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Albert v. Mid-Century Ins. Co.

California Court of Appeals, Second District, Eighth Division

April 28, 2015

SHELLY ALBERT, Plaintiff and Appellant,
MID-CENTURY INSURANCE COMPANY, Defendant and Respondent.

APPEAL from a judgment of the Superior Court of Los Angeles County No. EC060422. William D. Stewart, Judge.

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[Copyrighted Material Omitted]

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Law Offices of James T. Hudson and James T. Hudson for Plaintiff and Appellant.

Horvitz & Levy, Lisa Perrochet and Emily V. Cuatto for Defendant and Respondent.

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Plaintiff Shelly Albert appeals from the judgment in favor of defendant Mid-Century Insurance Company after the trial court granted defendant’s motion for summary judgment, and denied plaintiffs cross-motion for summary adjudication. Plaintiff sued defendant for breach of the insurance policy and insurance bad faith after defendant denied her tender of the defense of a lawsuit brought by nonparty Henri Baccouche. Plaintiff contends there were triable issues of fact relating to the duty to defend that precluded summary judgment, reasoning she met her burden of establishing the potential for coverage, and that defendant did not demonstrate there was no possibility of coverage. Finding that Mr. Baccouche’s claims against plaintiff arise from nonaccidental conduct, outside the terms of the policy, we affirm the judgment below.


The undisputed facts are these, as established by the parties’ overlapping evidence: Plaintiff purchased a homeowners insurance policy from defendant in January 2008. The policy was in force on January 3, 2011, when plaintiff was sued by her neighbor, Mr. Baccouche, for damage plaintiff caused to his property when plaintiff erected an encroaching fence, and pruned nine mature olive trees on Mr. Baccouche’s property. Plaintiff tendered the claim to defendant to provide a defense, and defendant denied plaintiff’s claim. Plaintiff sued defendant, alleging causes of action for declaratory relief, breach of contract, and breach of the implied covenant of good faith and fair dealing. Defendant filed a motion for summary judgment. Plaintiff filed a cross-motion for summary adjudication of the duty to defend the Baccouche action.

1. The Insurance Policy

The insuring clause of plaintiff’s policy stated: “We will pay those damages which an insured becomes legally obligated to pay because of: [¶]... [¶] property damage resulting from an occurrence. [¶] At our expense and with attorneys of our choice, we will defend an insured against any suit seeking damages covered under [this section].... [¶] We do not have any duty to defend or settle any suit involving actual, alleged, threatened or declared... property damage not covered under this liability insurance. This applies whether or not the suit is groundless, false or fraudulent.” (Boldface omitted.) The policy defines 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.” (Boldface omitted.)

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The policy also set forth a number of exclusions, including one for “Intentional acts, ” which the policy defined as “property damage... which is caused by, arises out of or is the result of an intentional act by or at the direction of the insured. By way of example this includes but is not limited to any intentional act or intentional failure to act by an insured, whether a criminal act or otherwise, where resulting injury or damage would be objectively expected to a high degree of likelihood, even if not subjectively intended or expected. This exclusion applies even if: [¶]... an insured mistakenly believes he or she has the right to engage in certain conduct; [¶]... [¶]... the injury or damage is different or greater or of a different quality than that intended or expected.”

2. Mr. Baccouche’s Lawsuit

On January 3, 2011, Mr. Baccouche filed a verified complaint alleging causes of action for trespass to real property and trees, abatement of private nuisance, declaratory relief, and for quiet title. The complaint alleged that Mr. Baccouche and plaintiff owned adjacent parcels of land which were subject to a reciprocal roadway easement providing both parcels (and another parcel not at issue here, belonging to another landowner) access to the main public road. Plaintiff erected a permanent fence over a portion of the roadway easement, which also intruded onto Mr. Baccouche’s parcel. The fence enclosed a 644 square foot portion of Mr. Baccouche’s land, which included a grove of nine mature olive trees. The trees had “full, substantial canopies that provided privacy, enhanced the value of [Mr. Baccouche’s] property and defined the space, and provided environmental services as well. To [Mr. Baccouche’s] surprise, shock, disgust and anger, his trees had been severely damaged by [plaintiff] (presumably by her agents, servants, employees or independent contractors), whose actions in hacking, cutting and pruning the trees reduced them to a pitiable state.” The complaint further alleged that plaintiff “willfully and maliciously damaged nine mature olive trees on [Mr. Baccouche’s] property... by ...

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