This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat § 480A.08, subd. 3 (2000).

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C3-01-413

 

 

R.W. Docks & Slips, A MN General Partnership,

Appellant,

 

vs.

 

Chicago Title Insurance Company,

Respondent.

 

 

Filed July 31, 2001

Affirmed

Stoneburner, Judge

 

 

Hennepin County District Court

File No. CT006962

 

 

Bruce A. Rasmussen, 2116 Second Avenue South, Minneapolis, MN 55404 (for appellant)

 

Jeffrey E. Grell, Joseph M. Finley, Leonard, Street & Deinard, 150 South Fifth Street, Suite 2300, Minneapolis, MN 55402 (for respondent)

 

 

            Considered and decided by Shumaker, Presiding Judge, Amundson, Judge, and Stoneburner, Judge.

 

U N P U B L I S H E D   O P I N I O N

STONEBURNER, Judge

 

            Appellant R.W. Docks and Slips (Docks) challenges the district court’s grant of summary judgment to Respondent Chicago Title Insurance Company (Chicago Title).  Because the title-insurance policy issued by Chicago Title to Docks unambiguously excludes coverage for the underlying dispute in this case, Chicago Title has no duty to defend and we affirm.

FACTS

            The parties do not dispute the relevant facts.  Intending to develop a sheltered harbor and marina, Docks, a Minnesota general partnership, bought property abutting Lake Superior in Bayfield County, Wisconsin in 1968.  That same year the Wisconsin Department of Natural Resources (WDNR) granted Docks permission to dredge materials from Lake Superior’s bed so that Docks could install sailboat docks in the harbor.  In return for allowing Docks to dredge the materials, the WDNR required Docks to post a bond, pay a nominal amount of cash, and properly dispose of the dredged materials.  The following year the WDNR issued Docks a permit to construct a breakwater and boat harbor on the property and the U.S. Army Corps of Engineers issued Docks a similar permit in 1972. 

In 1977 Docks converted the marina to a 272 boat-slip/marina condominium under Wisconsin law and recorded the condominium declaration with the Bayfield County Register of Deeds.  At that time, Chicago Title, a Minnesota-licensed company, issued a title-insurance policy to Docks covering Docks’s fee-simple title to the 272 boat-slip condominiums.  Docks has developed and sold 201 of the condominium boat-slip units; the remaining 71 units, which Docks claims have a retail value of approximately $2 million, remain undeveloped. 

            In 1986, citing environmental concerns, the WDNR refused to allow Docks to further dredge Lake Superior’s bed so that Docks could develop the remaining 71 boat slips.  After Docks exhausted its available administrative appeals, Docks sued the State of Wisconsin and the WDNR in 1999, alleging that the WDNR’s refusal to allow Docks to dredge Lake Superior was a regulatory taking of Docks’s property without just compensation.  A Wisconsin circuit court granted summary judgment to the state and the WDNR[1] and Docks appealed.  The Wisconsin Court of Appeals affirmed the grant of summary judgment to the state and the WDNR, finding no regulatory taking because Docks maintains the benefit of substantially all of its property, despite its inability to develop the remaining 71 boat slips.  See R.W. Docks & Slips v. State, 617 N.W.2d 519, 522 (Wis. Ct. App. 2000), review granted (Wis. Dec. 12, 2000).  The Wisconsin Supreme Court, in an opinion issued after oral argument in the instant case, affirmed the appellate court’s decision, noting that Docks does not have a private property right to place boat slips on the lakebed.  R.W. Docks & Slips v. State, 99-2904, 2001 WL 722122, (Wis. June 28, 2001).

            In October 1995, during its administrative appeals and before initiating the takings action, Docks tendered “defense” of WDNR’s claims to Chicago Title.  Docks informed Chicago Title that it was engaged in a consolidated proceeding before the State of Wisconsin Division of Hearings and Appeals regarding its application to dredge material from the bed of Lake Superior, and had been advised by counsel for the WDNR that WDNR opposed the application as not in the public interest and asserted that ownership of “a cube of water and air over the bed of Lake Superior is a violation of the public trust doctrine and the conveying entity does not have an interest,”  a claim that Docks felt was a threat to its title, triggering Chicago Title’s duty to defend.  In October 1996, Chicago Title denied the tender of defense, noting that no pleadings framed the issues and citing an exclusion in the policy for claims by the State, as trustee for the public.

            In 1999, after Docks initiated the “takings” action, Docks renewed the tender of defense to Chicago Title, alleging that in their answer to Docks’s complaint, the State of Wisconsin and WDNR specifically denied that Docks ever had title to the 71 undeveloped condominiums at issue, thereby triggering Chicago Title’s duty to defend.[2]  Chicago Title did not respond to the renewed tender and, as a result, in May 2000, Docks sued Chicago Title in Hennepin County District Court, asserting that (1) it has the right, by course of dealing, to purchase additional insurance to cover the value of the 71 boat slips,[3] and (2) Chicago Title was obligated to defend Docks against the perceived challenge to title by the state, and Chicago Title wrongfully refused to do so.   Docks claimed $167,306.62 in attorney fees and expenses to the date of the complaint and damages of $2 million from the state’s prohibition of development.  Chicago Title answered asserting numerous defenses, including the statute of limitations and the exclusion for the rights of the public and the state in and to the bed and waters of Lake Superior.  Chicago Title moved for summary judgment and the district court granted the motion, finding that although Docks’s action was timely, under the policy, there is no coverage or duty to defend.

DECISION

            In an appeal from summary judgment, this court determines whether the case raises genuine issues of material fact and whether the district court erred in its application of law.  State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990).  A reviewing court need not defer to the district court’s application of the law when the material facts are not in dispute.  Hubred v. Control Data Corp., 442 N.W.2d 308, 310 (Minn. 1989).  Interpretation of an insurance policy and its application to the case’s facts as well as the existence of a legal duty to defend or indemnify are legal questions, which this court independently reviews.  Franklin v. Western Nat’l Mut. Ins. Co., 574 N.W.2d 405, 407 (Minn. 1998).

            Docks argues that Chicago Title had a duty to defend Docks’s title because in response to Docks’s takings action, the State of Wisconsin and the WDNR denied that Docks ever had title to the 71 undeveloped boat slips and because the Circuit Court for Bayfield County, Wisconsin, found that Docks had no recognizable property interest at stake.  The parties agree that Wisconsin substantive law applies to this dispute.  In Wisconsin, an insurer is obligated to defend its insured against a lawsuit if the complaint “alleges facts which, if proven, would give rise to liability covered under the terms and conditions of the policy.”  Professional Office Bldgs., Inc. v. Royal Indem. Co., 427 N.W.2d 427, 429 (Wis. Ct. App. 1988) (citation omitted).  In other words, the insurer’s duty to defend arises when the complaint’s allegations coincide with the policy coverage.  Smith v. Katz, 595 N.W.2d 345, 350 (Wis. 1999).[4] 

            Although insurance policies, like other contracts, are judicially construed to ascertain and give effect to the parties’ intentions, Vogel v. Russo, 613 N.W.2d 177, 181 (Wis. 2000), “a clear contractual provision must be construed as it stands.”  American States Ins. Co. v. Skrobis Painting & Decorating, Inc., 513 N.W.2d 695, 697 (Wis. Ct. App. 1994) (citation omitted).  Further, an insured cannot have a reasonable expectation of coverage if an unambiguous policy excludes coverage.  Id.  While any doubts about insurance coverage must be resolved in the insured’s favor, Professional Office Bldgs., 427 N.W.2d at 431, courts are not to rewrite insurance policies to bind insurers to risks that the “insurer did not contemplate and for which it has not been paid.”  Smith, 595 N.W.2d at 350 (citation omitted).

The insurance policy’s language does not contemplate Chicago Title insuring Docks’s title in or use of Lake Superior’s bed against Wisconsin’s right to regulate.  While the policy insures fee-simple title to 272 boat-slip condominium units, it excludes coverage against loss or damage caused by certain exceptions, including “[r]ights of the public in any submerged portions of the subject premises lying below the ordinary high-water mark of Lake Superior” and

[p]ublic rights of the United States, * * * Wisconsin, or any of their agencies * * * to any portion of the subject premises, constituting the bed or the waters of Lake Superior or the banks, shores or dock lines, wharves, piers, protection walls, bulkheads or other structures * * * .” 

 

Further, Chicago Title could not have warranted that Docks owned title to Lake Superior’s bed because Wisconsin law does not allow private citizens to own any part of Lake Superior’s bed.  Under its public trust doctrine, the state holds the beds of navigable waters, including Lake Superior, in trust for all of its citizens.  State v. Bleck, 338 N.W.2d 492, 497-98 (Wis. 1983).  Although the public trust doctrine safeguards navigable waters for state residents, Wisconsin recognizes property rights incidental to ownership of property adjacent to a body of water.  Id. at 498.  These property rights include shoreline use, reasonable use of the water, the privilege to swim and boat in the water, access to and from the water, and the right to build wharves and piers.  Id.   

At oral argument, Docks conceded that if it has title to the 71 condominiums, the exclusion applies.  Docks argued that Chicago Title nonetheless has a duty to “defend” the perceived challenges to title before it can rely on the exclusions.  We disagree.  Even if we disregard the requirement in Wisconsin law that the duty to defend can only be triggered by allegations in a complaint, not a defendant’s answer to a complaint, and accept the rather dubious assertion that the State of Wisconsin and WDNR’s answer challenged title to the condominiums, Chicago Title is entitled to rely on the unambiguous exclusion in the policy to deny coverage.  When there is no coverage, there is no duty to defend.

Furthermore, the district court correctly determined that nothing in the record of the actions against the state and WDNR evidences a challenge to Docks’s title to the cubicles of air over the waters of Lake Superior that constitute the undeveloped condominium units insured by Chicago Title and that there is no coverage under the policy for Docks’s inability to dredge the bay and develop sailboat slips, a right Docks concedes has always been subject to the state’s consent.

Affirmed.

 



[1] The circuit court, announcing its decision on the record, found that Docks “has no recognizable property interest at stake in this case,” characterizing the interest claimed as a “recognizable property interest in developing 71 more boat slips than are already there.” (Emphasis added.)

[2] Docks does not cite particular language from the answer, which simply admits and denies various assertions made in Docks’s complaint. The answer denies paragraph 4 of the complaint, which states:

Port Superior Marina consists of 272 condominium boat slips.  Each condominium boat slip is a discrete parcel of real estate under Wisconsin law consisting of a space above the bed of Lake Superior in which to park a boat and an undivided interest in certain common elements including riparian land, breakwater, bulkhead, floating dock system, boat service dock, haul out crane, fueling facility, maintenance facility, restaurant building, club house building, automobile parking area, boat storage area, etc.

[3] As each of the 201 developed slips was sold, Chicago Title issued the grantee an Owner’s Policy of Title Insurance covering the grantee’s boat/slip unit in the amount of the sale price and reduced the amount of insurance on Docks’s master title policy by a like amount. At the time of the first tender of defense, coverage under that policy had been reduced to $1,000, which Chicago Title tendered.

[4] There is some merit to Chicago Title’s argument that what Docks is really seeking is for Chicago Title to prosecute, not to defend, noting that Docks initiated the action and any issue about title has been raised by answer rather than complaint.  Our decision, however, is based on the unambiguous exclusion in the policy.