Michel L. Schlup Revocable Trust v. Attorneys Title Guaranty Fund, Inc.

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.

SUMMARY
March 19, 2026

2026COA16

No. 23CA1886, Michel L. Schlup Revocable Trust v. Attorneys
Title Guaranty Fund, Inc. — Insurance — Title Insurance —
Complete Defense Rule

To resolve this appeal, a division of the court of appeals must

consider, as a matter of first impression, whether the complete

defense rule — a rule that requires an insurer to provide a defense

for the insured on all claims if any claim is arguably covered by the

policy — applies in the title insurance context. Because the division

concludes that it doesn’t and agrees with the district court that the

insurance company defendant properly denied coverage for the

insured plaintiff, the division affirms the district court’s grant of

summary judgment in favor of the insurance company.
COLORADO COURT OF APPEALS 2026COA16

Court of Appeals No. 23CA1886
City and County of Denver District Court No. 22CV33691
Honorable Martin F. Egelhoff, Judge

Michel L. Schlup Revocable Trust,

Plaintiff-Appellant,

v.

Attorneys Title Guaranty Fund, Inc.,

Defendant-Appellee.

JUDGMENT AFFIRMED

Division VI
Opinion by JUDGE WELLING
Brown and Moultrie, JJ., concur

Announced March 19, 2026

RICE LLC, T.R. Rice, Elizabeth, Colorado, for Plaintiff-Appellant

Karsh Gabler Call PC, Ivan M. Call, Lakewood, Colorado, for Defendant-
Appellee
¶1 In this insurance coverage dispute, plaintiff, the Michel L.

Schlup Revocable Trust (the Trust), appeals the district court’s

grant of summary judgment in favor of defendant, Attorney Title

Guaranty Fund, Inc. (ATGF). Although ATGF provided the Trust

with a defense and indemnification against claims asserted by one

of the Trust’s neighbors, it refused to provide either a defense or

indemnification with respect to claims brought in the same

litigation by a different neighbor, asserting that those claims weren’t

covered by the title insurance policy. After resolving both sets of

claims, the Trust sued ATGF for its failure to provide a defense to

the latter set of claims brought by the second neighbor.

¶2 The district court granted summary judgment in favor of

ATGF, concluding that ATGF didn’t have a duty to defend the Trust

against the claims asserted by the second neighbor either under the

terms of the policy or pursuant to the complete defense rule, which

requires an insurance company to provide a defense to all of the

claims asserted in a piece of litigation if any one of the claims is

arguably covered by the policy. On appeal, the Trust argues that

the district court erred in both respects.

1
¶3 To resolve this appeal, we must consider, as a matter of first

impression, whether the complete defense rule applies in the title

insurance context. Because we conclude that it doesn’t and

because we agree with the district court that coverage was properly

denied, we affirm.

I. Background

¶4 The district court relied on the following undisputed facts in

its order granting summary judgment. In 2018, the Trust

purchased an undeveloped parcel of land in Estes Park, Colorado

(the Property). An unimproved private road (Homestead Lane),

which crossed multiple adjacent properties, was the only access

between the Property and nearby State Highway 34.

¶5 As part of the transaction, the Trust purchased a title

insurance policy from ATGF. Covered Risk 4 of the title insurance

policy covered loss or damage to the Trust as a result of “no right of

access to and from the [Property].”

¶6 After closing, the Trust began to construct a residence on the

Property, which required it to improve the portion of Homestead

Lane leading to the Property. In the process, the local fire

protection district determined that, if any portion of Homestead

2
Lane was improved, the entirety of Homestead Lane would have to

be paved to bring it into compliance with the Estes Valley Fire

Protection District’s fire code.

¶7 In 2021, the Trust began paving Homestead Lane. Later that

year, Nicholas Stark, the owner of a nearby parcel that Homestead

Lane traversed, sued the Trust, claiming that the Trust had no legal

right of access to the Property across his property. The Trust

submitted Stark’s claims to ATGF, and ATGF retained an attorney

who successfully defended the Trust against Stark’s claims.

¶8 In early 2022, Michael Nassimbene, the owner of a second

parcel adjacent to the Property that included a portion of

Homestead Lane, intervened in the Stark lawsuit. Nassimbene

asserted two causes of action against the Trust — trespass and

unjust enrichment. Both claims were based on the Trust’s paving

the portion of Homestead Lane running across Nassimbene’s

property without Nassimbene’s consent.

¶9 Material to this appeal, Nassimbene didn’t dispute that the

Trust had an easement across his property via Homestead Lane to

access the Property; Nassimbene did, however, dispute the Trust’s

right to improve that easement over his objection. In his complaint,

3
Nassimbene contended that the Trust was trespassing by paving,

without his consent, the portion of Homestead Lane that crossed

his property. He also averred that the Trust had unjustly enriched

itself by increasing Nassimbene’s cost of maintaining Homestead

Lane under a shared maintenance agreement without committing to

cover that cost increase.

¶ 10 The Trust submitted Nassimbene’s claims to ATGF for defense

and indemnification. ATGF declined to defend, asserting that the

claims weren’t within the scope of coverage and, even if they were,

they were subject to exclusions contained in the policy. Because of

ATGF’s denial, the Trust hired its own counsel to defend against

Nassimbene’s claims. The Trust eventually settled with

Nassimbene.

¶ 11 After settling with Nassimbene, the Trust sued ATGF,

contending that ATGF was required to defend against Nassimbene’s

claims because they were covered by the title insurance policy. The

Trust also argued, in the alternative, that ATGF was obligated to

defend against Nassimbene’s claims under the complete defense

rule. The court rejected both of the Trust’s arguments and granted

ATGF’s motion for summary judgment.

4
II. Issues on Appeal

¶ 12 The Trust advances two issues on appeal. First, the Trust

argues that Nassimbene’s claims implicated its right to access the

Property and thus were covered by the title insurance policy.

Second, the Trust argues that, even if Nassimbene’s claims weren’t

covered by the policy, ATGF was nevertheless required to defend

against them under the complete defense rule. For the reasons

discussed below, we reject both contentions.

A. The Policy Didn’t Cover Nassimbene’s Claims

¶ 13 First, the Trust argues that Nassimbene’s claims implicated its

right to access the Property and therefore it was insured against

those claims under either Covered Risk 4 or Covered Risk 5 of the

policy (or both). We disagree.

1. Additional Facts

¶ 14 The title insurance policy insured the Trust against loss or

damage arising from certain covered risks and obligated ATGF to

“pay the costs, including attorneys’ fees, and expenses incurred in

defense of any matter insured against by this Policy, but only to the

extent provided in the Conditions.”

5
¶ 15 Among the covered risks in the policy, two are pertinent to this

appeal. Under Covered Risk 4, ATGF agreed to cover a defect in

title if there is “[n]o right of access to and from the [Property].”

Additionally, under Covered Risk 5, ATGF agreed to cover

[t]he violation or encroachment of any law,
ordinance, permit, or governmental regulation,
(including those relating to building and
zoning) restricting, regulating, prohibiting, or
relating to —

(a) the occupancy, use, or enjoyment of the
[Property];

....

If a notice, describing any part of the
[Property], is recorded in the Public Records
setting forth the violation or intention to
enforce, but only to the extent of the violation or
enforcement referred to in that notice.

(Emphasis added.) And “Public Records” under the policy are

“[r]ecords established under state statutes at Date of Policy [July

11, 2018] for the purpose of imparting constructive notice of

matters relating to real property to purchasers for value and

without [k]nowledge.”

¶ 16 The policy contains several exclusions to coverage.

Exclusion 1(a) specifically excludes from coverage any losses due to

6
[a]ny law, ordinance, permit, or governmental
regulation (including those relating to building
and zoning) restricting, regulating, prohibiting,
or relating to

(i) the occupancy, use, or enjoyment of the
[Property];

....

or the effect of any violation of these laws,
ordinances, or governmental regulations. This
Exclusion 1(a) does not modify or limit the
coverage provided under Covered Risk 5.

¶ 17 Exclusion 3 excludes from coverage

[d]efects, liens, encumbrances, adverse claims,
or other matters

(a) created, suffered, assumed, or agreed to by
the Insured Claimant . . .

....

(d) attaching or created subsequent to Date of
Policy [July 11, 2018] . . . .

¶ 18 As noted above, Nassimbene didn’t dispute that the Trust had

an easement to access the Property via Homestead Lane; instead,

he asserted that the Trust’s easement didn’t include the right to

pave the portion of Homestead Lane running across his property.

Nassimbene claimed that by paving the road without authorization,

the Trust had trespassed on his property and damaged shade trees

7
and other vegetation. Nassimbene also described a maintenance

agreement between himself and several neighbors to share the costs

associated with maintaining several local private roads — including

Homestead Lane. Under this agreement, a majority of the

signatories to the maintenance agreement was required to approve

any maintenance expenditures, which hadn’t occurred. He alleged

that the Trust had unjustly enriched itself to his detriment by

increasing the cost of maintaining Homestead Lane without

committing to cover that cost.

¶ 19 ATGF refused to indemnify or defend the Trust against

Nassimbene’s claims, so the Trust sued. ATGF moved for summary

judgment, arguing that Nassimbene’s claims weren’t covered by the

title insurance policy and that the complete defense rule shouldn’t

be applied in the title insurance context.

¶ 20 In granting summary judgment in ATGF’s favor, the district

court ruled that Nassimbene’s claims weren’t covered by the title

insurance policy for three reasons. First, the district court

determined that, under Covered Risk 5, ATGF was only obligated to

defend against loss of access to the Property due to governmental

codes and regulations if there was a recorded notice describing the

8
violation or an intent to enforce the violation of any code or

regulation. Second, the district court reasoned that, under

Exclusion 3(a) and (d), the title insurance policy didn’t cover issues

that were “‘created, suffered, assumed or agreed to’ by the Trust.”

Third, the district court declined to extend the complete defense

rule to the context of title insurance, citing Cherry Hills Farm Court,

LLC v. First American Title Insurance Co., 428 F. Supp. 3d 516 (D.

Colo. 2019).

2. Standard of Review

¶ 21 We review a grant of summary judgment de novo. Preferred

Pro. Ins. Co. v. Drs. Co., 2018 COA 49, ¶ 11. Summary judgment is

appropriate when there is no dispute as to any material fact and the

moving party is entitled to judgment as a matter of law. Bainbridge,

Inc. v. Travelers Cas. Co. of Conn., 159 P.3d 748, 750 (Colo. App.

2006).

¶ 22 Interpreting a contract presents a question of law that we

review de novo. Cagle v. Mathers Fam. Tr., 2013 CO 7, ¶ 16. An

insurer has a duty to provide an insured a defense when the

allegations in the underlying complaint, if sustained, would impose

“liability potentially or arguably covered by the policy.” Bainbridge,

9
159 P.3d at 750. To determine if it has the responsibility to defend

against a claim, “[a]n insurer looks to the four corners of the

complaint, together with the policy.” Id. We do the same in

determining whether the district court’s grant of summary

judgment was proper. See id.

3. Analysis

¶ 23 We address and reject the Trust’s assertions of coverage under

Covered Risk 4 and Covered Risk 5 separately below.

a. Nassimbene’s Claims Aren’t Covered by Covered Risk 4

¶ 24 The Trust argues that Nassimbene’s claims implicated its right

of access under Covered Risk 4, that the “no right of access”

language in Covered Risk 4 is ambiguous, and that its right of

access included the right to pave Homestead Lane, since absent

that improvement, the Trust wouldn’t be allowed to build a home on

the Property. We reject the Trust’s arguments because (1) the term

“no right of access” isn’t ambiguous, and Nassimbene’s complaint

didn’t dispute that the Trust had a right of access over Homestead

Lane; and (2) Covered Risk 4 doesn’t insure access sufficient to

develop the property.

10
i. Nassimbene Didn’t Challenge the Trust’s Right to Access the
Property

¶ 25 We begin our analysis by rejecting the Trust’s assertion that,

because the term “access” isn’t defined in the title insurance policy,

a “right of access” is ambiguous and includes something more than

“access.” The phrase “no right of access” in Covered Risk 4 isn’t

ambiguous. Access is defined as “[a] right . . . to enter, approach,

[or] pass to and from.” Access, Black’s Law Dictionary 16 (12th ed.

2024). Therefore, “no right of access,” as applied to the Trust,

would mean that the Trust had no right to enter, approach, or pass

to and from the Property.

¶ 26 Based on this understanding of the meaning of “no right of

access,” we conclude that Nassimbene’s claims against the Trust

didn’t implicate Covered Risk 4 because the Trust didn’t allege that

it had “[n]o right of access to and from the [Property].” See Am.

Fam. Mut. Ins. Co. v. Hansen, 2016 CO 46, ¶ 27 (courts apply

unambiguous contractual language as written). Instead,

Nassimbene claimed that the Trust had trespassed onto his land by

paving and expanding the road, which damaged his land and

unjustly enriched the Trust by potentially burdening Nassimbene

11
with significant future maintenance costs. Nothing in Nassimbene’s

complaint, however, challenged the Trust’s right of access to the

Property.

¶ 27 Nor was the Trust’s right of access to the Property ever in

jeopardy. The Trust never claimed that its ability to access the

Property was curtailed, only that its ability to pave Homestead Lane

so that it could develop the Property was. And the fire protection

district never indicated that the Trust’s right of access to the

Property was contingent on paving Homestead Lane; it determined

only that, if any portion of Homestead Lane was paved, the entirety

of it would have to be paved to comply with the fire code.

ii. Covered Risk 4 Doesn’t Insure Access Sufficient to Develop the
Property

¶ 28 In the alternative, the Trust argues that unencumbered access

to and from the local highway isn’t enough to satisfy its “right of

access” under Covered Risk 4 — its right of access also has to be

sufficient to develop the Property. The Trust cites First American

Title Insurance Co. v. GS Industries, LLC, an unpublished federal

district court case from Hawaii, as persuasive authority for the

proposition that a right of access must be sufficient to develop a

12
property. No. 21-CV-00078-DKW-KJM, 2021 WL 5985124, at *4-8

(D. Haw. Dec. 16, 2021). First American doesn’t support this

proposition.

¶ 29 In First American, GS Industries obtained ownership of a

parcel of land that had legal ingress but no legal egress because the

public road that serviced the land was a one-way road and the

portion of the road that allowed for egress from the land was

privately owned. Id. at *1, *3. GS leased the land to a church that

planned to build low-income housing units on the parcel. Id. at *3.

While pursuing its plan to develop the land, the church applied for

affordable housing exemptions from the Department of Planning

and Permitting. Id. The Department denied the church’s

application due to the lack of egress. Id. The church submitted a

claim to First American for the cost of obtaining legal egress from

the land — estimated at approximately $10,000. Id.

¶ 30 After First American denied the claim multiple times, GS sued

for a declaratory judgment to determine its rights under the policy.

Id. at *4. First American argued that because the policy excluded

issues with access that resulted from governmental regulation, it

had no duty to cover the cost of obtaining egress. Id. The court

13
disagreed, ruling that the issue of lack of egress predated the

governmental regulation and noting that the land had lacked legal

egress before, and regardless of, the plans to develop the land. Id.

at *7. Thus, the court reasoned, GS never had a complete right of

access to the land, and its lack of access wasn’t due to

governmental regulation, but to a covered deficiency in the title to

the land. Id. Put simply, the church in First American never had a

right of access because the land never had legal egress.

¶ 31 The opposite is true here. The Trust had a right of access to

and from the local highway via Homestead Lane when it purchased

the Property. And it was only when the Trust decided to build a

residence on the Property — which, in turn, required the Trust to

pave a portion of Homestead Lane — that the fire protection

district’s regulations required the Trust to pave the entirety of

Homestead Lane to comply with the fire code. Therefore, unlike in

First American, the requirement for the Trust to upgrade access to

the Property was a direct result of governmental regulation; it

wasn’t due to a pre-existing defect in the title. Consequently,

Nassimbene’s claims don’t fall under Covered Risk 4. See

Bainbridge, 159 P.3d at 750.

14
b. Covered Risk 5 Doesn’t Insure Against Nassimbene’s Claims,
Which Instead Fall Under Exclusions 1 and 3

¶ 32 We also conclude that Nassimbene’s claims don’t fall under

the purview of Covered Risk 5 for three reasons. To start, Covered

Risk 5 requires notice of a regulation or of the intent to enforce the

violation of a regulation to be in the public records as of the policy’s

effective date, and that such notice must mention at least part of

the Property. The Trust doesn’t claim that any such notice as to the

need to pave the entirety of Homestead Lane because of the fire

code was present in the public records.

¶ 33 Second, while Covered Risk 5 covers violations and

enforcement of governmental regulations, Exclusion 1 excludes

from coverage any impact of governmental regulation on the

Property if a notice of that impact isn’t recorded as of the policy’s

effective date. Because the mandatory paving of the entirety of

Homestead Lane was incidental to the development of the Property

and resulted from governmental enforcement occurring after the

effective date of the policy, the Trust’s argument fails.

¶ 34 Third, because the fire protection district didn’t require the

rest of Homestead Lane to be paved until the Trust decided to

15
develop the Property and upgrade the driveway, the enforcement of

the fire code occurred after the policy’s effective date. Therefore, the

code enforcement issue was necessarily “created . . . by the Insured

Claimant” and falls under Exclusion 3.

¶ 35 To put it simply, neither the nature of Nassimbene’s claims,

nor the case law on which the Trust relies, nor the terms of the title

insurance policy support the argument that the Trust has “no right

of access” unless it has sufficient access to develop the Property.

Accordingly, we discern no error in the district court’s

determination that Nassimbene’s claims weren’t covered by the title

insurance policy.

B. Complete Defense Rule

¶ 36 The Trust next argues that, even if Nassimbene’s claims

weren’t covered by the title insurance policy, ATGF was nonetheless

obligated to provide a defense against the claims under the

complete defense rule. We disagree.

1. Standard of Review

¶ 37 The complete defense rule requires an insurance company to

defend against all the claims in a complaint or discrete piece of

litigation if any one of the claims asserted in the litigation is

16
arguably covered by the policy. See, e.g., Carl’s Italian Rest. v.

Truck Ins. Exch., 183 P.3d 636, 639 (Colo. App. 2007).

¶ 38 Whether a title insurance company has a duty to defend

against a complaint is a question of law, which we review de novo.

Id.

2. Analysis

¶ 39 The Trust argues that because Nassimbene’s claims couldn’t

be easily bifurcated from Stark’s original claims, and because both

Nassimbene’s and Stark’s claims were asserted in a single suit and

implicated the Trust’s right to access the Property, ATGF was

required to defend the Trust against both sets of claims under the

complete defense rule. We aren’t persuaded.

¶ 40 In holding that the complete defense rule doesn’t apply to

litigation involving title insurance, the district court relied

substantially on Cherry Hills, 428 F. Supp. 3d at 522-24. In Cherry

Hills, the federal district court for the District of Colorado correctly

observed that no Colorado appellate case had applied the complete

defense rule in a title insurance case. Id. at 522-23. Instead,

Colorado courts have only applied the complete defense rule in a

general liability context. See id. (collecting cases); see, e.g., Sachs v.

17
Am. Fam. Mut. Ins. Co., 251 P.3d 543, 547 (Colo. App. 2010); Carl’s

Italian, 183 P.3d at 639; Bainbridge, 159 P.3d at 756; Mgmt.

Specialists, Inc. v. Northfield Ins. Co., 117 P.3d 32, 36 (Colo. App.

2004).

¶ 41 Based on decisions from other jurisdictions that have declined

to apply the complete defense rule in the title insurance context, the

court in Cherry Hills then predicted that the Colorado Supreme

Court wouldn’t apply the complete defense rule to a dispute

involving title insurance coverage. 428 F. Supp. at 523-25.

¶ 42 For instance, in GMAC Mortgage, LLC v. First American Title

Insurance Co., 985 N.E.2d 823, 828 (Mass. 2013), the

Massachusetts Supreme Judicial Court held that the complete

defense rule is inapplicable in the context of title insurance

litigation because title insurance is “fundamentally different from

general liability insurance.” Specifically, the court noted that

“[b]efore issuing a policy, a title insurer searches real property

records for title defects and, if any are discovered, excludes such

known defects from the policy coverage.” Id. Accordingly, the court

observed that title insurance is retrospective because it “narrowly

covers defects in, or encumbrances on, titles that are in existence

18
when a policy issues,” as opposed to general liability insurance,

which covers prospective risks. Id. The GMAC court also observed

that, unlike general liability insurance, which requires the payment

of ongoing premiums, title insurance requires the payment of only a

single premium for indefinite coverage. Id. at 828-29. The court in

GMAC further reasoned that “the central policy behind [the

complete defense rule] — that parsing multiple claims is not

feasible — is not implicated to the same extent in the title insurance

context as in the general liability insurance context” because the

issues in title insurance disputes tend to be discrete and easily

bifurcated from other related claims. Id. at 829-30 (recognizing that

“an attorney for a title insurance company . . . feasibly can defend

only the title-related issues”).

¶ 43 And for many of the same reasons identified in GMAC, other

jurisdictions have also concluded that the complete defense rule

doesn’t apply to title insurance litigation. See Lupu v. Loan City,

LLC, 903 F.3d 382, 393-95 (3d Cir. 2018) (applying Pennsylvania

law and predicting that the Pennsylvania Supreme Court would

decline to apply the complete defense rule to title insurance

disputes); Phila. Indem. Ins. Co. v. Chi. Title Ins. Co., 771 F.3d 391,

19
398-401 (7th Cir. 2014) (declining to apply the complete defense

rule to a title insurance dispute under Illinois law); Findlay v. Chi.

Title Ins. Co., 2022 IL App (1st) 210889, ¶¶ 57-64 (endorsing

Philadelphia Indemnity’s interpretation of Illinois law); Badger

Mining Corp. v. First Am. Title Ins. Co., 534 F. Supp. 3d 1011, 1021-

22 (W.D. Wis. 2021) (holding that the complete defense rule doesn’t

apply to title insurance under Wisconsin law).

¶ 44 While we aren’t bound by a federal court’s interpretation of

state law, see Redden v. Clear Creek Skiing Corp., 2020 COA 176,

¶ 44, we are nonetheless persuaded by the convincing policy

rationale presented in Cherry Hills and the out-of-state authority on

which it relies.

¶ 45 In particular, the distinctions between title and general

liability insurance convince us that the complete defense rule

shouldn’t extend to title insurance. For instance, general liability

insurance policies typically have broad language promising to

defend against “‘a suit’ or ‘any suit,’” Cherry Hills, 428 F. Supp. 3d

at 524 (quoting Phila. Indem., 771 F.3d at 399), whereas ATGF’s

title insurance policy promised to cover expenses “incurred in

defense of any matter insured against by the Policy, but only to the

20
extent provided in the Conditions.” Similarly, other language in the

ATGF policy — namely, Covered Risk 5(a) — states that ATGF will

only “provide for the defense of an Insured in litigation in which any

third party asserts a claim covered by this policy” and clarifies that

“[ATGF] shall not be liable for and will not pay the fees, costs, or

expenses incurred by the Insured in the defense of those causes of

action that allege matters not insured against by this policy.”

¶ 46 This clear language limiting ATGF’s liability naturally invokes

another reason not to extend the complete defense rule — the

parties bargained for an unambiguous and limited range of liability.

Expanding that liability without finding ambiguity in the contract

would create a windfall for the insured party because the insured

would be getting significant benefits that they didn’t bargain or pay

for. See id.; see also Lupu, 903 F.3d at 395 (“Given the relatively

modest title insurance premium, if we force Stewart Title to cover

more than it promised, [the insured] will receive a windfall.”); cf.

Essentia Ins. Co. v. Hughes, 2024 CO 17, ¶¶ 2, 52 (imposing less

onerous coverage requirements on carriers providing specialty

automobile insurance policies covering classic cars, rather than

regular-use vehicles, based, in part, on the fact that “specialty

21
policies [carry] much more affordable premiums than those charged

in standard policies for regular-use vehicles”).

¶ 47 We are particularly convinced that it doesn’t make sense to

apply the complete defense rule in the context of title insurance

because claims covered by a title insurance policy can be more

readily bifurcated from other types of claims within a proceeding.

Indeed, the rationale behind the application of the complete defense

rule in the general liability context is that there is typically no

reasonable means to bifurcate claims in such proceedings and

apportion the costs of defending covered and noncovered claims.

See, e.g., GMAC, 985 N.E.2d at 828 (“A rationale behind [the

complete defense] rule is that dividing representation between

covered and noncovered claims is impractical.”); cf. Equal Emp.

Opportunity Comm’n v. S. Publ’g Co., 894 F.2d 785, 791 (5th Cir.

1990) (observing that the purpose of the complete defense rule is to

require the insurer to bear the entire cost of defense when “there is

no reasonable means of prorating the costs of defense between the

covered and the not-covered items” (quoting Ins. Co. of N. Am. v.

Forty-Eight Insulations, Inc., 633 F.2d 1212, 1224-25 (6th Cir.

1980))).

22
¶ 48 And the course of events here underscores the ease with which

claims covered by title insurance can be readily split from other,

noncovered claims in the same litigation. The attorneys retained by

ATGF successfully defended the Trust against Stark’s claim that the

Trust had no legal right to access the Property via Homestead Lane.

But because Nassimbene didn’t contest the Trust’s right to access

the Property, the court’s legal determination that the Trust had a

right to use Homestead Lane didn’t resolve Nassimbene’s third-

party claims for trespass and unjust enrichment arising from the

Trust’s paving of a portion of Homestead Lane. And the Trust was

then able to retain counsel at its own expense and resolve

Nassimbene’s claims to its satisfaction. In sum, contrary to the

Trust’s suggestion that the Stark and Nassimbene claims weren’t

capable of being bifurcated, the history of these proceedings

demonstrates otherwise.

¶ 49 The Trust also suggests that the rationale of Cherry Hills and

the other cases declining to apply the complete defense rule to title

insurance policies doesn’t apply here. For instance, the Trust

attempts to distinguish Cherry Hills, 428 F. Supp. 3d at 521-22, by

suggesting that the court in Cherry Hills simply refused to extend a

23
title insurer’s duty to defend to monetary claims, which don’t affect

title. But we reject such a distinction because Nassimbene’s third-

party claims were monetary claims for damages allegedly caused by

the Trust’s paving of Homestead Lane and for the future costs of

maintaining the newly paved driveway. Put another way, even if

Nassimbene’s claims had been successful, an award of monetary

damages to Nassimbene wouldn’t have affected the Trust’s title to

the Property and corresponding ongoing right to use Homestead

Lane for access. See id. at 522 (discussing how the noncovered

claim did “not seek to enjoin the use or possession of the property”).

¶ 50 In summary, we decline to apply the complete defense rule to

the title insurance context. And because we have already rejected

the Trust’s assertion that Nassimbene’s claims otherwise involved

the Trust’s right of access to the Property, we conclude that the

district court properly granted summary judgment in ATGF’s favor.

III. Disposition

¶ 51 The judgment is affirmed.

JUDGE BROWN and JUDGE MOULTRIE concur.

24