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Guenther v. Old Republic National Title Insurance Co.

United States District Court, D. Idaho

March 10, 2014

JOSEPH GUENTHER, an individual, and MICHELLE G. RYERSON, an individual, Plaintiffs,


RONALD E. BUSH, Magistrate Judge.

Now pending before the Court is Plaintiffs' Motion in Limine to Exclude Alternative Access Theories (Docket No. 88). Having carefully considered the record, participated in oral argument, and otherwise being fully advised, the Court enters the following Memorandum Decision and Order:


On October 21, 2013, the undersigned issued an Order Setting Trial and Pretrial Conference (Docket No. 84). Among other things, that Order stated: "On or before November 15, 2013, the parties shall file a stipulation concerning those issues (and any corresponding time frame(s) relevant to such issues) to be resolved by the Court during the bifurcated portion of the trial." Order, p. 1 (Docket No. 84).

On November 14, 2013, the parties submitted the requested Stipulation (Docket No. 85). Among other things, that Stipulation identified the following issue for the Court's resolution:

If the Easement terminated, whether legal access existed by virtue of any of the following alternative access theories: (1) Idaho Code § 40-202/Public Right of Way; (2) Quasi-Estoppel/Permissive Use; and (3) Easement by Prescription. Plaintiffs contend these alternative theories are not available to [Old Republic]. Thus, prior to hearing argument and testimony regarding these alternative theories, the Court will first need to address the issue of whether [Old Republic] has the right to pursue these alternative theories.

Stipulation, p. 2 (Docket No. 85).

In a November 19, 2013 Order, the undersigned acknowledged a February 26, 2014 pre-trial motions/motions in limine deadline, however determined that "an earlier resolution of the alternative access theories' issue described in the parties' Stipulation is warranted." Order, p. 2 (Docket No. 86). Consistent with the Court's briefing schedule, on December 11, 2013, Plaintiffs filed the at-issue Motion in Limine (Docket No. 88) and, on December 23, 2013, Old Republic filed its response thereto (Docket No. 89).


This Court previously determined as a matter of law that the policy of title insurance ("Policy") at play here "provides coverage in instances where no right of access - legal access - exists to and from the [relevant property]." 9/26/13 MDO, p. 18 (Docket No. 81) (emphasis in original). However, whether legal access to that property in fact existed during the applicable time period remains an unsettled question before this Court - one that is set to be tried in the upcoming trial. See id. at p. 19. To that end, it is expected that Old Republic will advance different arguments - the "alternative access theories" - that, if accepted, would establish the requisite legal right-of-way and, thus, preclude coverage under the Policy. Plaintiffs object to any consideration of those theories, arguing that: "(1) Old Republic did not assert these various theories at the time it denied Plaintiffs' claim for coverage, and it should in defense of its conduct be limited to the bases on which it actually relied for its denial; (2) Old Republic both lacks standing and has failed to join necessary and indispensable parties for proper litigation and judicial consideration of these various theories; and (3) the historical facts giving rise to this case do not provide any justifiable basis for this Court to review indisputable factual realities of the property access that are contrary to Old Republic's asserted theories." Mem. in Supp. of Mot. in Limine, p. 2 (Docket No. 88, Att. 1). Old Republic disagrees. See Opp. to Mot. in Limine, p. 4 (Docket No. 89). In an effort to assist the parties in their trial preparation work, Plaintiffs' arguments are briefly addressed in order below.

A. Old Republic is Not Estopped From Raising its Alternative Access Theories at Trial

In its September 26, 2013 Memorandum Decision and Order, this Court found that, "while it is hereby understood that the Policy provides coverage when no legal right of access to the Property exists..., Plaintiffs must still prove that they actually had no such right (and, in doing so, contend with and rebut Old Republic's arguments to the contrary), along with their alleged, recoverable damages that resulted therefrom." 9/26/13 MDO, p. 18 (Docket No. 81). From this, Plaintiffs' Motion in Limine attempts to freeze in time the action's lynchpin issue to what literally took place vis à vis Old Republic's denial of coverage:

Fundamentally, then, the question presented by this litigation is whether legal access for the Plaintiffs' property actually existed at the time that Plaintiffs purchased the property, not whether legal access could have been established by asserting any of Old Republic's various and newly-asserted theories to an appropriate court in an action involving the appropriate parties. By its attempted reliance on mere theories, Old Republic would have this Court suspend the reality of what actually existed in 2009 and instead make its decision based upon a fictional version of what the status of the property could have been if anyone had, prior to that time, made such an argument. Simply stated, that Old Republic can conceive of various arguments to assert for obtaining confirmation in 2014 that legal access could have been established, does not change the fact that as of 2009 there was no such confirmation by any court or appropriate authority that actually had established the existence of access rights sufficient to deny coverage under the Policy.

Mem. in Supp. of Mot. in Limine, p. 4 (Docket No. 88, Att. 1) (emphasis in original). In turn, Plaintiffs argue that, because Old Republic did not assert any of the alternative access theories at the time it originally denied coverage under the Policy, Old Republic is estopped from now doing so in defense of Plaintiffs' claims against it. See generally id. at pp. 4-8 ("This case should be proceeding to trial only on what was, in fact, the status of the access rights for the Plaintiffs' property as of 2009 Plaintiffs respectfully requests that this Court... not allow Old ...

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