REAL PROPERTY UPDATE

• Contract Interpretation: trial court erred by interpreting declaration in way that rendered provisions meaningless – Bethany Trace Owners’ Association, Inc. v Whispering Lakes I, LLC, et al., No. 2D13-2792 (Fla. 2d DCA Dec. 3, 2014) (reversed and remanded).
• Foreclosure/Liability for Assessments: safe harbor provision established by Fla. Stat. s. 718.116(1)(b), which limits liability of first mortgagee for condominium association fees, applies to all assignees of first mortgagee and not just original first mortgagee or its very first assignee – Beltway Capital, LLC v The Greens COA, Inc., No. 5D13-3148 (Fla. 5th DCA December 5, 2014) (reversed and remanded).
• Contract Interpretation: where service contract authorized elevator service company to accelerate service fees for remaining term of contract upon customer’s default for failure to pay invoice, trial court required to award accelerated payments as damages – Thyssenkrupp Elevator Corp. v Hampton Manor at Deerwood, LLC, No. 5D13-4130 (Fla. 5th DCA Dec. 5, 2014) (reversed and remanded).
• Homeowner’s Insurance: insured that filed suit and engaged in substantial discovery over two years did not waive right to demand an appraisal when demand was made within 6 months after insurer admitted coverage and inured did not “aggressively litigate” during that time – Florida Insurance Guaranty v Martucci, No. 5D13-4513 (Fla. 5th DCA Dec. 5, 2014).

FINANCIAL SERVICES UPDATE - NONE

TITLE INSURANCE UPDATE

• Title Report: preliminary title report provided by title insurer prior to issuance of policy represents only that the insurer will issue a title insurance policy upon compliance with the conditions in the report – Feduniak v. Old Republic National Title Ins. Co., Case No. 13-cv-02060 (N.D. Cal. Nov. 20, 2014) (order granting partial summary judgment on breach of contract claim for failure to discover easement prior to closing).
• Duty to Defend: duty to defend does not extend to suit based on insured’s failure to submit restoration plan and continuing to water and mow golf course as those alleged actions arose after the issuance of the policy – Feduniak v. Old Republic National Title Ins. Co., Case No. 13-cv-02060 (N.D. Cal. Nov. 20, 2014) (order granting partial summary judgment on breach of contract claim for failure to defend action).
• Right to Cure: title insurer has right to cure title or remove defect in lieu of paying for diminution in value, but not to the insured’s detriment – Feduniak v. Old Republic National Title Ins. Co., Case No. 13-cv-02060 (N.D. Cal. Nov. 20, 2014) (order granting partial summary judgment on breach of contract claim).
• Diminution in Value: where title insurer obtained appraisals of diminution in value and tendered the appraisal value to the insured, and insured disputed proper amount of diminution in value, no reasonable trier of fact could conclude that title insurer’s alleged failure to pay full DIV was an act of bad faith – Feduniak v. Old Republic National Title Ins. Co., Case No. 13-cv-02060 (N.D. Cal. Nov. 20, 2014) (order granting partial summary judgment on bad faith claim).
• CPL: granting appeal of whether (i) separate contract between lender and closing agent exists outside cpl and (ii) full credit bid rule applies – Bank of America v. First American Title Ins. Co., Case No. 149599 (Mich. Nov. 19, 2014) (order granting application for leave to appeal).
• Duty to Defend: material issue of fact as to whether insured had entered settlement agreement prior to giving notice of claim to insurer and whether insurer was prejudiced by settlement and thus whether insurer had duty to defend settled claim – Ventana Partners, LLC v. Lanoue Development, LLC, Case No. A148839 (Or. App. Nov. 19, 2014) (reversed and remanded on duty to defend).