Appeal from an order of the United States District Court for the Southern District of New York, Edward Weinfeld, Judge, granting a preliminary injunction which permitted plaintiff to settle or bond certain mechanic's liens without prejudice to its rights under a title insurance policy and denying defendant's motion to dismiss the complaint. Order reversed insofar as it granted a preliminary injunction and affirmed insofar as it denied defendant's motion to dismiss.
Before: TIMBERS, VAN GRAAFEILAND and MESKILL, Circuit Judges.
VAN GRAAFEILAND, Circuit Judge:
This is an appeal from an order of the United States District Court for the Southern District of New York which granted plaintiff a preliminary injunction and denied defendant's motion to dismiss the complaint. The preliminary injunction permanently amended the provisions of a policy of title insurance between appellant and appellee by negating several of the terms and conditions contained therein. For the reasons hereafter discussed, we think this relief which was final in nature was improperly granted in this interim order; and we reverse that portion of the order. Defendant's motion to dismiss was properly denied; and, as to that portion of the order, we affirm.
No testimony was introduced in the District Court, and we, like the District Judge, must attempt to sketch in the factual background of the dispute from the affidavits and the pleadings. From these, it appears that plaintiff-appellee, Diversified Mortgage Investors (DMI), is a real estate investment trust and defendant-appellant, U.S. Life Title Insurance Company of New York (USL), is a title insurance company with a branch office in the City of Albany. Beginning in 1971, DMI made a number of mortgage loans to Sleepy Hollow Lake, Inc. for the development of a recreational housing community in Greene County, New York. Although it is not clear from the motion papers how many loans were made, an affidavit submitted on behalf of USL indicates that DMI was the mortgagee in four separate mortgages totaling in excess of twenty-one million dollars.
In any event, the first mortgage conveyed to DMI was for twelve million dollars, covering loans to be made in installments; and USL was requested to issue a title insurance policy in the amount of five million dollars with an endorsement to increase coverage up to twelve million dollars "upon receipt of applicable premiums and proof of no intervening liens or encumbrances." This policy was issued on September 29, 1971, in the face amount of five million dollars, and USL says that this amount was not increased thereafter by the payment of any additional premiums.
In 1974, Sleepy Hollow Lake, Inc. defaulted on its mortgage payments, and it was found that almost two million dollars in mechanic's liens had been filed against the mortgaged property. On January 21, 1975, a number of these lienors started a mechanic's lien foreclosure action in Supreme Court of Greene County, in which DMI, as an apparent prior lien holder, was not named a defendant. When that action appeared on the Greene County trial calendar in April 1975, a motion was made to amend the complaint to bring in DMI as a defendant and to allege the priority of the mechanic's liens over its mortgage because of the failure of DMI to file a building loan statement as required by N.Y. Lien Law § 22 (McKinney 1966). This section provides that a building loan contract, containing certain specified information, must be filed in the office of the clerk of the county in which the land is situated and that, if it is not so filed, the interest of each party to the contract in the real property affected thereby shall be subject to subsequently filed liens. USL was asked to undertake the defense of this action on behalf of DMI and did so, taking the position that the loan agreement which it insured was not a building loan contract.
DMI also demanded of USL that it settle with the mechanic's lienors and secure the discharge of their liens. When USL refused to do this, DMI commenced the action below and refused thereafter to cooperate with USL in the defense of the state foreclosure action. DMI's complaint in the District Court is for a declaratory judgment: (1) declaring that USL negligently failed to record the building loan agreement by reason of which it is "liable for all costs and expenses incurred in disposing" of the mechanic's liens;*fn1 (2) directing USL to immediately take all steps necessary to restore the priority of DMI's mortgage lien, "including settling, discharging or bonding of existing mechanic's liens so that they are properly cleared of record" or in the alternative permitting DMI to do so without prejudice to its rights under its insurance policy; and (3) awarding DMI damages for the negligence and bad faith of USL.
DMI then moved for a preliminary injunction which would require USL to discharge forthwith the mechanic's liens or alternatively would permit DMI to do so without prejudice to its rights under its policy of title insurance. DMI claimed that unless the liens were settled or otherwise disposed of to clear the record title immediately, its entire investment would be rendered worthless, asserting that the value of the uncompleted project is in the neighborhood of only $1.2 million. It further claimed that it could advance no more funds to complete the project, even though it was willing to do so, since any further advances would be inferior to the mechanic's liens. The District Judge granted such motion to the extent that he permitted DMI to settle, bond or otherwise dispose of the mechanic's liens without prejudice to any rights of USL "other than a disclaimer based upon lack of consent to settlement of the liens." It is this portion of the order which we reverse.*fn2
Although it seems clear from the District Judge's short opinion that he felt little or no prejudice would accrue to USL from the order, it is also clear that he undertook to rewrite the contract between the parties by, in effect, eliminating therefrom certain clauses and provisions upon which the parties had agreed. These were the customary indemnity provisions reserving to the insurer its rights to defend any action relating to the interest insured in order to prevent or reduce loss;*fn3 requiring the insured to provide it with this opportunity;*fn4 and disclaiming coverage for any liability voluntarily assumed by the insured in settling any claim or suit without the written consent of the company.*fn5
In proceeding to rewrite the contract between the parties, the District Judge said that he was preserving the rights of the litigants. We do not agree. A title insurance policy is a contract between insurer and insured, and the rights of the parties are as provided for therein. Udell v. City Title Ins. Co., 12 A.D.2d 78, 80, 208 N.Y.S.2d 504 (1st Dept. 1960). The parties having agreed upon their own terms and conditions, "the courts cannot change them and must not permit them to be violated or disregarded." Whiteside v. North American Accident Ins. Co., 200 N.Y. 320, 325, 93 N.E. 948 (1911); Bronen v. New York Abstract Co., 19 A.D.2d 821, 243 N.Y.S.2d 664 (1st Dept. 1963) (mem.). Provisions such as the foregoing, which reserve to the insurer the control of litigation and settlement, have been consistently enforced. 7A Appleman, Insurance Law and Practice § 4714, at 587 (1962); 14 Couch on Insurance 2d § 51:19, at 521 (1965); 15 Couth, supra, § 57:172, at 803 (1966); 45 C.J.S. Insurance § 937, at 1071 (1946); Kennelly v. London Guarantee and Accident Co., 184 App. Div. 1, 171 N.Y.S. 423 (1st Dept. 1918); Freed v. Inland Empire Ins. Co., 154 F. Supp. 855, 859 (D. Utah 1957); Ohio Casualty Ins. Co. v. Ross, 222 F. Supp. 292, 296 (D.Md. 1963).
Accordingly, an insured who does not comply with the terms of his policy by preserving for his insurer the opportunity to defend or compromise, is usually not entitled to recover under his contract. 9 Appleman, supra, § 5216, at 22 (1943); Schefflin v. Title Guarantee and Trust Co., 262 App. Div. 913, 28 N.Y.S.2d 838 (2d Dept. 1941) (mem.), aff'd, 292 N.Y. 533, 54 N.E.2d 381 (1944) (mem.). The order appealed from, while attempting to "preserve" the rights of all the parties, irrevocably altered them. It permanently deprived USL of a contractual defense which, under normal circumstances, would be a valid one. This, we think, is not the proper function of an interim injunction order. Whatever the merits of DML's claim that USL should not be allowed unreasonably to rely on the consent disclaimer in the contract, a determination of the validity of that disclaimer in any particular case should await full explication of the facts at trial.
The purpose of a preliminary injunction is to maintain the status quo pending a final determination on the merits.
Danielson v. Local 275, Laborers Int'l Union, 479 F.2d 1033, 1037 (2d Cir. 1973); American Mercury v. Kiely, 19 F.2d 295, 297 (2d Cir. 1927). It provides relief which is "interlocutory, tentative, provisional, ad interim, impermanent, mutable, not fixed or final or conclusive, characterized by its for-the-time-beingness." Hamilton Watch Co. v. Benrus Watch Co., 206 F.2d 738, 742 (2d Cir. 1953). It should not be used as a device for creating a new contract between the parties or deciding questions of contract breach, properly determinable after trial. Unicon Management Corp. v. Koppers Co., 366 F.2d 199, 204 (2d Cir. 1966); Foundry Services, Inc. v. Beneflux Corp., 206 F.2d 214, 216 (2d Cir. 1953); Interphoto Corp. v. Minolta Corp., 295 F. Supp. 711, 723 (S.D.N.Y.), aff'd, 417 F.2d 621 (2d Cir. 1969) (per curiam); 43 C.J.S. Injunctions § 77, at 547 (1945). It is not an adjudication on the merits, Benson Hotel Corp. v. Woods, 168 F.2d 694, 696 (8th Cir. 1948); Walker Memorial Baptist Church v. Saunders, 285 N.Y. 462, 474, 35 N.E.2d 42 (1941), and it should not grant relief properly awarded only in a final judgment. Dunn v. Retail Clerks Int'l Ass'n, 299 F.2d 873, 874 (6th Cir. 1962); Miami Beach ...