Full opinion text
OPINION ORLOFSKY, District Judge. I. INTRODUCTION. ÜI o —3 II. BACKGROUND. ÜI o CD III. LEGAL STANDARD GOVERNING MOTIONS FOR SUMMARY JUDGMENT . Ox l — CD IV. DISCUSSION. OX to O A. RTC Mortgage Trust’s Motion for Partial Summary Judgment Against Nigro and Caine, DiPasqua. O 1. An Attorney’s Duty to a Non-Client. i — 2. Breach of Duty of Care Owed by Nigro to Home Federal. 04 3. Proximate Cause and Injury. CD 4. Respondeat Superior Liability. Oí B. FNTIC’s and NTI’s Motion for Summary Judgment. O 1. FNTIC Is Not Title USA’s Successor. O 2. NTI’s Motion for Summary Judgment. O a. RTC Mortgage Trust’s Claim Against NTI for Breach of the Title Insurance Policy . Ox CO o 1) Legal Standard Governing Construction of Title Insurance Policies . ox CO h-i 2) Title USA Did Not Breach the Title Insurance Policy. ox CO to b. RTC Mortgage Trust’s Claim for Negligent Title Search Against NTI. ox CO cjj c. RTC Mortgage Trust’s Claim for Negligent Hiring. <ox to d. Statute of Limitations... ox to e. NTI’s Request that this Court “Re-examine" its Holding in RTC Mortgage Trust II. ox ^ ox f. Counsel Fees. ox -a C. LTIC’s Motion for Summary Judgment.'. ox ^ oo V. CONCLUSION. ox ^ cd I. INTRODUCTION This case involves a failed savings and loan’s claims for breach of contract, negligence and legal malpractice, arising out of a commercial real estate transaction in which defendant, Rocco M. Nigro, Esq., acted as counsel for the buyer and the seller of the property, rendered an opinion letter for the benefit of the mortgage company, owned the title agency which negotiated the title insurance coverage and acted as the closing agent on behalf of the underwriting title insurance company. In sorting out the conflicting duties of care owed by Mr. Nigro, as well as his law firm and the title insurance companies involved in the mortgage transaction, I must determine the scope of an attorney’s duty to a non-client third party and whether the title insurance company voluntarily assumed a duty of care to its insured, independent of its obligations set forth in the title insurance policy. On June 16, 1997, Plaintiff, RTC Mortgage Trust 1994 N-l, successor in interest to Home Federal Savings and Loan Association, filed a five count amended complaint in this Court alleging claims for breaeh of contract, negligent title search, negligent hiring, and legal malpractice against Defendants, Fidelity National Title Insurance Company, Nations Title Insurance of New York, Eastern Developers Abstract, Inc., Caine, DiPasqua, Sloane & Raffaele f/k/a Caine, DiPasqua, Sloane, Raffaele & Nigro, Lawyers Title Insurance Corporation, and Rocco M. Nigro, Esq. On December 14, 1998, RTC Mortgage Trust filed a motion for partial summary judgment on the issue of liability on its claims for legal malpractice against Nigro and Caine, DiPasqua, and its claims for breach of contract and negligent title search against NTI. On December 14, 1998, NTI cross-moved for summary judgment on all claims asserted against it by RTC Mortgage Trust. In addition, on December 14, 1998, Lawyers Title Insurance Company also moved for summary judgment on all claims asserted against it by Plaintiff. This Court has jurisdiction over this matter pursuant to 28 U.S.C. § 1332, based upon complete diversity of citizenship between the parties and the requisite amount in controversy. For the reasons set forth below, I shall grant Plaintiffs motion for partial summary judgment on the issue of liability on its claim for legal malpractice against the Defendants, Rocco M. Nigro, Esq., and Caine, DiPasqua, Sloane & Raffaele. I shall also grant Plaintiffs motion for partial summary judgment on the issue of liability on its claim for negligent title search against Nations Title Insurance of New York. The entry of these partial summary judgments in favor of Plaintiff is subject to a resolution of disputed issues of material fact by a jury, pursuant to Lopez v. Swyer, 62 N.J. 267, 300 A.2d 563 (1973); Goodman v. Mead Johnson & Co., 534 F.2d 566 (3d Cir.1976), to determine whether these claims, as well as Plaintiffs claim for negligent hiring, are barred by the statute of limitations. I shall grant the motion of Defendant, Nations Title Insurance of New York, for summary judgment on Plaintiffs claims for breach of contract and the recovery of attorneys’ fees. I shall, however, deny the motion of Nations Title Insurance of New York for summary judgment insofar as it seeks summary judgment on Plaintiffs claim for negligent hiring, subject to the resolution of disputed issues of material fact by a jury surrounding the statute of limitations defense. Furthermore, I shall grant Defendant, Fidelity National Title Insurance Company’s motion for summary judgment on all claims asserted against it by Plaintiff. Finally, I shall grant the motion of Defendant, Lawyers Title Insurance Company, for summary judgment on all claims asserted against it by Plaintiff. In addition, given the multiple representations undertaken by Mr. Nigro in this transaction, and the myriad conflicts of interest presented by his conduct, I conclude that Rocco M. Nigro, Esq., violated Rule 1.7 of the New Jersey Rules of Professional Conduct, made applicable in this Court pursuant to Rule 103.1(a) of the Local Civil Rules of this Court. Accordingly, I shall refer this matter to David E. Johnson, Jr., Esq., Director of the New Jersey Office of Attorney Ethics, for whatever action he deems appropriate. II. BACKGROUND The facts and procedural history of this case have been summarized to some extent in this Court’s Opinions of October 20, 1997, RTC Mortgage Trust 199k N-l v. Fidelity National Title Insurance Co., et al, 981 F.Supp. 334 (D.N.J.1997) (“RTC I”), and August 14, 1998, RTC Mortgage Trust 1994 N-l v. Fidelity National Title Insurance Co., et al., 16 F.Supp.2d 557 (D.N.J.1998) (“RTC II”). What follows below are the facts and procedural history relevant to Plaintiffs and Defendants’ respective motions and cross-motions for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. On June 16, 1997, Plaintiff, RTC Mortgage Trust 1994 N-l (“RTC Mortgage Trust”), filed a five count Amended Complaint in this Court alleging claims for negligence and breach of contract against Defendants, Fidelity National Title Insurance Company (“FNTIC”), Nations Title Insurance of New York (“NTI”), Eastern Developers Abstract, Inc. (“Eastern”), Caine, DiPasqua, Sloane & Raffaele fik/a Caine, DiPasqua, Sloane, Raffaele & Nigro (“Caine, DiPasqua”), Lawyers Title Insurance Corporation (“LTIC”), and Rocco M. Nigro, Esq. (“Nigro”). See Amended Complaint (filed June 16, 1997). RTC Mortgage Trust’s claims include; (1) breach of a title insurance policy, negligent title search and negligent hiring against FNTIC and NTI, Count I; (2) breach of a title reinsurance policy and negligent title search against LTIC, Count II; (3) negligent title search against Eastern, Count III; and (4) legal malpractice against Nigro and Caine, DiPasqua, Counts TV and V. See Amended Compl, Counts I-V. Notwithstanding the convoluted procedural history of this matter and the forest of paper it has generated, see RTC I, 981 F.Supp. at 336-37; RTC II, 16 F.Supp.2d at 559-60, this case involves a relatively common commercial real estate transaction, which went sour after the borrowers/mortgagors defaulted. George Diemer (“Diemer”) and Robert Pacilli (“Pacilli”.) were commercial real estate developers and the general and limited partners in Mount Laurel Associates (“MLA”), a Pennsylvania limited partnership. See Plaintiffs Rule 56.1 Statement of Undisputed Fact (filed Dec. 14, 1998), ¶ 6, 8 (hereinafter “PI. R. 56.1 (Cts.IV-V)”). “Starting in or about 1985, ... Nigro[, an attorney of the bars of New Jersey, Pennsylvania, and Florida, see Letter to the Court from Rocco M. Nigro (dated Jan. 7, 1999),] ... was the principal attorney for Diemer, Pacilli and MLA with regard to the acquisition, financing and sale of land in Mount Laurel Township, Burlington County, consisting of approximately 350 acres, which came to be known as the Horizon Corporate Center.” See PI. R. 56.1 (Cts.IV-V); see also Certification of Robert A. Berns, Esq. (filed Dec. 14, 1998), Exh. B (Deposition of Rocco M. Nigro, Esq. (dated March 9, 1998) at 39-42). On one of the parcels of land within the Horizon Corporate Center, a 6.94 acre parcel, Lot 1, -Block 1300.02 on the Tax Map of Mount Laurel Township, Burlington County, also known as Parcel 2 (the “Property”), was constructed an office building called Atrium II. See PI. R. 56.1 (Cts.IV-V), ¶ 7; see also Certification of John A. Adler, Esq., in Support of Partial Summary Judgment against Nigro and Caine, DiPasqua (filed Dec. 14, 1998), Exh. K (Deed to the Property (dated Aug. 29, 1988)), and Exh. O (Mortgage Covering the Property (dated Aug. 29, 1988)). The Property and the mortgages covering the Property form the subject-matter of this litigation. See RTC II, 16 F.Supp.2d at 559. “Prior to August of 1988, Nigro, acting as attorney for Diemer and Pacilli and as title agent through Eastern!, in which Nig-ro was the sole shareholder,] participated in numerous transactions ... regarding] ... the Horizon Corporate Center, including transactions involving [the Property].” See PL R. 56.1 (Cts.IV-V), ¶ 9 (citing Nig-ro Dep. at 40-42, 47, 50). “Many of th[e] transactions involved Fidelity Bank, N.A. (‘Fidelity’) ... which provided construction and other financing for Diemer and Pacilli with regard to properties owned by them ... in the Horizon Corporate Center[,]” including the Property. Id. Two such transactions are of particular relevance to this case. First, on March 7, 1986, Nigro, as title agent for Eastern and as counsel for MLA, participated in a real estate closing of a commercial loan for $11,800,000 from Fidelity to MLA for the purpose of refinancing MLA’s previous indebtedness and to finance the construction of an office building in the Horizon Corporate Center (“the construction loan”). See Nigro Dep. at 50-51. “As security for the construction loan, Fidelity obtained a first mortgage on [the Property] in the amount of $11,800,000.” See P.R. 56.1 (Cts.IV-V), 1Í10. Second, on June 13, 1986, Nigro, again acting as title agent and counsel for MLA, participated in a real estate closing in which Fidelity loaned MLA $9,700,000 to purchase a parcel of raw land located within the Horizon Corporate Center. See id., ¶ 11; see also Nigro Dep. at 53-55. As security for this loan, Fidelity obtained a first mortgage on the raw land and a second mortgage on the Property (“the second mortgage”). See Nigro Dep. at 53-54. Nigro recorded the second mortgage on behalf of MLA and Fidelity. See id. Subsequently, Diemer and Pacilli organized another limited partnership, called Atrium II Limited Partnership (“Atrium II”), to seek additional financing from lenders other than Fidelity. See Adler Cert., Exh. H (Loan Commitment Letter (dated June 8, 1988)). On June 8, 1988, Nationwide Capital, a wholly owned subsidiary of Home Federal Savings and Loan (“Home Federal”), extended a mortgage loan commitment to Diemer, on behalf of Atrium II, in the amount of $13,500,000. See id. As security for the loan, Home Federal sought a first lien priority on the Property. See id. In addition, the loan commitment letter stated the terms and conditions under which Home Federal would proceed with the transaction. See id. In particular, the loan commitment letter set forth Home Federal’s title insurance requirements. See Adler Cert., Exh. H. Specifically, the letter provided: (1) Title insurance requirements — A title commitment from a title insurer and title agent approved by title insurer, acceptable to Home Federal, in form as follows: (a) The insured amount must be the full loan amount plus maximum deferred interest.... (d) The standard exceptions indicated on the commitment must be deleted from the final title policy. Home Federal must be provided with the recorded copies of all title exceptions and other instruments referenced in the title commitment. (f) If you are using a title agent, an insured closing letter.... Id. The loan commitment letter further required “[a] letter from an attorney licensed to practice law in New Jersey, retained by the borrower and acceptable to Home Federal, opining as to those matters set forth in the form of opinion letter attached.” Id. The attached form opinion letter sought a legal opinion that “[Atrium II] owns good and marketable fee simple title to [the Property] ... [and that the mortgage] constitutes a first hen security interest valid against all third parties, subject only to the matters and exceptions referred to in [the] Title Commitment....” Id. As counsel for Diemer, Nigro was retained to represent Diemer, Pacilli, MLA and Atrium II in the Home Federal mortgage transaction. See Nigro Dep. at 75, 107-108. Thus, under the terms of the loan commitment letter, Nigro, as Atrium IPs counsel, was required to prepare an opinion letter on the first lien priority position of the Home Federal mortgage. See Adler Cert., Exh. H, and Exh. Q (Letter to Nigro from Nationwide Capital (dated June 23,1988)). With regard to title services, Nigro’s practice was to refer his real estate clients, like Diemer and Atrium II, to Eastern, in which Nigro was the president, sole director, and sole shareholder. See Nigro Dep. at 11-14. Eastern would then act as the title agent for Nigro’s real estate closings with Title USA Corporation of New York (“Title USA”), predecessor in interest to NTI, see NTI’s Rule 56.1 Statement of Undisputed Facts (filed Dec. 14, 1998), ¶ 1 (hereinafter “NTI R. 56.1”), serving as the underwriting title insurance company. See Adler Cert., Exh P (Loan Agreement, ¶ 1.31); see also Nigro Dep. at 13-15. This same practice was followed by Nigro in connection with the Home Federal mortgage closing: Nigro served as counsel for Atrium II and, through Eastern, as the title agent, with Title USA underwriting the title insurance policy. See Adler Cert., Exhs. H, P, Q. Eastern had a total of three employees, namely, Nigro, its president; Linda Win-free, its secretary and treasurer; and Jane Ervin, who is listed as the “manager” on Eastern’s letterhead. See Nigro Dep. at 78-79; see also Adler Cert., Exh. X (Letter from Eastern to Title USA (dated July 8, 1998)). Ms. Winfree was also employed as Nigro’s legal secretary and paralegal. See Nigro Dep. at 18-19. Under the terms of the loan commitment letter, the loan agreement, and Eastern’s agency agreement with Title USA, Eastern was responsible for searching the Property’s title and preparing the Title Commitment. See Nigro Dep. at 13-17; Adler Cert., Exhs. H, P; see also Certification of Josiah A. Knapp, Esq. (filed Dec. 14, 1998), Exh. C (Agency Agreement between Eastern and Title USA). On the issue of Eastern’s operations, Nigro testified: Q. [By Mr. Adler] At the time we’re talking about, which is August of 1988, [where was Eastern physically located?] A. [By Nigro] ... I had a law office, and Linda Winfree who worked for me had another office where the title company was — our files were there and our equipment was there, and we did our [title] work out of there.... Q. Did Eastern have a separate office with its own rooms at Caine[,] DiPas-qua? A. Yes, that one room.... [Eastern] was a title agency not in the true sense of the word. It didn’t do title for a number of people and do a lot of transactions. It was relatively limited to my clients that I had, and the legal business I did some title work for them. Q. Tell me how the actual searches were done; who did them and what was the procedure? A.... On a typical [New Jersey] property I would be informed that we’re going to write a policy for a given transaction. I would usually contact ... Jane Ervin.... I would tell her that I needed to do a transaction, and she would order what we call a search commitment. She would order it from some independent contractor in the county where we were going to insure the property. She would contact — I presume she would. She told me she would. She would contact, did search work and did commitment work. She would get all of the information needed to formulate and prepare a [title] commitment and then prepare one. Q. She would prepare a commitment? A. Yes. Q. And then what? A. Then it would come to me and I would take a look at it and decide who we had to contact, what we had to do to clear up some of the items on the commitment such as judgments, liens or whatever. See Nigro Dep. at 13-17. Regarding the title search and commitment prepared in the Home Federal mortgage transaction, Nigro testified: Q. [By Mr. Adler] ... Now who prepared the commitment? A. [By Nigro] In all probability, it was prepared by Jane Ervin becausef ][t]hat [sic] who was preparing commitments at the time, and also on the commitment itself it has as part of the number, EJ, so that means Ervin, Jane. So I presume that has something to do with it. I have no specific independent recollection. Q. What role did you play in the preparation of this Commitment No. EJ 123? A. Probably minimal in preparing it, but I probably reviewed it and met with Linda Winfree who apparently was writing back and forth to [Home Federal] and [I] probably approved the things that she was doing. Q. Now, on schedule B [of the Title Commitment], there is a number starting with number nine. In reference to certain documents of record, where did that information come from? A.... Typically, it would come from either the search that we did for that transaction or other things that we had on file. In Mount Laurel, unlike most transactions, we had insured numerous properties in Mount Laurel, the Mount Laurel Park [ie., Horizon Corporate Center,] and we had insured numerous pieces numerous times. So a lot of times we didn’t go in and do a full blown search every time we did something. We relied on our prior materials, and I would decide whether we needed a farther search, supplemental search or whatever we may have needed in that particular transaction. At the time if you did a search on a Mount Laurel property, [like the Property at issue,] it would probably cost a couple thousand dollars to take numerous months to get done because it was so voluminous. As a matter of practicality and expedience, we had to somehow shorten that process to the best we could. Q. I take it that in preparation of this commitment, a full search of the record was not made? A. I’m not certain. It may or may not have been.... [Regarding the Property,] I’m not sure what was done, but we had insured Atrium II. When we acquired it, constructed the building, we added the amendment to the construction loan when we did the land loan. We had numerous files on this [Property], We would do this kind of case and look at what we have and look at our policies and our commitments, all of those things, and construct what we believe is a commitment, what you believe you would find on record if you went to the courthouse.... Q. Would the records of Eastern ... have included [Fidelity’s] second mortgage [on the Property] that had been recorded in 1986? A. They should have. I don’t know if they did or not, but they should have because we had insured that second mortgage and we did the transaction which [meant] we had a file on it. We did have one location with all of the Mount Laurel documents, the copies of them. It was at Jane’s house. She told me it used to consume yards of file space. So we did have everything. Whether or not [a file on Fidelity’s second mortgage] was actually there, I can’t tell you. I know we had everything that we had done to that date, at least a copy of it. Q. Does the second mortgage appear [on] this commitment? A. No. Q. Can you tell me why? A. I don’t know why. Q. But should it have? A. If it was on record at the time, yes, it should have; and if we were going to remove it, it would have been removed .... If it were on record, it should have been there[.] See Nigro Dep. at 78-83. In addition, in a previous deposition in 1992, during an adversary proceeding in the Bankruptcy Court, see RTC II, 16 F.Supp.2d at 559, Nigro testified: Q. Because Fidelity’s second mortgage on the Atrium II premises ... was in your files, that would have been reflected on [your title searches]? A. It should be. Sometimes they are not. Q. If it weren’t, why wouldn’t it be? A. Human error. Assuming it should be and weren’t, it’s a mistake. Q. And if such a mistake was made, whose mistake would it be? A. Either Jane Ervin’s, myself, or possibly the person who searched the records .... Somebody has to make a mistake when something doesn’t appear and it should appear. But it happens. If you are doing a lot of title work, it happens now and then.... And hopefully we catch those. If we don’t, that’s what the insurance is for. See Deposition of Rocco M. Nigro, Esq. (dated Mar. 27, 1992), at 119-20 (herinafter, “1992 Nigro Dep.”). Because the Home Federal mortgage transaction involved $13.5 million, a loan amount well in excess of Eastern’s authorized level of coverage, Eastern was required to obtain approval for the transaction from its underwriter, Title USA. See Knapp Cert., Exh. C. On June 23, 1988, after the title search of the Property failed to discover Fidelity’s second mortgage of record, Linda Winfree sent a copy of the proposed Title Commitment to Title USA for review. See Adler Cert., Exh. G (Cover Letter from Eastern to Title USA (dated June. 28, 1988)). The proposed Title Commitment was reviewed by Mark S. Baillie, Esq. (“Baillie”), Assistant Vice President and National Division Counsel for Title USA. See Certification of John A. Adler, Esq., in Opposition to Motion for Summary Judgment of NTI (filed Dec. 14, 1998) (“Adler Cert. (NTI)”), Exh. F (Letter to Eastern from Mark S. Baillie, Esq. (dated June 27, 1988)). Baillie responded to Winfree on June 27,1988, informing her that the proposed Title Commitment could not be approved “until such time as [Title USA was] advised in writing upon what basis each and every exception was removed from Schedule B and what, if any, affirmative coverages [were] being requested [by Home Federal].” Id. (emphasis omitted). On June 23, 1988, Winfree also sent a copy of the proposed Title Commitment, referred to by the parties as the “marked-up” Title Commitment, to Nationwide Capital, which was co-ordinating the mortgage transaction for Home Federal. See Adler Cert., Exh. B (Cover Letter from Eastern to Nationwide Capital (dated June 23, 1988)). The “marked-up” Title Commitment listed Fidelity’s construction loan, secured by the Property, but failed to disclose the existence of Fidelity’s second mortgage. See Adler Cert., Exh. U (“Marked-Up” Title Commitment). Nationwide Capital reviewed the “marked-up” Title Commitment, making alterations to the commitment directly on the document. See id. Consistent with the terms of the mortgage loan commitment letter, Nationwide Capital noted on the “marked-up” Title Commitment that it still needed copies of some instruments affecting the Property’s title, referenced in the “marked-up” Title Commitment. See id. On August 4, 1988, Baillie, on behalf of Title USA, approved the proposed Title Commitment in the Home Federal mortgage transaction. See Adler Cert. (NTI), Exh. H (Letter from Baillie to Winfree (dated Aug. 4, 1988)). Baillie also informed Winfree that “[i]t [was] not good underwriting practice to mark-up a commitment or pending policy prior to closing.” Id. Baillie further informed Winfree that “[m]ark-ups should be made at the closing pursuant to lender request....” Id. Notwithstanding Baillie’s directions regarding “mark-ups,” on August 17, 1988, Winfree, on behalf of Eastern, sent Nationwide Capital a second “marked-up” Title Commitment, reflecting Home Federal’s changes. See Adler Cert., Exh. V. The second “marked-up” Title Commitment did not disclose the existence of Fidelity’ second mortgage on the Property. See id. On August 17, 1988, Winfree also informed Nationwide Capital that LTIC had contracted with Title USA to reinsure the title policy which would be issued subsequent to the closing. See id. Subsequently, on August 19, 1988, LTIC sent Nationwide Capital and Eastern a letter stating: LTIC agrees to accept $8,825,274.00 of secondary liability behind Title USA[’s] ... $2,000,000.00 of primary liability on the $13,825,274.00 Owner’s Policy insuring The Atrium II Limited Partnership and a simultaneous Mortgagee Policy insuring Home Federal ... on [the Property]. We also understand Title USA ... will be taking $3,000,000.00 of secondary liability. See Certification of Janice D. Walton (filed Dec. 14, 1998), Exh. 9 (Letter to Eastern and Nationwide from LTIC (dated Aug. 19,1998)). On June 23,1988, in accordance with the terms of the loan commitment letter, Nationwide Capital sent Nigro, who was acting as counsel for the borrower, Atrium II, a series of documents necessary to the completion of his opinion letter. See Adler Cert., Exh. Q (Letter from Nationwide Capital to Nigro (dated June 23, 1988)). The enclosed documents included the loan agreement, the mortgage and security-agreement, the promissory note, the assignment of rents and leases, and the absolute guaranty of payment and performance. See id. The cover letter informed Nigro that if he had any questions he should contact counsel for Nationwide Capital and Home Federal, Larry Goodman, Esq. See id. As the closing date for the Home Federal mortgage approached, as required by the mortgage loan commitment letter, on August 18, 1988, Title USA issued an insured closing letter to Nationwide Capital, on behalf of Home Federal. See Adler Cert., Exh. U. The insured closing letter provided that Title USA: agree[d] to reimburse [Home Federal] for actual loss incurred by [Home Federal] in connection with [the] closing[] when conducted by [Title USA’s] Issuing Agent, ... when such loss arises out of ... [the][f]ailure of the Issuing Agent[, namely, Nigro, on behalf of Eastern,] to comply with [Home Federal’s] written closing instructions to the extent that they relate to ... the status of the title to said interest in land or the validity, enforceability and priority of the lien of said mortgage on said interest in land.... Id. The insured closing letter also provided that any claim for actual loss by an insured must be filed “within twelve months from the date of [the] closing.” Id. On August 29, 1988, the date of closing, Nationwide Capital, on behalf of Home Federal, issued its written closing instructions to Eastern. See Adler Cert., Exh. L (Letter from Larry Goodman to Linda Winfree (dated Aug. 29, 1988)). The closing instructions letter stated, in relevant part: Home Federal has received Title USA’s marked-up title commitment which evidences that all requirements of Schedule B [the instruments of record affecting title to the Property) have been satisfied and that Title USA is prepared to issue an ALTA title policy in the amount of $5,000,000.00 and [LTIC] will simultaneously issue a re-insurance policy in the amount of $8,825,274.00 as first lien-holder on the Property encumbered by the Mortgage ... and subject only to those exceptions [listed in Schedule B].... [Eastern, as closing agent for Title USA, shall] record the [loan documents] ... with the appropriate governmental offices, WHEN AND ONLY WHEN [the Home Federal] Mortgage constitutes, in fact, a lien of record against the Property ... and when ... Title USA can affirmatively insure Home Federal as of the date and time of recordation of the Mortgage that such Mortgage constitutes a valid first lien against the Property.... You are authorized to disburse the Proceeds in accordance with these instructions WHEN AND ONLY WHEN you are able to strictly comply with the instructions of th[is] letter.... Id. (emphasis in original). On August 29, 1988, Nigro provided Home Federal with his opinion letter. See Adler Cert., Exh. R (Opinion Letter (dated Aug. 29, 1988)). The opinion letter, written on Caine, DiPasqua letterhead, stated, in relevant part: At your request we provide you with this opinion in our capacity as counsel to the Borrower and its general partner. In rendering this opinion, we have reviewed originals of the following documents: 1. The Loan Agreement executed by Borrower and Lender. 2. The Promisory [sic] Note made by Borrower to the order of the Lender in the principal amount of $13,825,274.00. 3. The Mortgage and Security Agreement executed by the Borrower to Lender. 4. The Assignment of Rents and Leases executed by Borrower. 5. Uniform Commercial Code Financing Statements executed by Borrower in favor of the Lender. 6. Title USA Insurance Corporation of New York Title Commitment bearing File No. EJ — 123, including endorsements, if any, issued through the date hereof (the “Title Commitment”). The documents referred to in Paragraphs one through six above are each dated of even date herewith and collectively referred to as the “Loan Documents”. [sic] In addition, we have examined such other record documents, certificates, instruments and materials as in our judgment are necessary and appropriate to enable us to render this opinion. We have, however, assumed the validity of all such records, documents, certificates, instruments and materials and the genuineness of all signatures thereon. Based upon the foregoing, we are of the opinion that: ... Borrower owns good and marketable fee simple title to the real property described in the Mortgage and Security Agreement subject to those matters noted in the Title Commitment delivered to Lender, and the Mortgage and Security Agreement constitutes a first lien security interest valid against all third parties subject only to the matters and exceptions referred to in said Title Commitment. Borrower’s title to such real property is not subject to any vendor’s lien.... To the best of our knowledge, the Borrower has made no contact or arrangement of any kind except the Construction Agreement with Pace Associates, Inc. and agreements with its architect, surveyor and engineer, the performance of which by the other party thereto would give rise to a hen on the Property.... We are members of the bar of the State of New Jersey and do not purport to be expert on, or to express any opinion herein concerning, any laws other than the laws of the State of New Jersey and the Federal laws of the United States, and this opinion is.... Our opinions are rendered as of the date hereof and are solely for the benefit of Lender in connection with the Loan.... In delivering this opinion to you, we are not undertaking to apprise you either of any transactions, events or occurrences taking place after the date of this letter of which we may acquire any knowledge or of any change in applicable laws taking place after the date of this letter which may affect any of our opinions set forth in this letter. The opinions expressed in this letter are based upon the applicable laws, regulations and ordinances in effect as of the date of this-letter. Id. (emphasis added). In his March 9, 1998, deposition testimony, Nigro discussed the procedure he followed in drafting the opinion letter. See Nigro Dep. at 113-118. He testified: A. [By Nigro] [T]ypieaIIy a lender would give me a proposed letter. I would look at it, and then typically they would tell me what they wanted their final draft as; and if I could live with it, I would put it on my stationery and sign it. If I couldn’t live with it, I would call them and say I can’t do this and that and then I would sign it. Q. [By Mr. Adler] Did you review the [loan] documents ... itemized on the first page ... [of the opinion' letter]? A. I presume that I did, because it says that I did. I don’t have any independent recollection. Q. What was the basis for your opinion that [Home Federal] was getting a first loan through its mortgage and security agreement? A. The basis was that I knew that Fidelity Bank was the only bank to have an interest in the property prior to settlement. I knew we were going to pay Fidelity out and I knew that Fidelity, as in the past, would satisfy or file any discharges necessary of record. So I knew that as soon as Fidelity got that money [for the construction loan], we would have a clear title; and therefore, Home[ Federal] would be in the first position.... With those presumptions, I issued a letter saying they would be in first position. Q. You didn’t put those assumptions in the letter? A. No. You never did.... At the settlement is where it all happens. Since we [Eastern] receive the funds, we control all of the prerequisite things that I assumed.... Q.... [D]id you consider the second mortgage which was of record? A. I believe I did.... I knew that Fidelity Bank wanted out of this property.... [A]t the time [it] was extremely confusing as to which mortgages affected which pieces of property. There were literally hundreds of parcels and literally hundreds of documents. They were cross-referenced all over the place. It was impossible to tell which documents affected which properties and vice versa. You [had] to rely on the fact that Fidelity was going to get out of this and divest itself of it.... I presumed that [Fidelity was] going to remove all encumbrances whether on the title or not.... [Fidelity] didn’t want the property. You can’t say give me 11 million dollars and I’ll hold a nine million dollar ... mortgage on the property. It wasn’t written down, it’s not in my letter, anywhere, just in good faith. Q. You were giving this title opinion as a lawyer. Right? A. That’s right.... Let’s assume there was an independent title company. I would look at the title and base my opinion on the title commitment as a lawyer because I have no other way of knowing. I ordered a title search. I don’t go to the courthouse myself. I presume certain mortgages are going to be paid off and I issued the opinion. See Nigro Dep. at 112-18. Contrary to Nigro’s assumptions, Jeffrey Reinhold, a Fidelity loan officer responsible for the Horizon Corporate Center properties, see Nigro Dep. at 119, testified that he did not discuss the second mortgage with Nigro or Winfree prior to the Home Federal mortgage closing, did not have the authority to discharge the second mortgage without payment in full, and did not have a “general understanding” with MLA, Atrium II, Eastern or Nigro, regarding the release of Fidelity’s second mortgage. See Supplemental Certification of John A. Adler, Esq. (filed Dec. 14, 1998), Exh. C (Amended Answer to FNTIC’s and NTI’s Interrogatory No.l, Exhs. A and B (Deposition of Jeffrey Reinhold (dated Mar. 17, 1992))). On August 29, 1988, the closing of the Home Federal mortgage “took place at the offices of Nationwide [Capital] in Roslyn, Virginia.” See PI. R. 56.1 (Cts.IV-V), ¶20. Nigro and Winfree acted as closing agents. See id.; Adler Cert., Exh. J (HUD-1 Closing Statement). Nigro also acted as counsel for the borrower, Atrium II. At closing, title to the Property was transferred from MLA to Atrium II. See PI. R. 56.1 (Cts.IV-V), ¶ 20. Atrium II executed and delivered to Home Federal a promissory note in the amount of $13,500,-000, an assignment of leases and rents, and a mortgage and security agreement. See PI. R. 56.1 (Cts.IV-V), ¶ 21. In addition, Title USA, through Eastern, provided Home Federal with a final Title Commitment which failed to reference Fidelity’s second mortgage on the Property. See Adler Cert., Exh. V (Final Title Commitment). “Pursuant to a payoff letter from Fidelity, [Home Federal] paid Fidelity $10,982,-446.99 and obtained discharges of the initial Fidelity construction mortgage ... dated March 7, 1986, ... and an amendment to the mortgage dated April 7, 1988 ... See PL R. 56.1 (Cts.IV-V), ¶22. The discharges were subsequently filed. See Adler Cert., Exh. T (Discharges). In the months that followed the August 29, 1988, closing, Winfree sent Home Federal letters stating: Please be advised that we have done a bringdown [search] on the [Property], and there are no liens, encumbrances, judgments or the like listed against that property. Therefore, Home Federal is in a first lien position.... See Adler Cert. (LTIC), Exh. K (Letters from Winfree to Home Federal (dated Nov. 14, Dec. 21, 1988, Jan. 26, Feb. 28, May 1, Jul. 7, Sept. 7, Oct. 17, Nov. 27, 1989, Jan. 11, 1990)). Although all the previous letters had been written on Eastern letterhead, the last such letter, dated January 11, 1990, contained the same text, but was sent to Home Federal on Caine, DiPasqua letterhead. See id. In January, 1989, Title USA issued a title insurance policy to Home Federal with an effective date of August 30, 1988. See id., Exh. W (Title USA Title Policy); see also PI. R. 56.1 (Cts.IV-V), ¶ 23. On February 14, 1989, LTIC formerly “entered into a reinsurance agreement with Title USA” under the terms set forth in LTIC’s August 19, 1988, letter to Eastern and Nationwide Capital. See Walton Cert., ¶ 2, Exh. 9. In late 1989 and throughout 1990, MLA, Diemer and Paeilli experienced financial difficulties causing them to default on the mortgages covering the Horizon Corporate Center properties. See Knapp Cert., Exhs. N-R (pleadings in state court actions to foreclose other mortgages covering Horizon Corporate Center). In 1990, Atrium II faced similar financial problems. See RTC II, 16 F.Supp.2d at 559. “Late in 1990, Home Federal ... began foreclosure proceedings against Atrium II in New Jersey state court.” RTC II, 16 F.Supp.2d at 559. “These proceedings were stayed when Atrium II filed a petition in the United States Bankruptcy Court for the District of New Jersey.” Id. Subsequently, “Fidelity ... filed an adversary complaint in the Bankruptcy Court claiming that it[s second mortgage] ... on the [Property ... [was] superior to those held by Home Federal.... ” Id. “In March, 1993, the District Court reversed the Bankruptcy Court’s determination, rendered in May, 1992, that Fidelity[’s second mortgage] had priority.” RTC II, 16 F.Supp.2d at 559. “The Third Circuit affirmed this decision in August, 1995.” Id.; see also In re Atrium II Ltd. Partnership, 60 F.3d 816 (3d Cir.1995) (mem.); PI. R. 56.1 (Cts.IV-V), ¶¶ 25-34 (summarizing state court and bankruptcy litigation). “[D]uring the pendency of the bankruptcy proceedings, Home Federal ... was placed into receivership by the Resolution Trust Corporation.” RTC II, 16 F.Supp.2d at 559 (citations omitted). As a result, Home Federal became known as HomeFed Bank, F.A. (“HomeFed”), with the Resolution Trust Corporation as its conservator. See id. “On January 31, 1994, various assets including the Atrium II mortgage and loan were sold by the [Resolution Trust Corporation] to [Plaintiff, RTC Mortgage Trust].” Id. In selling these assets, the Resolution Trust Corporation assigned to RTC Mortgage Trust all of its rights, title and interests, including any causes 'of actions involving the assets that the Resolution Trust Corporation could have asserted arising out of the assets. See RTC II, 16 F.Supp.2d at 560, 562-69 (discussing the assignability of the Resolution Trust Corporation’s claims to RTC Mortgage Trust). Regarding the purchase by RTC Mortgage Trust of the HomeFed mortage, I have previously observed: The purchase by RTC Mortgage Trust was funded in part by the issuance of bonds by RTC Mortgage Trust. The mortgages and loans purchased by RTC Mortgage Trust were collateral for the bonds and Bank of America National Trust & Savings Association (“Bank of America”) acted as bond trustee. Thus, simultaneously with the execution of the Assignment from the [Resolution Trust Corporation] to RTC Mortgage Trust, the [Resolution Trust Corporation], as a matter of convenience and on behalf of RTC Mortgage Trust ..., assigned the relevant mortgages and loans to Bank of America. On January 29, 1996, following the pay-off of the bonds which partially funded RTC Mortgage Trust’s purchase of the mortgages and loans ..., Bank of America and RTC Mortgage Trust assigned the collateral which had been pledged in connection with the issuance of the bonds. This was accomplished by Bank of America’s assignment of all of its interest in the Atrium II mortgage and loan, among other things, to RTC Mortgage Trust. Several months later, on November 4, 1996, this litigationf, for negligence and breach of contract arising out of the Home Federal mortgage closing,] ensued. RTC II, 16 F.Supp.2d at 560 (citations omitted). On December 14, 1998, RTC Mortgage Trust filed a motion for partial summary judgment on the issue of liability on its claims for legal malpractice against Nigro and Caine, DiPasqua, and its claims for breach of contract and negligent title search against NTI. See PL Notices of Motion (filed Dec. 14, 1998). On December 14, 1998, NTI cross-moved for, summary judgment on all claims asserted against.it by RTC Mortgage Trust. See NTI Notice of Cross-Motion (filed Dec. 14, 1998). On December 14, 1998, LTIC also moved for summary judgment on all claims- asserted against it by Plaintiff. See LTIC Notice of Motion (filed Dec. 14, 1998). III. LEGAL STANDARD GOVERNING MOTIONS FOR SUMMARY JUDGMENT As I stated in RTC II, 16 F.Supp.2d at 561-62, a party seeking summary judgment must “show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c); see, e.g., Orson, Inc. v. Miramax Film Corp., 79 F.3d 1358, 1366 (3d Cir.1996); Healy v. New York Life Ins. Co., 860 F.2d 1209, 1219 n. 3 (3d Cir.1988), cert. denied, 490 U.S. 1098, 109 S.Ct. 2449, 104 L.Ed.2d 1004 (1989); Hersh v. Allen Prod. Co., 789 F.2d 230, 232 (3d Cir.1986). “In deciding whether there is a disputed issue of material fact, the Court must view the underlying facts and draw all reasonable inferences in favor of the non-moving party.” RTC II, 16 F.Supp.2d at 561; See also, e.g., Pennsylvania Coal Ass’n v. Babbitt, 63 F.3d 231, 236 (3d Cir.1995); Hancock Indus. v. Schaeffer, 811 F.2d 225, 231 (3d Cir.1987). The threshold inquiry is whether there are “any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (noting that no issue for trial exists unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict in its favor). “In deciding whether triable issues of fact exist, Rule 56(e) of the Federal Rules of Civil Procedure provides, in relevant part: When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the adverse party’s pleading, but the adverse party’s response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, summary judgment, if appropriate, shall be entered against the adverse party.” RTC II, 16 F.Supp.2d at 561 (quoting Fed. R.Civ.P. 56(e)). “The rule does not increase or decrease a party’s ultimate burden of proof on a claim.” RTC II, 16 F.Supp.2d at 561. “Rather, ‘the determination of whether a given factual dispute requires submission to a jury must be guided by the substantive evidentiary standards that apply to the case.’ ” Id. (quoting Anderson, 477 U.S. at 255-56, 106 S.Ct. 2505). Under the rule, a movant must be awarded summary judgment on all properly supported issues identified in its motion, except those for which the non-moving party has provided evidence to show that a question of material fact remains. See RTC II, 16 F.Supp.2d at 561. “Put another way, once the moving party has properly supported its showing of no triable issue of fact and of an entitlement to judgment as a matter of law, for example, with affidavits, which may be ‘supplemented ... by depositions, answers to interrogatories, or further affidavits, its opponent must do more than simply show that there is some metaphysical doubt as to material facts.’ ” Id. (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)) (additional citations omitted); see Anderson, 477 U.S. at 247-48, 106 S.Ct. 2505 (“by its very terms, this standard provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion ...; the requirement is that there be no genuine issue of material fact”) (emphasis in original). What the non-moving party must do is “go beyond the pleadings and by [its] own affidavits, or by the ‘depositions, answers to interrogatories, and admissions on file,’ designate ‘specific facts showing that there is a genuine issue for trial’ ” Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); see also Lujan v. National Wildlife Fed., 497 U.S. 871, 888, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990) (“[t]he object of [Rule 56(e) ] is not to replace conclusory allegations of the complaint ... with conclusory allegations of an affidavit”); Anderson, 477 U.S. at 249, 106 S.Ct. 2505; Big Apple BMW, Inc. v. BMW of N. Am., Inc., 974 F.2d 1358, 1363 (3d Cir.1992) (“to raise a genuine issue of material fact ... the [non-moving party] need not match, item for item, each piece of evidence proffered by the movant,” but rather must exceed the “ ‘mere scintilla’ threshold”), cert. denied, 507 U.S. 912, 113 S.Ct. 1262, 122 L.Ed.2d 659 (1993); RTC II, 16 F.Supp.2d at 562. IV. DISCUSSION A. RTC Mortgage Trust’s Motion for Partial Summary Judgment Against Nigro and Caine, DiPas-qua RTC Mortgage Trust contends that it is entitled to partial summary judgment on the issue of liability on its claim for legal malpractice against Nigro and Caine, DiPasqua (hereinafter, the “Lawyer Defendants”). See Plaintiffs Memorandum of Law in Support of Motion for Partial Summary Judgment Against Defendants Caine, DiPasqua and Nigro (filed Dec. 14, 1998) at 9-19 (“PL Brief (Lawyer Defs.)”). Specifically, RTC Mortgage Trust contends that “Nigro owed a duty of care to Home[ Federal], to whom he was issuing his opinion letter, to take all reasonable steps to insure that his opinion was accurate.” See id. at 9. In addition, RTC Mortgage Trust contends that “[b]ased on principles of respondeat superior[,] ... Caine[,] DiPasqua is responsible for the negligence of [Nigro].” Id. at 23 (citations omitted). In opposing RTC Mortgage Trust’s motion for partial summary judgment, the Lawyer Defendants contend that the Court must draw a distinction between Nigro’s duty as an opining attorney and his role as a title agent and principal for Eastern. See Defendant Caine, DiPas-qua’s Memorandum of Law in Opposition to Plaintiffs Motion for Summary Judgment (filed Dec. 14, 1998) at 7 (“Lawyer Defs. Brief’); see also Nigro Memorandum of Law in Opposition to Plaintiffs Motion for Partial Summary Judgment (filed Jan. 11, 1999) at 1 (“Nigro Brief’). The Lawyer Defendants contend that, “in preparation of the August 29, 1988 opinion letter, [ ] Nigro was acting in his role and capacity as an attorney[; and as] such, [he] was not charged with the responsibility personally to search the title, nor was he obligated to investigate the accuracy of the title search[,]” even though his company, Eastern, conducted the search. See Lawyer Defs. Brief at 7. 1. An Attorney’s Duty to a Non-Client Under New Jersey law, a claim for legal malpractice has three elements, namely: “(1) the existence of an attorney-client relationship creating a duty of care upon the attorney; (2) the breach of such duty; and (3) proximate causation.” DeAngelis v. Rose, 320 N.J.Super. 263, 274, 727 A.2d 61 (App.Div.1999) (King, P.J.A.D.) (citations omitted). “The abscence of an attorney-client relationship or fiduciary relationship is not necessarily always a basis to deny a legal malpractice claim asserted against an attorney by a non-client.” Id. The determination of whether an attorney owes a duty to a non-client is, like the determination of any duty, “a question of law ... for the court.” Id. (citing Petrillo v. Bachenberg, 139 N.J. 472, 479(199), 655 A.2d 1354) (additional citations omitted). In New Jersey, Petrillo v. Bachenberg, is the “leading authority on the subject” of an attorney’s duty to a non-client. DeAngelis, 320 N.J.Super. at 276, 727 A.2d 61; see also Petrillo, 139 N.J. at 472, 655 A.2d 1354. “The [New Jersey] Supreme Court stated [in Petrillo ] that whether an attorney owes a duty to a non-client third party depends on balancing the attorney’s duty to represent clients vigorously with the duty not to provide misleading information on which third parties forseeably will rely.” DeAngelis, 320 N.J.Super. at 276, 727 A.2d 61 (citing Petrillo, 139 N.J. at 479, 655 A.2d 1354.) The New Jersey Supreme Court defined the scope of a lawyer’s duty to non-clients as follows: [Attorneys may owe a duty of care to non-clients when the attorneys know, or should know, that non-clients will rely on the attorney’s representations and the non-clients are not too remote from the attorneys to be entitled to protection ... [A] lawyer’s duty may run to third parties who forseeably rely on the lawyer’s opinion or other legal services. Petrillo, 139 N.J. at 483-84, 485, 655 A.2d 1354. In determining whether an attorney owes a non-client a duty of care, “the primary concern is to ‘cabin’ the duty of the lawyer so the resulting obligation is fair to both lawyers and the public.” DeAngelis, 320 N.J.Super. at 276, 727 A.2d 61 (citing Petrillo, 139 N.J. at 484, 655 A.2d 1354). “The objective purpose of documents such as opinion letters, title reports, or offering statements, and the extent to which others forseeably may rely on them determines the scope of a lawyer’s duty in preparing such documents.” Petrillo, 139 N.J. at 485, 655 A.2d 1354 (citation omitted). Applying the Petrillo standard to the facts of this case, I conclude that it is clear that Nigro had a duty to provide Home Federal with an accurate statement of its mortgage lien position. As one of its conditions to extending the $13.5 million mortgage, Home Federal required Diem-er, as general partner for MLA and Atrium II, to provide a “letter from an attorney licensed to practice law in New Jersey, retained by the borrower and acceptable to Home Federal,” opining as to Home Federal’s first lien priority position. See Adler Cert., Exh. H. In addition, the form opinion letter, provided by Home Federal to Nigro, demonstrates that Home Federal intended to rely on the representations made by Nigro in his August 29, 1988, opinion letter. See id.; see also Petrillo, 139 N.J. at 485-86, 655 A.2d 1354 (stating that the “roles and relationships of the parties color [the Court’s] assessment” of the attorney’s duty, and that opinion letters, by definition, invite a recipient’s reliance). Both the form opinion letter and Nigro’s opinion letter of August 29, 1988, state: “Our opinions are rendered as of the date hereof and are solely for the benefit of [Home Federal] in connection with the Loan and may not be quoted, relied on or used for any other purpose by any other person or entity.” See id.; see also Adler Cert., Exh. R. Thus, as counsel for Diemer, MLA and Atrium II, Nigro knew that Home Federal, a clearly foreseeable non-client third party, would rely on the representations contained in the opinion letter. See Petrillo, 139 N.J. at 483-84, 655 A.2d 1354. Accordingly, I conclude as a matter of law that Nigro owed a duty of care to Home Federal to provide an opinion letter accurately stating the lien priority position of the Home Federal mortgage. Having defined the scope of Nigro’s duty, it is necessary to point out that Nigro’s duty “hardly constitutes lawyers as guarantors of the accuracy of [abstracts,] surveys or other similar experts’ reports that they merely transmit” to a third party. See Petrillo, 139 N.J. at 489, 655 A.2d 1354. Nigro’s duty was independent of any obligation by Eastern to search title for the benefit of Home Federal. It is undisputed that Home Federal did not contract with Eastern to provide an abstract of title, and Nigro was not asked to opine as to the accuracy of Eastern’s title search. Rather, Home Federal specifically requested that Nigro review the loan documents, the Title Commitment and “other record documents!,]” and opine as to Home Federal’s lien priority. See Adler Cert., Exh. R. In agreeing to provide Home Federal with such an opinion, Nigro assumed the duty of care of care described above. 2. Breach of Duty of Care Owed by Nigro to Home Federal Having determined that Nigro owed a duty of care to Home Federal, I must next consider whether Nigro’s failure to discover or disclose Fidelity’s second mortgage, which was properly recorded, constituted a breach of that duty. In Petrillo, the New Jersey Supreme Court held that “[i]n many situations, lawyers, like people generally, may not have a duty to act, but when they act, like other people, they should act carefully.” Petrillo, 139 N.J. at 489, 655 A.2d 1354. In the opinion letter, Nigro, on behalf of Caine, DiPasqua, stated that they had “reviewed the originals of the following documents: 1. The Loan Agreement executed by Borrower and Lender[;] 2. The Promissory Note[;] ... 3. The Mortgage and Security Agreement[;] ... 4. The Assignment of Rents and Leases[;] ... 5. Uniform Commercial Code Financing Statements^] ... 6. Title USA Insurance Corporation of New York Title Commitment bearing File No. EJ-123, including endorsements, if any, issued through the date[ August 29, 1988] (the “Title Commitment”).” See Adler Cert., Exh. R (emphasis added). In addition, the Lawyer Defendants stated in the opinion letter that, in addition to the loan documents provided by Home Federal, “we have examined such other record documents ... as in our judgment are necessary and appropriate to enable us to render this opinion.” Id. At his March 9, 1998, deposition, Nigro testified that, in preparing the opinion letter, he reviewed only the documents provided by Home Federal, including the Title Commitment. See Nigro Dep. at 112-18. He admitted that he did not review any additional documents of record. See id. He further testified that, although he did not disclose it in the opinion letter, he considered Fidelity’s second mortgage when preparing the opinion letter. See id. On this issue, Nigro testified that it was unnecessary to disclose to Home Federal the existence of Fidelity’s previously recorded $9.7 million mortgage covering the Property because he assumed Fidelity would discharge its second mortgage as a matter of course, even without repayment. See id. In addition, Nigro testified that, because of the complicated and convoluted title history of the Property, he had to rely on his assumptions and the Title Commitment. See Nigro Dep. at 112-18. He testified: [The record] was extremely confusing as to which mortgages affected which pieces of property [in the Horizon Corporate Center]. There were literally hundreds of parcels and literally hundreds of documents. They were cross-referenced all over the place. It was impossible to tell which documents affected which properties and vice versa. Id. at 116. Contrary to Nigro’s belief, the complicated state of the Property’s title underscored the need for him to take greater precautions in researching the state of title in order to opine that Home Federal had a first lien priority position. First, Nigro’s contention that it was “impossible” to tell which documents of record affected the Property’s title is specious. Nigro testified that neither he nor anyone at Eastern conducted a title search of the Property in connection with the Home Federal mortgage transaction. See Nigro Dep. at 78-83. In addition, when counsel for Home Federal requested a search of the Property’s title from MSM Title Agency, Inc., in connection with Home Federal’s foreclosure action, Fidelity’s second mortgage was identified as encumbering the Property. See Adler Cert., Exh. F (Title Report of MSM Title Agency, Inc. (dated Feb. 25,1991)). Moreover, if the Court were to accept Nigro’s argument, the legal principle which would be established would be that as the degree of complexity in a commercial real estate transaction increases, the attorney’s corresponding duty of care to the recipient of an opinion letter decreases. The mere statement of such a proposition is its own refutation. Furthermore, if Nig-ro were concerned that the state of the Property’s title could not be accurately reflected in his opinion letter because of the volume of documents of record, Nigro could have included a disclaimer in his opinion letter saying as much. In the opinion letter, however, Nigro made no such disclaimer or reservation. See Potril-lo, 139 N.J. at 486, 655 A.2d 1354 (stating that attorney did not “even hint that the [document he prepared for the benefit of third party was] anything but complete and accurate”). [6] Second, Nigro’s admittedly conscious decision not to disclose to Home Federal the existence of Fidelity’s second mortgage is patently unreasonable, and a clear breach of his duty of care to Home Federal. See Nigro Dep. at 115-18. Regardless of whether Nigro and Fidelity had a prior course of dealing, where Fidelity “would satisfy or file any discharges necessary of record!,]” see id., Nigro had a duty to disclose the existence of the second mortgage to Home Federal. See § III.A.1 supra. The Lawyer Defendants knew that Home Federal was relying on the opinion letter in determining whether to extend a $13.5 million loan to Atrium II. It cannot be reasonably disputed that Home Federal would have considered a previously recorded mortgage covering the Property, securing Fidelity’s loan of $9.7 million, to be material to its decision to extend a $13.5 million dollar commercial loan to a borrower. In opposing RTC Mortgage Trust’s motion for partial summary judgment, the Lawyer Defendants contend that the law of New Jersey requires the presentation of expert testimony “to establish! ] the appropriate standard of care and the substance of the breach.... ” See Lawyer Defs. Brief at 13 (citing Spaulding v. Hussain, 229 N.J.Super. 430, 443, 551 A.2d 1022 (App.Div.1988)). In support of this contention, the Lawyer Defendants point to the conflicting expert reports of the parties, opining that it was or was not acceptable for Nigro to rely exclusively on the Title Commitment in preparing his opinion letter. See Lawyer Defs. Brief at 15; compare Adler Cert., Exh. B (Lawyer Defendants’ Expert Report of Edward J. Trawinski, Esq. (dated Oct. 23, 1998)), with Berns Cert., Exh. G (Plaintiffs Expert Report of S. David Brandt, Esq. (dated July 2,1988)). In addition, the Lawyer Defendants contend that expert testimony is necessary to delineate Nigro’s duty of care as an opining attorney from his duty of care as a title agent for Eastern, and to determine the soundness of the opinion letter in light of Nigro’s duty of care. See Lawyers Def. Brief at 13. In support of this contention, the Lawyer Defendants cite Sommers v. McKinney, 287 N.J.Super. 1, 670 A.2d 99 (App.Div.1996), for the proposition that where “the soundness of an opinion is the issue, a jury will usually require the assistance of an expert opinion.” Id. at 11, 670 A.2d 99 (citations omitted). The Sommers court stated that in legal malpractice actions: Expert testimony is required in cases of professional malpractice where the matter to be addressed is so esoteric that the average juror could not form a valid judgment as to whether the conduct of the professional was reasonable. However, the facts of a given case may be such that a layperson’s common knowledge is sufficient to permit a f