Woodle v. Commonwealth Land Title Ins. Co., 844 N.W.2d 806

Woodle and Chase Woodle sued Commonwealth Land Title Insurance Company and Omaha Title & Escrow for defense and indemnification under a title insurance policy issued for Lot 2 in Sun Country Addition, Sarpy County, Nebraska.
Lot 2 carried two express easements in favor of adjacent Lots 1 and 3, which were challenged in a quiet title action; the Woodles sought coverage for defense against counterclaims arising from implied easements.
The district court held there was no coverage because implied easements existed only after judicial recognition, which occurred via a decree in the quiet title action.
Exclusion 3(d) of the policy, covering defects, encumbrances, or other matters created or attached after the policy date, was the basis for denying defense and indemnification.
The Woodles argued that implied easements were created before policy issuance and thus should be covered; Commonwealth argued the easements attached only upon judicial recognition and thus were excluded.
On appeal, the Nebraska Court of Appeals affirmed the district court’s grant of summary judgment for Commonwealth, holding the implied easements attached when recognized by decree in 2010, after the policy date.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Exclusion 3(d) applies to implied easements.	Woodle argues exclusion does not apply because implied easements were not created after policy date.	Commonwealth contends implied easements attach only after judicial recognition and thus are post-policy and excluded.	Exclusion 3(d) applies; implied easements attached after policy date.
When do implied easements attach to land for coverage purposes?	Implied easements existed at subdivision in 1992 and attached then.	Easements attach only upon judicial recognition by decree.	Implied easements attach at judicial recognition, not at subdivision.
Was Commonwealth required to raise Exclusion 3(d) as an affirmative defense?	Woodle contends Exclusion 3(d) was not raised as an affirmative defense.	Commonwealth raised Exclusion 3(d) in multiple summary judgment hearings; objection by Woodle was not raised.	Not plain error; Exclusion 3(d) properly considered.
Does policy coverage extend to defense of counterclaims in the quiet title action?	Policy should cover defense against implied easement counterclaims.	Policy excludes such claims under Exclusion 3(d) since attached post-policy.	No coverage for the implied easement counterclaims; district court correct.

Gies v. City of Gering, 13 Neb. App. 424 (Neb. App. 2005) (defenses may be raised without specific pleading form)
In re Estate of Rosso, 270 Neb. 323 (2005) (absence of objection on appeal invoked plain-error rule)
Carstensen v. Chrisland Corp., 247 Va. 433 (1994) (easement by necessity may arise pre-judicial order but attach upon court recognition)
O’Connor v. Kaufman, 260 Neb. 219 (2000) (easement by implication analysis includes time of severance and necessity)
Feloney v. Baye, 283 Neb. 972 (2012) (definition and requirements for easements and related encumbrances)
Fitzgerald v. Community Redevelopment Corp., 283 Neb. 428 (2012) (contract interpretation as a question of law)
Cartwright v. State, 286 Neb. 431 (2013) (standard for reviewing summary judgments)