Lester v. Old Republic Title Insurance Company

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24-P-1027 Appeals Court

DOUGLAS SCOTT LESTER & another1 vs. OLD REPUBLIC TITLE
INSURANCE COMPANY.

No. 24-P-1027.

Bristol. October 9, 2025. – April 10, 2026.

Present: Ditkoff, D'Angelo, & Wood, JJ.

Real Property, Title insurance, Ownership, Boundary, Deed.
Insurance, Title insurance, Coverage, Defense of
proceedings against insured, Construction of policy.
Contract, Insurance, Construction of contract. Way.
Practice, Civil, Summary judgment, Consumer protection
case, Reconsideration, Amendment. Judgment, Amendment.
Consumer Protection Act, Insurance.

Civil action commenced in the Superior Court Department on
March 4, 2022.

The case was heard by Jackie Cowin, J., on motions for
summary judgment, and motions for reconsideration and to amend
the judgment also were considered by her.

John O. Postl for the plaintiffs.
Shannon F. Slaughter for the defendant.

1 John Tyler Mandeville.
2

D'ANGELO, J. The plaintiffs purchased a piece of property

in Westport in 2013. They also secured a title insurance policy

(policy) from the defendant Old Republic Title Insurance Company

(Old Republic). The policy described the insured property

primarily based on the description offered in the land's deed.

Six years later, the plaintiffs were sued by neighbors in

connection with a stone wall adjacent to the property, and Old

Republic refused to defend the plaintiffs in that suit. A

Superior Court judge determined that the land under the stone

wall was part of the plaintiff's property pursuant to the

derelict fee statute, G. L. c. 183, § 58 (statute). In the

subsequent lawsuit commenced against Old Republic that gave rise

to this appeal, a different Superior Court judge declared that

the defendant did not wrongfully deny coverage and entered

summary judgment for the defendant on all of the plaintiffs'

claims. The judge then denied postjudgment motions by the

plaintiffs for reconsideration and to amend the judgment. We

affirm.

Background. The plaintiffs purchased a property on

Hillcrest Acres Lane in Westport in 2013. In connection with

this purchase, the plaintiffs secured a title insurance policy

from the defendant. The policy described the land which the

defendant contracted to insure, using language derived from the

property's deed. It stated that the insured land was sited "on
3

the northerly side of Hillcrest Acres Lane, so called, (private

way - min 40 feet wide)." The policy also enumerated specific

covered risks and exclusions.

In 2019, the plaintiffs were sued in Superior Court by the

owners of the adjacent lot, the Dromskys, regarding the

plaintiffs' restoration of a stone wall located south of the

metes and bounds of the land as described in both the deed and

the policy (Dromsky action). The plaintiffs filed a claim with

the defendant under the policy to defend them in the Dromsky

action. The defendant denied representation, claiming that the

land under the stone wall was outside the policy's coverage.

On cross motions for summary judgment in the Dromsky

action, a judge entered judgment for the instant plaintiffs on

the claims regarding the stone wall. The judge held that the

plaintiffs owned in fee simple the land under the stone wall, by

operation of the statute.

The plaintiffs filed this suit on March 4, 2022, seeking

declarations that the policy afforded coverage to the land under

the stone wall, that the defendant violated the policy by

denying representation to the plaintiffs in the Dromsky action,

and that the plaintiffs were entitled to reimbursement of all

legal fees spent in defense thereof. The plaintiffs also

asserted claims for breach of contract, breach of the covenant

of good faith and fair dealing, unjust enrichment, and
4

violations of G. L. c. 176D. On cross motions for summary

judgment, a Superior Court judge denied the plaintiffs' motion

for summary judgment and allowed the defendant's cross motion

for summary judgment. The plaintiffs subsequently filed (1) a

motion for reconsideration, claiming that the judge erred in not

applying the statute to the policy's description of insured

land; and (2) a motion to amend the judgment, claiming that

plaintiffs' counsel had been unaware of 940 Code Mass. Regs.

§ 3.16 (1993), and alleging that this regulation created

liability for the defendant under G. L. c. 93A. Both motions

were denied.

Discussion. 1. Summary judgment. The plaintiffs

challenge the entry of summary judgment for the defendant,

arguing that the judge erred by holding that the policy did not

insure the land under the stone wall, pursuant both to the plain

terms of the policy and by operation of the statute. We discern

no error.

Summary judgment is appropriate if, "viewing the evidence

in the light most favorable to the nonmoving party, all material

facts have been established and the moving party is entitled to

judgment as a matter of law" (citation omitted). Dorchester

Mut. Ins. Co. v. Miville, 491 Mass. 489, 492 (2023). See

Mass. R. Civ. P. 56 (c), as amended, 436 Mass. 1404 (2002). "If

the moving party establishes the absence of a triable issue, the
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party opposing the motion must respond and allege specific facts

which would establish the existence of a genuine issue of

material fact in order to defeat a motion for summary judgment"

(citation omitted). Barbetti v. Stempniewicz, 490 Mass. 98, 116

(2022). Our review of a judge's grant of summary judgment is de

novo. Miville, supra.

We also review the judge's interpretation of the terms of

the policy de novo. See Balles v. Babcock Power Inc., 476 Mass.

565, 571 (2017). See also Save-Mor Supermkts., Inc. v. Skelly

Detective Serv., Inc., 359 Mass. 221, 226 (1971) (rules of

contract interpretation apply generally to interpretation of

insurance policy). "When contract language is unambiguous, it

must be construed according to its plain meaning." Balles,

supra at 571-572. And in determining "whether the language at

issue is ambiguous, we look both to the contested language and

to the text of the contract as a whole." Id. at 572.

a. The terms of the policy. i. Description of coverage.

Exhibit A of the policy is a legal description of the insured

property, describing that land as located "on the northerly side

of Hillcrest Acres Lane, so called, (private way - min 40 feet

wide)." Thus, the language detailing the boundaries of the

property to be insured, and agreed to by all contracting

parties, unambiguously frames that coverage as ceasing at the

border of Hillcrest Acres Lane; more specifically, a Hillcrest
6

Acres Lane that is at least forty feet wide. The land under the

stone wall lies beyond the described boundaries of the insured

property.

The plaintiffs invite us to apply the presumption codified

in the statute2 to the terms of the policy, asserting that doing

so would expand the boundaries of the policy to cover the land

under the stone wall. We decline to so broaden the statute, as

this expansion would contradict the statute's language and

purpose.

Prior to enactment of the statute, courts applied a common-

law presumption that "a deed bounding on a way conveys the title

to the centre of the way if the grantor owns so far." Rowley v.

2 The derelict fee statute, G. L. c. 183, § 58, states in
full:

"Every instrument passing title to real estate abutting a
way, whether public or private, watercourse, wall, fence or
other similar linear monument, shall be construed to
include any fee interest of the grantor in such way,
watercourse or monument, unless (a) the grantor retains
other real estate abutting such way, watercourse or
monument, in which case, (i) if the retained real estate is
on the same side, the division line between the land
granted and the land retained shall be continued into such
way, watercourse or monument as far as the grantor owns, or
(ii) if the retained real estate is on the other side of
such way, watercourse or monument between the division
lines extended, the title conveyed shall be to the center
line of such way, watercourse or monument as far as the
grantor owns, or (b) the instrument evidences a different
intent by an express exception or reservation and not alone
by bounding by a side line."
7

Massachusetts Elec. Co., 438 Mass. 798, 803 (2003), quoting

Gould v. Wagner, 196 Mass. 270, 275 (1907). By enacting the

statute in 1971, the Legislature superseded this common-law

presumption with "an even stronger presumption in favor of

vesting title in abutters." Rowley, supra at 804. That

statutory presumption stands "unless the instrument of

conveyance evidences a different intent" (quotation and citation

omitted).3 Id. The purpose behind this "authoritative rule of

construction" was to "quiet title to sundry narrow strips of

land," the fee interest of which prior grantors had "unknowingly

failed to convey" (citation omitted). Id. at 803.

The statute's language, zeroing in as it does on the

interpretation of any "instrument passing title to real estate"

(emphasis added), G. L. c. 183, § 58, does not mandate a

corollary presumption be applied to title insurance policies.

Application of the statute is limited to instruments passing fee

interests to real estate abutting a way, as we will not

contravene the plain text of a statute to contradict the plain

terms of a contract.

ii. Exclusions. In what appears to be a drafter's

abundance of caution, the exclusion mandates the same result.

The policy's Schedule B excludes coverage for disputes regarding

3The statute recognizes two exceptions, neither relevant
here. G. L. c. 183, § 58.
8

"[t]itle to and rights of the public and others entitled thereto

in and to those portions of the insured premises lying within

the bounds of Hillcrest Acres Lane and the adjoining streets and

ways." The land under the stone wall is within those bounds.

In assessing this exclusion, we are mindful that "an

exclusionary clause is construed narrowly," Finn v. National

Union Fire Ins. Co. of Pittsburgh, Pa., 452 Mass. 690, 695

(2008); and, where ambiguity exists, "the insured is entitled to

the benefit" of the more favorable interpretation (citation

omitted). Hakim v. Massachusetts Insurers' Insolvency Fund, 424

Mass. 275, 281 (1997).

The exclusion in Schedule B expressly concerns land "lying

within the bounds of Hillcrest Acres Lane." We accept the

Dromsky action judge's conclusion that the summary judgment

record in that case established Hillcrest Acres Lane as "a

private, single-lane road approximately ten (10) to twelve (12)

feet in width." We also accept that the land under the stone

wall is located "north of [Hillcrest Acres Lane]" and "south of

. . . the metes and bounds description . . . of the property."

Furthermore, we acknowledge the potential for confusion and

incorrect assumptions arising from a policy which excludes land

within the bounds of a way and a stone wall that visually does

not seem to be within those bounds at all. Schedule B

nevertheless excludes coverage of the land under that stone
9

wall. This is because the policy, per its plain and unambiguous

terms, construes Hillcrest Acres Lane to be at least forty feet

wide, and as neither party disputes, the land under the stone

wall lays inside that width.

Thus, we cannot endorse the plaintiffs' contention that

"reasonably intelligent persons" reading the policy as a whole

would interpret Schedule B's description of the road to tacitly

ascribe a width inconsistent with the width expressly stated in

the policy's only other reference to that same road (citation

omitted). Basis Tech. Corp. v. Amazon.com, Inc., 71 Mass. App.

Ct. 29, 36 (2008). See id. ("[p]rovisions are not ambiguous

simply because the parties have developed different

interpretations of them").

This lack of ambiguity also defeats the plaintiffs'

implication that they, like other "consumers," "would think that

their title insurance policies protect all the land that they

own." An argument that the reasonable expectations of the

insured mandate a particular interpretation of the policy's

terms will not survive where "there is neither an ambiguity in

the policy, nor are the terms in the policy 'bizarre or

oppressive.'" LaFrance v. Travelers Ins. Co., 32 Mass. App. Ct.

987, 988 (1992), quoting Markline Co. v. Travelers Ins. Co., 384

Mass. 139, 142 (1981).
10

"When the words of a contract are clear, they control, and

we must construe them according to their plain meaning, in the

context of the contract as a whole." Lieber v. President &

Fellows of Harvard College (No. 2), 488 Mass. 816, 823 (2022).

And "[a]lthough an exclusionary clause is construed narrowly,

[w]e are not free to revise it" (quotation and citations

omitted). Finn, 452 Mass. at 695. Schedule B excludes the land

under the stone wall.

iii. Covered risk number twenty-three. The plaintiffs'

argument, that "Covered Risk No. 23" contains ambiguity and must

therefore be resolved against the defendant, is unpersuasive.

That provision promises coverage where "[Plaintiffs] are forced

to remove [their] existing structures which encroach onto an

Easement or over a building set-back line, even if the Easement

or building set-back line is excepted in Schedule B." The

policy's stated definitions of "Easement" ("the right of someone

else to use the Land for a special purpose") and "Land" ("the

land or condominium unit described in paragraph 3 of [Exhibit] A

and any improvements on the Land which are real property"),

render unambiguous that Covered Risk No. 23 applies exclusively

to structures located on the insured land described in Exhibit A

-- which does not include the land under the stone wall. See

Balles, 476 Mass. at 571.
11

The land under the stone wall and at issue in the Dromsky

action was outside the bounds of the property as described in

the policy, and inside the bounds of Hillcrest Acres Lane as

described in the policy. To restate, the land under the stone

wall is unambiguously nowhere to be found in the policy's

coverage. The judge correctly declared that the defendant did

not owe the plaintiffs a defense in the Dromsky action.

c. Other claims. As the policy did not cover the land

under the stone wall, we discern no error in the judge's

declaration that the defendant did not owe the plaintiffs a

defense in the Dromsky action. Furthermore, the judge correctly

held that the defendant did not commit a breach of contract, did

not commit a breach of the covenant of good faith and fair

dealing, was not unjustly enriched, and did not violate G. L.

c. 176D. We therefore affirm summary judgment for the defendant

on those claims.4

2. Postjudgment motions. The plaintiffs' claim that the

judge abused her discretion in denying their motions for

reconsideration and to amend the judgment is likewise

unavailing.

A motion for reconsideration may be granted in the

discretion of the judge upon a showing of "changed

4 For that reason, the plaintiffs' request for attorney's
fees is denied.
12

circumstances" or "particular and demonstrable error in the

original ruling or decision." Audubon Hill S. Condominium Ass'n

v. Community Ass'n Underwriters of Am., Inc., 82 Mass. App. Ct.

461, 470 (2012). The judge's determination that the statute did

not apply to the policy was not error, and so there was no abuse

of discretion in denying this motion.

We likewise review the judge's ruling on the plaintiffs'

motion to amend judgment for an abuse of discretion, and also

find none here. R.W. Granger & Sons, Inc. v. J & S Insulation,

Inc., 435 Mass. 66, 79 (2001). Even if the plaintiffs could

effectively argue for amendment on the basis that counsel was

"unaware" of 940 Code Mass. Reg. § 3.16,5 the plaintiffs cannot

substantiate a claim under G. L. c. 93A.6 The plaintiffs assert

that the defendant should have disclosed that "the land insured

5 Title 940 Code Mass. Regs. § 3.16, states in relevant
part:

"Without limiting the scope of any other rule, regulation
or statute, an act or practice is a violation of M. G. L.
c. 93A, § 2, if: . . .

"(2) Any person or other legal entity subject to this act
fails to disclose to a buyer or prospective buyer any fact,
the disclosure of which may have influenced the buyer or
prospective buyer not to enter into the transaction
. . . ."

6 General Laws c. 93A, § 2 (a), states:

"Unfair methods of competition and unfair or deceptive acts
or practices in the conduct of any trade or commerce are
hereby declared unlawful."
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under the [p]laintiffs' policy was not coextensive with the land

they owned in fee simple by virtue of the Derelict Fee Statute,"

arguing here that the defendant "is or should be aware" of the

statute. However, the duty to disclose under c. 93A extends

only to "material facts known to a party at the time of a

transaction." Underwood v. Risman, 414 Mass. 96, 99 (1993).

There is no liability based on "a suspicion or a likelihood,

rather than knowledge." Id. at 100. There is thus no colorable

dispute that the defendant failed to disclose a material fact,

and the judge's denial of the motion to amend judgment was not

an abuse of discretion.

Conclusion. The judgment is affirmed. The order denying

the motion for reconsideration is affirmed. The order denying

motion to amend the judgment is affirmed.

So ordered.
WOOD, J. (concurring). I agree with the majority that the

title insurance policy (policy) in this case insured only the

land "on the northerly side of Hillcrest Acres Lane, so called,

(private way - min 40 feet wide)," which is north of the stone

wall that is the subject of the lawsuit at issue here. Exhibit

A of the policy describes the insured land more fully as "Lot 13

on 'Definitive Plan Westlook Farms in Westport, Mass. . . .

[W]hich said plan is recorded in the . . . Registry of Deeds in

Plan Book 111, Page 170." An exceptionally diligent property

owner could view this plan in the registry of deeds and see a

graphic representation of the described property. Because that

is sufficient to resolve this case, I concur in the result.

Nevertheless, I think it is understandable that the

appellant property owners may have had a legitimate reason to be

confused about the scope of their policy for two reasons.

First, both the policy and the plan relied on "Hillcrest Acres

Lane, so called, (private way - min 40 feet wide)" to describe

the southern boundary of the appellants' land. That Hillcrest

Acres Lane is both imaginary and wider than the real, ten-foot-

wide Hillcrest Acres Lane that lies within its boundaries and

south of the stone wall. In short, the plaintiffs might have

believed that the policy described the insured property as

extending to the real Hillcrest Acres Lane. Second, pursuant to

the derelict fee statute (statute), G. L. c. 183, § 58, the
2

plaintiffs actually owned the land on which the stone wall was

located, in fee simple. Accordingly, I think the plaintiffs

might reasonably have assumed, albeit erroneously, that the

policy would cover all of their land, including the stone wall.

I believe this case identifies a problem worth addressing.

I also think there is a relatively straightforward solution. I

suggest that the Legislature or the Commissioner of the Division

of Insurance should follow the lead of California and enact a

legal requirement that, "[w]hen a title company insures an

owner's title to property, by implication it likewise insures

the presumed ancillary titles and privileges attached to the

property and assumes liability for defects in those titles and

privileges." Murray v. Title Ins. & Trust Co., 250 Cal. App. 2d

248, 252 (1967). In this case, for example, Old Republic should

have been aware that there was a narrow strip of land between

the plaintiffs' deeded land and the actual way -- Hillcrest

Acres Lane -- that ran along its southern border, and so, when

the plaintiffs acquired their land, they also acquired ancillary

title to that narrow strip of land pursuant to the statute. Cf.

id. at 256-257 ("Coverage of title insurance extends to

reasonably anticipated implications of ownership which attach to

the insured property by reason of the record"). Indeed, this

seems especially reasonable to assume given that title insurance

companies are in the business of insuring title to land.
3

This solution is consistent with the purpose of the

statute: "to meet a situation where a grantor has conveyed away

all of his land abutting a way or stream, but has unknowingly

failed to convey any interest he may have in land under the way

or stream, thus apparently retaining his ownership of a strip of

the way or stream." Rowley v. Massachusetts Elec. Co., 438

Mass. 798, 803 (2003), quoting 1971 House Doc. No. 5307. The

statute sought to quiet title to these "sundry narrow strips of

land that formed the boundaries of other tracts." Rowley,

supra. Quieting title, in turn, establishes clear ownership of

land and an incentive to maintain it. Requiring that title

insurance policies extend to ancillary title provided by the

statute would complement this incentive.

The dispute at the center of this case illustrates the

value of requiring that title insurance policies extend to

ancillary property adjacent to public ways. The plaintiffs

wanted to repair a stone wall that had been on the southern edge

of their property since at least 1938. But their neighbors sued

to prevent this based on an assertion of a private easement,

which was ultimately deemed invalid. The plaintiffs were

engaged in precisely the sort of behavior that public policy

should encourage. Owners of property along public ways should

not be discouraged from improving that property by fear of the
4

costs of defending against spurious challenges to their title by

neighbors.