UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 10-1802

FIRST AMERICAN TITLE INSURANCE COMPANY,

Plaintiff – Appellee,

v.

WESTERN SURETY COMPANY,

Defendant – Appellant,

and

FIRST ALLIANCE TITLE, INCORPORATED,

Defendant.

Appeal from the United States District Court for the Eastern 

District of Virginia, at Alexandria. Liam O’Grady, District 

Judge. (1:09-cv-00403-LO-IDD)

Argued: May 12, 2011 Decided: August 8, 2012

Before DUNCAN and AGEE, Circuit Judges, and David C. NORTON, 

United States District Judge for the District of South Carolina, 

sitting by designation. 

Affirmed by unpublished per curiam opinion.

ARGUED: Richard Thomas Pledger, WALLACEPLEDGER, PLLC, Richmond, 

Virginia, for Appellant. David H. Cox, JACKSON & CAMPBELL, PC, 

Washington, D.C., for Appellee. ON BRIEF: Thomas J. Moran, 

Erick F. Seamster, WALLACEPLEDGER, PLLC, Richmond, Virginia, for 
2

Appellant. Paul D. Smolinsky, JACKSON & CAMPBELL, PC, 

Washington, D.C., for Appellee.

Unpublished opinions are not binding precedent in this circuit. 
3

PER CURIAM:

The factual and procedural background of this case are 

discussed in our prior order, First American Title Insurance Co. 

v. Western Surety Co., 447 F. App’x 437 (4th Cir. August 2, 

2011) (unpublished) (hereinafter “FATIC Cert. Order”). In that 

order, we certified to the Supreme Court of Virginia (“SCV”), 

pursuant to Rule 5:40 of the Rules of the SCV, the following 

three questions: 

1. Does the Virginia Consumer Real Estate Settlement 

Protection Act, Va. Code Ann. § 6.1-2.19 et seq. 

(recodified at Va. Code Ann. § 55-525.16 et. seq.)

(“CRESPA”)1 recognize a private cause of action that 

may be asserted against a surety and the surety bond 

issued pursuant to Va. Code Ann. § 6.1-2.21(D)(3) 

(recodified at § 55-525.20(B)(3)) by a party other 

than the State Corporation Commission?

2. If Question 1 is answered in the negative, does 

Virginia law nonetheless permit a cause of action 

against a surety and the surety bond issued pursuant 

to Va. Code Ann. § 6.1-2.21(D)(3) (recodified at § 55-

525.20(B)(3)) by the assertion of a common law claim 

such as for breach of contract as in this case?

3. If Questions 1 or 2 are answered in the 

affirmative, does a title insurance company have 

standing, either in its own right or as a subrogee of 

its insured, to maintain a cause of action against a 

surety and the surety bond issued pursuant to Va. Code 

Ann. § 6.1-2.21(D)(3) (recodified at § 55-

525.20(B)(3))?

 1 At the time of its promulgation in 1997, CRESPA was 

codified at Va. Code Ann. § 6.1-2.19 et seq. After the entry of 

final judgment below, CRESPA was amended and recodified at Va. 

Code Ann. § 5-525.16 et seq. Because the former section numbers 

were used by the district court in its rulings and the parties 

in their briefs, we also utilize them. 
4

See generally id.

The SCV accepted our certification request and answered all 

three questions. See First Am. Title Ins. Co. v. Western Sur. 

Co., 722 S.E.2d 637 (Va. 2012). Specifically, the SCV answered 

the first question in the negative, concluding that CRESPA does 

not itself provide a cause of action against a CRESPA bond. Id.

at 640. In answering the second and third questions, the SCV 

first concluded that a common law breach of contract action is 

permitted against the surety of a CRESPA bond. Id. at 641-42. It 

then held, however, that “FATIC, as SunTrust’s title insurer in 

this case, was not one of the parties the CRESPA bond is meant 

to protect.” Id. at 642. Thus, FATIC did not “have standing in 

its own right to maintain a cause of action against a surety and 

the surety bond issued pursuant to [CRESPA].” Id. at 642. 

Nonetheless, the SCV recognized that “a title insurance company, 

such as FATIC in this case, may have standing as a subrogee of 

its insured to maintain a cause of action” against a CRESPA 

bond. Id. at 643. 

In view of the SCV’s answers to the certified questions, it 

is now clear that the district court’s ruling, which was that 

FATIC had standing in its own right to maintain a cause of 

action against Western Surety, is not correct. The SCV expressly 

left open the possibility, however, that FATIC could recover on 
5

its alternative theory asserted in Count II, i.e., that it could 

recover as a subrogee of its insured, SunTrust.

While this Court could remand the case for the district 

court to determine, in the first instance, whether FATIC can 

recover as SunTrust’s subrogee, we decline to do so. The 

subrogation issue was briefed by the parties as part of the 

cross-motions for summary judgment and was also fully briefed 

and argued before this Court.2 Additionally, the three arguments 

that Western Surety presents in opposition to FATIC’s 

subrogation claim already have been rejected by either this 

court or by the SCV.3

 2 See Resp. Br. at 16-18; Reply Br. at 20-24.

3 Western Surety argues the following in opposition to 

FATIC’s contention that it is entitled to final judgment now on 

its subrogation count: (1) that “no private party may maintain a 

cause of action against a CRESPA bond”; (2) SunTrust never had 

any rights against the CRESPA bond because “its claim was 

strictly related to a defect in title,” and thus there is no 

right to the CRESPA bond of subrogation for FATIC to acquire as 

subrogee; and (3) as a matter of equity, FATIC should not be 

entitled to recover as subrogee because First Alliance acted as 

an agent of FATIC. See Reply Br. at 20-21.

The first of these arguments was squarely rejected by the 

SCV, the second was rejected by the reasoning of the SCV, see

First Am. Title Ins. Co., 722 S.E.2d at 643 (holding that a 

title insurance company “may have standing as a subrogee of its 

insured to maintain a cause of action” against a CRESPA bond), 

and the third we rejected in our order of certification, just as 

the district court did below. See FATIC Cert. Order, 447 F. 

App’x at 440 n.4 (noting we would affirm the judgment of the 

district court on various issues); J.A. 804-11 (district court’s 

opinion explaining reasons why First Alliance was not acting as 

FATIC’s agent for purposes of settlement). Thus, we conclude 

(Continued)
6

Accordingly, rather than remand the case, we will decide 

the subrogation issue on the complete record before us. Jackson 

v. Kimel, 992 F.2d 1318, 1322 (4th Cir. 1993) (“In reviewing the 

grant of summary judgment, we can affirm on any legal ground 

supported by the record and are not limited to the grounds 

relied on by the district court.”). In this case in particular, 

in which the proceedings have been ongoing now for several 

years, a remand to the district court for initial consideration 

of this issue “would be an unnecessary waste of judicial and 

litigant resources.” See O'Reilly v. Bd. of Appeals, 942 F.2d 

281, 284 (4th Cir. 1991); see also SEC v. Chenery Corp., 318 

U.S. 80, 88 (1943) (“[I]n reviewing the decision of a lower 

court, it must be affirmed if the result is correct although the 

lower court relied upon a wrong ground or gave a wrong reason. 

The reason for this rule is obvious. It would be wasteful to 

send a case back to a lower court to reinstate a decision which 

it had already made but which the appellate court concluded 

should properly be based on another ground within the power of 

the appellate court to formulate.”) (internal quotation marks 

and citation omitted).

 

that none of these grounds bar FATIC’s entitlement to recovery 

as a subrogee of SunTrust. 
7

Turning to the merits of FATIC’s subrogation claim under 

Count II,4 Virginia law provides that “when any insurer pays an 

insured under a contract of insurance which provides that the 

insurer becomes subrogated to the rights of the insured against 

any other party the insurer may enforce the legal liability of 

the other party.” Va. Code Ann. § 38.2-207; see also First Am. 

Title Ins. Co., 722 S.E.2d at 642 (quoting same). It is 

undisputed, and indeed the SCV recognized in its opinion in this 

case, that the title insurance policies between FATIC and 

SunTrust expressly render FATIC subrogated to the rights of 

SunTrust. Id.; see also J.A. 363, 375 (pertinent language in 

policies). Additionally, Virginia has long recognized that an 

insurer who pays a loss on an insured’s behalf has an equitable 

right to be subrogated to that insured. See First Am. Title Ins. 

Co., 722 S.E.2d at 642 (collecting authority); see also, e.g., 

Nationwide Mut. Ins. Co. v. Jewel Tea Co., 118 S.E.2d 646, 649-

50 (Va. 1961) (allowing claim by insurer as subrogee to its 

insured). 

 4 To be clear, we conclude herein that FATIC is entitled to 

recover as a subrogee of SunTrust, as asserted in Count II of 

its Complaint. We do not award FATIC relief under Count III of 

its Complaint, in which it asserted a claim as assignee of First 

Alliance, based on a settlement agreement in a separate action. 

The district court dismissed Count III and our holding does not 

affect that dismissal.
8

In short, FATIC has succeeded to SunTrust’s right to 

recover under the CRESPA bond, as recognized by the SCV in this 

case. See First Am. Title Ins. Co., 722 S.E.2d at 642-43 

(“FATIC, as a subrogee of SunTrust, has succeeded to SunTrust’s 

relevant rights . . . [and] may have standing as a subrogee of 

its insured to maintain a cause of action against a surety and 

the [CRESPA bond].” Id. at 643. Furthermore, as we explained 

supra at note 3, we have carefully considered Western Surety’s 

arguments to the contrary and find them to be meritless. 

Accordingly, we affirm the award of summary judgment by the 

district court in favor of First American Title Insurance 

Company, although for reasons different than those stated by the 

district court. 

AFFIRMED