## Facts

- In 1998, Robert Lurie purchased a home and also purchased an owner’s title insurance policy issued by Commonwealth Land Title Insurance Co., LLC (Commonwealth).
- The policy insured against certain defects, liens, encumbrances, and other title risks, and provided that Commonwealth would pay covered costs, including attorney’s fees and expenses, incurred in defending the insured title.
- The policy required Lurie to notify Commonwealth of any claim or matter that might cause loss or damage for which Commonwealth could be liable.
- The policy also required Lurie to notify Commonwealth promptly in writing if litigation was filed in which a third party asserted a claim adverse to Lurie’s title, and it gave Commonwealth the right to select counsel and control the defense.
- In 2003, Lurie’s neighbor, Michael Polinsky, replaced a fence between the properties. Lurie believed the fence encroached on his land.
- In July 2008, Lurie sued Polinsky regarding the fence. Lurie dismissed that suit with prejudice in December 2009.
- In December 2010, Lurie filed a second suit against Polinsky concerning the same fence dispute. Lurie dismissed that suit with prejudice in June 2012, and the parties settled the dispute.
- Lurie incurred $68,740.25 in attorney’s fees in the two lawsuits against Polinsky.
- Commonwealth was not notified of either lawsuit while they were pending and did not learn of them until 2015, when Lurie filed suit against Commonwealth seeking reimbursement and other relief.
- After the 2015 suit was filed, Lurie submitted a claim under the policy for the attorney’s fees. In July 2016, Commonwealth denied the claim, citing Lurie’s failure to provide timely notice of the litigation as required by the policy.
- The trial court granted summary judgment for Commonwealth on Lurie’s breach of contract, unjust enrichment, and vexatious refusal to pay claims. Lurie appealed.

## Issues

1. Whether Lurie satisfied the policy requirement to provide prompt written notice of litigation involving an adverse claim to title when he did not notify Commonwealth until years after the lawsuits were dismissed and settled.
2. Whether, on these undisputed facts, Commonwealth was entitled to summary judgment because Lurie’s late notice deprived Commonwealth of its contractual rights to select counsel and control the defense, constituting prejudice.
3. Whether Lurie could maintain unjust enrichment or vexatious refusal to pay claims when Commonwealth denied benefits based on Lurie’s failure to satisfy the policy’s notice requirements.

## Decision

- The Missouri Court of Appeals affirmed the trial court’s summary judgment in favor of Commonwealth.
- Lurie’s notice—given only after the neighbor litigation had concluded—was not “prompt” under the policy as a matter of law.
- Commonwealth was prejudiced because the delay eliminated its contractual opportunity to investigate, participate in the litigation, select counsel, control strategy, and influence resolution of the dispute.
- Because Lurie could not establish entitlement to policy benefits, his breach of contract claim failed, and his unjust enrichment and vexatious refusal to pay claims also failed.

## Legal Principles

- A title insurance policy may require the insured to give prompt written notice of litigation involving adverse claims to title, and that requirement can function as a condition to the insurer’s duty to defend or pay defense costs.
- When the delay in giving notice is extreme and undisputed, whether notice was “prompt” may be decided as a question of law rather than submitted as a fact question.
- An insurer is prejudiced when late notice deprives it of bargained-for rights to select counsel, control the defense, and protect its interests during litigation and settlement.
- An insured who litigates and settles a title dispute without timely notice to the title insurer cannot later shift the full cost of that defense to the insurer when the insurer was denied its contractual role in the defense.
- Equitable relief such as unjust enrichment is generally unavailable where an express contract governs the subject matter and the claimant seeks payment contrary to contractual conditions.
- A vexatious refusal to pay claim cannot succeed where the insurer had a reasonable basis to deny coverage, including the insured’s failure to satisfy policy notice requirements.

## Conclusion

The court held that Lurie’s years-late notice of the fence-encroachment lawsuits did not satisfy the policy’s prompt written notice requirement and, because the delay deprived Commonwealth of its contractual right to control the defense, Commonwealth was entitled to deny reimbursement of Lurie’s attorney’s fees; summary judgment against Lurie’s contract, unjust enrichment, and vexatious refusal claims was affirmed.


Lurie v. Commonwealth Land Title Insurance Co., LLC, 558 S.W.3d 583 (2018)