(dissenting). I agree with the following analysis in the court of appeals decision, Blackhawk Credit v. Chicago Title Ins., 135 Wis. 2d 324, 333, 400 N.W.2d 287 (Ct. App. 1986):
"Whether Blackhawk sustained a 'net unsecured loss’ does not establish its loss recoverable on the policy. The loss on Blackhawk’s loan is uninsured. Chicago Title did not undertake to pay it. It undertook to indemnify Blackhawk against loss or damage not exceeding $85,000 sustained by reason of a defect in or prior lien or encumbrance on Kim Rolfe’s interest in the three parcels. It agreed, in effect, that if because of a title defect Blackhawk’s security was less than $85,000, Chicago Title would make good the difference. As applied to this case, it agreed that if because of Rochelle Bank’s lien, Blackhawk’s security was impaired, and if because of that impairment the security was less than $85,000, Chicago Title would make good the difference.
"The facts are that Blackhawk paid a total of $322,152, including $106,750 to Rochelle Bank, to acquire clear title to the three parcels which secured its $297,132 claim against Kim Rolfe. Blackhawk sold the three parcels for $530,185. Consequently, Blackhawk had available to it unimpaired security of $198,663 to apply against the $297,132 loan balance. Blackhawk had purchased an $85,000 mortgage policy. Since the unimpaired security exceeded $85,000, Blackhawk cannot recover on the Chicago Title policy.”
I would affirm the court of appeals.