IN THE UNITED STATE DISTRICT COURT FOR THE WESTERN DISTRICT OF MISSOURI SOUTHERN DIVISION CITY OF BRANSON, MISSOURI,

) ) Plaintiff, ) ) v. ) ) FIRST AMERICAN TITLE INSURANCE ) COMPANY, a California Corporation; ) CHICAGO TITLE INSURANCE COMPANY, ) a Nebraska Corporation; and ) FIDELITY NATIONAL TITLE INSURANCE ) COMPANY, a California Corporation, ) ) Defendants. ) COMPLAINT Plaintiff, City of Branson, Missouri (Branson), by and through its counsel of record, and for its Complaint against First American Title Insurance Company (First American), Chicago Title Insurance Company (Chicago Title) and Fidelity National Title Insurance Company (Fidelity) hereby states as follows: PARTIES, 1. Branson is a municipal corporation organized under the laws of the State of

Case No. ______________

Missouri and located within Taney County, Missouri. 2. First American is a California corporation with its principal place of business

located, upon information and belief, in Arizona. 3. Chicago Title is a Nebraska corporation with its principal place of business

located, upon information and belief, in Florida. 4. Fidelity is a California corporation with its principal place of business located,

upon information and belief, in Florida.

2754265.8

Case 6:12-cv-03387-GAF Document 1 Filed 08/13/12 Page 1 of 22

5.

Chicago Title is the successor of Ticor Title Insurance Company of Florida

(hereinafter Ticor) through a merger on May 31, 2010. 6. Chicago Title is a wholly owned subsidiary of Fidelity. JURISDICTION AND VENUE 7. Complete diversity under 28 U.S.C. 1332 exists between the parties, and the

amount in controversy exceeds $75,000.00, as described more fully herein. 8. U.S.C. 2201. 9. Venue is proper in the United States District Court for the Western District of This action is brought pursuant to Federal Rule of Civil Procedure 57 and 28

Missouri as all or a substantial portion of the events and omissions giving rise to this litigation, as more fully described herein, occurred within the geographic boundaries of the Court, and all or a substantial portion of the real property involved in this litigation is located within the geographic boundaries of the Court. GENERAL ALLEGATIONS Title Insurance Policies Purchased from Defendants 10. In 2001 and 2002, Branson acquired multiple tracts of real estate, together with

real already owned by Branson, (collectively hereinafter the Insured Property) located on or near the shoreline of Lake Taneycomo in the historic downtown district of Branson, Taney County, Missouri. 11. Branson acquired the Insured Property as part of a redevelopment plan for the

creation of a mixed-use commercial and residential development to be known as the Branson Landing Project (Branson Landing).

2
2754265.8

Case 6:12-cv-03387-GAF Document 1 Filed 08/13/12 Page 2 of 22

12.

The Insured Property, together with other parcels of real property already owned

by Branson or occupied by it under long-term leases, were to be re-platted as The Branson Landing and leased by Branson for a term of 99 years to a developer, which would construct, or sublease to others who would then construct, an upscale outdoor shopping destination, multiple hotels and restaurants, condominiums, a convention center, marinas, other retail spaces and public spaces. 13. On or about December 13, 2001, First American issued Title Policy Number

OP163892 in the amount of $18,190,000.00 to Branson for Bransons purchase of some of the Insured Property from several different owners (Title Policy 1). A true and accurate copy of Title Policy 1, including the legal description of the portion Insured Property included within it, is attached hereto as Exhibit A and incorporated herein by reference. 14. Title Policy 1 began on December 13, 2001 and continues so long as Branson

retains an interest in that portion of the Insured Property. 15. On or about August 16, 2002, First American issued Title Policy Number

OP163895 in the amount of $498,000.00 to Branson for Bransons purchase of the rest of the Insured Property from the Revocable Living Trust of Jewell M. Schroll dated the 8th day of March, 1990, Jewell M. Schroll, Trustee (Title Policy 2). A true and accurate copy of Title Policy 2, including the legal description of the portion of the Insured Property included within it, is attached hereto as Exhibit B and incorporated herein by reference. 16. Title Policy 2 began on August 16, 2002 and continues so long as Branson retains

an interest in that portion of the Insured Property. 17. Subsequent to First American issuing Title Policy 1 and Title Policy 2, the

Insured Property together with other property owned by Branson or occupied by Branson under a

3
2754265.8

Case 6:12-cv-03387-GAF Document 1 Filed 08/13/12 Page 3 of 22

long-term lease was re-platted as the Final Replat of Branson Landing (Landing Plat), a subdivision located in Taney County, Missouri. A true and correct copy of the Landing Plat is attached hereto as Exhibit C and incorporated herein by reference. 18. 19. The Insured Property is located within the Landing Plat Branson leased all of the real property within the Landing Plat to HCW

Development Company, LLC and its related entities (hereinafter collectively, HCW) so HCW could construct the Branson Landing. 20. NordbankAG 21. HCW gave NordbankAG, as security for NordbankAGs loan to HCW, a Deed of As part of its development of Branson Landing, HCW obtained financing from

Trust in its leasehold interest in the real property contained in the Landing Plat. 22. Tri-Lakes Title Co. of Branson, Missouri handled the real estate closing of the

transaction between HCW and NordbankAG in 2005. 23. In 2005, Tri-Lakes Title Co. was an agent for Ticor with the authority to bind

Ticor to policies of title insurance. 24. As part of the transaction between HCW and NordbankAG, Branson was to be

issued an Owners Policy of title insurance by Ticor covering all of the land contained in the Landing Plat. 25. Branson was told by Tri-Lakes Title Co. that an Owners Policy from Ticor would

be issued to it as part of the closing of the transaction between HCW and NordbankAG. 26. Branson was billed by Tri-Lakes Title Co. $66,650.00 for title search services and

title insurance premium in connection with the HCW and NordbankAG transaction.

4
2754265.8

Case 6:12-cv-03387-GAF Document 1 Filed 08/13/12 Page 4 of 22

27.

Of the amount billed by Tri-Lakes Title Co. to Branson, $41,650.00 was for the

premium on the Owners Policy from Ticor insuring Branson. 28. Branson paid Tri-Lakes Title Co. $66,650.00, including $41,650.00 for the

premium on the Owners Policy. 29. Despite Bransons payment, Tri-Lakes Title Co. failed to ever provide a copy of

the Owners Policy to Branson. Quite Title Lawsuit & First Americans Conduct 30. On July 18, 2003, a Petition was filed in the Circuit Court of Taney County,

styled Empire District Electric Company, Plaintiff vs. The Branson Paper Company, Inc., Douglas Coverdell, Julia A. Coverdell, Coverdell Enterprises, Inc., Bcuz, Inc., Keycom International, Inc., City of Branson, Henry (Hank) Griffin, and Peter Ray and Darlene Ray, Defendants, designated Case No. 03CV787034 (Empire Quiet Title Action). A true and correct copy of the Empire District Electric Companys (Empire) Petition is attached hereto as Exhibit D and incorporated herein by reference. 31. Empire sought to quiet title in its favor to two distinct tracts of property, Property

1 and Property 2, in Taney County, Missouri designated in Empires Petition and herein described cumulatively as the Peninsula Property. 32. The Peninsula Property was located to the north of the Branson Landing Project

and formed by the confluence of Roark Creek and what was originally the White River, now Lake Taneycomo. 33. On or about March 28, 2003, Branson, through its attorneys, demanded First

American to defend and indemnify it in the Empire Quiet Title Action. 34. First American eventually accepted Bransons tender of defense.

5
2754265.8

Case 6:12-cv-03387-GAF Document 1 Filed 08/13/12 Page 5 of 22

35.

On May 20, 2004, First American retained Attorney Lynn Rodgers as counsel for

Branson in the Empire Quiet Title Action under Title Policy 1. 36. On June 10, 2004, Douglas Coverdell, Julia A. Coverdell, and Coverdell

Enterprises, Inc. (collectively, Coverdells) filed a pleading in the Empire Quiet Title Action labeled Answer and Counterclaim alleging, inter alia, they (1) lacked sufficient knowledge as to the legal descriptions and allegations regarding the ownership of the eastern and western portions of the Peninsula Property claimed by Empire and, therefore, denied same, and (2) maintained ownership of property hereinafter referred to as Property 3, the legal description of which was attached to the Answer and Counterclaim as Exhibit A. A true and correct copy of the Coverdells Answer and Counterclaim, including its Exhibit A is attached hereto as Exhibit E and incorporated herein by reference. 37. By letter dated July 6, 2004, Mr. Rodgers wrote First American stating, It is not

clear to me that we have a thorough and comprehensive search of the real estate records for all the deeds at the present time. It might be worthwhile to commission a preparation of an actual abstract. A true and correct copy of the July 6, 2004, letter is attached hereto as Exhibit F and incorporated herein by reference. 38. Mr. Rodgers enclosed deeds and maps generated by Branson in the July 6, 2004,

letter to First American that graphically illustrated the location of the Peninsula Property at issue. 39. On August 20, 2004, Branson filed a Third-Party Petition in the Empire District

Quiet Title Action naming, inter alia, the Coverdells as defendants and alleging Branson was the owner of the property in Taney County, Missouri referred to herein as Property 4, essentially the western portion of the Peninsula Property, with the following legal description: A tract of land being a part of the Southeast Quarter of the Northwest Quarter and a part of the Northeast Quarter of the Southwest Quarter of Section 33, Township 6
2754265.8

Case 6:12-cv-03387-GAF Document 1 Filed 08/13/12 Page 6 of 22

23 North, Range 21 West, being more particularly described as follows: Beginning at the Northeast corner of Park Addition to the City of Branson, Missouri; thence North 219 West to the southerly bank of Roark Creek; thence in a southerly direction with the easterly and southerly bank of said Roark Creek to the northerly line of said Park Addition; thence easterly to the Point of Beginning, all bearings being referenced to the centerline of Sycamore Street as being due North and South. 40. On December 20, 2004, Branson obtained a final Judgment and Decree in the

Empire Quiet Title Action (2004 Judgment) and title to the western half of the Peninsula Property, Property 4. A true and correct copy of the Judgment and Decree is attached hereto as Exhibit G and incorporated herein by reference. 41. The 2004 Judgment did nothing with respect to Empires claims against the other

parties to the land on the eastern half of the Peninsula Property. 42. By letter dated January 3, 2005, Mr. Rogers wrote First American, asking if First

American wanted him to continue to participate in, or at least monitor, the remainder of the litigation. I will, of course, be happy to do so. A true and correct copy of the January 3, 2005 letter is attached hereto as Exhibit H and incorporated herein by reference. 43. 44. First American never responded to Mr. Rogers January 3, 2005 letter. By letter dated February 15, 2005, Mr. Rodgers wrote to First American,

informing it (1) the 2004 Judgment was then final and (2) the Empire Quiet Title Action, to which Branson was still technically a party, was still proceeding with respect to the eastern portion of the Peninsula Property. A true and correct copy of the February 15, 2005 letter is attached hereto as Exhibit I and incorporated herein by reference. 45. Mr. Rodgers February 15, 2005 letter to First American stated: Please advise as

to whether you want me to close my file, or continue to monitor the case to insure that no further or other claims to the insured property arise.If you want me to continue to monitor the remainder of the case, please advise. See Exhibit I. 7
2754265.8

Case 6:12-cv-03387-GAF Document 1 Filed 08/13/12 Page 7 of 22

46. 47.

First American never responded to Mr. Rogers February 15, 2005 letter. By letter dated March 21, 2005, Mr. Rodgers wrote to First American informing it

(1) he closed his file for now, and (2) he could reactivate his file in the future if it became necessary to do so. A true and correct copy of Mr. Rodgers March 21, 2005 letter is attached hereto as Exhibit J and incorporated herein by reference. 48. On April 18, 2007, the Coverdells filed a Second Amended Answer in the Empire

Quiet Title Action. A true and correct copy of the Coverdells Second Amended Answer is attached hereto as Exhibit K and incorporated herein by reference. 49. 50. In their Second Amended Answer, the Coverdells pled no claim against Branson. Upon information and belief, the next correspondence between Branson and First

American was a letter from Mr. Rodgers to First American, dated August 20, 2008. A true and correct copy of the August 20, 2008 letter is attached hereto as Exhibit L and incorporated herein. 51. Mr. Rodgers August 20, 2008 letter to First American informed First American

that a new Petition was filed by Coverdell Enterprises which may not actually challenge the property on which we were successful in quieting title, however it is plead with sufficient vagueness that it is hard to be certain. See Exhibit L. 52. Mr. Rodgers requested an update as to the address of First Americans claims

office to which the new Petition should be forwarded. See Exhibit L. 53. By letter dated September 11, 2008 Mr. Rodgers wrote to First American, (1)

explaining the background of his representation of Branson in the Empire Quiet Title Action, and (2) forwarding a copy of the new Petition filed by Coverdell Enterprises. See Exhibit M. attached hereto and incorporated herein by reference.

8
2754265.8

Case 6:12-cv-03387-GAF Document 1 Filed 08/13/12 Page 8 of 22

54.

Mr. Rodgers September 11, 2008 letter informed First American the Empire

Quiet Title Action continued after Branson received a judgment in its favor to title to the eastern half of the Peninsula Property and that the action remains pending for resolution of the interest of the parties in the eastern half of the Peninsula. See Exhibit M. 55. On or about December 21, 2009, Empire dismissed its remaining claims in the

Empire Quiet Title Action against all parties. 56. The Court proceeded to jury trial on January 11, 2010, and on January 13, 2010

the jury returned a verdict in favor of the Coverdells against Empire. 57. Branson did not participate in the January 2010 jury trial; no one appeared on

behalf of Branson at the trial. 2010 Judgment 58. On or about January 14, 2010, a Judgment was filed dated 1-14-09 and

purporting to quiet title in two tracts located in Taney County (2010 Judgment). A true and correct copy of the 2010 Judgment is attached hereto as Exhibit N and incorporated herein by reference. 59. The 2010 Judgment purported to quiet title in Douglas Coverdell to a tract

described as follows: All that part of the SE1/4 of the NW1/4 situate on the right bank of Roark Creek and that part of the NE1/4 of the SW1/4 in Section 33, Township 23, Range 21, EXCEPT a tract of land more particularly described as beginning at the NE corner of Park Addition to the City of Branson, Missouri, thence North 219 West to the Southerly bank of Roark Creek; thence in a Southerly direction with the Easterly and Southerly bank of said Roark Creek to the Northerly line of said Park Addition; thence Easterly to the point of beginning; all bearings being referenced to the centerline of Sycamore Street as being due North and South. 60. The aforesaid legal description set forth by the 2010 Judgment far exceeds the

dimensions and acreage of the 3.6 acres described as the Coverdells Answer and Counterclaim, 9
2754265.8

Case 6:12-cv-03387-GAF Document 1 Filed 08/13/12 Page 9 of 22

and includes a significant portion of the Branson Landing owned by Branson, as well as other real property belonging to third parties. 61. The 2010 Judgment purports to (1) hold that no other party has any claim of

right, title or interest whatsoever in or to the above described property and (2) dispose of all issues among the parties without identifying who is bound as a party to the 2010 Judgment. 62. Branson did not receive a copy of the 2010 Judgment from the trial court, instead

it received it subsequently from Empires counsel. 63. Subsequent to the entry of the 2010 Judgment, Coverdell and Coverdell

Enterprises contended the 2010 Judgment awarded each title better than that of Branson to all or a substantial portion of the Insured Property. Appeal of 2010 Judgment 64. On March 11, 2010, after learning of the 2010 Judgment, Branson moved to file a

brief as an Amicus Curiae with the trial court, but Bransons motion was denied. 65. Branson subsequently filed its Application for Writ of Prohibition with the

Missouri Court of Appeals, Southern District, which was denied because the Court of Appeals determined Branson had a right to appeal the 2010 Judgment. 66. 67. Branson timely filed a Notice of Appeal on May 21, 2010. The Missouri Court of Appeals, Southern District reversed and remanded the

2010 Judgment for plain error on June 3, 2011. 68. Following the denial of requests by Coverdell for further appellate review, the

Missouri Court of Appeals, Southern District issued its mandate on September 2, 2011, and jurisdiction was again vested in the Circuit Court of Taney County, Missouri.

10
2754265.8

Case 6:12-cv-03387-GAF Document 1 Filed 08/13/12 Page 10 of 22

69.

Since the reversal and remand of the 2010 Judgment, Coverdell, Coverdell

Enterprises and others have made and continue to make claims they have title better than that of Branson to the Insured Property in the Empire Quiet Title Suit and in two related lawsuits filed in the Circuit Court of Taney County, Missouri, in all of which Branson is currently a party. Bransons Demands for Defense from First American and Ticor 70. By letter dated April 23, 2010, Branson, through its attorney, David W. Bushek,

notified First American of the claims against Branson, concerning the Insured Property and of the existence of the 2010 Judgment. See Exhibit O, a true and correct copy of which is attached hereto and incorporated herein as though fully set forth herein. 71. Bransons April 23, 2010 letter was a demand for indemnity and defense in full

compliance with the requirements of the title insurance policies issued First American to Branson covering the Insured Property. 72. Instead of accepting Bransons tender of defense, First American failed to respond

to Bransons request until Mr. Bushek sent a follow-up letter dated June 21, 2010, on behalf of Branson. See Exhibit P, a true and correct copy of which is attached hereto and incorporated herein by reference. 73. By letter dated July 21, 2010, First American finally responded to Bransons

request for indemnity and defense stating, . . . no loss is payable for Bransons claim set forth by Mr. Bushek. See Exhibit Q, a true and correct copy of which is attached hereto and incorporated herein as though fully set forth herein. 74. By letter dated September 1, 2010, Branson, through its acting City Attorney,

William Duston, again demanded indemnity and defense from First American, in fully

11
2754265.8

Case 6:12-cv-03387-GAF Document 1 Filed 08/13/12 Page 11 of 22

compliance with the title insurance policies, and appealed First Americans earlier denial of coverage. 75. Despite Bransons renewed demand for indemnity and defense, on or about

October 11, 2010, First American again denied Bransons claim to coverage. See Exhibit S, attached hereto and incorporated herein by reference. 76. Throughout the course of Bransons appeal of the 2010 Judgment and the

subsequent reversal of the Empire Quiet Title Suit to the Circuit Court of Taney County, Missouri, Branson kept First American fully informed of the progress of the case and repeatedly demanded indemnification and defense from First American including, but not limited, written communications with First American on the following dates: March 31, 2011; June 8, 2011; September 21, 2011, December 27, 2011 and January 10, 2012. Copies of each of the abovereferenced communications are collectively attached hereto and incorporated by reference as Exhibit T. 77. Despite Bransons repeated demands, First American has refused and still refuses

to defend and indemnify Branson concerning the insured property. 78. Due to First Americans refusal to fulfill its obligations to Branson, Branson has

incurred significant and substantial attorneys fees to defend itself and its ownership of the Insured Property. 79. Due to First Americans refusal to fulfill its obligations to Branson, Branson will

continue to incur attorneys fees in defending itself and its ownership of the Insured Property, as well as any losses it may suffer as a result of litigation challenging its title to the Insured Property.

12
2754265.8

Case 6:12-cv-03387-GAF Document 1 Filed 08/13/12 Page 12 of 22

80.

Due to the actions of Ticors agent, Tri-Lakes Title, Branson never received a

copy of the Ticor policy it purchased and paid for through Ticors agent, as more fully described above. 81. Branson made repeated demands on Ticor, through its agent, Tri-Lakes, for copies

of the policy but never received a copy. 82. Despite Ticors wrongful actions, Branson made demand on, by letter dated

January 26, 2011, Ticor for indemnification and defense under the title insurance policies that should have issued to Branson. See Exhibit U, a true and correct copy of which is attached hereto and incorporated herein by reference. 83. Despite Branson demands for indemnity and defense, Ticor denied Bransons

claim to coverage. 84. Throughout the course of the appeal of the 2010 Judgment and the subsequent

reversal of the Empire Quiet Title Suit to the Circuit Court of Taney County, Missouri, Branson kept Ticor fully informed of the progress of the case and repeatedly demanded indemnification and defense from Ticor, including but not limited to, written commutations with Ticor on the following dates: March 28, 2011 and June 8, 2011. Copies of each of the above-referenced communications are collectively attached hereto and incorporated herein by reference as Exhibit W. 85. Despite Bransons repeated demands, Ticor has refused, and continues to refuse

to defend and indemnify Branson. 86. Due to Ticors refusal to fulfill its obligations to Branson, Branson has incurred

significant and substantial attorneys fees to defend itself and its ownership of the Insured Property.

13
2754265.8

Case 6:12-cv-03387-GAF Document 1 Filed 08/13/12 Page 13 of 22

87.

Due to Ticors refusal to fulfill its obligations to Branson, Branson will continue

to incur attorneys fees in defending itself and its ownership of the Insured Property, as well as any losses it may suffer as a result of litigation challenging its title to the Insured Property. COUNT I: DECLARATORY JUDGMENT AGAINST FIRST AMERICAN 88. Branson restates and realleges the allegations of Paragraphs 1-87 of the General

Allegations as if fully set out in full herein and incorporates the same herein by reference. 89. Branson properly made demand to First American for First American to defend

and indemnify Branson regarding the Insured Property and the claims made by parties other than Branson asserting ownership of the Insured Property. 90. Branson. 91. First Americans denial purportedly relies on an exclusion contained in Title First American improperly denied coverage and refused to defend and indemnify

Policy 1 and Title Policy 2 relating to defects, liens, encumbrances, and adverse claims attaching or created subsequent to the Date of the Policy. 92. The legal description in the 2010 Judgment first appeared in deeds executed in

1972 and 1999, which describe what are now portions of the Insured Property. True and accurate copies of the 1972 deed and the 1999 deed are attached hereto as Exhibits X and Y, respectively, and incorporated herein by reference. 93. The 1972 deed and the 1999 deed were filed of record with the Taney County,

Missouri Recorder of Deeds prior to the respective effective dates of Title Policy 1 and Title Policy 2. 94. Post the 2010 Judgment, the Coverdells claim the 1972 deed and the 1999 deed

conveyed an interest in the Insured Property to them.

14
2754265.8

Case 6:12-cv-03387-GAF Document 1 Filed 08/13/12 Page 14 of 22

95.

The Policies, in part, state:

SUBJECT TO THE EXCLUSIONS FROM COVERAGE, THE EXCEPTIONS FROM COVERAGE CONTAINED IN SCHEDULE B AND THE CONDITIONS AND STIUPLATIONS, FIRST AMERICAN TITLE INSURANCE COMPANY, a California 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, sustained or incurred by the insured by reason of: 1. Title to the estate or interest described in Schedule A being vested other than as stated therein; 2 Any defect in or lien or encumbrance on the title; 3. Unmarketability of the title; 4. Lack of a right of access to and from the land. The Company will also pay the costs, attorneys fees and expenses incurred in the defense of the title, as insured, but only to the extent provided in the Conditions and Stipulations. EXCLUSIONS FROM COVERAGE 3. Defects, liens, encumbrances, adverse claims or other matters: (d) attaching or created subsequent to Date of Policy.

CONDITIONS AND STIPULATIONS 4. DEFENSE AND PROSECUTION OF ACTIONS: DUTY OF INSURED CLAIMANT TO COOPERATE. (a) Upon written request by the insured and subject to the options contained in Section 6 of theses Conditions and Stipulations, the Company, at its own cost and without unreasonable delay, shall provide for the defense of an insured in litigation in which any third party asserts a claim adverse to the title or interest as insured, but only as to those stated causes of action alleging a defect, lien or encumbrance or other matter insured against by this policy. 96. 97. Title Policy 1 and Title Policy 2 provide coverage for Bransons claims. An actual controversy exists within this Courts jurisdiction so that Branson is

entitled to seek a declaratory judgment of its rights under Title Policy 1 and Title Policy 2

15
2754265.8

Case 6:12-cv-03387-GAF Document 1 Filed 08/13/12 Page 15 of 22

pursuant to 28 U.S.C. 2201 and 2202, Rule 57, Federal Rules of Civil Procedure 57, and MO. 527.010-527.130. 98. controversy. 99. 100. 101. This matter is ripe for judicial resolution. Branson has no adequate alternative remedy at law. Branson is entitled to its attorneys fees in this claim against First American. Branson has a legally protectable interest which is at stake in this justiciable

WHEREFORE, for the reasons set forth above, Plaintiff, City of Branson, Missouri respectfully prays that this Court enter a judgment declaring Defendant First American Title Insurance Company has an obligation to defend and/or indemnify Branson against claims asserted by the Coverdells and others in the Empire Quiet Title Action and related cases and in Bransons appeal of the 2010 Judgment, for Bransons costs and attorneys' fees incurred herein, and for such other and further relief as this Court deems just and proper. COUNT II: BREACH OF CONTRACT AGAINST FIRST AMERICAN 102. Branson restates and realleges the allegations of paragraphs 1-101 as if fully set

herein and incorporates the same herein by reference. 103. 104. Branson purchased the Insured Properties in 2001 and 2002. On or about December 13, 2001, and for money paid by Branson, First American

issued and delivered Title Policy 1 to Branson as the insured. 105. On or about August 16, 2002, and for money paid by Branson, First American

issued and delivered Title Policy 2 to Branson as the insured.

16
2754265.8

Case 6:12-cv-03387-GAF Document 1 Filed 08/13/12 Page 16 of 22

106.

On or about January 14, 2010, while the Policies were in full force and effect, the

2010 Judgment was entered in favor of the Coverdells which purported to quiet title in certain property owned by Branson that was covered by the Policies. 107. The legal description in the 2010 Judgment first appeared in deeds executed in

1972 and 1999, which describe what are now portions of the Insured Property, and were filed of record with the Taney County, Missouri Recorder of Deeds prior to the effective dates of the Policies. 108. indemnify it. 109. Despite Bransons repeated demands for defense and indemnification, First Branson made a demand to First American for First American to defend and

American continued to deny coverage. 110. First Americans denial of liability was without just cause or excuse, unreasonable

as the facts would appear to a reasonable person at the time and based on incorrect reasons. 111. Despite repeated demands, First American has failed and refused to defend and

indemnify Branson on Bransons covered losses, in breach of the Policies and to Bransons injury. 112. Branson has incurred damages, costs, expenses and fees will continue to incur

damages, costs, expenses and fees as a result of First Americans denial of Bransons demand to First American to defend and indemnify it in litigation involving property insured under the Policies. 113. Branson is entitled to its attorneys fees in this claim against First American.

WHEREFORE, for the reasons set forth above, Plaintiff City of Branson, Missouri respectfully prays that this Court enter a judgment declaring Defendant First American Title

17
2754265.8

Case 6:12-cv-03387-GAF Document 1 Filed 08/13/12 Page 17 of 22

Insurance Company has an obligation to defend and/or indemnify Branson against claims asserted by the Coverdells and others in the Empire Quiet Title Action and related cases and in Bransons appeal of the 2010 Judgment, for Bransons costs and attorneys' fees incurred herein, and for such other and further relief as this Court deems just and proper. COUNT III: BAD FAITH AGAINST FIRST AMERICAN 114. Branson restates and realleges the allegations of paragraphs 1-113 as if fully set

forth herein and incorporates the same herein by reference. 115. First Americans refusal to defend and indemnify Branson, and the delay in

providing a defense and/or indemnification, is unreasonable, willful, vexatious, and without reasonable cause; therefore, pursuant to MO. REV. STAT. 375.296 and 375.420, as amended, First American is liable for interest from and after the date of Bransons tender of defense, penalties as provide by statute, costs of suit and reasonable attorneys fees for its vexatious refusal to defend and indemnify Branson. 116. To date, Branson has incurred significant and substantial attorneys fees and will

continue to incur such fees until this action is concluded. WHEREFORE, for the reasons set forth above, Plaintiff City of Branson, Missouri, respectfully prays that this Court enter a judgment in favor of Branson and against Defendant First American for Bransons attorneys fees incurred to date, together with prejudgment interest and interest at the legal rate, statutory penalties for vexatious refusal to pay, for Bransons costs and attorneys' fees incurred herein, and for such other and further relief as this Court deems just and proper.

18
2754265.8

Case 6:12-cv-03387-GAF Document 1 Filed 08/13/12 Page 18 of 22

COUNT IV: DECLARATORY JUDGMENT AGAINST TICOR 117. Branson restates and realleges the allegations of paragraphs 1-116 as if set out in

full herein and incorporates the same herein by reference. 118. Branson properly made demand to Ticor for Ticor to defend and indemnify

Branson regarding the Insured Property and the claims made by parties other than Branson asserting ownership of the Insured Property. 119. 120. Ticor improperly denied coverage and refused to defend and indemnify Branson. Ticors denial purportedly relies on a claim that no title insurance policy was ever

issued to Branson 121. Branson purchased and paid for a policy of title insurance from Ticor, through

Ticors agent Tri-Lakes, covering the Insured Property. 122. 123. Ticor is obligated to provide coverage for Branson on the Insured Property An actual controversy exists within this Courts jurisdiction so that Branson is

entitled to seek a declaratory judgment of its rights regarding the coverage that Ticor is obligated to provide for Branson pursuant to 28 U.S.C. 2201 and 2202, Rule 57, Federal Rules of Civil Procedure and MO. REV. STAT. 527.010-527.130. 124. controversy. 125. 126. 127. This matter is ripe for judicial resolution. Branson has no adequate alternative remedy at law. Branson is entitled to its attorneys fees in this claim against Ticor. Branson has a legally protectable interest which is at stake in this justiciable

WHEREFORE, for the reasons set forth above, Plaintiff City of Branson, Missouri prays this Court enter a judgment declaring Defendant Ticor Title Insurance Company has an

19
2754265.8

Case 6:12-cv-03387-GAF Document 1 Filed 08/13/12 Page 19 of 22

obligation to defend and/or indemnify Branson against claims asserted by the Coverdells and others in the Empire Quiet Title Action and related cases and in Bransons appeal of the 2010 Judgment, for Bransons costs and attorneys' fees incurred herein and for such other and further relief as this Court deems just and proper. COUNT V: BREACH OF CONTRACT AGAINST TICOR 128. Branson restates and realleges the allegations of paragraphs 1-127 as if set out in

full herein and incorporates the same herein by reference. 129. 130. Branson contracted with Ticor for an Owners Policy on the Insured Property. Branson paid Ticor, through Ticors agent Tri-Lakes, for a policy of title

insurance on the Insured Porperty. 131. On or about January 14, 2010, while the title insurance policy was to be in full

force and effect, the 2010 Judgment was entered in favor of the Coverdells which purported to quiet title in certain property owned by Branson that was to be covered by the Ticor policy. 132. The legal description in the 2010 Judgment first appeared in deeds executed in

1972 and 1999, which describe what are now portions of Branson Landing, and were filed of record with the Taney County, Missouri Recorder of Deeds prior to the effective dates of the Policies. 133. 134. Branson made a demand to Ticor for Ticor to defend and indemnify it. Despite Bransons repeated demands for defense and indemnification, Ticor

continued to deny coverage. 135. Ticors denial of liability was without just cause or excuse, unreasonable as the

facts would appear to a reasonable person at the time, and based on incorrect reasons.

20
2754265.8

Case 6:12-cv-03387-GAF Document 1 Filed 08/13/12 Page 20 of 22

136.

Despite repeated demands, Ticor has failed and refused to defend and indemnify

Branson on Bransons covered losses, in breach of the Ticor policy and to Bransons injury. 137. Branson has incurred damages, costs, expenses and fees and will continue to incur

damages, costs, expenses and fees as a result of Ticors denial of Bransons demand to Ticor to defend and indemnify it in litigation involving property insured under the Ticor policy. 138. Branson is entitled to its attorneys fees in this claim against Ticor.

WHEREFORE, for the reasons set forth above, the City of Branson, Missouri prays that this Court enter a judgment declaring that Ticor Title Insurance Company has an obligation to defend and/or indemnify Branson against claims asserted by the Coverdells and others in the Empire Quiet Title Action and related cases and in Bransons appeal of the 2010 Judgment, for Bransons costs and attorneys' fees incurred herein, and for such other and further relief as this Court deems just and proper. COUNT VI: BAD FAITH AGAINST TICOR 139. Branson restates and realleges the allegations of paragraphs 1-138 as if set out in

full herein and incorporates the same herein by reference. 140. Defendant Ticors refusal to defend and indemnify Branson, and the delay in

providing a defense and/or indemnification, is unreasonable, willful, vexatious and without reasonable cause; therefore, pursuant to MO. REV. STAT. 375.296 and 375.420, as amended, Ticor is liable for interest from and after the date of Bransons tender of defense, penalties as provide by statute, costs of suit and reasonable attorneys fees for vexatious refusal to defend and indemnify. 141. To date, Branson has incurred significant and substantial attorneys fees and will

continue to incur such fees until this action is concluded.

21
2754265.8

Case 6:12-cv-03387-GAF Document 1 Filed 08/13/12 Page 21 of 22

WHEREFORE, for the reasons set forth above, Plaintiff City of Branson, Missouri, prays this Court enter a judgment in favor of Branson and against Defendant Ticor for Bransons legal fees incurred to date, together with prejudgment interest and interest at the legal rate, statutory penalties for vexatious refusal to pay, for Bransons costs and attorneys' fees incurred herein, and for such other and further relief as this Court deems just and proper. Respectfully submitted, POLSINELLI SHUGHART, PC

JAY M. DADE, Mo. Bar #41600 jdade@polsinelli.com JAMES E. MEADOWS, Mo. Bar #50874 jmeadows@polsinelli.com JENNIFER R. GROWCOCK, Mo. Bar #56496 jgrowcock@polsinelli.com 901 E. St. Louis Street, Suite 1200 Springfield, MO 65806 Telephone: (417) 869-3353 Facsimile: (417) 869-9943 ATTORNEYS FOR PLAINTIFF CITY OF BRANSON

22
2754265.8

Case 6:12-cv-03387-GAF Document 1 Filed 08/13/12 Page 22 of 22