Dennis L. Munden ; Sherrilyn L. Munden v. Stewart Title Guaranty Company , a Texas surety

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DENNIS L. M UNDEN ; SHERRILYN L.
M UNDEN ,
Plaintiffs-Appellants,
v.
STEWART TITLE GUARANTY
COMPANY , a Texas surety; CHICAGO
TITLE I NSURANCE COMPANY , an
Illinois surety,
Defendants-Appellees.
No. 20-35336
D.C. No.
4:19-cv-00112-
DCN
OPINION
Appeal from the United States District Court
for the District of Idaho
David C. Nye, Chief District Judge, Presiding
Argued and Submitted May 3, 2021
Seattle, Washington
Filed August 13, 2021
Before: Danny J. Boggs,* A. Wallace Tashima, and
Marsha S. Berzon, Circuit Judges.
Opinion by Judge Boggs
* The Honorable Danny J. Boggs, Senior Circuit Judge of the United
States Court of Appeals for the Sixth Circuit, sitting by designation.

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2 M UNDEN V . STEWART TITLE GUARANTY CO.
SUMMARY**
Title Insurance / Idaho Law
The panel affirmed the district court’s grant of summary
judgment to Stewart Title Guaranty Company, reversed the
district court’s grant of summary judgment to Chicago Title
Insurance Company, and vacated the district court’s
judgment as to Chicago Title only in a diversity action
brought by plaintiff title insurance holders against insurance
companies for indemnification and breach of contract.
The plaintiffs initially sued Bannock County, Idaho in
state court to prevent enforcement of an ordinance restricting
their use of a road passing through their land. Stewart Title
and Chicago Title refused to defend and indemnify plaintiffs
in the state action. The plaintiffs sued the insurers in federal
court, and the district court granted the insurance companies’
motions for summary judgment. The district court found
that the plaintiffs had failed to show the existence of a
“public record,” as defined by the policies, showing any
facts, rights, claims, interests, easements, liens, or
encumbrances by reason of which the plaintiffs’ state-court
dispute arose. Because each policy excluded coverage for
loss, damages, and expenses arising by reason of such items
not shown in the public records, the district court found that
the companies had no obligation to cover the plaintiffs’
claims.
** This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.

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M UNDEN V . STEWART TITLE GUARANTY CO. 3
The panel examined Idaho law on the interpretation of
contracts to interpret the policy language in dispute here.
Concerning the disputed meaning of the term “public
records” in the title policies, the panel followed the process
in McFarland v. Liberty Ins. Corp., 434 P.3d 215 (Idaho
2019), to determine a reasonable meaning for the definition
of the term. “Public records” are official documents that
were brought into existence in accordance with Idaho public
statutes, brought into existence on or before the date of the
policy, and intended, at least in part, to provide constructive
notice of some fact or circumstance relevant to the insured
property to purchasers for value who did not have actual
knowledge of that fact or circumstance. Applying the
definition, the panel held that the Bannock County road map
was a “public record” within the meaning of the policy.
Because the maps were published before the effective date
of each policy and because the plaintiffs’ dispute with the
County arose by reason of the County’s claim to title of the
road, none of General Exceptions 2–4 in the Stewart policy
nor either of Exceptions 1 or 3 in the Chicago policy
excluded coverage for the plaintiffs’ claims.
The panel next considered the Stewart Title policy’s
separate exclusion at issue: Special Exception 4, disclaiming
coverage for premises falling within the bounds of roads or
highways. Although the district court did not reach the issue,
the panel considered it because Stewart Title argued in its
motion for summary judgment that Special Exception 4
applied to the plaintiffs’ dispute. The panel held that the
only reasonable meaning of Special Exception 4 in the
Stewart Title policy favored the insurer, not the insured.
Specifically, the panel held that so long as there was some
causal link between a public interest in roads on the
plaintiffs’ property and some kind of loss, damage, costs,

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4 M UNDEN V . STEWART TITLE GUARANTY CO.
attorneys’ fees or expenses, the policy did not cover that loss
or damages, and Stewart Title had no obligation to pay those
costs, fees, or expenses. Here, the plaintiffs sued Bannock
County because of the public interest the County asserted in
the road on their land, by virtue of which the County
imposed use restrictions on that road. Stewart Title had no
obligation under its policy to defend or indemnify the
plaintiffs in their action against the County.
COUNSEL
Nathan M. Olsen (argued), Petersen Moss Hall & Olsen,
Idaho Falls, Idaho, for Plaintiffs-Appellants.
Matthew Cleverly (argued), Fidelity National Law Group,
Seattle, Washington; Tyler H. Neill (argued), Casey Legal
Group PLLC, Eagle, Idaho; for Defendants-Appellees.
OPINION
BOGGS, Circuit Judge:
This is a contract-interpretation case arising under Idaho
law. The Mundens, a married couple, own land in Bannock
County, Idaho. They purchased title insurance for that
property from the defendant insurance companies. Several
years later, the Mundens sued Bannock County in Idaho state
court to prevent enforcement of an ordinance restricting their
use of a road passing through their land. The Mundens then
sued the insurance companies in federal court for
indemnification and breach of contract, alleging that the
companies failed to honor their promise to defend the
Mundens’ title. The insurance companies assert that the

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M UNDEN V . STEWART TITLE GUARANTY CO. 5
Mundens’ claims fall outside the scope of their policies’
coverage. The district court granted summary judgment to
the insurance companies, and the Mundens appealed.
We affirm in part and reverse in part. The district court
erred in its interpretation of the insurance policies under
Idaho law. One of the companies, Chicago Title, has not
shown that it is entitled to judgment. The other company,
Stewart Title, is still entitled to judgment, but for a different
reason than the district court gave.
I. Background
A. Factual Circumstances
1. The Title Policies
Dennis and Sherrilyn Munden are a married couple
living in Bountiful, Utah. They own over 1400 acres of real
property in two sets of parcels in Bannock County, Idaho,
which they use for ranching. They purchased the first set of
parcels, about 768 acres total, in January 2012 and the
second set, totaling about 660 acres, in August 2014. The
Mundens purchased title insurance for the first purchase
through Stewart Title Guaranty Co. and for the second
purchase through Chicago Title Insurance Co. The policies
obligate the companies to indemnify and defend the
Mundens against any covered claims to their title.
At issue are the following exclusions in the policies.
First, the Stewart Title policy:
does not insure against loss or damage (and
the Company will not pay costs, attorneys’
fees or expenses) which arise by reason of:

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6 M UNDEN V . STEWART TITLE GUARANTY CO.
. . .
General Exceptions:
. . .
2) Any facts, rights, interests, or claims
which are not shown by the public records,
but which could be ascertained by an
inspection of the land or by making inquiry
of persons in possession thereof.
3) Easements, liens, or encumbrances, or
claims thereof, which are not shown by the
public records.
4) Discrepancies, conflicts in boundary lines,
shortages in area, encroachments, or any
other facts which a correct survey would
disclose, and which are not shown by the
public records.
. . .
Special Exceptions: . . .
. . .
4. Right, title and interest of the public in and
to those portions of the above described
premises falling within the bounds of roads
or highways.

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M UNDEN V . STEWART TITLE GUARANTY CO. 7
The Chicago Title policy:
does not insure against loss or damages, and
the Company will not pay costs, attorney’s
fees, or expenses that arise by reason of:
1. Rights or claims of parties in possession
not shown by the public records.
. . .
3. Easements, or claims of easements, not
shown by the public records.
And under both policies, the definition of “public records”
is:
Records established under state statutes at
Date of Policy for the purpose of imparting
constructive notice of matters relating to real
property to purchasers for value and without
Knowledge.
2. The Underlying State-Court Dispute
The Mundens’ property contains a gravel road, Garden
Creek Road, that is the subject of a dispute between the
Mundens and Bannock County. This dispute began after the
County enacted Ordinance No. 2019-01 (the “2019
ordinance”) in January 2019, which amended Ordinance No.
2006-1 (the “2006 ordinance”). The 2006 ordinance closed
specified snowmobile trails in the County, including Garden
Creek Road, to all motor vehicles except snowmobile traffic
and snow-trail-grooming equipment between December 15
of each year and April 15 of the next year. Using other motor
vehicles on those trails during that closure was punishable

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8 M UNDEN V . STEWART TITLE GUARANTY CO.
by up to six months of jail or a fine of up to $300. The 2019
ordinance amended the 2006 ordinance by deleting the
December-to-April closure window, instead giving the
County Public Works Director the discretion to determine
when to close the specified snowmobile trails. The 2019
ordinance also increased the maximum fine for violations of
the ordinance to $1000.
Shortly after the County enacted the 2019 ordinance, the
Mundens filed an action in Idaho state court seeking an
“injunction and other relief against Bannock County for its
actions affecting the use of their property.” During a hearing
on February 4, 2019, the County asserted that Garden Creek
Road had been listed as a public road on county maps since
1963.1 In March 2019, the County filed a countercomplaint
in Idaho state court seeking a declaration that Garden Creek
Road is a public road. The County alleged (among other
things) that Garden Creek Road had been listed as a county
road on the Idaho Department of Transportation Maps
showing public roads since at least 1958, that under Idaho
Code § 40-202, Garden Creek Road has been a public
highway since 1963, and that the Mundens purchased their
property expressly subject to the easements and rights of
way apparent or of record.
B. Proceedings Below
On February 7, 2019, the Mundens sent a notice of claim
to Stewart Title and to Chicago Title, asking the companies
1 Although the record does not contain a copy of one of these county
maps, the title companies admit in their joint brief that “Garden Creek
Road was included in Bannock County’s road book at least by 1958” and
“became a public roadway under [Idaho Code] § 40-202 by 1963.”
Answering Br. 8. We therefore take these facts to be conceded for
purposes of summary judgment.

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M UNDEN V . STEWART TITLE GUARANTY CO. 9
to defend and indemnify them because the County’s claims
in the action affected both the value and marketability of the
Mundens’ title. Each company “denied or failed to timely
respond to” the Mundens’ claims.
In April 2019, the Mundens filed a complaint in federal
district court against the insurance companies, seeking
declaratory and injunctive relief, indemnification, and
damages for breach of contract. Stewart Title answered the
complaint in May, and Chicago Title filed a Rule 12(b)(6)
motion. The Mundens filed a motion for partial summary
judgment (on the question of liability, not damages) in July,
and Stewart Title filed its own summary-judgment motion in
August. The district court, without objection, treated
Chicago Title’s motion to dismiss as a summary-judgment
motion because it raised matters outside of the pleadings.
After hearing argument, the district court denied the
Mundens’ motion and granted the insurance companies’
motions for summary judgment. The court concluded that
there was at least a dispute of material fact as to whether the
marketability of the Mundens’ title was affected by the
County’s claim to Garden Creek Road, triggering potential
claims under the two policies. But it found that the Mundens
had failed to show the existence of a “public record,” as
defined by the policies, showing any facts, rights, claims,
interests, easements, liens, or encumbrances by reason of
which the Mundens’ state-court dispute arose. Because each
policy excludes coverage for loss, damages, and expenses
arising by reason of such items not shown in the public
records, the district court found that the companies had no
obligation to cover the Mundens’ claims. The district court
did not address Stewart Title’s additional argument that
“Special Exception 4” in its policy, which excludes coverage
for loss, damages, and expenses arising by reason of the

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10 M UNDEN V . STEWART TITLE GUARANTY CO.
right, title, or interest of the public in roads and highways,
also barred coverage for the Mundens’ claims.
The Mundens’ timely appeal followed.
C. Applicable Legal Framework
1. Standard of Review
We review de novo a grant of summary judgment. Pac.
Gulf Shipping Co. v. Vigorous Shipping & Trading S.A.,
992 F.3d 893, 897 (9th Cir. 2021). Summary judgment is
granted “if the movant shows that there is no genuine dispute
as to any material fact and the movant is entitled to judgment
as a matter of law.” Fed. R. Civ. P. 56(a). A genuine dispute
exists if “the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.” Anderson v.
Liberty Lobby, 477 U.S. 242, 248 (1986). We do not engage
in credibility determinations or weigh evidence; rather,
“[t]he evidence of the non-movant is to be believed, and all
justifiable inferences are to be drawn in his favor.” Id. at 255.
2. Interpretation of Insurance Contracts Under Idaho Law
The insurance policies provide that “the court . . . shall
apply the law of the jurisdiction where the Land is located
. . . to interpret and enforce the terms of this policy” and that
in no case “shall the court . . . apply its conflicts of law
principles to determine the applicable law.” No party
disputes the validity of the choice-of-law clauses. Thus,
because the “Land” specified in each policy is in Idaho,
Idaho law governs the policies.
Perhaps because there is no Idaho case on-point for this
question, the parties and the district court have relied heavily
on out-of-state authorities in their legal analyses. But a

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M UNDEN V . STEWART TITLE GUARANTY CO. 11
federal court applying state law has a responsibility to
“ascertain from all the available data what the state law is
and apply it rather than to prescribe a different rule.”
Poublon v. C.H. Robinson Co., 846 F.3d 1251, 1266 (9th Cir.
2017) (quoting West v. Am. Tel. & Tel. Co., 311 U.S. 223,
237 (1940)). Thus, we examine Idaho case law on the
interpretation of contracts to interpret the policy language in
dispute here.
In Idaho, whether an insurance policy is ambiguous “is a
question of law.” McFarland v. Liberty Ins. Corp., 434 P.3d
215, 219 (Idaho 2019) (quoting Farmers Ins. Co. of Idaho v.
Talbot, 987 P.2d 1043, 1047 (Idaho 1999)). A court begins
with the policy’s “plain language” and “determine[s]
whether or not there is an ambiguity.” Ibid. (quoting Clark
v. Prudential Prop. & Cas. Ins. Co., 66 P.3d 242, 244–45
(Idaho 2003)). A provision is ambiguous if it “is reasonably
subject to differing interpretations.” Ibid. (quoting Markel
Int’l Ins. Co. v. Erekson, 279 P.3d 93, 95 (Idaho 2012)).
Idaho prescribes several rules for interpreting insurance
policies. First, clear language in the policy is “given its plain
and ordinary meaning.” Ibid. (quoting Farm Bureau Mut.
Ins. Co. of Idaho v. Schrock, 252 P.3d 98, 102 (Idaho 2011)).
There is a presumption that “common, non-technical
words are given the meaning applied by laymen in daily
usage—as opposed to the meaning derived from legal
usage,” but that presumption is rebutted if “a contrary intent
[of the parties] is shown.” Ibid. (quoting Fisher v. Garrison
Prop. & Cas. Ins. Co., 395 P.3d 368, 372 (Idaho 2017)).
Examining reference materials helps in determining that
usage. Id. at 220–21 (referring to “[a] survey of multiple
dictionaries” such as Webster’s Third New International
Dictionary and the Oxford English Dictionary). Lay usage
can accommodate more than one reasonable meaning for a

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term or provision. See id. at 222 (holding that both “place of
residence” and “house” are reasonable interpretations of the
term “dwelling,” as commonly understood).
For uncommon, technical terms, a policy’s failure to
define that term even though it defines other terms “weighs
in favor of ambiguity.” Id. at 219 (citing Arreguin v.
Farmers Ins. Co. of Idaho, 180 P.3d 498, 501 (Idaho 2008)).
But the “mere fact that a term is undefined in a policy does
not make that term ambiguous if it has a settled legal
meaning” in Idaho. Ibid. (quoting Melichar v. State Farm
Fire & Cas. Co., 152 P.3d 587, 592 (Idaho 2007)).
The court “must construe the policy as a whole, not by
an isolated phrase.” Id. at 222 (quoting Cascade Auto Glass,
Inc. v. Idaho Farm Bureau Ins. Co., 115 P.3d 751, 754
(Idaho 2005)). In particular, if an isolated term or provision
appears initially ambiguous, “reading the policy as a whole
can remove the ambiguity by rendering one of the possible
interpretations unreasonable.” Ibid.
And “[b]ecause insurance policies are adhesion contracts
not typically subject to negotiation between the parties, ‘all
ambiguities in an insurance policy are to be resolved against
the insurer . . . .’” Id. at 219 (quoting Howard v. Or. Mut.
Ins. Co., 46 P.3d 510, 513 (Idaho 2002)). The insurer has the
burden “to use clear and precise language if it wishes to
restrict the scope of coverage,” and “exclusions not stated
with specificity will not be presumed or inferred.” Ibid.
(quoting Clark, 66 P.3d at 245). Thus, if there is an
ambiguity, there is no factfinding of the parties’ actual intent
in drafting the language. Id. at 223 (construing the
ambiguous term “dwelling” by choosing the reasonable
interpretation most favorable to the insureds).

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M UNDEN V . STEWART TITLE GUARANTY CO. 13
To summarize Idaho’s procedure for interpreting
insurance policies: (1) First, give any expressly defined
terms their defined meaning. (2) Give any clear provisions
their plain, ordinary meaning. (3) If an uncommon, technical
term is undefined in the policy but has a settled legal
meaning in Idaho, give the term that settled legal meaning.
(4) Give each undefined common, nontechnical term a
meaning in daily usage by laymen. (5) All remaining terms
are ambiguous; choose a reasonable meaning for each such
term. For steps 4 and 5, the meanings selected should
produce the interpretation most favorable to the insured but
still reasonable in light of the policy as a whole—that is the
interpretation to be adopted.2
II. Analysis
A. “Public Records”
1. Interpreting the Definition
The parties primarily dispute the meaning of the term
“public records” in the title policies—namely, whether the
“public records” contain facts, rights, claims, etc. by reason
of which the Mundens’ current dispute with Bannock
County arose. Following the McFarland process described
above, “public records” can be interpreted, reasonably in
2 As a shortcut for steps 4 and 5, observe that the insured must
prevail if there is some choice of meanings such that the resulting
interpretation is both reasonable in light of the contract as a whole and
results in a win for the insured—the most favorable interpretation for the
insured has to be at least that favorable.
By contrast, for the insurer to prevail, it must win under all
interpretations that are reasonable in light of the contract as a whole. That
includes the most insured-favorable reasonable interpretation possible.

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14 M UNDEN V . STEWART TITLE GUARANTY CO.
light of the entire policy, to include official maps listing
Garden Creek Road as a public road. Because those maps
were published before the effective date of each policy and
because the Mundens’ dispute with the County arose “by
reason of” the County’s claim to title of the road, none of
General Exceptions 2–4 in the Stewart policy nor either of
Exceptions 1 or 3 in the Chicago policy excludes coverage
for the Mundens’ claims.
First, we follow the McFarland process to determine a
reasonable meaning for the definition of “public records.”
The parties have clearly expressed an intent to give a specific
meaning in the policies to the term “public records.” Each
policy expressly defines that term as “[r]ecords established
under state statutes at Date of Policy for the purpose of
imparting constructive notice of matters relating to real
property to purchasers for value and without Knowledge.”
“Date of Policy”3 and “Knowledge”4 are terms that the
policies separately define. Uncommon, technical terms in
the definition are “constructive notice”5 and “purchasers for
3 The “Date of Policy” for the Stewart policy is January 18, 2012, at
3:41 p.m., and the “Date of Policy” for the Chicago policy is April 9,
2013, at 10:41 a.m.
4 “Actual knowledge, not constructive knowledge or notice that may
be imputed to an Insured by reason of the Public Records or any other
records that impart constructive notice of matters affecting the Title.”
Thus, to be “without Knowledge” under the policies means having no
actual knowledge of some matter related to the property insured by the
policies.
5 “[K]nowledge of such facts and circumstances as would have led
to the discovery of [a previous] purchase and conveyance by a
reasonably prudent man.” Benz v. D.L. Evans Bank, 268 P.3d 1167,
1178–79 (Idaho 2012) (quoting Froman v. Madden, 88 P. 894, 895
(Idaho 1907)); see also id. at 1178 (extending the notion of constructive

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M UNDEN V . STEWART TITLE GUARANTY CO. 15
value,”6 both of which have settled legal meanings in Idaho,
set forth in footnotes 5 and 6.
The rest of the definition consists of common,
nontechnical terms. Assigning those terms reasonable lay
meanings, a reasonable interpretation of “records established
under state statutes at Date of Policy” is: “Official
documents that had been brought into existence in
accordance with Idaho state statutes, on or before the Date
of Policy.” And “for the purpose of imparting constructive
notice of matters relating to real property to purchasers for
value and without Knowledge” can reasonably mean
“intended, at least in part,7 to provide constructive notice of
some fact or circumstance relevant to the insured property to
notice beyond discoveries of purchases and conveyances to discoveries
of a “prior interest or defect in title”).
6 A person who takes an interest in property through a transaction in
which the person relinquishes some other property interest. See Idaho
Code § 28-1-201 (“(29) ‘Purchase’ means taking by sale, lease, discount,
negotiation, mortgage, pledge, lien, security interest, issue or reissue,
gift, or any other voluntary transaction creating an interest in property.
(30) ‘Purchaser’ means a person that takes by purchase.”); id. § 55-912
(“Value is given for a transfer or obligation if, in exchange for the
transfer or obligation, property is transferred or an antecedent debt is
secured or satisfied . . . .”).
7 Something whose whole purpose is to impart constructive notice is
necessarily something whose purpose is, at least in part, intended to
impart constructive notice. Thus, interpreting “intended” to include
partial purposes brings more objects into consideration. The Mundens
benefit from that broader meaning here—more things are potentially in
the “public records” if more things are considered “intended” to impart
constructive notice. Because we must interpret “intended” in the light
most favorable to the Mundens, we therefore interpret it to include partial
purposes.

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16 M UNDEN V . STEWART TITLE GUARANTY CO.
purchasers for value who did not have actual knowledge of
that fact or circumstance.”
One last wrinkle: it is perhaps not entirely clear whether
the phrase “for the purpose of imparting” should modify
“records established” or “statutes,” although most readers
would view the phrase as specifying the purpose for which
the “records” were “established.” We have found no
authority supporting that Idaho, in interpreting contracts,
follows the nearest-reasonable-referent canon (often
mistakenly called the “last-antecedent canon”), as described
in Antonin Scalia & Bryan A. Garner, Reading Law: The
Interpretation of Legal Texts 152–53 (2012) (“When the
syntax involves something other than a parallel series of
nouns or verbs, a prepositive or postpositive modifier
normally applies only to the nearest reasonable referent.”).
Nor is that canon universally accepted in the contractual or
even statutory setting. See, e.g., Phoenix Control Sys., Inc. v.
Ins. Co. of N. Am., 796 P.2d 463, 470 (Ariz. 1990) (in banc)
(Feldman, V.C.J., specially concurring) (“[I]t would be a
fiction to pretend [the parties] drafted the language mindful
that its meaning would be ascertained through use of the
doctrine of the last antecedent.”); Kennett v. Bayada Home
Health Care, Inc., 845 F. App’x 754, 768 (10th Cir. 2021)
(Bacharach, J., concurring) (noting that “[t]he Colorado
legislature has expressly repudiated the last-antecedent rule”
in statutory interpretation and that only one Colorado court
of appeals case had applied the rule in contractual
interpretation).
Thus, we do not apply the canon here, instead choosing
“[r]ecords established” as a reasonable referent. With that
syntactic choice, the resulting interpretation of the definition
of “public records” is: “Official documents that were:

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M UNDEN V . STEWART TITLE GUARANTY CO. 17
• brought into existence in accordance with Idaho state
statutes, and
• brought into existence on or before the Date of
Policy, and
• intended, at least in part, to provide constructive
notice of some fact or circumstance relevant to the
insured property to purchasers for value who did not
have actual knowledge of that fact or circumstance.”
Notably, “state statutes” is unqualified in this
interpretation. Contrary to the district court’s conclusion, the
policy, so interpreted, contemplates no restriction of the
statutes to Idaho Code § 55-811, Idaho’s real-property
recording statute. And leaving unrestricted the kinds of state
statutes under which public records may be established is
consistent with interpreting the policy’s language reasonably
in favor of the Mundens.
2. Applying the Definition
An Idaho county that takes a real-property interest in a
highway must update its official map to include the highway
and regularly publish maps showing its highways. Idaho
Code § 40-202(2), (3), (6). Those maps are official
documents, and their purpose, at least in part, is to provide
constructive notice of their contents. We can infer this
purpose from the details of the statute, which offers county
commissioners a choice when the county acquires real
property for highway-system purposes: they must either
record with the county recorder an instrument establishing
that interest or else “[c]ause the official map of the county or
highway-district system to be amended as affected by the
acceptance of the highway or public right-of-way.” Idaho
Code § 40-202(2). Because recording an instrument gives

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18 M UNDEN V . STEWART TITLE GUARANTY CO.
constructive notice of the county’s interest in the road, see
Kalange v. Rencher, 30 P.3d 970, 974 (Idaho 2001), it is
logical that the alternate option provided by the statute—to
amend the official county map—is also intended to do the
same, see Homestead Farms, Inc. v. Bd. of Comm’rs,
119 P.3d 630, 637 (Idaho 2005) (Eismann, J., specially
concurring) (noting that the “inclusion of a private road on
the highway map” could have legal consequences for the
owner of the private road “because members of the public
may assert their right to use the road in reliance upon the
highway map”).
The Bannock County road map was established in
accordance with state statutes—particularly, Idaho Code
§ 40-202(2) and (6). It was created in 1958, well before the
insurance policies went into effect. And, as demonstrated
above, the map was at least partially intended to provide
constructive notice of the County’s interest in the property
to purchasers for value who did not have actual knowledge
of that interest.
This is a reasonable interpretation in light of the contract
as a whole. The Mundens could have reasonably expected
the title companies, in doing their due diligence, to check
county maps to ensure that roadways traversing the property
are not public highways or rights-of-way. Indeed, Stewart
Title’s Special Exception 4, which excludes coverage arising
from claims of public interest to roads and highways, seems
to anticipate that instruments indicating public interest in
highways might not be recorded. Adding that exception
shifts to the insureds the burden of checking whether the
County has acquired an interest in a road on the land. It is
less likely that Stewart Title would have shifted that burden
if it had been clear that the Mundens already bore it.

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M UNDEN V . STEWART TITLE GUARANTY CO. 19
Thus, because there is an interpretation of the definition
of “public records,” reasonable in light of the policies as a
whole, under which the Mundens prevail on this issue, we
adopt that interpretation. The Bannock County road map is
a “public record” within the meaning of the policy.
B. Stewart Title’s “Special Exception 4”
As mentioned above, the Stewart Title policy has a
separate exclusion at issue in this case: Special Exception 4,
disclaiming coverage for damages, costs, expenses, etc.
“aris[ing] by reason of . . . [r]ight, title and interest of the
public in and to those portions of the above described
premises falling within the bounds of roads or highways.”
The Mundens argue that this exception does not encompass
their dispute with Bannock County over Gravel Creek Road.
The district court did not address this issue because it
granted summary judgment to both insurance companies on
the “public records” issue. Although we generally do not
resolve issues that the district court did not first reach,
Hormel v. Helvering, 312 U.S. 552, 556 (1941), that rule is
not absolute, Singleton v. Wulff, 428 U.S. 106, 120–21
(1976) (“The matter of what questions may be taken up and
resolved for the first time on appeal is one left primarily to
the discretion of the courts of appeals, to be exercised on the
facts of individual cases.”). In particular, we may address an
issue “even though the district court refused to resolve it” so
long as it was “raised sufficiently for the trial court to rule
on it.” CFPB v. Gordon, 819 F.3d 1179, 1191 n.5 (9th Cir.
2016) (quoting O’Rourke v. Seaboard Sur. Co. (In re E.R.
Fegert, Inc.), 887 F.2d 955, 957 (9th Cir. 1989)). Because
Stewart Title argued in its motion for summary judgment
that Special Exception 4 applied to the Mundens’ dispute,
we may take up the issue now.

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20 M UNDEN V . STEWART TITLE GUARANTY CO.
In contrast to the definition of “public records,” the only
reasonable meaning of Special Exception 4 in the Stewart
Title policy favors the insurer, not the insured. The Mundens
argue that this exception does not include their state case
because they “are not seeking protection of a ‘public’
interest, but rather have alleged that their title has been
adversely affected by Bannock County’s claims.” Opening
Br. 32.
Their interpretation is unreasonable for two reasons.
First, the main clause before the list of general and special
exceptions reads: “This policy does not insure against loss
or damage (and the Company will not pay costs, attorneys’
fees, or expenses) which arise by reason of,” and then lists
specific exceptions. “By reason of” is broad language that
does not inherently limit the kinds of reasons that may
trigger an exclusion. So it need not be the Mundens who
assert a public interest—any party’s claim of a public
interest (such as Bannock County’s claim) triggers the
exception.
Second, the Mundens’ interpretation would not make
sense in light of the policy as a whole. The policy is for title
insurance for two private persons. It is implausible that the
Mundens, as private persons, would assert a public right,
title, or interest in the portions of their own land falling
within the bounds of roads or highways. Under their
interpretation, the exclusion would be practically a nullity, a
consequence we must avoid. Steel Farms, Inc. v. Croft &
Reed, Inc., 297 P.3d 222, 229 (Idaho 2012) (“A court must
look to the contract as a whole and give effect to every part
thereof.”).
So long as there is some causal link between a public
interest in roads on the Mundens’ property and some kind of
loss, damage, costs, attorneys’ fees, or expenses, the policy

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M UNDEN V . STEWART TITLE GUARANTY CO. 21
does not cover that loss or damage, and Stewart Title has no
obligation to pay those costs, fees, or expenses. And here,
the Mundens sued Bannock County, ultimately, because of
the public interest the County asserted in the road on their
land, by virtue of which the County imposed use restrictions
on that road. So Stewart Title had no obligation under its
policy to defend or indemnify the Mundens in their action
against Bannock County.8
III. Conclusion
We affirm the grant of summary judgment to Stewart
Title and reverse the grant of summary judgment to Chicago
Title. We vacate the judgment of the district court as to
Chicago Title only, and we remand for further proceedings
consistent with this opinion.
If we affirm in part, reverse in part, modify, or vacate a
judgment, we may exercise our discretion in taxing costs.
Fed. R. App. P. 39(a)(4). We normally order each party to
bear its own costs on appeal in these circumstances because
“neither side is the clear winner.” Exxon Valdez v. Exxon
Mobil Corp., 568 F.3d 1077, 1081 (9th Cir. 2009). But here,
Stewart Title is a clear winner on appeal, and Chicago Title
8 The Mundens also make a perfunctory argument that there is no
public interest in the roads on their property. But the Mundens present
no citations to the record or case law to prove that proposition.
We need not delve into the state-court record to see if that issue has
been preclusively decided. It suffices to note that the Mundens have
waived the argument on appeal for failure to brief it sufficiently. See
United States v. Ghanem, 993 F.3d 1113, 1133 (9th Cir. 2021) (holding
that defendant waived argument supporting due-process claim because
he failed to cite relevant case law).

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22 M UNDEN V . STEWART TITLE GUARANTY CO.
is a clear loser; it is the Mundens only who are neither clear
winners nor losers.
Recognizing this unique situation, we therefore award
costs as follows. The Mundens’ costs are taxed against
Chicago Title, and Stewart Title’s costs are taxed against the
Mundens.
AFFIRMED IN PART, REVERSED IN PART,
VACATED IN PART, and REMANDED.

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