Shelly Albert v. Truck Insurance Exchange

Good fences make good neighbors. Unless they obstruct an

easement.

Shelly Albert’s neighbor, Henri Baccouche, sued her for

“abatement of private nuisance,” alleging Albert had erected and

refused to remove a fence that partially blocked the only road

leading to Baccouche’s undeveloped property. Albert tendered

Baccouche’s complaint to her homeowners and umbrella insurers,

but each declined to provide a defense. Albert first sued her

homeowners insurer for breach of contract and breach of the

implied covenant of good faith and fair dealing, but the trial court

and the Court of Appeal in that action determined there was no

potential for coverage under the policy.

Albert then sued her umbrella insurer, Truck Insurance

Exchange, in this action for breach of contract and breach of the

implied covenant of good faith and fair dealing. The trial court

granted Truck’s motion for summary judgment. Albert appeals,

arguing the complaint in the underlying action created a

potential for coverage under the umbrella policy’s “personal

injury” coverage for “injury arising out of . . . wrongful

entry . . . or invasion of the right of private occupancy.”

We agree with cases from California and other jurisdictions

that “invasion of the right of private occupancy” is ambiguous

and may include non-physical invasions of rights in real property.

We disagree with one California case, Sterling Builders, Inc. v.

United Nat. Ins. Co. (2000) 79 Cal.App.4th 105 (Sterling

Builders), which relied on part of the Oxford English

Dictionary’s definition of “invasion” to hold a covered claim must

involve “physical occupation of or trespass” on real property.

3

(Id. at p. 108.) Therefore, because there was a potential for

coverage under Albert’s umbrella policy, we reverse.

FACTUAL AND PROCEDURAL BACKGROUND

A. The Policy

Albert’s umbrella policy with Truck provided: “We

will . . . pay damages caused by an occurrence in excess of the

retained limit on the insured’s behalf.” The policy defined

“retained limit” as the greater of “the total limits of liability of

any underlying insurance providing coverage for damages as the

result of an occurrence” or $1,000. The policy further provided:

“If underlying insurance does not cover damages covered by this

policy, we will pay damages which exceed [$250].” Because

Albert’s homeowners policy did not include coverage for personal

injury, the umbrella policy’s personal injury provision provided

coverage for damages from personal injury that exceeded $250.1

1 “‘Primary insurance provides coverage immediately upon

the occurrence of a loss or an event giving rise to liability, while

excess insurance provides coverage only upon the exhaustion of

specified primary insurance. [Citation.] Insurance policies

sometimes include both excess and umbrella insurance.

Umbrella insurance provides coverage for claims that are not

covered by the underlying primary insurance. [Citation.] An

umbrella insurer “drops down” to provide primary coverage in

those circumstances. [Citations.] Thus, a policy that provides

both excess and umbrella insurance provides both excess and

primary coverage.’” (Federal Ins. Co. v. Steadfast Ins. Co. (2012)

209 Cal.App.4th 668, 680.) Albert’s Truck policy provided both

umbrella and excess coverage. But because Albert’s homeowners

4

In addition to providing indemnification for damages, Truck

agreed to “defend any insured for any claim or suit that is

covered by this insurance but not covered by other insurance.”

The policy’s definition of “Damages” included “the total of

damages that the insured must pay . . . because of . . . personal

injury . . . caused by an occurrence covered by this policy.”2

“[W]ith regard to personal injury,” “occurrence” was defined as

“offenses committed during the policy period, even if the resulting

injury takes place after the policy expires.” Finally, the policy’s

definition of personal injury included “injury arising out

of . . . wrongful eviction, wrongful entry, or invasion of the right

of private occupancy.”

B. The Underlying Action

Baccouche filed his complaint in the underlying action

during the umbrella policy period. Baccouche alleged that a

400-foot long, 26-foot wide private road provided the only access

to his property from any public road. The private road straddled

the property line separating two of Baccouche’s neighbors, so that

each neighbor owned half (i.e., 13 feet) of the road from the center

of the road. Albert owned one half of the road and the other

neighbor (who is not a party to this action) owned the other half.

Baccouche alleged that he had an easement over the road, giving

him access to his property, but that Albert erected and refused to



policy did not provide personal injury coverage, Truck’s umbrella

coverage is at issue in this action.

2 The policy excluded coverage for “damages . . . [e]ither

expected or intended from the standpoint of an insured.” Truck

does not argue this (or any other) exclusion applies.

5

remove a fence that obstructed the easement and precluded

Baccouche from using the half of the road on Albert’s property.

Specifically, Baccouche alleged Albert “erected a permanent

chain-link fence on certain portions of her property that were

subject to a reciprocal easement as a private roadway for ingress

and egress,” which “constitutes a nuisance within the meaning of

Civil Code Section 3479 in that it . . . interfere[s] with the

comfortable enjoyment by plaintiff of his property, including

access thereto.” Instead of using a 26-foot wide road, Baccouche

could only access his property using a 13-foot wide road. He

sought damages including the “diminishment in value” of his

property. Albert points to these allegations as the basis for

potential coverage under the personal injury provision of the

umbrella policy, and hence the duty to defend.

3

C. The Tenders

Albert tendered Baccouche’s complaint to Mid-Century

Insurance Company, which issued her homeowners policy, and to

Truck. Mid-Century denied the claim, stating it did not owe

3 Baccouche also alleged Albert engaged in other wrongful

conduct occurring before the Truck umbrella policy took effect,

including trespassing onto Baccouche’s property and pruning his

mature olive trees, leaving them in a “pitiable state.” Albert does

not argue these other allegations created a potential for coverage

under the policy. (See Hartford Casualty Ins. Co. v. Swift

Distribution, Inc. (2014) 59 Cal.4th 277, 288 [“[i]n a ‘mixed’

action, where some claims are potentially covered while others

are not, ‘the insurer has a duty to defend as to the claims that are

at least potentially covered’”].)

6

Albert a “defense or indemnity obligation” under the homeowners

policy.

Three years later, Albert re-tendered the complaint to

Truck.4 Counsel for Truck responded by denying Truck had a

duty to defend or indemnify Albert under the umbrella policy.

Counsel for Truck wrote there was “no potentiality that

[Baccouche’s] claims can be brought within the insurance

coverage provided by” the umbrella policy because, according to

Truck, “all of the claims of Mr. Baccouche occurred prior to the

first effective date of the” policy. Counsel for Truck discussed the

allegations in Baccouche’s complaint that, prior to the effective

date of the umbrella policy, Albert had damaged Baccouche’s

trees and trespassed on his property. Counsel for Truck did not

mention Baccouche’s allegation that, during the policy period,

Albert impeded his access to his property by maintaining the

fence on the easement.

Counsel for Albert responded to Truck’s denial letter and

pointed out that Baccouche’s complaint alleged Albert “had

erected and continued to maintain a chain-link fence on property

subject to a reciprocal easement,” which “constituted a nuisance,”

and that Baccouche sought damages “for the diminished value of

his real property and emotional distress.” Counsel for Truck

responded by “disagree[ing] with [the] assertion” that “the

erection of the fence and the maintenance of the fence on the

easement was a ‘wrongful eviction, wrongful entry or invasion of

the right of private occupancy.’” Counsel for Truck stated that

4 At that point, Albert had appealed adverse judgments in

the underlying action and her insurance coverage action against

Mid-Century.

7

“Ms. Albert could not be said to have ‘wrongfully entered’ the

easement since the easement was on her own property” and that

“Mr. Baccouche could not be said to have made a claim for

‘invasion of the right to private occupancy’ with respect to the

easement since he never had a right to ‘private occupancy’ of the

easement.”

D. Albert’s Complaint Against Truck

Albert sued Truck for breach of contract and breach of the

implied covenant of good faith and fair dealing on the theory

Truck had a duty to defend and indemnify her under the

umbrella policy’s personal injury coverage. Albert alleged

Truck’s duties to defend and indemnify arose from Baccouche’s

allegations that Albert “erected and maintained a permanent

chain-link fence on real property subject to a reciprocal easement,

thereby interfering with Baccouche’s right of full use of said

easement for ingress and egress to his real property; that said

interference with the reciprocal easement constituted a nuisance;

and that as a result Baccouche was entitled to an injunction and

damages for diminishment in value of his real property and

emotional distress.” Albert alleged “Truck . . . breached [its]

contract of insurance by failing and refusing to defend and

indemnify [Albert] in connection with [the] Baccouche action” and

“Truck . . . breached its duties of good faith and fair dealing [by]

fail[ing] to pay contract benefits to [Albert] at the time when

[Truck] knew, or should have known, that [Albert was] entitled to

defense and indemnity under the terms of [its] insurance policy.”

8

E. Truck’s Motion for Summary Judgment and Albert’s

Motion for Summary Adjudication

Truck moved for summary judgment, arguing “[t]he claims

for erection and maintenance of a fence on Mr. Baccouche’s

easement do not constitute a ‘wrongful entry, wrongful eviction or

invasion of the right of private occupancy’ under the ‘personal

injury’ coverage of the Truck personal umbrella policy as a

matter of law.” Albert moved for summary adjudication on

whether Truck owed Albert a duty to defend. In her opposition to

Truck’s motion for summary judgment and her motion for

summary adjudication, Albert argued Baccouche’s complaint

alleged wrongful entry because “Baccouche alleged he had a

property right (reciprocal easement) which was physically

invaded by Albert’s placement of the fence. In other words,

Baccouche claimed that Albert’s ownership of the property gave

her no right to impede his use of the easement; if so, it would be a

‘wrongful entry.’” Albert also argued Baccouche’s complaint

alleged an “invasion of right of private occupancy” because “an

easement creates a ‘right to enter and use land in another’s

possession’ and to that extent grants a limited right to occupy the

land. Albert’s fence allegedly interfered with that right, and

hence was an ‘invasion of the right of private occupancy.’”

The trial court ruled there was no potential coverage for

wrongful entry onto the easement because, “if the interest in real

property is nothing more than a limited privilege to use land

belonging to another, then interference with said interest cannot

constitute ‘unauthorized entry onto the land of another.’” The

court also ruled that maintaining the fence could not be an

“invasion of the right of private occupancy” because Baccouche

9

did not control the easement and “[o]ccupancy means having

possession, which in turn, requires having control.”

The trial court granted Truck’s motion for summary

judgment and denied Albert’s cross-motion for summary

adjudication. Albert timely appealed from the judgment.

DISCUSSION

Albert states her appeal “is based solely on a claim that

there was a duty to defend [her] in the underlying Baccouche

Complaint for Abatement of Private Nuisance, and that her claim

was only under the ‘personal injury’ coverage, not under the

‘bodily injury’ or ‘property damage’ coverages in the Truck

policy.” Albert argues Truck had a duty to defend under the

personal injury coverage for “invasion of the right of private

occupancy” because Albert’s “alleged interference with the

roadway easement . . . interfered with Baccouche’s use and

enjoyment of his adjoining property. To the extent that a

‘possessory interest’ in the land is required, Baccouche certainly

had a possessory interest in his adjoining land.” Albert asserts

“Baccouche clearly had a right to occupy his own property, which

right was interfered with by Albert’s fence over the roadway

easement.”5

5 Although Albert did not make this precise argument in the

trial court, we can consider it. (See DD Hair Lounge, LLC v.

State Farm General Ins. Co. (2018) 20 Cal.App.5th 1238, 1243

[“we may exercise our discretion to address purely legal questions

based on an undisputed factual record”]; C9 Ventures v. SVCWest,

L.P. (2012) 202 Cal.App.4th 1483, 1492 [“[o]n appeal, a

party may raise a new issue of law based on undisputed facts

10

Truck does not respond to Albert’s argument there was a

potential for coverage under the personal injury provision of the

policy because Albert allegedly interfered with Baccouche’s right

of private occupancy of his property, even though this is Albert’s

main argument on appeal. Instead, Truck relies on the trial

court’s ruling that “Mr. Baccouche had no ‘right of private

occupancy’ in or to the reciprocal easement on Ms. Albert’s

property.” We agree with Albert, however, that this is not the

issue.6



[citation] and may even ‘change the legal theory he relied upon at

trial, so long as the new theory presents a question of law to be

applied to undisputed facts in the record’”].) Truck does not

argue Albert forfeited this argument.

6 Truck’s brief includes other arguments that are, to put it

mildly, not relevant to this appeal. Truck’s first argument, in a

section titled “No Property Damage,” is that “there is no coverage

for ‘property damage’ under the Policy” because “the claims for

interference with the easement in the Baccouche Action do not

constitute ‘property damage’ as a matter of law.” As noted,

Albert does not argue there was a potential for coverage under

the property damage provision of the policy. Truck also argues,

in a section titled “No Accident – Undisputed Willful Acts,” that,

“[u]ntil the insured makes out a prima facie showing of an

‘accident,’ the insurer has no burden whatsoever,” and that

Albert is collaterally estopped from arguing that cutting down

olive trees is an accident. The occurrence required for personal

injury coverage, however, is one of the offenses listed in the

policy, not an accident, and, in any event, Albert does not argue

cutting down the trees was an accident.

11

A. Applicable Law and Standard of Review

1. Interpreting an Insurance Contract

“Our goal in construing insurance contracts, as with

contracts generally, is to give effect to the parties’ mutual

intentions.” (Boghos v. Certain Underwriters at Lloyd’s of

London (2005) 36 Cal.4th 495, 501; accord, Minkler v. Safeco

Ins. Co. of America (2010) 49 Cal.4th 315, 321; Bank of the West

v. Superior Court (1992) 2 Cal.4th 1254, 1264 (Bank of the West);

see AIU Ins. Co. v. Superior Court (1990) 51 Cal.3d 807, 821-822

[“[u]nder statutory rules of contract interpretation, the mutual

intention of the parties at the time the contract is formed

governs interpretation”]; Jon Davler, Inc. v. Arch Ins. Co. (2014)

229 Cal.App.4th 1025, 1033 [same].) The parties’ mutual

intention “‘is to be inferred, if possible, solely from the written

provisions of the contract. If the language of the insurance

contract is clear and explicit, it governs.’” (Pulte Home Corp. v.

American Safety Indemnity Co. (2017) 14 Cal.App.5th 1086, 1105

(Pulte Home Corp.); see Vandenberg v. Superior Court (1999)

21 Cal.4th 815, 840 [“[i]f the meaning a layperson would ascribe

to insurance contract language is not ambiguous, courts will

apply that meaning”]; Qualcomm, Inc. v. Certain Underwriters at

Lloyd’s, London (2008) 161 Cal.App.4th 184, 195 [same].)

If the language of an insurance contract is ambiguous,

however, “‘in order to protect the objectively reasonable

expectations of the insured, the courts endeavor to interpret the

ambiguous language in the sense in which the insurer believed,

at the time of making it, the insured understood it. Only if this

approach does not resolve the ambiguity, do the courts then

resolve it against the insurer.’” (Pulte Home Corp., supra,

12

14 Cal.App.5th at p. 1105; see Delgado v. Interinsurance

Exchange of Automobile Club of Southern California (2009)

47 Cal.4th 302, 311 [“[i]nsurance policies are read in light of the

parties’ reasonable expectations and, when ambiguous, are

interpreted to protect the reasonable expectations of the

insured”]; Bank of the West, supra, 2 Cal.4th at p. 1265 [“a court

that is faced with an argument for coverage based on assertedly

ambiguous policy language must first attempt to determine

whether coverage is consistent with the insured’s objectively

reasonable expectations,” and “[i]n so doing, the court must

interpret the language in context, with regard to its intended

function in the policy”].) “Where . . . the insurer has drafted the

policy language, it is usually held responsible for ambiguous

policy language, through the rule of construction in favor of

the insured’s reasonable expectations.” (Pulte Home Corp.,

at p. 1106.)

Finally, “‘the term personal [in personal injury] is used in a

highly specialized sense. It does not mean physical damage to a

person; rather it means injury arising out of one or more specified

offenses.’” (General Accident Ins. Co. v. West American Ins. Co.

(1996) 42 Cal.App.4th 95, 103 (General Accident); see

Stonelight Tile, Inc. v. California Ins. Guarantee Assn. (2007)

150 Cal.App.4th 19, 38 (Stonelight Tile) [“‘“[p]ersonal injury

liability” is a term of art that covers certain enumerated

offenses’”].) Thus, “personal injury coverage ‘is triggered by one

of the offenses listed in the policy,’ not the injury or damages that

a plaintiff suffers.” (Stonelight Tile, at p. 38.)

13

2. The Duty To Defend

“‘[A] liability insurer owes a broad duty to defend its

insured against claims that create a potential for indemnity.’”

(Riddell, Inc. v. Superior Court (2017) 14 Cal.App.5th 755, 764.)

The duty “‘is broader than the duty to indemnify.’” (Id. at p. 765)

It “arises even if the evidence suggests, without conclusively

establishing, that the loss is not covered.” (The Traveler’s

Property Casualty Co. of America v. Actavis, Inc. (2017)

16 Cal.App.5th 1026, 1036-1037, review granted Feb. 21, 2018,

S245867.) Thus, “‘[a]n insurer may have a duty to defend even

when it ultimately has no obligation to indemnify, either because

no damages are awarded in the underlying action against the

insured, or because the actual judgment is for damages not

covered under the policy.’” (Hartford Casualty Ins. Co. v. Swift

Distribution, Inc. (2014) 59 Cal.4th 277, 287.)

“Whether an insurer owes an insured a duty to defend a

third party’s lawsuit depends, in the first instance, on a

comparison of the allegations of the third party’s complaint and

the terms of the insured’s policy. [Citation.] If any facts stated in

or fairly inferable from the complaint, or otherwise known or

discovered by the insurer, suggest a claim potentially covered by

the policy, the insurer’s duty to defend arises.”

7 (McMillin

Management Services, L.P. v. Financial Pacific Ins. Co. (2017)

17 Cal.App.5th 187, 191; see Jon Davler, Inc. v. Arch Ins. Co.,

supra, 229 Cal.App.4th at p. 1032 [“‘[a]n insurer must defend its

insured against claims that create a potential for indemnity

7 Albert does not argue that any facts other than those

alleged in Baccouche’s complaint give rise to Truck’s duty to

defend.

14

under the policy’”].) “In general, doubt as to whether an insurer

owes a duty to defend ‘must be resolved in favor of the insured.’”

(Hartford Casualty Ins. Co. v. Swift Distribution, Inc., supra,

59 Cal.4th at p. 287.)

“The duty to defend, though broad, is measured by the

nature and kinds of risk insured by the policy.” (The Traveler’s

Property Casualty Co. of America v. Actavis, Inc., supra,

16 Cal.App.5th at p. 1037.) “The proper focus is on the facts

alleged in the complaint, rather than the alleged theories for

recovery. . . . ‘The ultimate question is whether the facts alleged

“fairly apprise” the insurer that the suit is upon a covered claim.’”

(Albert v. Mid-Century Ins. Co. (2015) 236 Cal.App.4th 1281,

1289-1290; see Gonzalez v. Fire Ins. Exchange (2015)

234 Cal.App.4th 1220, 1230 [“‘[s]ince pleadings are easily

amended, the proper focus is on the facts alleged, rather than the

theories for recovery’”].)

3. Summary Judgment Standard and Standard of

Review

The legal framework governing the duty to defend “shapes

a party’s burden when seeking summary judgment.” (Gonzalez v.

Fire Ins. Exchange, supra, 234 Cal.App.4th at p. 1229.) “On

summary judgment, ‘[t]o prevail [on the duty to defend issue], the

insured must prove the existence of a potential for coverage, while

the insurer must establish the absence of any such potential. In

other words, the insured need only show that the underlying

claim may fall within policy coverage; the insurer must prove it

cannot. Facts merely tending to show that the claim is not

covered, or may not be covered, but are insufficient to eliminate

the possibility that resultant damages (or the nature of the

15

action) will fall within the scope of coverage, therefore add no

weight to the scales.’ [Citation.] ‘[W]hen an insurer seeks

summary judgment on the ground the claim is excluded, the

burden is on the insurer to prove that the claim falls within an

exclusion.’ [Citation.] In contrast, an insured must prove its

claim falls within the policy’s coverage, even when the insurer

has moved for summary judgment.” (Albert v. Mid-Century Ins.

Co., supra, 236 Cal.App.4th at p. 1290; see Hartford Casualty Ins.

Co. v. Swift Distribution, Inc., supra, 59 Cal.4th at p. 288 [“an

insurer may be excused from a duty to defend only when ‘“the

third party complaint can by no conceivable theory raise a single

issue which could bring it within the policy coverage”’”].)

“‘Where summary judgment has been granted, we review

the trial court’s ruling de novo. [Citation.] We consider all the

evidence presented by the parties in connection with the motion

(except that which was properly excluded) and all the

uncontradicted inferences that the evidence reasonably supports.

[Citation.] We affirm summary judgment where the moving

party demonstrates that no triable issue of material fact exists

and that it is entitled to judgment as a matter of law. [Citation.]

Our review of the interpretation of an insurance contract on

undisputed facts is also de novo.” (Albert v. Mid-Century Ins. Co.,

supra, 236 Cal.App.4th at p. 1289.)

B. There Was No Potential for Coverage Based on

Wrongful Entry

Albert argues Baccouche’s allegation she erected and

maintained a fence on her property, which Baccouche claimed

constituted a nuisance, was an allegation of “wrongful entry”

because wrongful entry includes nuisance claims. The court in

16

Martin Marietta Corp. v. Insurance Co. of North America (1995)

40 Cal.App.4th 1113 (Martin Marietta) did state that “trespass

and nuisance claims may include wrongful entry or invasion by

pollutants” and that personal injury coverage for wrongful entry

may apply to claims alleging nuisance. (Id. at p. 1132.) But not

because they are nuisance claims. Rather, the court in Martin

Marietta stated personal injury coverage may apply to nuisance

claims because nuisance claims may allege wrongful entry or

other physical invasion. (See Croskey et al., Cal. Practice Guide:

Insurance Litigation (The Rutter Group 2017) ¶ 7:1075.2, p.7C-45

[citing Martin Marietta for the proposition that “[n]uisance

claims involving physical entry onto another’s land constitute a

‘wrongful entry’ for purpose of ‘personal injury liability’

coverage”].)

“‘Wrongful entry’ is a term not altogether foreign to the

law. Our Supreme Court long ago said, ‘It is elementary law,

that every wrongful entry upon lands in the occupation or

possession of the owner constitutes a trespass’” (Martin Marietta,

supra, 40 Cal.App.4th at p. 1132), and trespass requires a “direct

or indirect entry or intrusion . . . upon the plaintiffs’ lands.”

(Fibreboard Corp. v. Hartford Accident & Indemnity Co. (1993)

16 Cal.App.4th 492, 512 (Fibreboard).) “‘The essence of the cause

of action for trespass is an “unauthorized entry” onto the land of

another.’” (Spinks v. Equity Residential Briarwood Apartments

(2009) 171 Cal.App.4th 1004, 1042.)

Thus, wrongful entry requires entry. Although Albert’s

actions (erecting and maintaining a fence that interfered with her

neighbor’s easement) may have been wrongful, her entry onto her

own property was not. Baccouche’s nuisance allegations did not

allege wrongful entry or physical invasion by pollutants or

17

anything else. Therefore, there was no potential for coverage

under the umbrella policy’s personal injury coverage for wrongful

entry.

C. There Was a Potential for Coverage Based on Invasion

of the Right of Private Occupancy

1. An Invasion of the Right of Private Occupancy

Does Not Have To Be Physical

“Occupancy goes to the holding, possessing or residing in or

on something.” (Fibreboard, supra, 16 Cal.App.4th at p. 515.)

“The rights which attend occupancy may be, arguably, many.”

(Martin Marietta, supra, 40 Cal.App.4th at p. 1134.) “‘Invasion of

the right of private occupancy’ resembles the definition of

nuisance, an ‘“interference with the interest in the private use

and enjoyment of the land.”’ [Citation.] ‘The typical and familiar

nuisance claim involves an activity or condition which causes

damage or other interference with the enjoyment of adjoining or

neighboring land.’” (Ibid.)

“‘[A]ctual physical interference with land use constitutes

the most obvious and common type of nuisance.’” (Rancho

Viejo v. Tres Amigos Viejos (2002) 100 Cal.App.4th 550, 561.) But

it is not the only type. An invasion of the right of private

occupancy does not have to be a physical invasion of the land; a

non-physical invasion of real property rights can interfere with

the use and enjoyment of real property. In General Accident,

supra, 42 Cal.App.4th 95 the court (before the same court

disagreed with itself in Sterling Builders) stated that invasion of

the right of private occupancy includes “noninvasive interferences

with the use and enjoyment of property.” (General Accident,

18

at p. 104; cf. Stonelight Tile, supra, 150 Cal.App.4th at p. 39

[“California courts have construed ‘wrongful entry or eviction’ as

applying to tort claims arising out of the interference with an

interest in real property, such as trespass, nuisance, and

noninvasive interferences with the use and enjoyment of

property”].) Federal courts applying California law have reached

similar conclusions. (See, e.g., Sell v. Nationwide Mut. Ins. Co.

(9th Cir. 2012) 492 Fed.Appx. 740, 743 [invasion of the right of

private occupancy may include “‘suits by neighboring landowners

for nuisance and trespass claims’”]; Hirschberg v. Lumbermens

Mut. Cas. (N.D.Cal. 1992) 798 F.Supp. 600, 604-605

[“commentators have recognized that in the context of personal

injury coverage of general comprehensive liability policies, the

‘invasion of the right of private occupancy’ affords coverage ‘for

interference with possession and enjoyment by means such

as . . . obstruction of access, . . . actionable on a variety of

theories such as . . . nuisance’”].)

Baccouche alleged Albert blocked half of the only road

providing access to his undeveloped property, which “interfere[d]

with [his] comfortable enjoyment . . . of his property, including

access thereto.” Such alleged conduct invaded Baccouche’s right

of private occupancy by interfering with his right to use and enjoy

19

his property, or at least Albert reasonably believed it did.

8 Truck

does not suggest why (or even that) it believed, at the time it

issued Albert her policy, Albert understood that allegations by a

neighbor relating to damages caused by a fence she might erect

and maintain on or around her property would not be covered

under the policy. (See Pulte Home Corp., supra, 14 Cal.App.5th

at p. 1105; see also Kitsap County v. Allstate Ins. Co. (1998)

136 Wash.2d 567, 590 [“the plain, ordinary, and popular meaning

that an average purchaser of insurance would ascribe to the

phrase ‘other invasion of the right of private occupancy’ would

include a trespass on or against a person’s right to use premises

or land that are secluded from the intrusion of others”].)

“[I]nvasion of the right of private occupancy,” a phrase

“insurance companies have consistently refused to define,” has

“generated literally hundreds of lawsuits, with widely varying

results.” (New Castle County, DE v. National Union Fire Ins. Co.

of Pittsburgh, PA (3d Cir. 2001) 243 F.3d 744, 756 (New Castle

County).) Many courts have held that an invasion of the right of

private occupancy encompasses interference with land use,

including two of the leading and most frequently cited cases on

8 Truck does not argue a 13-foot-wide access road would be

sufficient for the full use and enjoyment of Baccouche’s property.

In any event, Albert is entitled to all reasonable inferences from

the allegations in Baccouche’s complaint. (See Hartford Casualty

Ins. Co. v. Swift Distribution, Inc., supra, 59 Cal.4th at p. 298.) It

is “fairly inferable” (McMillin Management Services, L.P. v.

Financial Pacific Ins. Co., supra, 17 Cal.App.5th at p. 191), and

the trial court ultimately found, that a 13-foot-wide road was not

sufficient access for construction equipment and other vehicles

necessary for Baccouche to develop his property.

20

this issue, Town of Goshen v. Grange Mut. Ins. Co. (1980)

120 N.H. 915 (Town of Goshen) and New Castle County, supra,

243 F.3d 744. In Town of Goshen the New Hampshire Supreme

Court rejected the argument “that an appreciable and tangible

interference with the physical property itself is necessary to

constitute an ‘invasion of the right of private occupancy.’”

(Town of Goshen, at p. 917.) The allegations in the underlying

complaint in Town of Goshen included “that the [town’s] planning

board created economic hardships that destroy the viability of the

complainant’s project [to develop his land], deprived him of his

ability to ever recover the money, time and other resources

invested in the development of his property, thus causing him

substantial damage, and denied plaintiff’s right to the free

enjoyment of his property without due process of law.”

(Id. at pp. 917-918.)

In New Castle County, supra, 243 F.3d 744 the court, nine

years before Truck issued its umbrella policy to Albert, asked

why, after 20 years of legal decisions finding the term ambiguous,

insurance companies continued to use, but not define, “invasion

of the right of private occupancy.” (Id. at p. 755.) The court

stated: “A simple definition of the phrase, indicating, for

example, that it refers only to offenses requiring a physical

invasion . . . would be dispositive.” (Id. at p. 756.) The court held

that personal injury coverage for invasion of the right of private

occupancy could apply to allegations challenging a political

subdivision’s zoning and permitting decisions. (Ibid.) Numerous

courts have agreed with Town of Goshen and New Castle County

that allegations of non-physical interference with the use and

21

enjoyment of property may fall under personal injury coverage for

invasion of the right of private occupancy, including allegations

in actions based on zoning decisions,

9 discrimination claims,10

pollution,11 and landlord-tenant disputes.12

9 See, e.g., Town of Stoddard v. Northern Sec. Ins. Co., Inc.

(D.N.H. 1989) 718 F.Supp. 1062, 1064 [allegations the town’s

“actions in enacting the zoning amendment deprived [the

underlying plaintiff] of its intended use of the property”].)

10 See, e.g., Lime Tree Village Community Club Assn., Inc. v.

State Farm General Ins. Co. (11th Cir. 1993) 980 F.2d 1402, 1407

[discriminatory amendments to CC&Rs had “‘the effect of

imposing an unreasonable restraint on trade’”]; City of

Glendale v. National Union Fire Ins. Co. of Pittsburgh, PA

(D. Ariz., Mar. 29, 2013, No. CV-12-380-PHX-BSB) 2013

WL 1296418, at pp. 1, 12, 19 [allegations the city discriminated

against a lessee of hangars at a municipal airport because the

city intended “‘to make the land lease unprofitable and

uneconomical’” in order to “‘take over the land and its

improvements’”]; Pellegrino Food Products Co., Inc. v. American

Automobile Ins. Co. (W.D. Pa. 2008) 655 F.Supp.2d 569, 578-579

[allegations of discriminatory zoning and property sales]; Ranger

Ins. Co. v. Bal Harbour Club, Inc. (Fla. Dist. Ct. App. 1985)

509 So.2d 940, 941-942 [claim that requiring purchasers of

property to be members of a club that discriminated against Jews

“was a sham to exclude Jews from the use and occupancy of the

property”].

11 See, e.g., Titan Holdings Syndicate, Inc. v. City of Keene,

N.H. (1st Cir. 1990) 898 F.2d 265, 273 [allegations that “sewage

treatment plant’s noxious odors, noise and light” interfered with

the underlying plaintiffs’ “‘quiet enjoyment of the homestead and

have substantially deprived [them] of the use of the homestead’”];

Kitsap County v. Allstate Ins. Co., supra, 136 Wash.2d

22

Baccouche’s allegations are similar to those in Town of

Goshen and New Castle County. Baccouche alleged Albert

interfered with his right “to the free enjoyment of his property”

(Town of Goshen, supra, 120 N.H. at p. 918), and it is a

reasonable inference from Baccouche’s allegations that Albert’s

conduct in obstructing the easement limited his ability to develop

his land. Like a municipality whose zoning ordinance affects a

property owner’s ability to develop his or her property, a polluter

whose odor or noise restricts an owner’s use and enjoyment of his

or her property, and other insureds who engage in conduct that

invade the right of private occupancy by interfering with a

neighbor’s property rights, Albert engaged in conduct that

Baccouche alleged invaded his right of private occupancy of his

property by interfering with his ability to access, use, develop,

and enjoy it. The personal injury provision of Albert’s umbrella

policy potentially covered Baccouche’s allegations, and Truck



at pp. 571-572, 592 [claims that contaminants, foul odors, and

hazardous waste interfered with the use and enjoyment of nearby

property].

12 See, e.g., Nautilus Ins. Co. v. BSA Ltd. Partnership

(D. Md. 2009) 602 F.Supp.2d 641, 654 [allegations that

“a financial harm” “interfer[ed] with the tenants’ right to

remain on their property”]; Winters v. Transamerica Ins. Co.

(10th Cir. Sept. 9, 1999, No. 98-2000) 1999 WL 699835, at p. 3

[allegations a landlord “harassed, coerced, intimidated and

threatened the tenants, causing them emotional distress”];

Beltway Management Co. v. Lexington-Landmark Ins. Co.

(D.D.C. 1990) 746 F.Supp. 1145, 1156 [breach of the implied

warranty of habitability].

23

breached its duty to defend by not providing Albert with a

defense in the underlying action.

2. The Cases Truck Cites (or Should Have Cited)

Are Distinguishable

Truck relies on Kazi v. State Farm Fire & Casualty Co.

(2001) 24 Cal.4th 871 (Kazi) and Evergrow Industrial Co., Inc. v.

Travelers Ins. Co. (9th Cir. 2002) 37 Fed.Appx. 300 (Evergrow).

Neither case is helpful. Kazi involved insurance coverage for

property damage, not personal injury. The Supreme Court held

the insurers in that case did not have a duty to defend under the

property damage provisions of the insurance policies because

interference with an easement is not damage to tangible

property. (Kazi, at p. 887.) The Supreme Court did not address

whether an insurer breached its duty to defend based on personal

injury coverage. (Id. at pp. 876, 879, fn. 1.)

In Evergrow, supra, 37 Fed.Appx. 300 the Ninth Circuit

cited Kazi and rejected an argument that interference with an

easement could trigger coverage for “‘invasion of the right of

private occupancy of a room, dwelling, or premises that a person

occupies by or on behalf of its owner, landlord or lessor.’”

(Evergrow, at p. 301.) Although the court’s brief, unpublished

opinion in Evergrow does not disclose the facts of the case (see

ibid. [“[b]ecause the parties are familiar with the factual and

procedural history of this case, we will not recount it here”]), it

appears the plaintiff in the underlying action in Evergrow alleged

the insured interfered with the underlying plaintiff’s right to use

an easement, not the underlying plaintiff’s right to use land it

owned. (See ibid. [“[t]he claim [was] that Evergrow interfered

with [the underlying plaintiff’s] easement”].) This is the

24

argument Albert does not make in this appeal; Albert argues

Baccouche alleged her fence interfered with Baccouche’s use and

enjoyment of his property, not with Baccouche’s use and

enjoyment of the easement. The court in Evergrow held the

insurer did not have a duty to defend because, “[u]nder California

law, the clause ‘invasion of the right of private occupancy’

requires interference with an enforceable possessory interest in

real property and not just an interference with the use or

enjoyment of real property,” and “‘an easement is a nonpossessory

interest in the land of another . . . .’” (Id. at pp. 301-302.)

Baccouche may not have had an enforceable possessory interest

in the easement, but he did have one in his property, and he

alleged Albert interfered with it.

The strongest support for Truck’s position is Sterling

Builders, supra, 79 Cal.App.4th 105, which Truck for some

reason expressly disavows and asserts has “nothing to do with

the issue before this court.”13 In Sterling Builders, the same

court that four years earlier had decided General Accident,

supra, 42 Cal.App.4th 95 held that “claims that do not involve the

physical occupation of or trespass upon real property are not

within the meaning of the phrase [‘wrongful entry or eviction or

other invasion of the right of private occupancy’], even though the

claim may entail interference with rights relating to such

property.” (Sterling Builders, at p. 108.) The Sterling Builders

13 In a section of its brief titled “Misapplication of Sterling

Builders,” Truck states that Albert “asserts that there is a case

directly on point, which will resolve the issue before this Court -

Sterling Builders,” but Truck argues that Albert “is mistaken.”

Indeed, Truck does not even argue an invasion of the right of

private occupancy must be a physical invasion.

25

court said its previous statement in General Accident, “that a

‘noninvasive interference with the use and enjoyment of property’

may constitute an ‘other invasion’ under such an insuring

clause,” was “erroneous.” (Sterling Builders, at p. 107.)

We think the General Accident/Sterling Builders court was

right the first time. The court’s analysis in Sterling Builders

relied on the Oxford English Dictionary’s definition of “invasion,”

which the court stated must be physical: “‘Invasion’ denotes an

incursion, not a misrepresentation.” (Sterling Builders, supra,

79 Cal.App.4th at p. 112.) The Oxford English Dictionary,

however, also provides examples of non-physical invasions

including “invasion [of] civil liberties” and “invasions of the

constitution.” (8 Oxford English Dict. (2d ed. 1989) p. 37.) As do

other dictionaries. (See, e.g., Merriam-Webster Unabridged

(2018 online) [including as its third definition of invasion

“encroachment, intrusion; specifically: an encroachment upon a

right protected by law affording grounds for an action for

damages or some other remedy”]; Webster’s 3d New Internat.

Dict. (1993) p. 1188 [same]; Webster’s New Twentieth Century

Dict. (1983) p. 965 [including as its second definition of invasion

“an attack on the rights of another; infringement or violation”].)

Indeed, courts relying on other dictionaries have applied

“invasion of the right of private occupancy” to non-physical

invasions. (See, e.g., City of Glendale v. National Union Fire

Ins. Co. of Pittsburgh, PA, supra, 2013 WL 1296418 at p. 6 [“[t]he

[Merriam-Webster dictionary] definition of invade also includes

terms that do not appear to require a physical intrusion,

including ‘to encroach upon,’ [‘]infringe,’ or ‘affect injuriously’”];

Kitsap County v. Allstate Ins. Co., supra, 136 Wash.2d at p. 590

[“an ‘invasion’ is defined [by Webster’s New World Dictionary,

26

Webster’s Deluxe Unabridged Dictionary, and American Heritage

Dictionary] as an ‘act of . . . encroachment or trespassing,’” which,

in the context of invasion of the right of private occupancy, would

include a “trespass on or against a person’s right”].)

Moreover, the cases the court in Sterling Builders cited do

not support its conclusion. According to Sterling Builders, “In

Fibreboard[, supra, 16 Cal.App.4th at p.] 512, the court stated

the ‘other invasion’ language implicates a ‘trespass paradigm.’”

(Sterling Builders, supra, 79 Cal.App.4th at p. 109.) This

statement mischaracterizes Fibreboard. The personal injury

coverage in Fibreboard was significantly different from Truck’s

coverage. The policy in Fibreboard provided coverage for

“‘wrongful entry or eviction or other invasion of an individual’s

right of privacy.’” (Fibreboard, at p. 511, emphasis added.) The

court in Fibreboard did not analyze the “other invasion” language

because the insured did not argue the asbestos products at issue

in Fibreboard could have invaded the right of privacy. The

“trespass paradigm” in Fibreboard referred to coverage for

“wrongful entry,” not “invasion of the right of private occupancy,”

and, as noted, we agree with the Fibreboard court’s analysis on

that point.

In Tinseltown Video, Inc. v. Transportation Ins. Co. (1998)

61 Cal.App.4th 184 (Tinseltown Video) the court held “a partner’s

interest in partnership property of whatever character (realty or

personalty) is an interest in personalty for all purposes.”

(Id. at p. 187.) There was no potential for personal injury

coverage because the plaintiffs in the underlying action in

Tinseltown Video “had no . . . real property interest in their own

names, but merely held a statutory right to equal possession of

two . . . stores incident to their personalty interest in the

27

partnership which owned the stores.” (Id. at p. 201.) The limited

holding that a partner does not occupy space owned (and

occupied) by a partnership in which he or she is a partner does

not support the court’s analysis or conclusion in Sterling

Builders.

In Wilmington Liquid Bulk Terminals, Inc. v. Somerset

Marine Inc. (1997) 53 Cal.App.4th 186 (Wilmington Liquid),

disapproved on another ground in Vandenberg v. Superior Court

(1999) 21 Cal.4th 815, 841, fn. 13, the insured agreed to “obtain

all permits for and construct a dock suitable for use by [the

plaintiff in the underlying action] for loading and unloading of

cement products.” (Wilmington Liquid, at p. 190.) The court held

there was no potential for personal injury coverage because there

was no allegation the plaintiff in the underlying action had ever

occupied any property, and thus there could be no alleged

violation of the right of private occupancy. (See id. at pp. 195-196

[“[n]owhere did [the underlying plaintiff] allege in its very

detailed complaints that there was an interference with the use

of real property which it had ever occupied or possessed”].)

Finally, the court in Stein-Brief Group, Inc. v. Home

Indemnity Co. (1998) 65 Cal.App.4th 364 (Stein-Brief) relied on

the distinction between contract claims and tort claims to hold

there was no potential coverage for the insured’s contract claims.

(See id. at p. 372 [“like bodily injury and property damage

coverage, personal injury coverage is limited to tort damages”].)

The Supreme Court rejected that distinction the following year.

(See Vandenberg v. Superior Court, supra, 21 Cal.4th at p. 839

[“we reject the ex contractu/ex delicto distinction”].) Thus, SteinBrief

does not “show[ ] . . . there must be an occupation of the real

property, as distinct from a mere affecting of a right related to

28

real property, before an invasion takes place.” (Sterling Builders,

supra, 79 Cal.App.4th at p. 109.)

The judgment is reversed. The trial court’s order granting

Truck’s motion for summary judgment is vacated, and the trial

court is directed to enter a new order denying the motion. The

trial court’s order denying Albert’s motion for summary

adjudication is vacated, and the trial court is directed to enter a

new order granting the motion. Albert is to recover her costs on

appeal.