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ALLSTATE INS. CO. v. VAVASOUR

July 10, 1992

ALLSTATE INSURANCE CO., Plaintiff (s),
v.
ROBERT S. VAVASOUR, SUSANNA VAVASOUR and REGAN CARROLL, Defendant (s).



The opinion of the court was delivered by: FERN M. SMITH

 Plaintiff Allstate Insurance Company ("Allstate") brings this declaratory relief action seeking a judgment that it is not liable to defend or to cover claims arising from pending litigation in the Superior Court for the County of Alameda against its insureds, defendants Robert S. Vavasour and Susanna Vavasour.

 On these motions, Allstate seeks summary judgment on its causes of action against the Vavasours and against the Vavasours' opponent in the state court action, Regan Carroll, as well as on the Vavasours' counterclaims against Allstate. For the reasons stated herein, Allstate's motions are DENIED.

 FACTUAL BACKGROUND

 At issue is the scope of the Vavasours' Allstate-issued homeowners' insurance policies (Nos. 099731283 & 099731284), which were in effect from May 4, 1989 to May 28, 1990.

 In 1989, the Vavasours purchased their home at 2528-30 Benvenue Avenue in Berkeley. The lot belonging to Regan Carroll, 2532 Benvenue Avenue, is adjacent to theirs. Until the litigation between the Vavasours and Carroll arose, no fences or other markers demarcated the property line between the two parties. In late 1989, the Vavasours learned that Carroll planned to move his house and construct a multi-unit building on his lot. The Vavasours filed a lawsuit in Alameda County Superior Court alleging violations of various ordinances and obtained a preliminary injunction against Carroll. On April 21, 1990, following issuance of the injunction, Carroll erected fenceposts along what he asserted to be the boundary of his lot. The Vavasours had until that date used the unpaved area on which he erected the posts on a daily basis for access by car to their garage, which is located at the rear of their lot. The fenceposts sliced eight inches in width from the Vavasours' driveway, rendering it unsafe for automobile ingress and egress.

 In response, the Vavasours again sued Carroll, this time alleging a prescriptive easement, trespass, removal of lateral support, and private nuisance. Alameda County Superior Court No. 664506-5. On June 27, 1990, Carroll filed a cross-complaint against the Vavasours seeking to quiet title to the alleged prescriptive easement, and alleging causes of action for trespass, malicious prosecution and abuse of process. In support of his trespass claim, Carroll alleged:

 On or about May, 1989, and continuing to the present time, [the Vavasours] . . . without Cross-Complainant's consent, entered the above-described land of which Cross-Complainant is seised and possessed, pursuant to [the Vavasours'] continuous and habitual pattern of entering Cross-Complainant's land during [the Vavasours'] ingress to and egress from [their] property. . . . As a proximate result of [the Vavasours'] entry onto the Cross-Complainant's land, Cross-Complainant has been damaged in a sum to be proven at trial. Said damage includes, but is not limited to, damage to Cross-Complainant's real property, costs incurred by Cross-Complainant in erecting a fence to prevent [the Vavasours] from continuing their wrongful trespass, and

 [costs of suit].

 Cross-Complaint PP 13-14.

 The Vavasours tendered defense of the trespass claim to Allstate (but not the abuse of process or malicious prosecution claims). By telephone September 11, 1991 and letter dated September 17, 1991, Allstate declined to defend the Vavasours against Carroll's cross-complaint and, on March 18, 1992, filed this lawsuit for declaratory relief.

 DISCUSSION

 The Allstate policies at issue provide: "Allstate will pay damages which an insured person becomes legally obligated to pay because of bodily injury or property damage arising from an accident and covered by this part of the policy," elsewhere defining "property damage" as "physical injury to or destruction of tangible property, including loss of its use resulting from such physical injury or destruction."

 The duties to defend and to indemnify are not co-extensive. The duty to defend is in general broader than the duty to indemnify; where there is any possibility of coverage, the insurer is duty-bound to defend. CNA Casualty of California v. Seaboard Surety Co., 176 Cal. App. 3d 598, 605, 222 Cal. Rptr. 276 (1986). Moreover, in making its evaluation of whether a defense is required, insurers must look beyond the causes of action actually pled to determine whether the underlying facts giving rise to the lawsuit might support a covered claim. ...


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