Lauritzen v. First American Title Insurance Co.

2018 UT App 58
THE UTAH COURT OF APPEALS
BRUCE W. LAURITZEN ,
Appellant,
v.
F IRST A MERICAN TITLE I NSURANCE C OMPANY ,
Appellee.
Opinion
No. 20160717-CA
Filed April 5, 2018
Fifth District Court, St. George Department
The Honorable James L. Shumate
No. 120500181
Karra J. Porter and J.D. Lauritzen, Attorneys
for Appellant
Ronald G. Russell, Royce B. Covington, and Jeffery
A. Balls Attorneys for Appellee
JUDGE R YAN M. HARRIS authored this Opinion, in which J UDGES
GREGORY K. O RME and DIANA H AGEN concurred.
HARRIS, Judge:
¶1 	Bruce W. Lauritzen purchased five lots of undeveloped
real property in Hurricane, Utah based on a description in a
recorded subdivision plat map. Lauritzen then purchased title
insurance for these lots through First American Title Insurance
Company (First American). Subsequently, Lauritzen learned that
the plat map had a material defect: one of his lots partially
overlapped 	with 	another 	parcel. 	Eventually, 	the 	plat 	was
amended by shrinking the overlapping lot and by imposing
additional development requirements on all of Lauritzen’s lots.
Lauritzen then made a claim on his title insurance policy, and
filed 	this 	lawsuit 	after 	First 	American 	denied 	his 	claim.
Eventually, the district court granted summary judgment to First

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20160717-CA 	2 	2018 UT App 58
American on all of Lauritzen’s claims, and Lauritzen appeals.
We affirm the bulk of the district court’s ruling, but reverse the
district court’s decision to the extent it determined that no
insurance coverage exists for damages caused by the lot overlap,
and we remand for further proceedings.
BACKGROUND
¶2 	On April 2, 2007, the Sunset Ridge Phase 3 Subdivision
Plat map (the Original Plat) was recorded with the Washington
County Recorder’s Office. At some point soon thereafter, the
Washington County Recorder’s Office issued a notice that the
Original Plat was defective because at least one of the lots (Lot
54) depicted on the Original Plat overlapped with an adjacent
parcel of land.
¶3 	Later, on April 19, 2007, several lots depicted on the
Original 	Plat 	were 	conveyed 	to 	a 	holding 	company 	(the
Company) via warranty deed. The deed did not contain a metes
and bounds description of the lots, but instead referred to the
Original Plat, indicating that the lots were being conveyed as
they were represented “according to the official plat thereof,
recorded in the office of the Washington County Recorder.” On
June 7, 2007, Lauritzen purchased five lots (the Lots) from the
Company, which conveyed the Lots to him by a warranty deed.
Lauritzen’s deed also did not describe the metes and bounds of
the Lots, but instead conveyed “Lot 54, 64, 76, 77 & 80, Sunset
Ridge Phase 3, according to the official plat thereof recorded in
the office of the Washington County Recorder.”
¶4 	After 	acquiring 	the 	Lots, 	Lauritzen 	purchased 	title
insurance from First American, effective April 19, 2007. The
insurance policy (the Policy), in pertinent part, insured Lauritzen
against loss or damage incurred by reason of “[a]ny defect in or
lien or encumbrance on the title; [or] . . . [u]nmarketability of the
title” to the Lots.

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¶5 	Sometime in 2008, Lauritzen learned that the Washington
County Recorder’s Office had rejected the Original Plat due to
the 	presence 	of 	the 	overlap, 	and 	that 	“consent” 	would 	be
required before development in the subdivision could proceed.1
Indeed, because of the issues with the Original Plat, Hurricane
municipal 	authorities 	refused 	to 	issue 	Lauritzen 	building
permits for the Lots. After discovering the problem, Lauritzen
contacted one of First American’s insurance agents to obtain a
copy of the Policy, and to see what needed to be done to rectify
the problem with the plat. On one occasion, Lauritzen met in
person with First American’s agent, who assured Lauritzen that
the problem would soon be resolved.
¶6 	Eventually, a solution was reached that required making
Lot 54 slightly smaller (by approximately 344 square feet) than it
had been on the Original Plat. In addition, the solution included
new setback requirements and restrictions on construction—
none of which were included in the Original Plat—that affected
all of Lauritzen’s Lots. All of the affected landowners, including
Lauritzen, eventually gave their consent to a new plat map (the
Amended Plat) that reflected these changes, and in September
2008 the Amended Plat was recorded with the Washington
County Recorder’s Office.
¶7 	On August 14, 2009, Lauritzen made a claim with First
American alleging that the title to the Lots conveyed to him by
the 	warranty 	deed 	was 	defective 	and 	unmarketable. 	First
American denied the claim, and Lauritzen then filed this lawsuit
against First American, alleging that there was a defect in his
title to the Lots and seeking damages from First American
pursuant to the Policy. As the litigation progressed, Lauritzen
asserted that he had been damaged because: (1) the change from
1. The record does not disclose any details about whose consent
(other than Lauritzen’s) was required, although it does reveal
that both (a) Lauritzen eventually consented to the Amended
Plat and (b) all required consents were eventually obtained.

Lauritzen v. First American Title Insurance Co.
20160717-CA 	4 	2018 UT App 58
the Original Plat to the Amended Plat had decreased Lot 54 in
size; (2) Lauritzen had been unable to receive a building permit
on any of his lots until the Amended Plat was recorded; (3) the
new setback and construction requirements that applied to all of
the Lots had depressed their value; and (4) all of the Lots had
been valueless for the period of time prior to the approval of the
Amended Plat.
¶8 	Eventually, both parties moved for summary judgment.
In its motion, First American argued that it was entitled to
judgment as a matter of law on several grounds. First, it argued
that the Original Plat was merely a descriptive tool and was not
a part of the warranty deed initially conveying the lots to
Lauritzen. Second, First American argued that Lauritzen’s title to
the Lots was not unmarketable. Third, First American argued
that Lauritzen’s claim was not timely and that First American
was 	thus 	absolved 	of 	any 	potential 	liability. 	Fourth, 	First
American argued that Lauritzen had not proven any damages.
The district court denied Lauritzen’s motion and granted First
American’s.2 Lauritzen appeals the district court’s grant of First
American’s motion.
2. After briefing and oral argument, the district court took the
motions under advisement. A few weeks later, the district court
issued a brief, two-line memorandum decision stating simply
that Lauritzen’s motion was denied and that First American’s
motion was granted. The district court’s ruling included no
explanation of the reasons or grounds for its decision. Had this
type of an order been issued by a district court in certain other
contexts (for instance, where the court is obligated to make
findings of fact on an issue), we would not hesitate to simply
remand the case for the district court to explain its reasoning. We
decline to do so here, however, because we may affirm a district
court’s decision on any ground apparent from the record, see
Bailey v. Bayles, 2002 UT 58, ¶ 13, 52 P.3d 1158, and because our
standard of review, when reviewing a district court’s summary
(continued…)

Lauritzen v. First American Title Insurance Co.
20160717-CA 	5 	2018 UT App 58
ISSUE AND STANDARD OF REVIEW
¶9 	Lauritzen raises one issue on appeal: whether the district
court erred in granting summary judgment for First American. A
district court “shall grant summary judgment if the moving
party shows that there is no genuine dispute as to any material
fact and the moving party is entitled to judgment as a matter of
law.” Utah R. Civ. P. 56(a). We review a district court’s summary
judgment ruling for correctness. Fire Ins. Exch. v. Oltmanns, 2018
UT 10, ¶ 7.
ANALYSIS
I. Coverage under the Title Insurance Policy
¶10 	The first matter that we must address is whether, and to
what extent, there is coverage under the terms of the Policy for
the events described in Lauritzen’s complaint. Pursuant to the
terms of the Policy, First American insured Lauritzen against
loss or damage incurred by reason of “[a]ny defect in or lien or
encumbrance on the title; [or] . . . [u]nmarketability of the title”
to the Lots. Lauritzen asserts that both of these phrases are
implicated in this case and provide the basis for a determination
that coverage exists. Lauritzen argues that the title to all of the
Lots was “unmarketable” because, at the time the warranty deed
was executed, 	the 	Original 	Plat 	had 	been 	rejected 	and the
Amended Plat placed new restrictions on the Lots. Lauritzen
also argues that title to all of the Lots was “defective” because
the description of Lot 54 in the Original Plat overlapped with
another piece of property. We address each of these arguments
in turn.
(…continued)
judgment ruling, is de novo. However, our review in this case
would have benefitted from an explanation of the district court’s
reasoning, and we encourage trial judges, even in the summary
judgment context, to explain the reasoning for their decisions.

Lauritzen v. First American Title Insurance Co.
20160717-CA 	6 	2018 UT App 58
A. 	Marketability of Title
¶11 	Lauritzen argues that there is coverage under the Policy
because 	he 	sustained 	losses 	as 	the 	result 	of 	the
“unmarketability” of the title he received by way of the warranty
deed. Here, Lauritzen asserts that his title to all of the Lots was
unmarketable 	because, 	during 	the 	time 	period 	prior 	to the
recording of the Amended Plat, he could not obtain a building
permit for any of the Lots, and because, even after the recording
of the Amended Plat, his property was subject to added setback
requirements and other development restrictions, limiting his
ability to use them. Lauritzen asserts that, as a “reasonable
purchaser,” he would not have purchased the Lots had he
known in advance about these issues and therefore his title is
“unmarketable.” 	The 	district 	court 	correctly 	rejected 	this
argument, at least with respect to all issues other than the Lot 54
overlap, because Lauritzen espouses too broad an understanding
of the meaning of “unmarketability” of title.
¶12 	When 	determining 	the 	scope 	of 	coverage 	under 	an
insurance contract, our starting point is the language of the
Policy itself. See, e.g., Quaid v. U.S. Healthcare, Inc., 2007 UT 27,
¶ 10, 158 P.3d 525. The Policy insures Lauritzen “against loss or
damage . . . sustained or incurred . . . by reason of . . .
[u]nmarketability of the title.” The Policy contains an internal
definition of “unmarketability of title,” as follows: “an alleged or
apparent matter affecting the title to the land, not excluded or
excepted from coverage, which would entitle a purchaser of the
[property] . . . to be released from the obligation to purchase by
virtue 	of 	a 	contractual 	condition 	requiring 	the 	delivery 	of
marketable title.” Thus, both the phrase itself—“marketability of
title”—as well as its definition—“an alleged or apparent matter
affecting the title to the land”—are restricted to issues affecting
the title to the property.
¶13 	In the real property context, “title” is “[t]he union of all
elements (as ownership, possession, and custody) constituting
the legal right to control and dispose of property.” Title, Black’s

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20160717-CA 	7 	2018 UT App 58
Law Dictionary (10th ed. 2014); see also Joyce Palomar, 1 Patton
and 	Palomar 	on 	Land 	Titles 	§ 	1 	(3d 	ed. 	2017) 	(noting 	that
“[d]ictionaries state that ‘title’ means the right to or ownership of
property,” and stating that “title” therefore may “relate either to
ownership itself or to the acts, instruments, or records by which
ownership has been acquired or by which it may be proven”); 73
C.J.S. Property § 48 (2018) (stating that “title” is “that which is the
foundation of ownership. . . and . . . which constitutes a just
cause of exclusive possession”); 51 Am. Jur. 2d Liens § 2 (2d ed.
2018) (stating that “title . . . constitutes the legal right to control
and dispose of property”).3 Thus, the plain language of the
Policy, 	as 	defined 	by 	legal 	dictionaries 	and 	encyclopedias,
indicates that insurance coverage for “unmarketability of the
title” is limited to issues regarding Lauritzen’s right to own or
possess the property in question.
¶14 	Moreover, a restrictive definition of “marketability of
title” that limits use of the phrase to issues with ownership or
possession of property is consonant with prevailing judicial
interpretations 	of 	the 	phrase. 	In 	one 	recent 	case, 	a 	federal
appellate court was asked to construe the exact same contractual
language at issue here: the same phrase (“unmarketability of the
title”) and the same internal definition of that phrase. See Fidelity
Nat’l Title Ins. Co. v. Woody Creek Ventures, LLC, 830 F.3d 1209,
1215–19 (10th Cir. 2016) (applying Colorado law). That court
held that “unmarketability of the title” referred to “defects
affecting rights of ownership . . . rather than defects affecting the
physical condition or use of the covered property.” Id. at 1218.
The court canvassed case law from many jurisdictions, and
determined 	that 	“the 	majority 	view 	. 	. 	. 	emphasize[s] 	the
differences between marketability of title and marketability of
land.” Id. at 1217 (alterations in original) (citation and internal
3. The term “title” is similarly defined in the personal property
context. See, e.g., Utah Code Ann. § 41-1a-102(62) (LexisNexis
Supp. 2017) (defining “title” in the Motor Vehicle Act as “the
right to or ownership of a vehicle”).

Lauritzen v. First American Title Insurance Co.
20160717-CA 	8 	2018 UT App 58
quotation marks omitted). It quoted a leading insurance treatise,
as follows:
[T]he 	fact 	that 	a 	given 	property 	suffers 	from
‘economic’ lack of marketability, which relates to
physical 	conditions 	affecting 	the 	use 	of 	the
property or other non-title matters, is not relevant
to 	title 	insurance 	coverage. 	In 	essence, 	defects
which merely diminish the value of the property,
as opposed to defects which adversely affect a clear
title 	to 	the 	property, 	will 	not 	render 	title
unmarketable within the meaning and coverage of
a policy insuring against unmarketable title. This is
often expressed by the principle that one can hold
perfect title to land that is valueless and one can
have “marketable title” to land while the land itself
is unmarketable.
Id. (quoting 11 Couch on Insurance § 159:7 (3d ed. Supp. 2015));
see 	also 	id. 	(stating 	that 	“when 	no 	reasonably 	foreseeable
challenge 	to 	title 	or 	to 	the 	right 	of 	possession 	and 	quiet
enjoyment of the property can be demonstrated, [the] title will
be determined to be marketable” (alteration in original) (citation
and internal quotation marks omitted)).
¶15 	And we agree with the Woody Creek court that most courts
draw a distinction between marketability of title, on the one
hand, and economic marketability, on the other hand, and limit
the concept of “marketability of title” to questions of ownership
and possession of property. See, e.g., Chicago Title Ins. Co. v.
Investguard, Ltd., 449 S.E.2d 681, 683 (Ga. Ct. App. 1994) (stating
that “a difference exists between economic lack of marketability,
which relates to physical conditions affecting the use of the
property, 	and 	title 	marketability, 	which 	relates 	to 	defects
affecting legally recognized rights and incidents of ownership”);
Whaley v. First Am. Title Co. of Mid-West, No. W2002-01940-COA-
R3-CV, 2004 WL 316978, at *3 (Tenn. Ct. App. Feb. 19, 2004)
(noting that a buyer possesses marketable title so long as he

Lauritzen v. First American Title Insurance Co.
20160717-CA 	9 	2018 UT App 58
owns the property “free of any competing claims of ownership
and 	free 	of 	liens 	or 	encumbrances,” 	and 	holding 	that 	an
“improper subdivision of Plaintiffs’ property does not render the
title 	unmarketable” 	but 	rather 	“constitutes 	a 	defect 	in 	the
physical condition of the property that makes the property
economically difficult to sell”); Sonnett v. First Am. Title Ins. Co.,
2013 WY 106, ¶ 13, 309 P.3d 799 (Wyo. 2013) (stating that “[a]n
individual can hold clear title to a parcel of land, although the
same 	parcel 	is 	valueless 	or 	considered 	economically
unmarketable because of some restriction or regulation on its
use” (citation and internal quotation marks omitted)); see also 43
Am. Jur. 2d Insurance § 518 (2018) (noting that “[a] difference
exists between economic lack of marketability, which relates to
physical conditions affecting the use of the property, and title
marketability, 	which 	relates 	to 	defects 	affecting 	legally
recognized rights and incidents of ownership”); Joyce Palomar, 1
Patton and Palomar on Land Titles § 1 (3d ed. 2017) (stating that “a
phrase such as . . . ‘marketable title’ describes the character of
one’s ownership”). The relevant issues were nicely summarized
by the California Supreme Court:
Although it is unfortunate that plaintiff has been
unable to use her lots for the building purposes she
contemplated, it is our view that the facts which
she pleads do not affect the marketability of her
title to the land, but merely impair the market
value of the property. She appears to possess fee
simple title to the property for whatever it may be
worth; 	if 	she 	has 	been 	damaged 	by 	false
representations in respect to the condition and
value of the land her remedy would seem to be
against others than the insurers of the title she
acquired. It follows that plaintiff has failed to state
a cause of action under the title policy.
Hocking v. Title Ins. & Trust Co., 234 P.2d 625, 629–30 (Cal. 1951).

Lauritzen v. First American Title Insurance Co.
20160717-CA 	10 	2018 UT App 58
¶16 	Utah law is not to the contrary. In Mostrong v. Jackson, 866
P.2d 573 (Utah Ct. App. 1993), we determined that a landowner’s
title to a piece of property was not unmarketable merely because
it may have lacked “lawful access.” Id. at 578. We cited a case
from another jurisdiction in determining that “access problems
do not impair the right to possess property and that only defects
related to title as guaranteed to the purchaser and affecting
market value will render title unmarketable.” Id. (emphasis
added) (citing Sinks v. Karleskint, 474 N.E.2d 767, 770 (Ill. App.
Ct. 1985)). Thus, the holding of Mostrong is entirely in line with
the narrow conception of “marketability of title” shared by the
vast majority of courts to discuss the issue.4
¶17 	Despite 	this, 	Lauritzen 	cites 	hopefully 	to 	Mostrong,
especially to its introductory definition of “marketable title.” In
4. On a few occasions, our supreme court has referred to the
concept of marketability of title. Although the references are
often brief and in passing, we are aware of nothing in any of
those cases that would lead us to believe that our supreme court
espouses a more expansive view of “marketability of title” than
our sister states do. See Kelley v. Leucadia Fin. Corp., 846 P.2d 1238,
1243–44 (Utah 1992) (defining “marketable title” as title that may
be “freely made the subject of resale and that can be sold at a fair
price to a reasonable purchaser,” and then determining that a
“boundary dispute” affecting the property “constituted a cloud
on the title and adversely affected the value and marketability of
the property” (citation and internal quotation marks omitted));
see also In re Hoopiiaina Trust, 2006 UT 53, ¶ 28, 144 P.3d 1129
(noting in passing that wild deeds could “render[] the property
unmarketable”); Holmes Dev., LLC v. Cook, 2002 UT 38, ¶¶ 26–29,
48 	P.3d 	895 	(noting 	that 	the 	title 	company 	cured 	an
“unmarketability” claim by establishing the title in its insured by
litigation); Booth v. Attorneys’ Title Guar. Fund, Inc. 2001 UT 13,
¶¶ 32–35, 20 P.3d 319 (holding that a bankruptcy arrangement,
which did not touch a particular piece of property, did not
render title to that property unmarketable).

Lauritzen v. First American Title Insurance Co.
20160717-CA 	11 	2018 UT App 58
that case, we stated that title is “marketable” if it “may be freely
made the subject of resale . . . at a fair price to a reasonable
purchaser or mortgaged to a person of reasonable prudence as
security for the loan of money.” Id. at 577 (internal quotation
marks omitted) (quoting Kelley v. Leucadia Fin. Corp., 846 P.2d
1238, 1243 (Utah 1992)). Further, we stated that “[t]he issue of
whether marketable title exists may be a question of law or a
mixed 	question 	of 	law 	and 	fact, 	depending 	on 	the
circumstances,” 	and 	does 	not 	depend 	on 	“whether 	title
ultimately 	might 	be 	adjudged 	free 	of 	defects” 	but 	rather
“whether a reasonably prudent [person], familiar with the facts
and apprised of the question of law involved, would accept the
title in the ordinary course of business.” Id. at 578 (second
alteration in orginal) (citations and internal quotation marks
omitted). Lauritzen argues, based on this language, that a jury
question 	is 	presented 	in 	this 	case 	as 	to 	whether 	he, 	as 	a
“reasonable purchaser,” would have purchased the Lots had he
known in advance about the issues with the Original Plat and
the Amended Plat.
¶18 	We disagree, at least as to all issues other than the Lot 54
overlap, 	because 	in 	order 	for 	the 	“reasonable 	purchaser”
standard to come into play in the first place, there must be some
defect that actually goes to ownership or possession (e.g., title)
about which a reasonable purchaser might need to make a
decision. In this case, however, the only one of the issues that
Lauritzen has identified that has anything to do with the right to
own or possess any of the Lots is the Lot 54 overlap issue. With
regard to that issue, the overlapping legal description resulted in
someone 	else—the 	adjoining 	landowner—having 	a 	claim 	to
ownership and possession of at least part of Lot 54, and therefore
“title” to Lot 54 was implicated. Because title is placed at issue, it
becomes relevant to ask whether a reasonable purchaser would
elect not to accept title to Lot 54 if informed of the overlap issue,
and we agree with Lauritzen that a jury question is presented on
that point.

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¶19 	All of the non-overlap issues Lauritzen raises, by contrast,
concern Lauritzen’s right to put the property to various uses, or
implicate the convenience with which Lauritzen might be able to
develop 	the 	Lots. 	These 	issues 	are 	classic 	“economic
marketability” issues that do not come within the definition of
the phrase “unmarketability of the title” of the Lots. Because
there are no true “title” issues raised here (other than the overlap
issue), it is irrelevant whether or not Lauritzen would have
purchased the Lots had he known about potential restrictions on
development.
¶20 	The Lot 54 overlap issue did implicate the marketability
of Lauritzen’s title to Lot 54, and to that extent the district court
erred by ruling that, as a matter of law, there were no issues that
concerned marketability of title. However, all of the other issues
Lauritzen raises are not concerns regarding the title to the lots, as
opposed to the economic advantage Lauritzen intended to gain by
purchasing them. Accordingly, the district court did not err by
granting First American’s motion for summary judgment with
respect to the rest of Lauritzen’s claims that the titles to the Lots
were unmarketable.5
B. 	Title Defects
¶21 	Lauritzen also argues that there is coverage under the
Policy because he sustained losses as the result of a “defect in”
5. First American also alleges, as an affirmative defense, that
diminutions in property value caused by governmental property
restrictions 	(e.g., 	zoning 	requirements, 	building 	permit
requirements) were also explicitly excepted from coverage by a
policy “exclusion.” Because we determine that the economic
development issues did not concern the marketability of (or a
defect in) Lauritzen’s titles and thus were not covered by the
Policy in the first place, we have no need to examine whether the
language of a coverage exclusion took them further outside the
scope of the Policy’s coverage.

Lauritzen v. First American Title Insurance Co.
20160717-CA 	13 	2018 UT App 58
the title he received by way of the warranty deed. While First
American argued in the district court that there was no defect
whatsoever in any of the titles conveyed by the warranty deed,
First American now concedes that Lauritzen’s title to Lot 54 was
defective due to the overlap. Thus, at least as far as the Lot 54
overlap issue is concerned, there is now no dispute that a “defect
in” the title exists that is covered by the Policy and that would
prevent 	the 	entry 	of 	summary 	judgment 	in 	favor 	of 	First
American on all of Lauritzen’s title defect claims.
¶22 	Lauritzen, however, argues that the “defect” in his title is
not limited to the Lot 54 overlap issue. Instead, Lauritzen argues
that the titles to all five of his Lots were defective, asserting that,
because “[t]he [P]lat was expressly incorporated in the [deed’s]
legal description of all five [L]ots,” all of the Lots were subjected
to the same “legal claims or disputes,” causing the title to all of
the Lots to be defective. We are unpersuaded.
¶23 	As an initial matter, we agree with Lauritzen’s assertion
that the Original Plat’s description of the Lots was incorporated
by reference into the warranty deed. “When lands are granted
according to an official plat of a survey, the plat itself, with all its
notes, lines, descriptions and landmarks, becomes as much a
part of the grant or deed by which they are conveyed . . . as if
such descriptive features were written out on the face of the
deed or grant itself.” Barbizon of Utah, Inc. v. General Oil Co., 471
P.2d 	148, 	149–50 	(Utah 	1970). 	Because 	the 	warranty 	deed
referred to the Original Plat to specify the property Lauritzen
was purchasing, 	the 	Original 	Plat’s description 	of 	the 	Lots
became as much a part of that warranty deed as if it was written
on the deed’s face. This conclusion is especially necessary in
cases like this one, where but for the incorporated plat, the
warranty 	deed 	otherwise 	contained 	no 	description 	of 	the
boundaries of the Lots.
¶24 	However, 	while 	Lauritzen 	is 	correct 	about 	the 	legal
import of the warranty deed’s reference to the Original Plat, the
implications of this conclusion cut against Lauritzen’s argument

Lauritzen v. First American Title Insurance Co.
20160717-CA 	14 	2018 UT App 58
that there was some sort of title “defect” regarding the other four
Lots. 	Both 	parties 	agree 	that 	there 	has 	never 	been 	any
discrepancy or inaccuracy in the manner in which the other four
Lots are described in the Original Plat. The physical boundaries
of the other four Lots did not change with the recording of the
Amended Plat. Because the description of the Lots included in
the Original Plat was incorporated into the warranty deed as if
those descriptions were written on the face of the deed itself, the
deed properly (and without defect) conveyed title to every lot
that was accurately described in the Original Plat. See Ault v.
Holden, 2002 UT 33, ¶ 26, 44 P.3d 781 (noting that “a warranty
deed conveys title so long as the deed’s description of the
property is ‘sufficiently definite . . . to identify the property it
conveys’” (ellipsis in original) (quoting Colman v. Butkovich, 556
P.2d 503, 505 (Utah 1976)). There is no evidence in the record
that, after the conveyance to Lauritzen, any person or entity
(other than 	Lauritzen) 	claimed 	an 	ownership 	or 	possessory
interest in any portion of the other four Lots. First American is
therefore correct in its assertion that, because Lot 54 was the only
lot described in the Original Plat that was affected by the
overlap, the title to Lot 54 was the only lot conveyed to Lauritzen
in the warranty deed whose title was in any way “defective.”
¶25 	Accordingly, the district court erred when it granted
summary judgment in First American’s favor on Lauritzen’s
claim that his title to Lot 54 was defective, but the court did not
err in determining as a matter of law that the title to the other
four Lots was free of defect.6
6. Lauritzen also argues that title to his Lots was “vested other
than as stated” on the Original Plat, due to the Lot 54 overlap
issue. Lauritzen’s argument is correct as to the Lot 54 overlap
issue, and for reasons elsewhere stated, we herein determine that
coverage exists under the Policy for damages caused by the Lot
54 overlap issue. We do not perceive Lauritzen’s argument that
his title “vested other than as stated” to even apply to any of the
(continued…)

Lauritzen v. First American Title Insurance Co.
20160717-CA 	15 	2018 UT App 58
II. Affirmative Defenses
¶26 	While First American acknowledges that Lauritzen’s title
to Lot 54 was defective, First American raises a number of
affirmative defenses, which it contends bar Lauritzen from any
recovery under the Policy as a matter of law. Specifically, First
American argues that: (1) Lauritzen’s claims were untimely
because Lauritzen did not notify First American of the title
defect until after the Amended Plat was recorded; (2) Lauritzen’s
consent to the Amended Plat cured the problems with the
Original Plat, and thereby mitigated any damages Lauritzen
might claim; and (3) Lauritzen failed to present evidence of
damages. We find none of these arguments persuasive, at least
not as a matter of law on summary judgment.
A. 	The Untimeliness Defense
¶27 	First American argues that it was entitled to summary
judgment 	because 	Lauritzen’s 	claims 	were 	untimely. 	First
American alleges that Lauritzen violated the terms of the Policy
by failing to notify First American of any problem with the
Original Plat until after the Amended Plat had already been
recorded. First American maintains that this failure to notify
First American in a timely manner prejudiced its ability to
potentially cure Lauritzen’s title problem. Accordingly, First
American alleges that its categorical denial of coverage was
appropriate. See State Farm Mutual Auto. Ins. Co. v. Green, 2003
UT 48, ¶¶ 29–32, 89 P.3d 97 (noting that an insurance company
may deny coverage for lack of timely notice if “the insurer [is]
prejudiced by” it).
¶28 	However, it is undisputed that Lauritzen contacted one of
First American’s insurance agents regarding the problems with
(…continued)
other development-related issues Lauritzen raises, because they
do not have anything to do with vesting of his title.

Lauritzen v. First American Title Insurance Co.
20160717-CA 	16 	2018 UT App 58
the Original Plat shortly after learning of the problems himself,
and long before the filing of the Amended Plat. While First
American asserts that Lauritzen’s conversations with its agent
were not particular enough to put First American on notice of
Lauritzen’s claims, it is undisputed that Lauritzen asked to
obtain a copy of the Policy, asked First American’s agent what
was “going on” with respect to the problems with the Original
Plat, and received an assurance from First American’s agent in a
personal meeting that the problem with the plat would be taken
care of. In light of this undisputed evidence, it was inappropriate
to enter summary judgment in favor of First American on this
affirmative defense.
B. 	The “Cure” Defense
¶29 	First 	American 	next 	argues 	that 	it 	was 	entitled 	to
summary judgment because Lauritzen’s consent to the recording
of the Amended Plat “cured” any problem with the Original
Plat. However, at oral argument First American conceded that
Lauritzen’s consent to the Amended Plat would not in fact have
obviated all of the damages Lauritzen sustained as a result of the
overlap on Lot 54. Because the title to Lot 54 is the only part of
Lauritzen’s 	title 	we 	have 	determined 	was 	defective 	and/or
unmarketable 	and 	therefore 	covered 	by 	the 	Policy, 	First
American’s 	concession 	essentially 	surrenders 	this 	defense.
Lauritzen’s consent to the recording of the Amended Plat did
not cure all of the problems occasioned by the defect in the title
to Lot 54.
C. 	The Damages Defense
¶30 	Finally, First American argues that it was entitled to
summary 	judgment 	because 	Lauritzen 	failed 	to 	present
competent evidence of his damages. A plaintiff is required to
establish both the existence and the amount of damages by a
preponderance of the evidence. Stevens-Henager College v. Eagle
Gate College, 2011 UT App 37, ¶ 16, 248 P.3d 1025. While First
American does not dispute that Lauritzen has asserted that he

Lauritzen v. First American Title Insurance Co.
20160717-CA 	17 	2018 UT App 58
sustained 	a 	particular 	amount 	of 	damages, 	First 	American
alleges that Lauritzen was not qualified to provide an opinion as
to the value of his lots, that Lauritzen’s damages calculations
were incorrect, and that Lauritzen did not include a figure for
damages resulting from the defect in title to Lot 54.
¶31 	As to the first point, Utah law has long been clear that “an
owner of real property who is familiar with his property is
competent 	to 	give 	evidence 	on 	the 	market 	value 	of 	that
property.” Utah Dep’t of Transp. v. Jones, 694 P.2d 1031, 1036
(Utah 1984). Lauritzen presented evidence that he was familiar
with the property. Accordingly, we cannot say as a matter of law
that Lauritzen is incompetent to testify as to the market value of
the property at the time he purchased it and as to its value after
the Amended Plat was recorded.
¶32 	As to the second point, disputed factual issues exist as to
whether Lauritzen’s damages calculations are correct. Certainly,
some of Lauritzen’s damages estimates may have been rendered
obsolete due to our decisions herein regarding the scope of
insurance 	coverage 	under 	the 	Policy. 	But 	the 	extent 	of
appropriate damages for the defect in Lauritzen’s title to Lot 54
has not been determined. Because factual disputes about those
damages 	are 	present, 	First 	American 	was 	not 	entitled 	to
summary 	judgment based 	on 	its allegation 	that 	Lauritzen’s
damages calculations were incorrect. See Hill v. State Farm Mut.
Auto. Ins. Co., 765 P.2d 864, 868 (Utah 1988) (stating that, where
the amount of damages is in dispute, summary judgment is
inappropriate), partially overruled on other grounds by Sharon Steel
Corp. v. Aetna Cas. and Sur. Co., 931 P.2d 127, 138 n.14 (Utah
1997).
¶33 	As to the third point, we disagree with First American as
to 	whether 	Lauritzen 	presented 	sufficient 	evidence 	of 	his
damages specific to the defect in his title to Lot 54. Lauritzen
presented evidence as to the value of all of his Lots, together,
both before and after the recording of the Amended Plat. The
latter figure was lower. While a factual dispute may again arise

Lauritzen v. First American Title Insurance Co.
20160717-CA 	18 	2018 UT App 58
as to the proportion of the decrease in price which is the result of
the defect in Lauritzen’s title to Lot 54, it is clear that Lauritzen
demonstrated at least some damages caused by the Lot 54 title
issues, such that First American is not entitled to summary
judgment on damages grounds.
¶34 	For the benefit of the parties on remand, we note that
Lauritzen is entitled to recover any damages that are caused by
the Lot 54 title problem that we have determined is covered by
the Policy. There may be different ways in which these damages
might 	have 	manifested 	themselves, 	including 	potentially
reducing the value of Lot 54 due to, among other things, its
smaller 	size. 	In 	addition, 	there 	may be other categories or
theories of damages that Lauritzen might articulate, but all such
damages must be linked to the language of the Policy, which
obligates First American to pay all “loss or damage” Lauritzen
“sustained or incurred by reason of” the Lot 54 title defect.
CONCLUSION
¶35 	The 	district 	court 	erred 	when 	it 	granted 	summary
judgment to First American with respect to Lauritzen’s claim
concerning the title to Lot 54. That issue constituted a defect in
title 	that 	is 	covered 	by 	the 	Policy, 	and 	First 	American 	is
responsible for damages Lauritzen sustained as a result of that
defect. However, the district court did not err when it granted
summary judgment to First American with respect to Lauritzen’s
claims that his title to the remaining Lots was defective or
unmarketable. There is no coverage under the Policy for those
claims.
¶36 	Accordingly, we reverse the district court’s judgment
with respect to Lauritzen’s claim concerning the defect in his title
to Lot 54, affirm the district court’s judgment as to all of
Lauritzen’s 	other 	claims, 	and 	remand 	this 	case 	for 	further
proceedings consistent with this opinion.