No. 54-215 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1984 

JOHN W. DOBLE and JOYCE L. 

DOBLE, husband and wife, 

Plaintiffs and Respondents, 

LINCOLN COUNTY TITLE COMPANY, 

a Montana corpl, 

Defendant and Appellant, 

and 

SAFECO TITLE INSUFANCE COMPANY OF 

IDAHO, an Idaho corp., 

Defendant. 

APPEAL FROM: District Court of the Nineteenth Judicial District, 

In and for the County of Lincoln, 

The Honorable Robert PI. 13olter, Judge presiding. 

COUNSEL OF RECORD: 

For Appe lla~i-_t : 

Boone, Karlberg & Haddon; Sam E. Haddon argued for 

Lincoln County Title, Missoula, Montana 

Oleson & DeJana; Richard DeJana, Safeco Title Ins. 

Co., Kalispell, Montana 

For Respondent : 

JonXel & Remmi,~; Daniel 0. Kemmis argued, Missoula, 

Montana 

Submitted: September 25, 1984 

Decided: January 4, 1985 

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Filed: .v 's85 

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Clerk 
Mr. Justice John Conway Harrison delivered the Opinion of the 

Court. 

This appeal arises from a negligence action against 

Lincoln County Title Company. Judgment was entered in the 

District Court of Lincoln County against Lincoln County Title 

Company alone following a trial by jury. Lincoln County 

Title Company appeals. We reverse and remand for a new 

trial. 

Issues 

(1) Whether plaintiff failed to establish a prima facie 

case of negligence in the absence of expert testimony on the 

standard of care required of a title insurance company? 

(2) Whether the verdict and judgment against Lincoln 

County Title Company was contrary to law and the evidence? 

(3) Whether it was error for the District Court to 

refuse Lincoln County Title's proposed instructions no. 37 

and no. 39? 

Facts 

John W. Doble and his wife, Joyce L. Doble, plaintiffs 

below and respondents herein, jointly owned substantial 

tracts of real estate in Lincoln County, Montana. Doble's 

father, John H. Doble, owned other tracts in the same vicinity. In 1966 all of the Dobles brought a quiet title action 

in the Eleventh Judicial District in Lincoln County, the 

results of which can be found in Doble v. Talbott (1979), 180 

Mont. 166, 589 P.2d 994. In that action, evidence of separate ownership was presented by the parties, i.e. father's 

ownership separate from son's ownership. The District Court 

granted judgment for the Dobles in their quiet title action 
on January 6, 1967, but failed to indicate separate ownership 

of the tracts in the decree. 

In 1975 all the Dobles negotiated to sell their properties to a group from Ohio known as the Amish and a commitment 

for title insurance was ordered from Lincoln County Title 

Company, a local agent for Safeco Title Insurance Company. 

The title commitment was issued April 30, 1975, containing no reference to the 1966 quiet title action or decree of 

1967. 

In 1977 a federal court judgment was entered in a wrongful death case against the elder Doble and a. writ of execution was levied on all the Doble property. The young Dobles 

became understandably excited and filed a motion to amend the 

1967 judgment nunc pro tunc to reflect the separate ownership. The Nineteenth Judicial District Court granted that 

motion the same day. 

This appeal stems from a case brought against Lincoln 

County Title and Safeco Title Insurance Company of Idaho to 

recover, inter alia, attorney's fees incurred by Dobles in 

the nunc pro tunc action. The theory of recovery was that 

the defendants were negligent in 1975 when the title commitment for sale of the property to the Amish was issued without 

setting up the 1967 quiet title decree as an exception. 

At the trial below, plaintiffs produced extensive testimony as to the work done in the nunc pro tunc action but no 

expert testimony as to the standard of care required of a 

title insurance company. Defendants, however, produced two 

witnesses, both attorneys, who testified as experts that 

title standards were not violated in 1975 by issuance of the 

title commitment without reference to the 1967 title quiet 

decree. 
Ex~ert Testimonv 

Whether plaintiff failed to establish a prima facie case 

of negligence in the absence of expert testimony on the 

standard of care required of a title insurance company? 

While expert testimony has been required in Montana in 

various medical, dental and drug manufacturing cases, no rule 

has been established in Montana with regard to title 

insurers. 

In his treatise on torts, Prosser described the standard 

of care on the part of various professional people: 

"Professional men in general, and those who undertake any work calling for special skill, are required not only to exercise reasonable care in what 

they do, but also to possess a standard minimum of 

special knowledge and ability. Most of the decided 

cases have dealt with physicians and surgeons but 

the same is undoubtedly true of dentists, pharmacists, attorneys, architects and engineers, abstracters of title, and many other professions and 

even skilled trades." (Emphasis added.) William L. 

Prosser, -- Law of Torts, 4th Ed. 971) , pp. 161-2. 

In Montana we have applied similar reasoning in Hill v. 

Squibb and Sons (1979), 181 Mont. 199, 592 P.2d 1383. his 

Court required expert testimony on the question of the adequacy of warning on a drug product and stated: 

"There are no Montana cases specifically holding 

that a plaintiff must produce expert testimony to 

sustain an action against a drug company for failure to warn adequa.tely of side effects of its 

products. There are, however, numerous Montana 

decisions to the effect that, in a malpractice suit 

against a doctor or dentist, expert evidence is the 

only proper guide and without it a plaintiff cannot 

recover. (cases cited) We hold that the reasoning 

of these decisions extends to the situation involved here. 

"In matters 'with respect to which a layman can 

have no knowledge at all, the court and jury must 

be dependent on expert evidence.' Callahan, 157 

Mont. at 520, (181 Mont. at 207.)" 

So far as the title insurance company is concerned, the duty 

in passing on title to real property is similar to a lawyer's 

duty in the examination of title from a review of the 
abstract. That duty is summarized in Clinton v. Miller 

(1951), 124 Mont. 463, 483-84, 226 P.2d 487, as follows: 

"It is the function of an attorney at law retained 

to pass upon a title to determine from the abstract, or from the original records and instruments, if his employment extends to them, where the 

title rests, and what liens or encumbrances, if 

any, exist against the property involved. An 

attorney so employed must be held to have undertaken to use a reasonable degree of care or skill and 

to possess to a reasonable extent the knowledge 

requisite to a proper performance of his duties and 

he will be held liable to his client for injury 

resulting as a proximate consequence from the want 

of such knowledge and skill or from the failure to 

exercise such care. Such title examiner should be 

familiar with the statutes and decisions of his own 

state and he must apply the settled rules of law 

that should be known to all conveyancers." 

The plaintiffs failed to present expert testimony with 

regard to the title standard which they contended the title 

insurance company must meet; or evidence that their expert 

witnesses qualified by training and experience to know what 

the standard was; and that the defendant title insurance 

company violated the applicable standard. 

We hold that the reasoning of the foregoing authorities 

is applicable here and that the plaintiffs must prod-uce 

expert testimony to establish the standard of care required 

of a title insurance company. Title examination is complex 

and intricate and beyond the common understanding of lay persons. In the absence of such expert testimony, we further 

hold that the plaintiff failed to establish a prima facie 

case of negligence in the violation of a standard of care 

required of a title company. 

The Agency Relationship 

Whether the verdi.ct and judgment against Liricoln County 

Title Company was contrary to law and the evidence? 

Here, the agreed facts as between the parties were 

contained in a pre-trial order which in part stated: 
"3. Lincoln County Title Company is a Montana 

corporation which was, at the time of the issuance 

of the title insurance commitment and the title 

insurance policy referred to in the Complaint, an 

agent for the purposes of selling title insurance 

of The Title Insurance Company, an Idaho corporation, and of Safeco Title Insurance Company of 

Idaho. " 

In addition, the transcript shows that Lincoln County Title 

Company at all times was acting as the agent of defendant 

Safeco Title Insurance Company of Idaho. 

In substance, instruction no. 16 told the jury that a 

principal is bound by the acts of his agent. 

We hold that the verdict and judgment against Lincoln 

County Title Company only is not supported by the evidence. 

A new trial is required. 

Refused Instructions 

Whether it was error for the District Court to refuse 

Lincoln County Title's proposed instructions no. 37 and no. 

39? 

These offered instruction are as follows: 

"No. 37: An abstracter has the duty to properly 

search the public record and find all documents 

that may affect the title to the property. 

"No. 39: Plaintiffs must prove each of the following allegations by a. preponderance of evidence in 

order to recover from Defendants: 

"1. That Plaintiffs ordered a preliminary title 

commitment from Defendants. 

"2. That Plaintiffs relied on the preliminary title 

commitment for purposes other than closing the sale 

between Plaintiffs and the Amish. 

"3. That Defendants knew or should have known that 

Plaintiffs would so rely on the preliminary title 

commitment. 

"4. That Defendants had a duty to Plaintiffs to 

properly search the public record and list all 

items that have an effect on the record title. 

"5. That Defendants failed to list quiet title 

action cause no. 4447. 
"6. That the failure to list quiet title action 

cause no. 4447 was negligence. 

"7. That Plaintiffs suffered damages. 

"8. That the damages were proximately caused by 

Defendants' negligence." 

Because this case is being sent back for new trial, it 

is important to rule upon these instructions. The defenda.nt 

Lincoln County Title Company is entitled to adequate instructions on its theory of the case. As stated by this Court in 

Wollan v. Lord (1963), 142 Mont. 498, 504, 385 P.2d 102: 

"A trial judge will not be held in error for refusing to give instructions where the subject has been 

adequately covered by other instructions, . . . or 

where it is not applicable to the pleadings and the 

evi6ence . . . However, a party has a right to 

have instructions given which are adaptable to his 

theory of the case . . . especially where, as here, 

the refusal of the instructions deprived the appellant of a possible defense. This was prejudicial 

error. . . ." 

The proposed instructions correctly set forth the theory of 

the Lincoln County Title Company and should be given upon 

request at retrial. 

We reverse the District Court and order a new trial. 

Justices 

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Ho2nra-b-k--Chan EX?tXeh', - 

District Judge, sitting in 

place of Mr. Justice Frank 

B. Morrison, Jr. 
Honorable Joseph B. Gary, 

District Judqe, sitting in 

place of Mr. Justice John C. 

Sheehy 

rable John S. Henson, 

District Judqe, sitting in 

place of Mr. Chief Justice 

Frank I. Haswell 

Mr. Justice L. C. Gulbrandson specially concurring. 

I concur generally with the majority opinion but L do not 

agree with the order for new trial. 

Counsel for defendant Lincoln County Title Company moved 

for dismissal at the close of plaintiff's case-in-chief and 

the motion was denied by the trial judge. 

The majority opinion holds: "In the absence of such expert 

testimony, we further hold that the plaintiff failed to establish 

a prima facie case of negligence in the violation of a standard 

of care required of a title company." 

In my view, the appropriate remedy, based on that holding 

would be to remand to the District Court for entry of an order 

dismissing the action and granting judgment fo the defendants. R 
The Honorable Joseph B. Gary, District Judge, sitting in place 

of Mr. Justice John C. Sheehy, dissenting. 

I dissent from the above-opinion and would affirm the 

trial court, with certain modifications. In the majority 

opinion the facts are very well stated but I would take issue 

with the majority opinion requiring expert testimony and the 

question of refused instruction no. 37 and 39 offered by 

Lincoln County Title Company. 

On the question of expert testimony, the facts show the 

Plaintiffs obtained a title commitment from the Defendant 

Lincoln County Title which commitment was issued by Lincoln 

County Title as agent of Safeco Title Insurance Company of 

Idaho. The commitment failed clearly to state the exception 

in the 1966 quiet title action decree. The Plaintiffs entered 

into an agreement to sell the subject real estate, and after 

the agreement to sell was executed the defects were discovered 

and the Plaintiffs were required to expend $34,580.66 to 

correct the defects in the title. 

This Court, in a 1983 case of Malinak v. Safeco Title -- 

Insurance Company of Idaho, 661 P.2d 12, made an exhaustive 

study of the law applicable to the issuance of a title commitment. The Court said on page 15, of this opinion, the following: 

"A title commitment naturally contemplates a search 

by the title insurer of the chain of title, an 

opinion by an expert of what the search reveals, a 

guaranty that the search was accurate and that the 

title commitment expresses the quality of the title 

of the seller as shown by the record. The person 

who seeks a title insurance commitment expects to 

obtain a professional title search, as well as a 

professional legal opinion as to the condition of 

the title and a guaranty that the title expressed 

in the commitment will be insured to the extent of 

the policy coverage. A title commitment does not 

propose that the title company will insure the 

property; rather that the title company will insure 

the title. The title insurer, of course, does not 

agree to clear the title; rather by its commitment, 

the title company agrees to afford coverage in a 

title policy later to be issued insuring the title 
according to its commitment." Malinak, supra at 15. 

The Court adopted the basic premises from Jarchow v. 

Transamerica Title Insurance, 48 Cal.App.3d 917, and stated: 

"It is within the expectations of the parties, 

the seller ordering the title commitment and the 

title insurer inspecting the public records, that 

the title commitment will accurately reflect the 

insurability of the title, or the condition of the 

public record, as the case may be, with respect to 

that title. We find a duty on the part of the 

title insurer when it issues a title commitment 

which later forms the basis for a title insurance 

policy, particularly where the seller relies on 

the title commitment, to base its title commitment and report upon a reasonably diligent title 

search of the public records. A breach of that 

duty would constitute negligence. Malinak, supra at 15-16. 

This was the latest case by the Supreme Court on the 

question of title commitments and the trial court, 

instruction no. 11, encompassed within that instruction the 

Supreme Court's holding from Malinak, supra and clearly set 

forth the duty as required by this Court. The jury having been 

properly instructed found in favor of the Plaintiff and against 

the Defendant Lincoln Title Company and it is my opinion that 

the Defendant's instruction no. 37 and 39 amount to a comment 

upon the evidence and the pertinent points elicited therein were 

completely covered by the Court's instruction no. 11. The juries 

verdict should be affirmed in that respect. 

On the question of an expert witness, it is granted that 

the majority opinion and the appellant cited Prosser on Torts 

concerning the law applicable to physicians, surgeons, attorneys, 

etc. On the question of the necessity of expert testimony, 

however, it is important to note, in determining whether there 

was error that requires a reversal, that the Appellant-Defendant 

offered testimony by experts that the title company had exercised 

diligence and care and this testimony was not persuasive upon the 

jury for they found against Lincoln. It is my opinion that this 

is not a case requiring expert testimony such as a surgeon, 
physician, architect, attorneys, or the pharmacist or one of 

the learned arts. An application was made for a title insurance 

commitment and the eventual issuance of a title insurance policy. 

As the Court said in Malinak, supra, care must be exercised in 

a search of the records and failure to exercise care constitutes 

negligence per se. If there were defects not disclosed, then 

a violation of the duty is found and does not require an attorney 

or an abstracter to say the duty was not performed. In 

Shahrokhfar v. State Farm Mutual Auto Insurance Company, 634 P.2d 

653, it was held on page 656 that expert testimony is required 

only regarding matters "with respect to which a layman can have 

no knowledge at all." The commitment was made as a basis for an 

insurance policy and this Court said in the recent case,\General - 

Pump, Inc., Supreme Court Cause No. 84-108, as follows: 

"Protection against liability for negligence is the 

principal purpose of liability policies like the one 

we are reviewing here. It is well established that 

mere negligence on the part of an insured will not 

defeat recovery on a policy. The insurer assumes 

the risk of negligence and recovery is permitted 

even though the negligence of the insured contributed to the loss. 18 Couch on Insurance 2d 

(Revised), g 74:639, 961-962 (1983). 

In essence, the Court held that if you have an insurance 

policy and in the absence of a clause exonerating the insurance 

company, the company is responsible for the matters for which 

the policy was purchased. In this case, a commitment from 

Lincoln was purchased to protect the seller from an undisclosed 

defects and if there were defects, it was the duty of the 

company to disclose them which it did not do and under the 

applicable law both Lincoln and Safeco Title Insurance Company 

should be responsible. Again, if defects are not disclosed it 

does not take an expert to tell the jury that. The jury with 

its own common knowledge can tell if defects were missed. 
Therefore, the requirement of having an expert testify not only 

adds to the time and expense of the trial as unnecessary and in 

addition, in this case, expert testimony was offered which did 

not convince the jury. 

On the question of agency, the Court indicates that if 

Lincoln Title Company is liable that Title Insurance Company of 

Idaho should likewise be liable. I would agree with this and 

believe that this could be corrected by granting the Plaintiff's 

Motion for A Judgment Notwithstanding the Verdict that was made 

and refused by the trial court. An examination of the exhibits 

clearly shows that Lincoln Title was acting as agent for Safeco 

and under the doctrine of respondeat superior the Title Insurance 

Company should be held jointly liable with the Lincoln Title 

Company. This could be done by merely directing the trial court 

to grant the Motion for A Judgment Notwithstanding the Verdict. 

It appears to me to be unfair to Lincoln County to have to 

retry this case when the issues of law have been properly submitted to a jury as enunciated in Malinak,-supra. % It is this 

Judge's opinion that the trial court committed no error other 

than the failure to grant the Motion for the Judgment Notwithstanding-tke- Verdict. 

/ /' 

*P i trict Judge, sitting in 

blace 2 / of Mr. Justice John C. 

Sheehy 

I join in the dissent of the Honorable Joseph B. Gary. 

&dj& Justice CS/