Trimming of a Neighbor’s Trees is Not an Insured Accident or Occurrence

Author: David Ramirez

In representation of general contractors and subcontractors, we frequently review insurance coverage determinations from the various Courts of Appeal. These decisions range from the mundane to the complicated. One particular decision is relevant to typical homeowners and includes a concise overview of general coverage issues.

In Albert v. Mid-Century Insurance Co. (May 20, 2015), the Second District Court of Appeal, Division 8, held that an insured’s trimming of a neighbor’s trees which allegedly damaged the trees was not an “accident or occurrence” covered by her homeowners insurance, despite a mistaken and good faith belief as to where the property line lay.

Plaintiff Shelly Albert appealed from the trial court’s judgment in favor of defendant Mid-Century Insurance Company after the trial court granted defendant’s motion for summary judgment, and denied plaintiff’s cross-motion for summary adjudication. Plaintiff sued defendant for breach of the insurance policy

and insurance bad faith after defendant denied her tender of the defense of a lawsuit brought by her neighbor, Henri Baccouche. Plaintiff contends there were triable issues of fact relating to the duty to defend that precluded summary judgment, reasoning she met her burden of establishing the potential for coverage, and that defendant did not demonstrate there was no possibility of coverage. Finding that Mr. Baccouche’s claims against plaintiff arise from nonaccidental conduct, outside the terms of the policy, the Court affirmed the judgment below.

Ms. Albert was sued by her adjoining neighbor, who alleged damage to his property when Albert erected an encroaching fence and pruned nine mature olive trees on his property. The two parcels shared a reciprocal roadway easement providing for access to the main public road. Ms. Albert erected a fence that was subsequently determined to be on the neighbor’s land, and enclosed a grove of nine mature olive trees. Ms. Albert claimed the trees straddled the property line and were mutually owned. Ms. Albert pointed out she had regularly been notified by the

Los Angeles Fire Department to clear the area, and she had been trimming the trees for many years. Thus, Ms. Albert claimed a good faith belief the trees were

hers and she was required to trim them. Contending her trimming had caused severe damage by reducing the aesthetic and monetary value of the trees, the neighbor, Mr. Baccouche sued alleging causes of action for (1) Trespass to Real Property; (2) Abatement of Private Nuisance; (3) Declaratory Relief; and (4) for Quiet Title. Additionally, he sought treble damages under Civil Code sections 733 and 3346, for injury to the trees.
Ms. Albert tendered her defense to Mid-Century, which denied coverage. The Mid-Century policy stated:

“We will pay those damages which an insured becomes legally obligated to pay because of . . . property damage resulting from an occurrence.”
The policy further defined an “occurrence” as:
“[A]n 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.”

In the resulting breach of contract and bad faith lawsuit, the trial court granted summary judgment to Mid-Century, and denied Ms. Albert’s cross-motion for summary judgment. The Court of Appeals affirmed, stating: 

“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.’ (Delgado v. Interinsurance Exchange of Automobile Club of Southern California (2009) 47 Cal.4th 302, 311) ‘An intentional act is not an ‘accident’ within the plain meaning of the word.’ (Royal Globe Ins. Co. v. Whitaker (1986) 181 Cal.App.3d 532, 537, fn. omitted.) ‘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.’’ (Delgado, at p. 308.) The term ‘accident’ refers to the nature of the insured’s conduct, and not to its unintended consequences. (Frake, supra, 197 Cal.App.4th at p. 579.) An accident ‘is never present when the insured performs a deliberate act unless some additional, unexpected, independent, and unforeseen happening occurs that produces the damage.’ (Merced Mutual Ins. Co. v. Mendez (1989) 213 Cal.App.3d 41, 50 (Merced).) 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.’ (Fire Ins. Exchange v. Superior Court (Bourguignon) (2010) 181 Cal.App.4th 388, 392, citation omitted; see also Merced, at p. 48.)
Nevertheless, coverage is not always precluded when the insured’s intentional acts result in injury or damage. (Frake, supra, 197 Cal.App.4th at p. 580.) … 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.’ (Merced, supra, 213 Cal.App.3d at p. 50.) For example, ‘[w]hen 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. Accordingly, 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.’”(Ibid.

The Court also rejected an argument that the accident requirement was met because the damage resulted from “miscalculation by independent contractors,” and that the complaint could be read as alleging negligent supervision:

“As discussed, ante, it is completely irrelevant that plaintiff did not intend to damage the trees, because she intended for them to be pruned. (Fire Ins. Exchange v. Superior Court, supra, 181 Cal.App.4th at p. 392; see also Merced, supra, 213 Cal.App.3d at p. 48.) 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.”

Further, the Court held:

“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.” (Gunderson v. Fire Ins. Exchange (1995) 37 Cal.App.4th 1106, 1114.)

The Court distinguished the 1959 decision in Firco, Inc. v. Fireman’s Fund Ins. Co. (1959) 173 Cal.App.2d 524, where there was a potential for coverage, noting that the sole claim in that case was for trespass to trees under Civil Code section 3346, which can be involuntary. Also, there were no allegations in Firco as to how the damage had been caused.

In this case, the Court agreed that there was no potential for coverage and no duty to defend:

“Under any view of the underlying events, the trimming of the trees was no accident. Plaintiff failed to carry her burden to show any of Mr. Baccouche’s claims may fall within the scope of the policy. (Montrose Chemical Corp. v. Superior Court, supra, 6 Cal.4th at p. 300.) Accordingly, the trial court did not err in granting defendant’s motion for summary judgment.”

David Ramirez is a Senior Counsel at Tyson & Mendes, LLP and primarily represents clients in complex litigation, including construction defect, insurance law, property disputes, and product liability. Mr. Ramirez was recently named as a “Top Lawyer” of San Diego for “Litigation” in the February 2015 issue of San Diego Magazine.

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