Facts:  Petitioner Csaba Kiss sold a parcel of land to respondent Ivan Popchoi and his wife pursuant to a statutory warranty deed that included a duty to defend against any claims to title.  After J.E. and Naomi Edmonson, the owners of an adjacent property, brought an adverse possession claim to a portion of the property in the Superior Court for King County, Kiss declined to assist in defending against the claim and instead agreed to pay damages to compensate the Popchois for the value of the disputed portion of the property.  The trial court subsequently granted summary judgment for the Edmonsons, finding that their use of the disputed portion of the property was open, notorious, hostile, and exclusive for the requisite ten years.  As Kiss had been joined as a third party defendant to the Edmonsons’ claim by the Popchois, the trial court also ordered that Kiss not only pay damages to compensate the Popchois for the value of the disputed portion of the property but also that he compensate the Popchois for the legal fees they incurred in defending against the Edmonsons’ claim.  Kiss appealed the trial court’s order, asserting that he had satisfied his duty to defend by agreeing to pay damages and that the Popchois were in any event barred from bringing a breach of warranty claim against him insofar as they had failed to notify him of the Edmonsons’ intrusion upon the property.  The Washington Court of Appeals affirmed the trial court’s decision.  Kiss appealed this decision to the Supreme Court of Washington.

Question(s):  Did Kiss satisfy his duty to defend by agreeing to pay damages to the Popchois?

Did the Popchois’ failure to notify Kiss of the Edmonsons’ intrusion upon their property bar them from bringing a breach of warranty claim against Kiss?

Conclusion:  Justice Owens’ opinion for a unanimous Court affirmed the Washington Court of Appeals, concluding that a statutory warrant deed’s duty to defend obliges the grantor to put forth a good faith defense to any claims to title and does not permit a grantor to simply concede to a third party’s claim to title and pay damages to the grantee as the grantee would be able to recover damages from the grantor even in the absence of the duty to defend.  The Court also held that the Popchois’ failure to notify Kiss of the Edmonsons’ intrusion upon their property did not bar them from bringing a breach of warranty claim against Kiss as knowledge of a defect on the part of a grantee does not waive the covenants of a deed.

Docket No. 84695-2 (from Court of Appeals Division I Case No. 63051-2)

Plaintiff: Csaba Kiss

(Counsel: Matthew F. Davis)

Respondent: Ivan Popchoi

(Counsel: John Warren Hathaway)

Briefs:

Argument: Tuesday, May 24, 2011 10:00am

[Source: TVW, http://tvw.org]

Decided: Thursday, August 4th, 2011

Vote: 8-0

Citation: Pending

Court: Madsen2 Court (2011-)

Madsen

Johnson

Alexander

Chambers

Owens
(Majority)

Fairhurst

Johnson

Stephens