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IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MISSOURIWESTERN DIVISION
CITY OF BRANSON, MISSOURI )
)Plaintiff, )
)vs. )
)
FIRST AMERICAN TITLE INSURANCE ) Case No.
6:12-cv-03387-GAFCOMPANY, et al., )
)
Defendants. )
DEFENDANT CHICAGO TITLE INSURANCE COMPANYS
ANSWER AND AFFIRMATIVE DEFENSES
COMES NOW defendant Chicago Title Insurance Company ("CTIC"), by
and
through counsel, and states as follows in response to the
Complaint asserted by plaintiff
City of Branson, Missouri:
ANSWER
CTIC states as follows for its Answer:
1. Denied due to a lack of sufficient knowledge, information,
and/or belief.2. Denied due to a lack of sufficient knowledge,
information, and/or belief.3. Admitted with respect to state of
incorporation. Denied with respect to principal
place of business.
4. Admitted with respect to state of incorporation. Denied with
respect to principalplace of business.
5. Admitted.6. Denied.7. Admitted.8. Denied due to a lack of
sufficient knowledge, information, and/or belief.
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9. Admitted.10.Denied due to a lack of sufficient knowledge,
information, and/or belief.11.Denied due to a lack of sufficient
knowledge, information, and/or belief.12.Denied due to a lack of
sufficient knowledge, information, and/or belief.13.Denied due to a
lack of sufficient knowledge, information, and/or belief.14.Denied
due to a lack of sufficient knowledge, information, and/or
belief.15.Denied due to a lack of sufficient knowledge,
information, and/or belief.16.Denied due to a lack of sufficient
knowledge, information, and/or belief.17.
Denied due to a lack of sufficient knowledge, information,
and/or belief.
18.Denied due to a lack of sufficient knowledge, information,
and/or belief.19.Denied due to a lack of sufficient knowledge,
information, and/or belief.20.Denied due to a lack of sufficient
knowledge, information, and/or belief.21.Denied due to a lack of
sufficient knowledge, information, and/or
belief.22.Denied.23.Denied.24.Denied.25.Denied due to a lack of
sufficient knowledge, information, and/or belief.26.Denied due to a
lack of sufficient knowledge, information, and/or
belief.27.Denied.28.Denied.29.Denied with respect to payment of
premium; admitted with respect to fact that no
policy was ever issued.
30.Denied due to a lack of sufficient knowledge, information,
and/or belief.
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31.These allegations purport to summarize a written exhibit
which is attached toplaintiff's complaint, which speaks for itself,
and of which strict proof isdemanded. To the extent plaintiff has
misconstrued or mischaracterized said
exhibit in any way, those allegations are denied.
32.Denied due to a lack of sufficient knowledge, information,
and/or belief.
33.Denied due to a lack of sufficient knowledge, information,
and/or belief.34.Denied due to a lack of sufficient knowledge,
information, and/or belief.35.Denied due to a lack of sufficient
knowledge, information, and/or belief.36.These allegations purport
to summarize a written exhibit which is attached to
plaintiff's complaint, which speaks for itself, and of which
strict proof isdemanded. To the extent plaintiff has misconstrued
or mischaracterized said
exhibit in any way, those allegations are denied.
37.Denied due to a lack of sufficient knowledge, information,
and/or belief.38.Denied due to a lack of sufficient knowledge,
information, and/or belief.39.These allegations purport to
summarize a written exhibit which is attached to
plaintiff's complaint, which speaks for itself, and of which
strict proof is
demanded. To the extent plaintiff has misconstrued or
mischaracterized saidexhibit in any way, those allegations are
denied.
40.These allegations purport to summarize a written exhibit
which is attached toplaintiff's complaint, which speaks for itself,
and of which strict proof is
demanded. To the extent plaintiff has misconstrued or
mischaracterized said
exhibit in any way, those allegations are denied.
41.These allegations purport to summarize a written exhibit
which is attached toplaintiff's complaint, which speaks for itself,
and of which strict proof is
demanded. To the extent plaintiff has misconstrued or
mischaracterized saidexhibit in any way, those allegations are
denied.
42.Denied due to a lack of sufficient knowledge, information,
and/or belief.43.Denied due to a lack of sufficient knowledge,
information, and/or belief.44.Denied due to a lack of sufficient
knowledge, information, and/or belief.45.Denied due to a lack of
sufficient knowledge, information, and/or belief.46.Denied due to a
lack of sufficient knowledge, information, and/or belief.
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47.Denied due to a lack of sufficient knowledge, information,
and/or belief.48.These allegations purport to summarize a written
exhibit which is attached to
plaintiff's complaint, which speaks for itself, and of which
strict proof is
demanded. To the extent plaintiff has misconstrued or
mischaracterized said
exhibit in any way, those allegations are denied.
49.These allegations purport to summarize a written exhibit
which is attached toplaintiff's complaint, which speaks for itself,
and of which strict proof is
demanded. To the extent plaintiff has misconstrued or
mischaracterized said
exhibit in any way, those allegations are denied.
50.Denied due to a lack of sufficient knowledge, information,
and/or belief.51.Denied due to a lack of sufficient knowledge,
information, and/or belief.52.
Denied due to a lack of sufficient knowledge, information,
and/or belief.
53.Denied due to a lack of sufficient knowledge, information,
and/or belief.54.Denied due to a lack of sufficient knowledge,
information, and/or belief.55.Denied due to a lack of sufficient
knowledge, information, and/or belief.56.Denied due to a lack of
sufficient knowledge, information, and/or belief.57.Denied due to a
lack of sufficient knowledge, information, and/or belief.58.These
allegations purport to summarize a written exhibit which is
attached to
plaintiff's complaint, which speaks for itself, and of which
strict proof is
demanded. To the extent plaintiff has misconstrued or
mischaracterized saidexhibit in any way, those allegations are
denied.
59.These allegations purport to summarize a written exhibit
which is attached toplaintiff's complaint, which speaks for itself,
and of which strict proof isdemanded. To the extent plaintiff has
misconstrued or mischaracterized said
exhibit in any way, those allegations are denied.
60.These allegations purport to summarize a written exhibit
which is attached toplaintiff's complaint, which speaks for itself,
and of which strict proof is
demanded. To the extent plaintiff has misconstrued or
mischaracterized saidexhibit in any way, those allegations are
denied.
61.These allegations purport to summarize a written exhibit
which is attached toplaintiff's complaint, which speaks for itself,
and of which strict proof is
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demanded. To the extent plaintiff has misconstrued or
mischaracterized said
exhibit in any way, those allegations are denied.
62.Denied due to a lack of sufficient knowledge, information,
and/or belief.63.
Denied due to a lack of sufficient knowledge, information,
and/or belief.
64.Denied due to a lack of sufficient knowledge, information,
and/or belief.65.Denied due to a lack of sufficient knowledge,
information, and/or belief.66.Denied due to a lack of sufficient
knowledge, information, and/or belief.67.Denied due to a lack of
sufficient knowledge, information, and/or belief.68.Denied due to a
lack of sufficient knowledge, information, and/or belief.69.Denied
due to a lack of sufficient knowledge, information, and/or
belief.70.Denied due to a lack of sufficient knowledge,
information, and/or belief.71.Denied due to a lack of sufficient
knowledge, information, and/or belief.72.Denied due to a lack of
sufficient knowledge, information, and/or belief.73.Denied due to a
lack of sufficient knowledge, information, and/or belief.74.Denied
due to a lack of sufficient knowledge, information, and/or
belief.75.Denied due to a lack of sufficient knowledge,
information, and/or belief.76.Denied due to a lack of sufficient
knowledge, information, and/or belief.77.Denied due to a lack of
sufficient knowledge, information, and/or belief.78.Denied due to a
lack of sufficient knowledge, information, and/or belief.79.Denied
due to a lack of sufficient knowledge, information, and/or
belief.80.Admitted with respect to fact that no policy was issued;
all remaining allegations
denied.
81.Admitted with respect to fact that no policy was ever issued;
all remainingallegations denied due to insufficient, knowledge,
information, and belief.
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82.Admitted with respect to the fact that the referenced written
demand was made;all remaining allegations denied.
83.Admitted.84.
Admitted with respect to the fact that the referenced
correspondence was made;all remaining allegations denied.
85.Admitted.86.Denied.87.Denied.
COUNT I
Count I does not contain any allegations directed to Chicago
Title. Chicago Title
therefore makes no response to the allegations contained in
Count I. To the extent any of
the allegations contained in Count I are herein after construed
as having been asserted
against Chicago Title, they are denied.
COUNT II
Count II does not contain any allegations directed to Chicago
Title. Chicago Title
therefore makes no response to the allegations contained in
Count II. To the extent any of
the allegations contained in Count II are herein after construed
as having been asserted
against Chicago Title, they are denied.
COUNT III
Count III does not contain any allegations directed to Chicago
Title. Chicago
Title therefore makes no response to the allegations contained
in Count III. To the extent
any of the allegations contained in Count III are herein after
construed as having been
asserted against Chicago Title, they are denied.
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COUNT IV
117. All previous responses are adopted and incorporated herein
by reference.
118. Denied.
119. Denied.
120. Admitted with respect to fact that Chicago Title contends
that no policy was
issued; denied as to all remaining allegations.
121. Denied.
122. Denied.
123. Denied.
124. Denied.
125. Denied.
126. Denied.
127. Denied.
COUNT V
128. All previous responses are adopted and incorporated herein
by reference.
129. Denied.
130. Denied.
131. Denied with respect to allegation that a policy was in
force and effect at any
time. All remaining allegations denied due to insufficient
knowledge,information, and/or belief.
132. Denied due to a lack of sufficient knowledge, information,
and/or belief.
133. Admitted.
134. Admitted with respect to denial of coverage; all remaining
allegations denied.
135. Denied.
136. Denied.
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137. Denied.
138. Denied.
COUNT VI
139. All previous responses are adopted and incorporated herein
by reference.
140. Denied.
141. Denied due to a lack of sufficient knowledge, information,
and/or belief.
AFFIRMATIVE DEFENSES
CTIC hereby asserts the following affirmative defenses, together
or in the
alternative, to the claims set forth in plaintiff's
Complaint:
1. Counts IV, V, and VI of plaintiffs Complaint are barred due
to the indefinitenessof the contract for which plaintiff seeks a
declaratory judgment, money damages
for breach of contract, and statutory damages for vexatious
refusal.
2. Count VI of plaintiffs Complaint is barred due to plaintiffs
lack of standing toclaim relief under Missouris vexatious refusal
statute, which by its own terms
only applies to claims on any contract of insurance issued or
delivered in this
state to a resident of this state . . . See R.S.Mo. Section
375.296.
3. Counts IV, V, and VI of plaintiffs Complaint are barred by
equitable estoppels.3. To the extent a contract is herein deemed to
have been formed between plaintiff
and CTIC, CTIC's non-performance is excused by and plaintiffs
recovery
under Counts IV, V, and VI of its Complaint are barred due to a
mistake of fact.
4. To the extent a contract is herein deemed to have been formed
between plaintiff
and CTIC, CTIC's non-performance is excused by - and Counts IV,
V, and VI of
plaintiffs Complaint are barred by virtue of - the fact that,
upon information and
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belief, Tri-Lakes Title Insurance Company, Inc. lacked the
capacity and authority
to enter into said contract on behalf of CTIC.
5. Plaintiffs recovery under Counts IV, V, and VI of its
Complaint is barred by
virtue of the fact that it has not incurred a loss which would
be compensable if
said contract had ever been issued.
6. CTIC reserves the right to assert additional affirmatives
upon discovery of facts
relating to or evidencing the same.
WHEREFORE, having fully answered plaintiff City of Branson,
Missouris
Complaint, and having further asserted Affirmative Defenses to
the same, defendant
Chicago Title Insurance Company prays this Court for its entry
of an Order dismissing
said Complaint with prejudice, awarding said defendant its costs
and fees incurred herein,
and awarding such other and further relief this Court deems just
and proper under the
premises.
Respectfully submitted,
MARTIN, LEIGH, LAWS & FRITZLEN, P.C.
/s/ Shawn T. Briner______________________
Shawn T. Briner, #47286MO
16305 Swingley Ridge Rd., Ste. 350
Chesterfield, MO 63017Telephone: (636) 534-7600
Facsimile: (636) 534-5520
[email protected]
ATTORNEYS FOR CERTAIN DEFENDANTS
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mailto:[email protected]:[email protected]:[email protected]
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CERTIFICATE OF SERVICE
The undersigned certifies that a true and complete copy of the
foregoing was
served on the 14th
day of September, 2012 via the Courts ECF system upon all
counsel
of record.
/s/ Shawn T. Briner______________________
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