Dudek et al v. Commonwealth Land Title Company LLC et al, No. 2:2019cv03237 - Document 30 (D.S.C. 2021)
Court Description: ORDER denying 28 Motion to Alter Judgment. Signed by Honorable David C Norton on March 2, 2021.(cdan, )
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ior use and by long-standing existence. But the existence of an alternative legal theory does not change the clear purpose of the 2018 Action—to enforce the Water and Sewer Easement Provision—and the clear thrust of the complaint—that Morphew has a contractual right to the water and sewer easement based upon the Water and Sewer Easement Provision. As such, plaintiff gives the court no reason to alter its conclusion that “based on the Water and Sewer Provision of the Purchase Contract, plaintiffs created, agreed to, or, at the very least, knew of the risk that an owner of the adjacent two-acre tract might seek to enforce a water and sewer easement on the Property.” ECF No. 26 at 20. The court’s finding that the 2018 Action falls with Policy Exclusion 4 therefore stands. Next, plaintiffs argue that the 2018 Action does not fall within Policy Exclusion 4 because Commonwealth knew about the risk created by the Water and Sewer Easement Provision and the exclusion requires that Commonwealth not have knowledge of the risk. Plaintiffs’ argument concerns section “b” of Policy Exclusion 4; it fails because the court found that both sections “a” and “b” of the Policy apply. Policy Exclusion 4 excludes risks: “(a) that are created, allowed, or agreed to by You . . . or (b) that are Known to You at the Policy Date, but not to [Commonwealth], unless they are recorded in the Public Records at the Policy Date . . . .” ECF No. 14-1 at 4. The court found that the 2018 5 2:19-cv-03237-DCN Date Filed 03/02/21 Entry Number 30 Page 6 of 8 Action falls under section “a” of the exclusion, see ECF No. 26 at 19 (“[P]laintiffs created the risk that an owner of the adjacent two-acre tract would seek to enforce his or her right to a water and sewer easement on the Property”), meaning that an analysis into section “b” would be superfluous. See Engineered Prod., Inc. v. Aetna Cas. & Sur. Co., 368 S.E.2d 674, 675 (S.C. Ct. App. 1988) (“Exclusions in an insurance policy are to be read independently of each other; they are not to be read cumulatively.”). Further, plaintiffs revive the same befuddling distinction they touted in their opposition to summary judgment. In the June 12 Order, the court summarized plaintiffs’ argument: First, plaintiffs puzzlingly attempt to draw a distinction between the water and sewer easement created by the Water and Sewer Easement Provision in the Purchase Contract and the water and sewer easement that Morphew claims ownership of the 2018 Action. Specifically, plaintiffs argue that Commonwealth wrongly came to the conclusion that the water and sewer easement created by the Water and Sewer Easement Provision “and Morphew’s 2018 claim to use the Plaintiffs’ water line were one in the same.” ECF No. 14 at 12. ECF No. 26 at 20–21. In response, the court first noted that any perceived distinction between the easement Morphew claims in the 2018 Action and the one plaintiffs granted through the Water and Sewer Easement Provision is “irrelevant.” Id. at 21. [T]he relevant question is not whether the easement plaintiffs granted in 2012 and the easement Morphew claims in the 2018 Action are the same right; the relevant question is whether plaintiffs created or agreed to the risk from which the 2018 Action arises. The answer to that question is simple. Plaintiffs granted a water and sewer easement to the neighboring two-acre property through the Water and Sewer Easement Provision. In the 2018 Action, Morphew, the owner of that neighboring property, seeks to enforce the Water and Sewer Easement Provision. As such, it is clear that Morphew’s claim to the water and sewer easement in the 2018 Action arises from the Water and Sewer Easement Provision, a risk that plaintiffs created or agreed to in the Purchase Contract. 6 2:19-cv-03237-DCN Date Filed 03/02/21 Entry Number 30 Page 7 of 8 Id. at 21–22. Notwithstanding the irrelevance of the false distinction, the court explained its falsity in a footnote: The court admits some difficulty following the “logic” of plaintiffs’ argument. Plaintiffs seem to argue that the easement plaintiffs granted in the Purchase Contract and the property right Morphew claims in the 2018 action are distinct. Putting aside the fact that this question is irrelevant to Commonwealth’s duty to defend, the court must note its failure to identify any distinction between the property interest plaintiffs granted and the one Morphew claims. Morphew quotes the language of the Water and Sewer Easement Provision to state that she has a right to use the water and sewer line on the Property. Nevertheless, plaintiffs attempt to divorce their granting of the water and sewer easement from Morphew’s claim thereto, noting that “Morphew . . . was simply using the ‘easement’ title, when in fact, based on the complaint, she clearly wanted to use the Plaintiffs’ water line.” ECF No. 14 at 9. Of course, the right to use another’s property is precisely what an easement is. See EASEMENT, Black’s Law Dictionary (11th ed. 2019) (“An interest in land owned by another person, consisting in the right to use or control the land . . . for a specific limited purpose . . .”). Plaintiffs granted an easement, or the right to use a water and sewer line on the Property, and in the 2018 Action, Morphew seeks to enforce that right to use a water and sewer line on the Property. The court fails to see any distinction. Id. at 21 n.7. Now plaintiffs again contend, “[T]he court incorrectly found that the water line alleged in the 2018 [Action] and the easement listed in [ ] Plaintiff’s [sic] purchase agreement were the same risk. The risks are simply not the same, but the Court seems puzzled by the distinction.” ECF No. 28 at 4. Suffice it to say, the court remains staunchly bewildered. Morphew claims a right to use plaintiffs’ water and sewer line. Plaintiffs granted Morphew an easement in their water and sewer line. An easement is a right to use another’s property for a specific use. Basic application of the transitive property demonstrates that plaintiffs granted Morphew the easement she now claims. Because plaintiffs are not permitted to “rehash” rejected arguments in a Rule 59(e) 7 2:19-cv-03237-DCN Date Filed 03/02/21 Entry Number 30 Page 8 of 8 motion, the court resolves to let this dead horse lie rather than to belabor the point further. Consulting Eng’rs, 2007 WL 2021901, at *2. Finally, plaintiffs seek a clarification. Plaintiffs note that “[i]t is unclear from the [June 12] Order whether the Court addressed any duty to indemnify,” and asks that the June 12 Order “be amended to reflect that it does not reach the issue of Commonwealth’s duty to indemnify.” ECF No. 28 at 5–6. The law is clear that where “an insurer has no duty to defend, it necessarily has no duty to indemnify.” Canopius US Ins., Inc. v. Middleton, 202 F. Supp. 3d 540, 546 (D.S.C. 2016); see also Atain Specialty Ins. Co. v. Carolina Prof’l Builders, LLC, 2020 WL 5877143, at *8 (D.S.C. Oct. 2, 2020) (“Because the duty to defend is broader than the duty to indemnify, if there is no duty to defend, then as a matter of law, an insurer also has no duty to indemnify its insured.”). Because the court found the Commonwealth has no duty to defend plaintiffs as a matter of law, Commonwealth necessarily has no duty to indemnify plaintiffs. IV. CONCLUSION For the foregoing reasons the court DENIES the motion. AND IT IS SO ORDERED. DAVID C. NORTON UNITED STATES DISTRICT JUDGE March 2, 2021 Charleston, South Carolina 8
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