### NO. 81-37 IN THE SUPREME COURT OF THE STATE OF MONTANA 1982

JOHN 

### Y. LIPINSKI, Plaintiff and Respondent,

THE TITLE INSURANCECOMPANY,an Idaho Corporation, and FLATHEAD COUNTYTITLE COMPANY, a Montana Corporation, Defendants and Appellants.

Appeal from: District Court of the Eieventh Judicial District, In and for the County of Flathead Honorable Robert Sykes,Judgepresiding. Counsel of Record: For Appellants: Richard DeJana argued,Kalispell,Montana For Respondent: Jonkel and Kemmis,Missoula,Montana DanielKemmis argued, Missoula,Montana

Submitted: May 14, 1982 Decided: December 23, 1982Mr. Justice Daniel J. Shea delivered the Opinion of the Court. The defendant title insurance companies appeal a judgment of the Flathead County District Court inwhich they

were found liable to Lipinski for damages caused by their failure to determine and disclose certain ditch rights easements, and because they failed to defend Lipinski in lawsuits brought as a result of those undisclosed rights. Three lawsuitswere brought against Lipinski. The insurance companies defended the first lawsuit under a reservation of rights,and eventually contributed $2,500 to settle that lawsuit (referredto as the Maris settlement). Later, two more lawsuitswere filed against Lipinski and the title companies refused to defend both lawsuits. Lipinski sued the title companies for damages arising from the existence of the undisclosed easements, and for punitive damages because the title companieswere in bad faith in refusing to defend the lawsuits. We affirm inpart, reverse inpart, and remand for furtherproceedings. Although the issues raised by the title companies are rambling and disjointed, it appears that their appeal centers

on three areas of the trial court's judgment. The first

area concerns the trial court's ruling that the title companies

were liable to Lipinski up to the face amount of the policy for their failure to discover and disclose,or insure against, the existence of the easements. Lipinski paid $46,000 to purchase the easement rights, and the trial courtheld that the amount paid to remove the defectwas the measure of damages. The trial court therefore awarded the damages up to the face amount of the policy, $25,000. The title companies pose three arguments as to why Lipinski is not entitled to damages. We affirm except thatwe hold that $2,500paid thetitle companies to settle the Maris lawsuitmust be deducted from the amount ordered to be paid. The second area of appeal concerns the trial court's assessment of $15,000 punitive damages against the title companies for their refusal to defend two lawsuits against Lipinski--referred to as O'Neil - I and O'Neil 11. The title companies argue in effect thatpunitive damages cannotbe imposed against an insurance company based on findings and conclusions that the companieswere in bad faith in refusing to defend Lipinski. The title companies further argue that punitive damages could not be imposed because the trial court failed to find any actual damages, incurredby Lipinslti, that were separate from the costs incurred in defending the lawsuits caused by their breach of a contract to defend. The trial court awarded a lump sum of $15,000 for refusal to defend O'Neil I and O'Neil - 11. We hold that the title companies had only a duty to defend O'Neil - I,and because the damageswere not assessed separately,we remand for a redeterminationof punitive damages for refusal to defend O'Neil - I. We furtherhold that Lipinski can recover his costs incurred for defending O'fJeil - I and that he cannot recover his costs incurred for defending O'Neil - 11,which defensewas occasioned by Lipinski's own refusal to abideby

a settlementhe reached in O'Neil - I. The third area of damages concerns prejudgment interest awarded on costs incurred to defend OfNeil- I and O'1Jei.l - 11, and surveying and engineering costs incurred in defending O'Neil - I and O'Neil - 11. The trial court awarded prejudgment interest at the rate of 10percent per annum, and the title companies argue that 6percent per annum is the proper interest rate. Lipinski concedes error on this issue. Because we have held that costs incurred in defending O'NeilI1 are not recoverable,we remand for a redetermination of - interest on costs incurred in defending O'Neil - I only. The trial courts also awarded costs for surveying and engineering expenses incurred in defending O'Neil

### - I and OfNeil- 11--the costswere not apportioned by the trial court in its findings or in its judgment. Because no costs are recoverable for defending O'Neil - 11,we remand for a determination of the survey and engineering costs incurred for defending O'Lieil - I only. The chain of events leading to this appeal started in 1961when Lipinskipurchased land near Kalispell for $25,000. Before buying the land, Lipinskihad the property surveyed. He knew there were irrigation ditches on the property and that one of them, known as the "Griedj" ditch, had been repaired recently,but he did not know that easements accompanied the ditches. He began building a home on the land. Before the title companies issued him a title policy in February 1963,he knew that a neighbor was using the "Grieg"ditch which passed through his land. The neighbor, Jack Maris,

was leasing the adjoining property and asked to enter on Lipinski's land to maintain the ditches. Lipinski denied him access and relied on the title policy which showed no easements. This resulted in Maris bringing suit against Lipinski for interference with the easement. The lawsuitwas settled for $6,000, with the title companiespaying $2,500 of their total $25,000 exposure, and with Lipinski paying $3,500. Shortly after the Maris settlement,O'Neil, the owner of the adjoining property, filed suit against Lipinski for interference with his easement rights and for other relief. Lipinski requested the title companies to defend him butthey refused to do so. Lipinski hired his own counsel and eventually the O1Neilsuit was settled, although not for long. Lipinski refused to abide by the settlement agreement and O'Neil again sued Lipinski, this time for specific performance. Lipinski again asked the title companies to defend the lawsuit but they refused to do so. The trial court granted specific performance in O'Neil 11, and this Court affirmed. OINeilv. Lipinski (1977),173 - Mont. 332, 567 P.2d 909. After remand,Lipinski and O'Neil, rather than proceed with the terms of the specific performance agreement, agreed that Lipinskiwould purchase O'Neil's ditch rights for $46,000 and the O'Neil's would quitclaim their interest in the ditch rights to Lipinski. The parties performed this agreement. The present litigation involves Lipinski's suit against the title companies and the resulting judgment against the title companies. Part of the lawsuit involves the language 

### of an agreement between the title companies and Lipinski when the Maris suit was settled. Paragraph two of that agreement stated: "2. That the second parties [the title companies] shall not be liable for any claim or claims brought directly by firstparty [Lipinski]as a result of the presence of either of the two ditches on his lands, which ditcheswere the subject of the above referred to lawsuit." Lipinski signed this agreement and sent it back to the title companies. Before signing the agreement, however, the title companies inserted the phrase "seeinsert below" next to paragraph two and then placed the following insertion underneath the signatures: "Insert: 'except that the payment hereunder by the [titlecompanies] shall be deemed to be in full compensation for any reduction in the value of the insuredproperty of 

# . .

# . [Lipinski] caused by the existence of the two ditches thereon."'Lipinski's title policy obligated the title companies to defend Lipinski at their own cost in any litigation 

# ".

. . founded upon a defect, lien, encumbrance, or other matter insured against by this policy." In checking the records before issuing the policy, the title companies failed to find, or note on the policy, that a 1944 warranty deed existed in Lipinski's chain of title which contained the recital: 

### "

# . .

# . subject - to rights establishedby - irrigation ditch 

# . . ."the Maris lawsuitand the O'Neil lawsuitswere based on an underlying easement relating to the irrigation ditch and the rights of the owner of the easement to maintain and repair the irrigation ditch. The first OINeilsuitwas based on contentions that Lipinski had wrongfully interfered with the O'Neil's primary easement to transport water across Lipinski's lands and a secondary easement tomaintain a dam and two irrigation ditches. The title companies refused to defend Lipinski in that action. We hold that the title companieswere obligated to defend Lipinski. The second O'Neil suit,however, was brought to enforce the agreement reached between O'Neil and Lipinski to settle the first suit. We hold that the title companieswere not obligated to defend that lawsuit because Llpinski invited this lawsuitby refusing to abide by the settlement terms of the first O1Neilsuit. As we have previously stated, the trial court found that Lipinski had been damaged in the amount of $46,000 (the amounthe paid to buy the easement rights from OINeil),but limited recovery to the face amount of the policy--$25,000. The court further ruled that the title companies' refusal to defend O'Neil - I and O'Neil - I1 was both a breach of contract and an act of bad faith. The courtheld that the refusal todefend "wasan act done without justification, was willful, malicious, oppressive, and constitutedbad faith on the part ------ 

### of the defendants." The court assessed $15,000punitive 

### -- damages against the title companies. The trial court also awarded Lipinski his costs incurred for defending O'Neil I - and O'Neil - 11, including attorney fees, survey and engineering expenses, and prejudgment interest on these amounts from the time the costs were incurred. EFFECT OF THE FAILURE TO DISCOVER THE EASEMENTS: The title companies argue that under the policy terms they-hadno duty to discover the ditch right easements. First, they argue that the easementswere not of record and therefore they should notbe held responsible for reporting their existence to Lipinski. Second, they argue that the title insurance contract expressly excludes water rights, that the basis of the easement is an underlying water right, and therefore that coverage isprecluded. Third, they argue that Lipinskihad or should have had personal knowledge of the easements and his failure to report them to the title insurance companies should preclude his right to recover. A 1944warranty deed in Lipinski's chain of title recited that the grant was "subject 

### - to rights established - by irrigationditch." The question 

### iswhether this recital put the title companies sufficientlyon notice that a duty was imposed to further determine the nature of that right recited in the deed. The policy expressly excludes coverage for 

# ".

. . easements

# . ..not shownby the public records



## . . 

# ." Because the warranty deed recital did not state that

an easement existed, the title companies argue that the policy does not insure against that undisclosed easement.We hold, however, that the ditch rightswere sufficiently mentioned in the recorded 1944warranty deed to put the title companies on notice that theremight also be easements accompanying those ditch rights. These possibilities should have been brought to Lipinski's attention and either specifically insured or specifically excluded from insurance coverage. Nor do we agree that coverage should be denied because the basis of the easementwas an underlying water right specifically excluded by the policy. Lipinski did not claim damages and damageswere not awarded because of the existence of an undisclosed water right,but rather for the existence of an undisclosed easement accompanying thosewater rights. The existence of the ditch rights--here accompanied by easements--is necessarily derived from the existence of the water rights, and findings and conclusions concerning those water rights could hardly be avoided. The trial court, however, awarded damages because there was sufficient notice of possible ditch rights--accompanied by easements--which the title companies should have,hut did not, call to Lipinski's attention. The title companies next argue that Lipinski should be denied recovery under the policy because he had actual knowledge of the easements sufficient to require him to bring it to the title companies' attention or be excluded from coverage. Lipinski admitted knowledge of the existence of the ditches, but he denied having any knowledge that anyone had a right to enter upon his land. He stated that he relied on the title report to tell him whether anyone had such a right to enter his land in order to maintain the ditches. Lipinslci, as a laymanwith no knowledge of easements, could reasonably rely on the specialized knowledge 

### of the title insurancebusiness to reveal and explain to him any title defects and their consequences.Although titleinsurance applicants are interested in obtaining insurance coverage, theirprimary interest is in what theexamination discloses. For this they rely on the titlecompanies totell them of any risks. Risks usually covered by title insurancepolicies include errors inthe titleexamination, including the negligent failure tonote a title defect. A titlecompany, asinsurer, owes its clients theduty of conducting a title search with reasonable care. Although liability does not attach for failuretodiscover defectswhich cannot be discoveredwith reasonable care, here a titleexaminer conducting a title search should have been alertedtothepossible consequences of the recital in the 1944warranty deed. An examination of thepremises should have revealed thevery realpossibility that an easement existedtogive effecttothe irrigation ditch recital inthe 1944 warranty deed. Examination would have revealed thatwater on Lipinski's property was being dammed and conducted away from his land through irrigation pipes or canals leading onto a neighbor's land. A titleinsurer cannot simply ignore a recital thatputs it on notice of a possible defect inthetitle. Wehold, therefore, that the titlepolicy covered the existence of the defects. THE KEASURE OF DAMAGES FOR FAILURE TO DISCOVER OR DISCLOSE THE DEFECT: The title companies advance three arguments on the question of damages caused by the existence of the easements. Flrst, they argue that thepolicy covers only pecuniary loss, thatLipinski sufferedonly an aesthetic loss, and therefore thatLipinski cannot recover damages. Second, they argue thata provision of theMaris settlement agreement (thatagreementbetween the title companies and Lipinski), expressly precludes any recovery for diminution of value or any other formof recovery of damages. Third, assuming it was proper to apply a diminutionof value theory, they argue that the wrong testwas used in application of their theory and therefore that the damages should only be $3,557.50 atmost. I11 arguing that Lipinski's land sustained only an aesthetic loss as opposed to a pecuniary loss, the title companiesput forth no real argument. While undoubtedly aesthetic losswas suffered, there is no question that the undisclosed ditch rights and the attendant right to enter upon and alter Lipinski's land caused Lipinski to suffer a substantialpecuniary loss. We note, furthermore, that the title companies, inmaking its aesthetic damages argument, assume that the trial court awarded damages based on a reduction invalue. Although therewas evidence that the value of the land was reduced 

### by $55,000 because of the existence of the easements, the fact ignored by the title companies is that the trial court awarded damages based not

on a reduction of value, but onwhat it cost Lipinski to remove the title defects. Lipinski paid $46,000 to O'Neil to remove the title defects (hepurchased O'Neil's easement rights), and the trial court established $46,000 as the amount of the loss. The title companies next argue that the ~aris settlement agreement (theagreementbetween the title companies and ~ipinski) precludes recovery for diminution of value of Lipinski'sproperty caused by the existence of the easements. They rely on paragraph two of the Maris settlement agreement that the title companies

# ".

. . shall not be liable for any claim or claims brought directly by [~ipinski] 

### as a resultof the presence of either of the two ditches on his lands, which ditches were the subject of the 

# . .

# . [~aris] lawsuit." Although the title companies tacitly acknowledge an improper alteration of the agreementby the insertion without the knowledge or consent of Lipinski, that no recovery would be permitted for "diminution of value," they argue that this alteration does nothing more than clarify paragraph two of the agreement which precludes any kind of recovery. Lipinski argues, on the other hand, that the title companies cannot rely on paragraph two of the Maris settlement agreementbecause in altering the agreement without Lipinski's knowledge or consent, the title companiesviolated section 28-2-1703(1), MCA. That statute provides: "The intentional destruction, cancellation, or material alteration of a written contract by a party entitled to any benefit under it or with his consent extinguishes all the executory obligations of the contract in his favor against parties who do not consent to the act." Applied here, this statute makes clear that if the insertion explaining or expanding on paragraph 2was a material alteration the title companies cannot claim the benefit of the P4aris settlement terms in seeking to avoid damages caused by their failure to discover the existence of the easements. The trial court found that in refusing to defend the O'Neil lawsuits the title companies relied in part on the altered language contained in the insertion. The title companies have not appealed from that finding. Lipinski clearly suffered detriment because had the title companies not relied on the altered agreement they may have defended him in the firstO'Neil suit. Instead, the title companies refused to defend and Lipinskiwas forced to hire counsel and to pay the costs of litigation. We thereforehold that the title companies had no right to avail themselves ofparagraph two of the Maris settlement agreement in an attempt to avoid paying damages caused by their failure to discover the easements. We further question, althoughwe do not expressly rule, whether the title companies could, after issuing the policy to Lipinski, contractwith Lipinski to take away the coverage already bargained for--the $25,000 limits. Settlement 

### of theMaris case,with orwithout a reservation of rights, should not have affected Lipinski's rights to assert his rights against the title companies for damages sustained because of their failure to discover the easements. In essence, the title companies'agreement with Lipinski was that it would contribute to theMaris settlementonly if Lipinski gave up his rights under the policy to recover damages

### by the title companies' failure to discover the easements. This agreementmay well contravenepublic policy. Third and finally, in an argument which assumes the right to recover for diminution of damages, the title companies devote sevenpages of their brief explaining that the trial court found the wrong amount. They contend Lipinski would be permitted to recover $3,577.50 atmost. ~ipinski, on the other hand, devotes severalpages of his brief to explaining why he should be able to recover for diminution of value to his property and why the amount set 

### by the trial court is proper. Neither the title company nor Lipinski cite any authority. However,both parties have missed the basis of the trial court'sdecision awarding damages caused by nondisclosure of the easement: the trial court ruled that the

measure of damages for an undisclosed easement should be

"theamount required - to remove such defect."The posture of this case on appeal, therefore, is that themeasure of damages formula adopted by the trial court has notbeen appealed. We furthernote thatthe trialcourt had a legalbasis for this decision. In a situationwhere a partial losshas resulted from an encumbrance orencroachment, courtshave adopted three tests for themeasure of damages. One of those tests is "theamount necessary toremove the existingencumbrance or lien." 44 Am.Jur.2d Insurance § 1566 at573. Whether itwas the proper measure of loss In this case is an issuethathas not been appealed and we therefore affirmthemeasure of damages adopted. THE IMPOSITION OF PUNITIVE DAMAGES: The title companies attack the imposition of punitive damages on two grounds. First, they argue thatpunitive damages cannot be imposed where theunderlying cause has been a breach of contract. Second, they argue that because

no actual damages were found because of their actof bad faith, therewas no basis toimpose punitive damages. The trialcourt found thatthe refusal of the title compa.nies todefend O'Neil - I and O1Z\Jeil-- I1 was not only a breach of contractbut alsowas an actof bad faith. Specifically, the trialcourt found that the refusalwas: "abreach of contractwhich sustains the award of actualdamages [and that the] refusal to defend was an actdone without justification, was willful, malicious, oppressive, 

### -- and constitutedbad faith." (Emphasis added.) Based on thisconclusion, the trialcourt ordered the title companies topay $15,000 punitive damages toLipinski. The title companies have not challenged the evidence on which the trialcourt based itsdecision toimpose punitive damages. Rather, they argue that punitive damages were imposed fora breach of contract and that section 27-1-221,MCA, prohibits imposition of punitive damages arising from a breach of contract. That statuteprovides: "In any action for a breach of an obligation -- -- not arising from contractwhere the defendant has been guilty of oppression, fraud, ormalice, actual orpresumed, thejury, inaddition to the actual damages, may give damages for the sake of example and by way of punishing the defendant." (Emphasis added.) The title companies argue thatif therehad been no contract therewould have been no breach, and therefore section 27- 1-221, MCA, prohibits the assessment of punitive damages. The title companies concede thatpunitive damages can be awarded to an insured forbreach of duty owed toits insured, but they argue that it can onlybe done where, independent of its contract, the insurance company has violated a provision of the insurance code. Because no insurance code violation existshere they argue therefore that punitive damages cannot be imposed. But thisCourt has

never held thatpunitive damages can be imposed against an insurance company only if it has violated a provision of the insurance code. The trialcourt held that the title companies, inrefusing todefend Lipinski, acted inbad faith. Wehold that this is a basis, independent of contract, and independent of the insurance code, on which punitive damages can properly be assessed. In seeking todistinguishFirst Security Bank v. Goddard (1979), 181Mont. 407, 593 P.2d 1040, the title companies failtomeet the issueof whether they have an independent duty of good faith.indealingswith their insureds. In Goddard, we stated: "Itis the breach of the statutory requirement, a duty independent of the insurance contract, that gives rise tothat liability inthe case atbar." 533 

## -----P.2d at 1047. (Emphasisadded.) From this holding the title companies jump to the unsupportable conclusion that punitive damages can only be assessed against an insurance companywhere, aside from a contractbreach, there has been

a violation of the insurance code. But that is not our holding in Goddard. In fact,we clearly sent amessage in Goddard that an insurer may well have a duty independent of contract, and independent of - - statute, to act in good faithwith its insureds. 593 P.2d at 1047. Furtherwe held in Weber v. Blue Cross of Montana (1952),

### -Mont

# . - 

### , 643 P.2d 198, 39 St.Rep. 245, that Blue Cross, technically - not an insurance company under themajority analysis,had a duty of acting in good faithwith those forwhom itprovided coverage. 643P.2d at 203, 39 St.Rep. at 252. Itwould be

nore than anomalous to now hold that insurance companies do not have this duty of good faithwhen dealing with their insureds. Should there be any doubt,we now expressly hold that insurance companies have a duty to act in good faith with their insureds, and that this duty exists independent of the insurance contract and independent of statute. Any statements in our cases, to the extent they may be or appear to be in conflictwith this holding, are expressly overruled. The title companies' second argument is thatpunitive damages could not be awarded because the trial court did not find separately as a result of a prima facie tort arising froman act of bad faith that Lipinski had sustained any actual damage. Rather, the trial court found the actual damages based on a breach of the contract. The trial court's conclusion of law stated:"Therefusal to defend 

# .. . constituted a breach of contract,which sustains the award of actual damages granted above [thecourt allowed recovery of costs incurred in defending O'Neil I and O'Neil 111. In addition, said refusal-to defend wasan act done without justification,was will.fu1,malicious, oppressive, and constitu,tedbad faith on the part of the Defendants

# ..

# ."

Because the award was based on actual damages the title companies argue that punitive damages cannot be sustained because therewas no actual damages flowing from the prima facie tort of bad faith. We note first that the statute section 27-1-221, sugra, does not require actual damages to flow from the commission of the tort before punitive damages can be assessed. Nor have the title companies cited any authority for their argument. It is true here that the trial court awarded actual damages based on a breach of contract; however, the court could as easily have held that the damages flowed from the commission of the prima facie tort of bad faith, and therefore a basis for actual damageswould clearly exist from the commissionof the tort. It is likewise clear that if a basis for actual damages exists in the record, the fact that none are awarded, does not prevent the assessmentof punitive damages. Brown v. Grenz (1953), 127 Mont. 49, 257 ~.2d 246. Also see Fauver v. Wilkoske (1949),123 Mont. 228, 211 P.2d

The title companies' argument exalts form over substance. The trial courtdid not simplyhold that the title companies had breached their contract with Lipinski; the trial court held that the title companies were inbad faith in refusing to defend Lipinski. In other words, the title companiesby the terms of the contract,had a clear duty to defend Lipinski, and inbreaching that clear duty the title companies acted inbad faith. The damages which Lipinski incurred in defending OINeilI surely flowed from that act of bad faith. The - simple fact is that therewould have been no damages if the title companies had acted in good faith, for if they acted in good faith theywould have defended O1NeilI and Lipinski - would have incurred no costs. Despite our holding on the issue of punitive damages,

we must vacate the award and remand for a further determination of the amount of damages to be assessed. The trial court in assessing punitive damages, awarded a lump sum of $15,000 as damages for refusal to defend OINeil- I and O'Neil - 11. The O'Neil - I1 lawsuitwas prompted by Lipinski's failure to honor the terms of the OINeil- I settlement, and we hold that the title companies had no duty to defend that lawsuit. Accordingly,punitive damagesmust be assessed based on the refusal of the title companies to defend OINeil- I only. ACTUAL DAMAGES, SURVEYINGAND ENGINEERING EXPENSES,AND PREJUDGMENT INTEREST: We have held that the title companies had no duty to defend O'Neil - 11,and therefore Lipinski had no right to recover for costs incurred (actual damages) in defending that action. The court awarded surveying and engineering expenses to be paid as actual damages, but did not apportion the expenses between O'Neil - I and OINeil-- 11. We therefore remand for a redetermination of survey and engineering expenses incurred in defending O'Neil - I only. In awarding all costs incurred for defending the actions, the trial court awarded prejudgment interest at 10percent per annum. The title companies argue, and Lipinski concedes, that 

### 6percent per annum is the proper interest rate. Accordingly, we vacate that part of the judgment and remand

### for a proper determination of the interest amount, to be applied only to the costs of defending O'Neil I. - 

### The judgment of the District Court is affirmed in part, reversed inpart, and remanded for further proceedings consistentwith this opinion.

We Concur:

- -- 

### Chief Justice

l, ."_> . 

### - *- i 

# a&+

I 

### Justices

### 0

Hon. LeRoy McKinnon, District Judge sitting forMr. Justice Frank 

### B. MorrisonMr. Justice Fred J. Weber concurs and dissents as follows:

Except as herein specificallymentioned, I concur in the foregoing majority opinion. With regard to the first issue, I agree that the title insurancepolicy covered the existence of the ditch rights, resulting in an obligation to pay damages to Lipinski. The majority opinion states that a primary interest of a title insurance applicant is inwhat the examination discloses, and that applicants rely on the companies to tell them of any risks and that the risks covered by policies include

errors in title examination, including negligent failure to note a title defect. Themajority also states that a title company, as insurer,owes its clients the duty of conducting

a title searchwith reasonable care,and then points out how the title examiner should even have examined the premises, concluding with the statement that a title insurer cannot ignore a recital that puts it on notice of a possible defect in title. The relationship between the parties is determined by the title insurance policy. In this instance,the policy in pertinent part states: "TheTitle InsuranceCompany 

# . . . does hereby insure John J. Lipinski 

# .

# . . against loss or damage not exceeding $25,000,which the insured shall sustain by reason of: 1. Title to the land 

# . . .being vested



# . . . otherwise then as herein stated;or 2. Any defect in 

# . .

# . said title existing at the date hereof, not shown or referred to in Schedule B;" Schedule B does not contain any reference to ditch rights,

asmentioned in the majority opinion. The ditch rights therefore fallwithin the foregoing provisions of the policy. Thepolicy provides that the company shalldefend the insured in all litigation founded upon a defect, lien, encumbrance

or othermatter insured againstby this policy. Among othercontract rights, the Company reserves the option to pay or compromise any claim or pay this policy in full at any time. Payment of the full amount of the policy "shallterminate all liability of the Company". The contract does not contain

a requirement that the insurance company examine the title records nor that the insurance company in any manner examine the ground itself. I find no basis for the conclusion of the majority that there is a duty to make a title search,or that a claim of relief arises from a negligent title examination. No authority is cited for these conclusions which certainly do not arise from the title insurancepolicy. I would exclude such conclusions from the opinion.

Mr. Chief Justice Frank I. Haswell: I concur in the foregoing dissent of Mr. Justice Weber. Themajority have created a new duty on the part of title insurance companiesbeyond the coverage of the title insurance policy. 

# 3~4 

# &W* Chief Justice



### I concur in the dissent of Mr. Justice Weber.

Hon. LeNY

### L. McKINNON ~istricf 

### Judge sitting for Mr. JusticeMorrison.