United States District Court, District of Columbia
N. MCFADDEN UNITED STATES DISTRICT JUDGE.
Commonwealth Land Title Insurance Company
(“Commonwealth”), a title insurance company,
seeks judgment against defendants KCI Technologies, Inc.
(“KCI”) and Wiles Mensch Corp.
(“WMC”), both of which conducted surveys of a
particular plot of land in Washington, D.C. under service
contracts with land developer Infrastructure Capital Group,
LLC or its affiliate ICG 16th Street Associates, LLC
(collectively “ICG” or “Insured”).
Commonwealth alleges that, because both surveyors were
negligent in conducting the land surveys upon which it relied
in issuing title insurance policies to ICG, the Defendants
are liable for the payout it made under ICG's title claim
seeking reimbursement for additional costs incurred as a
result of the inaccurate surveys. The Defendants have filed
separate motions to dismiss for failure to state a claim. As
jurisdiction and venue is proper in this Court,
upon consideration of the pleadings, relevant law, related
legal memoranda in opposition and in support, and the entire
record therein, I find that the statute of limitations has
run on the Plaintiff's claims. Accordingly, the
Defendants' motions will be granted, and the Complaint
will be dismissed with prejudice.
issue in this case are four different land surveys conducted
on the same plot of land between 2006 and 2014; two of which
were conducted by KCI and two of which were conducted by WMC.
In 2006, ICG purchased the land lot at 900 16th Street NW,
Washington, D.C. for the purpose of constructing a new
commercial office building. Compl. ¶¶ 4-7. ICG
hired KCI to conduct and produce a land title survey.
Id. ¶ 8; see also Id. Ex. A
(“KCI Professional Services Agreement” dated June
22, 2006). KCI's 2006 survey did not identify any
encroachment on the land, and contained a
“Surveyor's Certification” that stated the
survey was made in accordance with the “Minimum
Standard Detail Requirements for ALTA/ACSM Land Title
Surveys.” Id. Ex. B (“KCI 2006
Survey” signed April 10, 2007). Commonwealth alleges
that it relied upon this survey to issue a title insurance
policy to ICG (“2007 Title Policy”). Id.
December 2012, ICG hired WMC to conduct a Boundary,
Topographic and Utility Survey (“WMC 2012
Survey”) which identified a party wall that encroached
on the property by two to three inches. Id.
¶¶ 15-16. In May 2013, WMC re-conducted the same
survey (“WMC 2013 Survey”) and stated to ICG that
the encroachment was four inches. Id. ¶ 19. ICG
subsequently again commissioned KCI to conduct an ALTA/ACSM
Land Title Survey, which was issued in February 2014
(“KCI 2014 Survey”) and identified no
encroachment. See Id. ¶ 21; Compl. ¶¶
77-79. The survey included a certification similar to the one
made in the KCI 2006 survey. See Id. ¶ 22;
see also Id. Ex. H. Commonwealth alleges that it
relied upon the KCI 2014 Survey to issue a title insurance
policy to ICG (“2014 Title Policy”). Id.
March 24, 2014, the architectural and construction company
hired by ICG reported to ICG that the encroachment was
actually 12 inches. Id. ¶ 27. In order to
construct the building as intended, ICG decided to demolish
the encroachment, incurring $2, 666, 379 in demolition costs
and payment of a partial delay penalty to the building's
main tenant. Id. ¶¶ 28, 36. On September
17, 2014 and November 17, 2014, ICG tendered claims on the
2007 and 2014 title policies, respectively, to Commonwealth,
which accepted coverage and made a loss payment to ICG under
the 2007 policy. Id. ¶¶ 31, 33-35; Mem. of
P. & A. in Opp. to WMC's Mot. to Dismiss (“Opp.
to WMC Mot. to Dismiss”) 2 n.1, ECF No. 13.
Commonwealth claims that it incurred $1, 042, 025.31 due to
the loss payment made to ICG and expenses. Id.
March 23, 2017, Commonwealth brought suit against KCI and
WMC, alleging seven causes of action. Certified Copy of
Transfer Order and Docket Sheet (“Superior Court Docket
Sheet”), ECF No. 10. Of the seven counts, one count is
against WMC and six counts are against KCI. Compl. 7-12. As
against WMC, Commonwealth alleges that, as the assignee of
ICG's rights and claims, it is subrogated to all claims
that ICG had against WMC (Count One). Id. ¶ 38.
Commonwealth seeks to recover ICG's costs of $2, 666, 379
for WMC's breach of contract for failing to take notice
of a 12 inch encroachment. Id. ¶ 41.
against KCI, Commonwealth alleges that KCI's 2006 survey,
in failing to notice a 12 inch encroachment on the property,
was conducted negligently (Count Two) and negligently
represented the true state of the property (Count Three).
Id. ¶¶ 43-55. Commonwealth seeks judgment
against KCI for $1, 042, 025.31, the amount incurred by
Commonwealth as a result of its insuring and paying out a
title claim to ICG. Id. Commonwealth also alleges
these same claims as pertaining to KCI's 2014 survey
(Counts Five and Six) and seeks the same judgment. Id.
¶¶ 60-74. Last, Commonwealth alleges that it
is subrogated to all claims that ICG has against KCI by
virtue of ICG's assignment of its rights and claims to
Commonwealth. Id. ¶¶ 57, 76. It makes
breach of contract claims against KCI with respect to the
2006 and 2014 surveys (Counts Four and Seven, respectively).
Id. ¶¶ 56-59, 75-80.
timely removed this matter to this Court; Not. of Removal,
ECF No. 1; and both KCI and WMC have filed motions to dismiss
for failure to state a claim upon which relief can be
granted. Def KCI Technologies, Inc.'s Mot. to Dismiss
(“KCI Mot. to Dismiss”), ECF No. 7; Def Wiles
Mensch Corp.'s Mot. to Dismiss (“WMC Mot. to
Dismiss”), ECF No. 5; see also Def. KCI
Technologies, Inc.'s Supp./Revised Mot. to Dismiss
(“KCI Supp. Mot. to Dismiss”), ECF No.
may move to dismiss a complaint on the ground that it
“fail[s] to state a claim upon which relief can be
granted.” Fed.R.Civ.P. 12(b)(6). A complaint must
contain sufficient factual allegations that, if true,
“state a claim to relief that is plausible on its
face.” Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007). In evaluating a motion to dismiss pursuant
to Rule 12(b)(6), the Court must construe the complaint in
the light most favorable to the plaintiff and accept as true
all reasonable factual inferences drawn from well-pled
factual allegations. See In re United Mine Workers of Am.
Emp. Benefit Plans Litig., 854 F.Supp. 914, 915 (D.D.C.
1994). In addition, “[i]n determining whether a
complaint fails to state a claim, [the court] may consider
only the facts alleged in the complaint, any documents either
attached to or incorporated in the complaint and matters of
which [the court] may take judicial notice.” Hurd
v. District of Columbia Gov't, 864 F.3d 671, 678
(D.C. Cir. 2017) (quoting EEOC v. St. Francis Xavier
Parochial Sch., 117 F.3d 621, 624 (D.C. Cir. 1997)).
WMC each argue that Commonwealth's causes of action are
time-barred under D.C. law by the three-year statute of
limitations, and the Plaintiff does not dispute that this is
the applicable statute of limitations. WMC Mot. to Dismiss.
8; Opp. to WMC Mot. to Dismiss 5; KCI's Reply to
Pl.'s Opp. to Mot. to Dismiss 2, ECF No. 18; KCI Supp.
Mot. to Dismiss ¶ 6; Opp. to KCI Supp. Mot. to Dismiss
4; see also D.C. Code Ann. § 12-301(7)-(8).
Because I find that Commonwealth did not bring suit until
after the statute of limitations had run, and that D.C.'s
“discovery rule” is inapplicable to the
circumstances as alleged, Commonwealth's claims are
The Statute of ...