Summary
holding the "'accurate survey' exception" was enforceable as it was "clearly expressed in the policy and was not inconspicuous"
Summary of this case from Johnston v. Conn. Attorneys Title Ins. Co.Opinion
Docket No. 68442.
Decided June 4, 1984.
Berschback, Kerwin, Locicero, Chilingirian Brennan (by Jack C. Chilingirian), for plaintiff.
Bebout, Potere, Cox Hughes, P.C. (by Arthur R. Cox), for defendant.
Plaintiff appeals as of right from an order entered by the circuit court granting summary judgment for defendant Lawyers Title Insurance Corporation. In 1967, plaintiff entered into a land contract with defendant Theodore M. David, not a party on appeal, for the purchase of certain property in Novi Township. Pursuant to the land contract, David obtained title insurance for the property with plaintiff as the beneficiary. The deed for the property was conveyed to plaintiff in 1977. The title insurance policy in Schedule A described the insured property, in accordance with the description in plaintiff's deed, as follows:
"Lots 92 to 98 inclusive, Howell's Walled Lake Subdivision, a part of West 1/2 of Northwest 1/4 of Section 11, Town 1 North, Range 8 East, Novi Township, Oakland County, Michigan, according to the plat thereof as recorded in Liber 42, Page 36 of Plats, Oakland County Records."
Schedule B of the insurance policy provided in pertinent part as follows:
"This Policy does not insure against loss or damage by reason of the following:
* * *
"2. Unrecorded water, mineral and oil rights, unrecorded easements and claims of easement, boundary line disputes not disclosed of record and any matters which would be disclosed by an accurate survey and inspection of the premises." (Emphasis added.)
The property purchased by plaintiff included a single building. In 1981, plaintiff became aware of a survey prepared that same year by some municipal engineers revealing that part of the building on plaintiff's property extended beyond the boundary line of plaintiff's property, encroaching upon the Novi Road right-of-way. Plaintiff then brought suit against defendant, among others, seeking a declaratory judgment that defendant was liable for damages in connection with the encroaching building.
Defendant's motion for summary judgment did not specify what subsection of GCR 1963, 117.2 the motion was brought under. Attached to the motion was an affidavit, as well as a copy of the 1981 survey and a copy of the title insurance policy, both of which had also been attached to the complaint filed by plaintiff. Plaintiff in his answer to defendant's motion for summary judgment attached an affidavit and an earlier survey which had been given to him by his seller at the time of sale of the property; this earlier survey, while indicating the location of iron stakes and monuments, did not include or sketch out the location of the building. The order of summary judgment entered by the circuit court states that it was granted under GCR 1963, 117.2(1). However, it is clear from the parties' submission and the court's consideration of documents other than the pleadings that the basis for summary judgment was subrule 117.2(3) since under subrule 117.2(1) only the pleadings are to be considered, and hence we will treat the motion as having been granted based on subrule 117.2(3). Todd v Biglow, 51 Mich. App. 346, 349-350; 214 N.W.2d 733 (1974), lv den 391 Mich. 816 (1974).
GCR 1963, 117.2(3) provides that summary judgment may be granted if there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law. A court is to consider the pleadings, affidavits, depositions, and any other documents submitted to it. GCR 1963, 117.3. The motion should be granted only if the court is satisfied that there is some deficiency in the opponent's claim that cannot be overcome, and the opposing party is to be given the benefit of any reasonable doubt as to whether any genuine issue of fact exists. Rizzo v Kretschmer, 389 Mich. 363, 372; 207 N.W.2d 316 (1973). However, the party opposing the motion does have an obligation to make a showing that a genuine issue of fact does exist. Rizzo, supra, pp 371-372.
We find that summary judgment for defendant was properly granted since there was no genuine issue that the insurance policy exclusion for "any matters which would be disclosed by an accurate survey" applied in the present case so as to exempt defendant from any liability to plaintiff in connection with the encroaching building. Neither below nor on appeal has plaintiff challenged the accuracy of the 1981 survey showing part of the building to be beyond the boundary line of plaintiff's property and encroaching upon the adjoining right-of-way. The earlier survey submitted by plaintiff in his answer to the motion did not serve to dispute the accuracy of the 1981 survey or to create a genuine issue since it did not at all reflect the location of the building, and plaintiff makes no claim that according to the placement of the stakes and monuments in the earlier survey the encroachment of the building on the adjoining right-of-way would not be disclosed. Unlike Waterview Associates, Inc v Lawyers Title Ins Corp, 30 Mich. App. 687; 186 N.W.2d 803 (1971), lv den 384 Mich. 835 (1971), where there was a genuine issue as to what an accurate survey would have disclosed, here there was no dispute that the 1981 survey was accurate and in accordance with the description of the insured property in the insurance policy, and the 1981 survey provided a proper basis for granting defendant summary judgment since it established that an accurate survey of plaintiff's property disclosed the encroachment of the building.
The remaining issue is plaintiff's contention that even if there is no genuine issue that the "accurate survey" exception applies in the present case, still defendant is not entitled to judgment as a matter of law because that exception in the insurance policy should be deemed unenforceable. We cannot agree. Plaintiff does not claim that the policy coverage was misrepresented to him, and the exclusion for "any matters which would be disclosed by an accurate survey" was clearly expressed in the policy and was not inconspicuous. Defendant met its duty to clearly express limitations on coverage in the policy. Kast v Citizens Mutual Ins Co, 125 Mich. App. 309, 311; 336 N.W.2d 18 (1983). We reject plaintiff's contention that the exclusion should be deemed void as against public policy; we perceive no unconscionability in permitting, or public policy basis for prohibiting, title insurers from excluding from coverage, if clearly expressed, matters which would be revealed by an accurate survey. Such an exclusion is not so broad that it renders the insurance policy a meaningless sham, but rather merely places on the insured the burden of obtaining an accurate survey of the property the insured is purchasing and the responsibility for any defects which that survey discloses.
We likewise reject plaintiff's contention that the "accurate survey" exception should be deemed unenforceable because the title insurance policy represented an adhesion contract. Title insurance policies without exceptions are also available, although at a higher premium. Thus, plaintiff was not without a choice and could have bargained with his seller for the provision of a title insurance policy without exceptions. Furthermore, even if this insurance policy represented an adhesion contract over which plaintiff had no power to bargain, we must reject plaintiff's claim that he had a "reasonable expectation" of coverage, Zurich Ins Co v Rombough, 384 Mich. 228, 233; 180 N.W.2d 775 (1970), in view of the unambiguous and clearly set forth "accurate survey" exclusion in the policy and the absence of any misrepresentation of the policy to him. Also, even where a contract is adhesive in the sense that one party lacks bargaining power, still the contract terms are enforceable if they are substantively reasonable, Allen v Michigan Bell Telephone Co, 18 Mich. App. 632, 637-638; 171 N.W.2d 689 (1969), lv den 383 Mich. 804 (1970), and we find the "accurate survey" exclusion substantively reasonable. Finally, we decline plaintiff's invitation to extend the doctrine of implied warranty and Uniform Commercial Code provisions relative to implied warranties to title insurance contracts.
Affirmed. Costs to defendant-appellee.