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Title insurer defeats motion for summary judgment

Where a company alleged its title insurer breached a contract by failing to compensate it for losses covered by the title insurance policy, but there remained disputed issues of material fact over the ownership of certain drainage easements, its motion for summary judgment was denied.


This is a contract dispute arising from a title insurance policy held by Landfall Trust LLC and issued by Fidelity National Title Insurance Company. Plaintiff alleges that defendant breached the policy contract in part by failing to compensate plaintiff for losses allegedly covered under the policy.

The matter is before the court on plaintiff’s motion for partial summary judgment. Plaintiff seeks summary judgment “in the amount of $185,000” for defendant’s alleged breach of contract. Plaintiff asks the court to “reserve for later decision the issues of additional damages, prejudgment interest, costs and attorney’s fees under Virginia’s bad faith statute.”


Plaintiff’s pursuit of summary judgment relies on there being no genuine dispute of material fact regarding plaintiff’s ownership of certain septic drainage easements relative to lots 9 and 10 of the Henry Island development, because (plaintiff argues) such ownership impacts whether title was accurately reflected in the insurance policy. Plaintiff’s argument has two prongs: first, that defendant made a “judicial admission” as to plaintiff’s ownership of the easements in question, and, second, that Virginia law prohibits the severance of drainfields from a property intended for residential development.

As to the first argument, defendant’s purported “judicial admission” was not contained in a pleading or a stipulation filed by the defendant. Rather, plaintiff attempts to derive the admission from statements made by a third-party appraiser pursuant to an appraisal that defendant hired the third-party to conduct.

Not only were the “assumptions” stated in the appraisal not statements made by the defendant or its counsel in formal pleadings before the court, those statements were far from the “deliberate, clear, and unambiguous” statements that courts have found to constitute judicial admissions. Because the appraiser’s statements do not constitute a judicial admission and defendant has not made an admission in any of its pleadings, the court finds that defendant has not admitted that plaintiff owns the drainage easement appurtenant.

As to the second argument, acknowledging that Virginia law has certain requirements for drainage easements relative to land intended for residential development, the fact remains that the record is contradictory as to who holds what interest in any easements related to the property in question. Thus, given that defendant has not admitted that plaintiff owns the drainfield easement, and given the incomplete and contradictory record, the court finds that there is a genuine dispute of material fact as to the ownership of the drainfield easements at play in this case.

Ownership issues aside, at this stage in the litigation, plaintiff has not met its burden of demonstrating an absence of a genuine issue of material fact regarding the identification of which easement(s) give(s) rise to defendant’s alleged breach. The inconsistencies regarding the location of the pertinent easement(s) at issue demonstrates that the pleadings and the evidence before the court “is susceptible of more than one reasonable inference,” and thus summary judgment should be denied.

Plaintiff’s motion for partial summary judgment denied.

Landfall Trust LLC v. Fidelity National Title Insurance Company, Case No. 3:22-cv-194, March 13, 2023. EDVA at Richmond (Young). VLW 023-3-124. 17 pp.