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05/27/94 BRUCE M. RACKOUSKI v. DONNA R. DOBSON AND

May 27, 1994

BRUCE M. RACKOUSKI, PLAINTIFF,
v.
DONNA R. DOBSON AND JOHN J. DOBSON, DEFENDANTS, DONNA R. DOBSON AND JOHN J. DOBSON, THIRD-PARTY PLAINTIFFS-APPELLANTS, V. STEWART TITLE CORPORATION, THIRD-PARTY DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Will County. No. 92 CH 13018. Honorable Herman Haase, Judge, Presiding.

Released for Publication June 27, 1994.

Present - Honorable Allan L. Stouder, Justice, Honorable Tom M. Lytton, Justice, Honorable Tobias Barry, Justice

The opinion of the court was delivered by: Barry

JUSTICE BARRY delivered the opinion of the court.

Plaintiff in this action, Bruce Rackouski owns property adjacent to the property of defendant-appellants, Donna and John Dobson (appellants). Plaintiff filed a complaint against appellants alleging that the appellants' barn and fence reach beyond the appellants' property and encroach on plaintiff's property. Plaintiff sought, among other things, removal of the barn and fence from his property. Appellants filed a third-party complaint against appellee, Stewart Title Corporation, seeking equitable relief from appellee's refusal to defend and insure appellants against the underlying lawsuit. Plaintiff is not a party to this appeal.

Appellants claim that the appellee is under a duty to defend and insure the appellants pursuant to the title insurance policy issued to the appellants by the appellee. Appellee contends that it is under no duty to insure or defend appellant. Appellee cites the section of the policy at issue which defines the term "land," stating that "* * * the term "land does not include any property beyond the lines of the area specifically described or referred to in Schedule A * * *."

Appellee filed a motion to dismiss the appellants' third-party complaint and the trial court granted appellee's motion. Thereafter, appellants filed a "First Amended Third-Party Complaint at Law" alleging that the encroachment of the barn and fence on plaintiff's land constituted a defect in title to appellants' property and that the encroachment rendered appellants' property unmarketable. Appellants' amended third-party complaint alleged that appellee is under a duty to defend and/or insure appellants against the underlying lawsuit based on the following provision of the insurance policy at issue:

"SUBJECT TO THE EXCLUSIONS FROM COVERAGE, THE EXCEPTIONS CONTAINED IN SCHEDULE B AND THE PROVISIONS OF THE CONDITIONS AND STIPULATIONS HERETO, STEWART TITLE GUARANTY COMPANY, a Texas corporation, herein called the Company, insures, as of Date of Policy shown in Schedule A, against loss or damage, not exceeding the amount of insurance stated in Schedule A, and costs, attorneys' fees and expenses which the Company may become obligated to pay hereunder, sustained or incurred by the insured by reason of:

1. Title to the estate or interest described in Schedule A being vested otherwise than as stated therein:

2. Any defect in or lien or encumbrance on such title:

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

4. Unmarketability of such title."

Appellee then filed a motion to dismiss appellants' amended third-party complaint which alleged that there were no substantial changes in the amended complaint and that the complaint failed to state a claim upon which relief could be granted under section 2-615 of the Illinois Code of Civil Procedure. (Ill. Rev. Stat. 1991, ch. 100, par. 2-615.) The trial court granted appellee's motion to dismiss appellants' amended third-party complaint and appellants now appeal.

We must determine whether the trial court erroneously decided that appellee is under no duty to defend or insure appellants under the insurance policy at issue. The trial court has made no determination of ...


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