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09/02/94 THOMAS M. SOUTULLO AND PAMELA D. SOUTULLO

September 2, 1994

THOMAS M. SOUTULLO AND PAMELA D. SOUTULLO
v.
COMMONWEALTH LAND TITLE INSURANCE COMPANY



Appeal from Mobile Circuit Court. (CV-93-01952). Robert L. Byrd, Jr., Trial Judge.

Released for Publication December 7, 1994.

Houston, Hornsby, C. J., and Shores, Steagall, Kennedy, Ingram, and Cook, JJ., concur.

The opinion of the court was delivered by: Houston

HOUSTON, JUSTICE.

The plaintiffs, Thomas M. Soutullo and Pamela D. Soutullo, appeal from a summary judgment for the defendant, Commonwealth Land Title Insurance Company ("Commonwealth"), in their action to recover damages for negligence, wantonness, and fraudulent suppression of a material fact. We reverse and remand.

The evidence, viewed in the light most favorable to the Soutullos, suggests the following: The Soutullos purchased a house located on a lot adjacent to Dawes Road in Mobile County. Before the purchase, the real estate agent with whom they had dealt represented to the Soutullos that the lot extended to a ditch running alongside Dawes Road. As a part of the transaction -- a "non-qualifying mortgage assumption," requiring no survey -- the sellers purchased a title insurance policy from Commonwealth; the policy named the Soutullos as the insureds. Commonwealth, through one of its agents, conducted a title search and issued the title policy. It described the Soutullos' property as follows:

"Lot 2, Grissett Estates, Unit One, according to the plat thereof recorded in Map Book 32, Page 69, of the records in the Office of the Judge of Probate Court of Mobile County, Alabama."

The policy provided, in pertinent part, as follows:

"SUBJECT TO THE EXCLUSIONS FROM COVERAGE, THE EXCEPTIONS CONTAINED IN SCHEDULE B AND THE PROVISIONS OF THE CONDITIONS AND STIPULATIONS HEREOF, COMMONWEALTH LAND TITLE INSURANCE COMPANY ..., insures, as of Date of Policy shown in Schedule A, against loss or damage ... and cost, attorneys' fees and expenses which the Company may become obligated to pay hereunder, sustained or incurred by the insured by reason of:

"....

"2. Any defect in or lien or encumbrance on such title;

"3. Lack of a right of access to and from the land;

"....

"No claim shall arise or be maintainable under this policy... if the Company, after having received notice of an alleged defect, lien or encumbrance insured against hereunder, by litigation or otherwise, removes such defect, lien or encumbrance or establishes the title, ...


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