Saturday, January 26, 2013

Does Fidelity National Title Insurance Company have Deniability????



Per Wikipedia:
The work-product doctrine is more inclusive than attorney-client privilege.  Unlike the attorney–client privilege, which includes only communications between an attorney and the client, work-product includes materials prepared by persons other than the attorney him/her self: The materials may have been prepared by anybody as long as they were prepared with an eye towards the realistic possibility of impending litigation. Additionally, it includes materials collected for the attorney such as interrogatories, signed statements, other information acquired for the prosecution or defense of a case, "memoranda, briefs, communications . . . other writings prepared by counsel for his/her own use in prosecuting the client's case . . . mental impressions, conclusions, opinions, or legal theories."

So here are my questions.  In the previous blog post I discussed the fact that they would not produce the documents concerning the Grant Deed because as an "insurance company" they did not produce them.  Now they cannot produce them because they are saying that part of this material was produced in preparation for litigation.  So since when are Grant Deeds prepared with the anticipation of litigation?

Here is what again I do not understand.  The title insurance company insures the "title" - right???

Per Wikipedia:
Title is a legal term for a bundle of rights in a piece of property in which a party may own either a legal interest or an equitable interest. The rights in the bundle may be separated and held by different parties. It may also refer to a formal document that serves as evidence of ownership.  Conveyance of the document may be required in order to transfer ownership in the property to another person.

So according to this one of the things they are insuring is the "formal document that serves as evidence of ownership".  So in other words the Grant Deed that is (and was) recorded by Fidelity National Title.  So as this is the "document" that Fidelity National Title Insurance Company would insure - correct?  And wouldn't one think that Fidelity National Title Insurance Company would in some way participate in the preparation (or at least review it) of the Grant Deed????  Or do they just insure a document that they have absolutely no relationship to?

When we (my attorney and myself) actually wrote this what I was trying to figure out was how this mistake was made considering that Fidelity's website says they do a diligent search of the public records - and neither of us realized that Fidelity National Title Company and Fidelity National Title Insurance Company - although related are somehow legal separate entities so their is deniability.