Albert v. Truck Ins. Exch.
232 Cal. Rptr. 3d 774
| Cal. Ct. App. 5th | 2018Background
- Neighbor Baccouche sued Albert for abatement of private nuisance, alleging Albert erected and maintained a chain-link fence that obstructed half of the only 26-foot private road (leaving 13 feet) that provided access to his undeveloped property and diminished its value.
- Albert tendered defense to her homeowners insurer (Mid-Century) and her umbrella insurer (Truck); Mid-Century denied coverage and Truck denied a defense under the umbrella policy's personal injury coverage.
- Truck's umbrella policy provided personal injury coverage for enumerated offenses including "wrongful eviction, wrongful entry, or invasion of the right of private occupancy," and agreed to defend claims covered by the policy that were not covered by underlying insurance.
- Albert sued Truck for breach of contract and bad faith for refusing to defend. Truck moved for summary judgment; trial court granted it, ruling no potential coverage (no wrongful entry; no right of private occupancy in the easement).
- On appeal the court considered whether the underlying complaint created a potential for coverage under the umbrella policy's personal injury clause, focusing on whether "invasion of the right of private occupancy" can include non-physical interferences with use and enjoyment of property.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the underlying nuisance complaint created potential coverage under the policy's "wrongful entry" language | Baccouche alleged a physical invasion of his easement by Albert's fence; thus wrongful entry is alleged | Albert entered her own land; wrongful entry requires unauthorized physical entry onto plaintiff's land, so no coverage | No potential for coverage under "wrongful entry" (requires entry onto plaintiff's land) |
| Whether the underlying complaint created potential coverage under "invasion of the right of private occupancy" | Interfering with access/use/enjoyment of Baccouche's own adjoining property (by blocking the easement) reasonably alleges invasion of his right of private occupancy | Truck contended there was no right of private occupancy in the easement (nonpossessory) and relied on cases requiring physical occupation | Court held "invasion of the right of private occupancy" can include non-physical interferences with use and enjoyment of property; the complaint created a potential for coverage |
| Whether insurer had a duty to defend when coverage is "potential" | Insured: any complaint facts fairly inferable that fit a covered offense trigger duty to defend | Insurer: must show claim cannot in any conceivable theory be covered to avoid duty | Duty to defend is broad; doubt resolved for insured; Truck failed to eliminate potential for coverage, so duty to defend existed |
| Whether certain precedent (Sterling Builders) forecloses non-physical invasions | Albert argued many authorities treat the phrase as ambiguous and covering non-physical invasions | Truck relied on Sterling Builders to argue "invasion" must be physical | Court rejected Sterling Builders' narrow reading and found the phrase ambiguous and capable of covering non-physical interferences |
Key Cases Cited
- Martin Marietta Corp. v. Ins. Co. of N. Am., 40 Cal.App.4th 1113 (Cal. Ct. App.) (nuisance may involve physical invasion; wrongful entry discussed)
- General Accident Ins. Co. v. West American Ins. Co., 42 Cal.App.4th 95 (Cal. Ct. App.) ("invasion of the right of private occupancy" can include noninvasive interferences)
- Fibreboard Corp. v. Hartford Accident & Indem. Co., 16 Cal.App.4th 492 (Cal. Ct. App.) (distinguishes "wrongful entry"/trespass analysis)
- Sterling Builders, Inc. v. United Nat. Ins. Co., 79 Cal.App.4th 105 (Cal. Ct. App.) (held invasion requires physical occupation — court here disagreed with its interpretation)
- Town of Goshen v. Grange Mut. Ins. Co., 424 A.2d 822 (N.H. 1980) (nonphysical government action affecting enjoyment can fall within "invasion of the right of private occupancy")
- New Castle County v. Nat’l Union Fire Ins. Co., 243 F.3d 744 (3d Cir. 2001) (recognizes ambiguity and holds nonphysical interferences may trigger coverage)
- Kazi v. State Farm Fire & Cas. Co., 24 Cal.4th 871 (Cal. 2001) (held easement interference is not property damage; did not decide personal injury/invasion issue)