IDC Properties, Inc v. Chicago Title Insurance Company

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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND

IDC PROPERTIES, INC.,
Plaintiff,

Vv. C.A. No. 09-632-JJM-PAS

CHICAGO TITLE INSURANCE
COMPANY,
Defendant.

44.4 _4_4 4 _4_4_4 4

MEMORANDUM AND ORDER
JOHN J. McCONNELL, JR., United States District Chief Judge.

Defendant Chicago Title Insurance Company (“Chicago Title”) issued a title
insurance policy (“Policy”) to Plaintiff IDC Properties, Inc. (“IDC Properties”) in
connection with IDC Properties’ acquisition of rights, title, and interests in Goat
Island South, a waterfront condominium development in Newport, Rhode Island.
This real estate has spawned many cases and controversies. Here, IDC Properties
seeks the $10 million Policy limit because of the alleged loss of its rights, title, and
interests in the North, West, and South Unit parcels in Goat Island South
resulting from Rhode Island Supreme Court rulings. Chicago Title denied
coverage, and IDC Properties sued. Chicago Title sought summary judgment after
discovery closed, which the Court denied. ECF No. 65. Seven years later (to the
day), Chicago Title again seeks summary judgment. ECF No. 134. IDC Properties
objects (ECF No. 137) and Chicago Title replies. ECF No. 139.

In summary, the Court finds that Chicago Title did not breach its contract

over the North Unit because IDC Properties never lost its interest to exercise its

development rights. 	IDC simply did not timely exercise its right consistent with
the law. As for the South and West Units, material issues of fact exist so summary
judgment should not enter as to the claims for losses related to those two units.
I. 	FACTS
The facts involved in this half-century old property saga about an island1 in
the 	City-by-the-Sea 	have 	been 	well 	covered 	in 	the 	annals 	of 	American
jurisprudence.2 To put this opinion in context for the reader, the Court will recite a
few of the relevant facts here.
After 	buying 	Goat 	Island 	in 	1968 	from 	the 	Redevelopment 	Agency 	of
Newport, Rhode Island for $168,000, Globe Manufacturing Co. (“Globe”) separated
the property into three lots and built a hotel (Lot #1), a marina (Lot #2), and
residences (Lot #3) (comprising two apartment complexes, America and Capella),
and 19 free-standing homes (Harbor Houses). 	Lot #3, along with the three
1
Specifically, this case involves Goat Island in Newport, Rhode Island.
“Narragansett Indians called the island ‘Nante Sinunk’ and sold it in 1658. 	Early
N e w p o r t 	c o l o n i s t s 	u s e d 	t h e 	i s l a n d 	a s 	a 	g o a t 	p a s t u r e . ”
https://en.wikipedia.org/wiki/Goat_Island_(Rhode_Island)(last visited May 21, 2021).
This island transformed over the years from a pirate burial cemetery to Fort George,
to a British Army fort and location of the “first shots in resistance to British authority
in America in 1764,” to the Navy Torpedo Factory which for 100 years produced many
of the Navy’s torpedoes for World War I and World War II, to its redevelopment in the
late 1960’s as a hotel, residential, and commercial center.
Id.	2
See, e.g.,
Am. Condo. Ass’n, Inc., v. IDC, Inc., 844 A.2d 117 (R.I. 2004) (
America
I);
Am. Condo. Ass’n, Inc., v. IDC, Inc., 870 A.2d 434 (R.I. 2005) (
America II);
In re
IDC Clambakes, Inc., 484 B.R. 540 (D.R.I. 2012),
aff’d, 727 F.3d 58 (1st Cir. 2013),
aff’d, In re IDC Clambakes, Inc., 852 F.3d 50 (1st Cir. 2017);
IDC Properties, Inc. v.
Goat Island South Condo. Ass’n, Inc., 128 A.3d 383 (R.I. 2015);
IDC Clambakes, Inc.
v. Carney as Tr. of Goat Island Realty Tr., 246 A.3d 927 (R.I. 2021);
Commonwealth
Land Title Ins. Co. v. IDC Properties, Inc., 524 F. Supp. 2d 155 (D.R.I. 2007),
aff’d, 547
F.3d 15 (1st Cir. 2008).
2
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residential complexes (America, Capella, and Harbor), also had a commercial area,
and “three largely unimproved areas.” 	Lot #3 was the largest lot comprising 23.3
acres.
In the mid to late 1980’s, Globe decided it wanted to sell off some of Lot #3,
and to preserve the vacant areas for future development or sale. 	Because of the
City of Newport’s frontage requirements,3 all of Lot #3 needed to remain a single
lot 	so 	Globe 	turned 	Lot 	#3 	into 	the 	“Goat 	Island 	South 	– 	A 	Waterfront
Condominium” (“GIS Condominium”) under the Rhode Island Condominium Act,
R.I. Gen. Laws § 34-36.1 (“the Act”). 	The Declaration of Condominium established
the Master Unit and divided Lot #3 into six defined sub-condominium units of the
GIS Condominium (the three residential areas, and the three undeveloped areas).
“[T]he declarant purported to create five “Master Units” in the condominium.
These are the “America Condominium” Unit, the “Capella Unit,” “Development
Unit 	# 	1” 	(“West 	Unit”), 	the 	“Harbor 	Houses 	Condominium” 	Unit, 	and 	the
“Individual Unit” (“South Unit”).”
America II, 870 A.2d at 439.
Three months later the original condominium declaration was amended to
reserve certain development rights, “including the right to convert the Reserved
Area [North Unit] to a master unit and to construct improvements on it or to
withdraw it completely from the GIS Condominium.”
	IDC Clambakes, Inc., 246
3
All three lots abutted the single road onto Goat Island. 	If Lot #3 were
subdivided, the new subdivisions would not abut a public road, violating Newport law
requiring each parcel to have frontage on a public road.
3
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A.3d at 930. 4 It provided that the development rights would expire on December
31, 1994.
Id. The declaration also
provided 	for 	“SPECIAL 	DECLARANT 	AND 	DEVELOPMENT
RIGHTS.” Specifically, it reserved to the declarant through December
31, 1994, *** the right “to withdraw the [North Unit] from the Goat
Island South Condominium,” the right to convert the North Unit to a
master unit, and, if so converted to a master unit, “the right, through
December 31, 1994, to construct improvements on the [North Unit]
and 	submit 	the 	[North 	Unit] 	to 	a 	Declaration 	of 	Condominium,
thereby creating a condominium containing not more than 315 units.”
America II, 870 A.2d at 436.
By the early 1990’s, Globe had decided to divest itself of its interest in Goat
Island, so it created Island Development Corporation, and transferred all of its
interest in Goat Island to the new corporation. 	By 1994, Island Development
Corporation “had not yet exercised its development rights set forth in the master
declaration.”
	America I, 844 A.2d at 122;
America II, 870 A.2d at 441. 	Because of
the 	looming 	deadline, 	Island 	Development 	Corporation 	tried 	to 	extend 	its
development rights by passing the Third Amendment on April 27, 1994, which
purported to extend the development rights to the Reserved Area for another five
years until December 31, 1999.
In August 1994, Thomas Roos, the grandson of an original Globe founder,
bought Island Development Corporation, which included the hotel, marina, and the
GIS Condominium. 	Island Development Corporation transferred the hotel to IDC
Hotel, Inc, the marina to IDC Marina, Inc., and the GIS Condominium to Plaintiff
4
Because at the time the Act did not allow land-only (unimproved)
condominium units, Globe filed an amendment to the original declaration (“FAR
Declaration”) defining each unit as airspace only.
4
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IDC Properties. 	Two days after purchasing Goat Island, IDC Properties bought a
$10 million title insurance Policy from Chicago Title that is the subject of this
litigation. 5 The Policy insured all of IDC Properties’ right, title, and interest in the
property listed in Schedule A.
Concern was raised soon after Mr. Roos’ purchase about the way GIS
Condominium 	adopted 	the 	Third 	Amendment 	that 	sought 	to 	extend 	the
development rights for five years until December 31, 1999. 	ECF No. 135 ¶ 21
(“[M]y lawyers clearly were dissatisfied with the Third Amendment.”) 	So, GIS
Condominium purported to adopt a Fifth and Sixth Amendment6 at the end of 1994
in an attempt to remedy the perceived flaws in the Third and Fourth Amendments.
The Fifth Amendment sought again to extend the development rights over the
Reserved Area. 	The Sixth Amendment purported to exercise IDC Properties’ right
to convert the Reserved Area into the North Unit. 	“That amendment would
convert the Reserved Area into a master limited common element whose above
airspace would constitute a Master Unit with associated development rights. 	The
converted area would be known as the North Development Unit.”
	America I, 844
A.2d at 125. 	Both the Fifth and Sixth Amendments were adopted after Chicago
Title issued the title insurance.
With the propriety of the Amendments unclear, IDC Properties built a
multi-million-dollar wedding and banquet facility (the Newport Regatta Club) on
the North Unit.
America I, 844 A.2d at 135.
5
Chicago Title had twice before insured the GIS Condominium.	6
The Fourth Amendment involved the South Unit.
America I, 844 A.2d at 123.
5
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Litigation ensued in state court between sub-condominium unit owners
(America, Capella, and Harbor) and IDC Properties. 	The sub-condominium unit
owners 	“maintained 	that 	the 	defendants 	had 	improperly 	extended 	their
development rights on certain areas of common property within the condominium
complex and that because these development rights actually had expired, title to
the common property now vested in the plaintiffs in fee simple.”
	Id. at 119. 	The
Rhode Island Supreme Court held that the voting structure of the FAR Declaration
did not follow the Act, and therefore, the Third, Fourth, and Fifth Amendments
were void ab initio. 	It determined that IDC Properties’ “development rights” had
run 	on 	December 	31, 	1994 	and 	that 	IDC 	Properties’ 	failure 	to 	exercise 	its
“development rights” by the 1994 deadline converted the North, South, and West
Master Units into Master common elements, thereby stripping IDC Properties of
its title ownership to those Master Units and, as a result, the highly lucrative
Newport Regatta Club at the North Unit.
	Id. at 132-33. 	Deciding that the land
was common property, the Rhode Island Supreme Court concluded that “when the
associated development rights expired, so also did all of the declarant’s rights in
the master units. 	Accordingly, the hearing justice should have declared that title
to the disputed property vested in the individual unit owners in fee simple.”
	Id. at
133.
The court later clarified its opinion, holding that:
In the master declaration, the declarant did not attempt to create a
unit on the parcel now referred to as the North Unit. 	Instead, it
reserved development rights with respect to what then was called the
Reserved 	Area. 	IDC 	Properties 	attempted 	to 	exercise 	these
development rights on December 29, 1994, two days 	before they
6
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expired, by executing and recording the sixth amendment to the
declaration of condominium. 	In this amendment, IDC Properties
attempted to create a unit in the airspace above the land described as
the North Unit, while the land itself became a master limited common
element. 	The 	amendment, 	however, 	complied 	with 	neither 	the
substantial completion requirement of the Act in effect in 1988 nor the
1991 	amendment 	providing 	for 	land-only 	units. 	Thus, 	IDC
Properties again failed to establish a valid unit in the North Unit. Its
development rights since have expired and, without a valid unit, it
cannot exercise any rights to make improvements or alterations.
America II, 870 A.2d at 441–42. 	The Rhode Island Supreme Court concluded by
defining the status of the property in 2005.
We conclude, therefore, that those portions of airspace in the South,
West, 	and 	North 	parcels 	that 	defendants 	and 	their 	predecessors
intended to be master units are common elements because no units
were created therein. 	The land underlying these “units” likewise is
part of the common elements. 	Because no units were validly created,
no master limited common elements appurtenant to them could be
created. 	Consequently, 	these 	portions 	of 	the 	condominium 	always
were, and remain, common elements.
*****
These master units, so-called, always were common elements, subject
to the exercise of said development rights, and title rested with the
unit owners in common ownership from the creation of the condominium.
Id. at 442-43. Because the Rhode Island Supreme Court declared the Master Units
and Reserved Area as common elements and expired development rights, IDC
Properties lost its development right interests and sought compensation from its
title insurance company.
When Chicago Title denied coverage, IDC Properties filed this lawsuit in
2009. 	ECF No. 1-1. 	The parties undertook extensive discovery. 	Chicago Title
moved for Summary Judgment. 	ECF No. 46. 	The Court denied the motion in
2012. ECF No. 65. The parties filed substantive Motions in Limine that the Court
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decided.
	See ECF No. 105, Oct. 27-29, 2014 Text Orders. 	The parties filed other
Motions for Summary Judgment (ECF Nos. 113, 114) that the Court denied.
	See
Nov. 19, 2015 Text Order. In September 2020, Chicago Title filed this third Motion
for Summary Judgment (ECF No. 134), that the Court now resolves.
II. ARGUMENT
This motion turns on resolution of a few issues: the state of IDC Properties’
ownership interest when Chicago Title issued the Policy, what the Policy covered,
and finally whether IDC Properties was damaged by its insured interest being
vested in another. 	The Court will first analyze title insurance coverage for the
North Unit because it is the largest, and then turn to the South and West Units.
A. NORTH UNIT / RESERVED AREA
1. 	Ownership
When the Policy was issued on October 21, 1994, the FAR Declaration and
the Third Amendment defined IDC Properties’ interests. 	No other Amendments
were in effect before Chicago Title issued the Policy.
The FAR Declaration established a condominium consisting of six defined
parcels, five of which were Master Units. 	One parcel – the “Reserved Area” – was
not a Master Unit. 	The FAR Declaration also established “Special Declarant and
Development Rights.” As to the Reserved Area, it granted IDC Properties through
December 31, 1994:
x 	the right “to withdraw the [Reserved Area] from the Goat Island South
Condominium,”
8
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x 	the right “to convert the [Reserved Area] to a Master Unit,”
x 	“and, 	if 	so 	converted 	to 	a 	Master 	Unit, 	the 	right 	… 	to 	construct
improvements on the [Reserved Area] and submit the [Reserved Area] to a
Declaration of Condominium, thereby creating a condominium containing
not more than 315 units.”
America II, 870 A.2d at 436.
At a meeting of the condominium association on April 27, 1994, it passed the
Third Amendment. The Third Amendment purported to extend until December 31,
1999, the special declarant rights to withdraw the unit, to convert the Reserved
Area to a Master Unit, and if so to construct residences.
	America I, 844 A.2d at
122–23.
1. 	Policy
“The Policy insures against loss or damage sustained or incurred by the
insured by reason of:
1. 	Title to the estate or interest described in Schedule A being vested
other than as stated therein;
2. 	Any defect in or lien or encumbrance on the title;
3. 	Unmarketability of the title;
4. 	Lack of a right of access to and from the land.”
ECF No. 135-6 at 2.
Schedule 	A 	(5.1) 	states: 	“All 	right, 	title, 	and 	interest 	in 	the 	following
Condominiums: (a) the individual unit, developmental unit #1, and development
and 	special 	declarant 	rights 	in 	and 	to 	Goat 	Island 	South 	– 	A 	Waterfront
Condominium, as created by the Declaration of Condominium dated as of January
9
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12, 1988 recorded with the Land Evidence Records of the City of Newport in Book
115 at Page 138. . .”
Id. at 6.
2. 	Analysis of the Claim
In its first Motion for Summary Judgment decision, this Court found that
the “development and special declarant rights” covered by the Policy included those
for the Reserved Area even though the Reserved Area was not a Master Unit when
Chicago Title issued the Policy. IDC Properties urges the Court to stop its analysis
there, claiming that Chicago Title seeks a do-over, or reconsideration of this
Court’s decision even though there is no basis to support reconsideration. 	The
Court disagrees with IDC Properties.
The question before the Court now on the North Unit is not whether the
Policy covered IDC Properties’ development rights (the Court is not reconsidering
its 	prior 	ruling). 	The 	Policy 	covers 	IDC 	Properties 	Special 	Declarant 	and
Development Rights for the Reserved Area. 	The question now before the Court is
whether IDC Properties’ development rights for the Reserved Area as defined in
the FAR Declaration when the Policy was issued were ever damaged, injured, or
lost.
A review of the record before the Court establishes that there is no material
factual dispute about what IDC Properties owned when Chicago Title issued the
Policy and what it lost that the Policy covered.
10
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x 	IDC Properties owned the right to withdraw the Reserved Area from
the condominium. 	While it never lost that right, IDC Properties never exercised
that right and never withdrew the Reserved Area. 	As Chicago Title states in its
papers, “Why IDC failed to avail itself of this obvious solution to its predicament is
an unsolved mystery . . .” ECF No. 134-1 at 12.
x 	IDC Properties owned declarant and development rights to convert
the Reserved Area into a Master Unit by December 31, 1994. IDC Properties never
lost the right to convert the Reserved Area into a Master Unit. In fact, it was able
to convert the Reserved Area into a Master Unit by filing the Sixth Amendment.7
The evidence is unrefuted, and the Rhode Island state court decisions have
so held, that IDC Properties lost ownership of the North Unit not because of a title
defect 	in 	its 	declarant 	and 	development 	rights, 	but 	because 	it 	had 	built 	no
buildings on the North Unit when it filed the Sixth Amendment. 	This attempted
conversion 	was 	illegal 	because 	to 	establish 	a 	Master 	Unit, 	the 	Act 	requires
substantial completion or at a minimum some detailed planning. 	IDC Properties’
attempt to create a unit without complying with the Act was not an insured loss
under the Policy because its title to the Special Declarant and Development Rights
was not affected. 	That IDC Properties did not properly exercise its unchallenged
right to convert the Reserved Area into a Master Unit does not mean that IDC
7
No one questioned IDC Properties’ unilateral right to record the Sixth
Amendment exercising its development right to convert the Reserved Area.
	See
America I, 844 A.2d at 125 n.12 (“The plaintiffs do not challenge the validity of the
Sixth Amendment to the Master Declaration, conceding that the master declaration
granted the declarant the right to make such a conversion on or before December 31,
1994.”).
11
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Properties’ title to that right was defective. 	IDC Properties “attempted to exercise
these development rights…by executing and recording the [S]ixth [A]mendment;”
however, 	the 	amendment 	did 	not 	comply 	with 	the 	substantial 	completion
requirement of the Act, so IDC and its predecessors failed to create the North Unit.
America II, 870 A.2d at 440-42. 	IDC Properties never lost the right to timely
convert; 8 it just did not exercise its right correctly – and there is no insurance
against that. 9
Because IDC Properties did not lose any title to the estate or interest in the
property it owned when the Policy was issued, there is no evidence that Chicago
Title breached the contract with IDC Properties by failing to pay compensation
under the Policy for the loss of development rights in the Reserved Area. 	The
Court therefore GRANTS Chicago Title’s Motion for Summary Judgment as to the
North Unit.
8
An analogy that might help explain the Court’s reasoning – imagine that a
person owned an option to buy a piece of land and that right to the option was insured.
And further imagine that when the option owner went to exercise the option, it was
not able to obtain financing, and therefore unable to purchase the land. When the
option owner complained to her insurance company that she lost the option, the
insurance company denied the claim because the option owner did not lose the option,
it simply did not effectuate the option properly. Similarly, here, IDC Properties did
not lose its development rights, it simply did not effectuate that right appropriately
– i.e., it exercised its development rights by converting the reserved Area into a
Master Unit when it has not substantially completed construction on it. 	Title
insurance only insured that the right existed, it did not guarantee that IDC Properties
would effectuate that right appropriately.	9
Even if the failure to effectively convert the Reserved Area into a Master Unit
was a title defect, Chicago Title correctly argues in the alternative, that there is no
coverage because the loss was caused by a defect IDC Properties, the insured, created
and therefore Policy exclusion 3(a) applies. 	The First Circuit acknowledged the
applicability of this exclusion in a case involving another title insurance company.
Am. Title Ins. Co. v. East West Fin., 16 F.3d 449, 455 (1st Cir. 1994).
12
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A. SOUTH and WEST UNITS
Chicago Title admits that it insured title to both the South Unit and the
West Unit and further admits that IDC Properties incurred a title defect as to
those two Master Units. 	It now claims, however, that IDC Properties has suffered
no damages as a matter of law from the title defect. 	IDC Properties responds by
asserting that it suffered significant losses when it lost title to these two Master
Units.
As to the South Unit, Chicago Title’s contention stems from its assertion
that the FAR Declaration did not reserve development rights to the South Unit,
see
America 	II, 	870 	A.2d 	at 	436, 	and 	therefore 	would 	need 	to 	use 	the 	R.I.
Condominium Act to build on the unit, which would have required the almost-
impossible feat of obtaining unanimous consent from the 154 individual unit
owners. 	As to the West Unit, while the FAR Declaration did reserve some
development rights, Chicago Title claims that IDC Properties did not timely act on
its development rights, rendering the unit valueless.
IDC 	Properties 	counters 	that 	the 	right 	to 	construct 	buildings 	and
improvement on both the South and West Units was “inherent in and coterminous
with its title in and to those Master Units.” ECF No. 137 at 30. It asserts that its
right to improve the units was not limited by any deadline. 	It claims that when it
lost title to the South and West Units, IDC Properties also lost its right to
construct improvements on those pieces of property – more specifically residential
properties. 	Its experts place the value of the loss at $540,000 for the South Unit
and $560,000 for the West Unit as of December 1997.
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IDC Properties always had, and never lost, its right to improve these two
units. 	The improvement rights were separate and distinct from the development
rights in the FAR Declaration and were not bound by the time limits in the
declaration. 10 The right to build a single-family residence on these two properties
was part of the improvement rights in its title. 	So, when it lost title to the South
and West Units, IDC Properties also lost its right to construct improvements on
those pieces of property – more specifically, residential properties. A residence on
waterfront property located on a private island in Newport has value and the loss
of that right results in damages that could be compensable in a breach of contract
claim. 11
Because 	there 	are 	disputed 	issues 	of 	material 	fact 	underlying 	IDC
Properties’ claims relating to the South and West Units, the Court DENIES
Chicago Title’s Motion for Summary Judgment as to the South and West Units.
I. 	CONCLUSION
10
The Rhode Island Supreme Court began its decision by discussing the
differences between “development rights” and “improvement rights” under the Act.
America II, 870 A.2d at 437-38. 	“Development rights,” the Court explained, were
specific statutory rights created by the Act and related solely to a declarant’s right to
add or remove real estate to or from a condominium.
	Id. at 438. 	The Act required
these rights to be bounded by a specific time limit on their exercise.
Id. “Improvement
rights,” on the other hand, related to a condominium unit owner’s inherent right to
improve their unit.
	Id. 	The Act did not require these rights to be bound by any
specific time limit on their exercise.
Id.	11
IDC Properties also points out that its loss of title was not limited to the
Master Unit; it also lost the approximately twenty percent ownership interests in the
Master Common Elements of the GIS Condominium, appurtenant to the South and
West Units.
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Viewing the evidence in the light most favorable to IDC Properties, Chicago
Title has established that there are no genuine issues of material fact and that it is
entitled to judgment as matter of law as to coverage for the North Unit; but has not
established that as to coverage for the South and West Units. Summary judgment
is thus appropriate as to coverage for the North Unit but not appropriate as to
coverage for the South and West Units. 	Therefore, the Court GRANTS IN PART
AND DENIES IN PART Defendant Chicago Title Insurance Company’s Motion for
Summary Judgment. ECF No. 134.
IT IS SO ORDERED.
_________________________________
John J. McConnell, Jr.
United States District Chief Judge
May 21, 2021
15
IT IIIIIIIIIS SO ORDERED.
__	________	_________	________________________________________________________________	_________________________ _______________
Jo	JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ hn J. McConnell, Jr.
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