The California Court of Appeal recently considered whether the acts of an insured of pruning nine of her neighbor’s olive trees were “accidental” and thus an “occurrence” within the Insuring Agreement of her liability policy. In short, the Court held that intentional tree trimming, resulting in significant damage to the trees, cannot be considered “accidental,” and the insurer had no duty to defend.
In Shelly Albert v. Mid-Century Insurance Company, 236 Cal.App.4th 1281 (2015), Shelly Albert, the insured, was sued by her neighbor, who alleged that his property and Ms. Albert’s property were serviced by a reciprocal roadway easement that provided access to a public road. Ms. Albert allegedly constructed a permanent fence over a portion of the roadway easement and pruned nine olive trees located on the neighbor’s property. The neighbor alleged that the trees were “severely hacked” without his permission, causing “severe damage” that “greatly diminished the aesthetic and monetary value of those trees.” In an amended complaint, the neighbor alleged that Ms. Albert had failed to ascertain whether the trees were located on his property and had a duty to refrain from cutting the trees.
Ms. Albert tendered her defense to her liability insurer, Mid-Century, claiming that she believed the fence was on her property line and that the trees were “boundary trees” that she was required to trim. Mid-Century denied her tender, stating that there were no allegations in the complaint that satisfied the policy’s “definition of occurrence resulting in bodily injury or property damage.” After a second amended complaint was filed, Ms. Albert re-tendered her claim. She again admitted that she had intentionally cut the trees but explained that she had been required by the fire department to cut the trees. Mid-Century again denied her tender.
Ms. Albert challenged Mid-Century’s coverage denial through a declaratory relief action. The trial court ruled on cross-motions for summary judgment that Ms. Albert had failed to show a potential for coverage because there was “no evidence whatsoever that the trees were injured in some sort of accident.” The trial court also found that there was no evidence that the tree trimming contractors had been negligently supervised.
The Court of Appeal upheld the trial court’s decision, finding that coverage had been appropriately disclaimed. The Court noted that although coverage is “not always precluded when the insured’s intentional acts result in injury or damage,” in most cases when the insured intends the acts that result in injury, there is no “accident” within the meaning of the term “occurrence.” The Court concluded that it was entirely irrelevant that Ms. Albert did not intend to damage the trees. Instead, it focused on her intent to prune the trees, noting that Ms. Albert is not permitted to speculate or manufacture circumstances that would have somehow converted her intentional acts into accidental conduct. There was no evidence that the contractors had slipped with a chainsaw or had otherwise been negligently supervised. Rather, all of the extrinsic evidence available to Mid-Century pointed to the fact that Ms. Albert’s trimming of the trees was done intentionally and was not in any way accidental.
Interestingly, Ms. Albert apparently did not seek coverage under Coverage B of the policy for “personal and advertising injury,” which is often defined to include damages caused by trespass to property, even though the underlying lawsuit contained allegations of trespass. California courts have held that “personal injury” coverage may exist under Coverage B for certain claims involving intentional acts “arising out the interference with an interest in real property, such as trespass, nuisance, and noninvasive interferences with the use and enjoyment of property.” Stonelight Tile, Inc. v. California Ins. Guarantee Ass'n, 150 Cal.App.4th 19, 39 (2007). Depending upon the language in her liability policy, there could have been potential coverage under Coverage B.