• COVERAGE ALERT: Albert v. Mid-Century Ins. Co. (2nd Dist. Ct. App. 2015) -----Cal. App.4th ----, 2015 DJDAR 5534, Case No. B257792
  • July 3, 2015
  • Law Firm: McCormick Barstow Sheppard Wayte Carruth LLP - Fresno Office

    Shelly Albert ("Albert") was sued by her neighbor when she erected an encroaching fence and pruned mature olive trees on her neighbor's property. The complaint contained allegations that Albert had negligently cut and damaged the trees, failing to ascertain that the trees were on her neighbor's property. Albert tendered her defense to Mid-Century, her homeowner's insurer. Albert provided a recorded statement to Mid-Century and claimed that the fence was within her property and that she did not believe any part of the fence was on her neighbor's property. As to the trees, she claimed they were boundary trees and that she had been notified by the fire department that she was obligated to clear the area where the trees were located. She had trimmed the trees for many years without objection by her neighbor or any claim that the trees belonged to him. She believed in good faith that the trees belonged to her and that she was in fact required to trim them. Mid-Century denied the claim on the grounds that her conduct was not an "accident" and fell within the intentional act exclusion which exclusion specifically applied even if "an insured mistakenly believes he or she has the right to engage in certain conduct" and even if "the injury or damage is different or greater or of a different quality than that intended or expected." Mid-Century informed Albert that it had considered the possibilities that the trees were owned by her, were owned by her neighbor, or were jointly owned, but that ownership was irrelevant to its coverage determination.

    Albert filed suit against Mid-Century and the parties filed cross-motions for summary adjudication. Albert's motion included claims that to the extent the trees were over-trimmed, this was caused by her failure to properly supervise the pruning. However, no evidence was presented in this regard. The trial court denied Albert's motion and granted the motion of Mid-Century noting that Albert had failed to show accidental conduct on her part. The trial court also noted that the pleadings in the underlying case did not support Albert's negligent supervision theory. Albert's case was dismissed and she appealed.

    In affirming the trial court's decision, the appellate court found that there was no evidence of accidental conduct on the part of Albert. Although Albert claimed that the excessive cutting could have resulted from numerous possible mishaps such as a miscalculation by the contractor , malfunctioning chainsaws or a mishap with the vehicle used in the trimming process, there were no facts in the underlying complaint or otherwise indicating such an unforeseen accident. The appellate court stated that it was irrelevant that Albert may not have intended to damage the trees because she intended to prune them and this meant her conduct was not accidental. There were also no facts supporting a claim that Albert's negligent supervision of the contractor resulted in the damage. The court noted that such a claim would require allegations of an employer supervising an incompetent employee, an employer with reason to believe undue risk of harm would occur, and harm. However, no facts supported such a claim. Finally the appellate court distinguished Firco, Inc. v. Fireman's Fund Ins. Co. (1959) 59 Cal. App. 2d 524, noting that, in that case, the court found a duty to defend in an action for trespass to trees because the allegations of the complaint left open the possibility of negligence and there was no extrinsic evidence concerning how the damage had occurred as there was in the present case.

    The appellate court's ruling in this case adds to the growing California authority to the effect that intentional conduct will not qualify as an "occurrence" defined as "an accident," even when the result of the conduct may be unintended. Here, the insured believed in good faith that she had every legal right to erect the fence and to prune the trees. In fact, she had been instructed by the fire department to prune the trees and had apparently done so for many years without her neighbor ever complaining. However, this did not mean that her conduct in trimming the trees and erecting the fence was not intentional. Furthermore, this case adds to the California authority supporting the notion that mere speculation about a potential claim is not enough to trigger a duty to defend where there are no allegations or extrinsic evidence to support such a claim.