An insured’s act of pruning her neighbor’s trees was not an “occurrence,” or “accident,” within the meaning of a homeowners policy. ( Albert v. Mid-Century Insurance Company (2015) 2015 WL 2398554)
Facts
Shelly Albert and Henri Baccouche were neighbors. In 2009, the Los Angeles Fire Department sent Ms. Albert a notice stating that she needed to trim brush and trees located within 200 feet of her house. In response, Ms. Albert hired a tree trimming contractor to prune some trees which were located either on, or near, the boundary between her property and Mr. Baccouche’s property.
Mr. Baccouche subsequently sued Ms. Albert, alleging that Ms. Albert acting through her contractor had “hacked, cut and pruned” trees located on Mr. Baccouche’s property. Mr. Baccouche’s complaint against Ms. Albert included causes of action for trespass, private nuisance and negligence.
Ms. Albert tendered the defense of the lawsuit to her homeowners insurer, Mid-Century Insurance Company. During Mid-Century’s investigation of the claim, Ms. Albert asserted that the trees her contractor had pruned were on the boundary line between the two properties, and that the fire department had required her to trim the trees. Mid-Century denied Ms. Albert’s tender, asserting among other things that her alleged liability was not the result of an “occurrence,” or “accident,” as required by the Mid-Century policy.
Ms. Albert sued Mid-Century for breach of contract and bad faith. The trial court entered summary judgment for Mid-Century, citing the lack of an “occurrence.” Ms. Albert appealed.
Holding
The Court of Appeal affirmed the summary judgment in favor of Mid-Century, finding that Ms. Albert’s alleged liability to Mr. Baccouche in the underlying action was not the result of an “occurrence,” or “accident.”
Ms. Albert argued that her contractor may have been “negligent” in “excessively cutting” the trees. The appellate court rejected this argument, reasoning that Ms. Albert’s contractor had intended to prune the trees, and that there were no facts suggesting that some unforeseen accident (such as a slip of the chainsaw) had caused the damage to the trees. The critical fact was that Ms. Albert – acting through her contractor – had intended to prune the trees.
Ms. Albert also argued that Mr. Baccouche’s allegations in the underlying action supported a claim that Ms. Albert had “negligently supervised” the tree trimmers. The appellate court rejected that argument, reasoning that were no allegations or extrinsic facts in the underlying action supporting the elements of a claim for negligent supervision. The court emphasized that an insured cannot speculate about unpled claims in order to manufacture a potential for coverage.
Comment
The appellate court accepted the insured’s claim that she believed she co-owned the trees, and that she was required to trim them. That, however, did not convert the insured’s conduct into an “occurrence,” or “accident.” The dispositive fact was that the insured, acting through her contractor, had intended to trim the trees, and such conduct was not accidental. There was no potential for coverage and, hence, no duty to defend.