that the these the existence of the duty may depend on the nature of the work that's being performed and the nature of the work that's being performed depends on the instructions in the agreement what is the word of the beth the washington case  give give this a clue as to how the washington supreme court would view this issue i think affiliated f m your honor is the case that sets forth the principles that are to be relied upon here and that the existence of the duty question there is again the court looks at what was the nature of the defendant's duty in that case while they were engineering cuties they were professional skill exercise a professional diligence and that involved what the fire insurance system like and that involved a the design of  monorail system which resulted in a in a fire and now because there are two cases right there's a washington state case and there's a ninth circuit case which one are you referring to the washington state case the supreme court case is that the monorail cases i guess one of the obvious questions and of course it's been raised by the parties is certification because we would if we were to us determine that there is a duty it would seem to me that we really would be in effect adding another classification of professionals to this duty basket and that would be fairly significant it's not clear to me from the monorail case that the court would come out the same way it might but why  your view then on certification our position in that your honor is that there is the evidence in the record as to the nature of duties to be performed here is really not disputed it is it is what i read to the court it is those instructions it  duty to determine whether or not there is a valid secondly and centrum is clear about that too so i think that there's enough for this court to be able to say we're not imposing a duty on a class of of professionals here we're saying in this context that be given the nature of the work that they performed but there's a duty but also the washington supreme court in the earlier case did focus on issues of public policy and it was shifting in that sort of thing and it would seem to me just from reading this prime court's case in that in other types of situations that it really would be the states a state would be more appropriate to figure out the public policy balance you want in washington rather than a federal court i think that's fair your honor i think that's right when we're talking about the policy considerations that apply here i do think that that or if there's i don't see a conflict between where the we're limiting our argument to the nature of the work that was performed in disc case i think the question was should we certify the supreme court of washington yes or no so the answer is believe that the the the problem with the district court's opinion here when it got to the balancing factors that you raised just mckeown was is that it assumed when it when it went into the balancing test in a suit that the nature duties that were to be performed here were prior purely ministerial it made no findings to that effect at reciting no evidence to that effect but all the parade of horribles that were trotted out by the by chicago title in this case and adopted by the district court they all assume they all assume that this is imposing a duty on chicago title that it didn't already undertake that is the duty to determine whether or not there was a valid secondly and it did that because of the assumption that this was purely ministerial despite the evidence in the record to the contrary and that's the problem with the analysis that the court under took on the the balancing test that's mandated by affiliate essentially so if the court had conducted an appropriate balancing test given the nature of the work that was to be undertaken here it would have for example it would have noted that the that the someone in the before the filing needs to determine whether or not there is a valid this was a valid secondly nobody made that determination putting the property owner at risk here centrum delegated that to a professional the professional was in control not the property owner the property owner had no control over that that determination but according nor that in the court found that there were there would be burdens and it would slow the recording system down but that all assumes that all assumes that this was a different duty that the court would impose a different duty than what chicago title had already undertaken and that was to determine whether or not this was a valid second please so that's the really the fundamental those are sort of the fundamental problems on the duty issue it seems to me now i know i know my opposing counsel going to stand up and say no no they didn't have a duty they didn't have a they didn't undertake a duty to determine whether or not there was a valid secondly all they said was the instructions  to record if you can insure it but that's not what it says it doesn't say you may record if this is insurable it says you may record the leasehold d o t if you are irrevocably irrevocably committed to ensure the enclosed mortgage as a valid secondly against the leasehold property so it doesn't hinge just on insurability it hinges on validity of the secondly and centrum who gave the instructions very very clear that that was that instruction was intended to have the chicago title to determine the validity of that lien because centrum was not making that determination the fact that no one made that determination put the property owner here century and huge risk now there are various issues raised as to proximate cause and let the i think we deal with them pretty well in our briefs i really just wanted to say a couple of things about those those are all issues affect all of those are issues of fact and in fact if there was a dispute about the nature of the duties that were undertaken by chicago title here that too would be an issue affect affiliated f m says that the duty issue is an issue for the court and we understand that but affiliated f m doesn't say where there are factual disputes you get to decide that on summary judgment so both the proximate cause issues end if the court found there was some dispute about what the nature of the services to be provided were those we'll hear from chicago title morning your honour's my name is steve syria and i'm representing the respondent chicago title runners i'm going to focus on the issues the council just focused on but i'd be happy to entertain any questions cause of action would entirely undermine the bar staff and the clip in cases which together hold the title company owes no duty and tort to search for and disclose possible defects was doing a title commitment you liabilities on the policy only your honour's think of the title insurance process and the real estate closing process as a continuum at the beginning title is ordered by whoever wants the insurance and title searches done and a commitment is generated and the commitment says not that we guarantee that this is an abstract of title and discloses all possible defects it's perfectly clear that the commitment is only an undertaking to ensure some future certain exclusions and exceptions now during that process it had been argued for years that the title company has abstractness liability it has the duty in negligence to disclose all known defects that was clearly rejected in the bar stat case as to those who have insurance policies those who ordered insurance and it was clearly rejected in the click when case as for those who haven't ordered insurance will counsel what do we do with the language in the instructions itself which your opposing coun that this case is taken out of the general class that you just described her and your honors i'd like to turn to the language of the instruction itself it's a if you're a fifty eight you may record the lease hold deed of trust provided your irreverently committed to ensure to insure the enclosed mortgage and then there's an ellipsis as a valid second lien against leasehold property this is a request for insurance it's a statement that if you can insure if you can issue a commitment and a subsequent policy for title insurance then you are authorized to record it is not a statement that demands a guarantee of the condition of title it is not a statement that demands a warranty that there are no liens encumberances and that in fact the mortgage is valid the statement valid second lien is simply a description of the insured interest it's like saying it's no different than saying we we  ensure that our lease hold interest is valid or that an easement is valid is simply a description those three words are of the interest being insured secondly this is an instruction from a third party it's an instruction from centrum who i have to tell you had a claim under the policy and we paid it we recognize our obligations for those who give us instructions but c p three didn't give us any instructions counsel would have you believe that they were a stranger to the transaction if that's the case they have no rights under the click when case to piggyback on to the instructions that were given by others affiliated f m as your because affiliated f m turned on the fact that there was a danger of personal injury and personal injury cases are much broader and more liberal in respect of the duties that they're willing to that they're willing to impose and that's because of the importance of personal safety so that's the first reason an mackinnon you indicated that there's some concern about extend at the ninth circuit extending the reach of washington lobby on some modest toll in the water and and i would respectfully suggest that the affiliated f m case represents washington law in respect of possible personal injury cases but what happened in bar stead and in click when which represent washington law in the title insurance area is th third parties were denied coverage and and that's a decision a policy decision that's been made pursuant to statute in washington and it's an important public policy that would be difficult to overturn now that brings me back to commitments and they're actually in transaction that have gone through in those or yes your honor at the conclusion and a failure to follow instructions there's no reference in the cases to failure to follow instructions i mean that's what makes this different to does and that it is it is a difference i'm not sure it's a distinction when the because the third parties the third party in this case in the in our case didn't give instructions and the question is whether they are entitled to rely on the instructions that were given by the party who sought insurance more than that there's a question of what the insurance what the instructions mean and the language is very bar steady and if you'll permit that term the language of the instructions follows the bar stock reasoning it says you can record when you are in a position to insure and then the question is not sure what the answer is a valid second lien but nobody asked these folks for an abstract of title nobody ashikaga title for a warranty that there's no other defect and that there's a a valid first lien they were simply asked to ensure they did insure and it turned out that they were wrong it turned out that there was some issue of validity and they paid t the recorders office and the title company and the title company undertook to properly record instruments and there was a there was almost a public trust aspect to that case but there's nothing in the case that indicate you know the court dependent particularly on that contract well i with respect your honor i think it did and i think it also depended on the fact there was a second distinction and that is that on the face of the recorded instrument there were flaws and defects there were there was a facial invalidity there was a lack of acknowledgement as i recall and so for both reasons your honor and because subsequent california cases have been cited the sealy case i'm not sure is that it's that it's it's good law it seems to me but it's only good l california and with respect to the very narrow facts to which it applies i think loose is a much more apt illustration of how the law actually works well except loose i think depends on the arizona law that says  thank you know the party the mood to the congress i don't think there's any such rule in washington well your honor the there is the liquid on the bar step cases both reject the notion that third parties have rights under the insurance policy or the commitment and that's that's particularly true of the bar state case which is kind of the latest audience from the washington supreme court if i may make a point about the unlimited extent of the of the of the liability that the put the of the opponents are seeking to extend i ask you to think about that closing and title insurance process as a continuum in the old days before  plaintiffs would sue when they suffered a title defect that wasn't in exclude in the schedule be both on the policy and in tort and the court the supreme court kept putting off its decision about whether there was abstract liability  and in johnson and shot well in lombardo the court said we're going to defer that decision for another day but in barstow the court said there is no abstract or liability and so when a mistake is made in the underwriting process prior to the issue and some of the commitment to the recording and they've said if you record title company an instrument that is invalid or defective or has the wrong priority you are liable in tort and they claim to limit that by having these pointed to these instruction these are standard instructions these instructions are given in most instances and the liability in tort that arises from recording is the same liability that click when said it doesn't exist at the beginning of the process so as a practical matter any aggrieved plaintiff any aggrieved insured or non insured can simply sue on the policy and as they used to try to do before barstow had they can sue on the tort as well moving the tort claim forward in time from the issuance of the commitment to the recording of the instrument because every time up the title company issues a commitment there's a recordable instrument that goes along with it the recordable instruments that which is being insured negligence and any error in the in the in the underwriting process will be duplicated when it gets to recording so that an instrument that the title company misses in the underwriting process will be missed at the recording at the at the at the search process if there is one one that when the recording occurs and what is your position on third if occasion your honor i don't believe that it's necessary it seems to me that there's plenty in this record that indicates what the law in washington is or would be if this precise case was brought before the washington supreme court and i think your honor that in light of the radical nature of the liability being imposed the radical change the undermining of  not the kind of case that should be certified because it's not seeking a marginal change in law it's not seeking to put just put the toll in the water it's seeking a very substantial change and an undermining of existing case law well that that sort of has a should decide that not us you're saying well they're asking for too much so therefore you shouldn't certify it and i'm not quite understanding your rationale there well they're asking for too much because the liability  would reinstitute abstractness liability it would bring as well one of the argue for too much don't you think that the question that should be argued before the washington supreme court your honor i don't think certification is necessary if if the if what the appellant is asking for would beat whitman would be overturned if we need to be overturned in order for the state supreme court to take this up and credit their position your honor i can't do that because it's not the language that would be overturned so we're  tort slide down the continuum of time connected with real estate closings and say well maybe you didn't make a negligent mistake in the underwriting of the of the policy but when you want to record you made legit mistake you made the same mistake and and so is there a difference between abstract and what's happening here in terms of what they're pointing to as the foundation in terms of these instructions isn't that  f the instructions are an added element your honor but these instructions are instructions that are given every time a title policy is ordered and every time a document is to be recorded you may record when you are in a position to ensure that there's nothing unusual about that it's commonplace and it's consistent with with with the washington case law what is the duty of your client to centr ninth two thousand and seven what's what's chicago's responsibility it's reject the letter and it simply say well you're not going to do business with you are doing business with the person who requested  you've asked about the responsibility to centrum that that's the party that ordered the title this is out your question well i'm talking about this particular letter you distinguished it at least you tried to but i say it was just nothing more than a request  for insurance and actually it was an instruction from a third party so my question to you is what is chicago's duty to this third party while your honor is not a third party this is this is equity funding which is an affiliate of centrum and equity finding a saying we want you to record only when you're in a position to insure and chicago title is duty to the requesting party in that situation is to commit to issue the policy of insurance as requested or to say to centrum we cannot do that we cannot ensure this interest now in this case your college title fulfilled its obligation it committed to ensure it did insure and it paid the claim so so it was in complete compliance with the instructions that it received from its insured writers i've got about twenty six seconds left if you have any oh you're over time by twenty eight but that's all i s thank you very much you're very welcome counsel the other side has some reserved time mr wells i think your honor i have five points that i'm going to try to make very quickly as to bar state and clip and it's both relevant and irrelevant it's irrelevant in the sense that the only question that was presented in those cases was whether or not the nature of the work that they were to perform was up in them in the way of a statutory statutorily defined preliminary commitment that's it that was the question so that's why it's relevant because it doesn't go to the instructions that were given here but it's relevant for this reason the court focused on what the nature of the duty was that they undertook when they undertook the scope of services that they did and they found that it was very limited it was only as to the statutory definition of a of a preliminary commitment so it's irrelevant in its outcome but it's relevant in the sense that the court there again what the district court here did not get asked what were the services that they had agreed to perform and where they professional services and where that was their the exercise of professional discretion and the source of your learned opponent here says well look at the instructions they they actually did what they committed to do these of the century and but they but the i would i would take issue with that your honor they didn't do what they said they would do they didn't deter me they didn't insure it as a valid secondly they ensured it but it wasn't a valid secondly now they say oh this is standard language in this isn't everything there's nothing in the record about that your honor that's our that's where argument there's nothing in the record about that and it doesn't say it doesn't say record this if you can insure it it says record this if you can ensure it is a valid secondly and if there was any doubt about what those instructions meant there boaster by the testimony of centrum who gave them the person as elizabeth baker and said you are five twenty four she says we were relying on chicago title to determine if this was a valid incumbrance now if at the end of that your honour's you decide well that's there's a dispute here that's an issue of fact it should not have been decided on judgment let's just assume there was a duty then we must assume for talking purposes or duty and then you get to the end about the scope of the duty what do you do with the washing cases in which some say at least one of the cases maybe the metro or the so what kay says it's basically a legal question and one of the other cases says it's a factual question well i think this one i think the scope of the duty so the existence of the duties an issue that's this in the existence and then then the scope issue is for the jury the scope issue is a is a how far it extends and to whom it extends was it forseeable in other words that's the question and forsee ability is the issue for the jury here clearly i don't think there's i think i think your honor it says the duty question at the existence of the duty question is an issue of law but i think the forsee ability issue they i think my recollection and they say a duty scope involves the question of law now maybe they're mixing and distance with duty i don't know but that's what they said i think well i think you may be right around about here i have to say here i just don't think i don't think forsee ability is much of an issue because there's really no doubt the foreseeability issue that arises here is if you file an invalid lien against a property owner could there be negative consequences because we're not arguing for liability against you know complete strangers to the title here we're talking about a property owner so i don't i think as a practical matter it's forseeable whether it's a question of fact or whether it's a question of law it's forseeable that if you file an invalid secondly against a property that's going to cause problems you're saying it's always foreseeable in this join with me that you know not an element well in this situation i would say in this that you know i would say let me just be clear your honor i'm not saying that's receival as to anybody i'm saying that it's forseeable as to the property owner so in other words it could be i mean councils talking about sort of unlimited liability to the public at large we're not talking about that we're talking of liability to the property owner thank you counsel thank you for the case just argued will be submitted for decision