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In Albert v. Mid-Century Insurance Company, 2015 Cal. App. LEXIS 431 (April 28, 2015, status changed from published to unpublished May 20, 2015), [enhanced version available to lexis.com subscribers], the California Court of Appeal had occasion to consider whether the over-pruning of trees across an easement boundary line could be considered an “accident” for purposes of coverage.
The insured (“Albert”) and her neighbor (“Baccouche”) owned adjacent parcels of land, and shared a roadway easement. Albert erected a fence along the roadway easement which encroached on Baccouche’s property. The encroachment enclosed a portion of Baccouche’s property that contained nine mature olive trees, with “full, substantial canopies.” The canopies were subsequently discovered damaged, allegedly by Albert or at her behest, “whose actions in hacking, cutting and pruning the trees reduced them to a pitiable state.” Albert claimed that she believed the fence was within her property line. Baccouche sued Albert for the damage, and Albert sought coverage for the suit under her homeowners policy.
The insurer denied coverage, pursuant to an exclusion for intentional acts, 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.” Albert maintained that she did not intend to damage the trees, and that as such, the exclusion did not apply.
Albert sued her insurer, lost the case on summary judgment, and the instant appeal ensued. The Court of Appeal confirmed the lower court ruling, holding that the insured’s intent not to damage the trees was irrelevant, because she intended them to be pruned, and that there was no evidence that the damage to the trees was caused by an accident, such as a slip of the chainsaw.
Brian Margolies, Partner, Traub Lieberman Straus & Shrewsberry LLP
Read more at the Traub Lieberman Insurance Law Blog, Edited by Brian Margolies.
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