Court Holds That Trimming of Neighbor’s Trees is Not an Insured Accident or Occurrence

by Haight Brown & Bonesteel LLP
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In Albert v. Mid-Century Insurance Co. (No. B257792, filed 4/28/15, ord. pub. 5/20/15), a California Court of Appeal 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.

Ms. Albert was sued by her adjoining neighbor, who alleged damage to his property when she 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. At some point, Ms. Albert erected a fence that was subsequently determined to be on the neighbor’s land, and which enclosed a grove of nine mature olive trees. Ms. Albert claimed that the trees straddled the property line and were mutually owned. She pointed out that she had regularly been notified by the Los Angeles Fire Department to clear the area, and that she had been trimming the trees for years. Thus, she claimed a good faith belief that the trees were hers and that she was required to trim them.

Contending that her trimming had caused severe damage by reducing the aesthetic and monetary value of the trees, the neighbor sued alleging causes of action for trespass to real property and trees; abatement of private nuisance; declaratory relief; and for quiet title. He sought treble damages under Civil Code sections 733 and 3346, for injury to timber or 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 defined 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.”

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 appeals court 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.’ [] ‘An intentional act is not an ‘accident’ within the plain meaning of the word.’ [] ‘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.’’ []

The term ‘accident’ refers to the nature of the insured’s conduct, and not to its unintended consequences. [] 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.’ [] 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, 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.’ [] 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.’”

The Albert 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.” 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.

But in this case, the Albert 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. [] Accordingly, the trial court did not err in granting defendant’s motion for summary judgment.”

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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