Kleveland

Is an arbitration clause in a title insurance policy enforceable where arbitration was not mentioned in the preliminary title report and where that report referred to a policy that was different than that actually issued by the insurer? We conclude the answer is no. Under these circumstances, the arbitration clause was not incorporated by reference into the preliminary report and is not binding upon the insured. We affirm.

FACTS AND PROCEDURAL HISTORY

Plaintiffs Chris Kleveland and AOK Land Company LLC purchased a title insurance policy from defendant Chicago Title Insurance Company (Chicago Title) on the basis of a preliminary title report they received and approved. The preliminary report described the real property to be insured, the coverage to be afforded and the exceptions and exclusions to that coverage, but it did not indicate the policy would include an arbitration clause. The cover sheet of the preliminary report stated, “The form of policy title insurance contemplated by this report is: ALTA [American Land Title Association] HOMEOWNER’S POLICY OF TITLE INSURANCE (11/98).” It further advised, “Copies of the Policy forms are available upon request.” This policy…