[WSBARP] litigation guarantee coverage question

[Eric Nelsen]

Good thought--It’s probably possible as a solution but I bet it’s twice the premium. I should ask a title officer.

Re who is the insured, me or my client—I have gone back and forth about that as well. The standard practice is as you state, naming the law firm as the assured, but I have at times added my client as an assured since they’re really the injured party if the named defendants are incomplete. No?

Sincerely,

Eric

Eric C. Nelsen
Sayre Law Offices, PLLC
1417 31st Ave South
Seattle WA 98144-3909
206-625-0092
eric at sayrelawoffices.com<mailto:eric at sayrelawoffices.com>

From: wsbarp-bounces at lists.wsbarppt.com <wsbarp-bounces at lists.wsbarppt.com> On Behalf Of Stromberg, Spencer
Sent: Tuesday, August 22, 2023 2:26 PM
To: WSBA Real Property Listserv <wsbarp at lists.wsbarppt.com>
Subject: Re: [WSBARP] litigation guarantee coverage question

I wonder if it's possible to have two parcels listed in the litigation guaranty? I've never tried that, but it seems appropriate here, since the ownership of both parcels is critical to the lawsuit.

Also, doesn't a litigation policy really just cover the lawyer for any issues that result from the guaranty not naming all of the vested owners? Almost like an E&O policy - you rely on the guaranty for the names of the defendants, and if your client doesn't get complete relief because there should have been another named defendant and you incur a loss (through your client's malpractice claim, most likely), the policy kicks in. I've only ever had litigation guaranties that name me or my firm as the "assured" vs. the client.

Spencer A. W. Stromberg
Attorney at Law

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On Tue, Aug 22, 2023 at 12:46 PM Eric Nelsen <eric at sayrelawoffices.com<mailto:eric at sayrelawoffices.com>> wrote:
Thanks Greg! That’s my thought also, but what about the language in the policy that says it’s intended to cover litigation relating to the described land, but the described land is actually the neighbor’s property, which isn’t at issue? Because the encroachment is onto my client’s property.

Or am I reading too much into that restriction, and the policy will still cover because the neighbor’s property benefits from the improvements that encroach onto my client’s property?

Sincerely,

Eric

Eric C. Nelsen
Sayre Law Offices, PLLC
1417 31st Ave South
Seattle WA 98144-3909
206-625-0092
eric at sayrelawoffices.com<mailto:eric at sayrelawoffices.com>

From: wsbarp-bounces at lists.wsbarppt.com<mailto:wsbarp-bounces at lists.wsbarppt.com> <wsbarp-bounces at lists.wsbarppt.com<mailto:wsbarp-bounces at lists.wsbarppt.com>> On Behalf Of Gregory L. Ursich
Sent: Tuesday, August 22, 2023 12:12 PM
To: WSBA Real Property Listserv <wsbarp at lists.wsbarppt.com<mailto:wsbarp at lists.wsbarppt.com>>
Subject: Re: [WSBARP] litigation guarantee coverage question

Eric: Order the litigation guarantee on the neighboring property, to verify ownership to name the correct trespasser.  But, do not name any lienholders like banks. -Greg

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From: wsbarp-bounces at lists.wsbarppt.com<mailto:wsbarp-bounces at lists.wsbarppt.com> <wsbarp-bounces at lists.wsbarppt.com<mailto:wsbarp-bounces at lists.wsbarppt.com>> On Behalf Of Eric Nelsen
Sent: Tuesday, August 22, 2023 11:54 AM
To: WSBA Real Property Listserv <wsbarp at lists.wsbarppt.com<mailto:wsbarp at lists.wsbarppt.com>>
Subject: [WSBARP] litigation guarantee coverage question

I have generally used litigation guarantees as a method of determining the proper defendants when I’m pursuing an adverse possession claim. That is, my client has encroached on a neighboring parcel, so I need to confirm who has interests in that property.

Now, though, I’m doing a trespass and ejectment claim against an encroaching party, who owns the neighboring property. My client is being encroached upon, but defendant hasn’t encroached long enough to establish adverse possession.

My dilemma:

If I order a litigation guarantee on my client’s property which is encroached upon, then the guarantee will simply confirm that my client is the vested owner. That doesn’t help me confirm the identity of the proper defendant.

If I instead order a litigation guarantee on the neighboring property, it will confirm the identity of the encroaching party, BUT it appears to me that the litigation guarantee won’t actually provide any insurance coverage for my client. Part of the guarantee states:

“This Guarantee is restricted to the use of the Assured solely for the purpose of providing information to facilitate the commencement of the suit at law…affecting the land described in Schedule A." But the land described in Schedule A is the neighboring parcel, not my client's parcel which is being encroached upon.

Am I doing this wrong? Is there another type of litigation guarantee that covers when the insured is being encroached upon and is seeking to identify the defendant(s) who own(s) the neighboring parcel?

Sincerely,

Eric

Eric C. Nelsen
Sayre Law Offices, PLLC
1417 31st Ave South
Seattle WA 98144-3909
206-625-0092
eric at sayrelawoffices.com<mailto:eric at sayrelawoffices.com>

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