Woody Creek Ventures (Woody) bought and developed two parcels of land. They purchased the land from the Bureau of Land Management (BLM) and the parcels were connected by a road that was also owned by the BLM. Along with the land purchase, Woody bought a title insurance policy to cover the property. The policy was sold by Fidelity National Title Insurance Company (Fidelity).

After the parcels had been developed and were being sold, one prospective buyer asked a question about access to the land. Woody found out that the only access to the property was the road belonging to BLM. Once Woody found that it had no legal access to the remote parcel, it filed a claim with Fidelity based on the substantially diminished value of its property caused by its allegations of lack of legal access and an unmarketable title.

On behalf of Woody, Fidelity hired a lawyer who arranged 30-year revocable rights of access contract between BLM and Woody. Woody insisted on a response to the claim and Fidelity filed a lawsuit, asking a declaration that the access agreement solved the complaint of both the previous lack of legal access and marketability of title. Woody countersued and the lower court found in favor of Fidelity. Woody appealed the decision.

The higher court examined the issue and agreed with the lower court. Essentially, it ruled that the title insurance policy did not require a permanent resolution to the lack of access. Since the access rights contract cured the access problem, it also addressed the issue of title marketability. The lower court decision in favor of Fidelity was upheld.

Fidelity national Title Insurance Company, Plaintiff Counter Defendant-Appellee, v. Woody Creek Ventures, L.L.C., a Colorado limited liability company, Defendant Counterclaimant-Appellant and Pitkin County Tile, Inc. a Colorado corporation, Defendant.USCTApp 10th Circuit. No. 14-1274. Filed July 26, 2016. Affirmed. Westlaw 830 F. 3d 1209.