Bruce W. Lauritzen v. First American Title Insurance

¶1 Bruce W. Lauritzen purchased five lots of undeveloped

real property in Hurricane, Utah based on a description in a

recorded subdivision plat map. Lauritzen then purchased title

insurance for these lots through First American Title Insurance

Company (First American). Subsequently, Lauritzen learned that

the plat map had a material defect: one of his lots partially

overlapped with another parcel. Eventually, the plat was

amended by shrinking the overlapping lot and by imposing

additional development requirements on all of Lauritzen’s lots.

Lauritzen then made a claim on his title insurance policy, and

filed this lawsuit after First American denied his claim.

Eventually, the district court granted summary judgment to First

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20160717-CA 2 2018 UT App 58

American on all of Lauritzen’s claims, and Lauritzen appeals.

We affirm the bulk of the district court’s ruling, but reverse the

district court’s decision to the extent it determined that no

insurance coverage exists for damages caused by the lot overlap,

and we remand for further proceedings.

BACKGROUND

¶2 On April 2, 2007, the Sunset Ridge Phase 3 Subdivision

Plat map (the Original Plat) was recorded with the Washington

County Recorder’s Office. At some point soon thereafter, the

Washington County Recorder’s Office issued a notice that the

Original Plat was defective because at least one of the lots (Lot

54) depicted on the Original Plat overlapped with an adjacent

parcel of land.

¶3 Later, on April 19, 2007, several lots depicted on the

Original Plat were conveyed to a holding company (the

Company) via warranty deed. The deed did not contain a metes

and bounds description of the lots, but instead referred to the

Original Plat, indicating that the lots were being conveyed as

they were represented “according to the official plat thereof,

recorded in the office of the Washington County Recorder.” On

June 7, 2007, Lauritzen purchased five lots (the Lots) from the

Company, which conveyed the Lots to him by a warranty deed.

Lauritzen’s deed also did not describe the metes and bounds of

the Lots, but instead conveyed “Lot 54, 64, 76, 77 & 80, Sunset

Ridge Phase 3, according to the official plat thereof recorded in

the office of the Washington County Recorder.”

¶4 After acquiring the Lots, Lauritzen purchased title

insurance from First American, effective April 19, 2007. The

insurance policy (the Policy), in pertinent part, insured Lauritzen

against loss or damage incurred by reason of “[a]ny defect in or

lien or encumbrance on the title; [or] . . . [u]nmarketability of the

title” to the Lots.

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20160717-CA 3 2018 UT App 58

¶5 Sometime in 2008, Lauritzen learned that the Washington

County Recorder’s Office had rejected the Original Plat due to

the presence of the overlap, and that “consent” would be

required before development in the subdivision could proceed.

1

Indeed, because of the issues with the Original Plat, Hurricane

municipal authorities refused to issue Lauritzen building

permits for the Lots. After discovering the problem, Lauritzen

contacted one of First American’s insurance agents to obtain a

copy of the Policy, and to see what needed to be done to rectify

the problem with the plat. On one occasion, Lauritzen met in

person with First American’s agent, who assured Lauritzen that

the problem would soon be resolved.

¶6 Eventually, a solution was reached that required making

Lot 54 slightly smaller (by approximately 344 square feet) than it

had been on the Original Plat. In addition, the solution included

new setback requirements and restrictions on construction—

none of which were included in the Original Plat—that affected

all of Lauritzen’s Lots. All of the affected landowners, including

Lauritzen, eventually gave their consent to a new plat map (the

Amended Plat) that reflected these changes, and in September

2008 the Amended Plat was recorded with the Washington

County Recorder’s Office.

¶7 On August 14, 2009, Lauritzen made a claim with First

American alleging that the title to the Lots conveyed to him by

the warranty deed was defective and unmarketable. First

American denied the claim, and Lauritzen then filed this lawsuit

against First American, alleging that there was a defect in his

title to the Lots and seeking damages from First American

pursuant to the Policy. As the litigation progressed, Lauritzen

asserted that he had been damaged because: (1) the change from



1. The record does not disclose any details about whose consent

(other than Lauritzen’s) was required, although it does reveal

that both (a) Lauritzen eventually consented to the Amended

Plat and (b) all required consents were eventually obtained.

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20160717-CA 4 2018 UT App 58

the Original Plat to the Amended Plat had decreased Lot 54 in

size; (2) Lauritzen had been unable to receive a building permit

on any of his lots until the Amended Plat was recorded; (3) the

new setback and construction requirements that applied to all of

the Lots had depressed their value; and (4) all of the Lots had

been valueless for the period of time prior to the approval of the

Amended Plat.

¶8 Eventually, both parties moved for summary judgment.

In its motion, First American argued that it was entitled to

judgment as a matter of law on several grounds. First, it argued

that the Original Plat was merely a descriptive tool and was not

a part of the warranty deed initially conveying the lots to

Lauritzen. Second, First American argued that Lauritzen’s title to

the Lots was not unmarketable. Third, First American argued

that Lauritzen’s claim was not timely and that First American

was thus absolved of any potential liability. Fourth, First

American argued that Lauritzen had not proven any damages.

The district court denied Lauritzen’s motion and granted First

American’s.2 Lauritzen appeals the district court’s grant of First

American’s motion.



2. After briefing and oral argument, the district court took the

motions under advisement. A few weeks later, the district court

issued a brief, two-line memorandum decision stating simply

that Lauritzen’s motion was denied and that First American’s

motion was granted. The district court’s ruling included no

explanation of the reasons or grounds for its decision. Had this

type of an order been issued by a district court in certain other

contexts (for instance, where the court is obligated to make

findings of fact on an issue), we would not hesitate to simply

remand the case for the district court to explain its reasoning. We

decline to do so here, however, because we may affirm a district

court’s decision on any ground apparent from the record, see

Bailey v. Bayles, 2002 UT 58, ¶ 13, 52 P.3d 1158, and because our

standard of review, when reviewing a district court’s summary

(continued…)

Lauritzen v. First American Title Insurance Co.

20160717-CA 5 2018 UT App 58

ISSUE AND STANDARD OF REVIEW

¶9 Lauritzen raises one issue on appeal: whether the district

court erred in granting summary judgment for First American. A

district court “shall grant summary judgment if the moving

party shows that there is no genuine dispute as to any material

fact and the moving party is entitled to judgment as a matter of

law.” Utah R. Civ. P. 56(a). We review a district court’s summary

judgment ruling for correctness. Fire Ins. Exch. v. Oltmanns, 2018

UT 10, ¶ 7.

ANALYSIS

I. Coverage under the Title Insurance Policy

¶10 The first matter that we must address is whether, and to

what extent, there is coverage under the terms of the Policy for

the events described in Lauritzen’s complaint. Pursuant to the

terms of the Policy, First American insured Lauritzen against

loss or damage incurred by reason of “[a]ny defect in or lien or

encumbrance on the title; [or] . . . [u]nmarketability of the title”

to the Lots. Lauritzen asserts that both of these phrases are

implicated in this case and provide the basis for a determination

that coverage exists. Lauritzen argues that the title to all of the

Lots was “unmarketable” because, at the time the warranty deed

was executed, the Original Plat had been rejected and the

Amended Plat placed new restrictions on the Lots. Lauritzen

also argues that title to all of the Lots was “defective” because

the description of Lot 54 in the Original Plat overlapped with

another piece of property. We address each of these arguments

in turn.



(…continued)

judgment ruling, is de novo. However, our review in this case

would have benefitted from an explanation of the district court’s

reasoning, and we encourage trial judges, even in the summary

judgment context, to explain the reasoning for their decisions.

Lauritzen v. First American Title Insurance Co.

20160717-CA 6 2018 UT App 58

A. Marketability of Title

¶11 Lauritzen argues that there is coverage under the Policy

because he sustained losses as the result of the

“unmarketability” of the title he received by way of the warranty

deed. Here, Lauritzen asserts that his title to all of the Lots was

unmarketable because, during the time period prior to the

recording of the Amended Plat, he could not obtain a building

permit for any of the Lots, and because, even after the recording

of the Amended Plat, his property was subject to added setback

requirements and other development restrictions, limiting his

ability to use them. Lauritzen asserts that, as a “reasonable

purchaser,” he would not have purchased the Lots had he

known in advance about these issues and therefore his title is

“unmarketable.” The district court correctly rejected this

argument, at least with respect to all issues other than the Lot 54

overlap, because Lauritzen espouses too broad an understanding

of the meaning of “unmarketability” of title.

¶12 When determining the scope of coverage under an

insurance contract, our starting point is the language of the

Policy itself. See, e.g., Quaid v. U.S. Healthcare, Inc., 2007 UT 27,

¶ 10, 158 P.3d 525. The Policy insures Lauritzen “against loss or

damage . . . sustained or incurred . . . by reason of . . .

[u]nmarketability of the title.” The Policy contains an internal

definition of “unmarketability of title,” as follows: “an alleged or

apparent matter affecting the title to the land, not excluded or

excepted from coverage, which would entitle a purchaser of the

[property] . . . to be released from the obligation to purchase by

virtue of a contractual condition requiring the delivery of

marketable title.” Thus, both the phrase itself—“marketability of

title”—as well as its definition—“an alleged or apparent matter

affecting the title to the land”—are restricted to issues affecting

the title to the property.

¶13 In the real property context, “title” is “[t]he union of all

elements (as ownership, possession, and custody) constituting

the legal right to control and dispose of property.” Title, Black’s

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20160717-CA 7 2018 UT App 58

Law Dictionary (10th ed. 2014); see also Joyce Palomar, 1 Patton

and Palomar on Land Titles § 1 (3d ed. 2017) (noting that

“[d]ictionaries state that ‘title’ means the right to or ownership of

property,” and stating that “title” therefore may “relate either to

ownership itself or to the acts, instruments, or records by which

ownership has been acquired or by which it may be proven”); 73

C.J.S. Property § 48 (2018) (stating that “title” is “that which is the

foundation of ownership. . . and . . . which constitutes a just

cause of exclusive possession”); 51 Am. Jur. 2d Liens § 2 (2d ed.

2018) (stating that “title . . . constitutes the legal right to control

and dispose of property”).

3 Thus, the plain language of the

Policy, as defined by legal dictionaries and encyclopedias,

indicates that insurance coverage for “unmarketability of the

title” is limited to issues regarding Lauritzen’s right to own or

possess the property in question.

¶14 Moreover, a restrictive definition of “marketability of

title” that limits use of the phrase to issues with ownership or

possession of property is consonant with prevailing judicial

interpretations of the phrase. In one recent case, a federal

appellate court was asked to construe the exact same contractual

language at issue here: the same phrase (“unmarketability of the

title”) and the same internal definition of that phrase. See Fidelity

Nat’l Title Ins. Co. v. Woody Creek Ventures, LLC, 830 F.3d 1209,

1215–19 (10th Cir. 2016) (applying Colorado law). That court

held that “unmarketability of the title” referred to “defects

affecting rights of ownership . . . rather than defects affecting the

physical condition or use of the covered property.” Id. at 1218.

The court canvassed case law from many jurisdictions, and

determined that “the majority view . . . emphasize[s] the

differences between marketability of title and marketability of

land.” Id. at 1217 (alterations in original) (citation and internal



3. The term “title” is similarly defined in the personal property

context. See, e.g., Utah Code Ann. § 41-1a-102(62) (LexisNexis

Supp. 2017) (defining “title” in the Motor Vehicle Act as “the

right to or ownership of a vehicle”).

Lauritzen v. First American Title Insurance Co.

20160717-CA 8 2018 UT App 58

quotation marks omitted). It quoted a leading insurance treatise,

as follows:

[T]he fact that a given property suffers from

‘economic’ lack of marketability, which relates to

physical conditions affecting the use of the

property or other non-title matters, is not relevant

to title insurance coverage. In essence, defects

which merely diminish the value of the property,

as opposed to defects which adversely affect a clear

title to the property, will not render title

unmarketable within the meaning and coverage of

a policy insuring against unmarketable title. This is

often expressed by the principle that one can hold

perfect title to land that is valueless and one can

have “marketable title” to land while the land itself

is unmarketable.

Id. (quoting 11 Couch on Insurance § 159:7 (3d ed. Supp. 2015));

see also id. (stating that “when no reasonably foreseeable

challenge to title or to the right of possession and quiet

enjoyment of the property can be demonstrated, [the] title will

be determined to be marketable” (alteration in original) (citation

and internal quotation marks omitted)).

¶15 And we agree with the Woody Creek court that most courts

draw a distinction between marketability of title, on the one

hand, and economic marketability, on the other hand, and limit

the concept of “marketability of title” to questions of ownership

and possession of property. See, e.g., Chicago Title Ins. Co. v.

Investguard, Ltd., 449 S.E.2d 681, 683 (Ga. Ct. App. 1994) (stating

that “a difference exists between economic lack of marketability,

which relates to physical conditions affecting the use of the

property, and title marketability, which relates to defects

affecting legally recognized rights and incidents of ownership”);

Whaley v. First Am. Title Co. of Mid-West, No. W2002-01940-COAR3-CV,

2004 WL 316978, at *3 (Tenn. Ct. App. Feb. 19, 2004)

(noting that a buyer possesses marketable title so long as he

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20160717-CA 9 2018 UT App 58

owns the property “free of any competing claims of ownership

and free of liens or encumbrances,” and holding that an

“improper subdivision of Plaintiffs’ property does not render the

title unmarketable” but rather “constitutes a defect in the

physical condition of the property that makes the property

economically difficult to sell”); Sonnett v. First Am. Title Ins. Co.,

2013 WY 106, ¶ 13, 309 P.3d 799 (Wyo. 2013) (stating that “[a]n

individual can hold clear title to a parcel of land, although the

same parcel is valueless or considered economically

unmarketable because of some restriction or regulation on its

use” (citation and internal quotation marks omitted)); see also 43

Am. Jur. 2d Insurance § 518 (2018) (noting that “[a] difference

exists between economic lack of marketability, which relates to

physical conditions affecting the use of the property, and title

marketability, which relates to defects affecting legally

recognized rights and incidents of ownership”); Joyce Palomar, 1

Patton and Palomar on Land Titles § 1 (3d ed. 2017) (stating that “a

phrase such as . . . ‘marketable title’ describes the character of

one’s ownership”). The relevant issues were nicely summarized

by the California Supreme Court:

Although it is unfortunate that plaintiff has been

unable to use her lots for the building purposes she

contemplated, it is our view that the facts which

she pleads do not affect the marketability of her

title to the land, but merely impair the market

value of the property. She appears to possess fee

simple title to the property for whatever it may be

worth; if she has been damaged by false

representations in respect to the condition and

value of the land her remedy would seem to be

against others than the insurers of the title she

acquired. It follows that plaintiff has failed to state

a cause of action under the title policy.

Hocking v. Title Ins. & Trust Co., 234 P.2d 625, 629–30 (Cal. 1951).

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20160717-CA 10 2018 UT App 58

¶16 Utah law is not to the contrary. In Mostrong v. Jackson, 866

P.2d 573 (Utah Ct. App. 1993), we determined that a landowner’s

title to a piece of property was not unmarketable merely because

it may have lacked “lawful access.” Id. at 578. We cited a case

from another jurisdiction in determining that “access problems

do not impair the right to possess property and that only defects

related to title as guaranteed to the purchaser and affecting

market value will render title unmarketable.” Id. (emphasis

added) (citing Sinks v. Karleskint, 474 N.E.2d 767, 770 (Ill. App.

Ct. 1985)). Thus, the holding of Mostrong is entirely in line with

the narrow conception of “marketability of title” shared by the

vast majority of courts to discuss the issue.4

¶17 Despite this, Lauritzen cites hopefully to Mostrong,

especially to its introductory definition of “marketable title.” In



4. On a few occasions, our supreme court has referred to the

concept of marketability of title. Although the references are

often brief and in passing, we are aware of nothing in any of

those cases that would lead us to believe that our supreme court

espouses a more expansive view of “marketability of title” than

our sister states do. See Kelley v. Leucadia Fin. Corp., 846 P.2d 1238,

1243–44 (Utah 1992) (defining “marketable title” as title that may

be “freely made the subject of resale and that can be sold at a fair

price to a reasonable purchaser,” and then determining that a

“boundary dispute” affecting the property “constituted a cloud

on the title and adversely affected the value and marketability of

the property” (citation and internal quotation marks omitted));

see also In re Hoopiiaina Trust, 2006 UT 53, ¶ 28, 144 P.3d 1129

(noting in passing that wild deeds could “render[] the property

unmarketable”); Holmes Dev., LLC v. Cook, 2002 UT 38, ¶¶ 26–29,

48 P.3d 895 (noting that the title company cured an

“unmarketability” claim by establishing the title in its insured by

litigation); Booth v. Attorneys’ Title Guar. Fund, Inc. 2001 UT 13,

¶¶ 32–35, 20 P.3d 319 (holding that a bankruptcy arrangement,

which did not touch a particular piece of property, did not

render title to that property unmarketable).

Lauritzen v. First American Title Insurance Co.

20160717-CA 11 2018 UT App 58

that case, we stated that title is “marketable” if it “may be freely

made the subject of resale . . . at a fair price to a reasonable

purchaser or mortgaged to a person of reasonable prudence as

security for the loan of money.” Id. at 577 (internal quotation

marks omitted) (quoting Kelley v. Leucadia Fin. Corp., 846 P.2d

1238, 1243 (Utah 1992)). Further, we stated that “[t]he issue of

whether marketable title exists may be a question of law or a

mixed question of law and fact, depending on the

circumstances,” and does not depend on “whether title

ultimately might be adjudged free of defects” but rather

“whether a reasonably prudent [person], familiar with the facts

and apprised of the question of law involved, would accept the

title in the ordinary course of business.” Id. at 578 (second

alteration in orginal) (citations and internal quotation marks

omitted). Lauritzen argues, based on this language, that a jury

question is presented in this case as to whether he, as a

“reasonable purchaser,” would have purchased the Lots had he

known in advance about the issues with the Original Plat and

the Amended Plat.

¶18 We disagree, at least as to all issues other than the Lot 54

overlap, because in order for the “reasonable purchaser”

standard to come into play in the first place, there must be some

defect that actually goes to ownership or possession (e.g., title)

about which a reasonable purchaser might need to make a

decision. In this case, however, the only one of the issues that

Lauritzen has identified that has anything to do with the right to

own or possess any of the Lots is the Lot 54 overlap issue. With

regard to that issue, the overlapping legal description resulted in

someone else—the adjoining landowner—having a claim to

ownership and possession of at least part of Lot 54, and therefore

“title” to Lot 54 was implicated. Because title is placed at issue, it

becomes relevant to ask whether a reasonable purchaser would

elect not to accept title to Lot 54 if informed of the overlap issue,

and we agree with Lauritzen that a jury question is presented on

that point.

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20160717-CA 12 2018 UT App 58

¶19 All of the non-overlap issues Lauritzen raises, by contrast,

concern Lauritzen’s right to put the property to various uses, or

implicate the convenience with which Lauritzen might be able to

develop the Lots. These issues are classic “economic

marketability” issues that do not come within the definition of

the phrase “unmarketability of the title” of the Lots. Because

there are no true “title” issues raised here (other than the overlap

issue), it is irrelevant whether or not Lauritzen would have

purchased the Lots had he known about potential restrictions on

development.

¶20 The Lot 54 overlap issue did implicate the marketability

of Lauritzen’s title to Lot 54, and to that extent the district court

erred by ruling that, as a matter of law, there were no issues that

concerned marketability of title. However, all of the other issues

Lauritzen raises are not concerns regarding the title to the lots, as

opposed to the economic advantage Lauritzen intended to gain by

purchasing them. Accordingly, the district court did not err by

granting First American’s motion for summary judgment with

respect to the rest of Lauritzen’s claims that the titles to the Lots

were unmarketable.5

B. Title Defects

¶21 Lauritzen also argues that there is coverage under the

Policy because he sustained losses as the result of a “defect in”



5. First American also alleges, as an affirmative defense, that

diminutions in property value caused by governmental property

restrictions (e.g., zoning requirements, building permit

requirements) were also explicitly excepted from coverage by a

policy “exclusion.” Because we determine that the economic

development issues did not concern the marketability of (or a

defect in) Lauritzen’s titles and thus were not covered by the

Policy in the first place, we have no need to examine whether the

language of a coverage exclusion took them further outside the

scope of the Policy’s coverage.

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20160717-CA 13 2018 UT App 58

the title he received by way of the warranty deed. While First

American argued in the district court that there was no defect

whatsoever in any of the titles conveyed by the warranty deed,

First American now concedes that Lauritzen’s title to Lot 54 was

defective due to the overlap. Thus, at least as far as the Lot 54

overlap issue is concerned, there is now no dispute that a “defect

in” the title exists that is covered by the Policy and that would

prevent the entry of summary judgment in favor of First

American on all of Lauritzen’s title defect claims.

¶22 Lauritzen, however, argues that the “defect” in his title is

not limited to the Lot 54 overlap issue. Instead, Lauritzen argues

that the titles to all five of his Lots were defective, asserting that,

because “[t]he [P]lat was expressly incorporated in the [deed’s]

legal description of all five [L]ots,” all of the Lots were subjected

to the same “legal claims or disputes,” causing the title to all of

the Lots to be defective. We are unpersuaded.

¶23 As an initial matter, we agree with Lauritzen’s assertion

that the Original Plat’s description of the Lots was incorporated

by reference into the warranty deed. “When lands are granted

according to an official plat of a survey, the plat itself, with all its

notes, lines, descriptions and landmarks, becomes as much a

part of the grant or deed by which they are conveyed . . . as if

such descriptive features were written out on the face of the

deed or grant itself.” Barbizon of Utah, Inc. v. General Oil Co., 471

P.2d 148, 149–50 (Utah 1970). Because the warranty deed

referred to the Original Plat to specify the property Lauritzen

was purchasing, the Original Plat’s description of the Lots

became as much a part of that warranty deed as if it was written

on the deed’s face. This conclusion is especially necessary in

cases like this one, where but for the incorporated plat, the

warranty deed otherwise contained no description of the

boundaries of the Lots.

¶24 However, while Lauritzen is correct about the legal

import of the warranty deed’s reference to the Original Plat, the

implications of this conclusion cut against Lauritzen’s argument

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20160717-CA 14 2018 UT App 58

that there was some sort of title “defect” regarding the other four

Lots. Both parties agree that there has never been any

discrepancy or inaccuracy in the manner in which the other four

Lots are described in the Original Plat. The physical boundaries

of the other four Lots did not change with the recording of the

Amended Plat. Because the description of the Lots included in

the Original Plat was incorporated into the warranty deed as if

those descriptions were written on the face of the deed itself, the

deed properly (and without defect) conveyed title to every lot

that was accurately described in the Original Plat. See Ault v.

Holden, 2002 UT 33, ¶ 26, 44 P.3d 781 (noting that “a warranty

deed conveys title so long as the deed’s description of the

property is ‘sufficiently definite . . . to identify the property it

conveys’” (ellipsis in original) (quoting Colman v. Butkovich, 556

P.2d 503, 505 (Utah 1976)). There is no evidence in the record

that, after the conveyance to Lauritzen, any person or entity

(other than Lauritzen) claimed an ownership or possessory

interest in any portion of the other four Lots. First American is

therefore correct in its assertion that, because Lot 54 was the only

lot described in the Original Plat that was affected by the

overlap, the title to Lot 54 was the only lot conveyed to Lauritzen

in the warranty deed whose title was in any way “defective.”

¶25 Accordingly, the district court erred when it granted

summary judgment in First American’s favor on Lauritzen’s

claim that his title to Lot 54 was defective, but the court did not

err in determining as a matter of law that the title to the other

four Lots was free of defect.6



6. Lauritzen also argues that title to his Lots was “vested other

than as stated” on the Original Plat, due to the Lot 54 overlap

issue. Lauritzen’s argument is correct as to the Lot 54 overlap

issue, and for reasons elsewhere stated, we herein determine that

coverage exists under the Policy for damages caused by the Lot

54 overlap issue. We do not perceive Lauritzen’s argument that

his title “vested other than as stated” to even apply to any of the

(continued…)

Lauritzen v. First American Title Insurance Co.

20160717-CA 15 2018 UT App 58

II. Affirmative Defenses

¶26 While First American acknowledges that Lauritzen’s title

to Lot 54 was defective, First American raises a number of

affirmative defenses, which it contends bar Lauritzen from any

recovery under the Policy as a matter of law. Specifically, First

American argues that: (1) Lauritzen’s claims were untimely

because Lauritzen did not notify First American of the title

defect until after the Amended Plat was recorded; (2) Lauritzen’s

consent to the Amended Plat cured the problems with the

Original Plat, and thereby mitigated any damages Lauritzen

might claim; and (3) Lauritzen failed to present evidence of

damages. We find none of these arguments persuasive, at least

not as a matter of law on summary judgment.

A. The Untimeliness Defense

¶27 First American argues that it was entitled to summary

judgment because Lauritzen’s claims were untimely. First

American alleges that Lauritzen violated the terms of the Policy

by failing to notify First American of any problem with the

Original Plat until after the Amended Plat had already been

recorded. First American maintains that this failure to notify

First American in a timely manner prejudiced its ability to

potentially cure Lauritzen’s title problem. Accordingly, First

American alleges that its categorical denial of coverage was

appropriate. See State Farm Mutual Auto. Ins. Co. v. Green, 2003

UT 48, ¶¶ 29–32, 89 P.3d 97 (noting that an insurance company

may deny coverage for lack of timely notice if “the insurer [is]

prejudiced by” it).

¶28 However, it is undisputed that Lauritzen contacted one of

First American’s insurance agents regarding the problems with



(…continued)

other development-related issues Lauritzen raises, because they

do not have anything to do with vesting of his title.

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20160717-CA 16 2018 UT App 58

the Original Plat shortly after learning of the problems himself,

and long before the filing of the Amended Plat. While First

American asserts that Lauritzen’s conversations with its agent

were not particular enough to put First American on notice of

Lauritzen’s claims, it is undisputed that Lauritzen asked to

obtain a copy of the Policy, asked First American’s agent what

was “going on” with respect to the problems with the Original

Plat, and received an assurance from First American’s agent in a

personal meeting that the problem with the plat would be taken

care of. In light of this undisputed evidence, it was inappropriate

to enter summary judgment in favor of First American on this

affirmative defense.

B. The “Cure” Defense

¶29 First American next argues that it was entitled to

summary judgment because Lauritzen’s consent to the recording

of the Amended Plat “cured” any problem with the Original

Plat. However, at oral argument First American conceded that

Lauritzen’s consent to the Amended Plat would not in fact have

obviated all of the damages Lauritzen sustained as a result of the

overlap on Lot 54. Because the title to Lot 54 is the only part of

Lauritzen’s title we have determined was defective and/or

unmarketable and therefore covered by the Policy, First

American’s concession essentially surrenders this defense.

Lauritzen’s consent to the recording of the Amended Plat did

not cure all of the problems occasioned by the defect in the title

to Lot 54.

C. The Damages Defense

¶30 Finally, First American argues that it was entitled to

summary judgment because Lauritzen failed to present

competent evidence of his damages. A plaintiff is required to

establish both the existence and the amount of damages by a

preponderance of the evidence. Stevens-Henager College v. Eagle

Gate College, 2011 UT App 37, ¶ 16, 248 P.3d 1025. While First

American does not dispute that Lauritzen has asserted that he

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20160717-CA 17 2018 UT App 58

sustained a particular amount of damages, First American

alleges that Lauritzen was not qualified to provide an opinion as

to the value of his lots, that Lauritzen’s damages calculations

were incorrect, and that Lauritzen did not include a figure for

damages resulting from the defect in title to Lot 54.

¶31 As to the first point, Utah law has long been clear that “an

owner of real property who is familiar with his property is

competent to give evidence on the market value of that

property.” Utah Dep’t of Transp. v. Jones, 694 P.2d 1031, 1036

(Utah 1984). Lauritzen presented evidence that he was familiar

with the property. Accordingly, we cannot say as a matter of law

that Lauritzen is incompetent to testify as to the market value of

the property at the time he purchased it and as to its value after

the Amended Plat was recorded.

¶32 As to the second point, disputed factual issues exist as to

whether Lauritzen’s damages calculations are correct. Certainly,

some of Lauritzen’s damages estimates may have been rendered

obsolete due to our decisions herein regarding the scope of

insurance coverage under the Policy. But the extent of

appropriate damages for the defect in Lauritzen’s title to Lot 54

has not been determined. Because factual disputes about those

damages are present, First American was not entitled to

summary judgment based on its allegation that Lauritzen’s

damages calculations were incorrect. See Hill v. State Farm Mut.

Auto. Ins. Co., 765 P.2d 864, 868 (Utah 1988) (stating that, where

the amount of damages is in dispute, summary judgment is

inappropriate), partially overruled on other grounds by Sharon Steel

Corp. v. Aetna Cas. and Sur. Co., 931 P.2d 127, 138 n.14 (Utah

1997).

¶33 As to the third point, we disagree with First American as

to whether Lauritzen presented sufficient evidence of his

damages specific to the defect in his title to Lot 54. Lauritzen

presented evidence as to the value of all of his Lots, together,

both before and after the recording of the Amended Plat. The

latter figure was lower. While a factual dispute may again arise

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20160717-CA 18 2018 UT App 58

as to the proportion of the decrease in price which is the result of

the defect in Lauritzen’s title to Lot 54, it is clear that Lauritzen

demonstrated at least some damages caused by the Lot 54 title

issues, such that First American is not entitled to summary

judgment on damages grounds.

¶34 For the benefit of the parties on remand, we note that

Lauritzen is entitled to recover any damages that are caused by

the Lot 54 title problem that we have determined is covered by

the Policy. There may be different ways in which these damages

might have manifested themselves, including potentially

reducing the value of Lot 54 due to, among other things, its

smaller size. In addition, there may be other categories or

theories of damages that Lauritzen might articulate, but all such

damages must be linked to the language of the Policy, which

obligates First American to pay all “loss or damage” Lauritzen

“sustained or incurred by reason of” the Lot 54 title defect.

CONCLUSION

¶35 The district court erred when it granted summary

judgment to First American with respect to Lauritzen’s claim

concerning the title to Lot 54. That issue constituted a defect in

title that is covered by the Policy, and First American is

responsible for damages Lauritzen sustained as a result of that

defect. However, the district court did not err when it granted

summary judgment to First American with respect to Lauritzen’s

claims that his title to the remaining Lots was defective or

unmarketable. There is no coverage under the Policy for those

claims.

¶36 Accordingly, we reverse the district court’s judgment

with respect to Lauritzen’s claim concerning the defect in his title

to Lot 54, affirm the district court’s judgment as to all of

Lauritzen’s other claims, and remand this case for further

proceedings consistent with this opinion.