Case of the Day – Thursday, November 9, 2017


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 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


Case of the Day – Wednesday, November 8, 2017


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


Case of the Day – Tuesday, November 7, 2017


Most of us know – thduh160901anks 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, “[W]hy? … this was what I called 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 (Super.Ct. Cal. June 28, 2006) (unpublished) 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

Case of the Day – Monday, November 6, 2017


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, Slip Copy, 2007 WL 4350769 (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


Case of the Day – Friday, November 3, 2017


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


Case of the Day – Thursday, November 2, 2017


poke160829Every adult can recite the many and varied warnings and admonitions we heard from parents when we were kids. Among them were “you’ll catch your death of cold,” “clean up your plate, because there are starving kids in India/China/Africa.” We imagine Momma Weinstein telling a young Harvey to “keep your hands to yourself.” Good advice that can save you headaches later.

And, of course, there’s that Christmas Story classic, “you’ll shoot your eye out.”

Today’s case is about Peter Robles, a kid who didn’t shoot his eye, but did poke it out.. Petey, an impetuous 3-year old, ran straight into a very sharp palm frond while playing in the Severyn family’s yard next door to his house.

We remember when the neighbor kid climbed our magnolia tree once while it was raining. (We, or maybe our mother, had enough sense that we were kept indoors, out of the rain). The neighbor kid lost his footing on a slippery bough, fell, and whacked his chin on the branch as he went past headed for the ground. Even then, the law of gravity was in force.

obey160829The neighbor boy showed up the next day with stitches, and haughtily told us that his parents were going to sue our parents. Not really understanding the law, we had visions of losing out house, car and toys, and being reduced to panhandling on the village square. Had we really appreciated the law, we would not have been scared. We would have been petrified.

In today’s case, the toddler’s parents really did sue, complaining that the palm trees were a “hidden peril” in the neighbor’s property, and that he had thus breached his duty to little Peter. The Robles said the little boy was an “invited guest,” and thus the Severyns had a duty to warn the kid about the hidden dangers of sharp palm fronds.

The Court of Appeals disagreed, patiently explaining to a lawyer who may weak have slept through the first year of law school  the how the status of the person on the landowner’s property determines the duty of care the owner owes. The Court quite reasonably found that the palm trees were anything but “hidden.” Even if the Severyns had been sloppy in trimming the palm tree – something that had not been established – the negligent trimming did not make the trees appear deceptively safe. Even Petey’s dad had told the boy to be careful when playing at the Severyns (as if we didn’t have that warning go in one ear and out the other countless times during our youth).

oneear160829Sure the boy was only 3 years old, the Court said, but even taking his tender age into account, the Severyns did not owe him a duty greater than the one they discharged toward him.

We have railed about it before, the American perception that once a victim has been injured, a jury is duty bound to look around the courtroom for someone who should be made to pay for it. There’s no discounting the sadness of seeing someone accidentally killed or maimed for life, but as President Jimmy Carter has pointed out, life is often unfair

Robles v. Severyn, 504 P.2d 1284, 19 Ariz. App. 61 (Ct.App. Ariz. 1973). Peter Robles, a 3-½ year old, was playing at a neighbor’s house with permission, when he somehow impaled his left eye with a sharp palm frond. No one saw the accident, but the boys had been playing among the trees when it happened. The palms were in a row alongside a fence at the border of the Severyns’ property, with short, squat trunks and narrow, long fan leaves.

Peter’s parents sued the Severyns to recover for injuries Peter suffered as a result of a “sharp palm frond penetrating his left eye” while he was playing on the Severyn property as an “invited guest.” The complaint alleged that the palm trees “had a misleading hidden and dangerous defect to a child of tender years, which danger defendants had specific knowledge of,” and that it “constituted a hidden trap to children playing in the area.”

The Severyns got the case thrown out by the trial court on summary judgment. The single question on appeal was whether the trial court erred in doing so.

Held: Dismissal was proper. A landowner’s duty to a person on his property is determined by that person’s status. The evidence shows that young Peter was a social guest. In Arizona, a social guest is not an invitee but merely a licensee despite the fact that he is on the premises pursuant to an invitation from one in possession. The general rule is that one who goes upon another’s property as a gratuitous licensee must take it in the condition he finds it and must assume all risks incidental to such condition. This rule applies to children as well as adults, and to natural as well as artificial conditions. The owners of the premises owe no duty to a guest other than to refrain from knowingly letting him or her run upon a hidden peril, or wantonly or willfully causing the guest harm. However, the rule is that a host who knows of a concealed danger upon the premises is guilty of negligence if he permits the guest, unwarned of the peril, to come into contact with that danger, and he may be held liable to the guest for an injury thus sustained.

Palm trees can provide the unsuspecting with an unpleasant time.

Palm trees can provide the unsuspecting with an unpleasant time.

The Court held that the “hidden peril” doctrine did not apply. The trees were neither hidden nor did they have a deceptive quality. The accident occurred during daylight hours and the trees were clearly visible. Peter had been cautioned by his father before to be careful playing. The Court said that even if it assumed that the Severyns were negligent in failing to trim the branches, such a failure did not give the trees a deceptive or innocent appearance. If a dangerous condition existed, the Court held, it was an obvious one, and the Severyns thus had no duty to warn. The Robles stressed Peter’s age, arguing that a 3-year old child could not have realized that these trees were dangerous. While the Court admitted that was true, it did not believe that “all circumstances giving rise to a possible danger to a child create a factual question as to whether a ‘hidden danger’ exists. One would have to ‘childproof’ his property if such were the case.”

The Court ruled that while the care to be taken by the owner or occupant must be commensurate with the danger to, and with the immaturity and inexperience of, the child to be protected, any requirement in this respect must not be so onerous as to make the ownership or possession of property burdensome instead of enjoyable. The use of property should not be burdened with the need to take precautions against every conceivable danger to which an irrepressible spirit of adventure may lead a child. There is no duty to take precautions where to do so would be impracticable, unreasonable, or intolerable.

– Tom Root


Case of the Day – Wednesday, November 1, 2017


fence150722We continue our tour through the House of Bad Neighbor Horrors today (see our post from yesterday) with a look at neighbors Paula A. Luckring and Christopher Blair.

There’s an old legal adage which argues that “a bad settlement is better than a good lawsuit.” Paula sued her neighbor, arguing that branches from his trees overhung her property, and that they were doing all the kinds of things trees do – you know, dropping twigs and leaves, leaking sap, growing roots, just normal tree stuff. Paula insisted that she was entitled to something north of $13,000 because the trees were “trespassing” on her property, making claims that sounded a lot like her lawyer had read Fancher v. Fagella.

Neighbor Chris Blair counterclaimed, pointing out that if Paula wanted to really get technical, her deck – which she claimed was being damaged by his trees – was built partly on his property, and it should be removed.

The case looked like the trial would be the Saturday night main event, but alas … before trial, the parties settled. There’s nothing wrong with that. Civil actions are just a formalized means of settling disputes, a little more complex and fact-driven than “rock, paper, scissors,” but often, it seems, just as random. When the parties find a means short of a full-blown trial to resolve things, time and money are saved, and people are able to get on with their lives.

That must be what Chris Blair thought, because he settled the case with Paula Luckring before trial. He agreed to give Paula title to an 11-foot strip of his own land and to build, at his own expense, a fence marking the new boundary line between their properties.

appease150722We have to hand it to Chris. He apparently was a Bible scholar, and remembered Matthew 5:39 – 40: But I say to you, do not resist an evil person; but whoever slaps you on your right cheek, turn the other to him also. If anyone wants to sue you and take your shirt, let him have your coat also…” For that matter, Neville Chamberlain thought that giving Hitler Czechoslovakia would keep the brown shirts out of Paris.

We’re not saying Ms. Luckring was evil, nor would we ever equate her territorial ambitions with those of the Third Reich. For a concession to be effective, however, the party being appeased has to be acting in good faith. This is rarely the case. Rather, the problem is that the party being appeased has probably acted in bad faith in order for affairs to get to the point that appeasement is necessary. Hitler had the “Anschluss.” Without it, Chamberlain wouldn’t have needed to make a deal. Putin started by taking South Ossetia from Georgia. Then, he grabbed Crimea, and now he wants a piece of Ukraine (if not Moldova, Estonia and the other Baltic states as well). History has shown us that appeasement doesn’t work, because appeasement only convinces the appeased party that bad conduct pays.

Just ask Chris Blair. Chris thought he had bought peace by giving away a piece of this land. But when Chris hired a fence company to build the agreed-upon fence along the new boundary, Paula Luckring refused to let the contractor set foot on her property during the construction process. It’s hard to build a fence from one side only. To further appease Ms. Luckring, the contractor built the fence 13 inches into Chris’s side of the boundary. After that, when Chris’s caretaker (Chris himself had severe Parkinson’s, a condition that undoubtedly only goaded Ms. Luckring into further predations) would try to use a weed whacker on the grass growing in the 13-inch space between the new boundary and the fence, Ms. Luckring demanded that he do the cutting without setting foot on her property. However, she magnanimously conceded, she would cut the grass on the 13-inch strip … if Chris gave her an easement for the 13 inches of space.

nomans150722The trial court was drawn back into what it called the “predictable drama” that arose by Ms. Luckring’s demands. It told Paula that she had to pay to have the fence moved and reinstalled right along the boundary. No 13-inch “no man’s land.” No easements. No more trespassing actions.

Naturally, Ms. Luckring appealed. The appellate panel was having none of it. It held that “a mere cursory review of the Plaintiff’s pleadings and her own testimony … adduces an ongoing pattern of bullying of a Defendant who granted her the moon and the stars in acquiescing to her unceasing demands, and yet was confronted with demands for more …” It’s not unheard-of for a plaintiff to cripple her case by her own testimony, but to prove yourself to be a bully?

Under the circumstances, making Paula pay to relocate the fence seemed to the court to be a lot like justice. Approximate justice, but still justice.

Luckring v. Blair, 2014 Pa. Dist. & Cnty. Dec. LEXIS 3 (Com.Pl.Ct. Pennsylvania, Dec. 3, 2014). Paula Luckring sued neighbor Christopher Blair, alleging that his pine and sycamore trees trespassed onto her property, causing public safety issues that had been presented to the local township authorities. She additionally complained of damage caused by “tree sap, needles, branches, cones, roots” constituting a “nuisance” because the trees overhung, fell upon, and grew under her property which caused damage such as a broken window, damage to a deck and stamped concrete, as well as clogging a sewer line and causing landscape damage. She demanded $13,369 for cutting down or trimming the offending trees and restoring her property to its previous condition.

trespass150722Blair countered that he had given Luckring permission to trim the sap-dripping white pine tree all the way back to its trunk, but her trimming caused the sap to drip excessively because there were no tree branches remaining to catch and absorb its flow. He also said that she had previously accepted his written permission and cut down the encroaching white pine tree at her own expense. He argued she should not now be able to renegotiate that contract. He also counterclaimed, alleging that Luckring was trespassing on his property with her deck and retaining wall.

The parties settled the case before trial by signing a settlement agreement that called for Blair to grant title to Luckring, free of charge, to an 11-foot strip of his own land and to build, at his own expense, a fence marking the new boundary line between their respective parcels. Nevertheless, the parties were back in court a year later seeking to resolve the predictable drama ensuing from the Plaintiff’s abject and literal refusal to allow the fence company to set foot on her newly acquired property in order to erect the structure. The contractor then built the fence thirteen inches inside the Blair’s side of the new property line in order to appease the Plaintiff in that regard. Adding further insult to injury to Blair, who suffered from severe Parkinson’s Disease, Luckring demanded that when Blair cut the tall grass and weeds on the 13-inch strip of his property on Luckring’s side of the fence, such work must be accomplished without setting foot on her land. She offered to cut the grass and weeds herself, but only if Blair granted her an easement to that additional piece of his property.

The appellate court enforced the settlement agreement by ordering Luckring to move the fence to the boundary line of the respective properties at her own expense.

Luckring appealed.

Held: The enforcement of the settlement agreement was upheld.

The appellate panel noted with disdain that after Blair applied for a building permit for the fence in May 2013, Luckring made multiple calls to Haverford Township officials to note her opposition to the fence despite having agreed in the settlement not to oppose in any manner the erection of the fence and to waive any and all objections thereto. She also erected signs on her property pointing in the direction of Blair’s residence saying “No Trespassing,” and put up a sign on her property order-ing the fence company not to install the fence all the way to the sidewalk, contrary to Blair’s in-structions. She also initiated a verbal confrontation with Mary Blair, in which she accused the Blairs of being “too cheap to get their own survey”, even though the settlement agreement required Luckring to bear the expense; and she hammered stakes into the ground on Blair’s property and – after the fence was built – she entered Blair’s property to “wash” the brand new fence.

Whatever Ms. Lucking might do for a living, we're betting it's not driving the Welcome Wagon.

Whatever Ms. Lucking might do for a living, we’re betting it’s not driving the Welcome Wagon.

The Court noted that when Luckring was asked at the hearing to expound upon her belief that the parties must strictly adhere to the terms of their settlement agreement regarding the need to care for the portion of the Blair’s land outside the fence line and abutting her property, she replied that, if the caretaker stepped on her property during this process, he would be trespassing and that she would sue.

The Court concluded that a “mere cursory review of the Plaintiff’s pleadings and her own testimony at the Hearing on the Defendant’s Petition to Enforce Settlement adduces an ongoing pattern of bullying of a Defendant who granted her the moon and the stars in acquiescing to her unceasing demands, and yet was confronted with demands for more. The parties’ Settlement Agreement and Release provided for a fence to be built by the Defendant on his side of the new boundary line of the neighboring properties, albeit without trespassing on the Plaintiff’s land. A reasonable interpretation of this requirement would result in the edge of the fence being placed on the edge of the Plaintiff’s new property line and not crossing this point of demarcation. Moreover, the momentary intrusion involved in its construction would be of no concern whatsoever with regard to the fence contractor’s presence on the Plaintiff’s side of the boundary line in order to complete the effort. However, the Plaintiff took the extreme position that enforcement of these provisions must be strict, and refused to permit the fence installer to step on her property to undertake its construction in the place designated by the Defendant in express accordance with the parties’ stipulated Agreement. As a result, the fence contractor took it upon itself to erect the structure thirteen inches inside the Defendant’s side of the boundary line, instead of on the line itself, in order to placate the Plaintiff. The Plaintiff then added to this mix of unreasonableness and bad faith by complaining that the Defendant’s landscaper was stepping on her property when clearing weeds and high grass growing on the thirteen inch strip on her side of the fence that remained in the ownership and possession of the Defendant.”

Calling Luckring’s conduct “obdurate and [in] bad faith,” the Court concluded that Luckring had not acted in good faith, and the trial court’s order that she pay to move the fence “ was warranted and necessary to achieve justice in this case.”

– Tom Root