## Facts

- Martin J. Greenberg and a business partner bought four condominium units in Lake Geneva, Wisconsin.
- Before closing, Greenberg obtained title insurance through Stewart Title Guaranty Company, acting through its issuing agent, Southeastern Wisconsin Title Company, Inc.
- Stewart (through Southeastern) issued title commitments describing the terms on which it was willing to insure, followed by four owner’s title insurance policies of $250,000 each.
- Greenberg used the units as collateral for loans from multiple lenders.
- Greenberg later claimed a title defect prevented him from selling the units; lenders foreclosed and deficiency judgments were entered against him.
- Greenberg sued Stewart and Southeastern asserting contract claims under the policies and tort claims, including negligence, negligent misrepresentation, and breach of fiduciary duty, based on issuance of the commitments and policies.

## Issues

1. Whether issuance of title commitments and subsequent title insurance policies creates an independent tort duty (negligence, negligent misrepresentation, fiduciary duty) owed by the title insurer and issuing agent to the insured, separate from the policy’s contractual obligations.

## Decision

- The Wisconsin Supreme Court affirmed the circuit court.
- The court held the relationship created by the commitments and policies is contractual and is a contract of indemnity.
- The court rejected independent tort causes of action against the title insurer and issuing agent based solely on issuance of the commitments and policies.
- Any potential recovery was limited to remedies available under the title insurance policies’ terms, exclusions, and limits.

## Legal Principles

- Title insurance is a contract of indemnity; obligations to the insured are defined and limited by the policy language.
- A title commitment functions as an offer to insure on specified terms and does not, by itself, convert a title insurer or issuing agent into a title abstractor or fiduciary.
- Wisconsin law does not recognize tort liability against a title insurer or its issuing agent for negligence-type claims arising from issuing commitments and policies where the asserted duties are coextensive with contractual duties.
- Economic losses claimed from an alleged title defect (including failed sales and deficiency judgments) are not recoverable in tort when the claimed wrong is fundamentally a failure to provide benefits defined by the insurance contract.

## Conclusion

The court held that, in Wisconsin, title commitments and title insurance policies create contractual indemnity duties only, and they do not support separate tort claims against the insurer or issuing agent for negligence, negligent misrepresentation, or breach of fiduciary duty beyond the policy’s contractual remedies.


Greenberg v. Stewart Title Guaranty Co., 492 N.W.2d 147 (Wis. 1992)