Case of the Day – Wednesday, August 18, 2021

WE GOT YOU COVERED

California homeowner Shelly Albert lived next to grumpy Henri Baccouche. How do we know he was grumpy? You’d be grumpy, too, if your neighbor built a fence over the parties’ common driveway easement, enclosing a grove of nine mature olive trees that stood on your land. Imagine how the Berliners felt when they awakened on the morning of August 13, 1961, to find that their neighbors on the east side of town had built a fence enclosing the Brandenburg Gate, Karl Marx Strasse, and some of the nicer parts of town. Or how those Mexicans must have felt when they awoke from a siesta to find a big wall between them and Texas, and a rock with the bill wrapped around it lying in their front lawn? That’s sort of how Mr. Baccouche felt.

To make matters worse, Henri fumed, the nine olive trees had been badly damaged by Shelly’s contractors. The workers’ “actions in hacking, cutting and pruning the trees reduced them to a pitiable state.” The contractors had damaged other trees as well, thereby diminishing “the aesthetic and monetary value of those trees… ” Henri demanded treble damages under Civil Code §§ 733 and 3346, but later expanded his claims to include the alternative claim that Shelly and her people were negligent.

Shelly didn’t bat an eye. She had an insurance policy from Mid-Century Insurance that covered negligence like this. When Henri served his civil action on Shelly, she forwarded a copy to the insurance company. She explained to her insurer that she didn’t believe that any of her fencing encompassed Mr. Baccouche’s property. Plus, she said, the trees that her workers trimmed were “boundary trees,” straddling the property line between the properties. Plus, she explained, she has been notified by the Los Angeles Fire Department to clear the area where the trees were located, as it was within 200 feet of her residence. She had trimmed these same trees year after year, and Mr. Baccouche never told her not to, or that the trees belonged to him. Shelly told her agent that she believed in good faith that the trees were hers, and that she was required to trim them.

Ah, Shelly … your Pollyannish optimism is amusing! But not to the cold-hearted field claims manager, who denied your claim. The insurance company concluded that the claim was barred by the exemption for intentional acts set out in the policy. Insurance policies typically cover losses from negligent acts (you accidentally run over the neighbor’s cat) but not intentional acts (you kick the neighbor’s cat into the next county).

However, maybe Henri left her an out. In his amended complaint, he claimed that if Shelly didn’t trespass and hack up his trees on purpose, she did so negligently. Shelly reported the amended claims to her insurance carrier. She argued that because she believed that the trees were owned by both parties, they “constitute[] property covered under my policy. Accordingly, [defendant] has an obligation under my policy of insurance to tender a defense on my behalf.”

The insurer did not budge. The company contended that because Shelly admitted she purposefully erected the fence, and had intentionally cut Mr. Baccouche’s trees, the conduct giving rise to Henri’s claims was intentional, and thus not an accident or occurrence within the meaning of the insurance policy. The insurer said its coverage determination had considered the possibility that the trees were solely owned by Shelly, solely by Henri, or were jointly owned. The carrier determined that who owned the trees was irrelevant to the coverage determination because the damage occurred from nonaccidental conduct.

In a response to the insurer’s July letter, Shelly took issue with some minor factual assertions in the letter, but did not otherwise claim that the damage to the trees had arisen from any sort of accident within the meaning of the policy.

In a reply, the insurer pointed out that Shelly had not provided any facts addressing defendant’s position that the incident was not an “accident” or “occurrence” within the meaning of the policy.

Shelly sued the insurance company. The trial court concluded that she failed to show “a potential for coverage,” which is what she had to prove in order to get Mid-Century to pay for her legal defense. The judge decided that the Shelly’s conduct alleged in Henri’s lawsuit was nonaccidental and intentional. To the extent the amended complaint alleged “negligent” conduct, Shelly had admitted to the carrier what she had done, and Shelly’s argument that she somehow “negligently supervised” the workers was not supported by Henri’s claims.

The Court of Appeals agreed with the trial court. An insurer owes its insured a broad duty to defend against claims creating a potential for indemnity. This duty to defend is broader than the duty to indemnify, and may exist even if there is doubt about coverage. However, the insurer has no duty to defend where the potential for liability is tenuous and farfetched. The ultimate question is whether the facts alleged in the lawsuit against the insured fairly apprise the insurer that the suit is upon a covered claim.

Shelly’s policy covered property damage resulting from an occurrence, and the policy defines an occurrence as an accident. An intentional act is not an ‘accident’ within the plain meaning of the word. The term “accident” refers to the nature of an insured’s conduct, and not to the unintended consequences of the conduct. An accident does not happen when a insured performs a deliberate act, unless some additional, unexpected, independent, and unforeseen happening occurs that produces the damage.

Shelly intended the acts resulting in the damage to Henri’s trees. Her conduct did not become an accident just because she didn’t know the trees belonged to Henri. Her intent was irrelevant; the act was not. Shelly told her workers to trim the trees that got trimmed. Her mistake was in thinking the trees were hers. Her insurance didn’t cover that.

There’s a lesson here for the Henris of the world, too. You lawyer can sometimes get the bit in his or her teeth, writing enraged and cutting complaints against defendants. In this case, it would have been a lot better for Henri’s lawyer to have accused Shelly of gross negligence, or even recklessness. That way, the insurer gets involved. Insurance companies tend to be economic, rational creatures, who are willing to settle when settlement is reasonable, and always have the ability to write a check that’s good.

Albert v. Mid-Century Ins. Co., 236 Cal.App.4th 1281 (California Court of Appeals, Second District, Eighth Division, April 28, 2015). Plaintiff Shelly Albert bought a homeowners insurance policy from Mid-Century in January 2008. The policy was in force in January 2011, when Albert was sued by her neighbor, Henri Baccouche, for damage she caused to his property when she erected an encroaching fence, and pruned nine of Mr. Baccouche’s mature olive trees. Albert asked Mid-Century to defend the suit, and when the insurance company refused, she sued it.

The insuring clause of plaintiff’s policy stated: “We will pay those damages which an insured becomes legally obligated to pay because of … property damage resulting from an occurrence. At our expense and with attorneys of our choice, we will defend an insured against any suit seeking damages covered under [this section] . . . We do not have any duty to defend or settle any suit involving actual, alleged, threatened or declared . . . property damage not covered under this liability insurance.” The policy defines an “occurrence” as “an accident, including exposure to conditions, which occurs during the policy period, and which results in . . . property damage . . . during the policy period. Repeated or continuous exposure to the same general conditions is considered to be one occurrence.” The policy also set forth a number of exclusions, including one for “intentional acts,” which the policy defined as “property damage . . . which is caused by, arises out of or is the result of an intentional act by or at the direction of the insured.” By way of example this includes but is not limited to any intentional act or intentional failure to act by an insured, whether a criminal act or otherwise, where resulting injury or damage would be objectively expected to a high degree of likelihood, even if not subjectively intended or expected.”

Mr. Baccouche’s complaint alleged that he and Albert, his neighbor, owned adjacent parcels of land which were subject to a reciprocal roadway easement providing both parcels access to the main public road. He said Albert erected a permanent fence over a portion of the roadway easement, which also intruded onto his parcel. The fence enclosed a 644 square foot portion of Mr. Baccouche’s land, which included a grove of nine mature olive trees. He claimed Albert and her contractors “willfully and maliciously damaged [the] nine mature olive trees . . . by severely hacking cutting and pruning those trees so as to greatly reduce their canopies, foliage, limbs, etc., without permission.” The complaint sought treble damages under Civil Code §§ 733 and 3346.

Mr. Baccouche later amended his complaint, alleging a cause of action for negligent damage to his trees.

The insurance company investigated the claims. Albert asserted that the fence she erected was within her property line, and said she not believe any of her fencing encompassed Baccouche’s property. As to the trees at issue in Mr. Baccouche’s complaint, Albert asserted that the trees were “boundary trees” and that the trunks of the trees essentially straddled the property line between Mr. Baccouche’s and her properties. She told the insurance company that since she purchased her lot, she has been notified by the Los Angeles Fire Department to clear the area where the trees were located, as it was within 200 feet of her residence. She trimmed these same trees year after year, without complaint from. Baccouche.

The carrier denied coverage, concluding that the conduct complained of by Baccouche was intentional conduct by Albert. Albert argued that because she had the trees trimmed in the good faith belief she owned them, “ . . . no intentional tort will lie.” Albert then sent Mid-Century a “demand for tender of defense,” which the carrier denied. Albert took issue with the insurer’s position, but did not otherwise claim that the damage to the trees had arisen from any sort of accident within the meaning of the policy.

Albert then sued Mid-Century. The trial court granted the carrier’s motion to deny coverage. The court ruled that Albert had failed to demonstrate a potential for coverage, as the conduct at issue in Baccouche’s lawsuit was nonaccidental, intentional conduct. The trial court also concluded that to the extent Mr. Baccouche’s complaint alleged “negligent” conduct by plaintiff, there was no evidence whatsoever that the trees were injured in some accident, “e.g. by inadvertently striking a tree with a motor vehicle.” The trial court also concluded that Mr. Baccouche’s pleadings did not support plaintiff’s “negligent supervision” theory.

Albert appealed.

Held: Mid-Century was not obligated to defend Albert. The Court observed that an insurer owes its insured a broad duty to defend against claims creating a potential for indemnity. While the duty to defend is broader than the duty to indemnify, and may exist even if there is doubt about coverage, the proper focus is on the facts alleged in the complaint, rather than the alleged theories for recovery. The ultimate question is whether the facts alleged ‘fairly apprise’ the insurer that the suit is upon a covered claim.”

Here, the policy covers property damage resulting from an occurrence, and the policy defines an occurrence as an accident. Under California law, the word ‘accident’ in the coverage clause of a liability policy refers to the conduct of the insured for which liability is sought to be imposed on the insured. The Ciourt held that an intentional act is not an ‘accident’ within the plain meaning of the word.” It said, rather that in the context of liability insurance, an accident is “an unexpected, unforeseen, or undesigned happening or consequence from either a known or an unknown cause.”

“Accident” refers to the nature of the insured’s conduct, and not to its unintended consequences. It is not an “accident” when the insured performs a deliberate act unless some additional, unexpected, independent, and unforeseen happening occurs that produces the damage. When an insured intends the acts resulting in the injury or damage, it is not an accident “merely because the insured did not intend to cause injury. The insured’s subjective intent is irrelevant.”

Nevertheless, the Court said, coverage is not always precluded when the insured’s intentional acts result in injury or damage. An accident may exist “when any aspect in the causal series of events leading to the injury or damage was unintended by the insured and a matter of fortuity.” When a driver intentionally speeds and, as a result, negligently hits another car, the speeding would be an intentional act. However, the act directly responsible for the injury – hitting the other car – was not intended by the driver and was fortuitous. In that case, the occurrence resulting in injury would be deemed an accident. On the other hand, where the driver was speeding and deliberately hit the other car, the act directly responsible for the injury – hitting the other car – would be intentional and any resulting injury would be directly caused by the driver’s intentional act.”

Albert argued that although she deliberately hired a contractor to trim the trees, the excessive cutting was not an intended consequence, and should be deemed an accident. However, it is completely irrelevant that Albert did not intend to damage the trees, because she intended for them to be pruned. Moreover, it is undisputed that the contractor intended to cut the trees, and absolutely no facts exist – in the complaint or otherwise – indicating that some unforeseen accident (such as a slip of the chainsaw) caused the damage to the trees. In fact, it was always Albert’s position that the trees had not been damaged or pruned excessively (and therefore were not subject to an accident), and that they had been cut in accordance to the City’s brush clearance ordinance. An insured may not trigger the duty to defend by speculating about extraneous ‘facts’ regarding potential liability or ways in which the third party claimant might amend its complaint at some future date.”

Also, the Court said, no facts supported Albert’s theory that her negligent supervision of the contractors brings the complaint within the terms of the policy. Negligent supervision requires an employer supervising an employee; who is incompetent or unfit; the employer had reason to believe undue risk of harm would exist because of the employment; and the harm occurs. There are simply no facts, in the complaint or otherwise, supporting the elements of this claim.

Under any view of the facts, the Court ruled, the trimming of the trees was no accident. Albert failed to carry her burden to show any of Mr. Baccouche’s claims may fall within the scope of the policy.

– Tom Root