5 Fla. L. Weekly Supp. 311a

Insurance — Title — Exclusions — Motion for summary judgment in action alleging insurer breached title insurance policy by failing to indemnify insureds for losses and damages sustained as result of encroachment of brick wall bordering certain realty purchased by insureds granted — No genuine issues of material fact preclude entry of summary judgment in favor of insurer where encumbrance forming basis of insureds’ action was expressly excluded from coverage under policy — Policy expressly excepted from coverage Declaration of Covenants and easements created thereby — Because brick wall was built on easement created pursuant to Declaration of Covenants, brick wall is expressly excluded and not covered by insurance policy

DELMAS SHIFLETT and LINDA SHIFLETT, Plaintiffs, v. ATTORNEYS’ TITLE INSURANCE FUND, INC. and M. MOONEY & ASSOCIATES, SURVEYORS, INC., Defendants. 13th Judicial Circuit in and for Hillsborough County, General Civil Division. Case No. 97-04098, Division O. November 17, 1997. William Fuente, Judge. Counsel: Paul D. Watson, Buss, Ross, Gardner, Warren & Rudy, P.A., Tampa, for Plaintiffs. Mark A. Brown, Carlton, Fields, Ward, Emmanuel, Smith & Cutler, P.A., Tampa, for Defendants.

ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

THIS CAUSE came before the Court for hearing on October 28, 1997 on Defendant Attorneys’ Title Insurance Fund, Inc.’s Motion for Summary Judgment. Having considered the record, including the owners’ title insurance policy and the September 12, 1996 boundary survey, arguments of counsel, and being otherwise informed in the premises, the Court grants Defendant’s motion for the reasons that follow.

FACTUAL BACKGROUND

On September 20, 1996, Defendant issued a title insurance policy to Plaintiffs in connection with their purchase of certain realty, Lot 19 in the Timber Pond Subdivision Unit 3. Plaintiffs contend that a six foot brick wall encroached Lot 19 and that such encroachment constitutes a defect in title covered by the title insurance policy. An inaccurate survey was prepared by M. Mooney & Associates, Surveyors, Inc. which did not reflect the wall encroachment. A corrected survey was subsequently prepared which accurately reflects the location of the brick wall. (See Defendant’s Motion for Summary Judgment at 2, 3). Count I of Plaintiff’s Complaint contains a claim against Defendant for breach of contract. Plaintiffs allege that Defendant breached the insurance policy by failing to indemnify Plaintiffs for losses and damages sustained as a result of the encroachment of the brick wall bordering Telfair Road on Lot 19. (See Complaint at para. 17). Defendant contends that the encumbrance forming the basis of Plaintiff’s action for breach of contract was expressly excluded from coverage under the insurance policy. (See Defendant’s Motion for Summary Judgment at 4).

DISCUSSION APPLICABLE STANDARD FOR SUMMARY JUDGMENT

It is appropriate for a court to grant summary judgment “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, 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.” Fla. R. Civ. P. 1.510(c). It is not the function of this Court to ascertain whether the Plaintiffs can prove their case; this Court’s function “solely is to determine whether the pleadings, depositions, and affidavits conclusively show that Plaintiffs cannot prove [their] case.” See Crandall v. Southwest Florida Blood Bank, 581 So. 2d 593, 595 (Fla. 2d DCA 1991) (emphasis added), reh’g denied, 1991 Fla. App. LEXIS 13911 (Fla. 2d DCA 1991) (citing Williams v. Florida Realty & Management Co., 272 So. 2d 176 (Fla. 3d DCA 1973)); See also Edenfield v. B & I Contractors, Inc., 624 So. 2d 389, 391 (Fla. 2d DCA 1993) (holding that the burden is on the moving party to demonstrate conclusively that the non-moving party cannot prevail); Holland v. Verheul, 583 So. 2d 788, 789 (Fla. 2d DCA 1991) (same). As the moving party, Defendant has the burden of showing a conclusive absence of any genuine issue of material fact. This Court “must draw every possible inference in favor of the part[ies] against whom summary judgment is sought.” See Moore v. Morris, 475 So. 2d 666, 668 (Fla. 1985) (citing Wills v. Sears Roebuck & Co., 351 So. 2d 29 (Fla. 1977); Holl v. Talcott, 191 So. 2d 40 (Fla. 1966) (the burden of proving the nonexistence of genuine triable issue is on the party moving for summary judgment; moving party’s papers should be strictly construed, whereas opposing party’s papers should be liberally construed), cert. denied, 232 So. 2d 181 (Fla. 1969). A court should not grant summary judgment “unless the facts are so crystallized that nothing remains but questions of law.” Moore, 475 So. 2d at 668 (citing Shaffran v. Holness, 93 So. 2d 94 (Fla. 1957) (emphasis added)). “If the evidence raises any issue of material fact, if it is conflicting, if it will permit different reasonable inferences, or if it tends to prove the issues,” it becomes a factual issue to be determined at trial. Moore, 475 So. 2d at 668 (citing Williams v. Lake City, 62 So. 2d 732 (Fla. 1953); Crovella v. Cochrane, 102 So. 2d 307 (Fla. 1st DCA 1958)).

This Court has examined the record and determines that Defendant has sustained its burden. It is apparent from a review of the record that there are no genuine issues of material fact, but only the issue of contract construction, which is a question of law that can be resolved by the Court.

INTERPRETATION OF THE INSURANCE POLICY

“The determination of the extent and nature of an easement granted or reserved in express terms by a deed depends upon a proper construction of the language of the instrument, from an examination of all the material parts thereof, and without consideration of extraneous circumstances where the language is unambiguous.” It is the “duty of a court” to ascertain and effectuate “the intention of the parties and for this purpose it may consider the situation of the property and of the parties, and the surrounding circumstances at the time the instrument was executed; also, a practical construction of the instrument given by the parties themselves by their conduct or admissions will be considered in determining the intent of the parties if the meaning of the instrument is doubtful.” Kotick v. Durrant, 196 So. 802, 804 (Fla. 1940). The interpretation of a written contract is ordinarily a matter of law to be determined by the court. DEC Electric, Inc. v. Raphael Construction Corp., 558 So. 2d 427, 428 (Fla. 1990). A court should interpret a contract in a manner consistent with “reason, probability, and the practical aspect of the transaction between the parties.” Bay Management, Inc. v. Beau Monde, Inc., 366 So. 2d 788, 791 (Fla. 2d DCA) (citing Blackshear Manufacturing Co. v. Fralick, 102 So. 753 (Fla. 1925)).

CONTRACT AMBIGUITY

The threshold issue of whether a contract is ambiguous is a question of law for the court. However, the meaning of an ambiguous contract is a question of fact for the jury. Maccaferri Gabions, Inc. v. Dynateria Inc., 91 F.3d 1431, 1439 (11th Cir. 1996) (applying Florida law), cert. denied, 117 S. Ct. 1430 (1997). Accordingly, it is within this Court’s authority to determine whether the relevant provisions of the insurance policy and the Declaration of Covenants, Conditions and Restrictions (Declaration of Covenants), referenced by the policy are ambiguous in nature. Contractual language is deemed “ambiguous” if it is “of uncertain meaning, and may be fairly understood in more ways than one,” “susceptible of more than one meaning,” or “susceptible of interpretation in opposite ways.” Friedman v. Virginia Metal Products Corp., 56 So. 2d 515, 517 (Fla. 1952). Where either the general language or particular terms used in a contract are “ `ambiguous,’ that is, doubtful as to meaning, or, in the light of other facts, reasonably capable of having more than one meaning so that the one application to the contract in question cannot be ascertained without aid, extrinsic evidence may be introduced to explain the ambiguity.” Id.; See also Blackhawk Heating & Plumbing Co. v. Data Lease Financial Corp., 302 So. 2d 404, 407 (Fla. 1974) (defining “ambiguity”). When contractual provisions are ambiguous, extrinsic evidence should be presented as to the intent of the parties. Hurt v. Leatherby Insurance Co., 380 So. 2d 432, 434 (Fla. 1980).

It is a fundamental rule of contract interpretation that contractual terms will be given their plain meaning in the absence of any evidence that the parties intended the terms to have a special meaning. Where contractual terms are unambiguous, a court must treat the contract as evidence of the meaning of the contract and the intention of the parties thereto. Madson v. Madson, 636 So. 2d 759, 761 (Fla. 2d DCA 1994) (emphasis added) (citing Bingemann v. Bingemann, 551 So. 2d 1228 (Fla. 1st DCA 1989), rev. denied, 560 So. 2d 232 (Fla. 1990)); See also McGhee Interests, Inc. v. Alexander National Bank, 135 So. 545, 547, 548 (Fla. 1931) (where rights and interests of the parties are definitely stated in the contract, these terms should control); Treasure Salvors, Inc. v. Tilley, 534 So. 2d 834, 836 (Fla. 2d DCA 1988) (applying the ordinary rules of contract construction and finding that the contract in question was unambiguous, that the parties’ intentions could be deduced from the face of the contract, and that the trial court erred in admitting parol evidence to elucidate, explain or clarify the intention of the parties).

Although the meaning of language contained in a contract is a factual question, its interpretation is generally a question of law. If an issue of contract interpretation pertains to the intention of the parties, that intention may be ascertained from the written contract as a matter of law. Peacock Construction Company, Inc. v. Modern Air Conditioning, Inc., 353 So. 2d 840, 842 (Fla. 1977). “The intent of the parties to [a] contract should govern the construction of a contract.” American Home Assurance Co. v. Larkin General Hospital LTD., 593 So. 2d 195, 197 (Fla. 1992) (citing Underwood v. Underwood, 64 So. 2d 281 (Fla. 1953)). “To determine the intent of the parties, a court should consider the language in the contract, the subject matter of the contract, and the object and purpose of the contract.” Larkin, 593 So. 2d at 197 (citing Clark v. Clark, 79 So. 2d 426 (Fla. 1955); See also Royal Oak Landing v. Pelletier, 620 So. 2d 786, 788 (Fla. 4th DCA 1993) (when determining the intent of the parties, the best evidence is the plain language of the contract).

The Court determines that the insurance policy and The Declaration of Covenants are not ambiguous and that the plain language of these instruments as well as the intent of the parties thereto must be effectuated.

The Declaration of Covenants created an easement along Telfair Road where the brick wall was built. It is not necessary for a particular form or language to be used in order to create an easement. Rather, “any words clearly showing the intention of the parties to create a servitude on a sufficiently identifiable estate is sufficient.” Hynes v. City of Lakeland, 451 So. 2d 505, 511 (Fla. 2d DCA 1984). Article 2, Section 3 of the Declaration of Covenants pertains to public easements and specifically references the right of the developer to “place, build, erect and/or install wall(s) and/or fence(s) along Telfair Road.” (See Declaration of Covenants, Article 2, Section 3) (emphasis added). Article 3, Section 3 pertains to common areas and indicates that “[t]he only common areas in the subdivision are the easements containing the entry, features, perimeter walls, and drainage easements which contain water retention ponds.” (See Declaration of Covenants, Article 3, Section 3) (emphasis added). Pursuant to this provision, the brick wall at issue constitutes an easement.

Schedule B of the Insurance Policy enumerates certain exceptions to the policy or losses which are not insured. Although paragraph 3 of Schedule B, pertaining to encroachments, was deleted, paragraph 8 regarding easements and paragraph 9 regarding the Declaration of Covenants, are valid provisions. Therefore, by the express terms and plain language of the policy, the Declaration of Covenants and the easements created thereby constitute exceptions which are not covered by the policy. (See Schedule B of Insurance Policy); (See Defendant’s Motion for Summary Judgment at 2); See also American Title Insurance Co. v. Carter, 670 So. 2d 1115, 1117-8 (Fla. 5th DCA 1996) (title insurance company appealed on the ground that the claim was not covered due to an exception in the policy; the court reversed the trial court’s entry of summary judgment for property owners and reasoned that a court cannot rewrite the policy). The Declaration of Covenants was executed by David R. Chadwell and his brother for the purpose of establishing “certain easements, restrictions, covenants and conditions to run with the Property.” Mr. Chadwell and his brother reserved an easement over a portion of the subject property along Telfair Road to “place, build, erect and/or install walls and/or fences.” “As part of the development of the Property, and pursuant to the easement created under the Declaration, [they] constructed and installed a six foot brick wall along Telfair Road within the Property, and a portion of that wall was included in Lot 19 as highlighted on the survey attached as Exhibit B.” The Declaration of Covenants was recorded in the public records of Hillsborough County, Florida on November 15, 1990. (See Affidavit of David R. Chadwell at paras. 3-5) (emphasis added).

The Court must apply the rules of contract construction discussed herein in order to ascertain and effectuate the intent of the parties who executed the Declaration of Covenants, the Chadwells. Upon doing so, the Court concludes that the brick wall was built pursuant to the Declaration of Covenants. Since it was built on an easement created pursuant to the Declaration of Covenants, the brick wall is expressly excluded and is not covered by the insurance policy. Accordingly, there are no genuine issues of material fact which preclude the entry of summary judgment. For all of the foregoing reasons, it is

ORDERED and ADJUDGED that Defendant Attorney’s Title Insurance Fund, Inc.’s Motion for Summary Judgment is GRANTED.

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