Chicago Title Insurance Co. v. LLC (2009)

MEMORANDUM OF DECISION

In this title insurance coverage dispute the parties' contending motions for summary judgment require the court to decide whether there is enough evidence to submit to a fact-finder the following questions:  (1) Did the defendant-insured have actual or constructive notice of a tax lien on the insured property when it obtained the title policy?  (2) Did it stand to suffer any actual loss from its payment of the taxes claimed to be due?  (3) Did it forfeit its right to indemnification under the policy by failing to cooperate in the investigation of its claim by the plaintiff-insurer and/or by paying the taxes without the latter's consent, or was it relieved of its obligations by the insurer's prior breach?  (5) Did the parties act with good faith and deal fairly with each other in the handling of this claim?

I

Chicago Title Insurance Company (Chicago Title) issued an owner's title policy (policy) to Bristol Heights Associates, LLC (Bristol Heights), insuring certain real property in Bristol, Connecticut (property), effective April 2, 2003.   Bristol Heights had acquired that property from its co-defendant, Lew J. Valpolicella, on the same date, in return for a promissory note for $800,000 and a 25% membership interest in Bristol Heights.   Mr. Valpolicella, in turn, had acquired the property in May 1994, and by reason of his purchase he had become obligated to pay approximately $60,000 in property taxes that were due on July 1, 1994.

Mr. Valpolicella failed to pay those taxes.   As a result, the town of Bristol (town) placed a lien on the property on May 31, 1995.   When he conveyed the property to Bristol Heights in April 2003, Mr. Valpolicella warranted that it was “free from all encumbrances whatsoever,” despite the fact that he had still not satisfied the 1995 tax lien.

Following Bristol Heights' purchase of the property, the town made a demand for payment of the taxes on August 16, 2005, and on September 1, 2005 Chicago Title was notified in writing of the town's demand for satisfaction of the tax lien by Bristol Heights' attorney.   Thereafter, on December 23, 2005 it received a request for acknowledgment of the claim made on September 1, and on December 27 Chicago Title acknowledged the claim and began its investigation of the claim.

Chicago Title believed that several coverage issues existed.   Was Bristol Heights barred from coverage because it knew of the unpaid taxes at the time it purchased the property, either actually or by virtue of the knowledge of Mr. Valpolicella, a member of the company?   Was it barred from coverage because its potential liability for the taxes ($60,000 plus whatever interest and penalties might have accrued) could be applied to reduce its $800,000 debt to Mr. Valpolicella, thereby obviating any actual loss to Bristol Heights?   Was the tax lien, itself, valid, and, if so, what was the amount still due and owing?   But, Chicago Title's requests that Bristol Heights provide it with documents and information it thought necessary to resolve these questions was soundly rebuffed by William Orlandi, Bristol Heights' manager, in a letter dated February 23, 2006, in which he found that “the materials [Chicago Title] requested are not germane to the issue of our policy” and concluded, “Your request is hereby denied, in kind.”

Approximately one week later Bristol Heights paid the town $200,341 in settlement of the tax liability without notice to or the consent of Chicago Title.   It continued to refuse Chicago Title's requests for information.   In June 2006 Bristol Heights requested that the American Arbitration Association (AAA) arbitrate its coverage dispute with Chicago Title, as well as a claim for punitive damages to be paid by Chicago Title;  later, in October 2006, it withdrew from the arbitration.

In this action Chicago Title seeks a declaratory judgment that Bristol Heights is not entitled to coverage under the title insurance policy because of:  (1) Bristol Heights' actual or imputed knowledge of the tax liability;  (2) the absence of any loss because its debt of $800,000 to Mr. Valpolicella can simply be reduced by what it paid the town to satisfy his unpaid taxes;  (3) its voluntary assumption of the loss incurred when it paid the town without the prior written consent of Chicago Title;  (4) its failure to cooperate with Chicago Title in the investigation of the claim and (5) its breach of the duty of good faith and fair dealing by failing to cooperate in the investigation and by commencing and then withdrawing from an arbitration of its claim that Chicago Title acted in bad faith in the handling of Bristol Heights' claim.   In a sixth count Chicago Title seeks a declaratory judgment that, if it is liable to indemnify Bristol Heights, Mr. Valpolicella is liable to indemnify Chicago Title because, as a 25% owner of Bristol Heights, he will be unjustly enriched inasmuch as it is his false representation in 2003 that there were no encumbrances on the property that has led to Chicago Title's obligation to indemnify Bristol Heights.

In addition to answering the claims made by Chicago Title, Bristol Heights has filed a counterclaim seeking damages for the former's alleged breach of its title insurance obligation and for bad faith in its handling of Bristol Heights' claim.   While it confirms most of the allegations in Chicago Title's complaint, the counterclaim adds the following relevant allegations.

Upon information and belief, Bristol Heights alleges that Chicago Title conducted a title search of the property before issuing its policy, and it never reported to Bristol Heights any defect or encumbrance on the title, including the town's tax lien.   It avers that Bristol Heights bought the property in reliance on Chicago Title's search of the title, and that it was not aware of any defect or lien or encumbrance on the title.

From September through December 2005 Bristol Heights received no response to its advice to Chicago Title that the town was demanding satisfaction of the tax lien.   During that period Bristol Heights was proceeding with its plans to develop the property;  at the same time the town was renewing its demand that the taxes be paid immediately.   Bristol Heights expected that Chicago Title would have been resolving the tax issue with the town.

On March 8, 2006 Bristol Heights paid the taxes claimed by the town to be due because it was required to do so as part of its refinancing of the loan originally secured for its development of the property.   That original loan was coming due and needed to be refinanced contemporaneous with the town's threats to turn over the unpaid tax lien to its corporation counsel for initiation of foreclosure proceedings.   At the same time Chicago Title, rather than taking steps to protect its insured, was demanding irrelevant information it claimed was necessary for its investigation of the claim for indemnification.

In count one of its counterclaim Bristol Heights claims that Chicago Title's failure to insure the property for the tax obligation outstanding at the time the policy was issued, its unreasonable delay in investigating and defending against the town's tax claim and its failure to pay or otherwise settle with the town amounted to a breach of its insurance contract with Bristol Heights.   Because these actions of Chicago Title were taken when it knew or should have known that Bristol Heights' claim was valid and in a dishonest and malicious attempt to defeat Bristol Heights' claim and to avoid liability under the policy, count two of the counterclaim alleges that they violated Chicago Title's obligation to act in good faith and to deal fairly with Bristol Heights.   Finally, count three avers that this same bad faith conduct amounted to a violation of the Connecticut Unfair Trade Practices Act (CUTPA).

II

Bristol Heights and Chicago Title have filed competing motions for summary judgment on the latter's complaint.¹  Bristol Heights seeks judgment on counts one, two and five of the complaint;  Chicago Title, on counts three and four.   Chicago Title also seeks summary judgment in its favor on counts two and three of Bristol Heights' counterclaim.²  The law of summary judgment is well-settled.

“[S]ummary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.”  Practice Book § 17-49.   A “material fact” is one “which will make a difference in the result of the case.”  (Internal quotation marks omitted.)   Hammer v. Lumberman's Mutual Casualty Co., 214 Conn. 573, 578 (1990).

The party moving for summary judgment “has the burden of showing the absence of any genuine issue of material fact ․”;  Ruddock v. Burrowes, 243 Conn. 569, 573-74 (1998);  and supporting its motion with documentation, including affidavits.   See Heyman Associates v. Insurance Co. of Pennsylvania, 231 Conn. 756, 796 (1995).   To defeat the motion, “[t]he existence of the genuine issue of material fact must be demonstrated by counter affidavits and concrete evidence.”  Pion v. Southern New England Telephone, 44 Conn.App. 657, 663 (1997).  “If the affidavits and other supporting documents [opposing the motion] are inadequate, then the court is justified in granting the summary judgment, assuming that the movant has met its burden of proof.”  (Internal quotation marks omitted.)  Associates Financial Services of America v. Sorenson, 46 Conn.App. 721, 732 (1997).

“In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party.”  Home Insurance Co. v. Aetna Life & Casualty Co., 235 Conn. 185, 202 (1995).  “The test is whether a party would be entitled to a directed verdict on the same facts.”  (Internal quotation marks omitted.)  Connell v. Colwell, 214 Conn. 242, 247 (1990).

III

Bristol Heights' request for judgment in its favor on counts two and five of the complaint warrants little discussion;  count one is a closer call.³

Count two of Chicago Title's complaint alleges that it is not liable under the policy because of the exclusion of coverage for title defects that “result in no loss or damage to the insured claimant;” since Bristol Heights can simply reduce its $800,000 debt to Mr. Valpolicella by the $200,341 it paid for his unpaid taxes, the argument goes, it will have suffered no loss from its satisfaction of the tax lien on the property.

Bristol Heights simply misconceives the thrust of Chicago Title's claim in count two.   It states no more and no less than the unremarkable proposition that, if Bristol Heights sustains no loss from its satisfaction of the town's tax lien, Chicago Title is not liable under this indemnity policy.   Obviously, determination of this question depends on resolution of several factual issues which are in dispute.⁴  This claim has nothing to do with the other claims the parties have made against each other, in particular Bristol Heights' claim of CUTPA violations on the part of Chicago Title.

Count five alleges that Chicago Title is not liable because Bristol Heights violated its duty to act in good faith and deal fairly with Chicago Title by stonewalling the investigation of its rights and obligations under the policy and by commencing and then abandoning an arbitration against Chicago Title alleging that the latter acted in bad faith in considering Bristol Heights' claim and seeking punitive damages.   Bad faith claims are inherently fact-bound;  Renaissance Mgmt. Co. v. Conn. Housing Finance Authority, 281 Conn. 227, 240 (2007);  and Bristol Heights neither recognizes nor resolves the many fact questions underlying Chicago Title's allegations in count five.

Count one seeks a declaratory judgment that Chicago Title is not liable to Bristol Heights because the latter had prior knowledge of the unpaid taxes and the tax lien when the policy was issued, and coverage is specifically excluded for “defects, liens, encumbrances, adverse claims or other matters” affecting the title which were “created, suffered, assumed or agreed to by the insured claimant.”   Memorandum in Support of Plaintiff's Motion for Summary Judgment, exhibit 1, Exclusions from Coverage, ¶ 3 (Mar. 2, 2009) (plaintiff's memorandum).   The allegation is that either Bristol Heights had actual knowledge of the tax lien or that the knowledge of Mr. Valpolicella, a member of the LLC, is imputed to it.

Bristol Heights' submissions in support of its motion establish that, from 1994, when Mr. Valpolicella bought the property, until August 2005 the town was mistakenly billing the prior owner for the property taxes due, and Chicago Title acknowledges that fact.   Plaintiff's Objection, 4-5.   It is also undisputed that the title search conducted when the property was transferred disclosed no tax lien.   It was not till August 2005, two years after Mr. Valpolicella transferred the property to Bristol Heights, that the tax collector made demand on Bristol Heights for satisfaction of the tax lien.⁵  Chicago Title counters with evidence that Mr. Valpolicella, when he bought the property, was on notice of the outstanding taxes due on the grand list of October 1, 1993, payable by him on July 1, 1994.   Plaintiff's Objection, 4, 14-15.   Since he never paid them, his knowledge that they were still outstanding, along with any interest and penalties, when he transferred the property to Bristol Heights in 2003 is imputed to the LLC, of which he became a member at that time.   This is the stuff of which jury questions are made.   Resolution of what Mr. Valpolicella and Mr. Orlandi knew when the property was transferred and the title policy written will depend on the jury's assessment of these facts and the credibility of those witnesses.⁶

IV

Chicago Title seeks summary judgment on count three of its complaint for a declaratory judgment because Bristol Heights paid the full tax claimed by the town without the consent of Chicago Title, in violation of paragraph 9(c) of the policy:  “[Chicago Title] shall not be liable for loss or damage to any insured for liability voluntarily assumed by [Bristol Heights] in settling any claim ․ without the prior written consent of [Chicago Title].”   Plaintiff's Memorandum, exhibit 1, Conditions and Stipulations, ¶ 9(b).  It seeks summary judgment on count four because Bristol Heights refused to cooperate in its investigation of Bristol Heights' claim for indemnification for the taxes it paid to the town.  Id., ¶¶ 4(d)(ii), 5.

A review of the parties' submissions demonstrates that there is no genuine issue as to these obviously material facts.   Bristol Heights does not claim that it ever obtained Chicago Title's consent to pay the town's claim.   Nor does it deny that it refused to cooperate in Chicago Title's investigation of its claim.   The question is, given these undisputed facts, whether Chicago Title is entitled to judgment “as a matter of law.”

Bristol Heights' objection to Chicago Title's motion for summary judgment is a farrago of fact and law from which it is difficult to discern just what are its arguments against summary judgment on either one or both of these counts.   Its principal reliance appears to be on an alleged breach by Chicago Title of its contractual obligations prior to Bristol Heights' failure to cooperate in investigation of the claim and payment of the town.   See Bristol Heights' Objection to Chicago Title Ins. Co.'s Motion for Summary Judgment, 22-23 (Mar. 11, 2009) (defendant's objection);  Bristol Heights' Supplemental Brief in Objection to Chicago Title's Summary Judgment Motion, 7 (Sept. 9, 2009) (bold in original) (“The point is, the evidence cited in Bristol Heights' Objection creates a triable issue as to whether [Chicago Title] was in breach prior to March 6, 2006, the date the tax lien was paid”) (defendant's supplemental brief).

“It is a general rule of contract law that a total breach of the contract by one party relieves the injured party of any further duty to perform further obligations under the contract.”  (Internal citations and quotation marks omitted.)  Shah v. Cover-It, Inc., 86 Conn.App. 71, 75 (2004).   See also Metropolitan Life Ins. Co. v. Aetna Casualty & Surety Co., 249 Conn. 36, 59 (1999).   Furthermore, “(t)he determination of whether a contract has been materially breached is a question of fact ․” Efthimiou v. Smith, 268 Conn. 487, 493 (2004).   Since Chicago Title, the moving party, has established that Bristol Heights' failure to cooperate and payment of the town without Chicago Title's consent are undisputed, the question becomes whether Bristol Heights has demonstrated that there is a genuine dispute as to whether Chicago Title breached the contract of insurance prior to its own breach.

Chicago Title received notice of the town's claim of unpaid taxes and its intent to enforce its lien from Bristol Heights' attorney on or about September 1, 2005.⁷  It is undisputed that Chicago Title took no action in connection with the town's claim then or in the four months following.   It explains its inaction by reference to the deposition of the recipient of the notice, Philip Fanning, in which he testified that Bristol Heights' attorney told him it was “too soon to do anything” regarding the claim while he tried to “work something out” with Mr. Valpolicella's attorney.   Plaintiff's memorandum, exhibit C, 20.   A jury would be free, however, to reject this testimony of Chicago Title's agent at trial, and it offers no other explanation for its inaction.   Futhermore, there is evidence from which a jury could conclude that Bristol Heights was attempting to secure new financing for its proposed development of the property, which required a resolution of the tax lien issue, and that Chicago Title was aware that time was of the essence in resolving the town's claim.   Defendant's Objection, exhibit 2, 134.   Chicago Title, however, did not acknowledge Bristol Heights' notice of the town's claim and commence an investigation of the claim until the end of December.   Thereafter, there is evidence of actions taken by Chicago Title during January and February 2006 to gather information regarding the claim and Bristol Heights' responsibility for the taxes and to obtain from the town extensions of the deadline for payment, but it would be up to a fact-finder to determine whether Chicago Title complied with its obligations under the contract.   The policy, itself, requires Chicago Title to provide for the defense of its insured “without unreasonable delay” and to exercise its prerogatives under the policy “diligently.”   Plaintiff's memorandum, exhibit 1, ¶ 4.

It is true, as argued by Chicago Title, that an insurer's breach of its obligations to an insured by declining coverage and refusing to defend against a claim will release the insured from its obligation to comply with its duties under the contract.   See, e.g., Metropolitan Life Ins. Co. v. Aetna Casualty & Surety Co., supra, 249 Conn. 59.   But, that is not the only circumstance in which the insured may be relieved from its duty not to settle without consent:

(T)he insurer's obligation to act in good faith for the insured's interests may be breached in other ways than by refusing or neglecting to defend a suit.   It may be breached by neglect and failure to act protectively when the insured is compelled to make settlement at his peril;  and unreasonable delay by the insurer, in dealing with a claim, may be one form of refusing to perform which could justify settlement by the insured.

Isadore Rosen & Sons, Inc. v. Security Mutual Ins. Co., 31 N.Y.2d 342, 291 N.E.2d 380, 382 (1972).

“In ruling on a motion for summary judgment, the court's function is not to decide issues of material fact, but rather to determine whether any such issues exist.”  Nolan v. Borkowski, 206 Conn. 495, 500 (1988).   This court determines that there is a genuine issue as to the material fact whether Chicago Title materially breached its duties under the policy by unreasonably delaying its resolution of the town's claim for unpaid taxes so as to relieve Bristol Heights of its obligations to cooperate in the investigation of the claim and to settle the claim only with Chicago Title's consent.⁸

V

Finally, Chicago Title seeks summary judgment on Bristol Heights' claims of bad faith (count two of the counterclaim) and unfair trade practices (count three) on the part of Chicago Title in failing to pay its claim.   As the court recognized in denying Bristol Heights' motion for summary judgment on Chicago Title's bad faith claim, such claims are inherently fact-bound.  Renaissance Mgmt. Co. v. Conn. Housing Finance Authority, 281 Conn. 227, 240 (2007).   Rhetoric aside, Bristol Heights has provided no evidence by way of documents, affidavits or deposition testimony from which a jury could deduce that Chicago Title's conduct in handling its claim implied “actual or constructive fraud, or a design to mislead or deceive another, or a neglect or refusal to fulfill some duty or some contractual obligation, not prompted by an honest mistake as to one's rights or duties, but by some interested or sinister motive.”  De La Concha of Hartford, Inc. v. Aetna Life Insurance Co., 269 Conn. 424, 433 (2004).   While a jury might find that Chicago Title unreasonably delayed resolution of Bristol Heights' claim, there is no evidence submitted by Bristol Heights that it did so with a “dishonest purpose.”  Exantus v. Metropolitan Property & Casualty Co., 582 F.Sup.2d 239 (D.Conn.2008).

Bristol Heights' essential argument is that Chicago Title should have recognized its claim as a valid one and paid it forthwith:  its insistence on investigating the claim is evidence of its bad faith.   Yet, this court has already held that it is a jury question whether Bristol Heights, either directly or through its member, Mr. Valpolicella, knew of the unpaid taxes when the policy was issued and failed to disclose their existence to Chicago Title.⁹  Thus, Chicago Title was not acting in bad faith when it sought to investigate the circumstances surrounding the transfer of the property to Bristol Heights.   Nor was it bad faith for it to look into the financial arrangements between Mr. Valpolicella and Bristol Heights to determine whether the latter actually stood to incur a loss if it paid the taxes.¹⁰

There can be no bad faith claim where an insurer has a “fairly debatable” reason for investigating or even for denying a claim.   See McCulloch v. Hartford Life & Accident Ins. Co., 363 F.Sup.2d 169, 177-78 (D.Conn.2005).   Bristol Heights has adduced no evidence that would justify a jury in concluding that Chicago Title's failure to pay its claim without investigation constituted a violation of the covenant of good faith and fair dealing inherent in the policy.

Likewise, Bristol Heights has failed to produce evidence that Chicago Title violated the Connecticut Unfair Insurance Practices Act (CUIPA);  Conn. General Statutes § 38a-816(6);  and, by virtue of such a violation, violated CUTPA.   For all of the reasons previously referred to, when Chicago Title received the claim and commenced its investigation, its liability was anything but “reasonably clear,” the standard adopted by CUIPA for determining whether an insurer's failure to pay a claim promptly constitutes an unfair insurance practice.   This court, like the court in Bauco v. Hartford Fire Ins. Co., Superior Court, judicial district of Fairfield, Docket No. 375290, 36 Conn. L. Rptr. 799, 2004 Ct.Super. 3324, 3341-43 (Mar. 3, 2004), believes that the common-law standard of bad faith and this statutory standard are so intertwined that, where common-law bad faith is absent from an insurer's conduct in considering a claim, there can be no finding that the insurer violated CUIPA and, thereby, violated CUTPA.   Accordingly, since Bristol Heights has failed to put forward any evidence from which a jury could conclude that Chicago Title acted in bad faith, it has not effectively responded to the motion for summary judgment on the CUTPA count of its counterclaim.

VI

Based on the conclusions of law set out in this memorandum of decision, the motion for summary judgment of the defendant Bristol Heights is DENIED;  the motion for summary judgment of the plaintiff Chicago Title is DENIED as to counts three and four of the complaint and GRANTED as to counts two and three of the counterclaim.

BY THE COURT

Joseph M. Shortall

Judge Trial Referee

FOOTNOTES

FN1. On August 8, 2009 the court denied Bristol Heights' motion for summary judgment on the cross-claim of its co-defendant, Lew Valpolicella..  FN1. On August 8, 2009 the court denied Bristol Heights' motion for summary judgment on the cross-claim of its co-defendant, Lew Valpolicella.

FN2. Although its motion claims summary judgment on count one of Bristol Heights' counterclaim, as well as counts two and three, Chicago Title does not brief that claim in its memorandum in support of the motion.   See Memorandum of Law in Support of Plaintiff's Motion for Summary Judgment, 31-34 (Mar. 2, 2909) (plaintiff's memorandum).   Therefore, the court considers that claim abandoned.   See Conn. Light & Power Co. v. Dept. of Public Utility Control, 266 Conn. 108, 120 (2003)..  FN2. Although its motion claims summary judgment on count one of Bristol Heights' counterclaim, as well as counts two and three, Chicago Title does not brief that claim in its memorandum in support of the motion.   See Memorandum of Law in Support of Plaintiff's Motion for Summary Judgment, 31-34 (Mar. 2, 2909) (plaintiff's memorandum).   Therefore, the court considers that claim abandoned.   See Conn. Light & Power Co. v. Dept. of Public Utility Control, 266 Conn. 108, 120 (2003).

FN3. Initially, Bristol Heights' motion for summary judgment was supported by nothing in the way of documentation, such as affidavits, transcript excerpts, etc.   Only with its “Supplemental Memorandum” in support of the motion did it submit such material, and then only in support of its challenge to Chicago Title's first cause of action.   Since Chicago Title has not made an issue of this tardy compliance with the rules governing summary judgment, neither will the court..  FN3. Initially, Bristol Heights' motion for summary judgment was supported by nothing in the way of documentation, such as affidavits, transcript excerpts, etc.   Only with its “Supplemental Memorandum” in support of the motion did it submit such material, and then only in support of its challenge to Chicago Title's first cause of action.   Since Chicago Title has not made an issue of this tardy compliance with the rules governing summary judgment, neither will the court.

FN4. Chicago Title points out in its objection to Bristol Heights' motion that under the terms of the latter's promissory note to Mr. Valpolicella, as amended by a “memorandum of understanding” between those parties, Bristol Heights may not be obligated to pay Mr. Valpolicella anything on the note if it never receives permanent financing for the development of the property.   Plaintiff's Objection to Defendant Bristol Heights' Motion for Partial Summary Judgment, 5-6 (Aug. 28, 2008) (plaintiff's objection).   Were that eventuality to occur, Chicago Title's “no loss” argument would seem to be undercut..  FN4. Chicago Title points out in its objection to Bristol Heights' motion that under the terms of the latter's promissory note to Mr. Valpolicella, as amended by a “memorandum of understanding” between those parties, Bristol Heights may not be obligated to pay Mr. Valpolicella anything on the note if it never receives permanent financing for the development of the property.   Plaintiff's Objection to Defendant Bristol Heights' Motion for Partial Summary Judgment, 5-6 (Aug. 28, 2008) (plaintiff's objection).   Were that eventuality to occur, Chicago Title's “no loss” argument would seem to be undercut.

FN5. Bristol Heights attempts to invoke testimony of Mr. Valpolicella at a deposition that he had received receipts for tax payments during his ownership, and that none indicated any taxes due.   Defendant Bristol Heights' Supplemental Memorandum in Support of its Motion for Partial Summary Judgment, 12 n.4 (Jan. 29, 2009) (supplemental memorandum).   Since it has not included a deposition excerpt evidencing such testimony, the court has not considered this claim..  FN5. Bristol Heights attempts to invoke testimony of Mr. Valpolicella at a deposition that he had received receipts for tax payments during his ownership, and that none indicated any taxes due.   Defendant Bristol Heights' Supplemental Memorandum in Support of its Motion for Partial Summary Judgment, 12 n.4 (Jan. 29, 2009) (supplemental memorandum).   Since it has not included a deposition excerpt evidencing such testimony, the court has not considered this claim.

FN6. The court is otherwise not much impressed by Chicago Title's arguments that adverse inferences can be drawn from the nature of Mr. Valpolicella's transfer to Bristol-Heights as a “conflict transaction” or the terms of that transfer or Bristol Heights' failure to cooperate in its investigation.   These seem to the court more speculative than reasonable and logical..  FN6. The court is otherwise not much impressed by Chicago Title's arguments that adverse inferences can be drawn from the nature of Mr. Valpolicella's transfer to Bristol-Heights as a “conflict transaction” or the terms of that transfer or Bristol Heights' failure to cooperate in its investigation.   These seem to the court more speculative than reasonable and logical.

FN7. Although Chicago Title argues that Bristol Heights did not give notice in the manner required by the policy;  Plaintiff's Reply in Support of Motion for Summary Judgment, 4-5 (June 26, 2009) (plaintiff's reply);  written notice delivered to Chicago Title's Hartford office, which issued the policy, complies with the policy.   Plaintiff's Memorandum, exhibit 1, Conditions and Stipulations, ¶ 17..  FN7. Although Chicago Title argues that Bristol Heights did not give notice in the manner required by the policy;  Plaintiff's Reply in Support of Motion for Summary Judgment, 4-5 (June 26, 2009) (plaintiff's reply);  written notice delivered to Chicago Title's Hartford office, which issued the policy, complies with the policy.   Plaintiff's Memorandum, exhibit 1, Conditions and Stipulations, ¶ 17.

FN8. Having resolved this issue in favor of Bristol Heights, the court is not required to reach the issues (1) whether Bristol Heights' payment of the town represented a “voluntary” assumption of liability for the taxes claimed to be due and (2) whether Chicago Title's interests were prejudiced by that payment, issues which would become relevant should a jury decide that Chicago Title did not materially breach its contract obligations..  FN8. Having resolved this issue in favor of Bristol Heights, the court is not required to reach the issues (1) whether Bristol Heights' payment of the town represented a “voluntary” assumption of liability for the taxes claimed to be due and (2) whether Chicago Title's interests were prejudiced by that payment, issues which would become relevant should a jury decide that Chicago Title did not materially breach its contract obligations.

FN9. Supra, 12-13..  FN9. Supra, 12-13.

FN10. Indeed, in the notice of claim Chicago Title received on September 1, 2005 Bristol Heights' attorney, himself, mentioned the fact that Bristol Heights was indebted to Mr. Valpolicella in an amount exceeding the town's tax claim.   Plaintiff's Memorandum, exhibit 11..  FN10. Indeed, in the notice of claim Chicago Title received on September 1, 2005 Bristol Heights' attorney, himself, mentioned the fact that Bristol Heights was indebted to Mr. Valpolicella in an amount exceeding the town's tax claim.   Plaintiff's Memorandum, exhibit 11.

Shortall, Joseph M., J.T.R.