Case of the Day – Wednesday, August 28, 2019

THE DEMOCRATIC PEOPLE’S REPUBLIC OF HOWELL, MICHIGAN

The Mayor of Howell?

The Mayor of Howell?

Like many American cities, the City of Howell, Michigan requires its property owners to keep their lawns mowed below a certain height. Violators of the ordinance are charged a fine as well as a fee for the costs associated with hiring a private contractor to mow or otherwise maintain the property. Such an ordinance, of course, occupies the same moral plane as laws that lock up three generations of families in a labor camp for life because somebody’s uncle tried to leave the country.

Or so David Shoemaker, a Howell homeowner, would have you believe. He complains that such an ordinance “makes the City look like North Korea rather than an American city.” Kim Jong Eun would be amused … or, if he was not, he’d have David shot to pieces with an anti-aircraft gun.

It seems that Shoemaker and his daughter planted a maple tree in their tree lawn, that strip of grass between the sidewalk and the street. The maple flourished for a few years, until the City came along to widen the curb. City workers hacked down the tree, and – when Shoemaker complained – they imperiously told him there was nothing he could do about it, because the City owned the tree lawn. Later, the same workers planted nine saplings in the tree lawn, and guy-wired them to a fare-thee-well.

Shoemaker was incensed, and he figured to get even. If the tree lawn was the City’s property, he reasoned, then city worker could just jolly well cut the grass on the tree lawn. He wasn’t going to do it. So Shoemaker stopped mowing the strip between the sidewalk and the street.

In North Korea, it’s illegal to name a baby “Kim Jong-Eun” (like anyone would want to). According to Shoemaker, Howell has an equally irrational and stupid ordinance, one that prohibits the owner or occupant of any lot in the City from “maintain[ing] on any such lot … any growth of weeds, grass or other rank vegetation to a greater height than eight inches.” The ordinance explicitly applies to any land “along the sidewalk, street or alley adjacent to the same between the property line and the curb.” Shoemaker’s act of civil disobedience promptly ran into a city inspector, who cited him under the ordinance when the grass in the tree lawn got to be high enough to harvest.

If you're looking to get even, tread very carefully. It may cost you more than it's worth.

If you’re looking to get even, tread very carefully. It may cost you more than it’s worth.

No doubt the city inspector wanted to throw Shoemaker and his daughter into the gulag. But he was limited to fining Shoemaker, and charging him for the cost of mowing the lawn. After several infractions and city-sponsored mowings, Shoemaker was billed for $600.00 by the City.

Shoemaker filed suit against the City in federal court, asserting that Howell had violated both his procedural and substantive due process rights. Amazingly (to us), the district court granted summary judgment for Shoemaker on both claims. But down at the U.S. Court of Appeals for the Sixth Circuit, cooler heads prevailed.

Shoemaker argued that the City ordinance requiring him to mow the tree lawn violated his procedural and substantive due process rights. The Court held that while the citation for violating the ordinance didn’t expressly state appeal rights, the imposition on a property owner was so slight, a property owner was given a chance to avoid the fine by cutting the grass after the citation was served, and the standards of the ordinance – grass in excess of 8 inches high – were pretty straightforward. Anything you can settle with a yardstick isn’t very complex. The Court was not about to turn the fairly simple citation into a procedural due process violation.

Shoemaker claimed the statute violated his substantive due process rights as well. For those of you who had constitutional law right after lunch, and consequently fell asleep in a warm classroom with a full stomach, “substantive due process” is the doctrine that governmental deprivations of life, liberty or property are subject to limitations regardless of the adequacy of the procedures employed.” Which deprivations? Well, it “depends on the nature of the right being deprived.” Specifically, “[g]overnment actions that do not affect fundamental rights … will be upheld if they are rationally related to a legitimate state interest.”

There… that’s clear. If you had stayed awake in Constitutional Law, and taken good notes, you might be nonetheless be forgiven for thinking that “fundamental rights” are what Justice Potter Stewart was thinking of when quipped about pornography in Jacobellis v. Ohio: “I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description; and perhaps I could never succeed in intelligibly doing so. But I know it when I see it …”

What interested us about this decision was Shoemaker’s insistence that the tree lawn was owned by the City of Howell, and not by him. He said a city worker had told him that, and thus the matter was settled. The Sixth Circuit, not a court to take a litigant’s word for it, examined Michigan law on the topic.

The district court had granted summary judgment in favor of Shoemaker because the City owned the tree lawn in front of Shoemaker’s house, and “the right not to be forced by a government to maintain municipal property” is a fundamental one. The ordinance infringed on that basic right.

Nonsense, the Court of Appeals said. While Michigan cities possess “nominal” title to land designated for public use, the private property owners retain the usual rights of the proprietor. This relationship, the Court said, “reflects the reality that homeowners like Shoemaker have a special interest in the curb strips adjacent to their houses because these strips of land are, for all practical purposes, simply extensions of the homeowners’ lawns. The curb strips also provide a traffic and safety buffer between the street and the rest of the property. In other words, despite the City’s right of way over the curb strip for public use, Shoemaker retained both his property interest in and de facto use of the land in question.’

As for Shoemaker’s hyperbolic comparison of Howell’s lawn-cutting ordinance to Korea, the Court dryly observed that the notion “should come as a surprise to the citizens of both nations. On the one hand, North Korea is a totalitarian regime that notoriously tortures criminal defendants, uses nerve toxin on political opponents, executes non-violent offenders, and sends those accused of political offenses to forced labor camps. On the other hand, laws like Howell’s lawn-trimming ordinance “are ubiquitous from coast to coast.”

Shoemaker v. City of Howell, 795 F.3d 553 (6th Cir., July 28, 2015). Shoemaker and his minor daughter lived on East Sibley Street in Howell, Michigan, for 9 years. Early on, they planted a maple tree in the tree lawn, that strip of grass between the sidewalk and street.

During this time, the City undertook a citywide project to refurbish and landscape its streets. East Sibley Street next to the Shoemaker residence was among the areas where work was done. The City removed the Shoemakers’ maple tree replaced it with nine saplings. Shoemaker claims that when he protested the tree’s removal, City workers told him “that’s not your property, you have no say on what goes in or out of there.” Upset by the City’s unilateral remodeling of the curb strip, Shoemaker chose to protest the City’s actions via civil disobedience: he stopped mowing the curb strip.

The City received a complaint about Shoemaker’s uncut tree lawn. Based on the complaint, City Code Inspector Donahue visited the residence and left a door-hanger notice informing Shoemaker that his lawn was in violation of City Code § 622.02, which requires property owners and occupants to maintain the vegetation on their land. The Ordinance prohibits the owner or occupant of any lot in the City from “maintain[ing] on any such lot.., any growth of weeds, grass or other rank vegetation to a greater height than eight inches,” and applies to any land “along the sidewalk, street or alley adjacent to the same between the property line and the curb.” A violation of the Ordinance subjects the responsible party to fines.

The prisoner's last words: "I should have mowed my whole lawn."

The prisoner’s last words: “I should have mowed my whole lawn.”

On August 4, 2011, Donahue noticed vegetation that was taller than eight inches on the curb strip in front of Shoemaker’s house. As before, Donahue left a door-hanger notice informing Shoemaker of the violation and mailed another Notice of Ordinance Violation. He returned to the property on the next day to find that, although the lawn had been freshly mowed, the grass on the curb strip remained in excess of the Ordinance’s limitation.

Shoemaker told Donahue that he would not mow the curb strip because he had been told by City employees that the area was the City’s property and not his own. Donahue insisted that the property did in fact belong to Shoemaker. Shoemaker asked to be ticketed for the violation in order to challenge the Ordinance in court. Shoemaker was charged a total of $600 for his violations of the Ordinance, including $300 in grass-cutting services and $300 in fines.

Shoemaker filed suit against the City, asserting violations of his procedural and substantive due process rights. The district court granted summary judgment in favor of Shoemaker, finding that the City owned the curb strip in front of Shoemaker’s house, that “the right not to be forced by a municipal government to maintain municipal property” is a fundamental one, and the Ordinance “unconstitutionally infringes” on that right.

The City of Howell appealed.

Held: The City did not violate Shoemaker’s procedural due process rights because it provided him with ample notice of the violation and an adequate opportunity to be heard. The City did not violate his substantive due process right, because Shoemaker continued to own the tree lawn, subject only to certain rights the City had to use the area for permissible purposes.

The Court weighed several factors in deciding exactly how much procedural process was due Shoemaker, including whether a private interest is affected by the official action, the risk of an erroneous deprivation of rights, the probable value, if any, of additional procedural safeguards, and the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.

Clearly, a private interest was affected by the Ordinance, although it was a slight one. The constitution does not require strict adherence to the City’s Ordinances. What it does demand – that the notice as given be reasonably calculated to alert Shoemaker of the charges against him and any avenues available for challenging those charges – was accomplished by the notices distributed by the City, which explained what he had to do to avoid a fine.

There was little risk of erroneous deprivation under the Ordinance If the vegetation on the land in question is allowed to grow beyond eight inches tall, then the owner or occupier of that land has violated the Ordinance. Due to this objective, readily ascertainable standard, there is little chance of a wrongful application of the law. The ample means of challenging an alleged violation under the laws of the City and the state of Michigan further counsel against the need for additional procedures. Finally, the burden of added process here would be significant, and that the potential burden “militates against yet more process.”

The Court said that Howell did not violate Shoemaker’s substantive due process rights because Shoemaker had a shared ownership interest in and the de facto use of the curb strip. Under Michigan law, Shoemaker technically owned the property at all relevant times and the City simply possessed a right of way for public use. The erroneous reasoning of the district court relied entirely on the inaccurate determination that the City is the sole owner of the curb strip. Given Shoemaker’s shared ownership interest in the curb strip as well as his de facto use thereof, no substantive due process violation occurred.

Substantive due process holds that governmental deprivations of life, liberty or property are subject to limitations regardless of the adequacy of the procedures employed. The limitations the Constitution imposes on such governmental deprivations depends on the nature of the right being deprived. Government actions that do not affect fundamental rights will be upheld if they are rationally related to a legitimate state interest.

The district court acknowledged that the Supreme Court has always been reluctant to expand the concept of substantive due process, because guideposts for responsible decision-making in this unchartered area are scarce and open-ended. Despite this, the district court expanded the concept by identifying a new fundamental right: the right not to be forced by a municipal government to maintain municipal property.

The Howell ordinance - yet another reason for Colin Kaepernick to not stand up for the National Anthem?

The Howell ordinance – yet another reason for Colin Kaepernick to not stand up for the National Anthem?

The Court of Appeals observed that this “right” was predicated on the finding that the City owned the tree lawn, and that was wrong. Through a conveyance by a platting statute, the government does not receive title in the nature of a private ownership; it acquires no beneficial ownership of the land and has no voice concerning the use; and it does not possess the usual rights of a proprietor, but rather takes title only to the extent that it could preclude questions which might arise respecting the public uses, other than those of mere passage. “Simply put,” the Court of Appeals said, “the law vests the governmental entity with nominal title. We pause at this word ‘nominal’ to emphasize the obvious, i.e., that the property interest conveyed by these early platting statutes is a fee in name only.”

The reality, the Court ruled, is that homeowners have a special interest in the curb strips adjacent to their houses because these strips of land are, for all practical purposes, simply extensions of the homeowners’ lawns. The curb strips also provide a traffic and safety buffer between the street and the rest of the property. In other words, despite the City’s right of way over the curb strip for public use, Shoemaker retained both his property interest in and de facto use of the land in question.

Shoemaker suggested that the Ordinance was somehow “un-American.” The Court didn’t sit still for the argument. It said, “Shoemaker’s argument, like the district court’s opinion, relies on the erroneous assumption that the City is the sole owner of the curb strip. Shoemaker specifically compares the requirement that he maintain the curb strip associated with his property to draconian mandatory public-labor measures adopted by regimes in troubled nations such as the Republic of the Congo, Uzbekistan, and Burma/Myanmar. These analogies are almost too outlandish to address. But even more hyperbolically, Shoemaker argues that the Ordinance ‘makes the City look like North Korea rather than an American city’. This final comparison should come as a surprise to the citizens of both nations.”

Indeed it does.

– Tom Root

TNLBGray140407

Case of the Day – Tuesday, August 27, 2019

SHUT MY MOUTH!

When the Harrises moved in back about 1956, they thought their land extended back well beyond where it actually did. They tended to their land – including the part they thought was theirs but wasn’t – planting flowers, mowing the lawn, and finally nurturing a beautiful break of pine trees along what they thought was the property line.

doghouse150730

The Harrises eventually sold the land to their granddaughter, Melissa Watts-Sanders. She likewise believed that the land went back to the trees, and she maintained it as though she owned (which she thought she did). Making her own improvements, she installed a dog pen on the disputed property.

Or perhaps we should we say “soon-to-be disputed property.” Because it seems she had a new neighbor, Mindy Chambliss. Ms. Chambliss did things right. Among those right things was her hiring of a surveyor. The surveyor unsurprisingly found that the land with the dog pen on it really belonged to Mindy.

Ms. Chambliss was not a lawyer (or much of a speller, which is a rapidly-dying art in this day and age). However, she knew some impressive-sounding legal terms – “cease and desist” being among them – so she wrote Ms. Watts-Sanders a missive demanding that she “cease and desist” with the dog pen, and claiming the property she believed to be rightfully hers. In the letter, Ms. Chambliss officiously explained that her survey “does superscede [sic] the fact that the property was maintained for 49 years.”

Badspelling140909Maybe it was the spelling. Whatever the reason, Ms. Watts-Sanders was not suitably cowed by the letter, so Ms. Chambliss sued. When she did, Ms. Watts-Sanders defended by arguing that a new boundary line had been established over the years by acquiescence. Nonsense, said Ms. Chambliss. Pine trees did not a boundary make, and none of Ms. Watts-Sanders’ predecessors had ever expressed an intention to occupy the land. And, Ms. Chambliss said, proudly showing her “cease and desist” letter to the Court, she had told Ms. Watts-Sanders about the surveyor’s findings.

‘Say what?’ the court asked, looking at the letter. ‘You mean Ms. Watts-Sanders and her people had maintained the property for 49 years?’ Well, the Court said – notwithstanding Ms. Chambliss’s opinion – that really did “superscede” something. In fact, given that Watts-Sanders and her predecessors’ people maintained and used the land for half a century without any complaint from Chambliss’s predecessors, the case was pretty compelling that someone had acquiesced to the pine tree boundary.

The lesson here? Clients, let your lawyers be your mouthpiece. Ms. Chambliss’s smug “explanation” of what trumped what turned out to be an admission against her own interests, and ended up being a pretty costly law lecture.

There's a reason lawyers are called 'mouthpieces' ...

There’s a reason lawyers are called ‘mouthpieces’ …

Chambliss v. Watts-Sanders, 2008-AR-0131.003, 2008 Ark. App. LEXIS 85, 2008 WL 241288 (Ark.App., Jan. 30, 2008). Mindy Chambliss and Melissa Watts-Sanders share a common backyard boundary. The dispute began after Ms. Chambliss ordered a survey which showed that Ms. Watts-Sanders had built a dog pen on Ms. Chambliss’s land. Ms. Watts-Sanders claimed property up to a row of pine trees planted on the disputed tract, but those trees were 23 feet east of the surveyed boundary line. Ms. Chambliss demanded that Ms. Watts-Sanders remove the dog pen, claiming to Ms. Watts-Sanders in writing that her survey superseded the fact that Watts-Sanders maintained the property for 49 years.

The property formerly belonged to Watts-Sanders’ grandparents, Vivian and Loren Harris. The Harrises bought the property in 1956 and built a house there. They later planted the pine trees and developed the flower bed toward the rear of the property. Mr. Harris cut the grass between the flower bed and the pine trees and that he treated the pine trees as the boundary between the two properties. No one except the Harrises used the disputed area since 1956. Ms. Watts-Sanders received the deed to the property from her grandmother in 2004. She noted that the pine trees were planted as close to in a line as possible and that the trees marked the boundary line between the properties.

Ms. Chambliss simply said too much. Never write paragraph where a sentence will do.

Ms. Chambliss simply said too much. Never write a paragraph where a sentence will do.

Ms. Chambliss purchased her property in 2003, and thought her land went to the concrete edging of the flowerbed. She was unaware that Ms. Watts-Sanders claimed possession of the disputed property until she placed the dog pen. Ms. Chambliss claimed that she had maintained the disputed property since purchasing it in 2003 and that she never saw Watts-Sanders on the property. The trial court found that Watts-Sanders had established the row of trees as the boundary by acquiescence and quieted title to the disputed property in her name. It also awarded her $250 in damages for the cost of rebuilding the dog pen. Ms. Chambliss appealed.

Held: The decision in favor of Ms. Watts-Sanders was upheld. Ms. Chambliss argued that the tree line was not a physical and permanent boundary, there was no evidence that Watts-Sanders’ predecessors occupied the disputed property, and there was no proof that any of Watts-Sanders’s predecessors-in-interest took any actions to indicate that the disputed land belonged to them.

The Court noted that the mere existence of a fence or some other line, without evidence of mutual recognition, cannot sustain a finding of boundary by acquiescence. However, silent acquiescence is sufficient, and the boundary line usually can inferred from the parties’ conduct over so many years. A party trying to prove that a boundary line has been established by acquiescence need only show that both parties at least tacitly accepted the non-surveyed line as the true boundary line.

The takeaway for today? Remember this ...

The takeaway for today is this …

Here, the Court said, the law merely required the boundary line to be some monument tacitly accepted as visible evidence of a dividing line, and the row of pine trees sufficed. The evidence was sufficient to show that Ms. Watts-Sanders and the Harrises occupied the disputed area, including evidence that Mr. Harris planted the pine trees and Ms. Chambliss’s own ill-advised admission that Ms. Watts-Sanders and the Harrises had maintained the disputed tract for forty-nine years.

Finally, evidence showed that only Ms. Watts-Sanders and her predecessors used the disputed tract. A boundary by acquiescence exists in cases where one party has used land belonging to another and the true landowner did nothing to assert his interest. Here, Ms. Watts-Sanders’ family’s use of the property remained undisturbed for almost 50 years. No one objected when her mother had one of the trees removed. Acquiescence can result from the silent conduct of the parties, and the fact that none of appellant’s predecessors used the property east of the tree line could be seen as tacit acceptance of the tree line as the boundary between the two properties.

– Tom Root
TNLBGray140407

Case of the Day – Monday, August 26, 2019

CONTEMPTUOUS NEIGHBORS

contempt150729Contempt of court is the mechanism by which a court enforces compliance with its orders. Punishment can range from a reprimand to jail time. Regardless of whether the contempt is civil or criminal, it’s something that litigants and lawyers would agree is best avoided.

Some people, like George Reece and Gerry Smith, just can’t help themselves. The neighbors squabbled for years over boundaries and an old hemlock tree. Finally, in 2005, they buried the hatchet, agreeing to a settlement where Reece gave Smith some property, and Smith gave Reece some property. The settlement specifically provided that Reece got property next to a pond that included his beloved hemlock tree.

So much for congeniality. It wasn’t long before they were back at it. Smith accused Reece of trespassing, harassing him, assaulting him, and diverting rainwater to flood Smith’s land. Reece countered that Smith had cut down his beautiful hemlock and destroyed a custom wrought-iron gate. The court threw up its hands, found them both in contempt and sent them off to jail for 20 days – presumably not as cellmates – to contemplate their misdeeds.

Reece and Smith could have been the inspiration for Mad Magazine's famous warring spies.

Reece and Smith could have been the inspiration for the late Mad Magazine’s famous warring spies.

Both of them appealed. The Court of Appeals sided with Smith for procedural reasons, holding that the act of asking that the other party be held in contempt was a motion, not a new civil action. That being the case, Reece wasn’t entitled to counterclaim for contempt himself. If he felt strongly enough about the destroyed gate and hemlock tree, Reece could file his own motion for contempt, or start a separate lawsuit for trespass to trees.

It’s a cinch that Reece probably felt strongly about it after 20 days in jail, and it seems to us rather hyper-technical of the court not to consider Reese’s misstyled counterclaim to be a motion for show cause to hold Smith in contempt. To do so would have been more efficient, as well as a triumph of substance over form.

Reece v. Smith, 292 Ga.App. 875, 665 S.E.2d 918 (Ga.App. 2008). This case was the last in a series of appeals resulting from several years of litigation between Gerry Smith and George Reece, who live next door to each other (but obviously not in harmony).

Smith and Reece repeatedly petitioned the court to intervene in a property-line dispute. In 2005, they entered into a settlement agreement in which they agreed to get an accurate survey of the disputed property and, based upon the survey, to convey portions of their property to each other in settlement of the long-running dispute. Smith specifically agreed that certain property next to a pond would belong to Reece and that this property included a tall hemlock tree. The court entered a final order approving the settlement agreement, ordering the parties to comply with it “in every respect.”

Two years later, Smith asked the court to hold Reece in contempt of the agreement. Smith said Reece had trespassed on his property several times, had threatened and hit him, and had caused rainwater to flow onto his property. Reece denied it and asked the court to hold Smith in contempt, saying that Smith cut down the hemlock tree, destroyed a wrought iron gate Reece had erected across his driveway, interfered with the surveyors, removed pins marking the property lines, blocked the access roads to his property, and stalked and harassed him and his guests. Reece asked for damages for the destruction of the hemlock tree and the gate.

The trial court found that each of them had committed some of the acts alleged and ordered them to serve 20 days in jail and pay a fine. The court also ordered Smith to pay Reece $5,000 in damages for cutting the hemlock tree, but it denied Reece’s claim for damage to the gate, ruling that he hadn’t presented sufficient evidence on the value of the gate.

Both parties appealed.

Held: The Court upheld the jail sentence against , but reversed Reece’s counterclaim. In order to find criminal contempt, there must be a showing of willful disregard or disobedience of the order or command of the court. The sentences and fines should be affirmed if there is sufficient evidence to find that a party committed at least one of the contumacious acts listed in the court’s order.

box150729Smith’s testimony that an adjoining owner had constructed his driveway in such a manner that it caused rainwater to dump onto Smith’s property, had trespassed and threatened him, and drove into a sand pile in Smith’s front yard was sufficient to support the court’s finding that Reece was in contempt of the court’s previous order relating to the settlement.

The contempt remedy is part of the judiciary’s inherent power to enforce its orders. As such, an action for contempt is ancillary to the primary action and is characterized as a motion and not a pleading. Because it is not a complaint, an application for contempt may not, standing alone, serve to commence a civil action for damages.

Therefore, Reece could not file a counterclaim for contempt or obtain an order requiring Smith to pay $5,000 in damages for cutting the hemlock tree. However, he could file a separate suit in superior court for damages resulting from destruction of the hemlock tree and wrought iron gate.

– Tom Root

TNLBGray140407

Case of the Day – Friday, August 23, 2019

WHO ARE YOU GOING TO BELIEVE – ME OR YOUR OWN EYES?

combusted150728Judges actually go to judges school to learn cool, judge-related things. Not the law … they already know about the law, or they know how to look it up. Instead, judges learn really practical things — such as how to tell when a witness is lying.

And how can you tell when witnesses are lying? No, not when their lips move. That’s too easy. But judges learn how to watch for signs — and they don’t tell us in the great unwashed what those signs are — that witnesses may be dissembling. Dissembling: a great euphemism for lying.

In today’s case, two New York neighbors had a common fence. On the Zeltsers’ side of the fence was a one-foot wide strip of land between the fence and the driveway. It had been there for a long time. The Zeltsers took care of the strip, planted trees and shrubs, enclosed it from the street and even paved part of it. But in 2003, the Sacerdotes had a survey done and found, lo and behold, the strip belonged to them. They tore down the fence and cut down the trees. The Zeltsers sued.

The trial court found, on the crucial issue, that the Zeltsers had used the one-foot wide strip openly, continuously and exclusively from 1987 to 2003. The Sacerdotes argued that there had been evidence — testimony from the Sacerdotes — that showed otherwise. But the Court of Appeals noted that the trial court — which had been in “a unique position to assess the evidence and the credibility of the witnesses” — resolved that issue in favor of the Zeltsers.

Generally, appellate courts will not disturb credibility findings of a trial court. The trial judge, after all, with her keen eye for prevaricators (a euphemism for dissemblers, see above), can smell testimony that gives off the reek of tergiversation — and the appellate court wasn’t about to question what the trial court had decided.

There is undoubtedly a good backstory here, one we’ll never know. The Zeltsers were awarded the one-foot strip by adverse possession, so it’s a cinch the judge believed them. In fact, all of the physical evidence – the old fence, the trees planted by the Seltzers, the asphalt and the edging – made this a pretty open and shut case.

The only evidence to the contrary was the Sacerdotes’ testimony. It was rather self-serving testimony at that. The self-serving nature doesn’t make it wrong, but it sure makes it suspect.

pic150728The Zeltsers won rights to the foot-wide strip. In the process, they lost any chance that they’d be invited to a Sacerdote picnic any time soon.

Zeltser v. Sacerdote, 860 N.Y.S.2d 624, 52 A.D.3d 824 (N.Y.A.D. 2 Dept., 2008). The Zeltsers and the Sacerdotes owned adjoining residential properties. When the Sacerdotes purchased their property in 1987, an existing fence — covered in rose bushes and vines — ran parallel with their property line from the street to a garage in the rear for about 100 feet. A small strip of dirt, about a foot wide was sandwiched between the fence and the Zeltsers’ driveway. The Zeltsers believed that the strip — which was on their side of the fence — belonged to them. They planted trees on the strip, trimmed the bushes and vines on the fence, and installed a row of bricks as an edging. They installed a fence that enclosed the front portion of the strip, making it inaccessible from the street, and they laid asphalt on the strip between their garage and the Sacerdotes’ garage, both of which were on the back portion of the respective properties.

It turned out that title to the one-foot strip was held by the Sacerdotes. They never mentioned that to the Zeltsers, and may have been uncertain about it themselves, until they had a property survey done in 2003. After the survey, the Sacerdotes removed the fence and the trees.

The Zeltsers sued to quiet title to the disputed strip, based on their claim of adverse possession.

liarliar150728Held: The Zeltsers had become owners of the strip of land by adverse possession. The Court observed that a party claiming title by adverse possession – rather than a written instrument – must show that the parcel was either regularly cultivated, or improved or protected by a substantial enclosure. Additionally, the party must satisfy the common-law requirements demonstrating by clear and convincing evidence that the possession of the parcel was hostile, under claim of right, open and notorious, exclusive, and continuous for the statutory period of 10 years.

The trial court properly found that the Zeltsers had established that they met both the statutory and common-law requirements of adverse possession. The trial court’s findings relied substantially on its perception of the credibility of the witnesses, and the appellate court was not willing to disturb those findings. The Court said that the evidence established that the Zeltsers openly used and maintained the disputed strip from 1987 until 2003.

The Sacerdotes argued that there was conflicting evidence as to whether the Zeltsers’ possession of the disputed property was exclusive. However, the trial court — which, the Court observed, “was in a unique position to assess the evidence and the credibility of the witnesses” — resolved that issue in favor of the Zeltsers, and the appellate court wasn’t about to disturb the finding.

– Tom Root

TNLBGray140407

Case of the Day – Thursday, August 22, 2019

THIS IS WHY YOU SHOULD COME IN OUT OF THE RAIN

duh160901Sad to say, stupidity abounds.

Most of us know – thanks to our mothers – that we should come in out of the rain. One dark and stormy night, Katherine Grigg forgot that life lesson.

Kate was driving on Mount Pleasant Road, in rolling farmland at the foot of the California Sierra Madres. Normally an enjoyable drive, Mount Pleasant Road had become anything but pleasant in the driving rain. She encountered a large tree fallen from Dennis Taylor’s yard across the road. Naturally, she got out of her car. Who wouldn’t? Standing in the wind and sheets of rain, she and another weather-challenged motorist, David Eggert, determined the tree was too big for them to move.

As their two-party Mensa meeting continued, a second tree fell, hitting both Grigg and Eggert. This is where you perform a face-slap and say, “D’oh!” You might think these two were Darwin award contenders, but this was California. So they became plaintiffs instead.

actofgod160901At least Grigg did. The court reports that when she asked Eggert whether they should sue Taylor. Eggert replied, “Why? … this was what I call an act of God.”

Maybe the tree knocked a little sense into him. It had no salubrious effect on Kate Grigg, however. She sued, claiming that Dennis Taylor should have removed the danger trees, and his “conscious choice… to neglect his duties which are prescribed to protect the public, is despicable conduct which is the basis for punitive damages.”

It turned out that Eggert was right. It was an act of God. What’s more, despite the fact that Dennis Taylor had reason to know that this act of God was likely to happen, he nevertheless was found to have done enough – not much but enough – to discharge his duty to the public. Dennis was found not to be liable.

D’oh, Kate.

Grigg v. Taylor, Case No. C050070 (Superior Ct. Cal. June 28, 2006) 2006 Cal. App. Unpub. LEXIS 5661, 2006 WL 1756843. Plaintiff Katherine Grigg encountered a large tree blocking her way one stormy night on Mount Pleasant Road in Lincoln. The tree had fallen from Dennis Taylor’s property, which was adjacent to the road. Another motorist traveling on the road, David Eggert, parked behind Grigg’s car. Grigg and Eggert got out of their vehicles and determined the tree was too big for them to move. As Eggert was thinking of an alternate route they could take, a second tree fell, striking both Grigg and Eggert.

The tree that had fallen on Grigg and Eggert was one-half of a “V” shaped double-trunk tree. The tree’s other trunk had fallen a few weeks before the accident. When the first trunk fell, Taylor inspected the tree and believed it was not going to fall because several other double-trunk trees on his property were still standing after one trunk had fallen. He decided not to take care of the remaining trunk right away “[b]ecause there w[ere] a series of storms” and he “didn’t feel like getting wet.” Nevertheless, once a week, Dennis checked his property for danger trees. Placer County, California, had no law, ordinance, or regulation requiring landowners to prune their trees.

Grigg sued Taylor for negligence and for maintaining a nuisance by failing to maintain the trees on his property. She wanted compensatory and punitive damages.

The court granted Taylor’s motion for nonsuit regarding punitive damages, and the jury found for Taylor on the remaining claims. Grigg appealed.

daffyduck160901Held: Dennis Taylor was not liable to Kate. On appeal, she complained there was insufficient evidence to support the jury’s verdict that Taylor was not negligent and had not created a nuisance. The Court of Appeals disagreed, citing evidence Taylor had inspected his trees weekly, that he had several double-trunked trees on his property that had lost one trunk but remained safe, and that his neighbor — who had lost a tree in the storm himself — hadn’t seen any hazardous-looking trees on Taylor’s property.

Grigg’s complaint that Taylor had created a nuisance failed on the same evidence. Without Taylor having any liability to Grigg, the complaint that he should have been ordered to pay punitive damages was moot. The Court said, “the jury found Taylor was not negligent in maintaining his property and did not create a nuisance. There was substantial evidence to support those verdicts. Given the jury’s verdicts, any error in granting the nonsuit on Grigg’s theory that Taylor’s conduct was ‘despicable’ was harmless.

– Tom Root
TNLBGray140407

Case of the Day – Wednesday, August 21, 2019

EASEMENT CREEP

A pipeline runs through it ... but how wide is the easement?

A pipeline runs through it … but how wide is the easement?

It’s a common enough problem when a deal gets cut by people who later leave the company, retire, pass on, whatever. Over the years newer, younger Turks come along, who redefine the deal to suit the newer aims and needs of the company.

So it was with some gas line easements in the Mohican forest area of eastern Ohio. We’ve discussed previously why a careful description of the bounds of an easement is such a good idea. Here’s another example. When the easements for these three gas pipelines were written, they didn’t contain any description of the width of the right-of-way being provided to the easement holder. Over the first 40 years or so, the gas company kept the right-of-way cleared to 10 or 15 feet. But in 2003, the company suddenly decided it required 20 to 25 feet, and it began cutting accordingly. Even that wasn’t enough, and so in 2006, the gas company sued a church camp and some other recreational landowners for a declaratory ruling that the easement was really 50 feet wide.

The Federal district court denied summary judgment to the gas company. The gas company’s argument, reduced to its essence, was that it must obey new, stiffer federal laws and regulations in the wake of 9/11, and those require a 50-foot wide easement. The court wasn’t buying it. Finding no language to help it in the easements themselves, the court looked at other factors. It seemed pretty clear that nothing in the way the gas company had operated for 40 years or so supported a finding that the parties understood all along that they were dealing with a 50-foot wide easement. The gas company’s arguments that its operations required 50 feet failed — the court said the best it could justify based on the evidence was 29 feet wide. And the court was troubled that the gas company had met with the church in 1965, when the church was buying the campground, and told church representatives that it was looking at a 10-15 foot right-of-way. Thirty-eight years later, it told the church it needed a 20-25 foot wide easement.

Sometimes, you have to dance with the girl who brung ya …

Sometimes the little guy really does win ...

Sometimes the little guy really does win …

None of this meant that after a full trial, the court might not feel differently. But for moment, it was David 1, Goliath 0. And – reading the handwriting on the wall – Columbia Gas Transmission Corp. ended the litigation several months later.

Columbia Gas Transmission Corp. v. First Congregational Church, Case No. 1:07-cv-00661, Dkt. 74 (N.D. Ohio, Dec. 11, 2007). Columbia Gas owned three gas pipelines that traverse the Church’s camping retreat property. Two of the easements had been granted by the Muskingum Conservancy District, the Church’s predecessor-in-interest, providing the right to ingress and egress, the right to lay, maintain, operate, repair, replace and remove the pipe, provided the pipe would be buried so as not to interfere with the cultivation of the land. A second easement had been granted for the sole purpose of drilling for oil and gas and to use the premises for pipelines, water lines, pumps, tanks, structures and stations necessary or convenient in connection with drilling, provided that the pipelines be buried and the easement holder pay for all damages to growing crops and trees.

When the Church bought the campground in 1965, gas company representatives showed the clergymen the clearings for the pipelines, which were between 10 and 15 feet wide. In 2003, the gas company expanded its cleared right-of-way to 20 to 25 feet. Three years later, the gas company told a church member it owned a 50-foot right of way, and asserted that the Department of Homeland Security required this for gas pipelines. The gas company cleared all the trees within 50 feet of one of the pipelines without informing the church of its intention. The gas company dumped brush piles in excess of 55 feet from the centerline of of the pipeline, needlessly changing the topography of the area. Shortly thereafter, the gas company sued the church for injunctive relief that its easement entitled it to clear a 50-foot right-of-way on a second pipeline. The church wasn’t alone: several other landowners were sued as well, and the court consolidated all of the cases. The Church filed a counterclaim seeking declaratory judgments and injunctive relief that Columbia Gas was not entitled to a 50-foot right-of-way in its easements for its pipelines, and sought damages from the previous tree clearing along the one pipeline. Columbia Gas moved for summary judgment.

Held: The gas company’s motion was denied. Under Ohio law, the granting of an easement includes a grant of all things necessary for the use and enjoyment of the easement. Where the complete terms of the easement are not expressed in the instrument granting it, the extent and limitation of the easement are ascertained from the language of the grant, from the circumstances surrounding the transaction, and by what is reasonably necessary and convenient to serve the purpose for which the easement was granted. The holder of an easement may not increase the burden upon the servient estate by engaging in a new or additional use of the easement. However, without specific language to the contrary, an easement holder is entitled to vary the mode of enjoyment and use of the easement by availing himself of modern inventions if by doing so he can more freely exercise the purpose for which the grant was made.

Easements should be very specific - because the people who wrote them won't always be around.

Easements should be very specific – because the people who wrote them won’t always be around.

Here, the easement agreements were ambiguous at best, and provided no basis for determining what the parties had intended. As to what is reasonable, it is true that the gas company has a duty to maintain its storage pipelines in accordance with federal law. It has a policy of not allowing any growth more than five feet tall within the right-of-way. However, its evidence of use of the easement and of hazard to pipelines from tree roots supports a clearing of only about 29 feet at most. Furthermore, Ohio courts have also looked to use and acquiescence and have refused to extend easements to fifty feet where the gas company has allowed mature trees growing within fifty feet of the pipeline.

Here, even if the regulations suggested a fifty-foot wide clearing were necessary, the Court said, the parties never contemplated such a right-of-way at the time of the granting of the easement. The gas company argued that 50 feet is necessary for it to conduct aerial patrol. The Court said presumed that the parties contemplated normal developmental changes in the use of the easement, nothing in the evidence ever suggested that anyone contemplated a 50-foot right-of-way.

The parties’ experts’ discussions of the relevant safety issues is only one issue among many that the Court was willing to consider in determining the dimensions and scope of the easement. The Court also considered the language of the grants and the circumstances surrounding the transactions. Neither of those entitled the gas company to a judgment as a matter of law.

Finally, the Church argued that the Plaintiff should be estopped from arguing a larger easement than 25 feet is reasonably necessary and convenient, because it not only used a small right-of-way in the past, but its representative affirmatively showed the Church’s representative the clearings of the trees so that the Church would know what to expect — showing him clearings of 10 feet, occasionally increasing to 15 feet in width. Further, in 2003, the gas company told a member of the Church it needed 25 feet, not 50. The Court said these conversations and interactions, coupled with the gas company’s failure to remove mature trees until now, might demonstrate enough evidence of use and acquiescence to estop the gas company from arguing for 50 feet.

– Tom Root

TNLBGray140407

Case of the Day – Tuesday, August 20, 2019

WE GOT YOU COVERED

Ich bin in Berliner? The denizens of the western half of the city were irate over the Wall. Just a bit.

Ich bin ein Berliner? The denizens of the western half of the city were irate over the Wall. Just a bit.

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 the Mexicans will feel when they awaken 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.

If she didn't work for Disney (and if she weren't a cartoon character), Elsa could be a field rep for Mid-Century.

If she didn’t work for Disney (and if she weren’t a cartoon character), Elsa could be a field rep for Mid-Century. Except their hearts are much colder…

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).

cat150724However, 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.

unforeseen150724Shelly 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.”

denied150724Mr. 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.

If you intentionally cut down one of your own trees, but it unintentionally falls on the house, you're still covered. We're pretty sure. But read the fine print.

If you intentionally cut down one of your own trees, but it unintentionally falls on the house, you’re still covered. We’re pretty sure. But read the fine print – preferably before you fire up your chainsaw.

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

TNLBGray140407