Judge Carmen Velasquez
Fidelity National Title Insurance moved to dismiss plaintiffs’ complaint. Fidelity provided a title insurance policy to plaintiffs upon their purchase of the subject property. The policy provided it did not insure loss or damage, including costs or attorney fees arising by “rights of tenants or persons in possession.” Adjoining property owners, Giannasca, sued plaintiffs to recover, by adverse possession, the area on the west with a shed, hedge and gate, that was referred to in the title policy. Fidelity refused to defend. A court dismissed the action, finding Giannasca failed to show evidence of hostile use of the property. Plaintiffs sought to recover all fees incurred in defending the adverse possession action. The court noted plaintiffs obtained title from Giannasca, thus the parties were the chain of title owners and their claim of adverse possession was a liability protected by the title policy issued by Fidelity, unless excepted from coverage. The policy contained no such exception as the area claimed by adverse possession was not excluded or limited in any way. The court refused to dismiss, ruling the allegations in the complaint were sufficient to establish Fidelity should have defended plaintiffs.
