Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, No. BC362562 Teresa Sanchez-Gordon, Judge. Affirmed.
Law Offices of Neil R. Anapol and Neil R. Anapol, for Plaintiff and Appellant.
Berger Kahn, Craig S. Simon, Lance A. LaBelle and Richard Wm. Zevnik, for Defendant and Respondent.
MANELLA, J.
In appellant Deborah Urquhart’s action for breach of insurance contract and bad faith against respondent Liberty Mutual Insurance Company (Liberty Mutual), the trial court granted summary judgment in favor of Liberty Mutual. We affirm.
RELEVANT FACTUAL AND PROCEDURAL HISTORY
There are no disputes about the following facts: In 1992, Wayne and Marsha Getchell (the Getchells) bought a residential property located at 10520 McBroom Street. In 1998, Urquhart bought a neighboring property located at 10515 Wheatland Avenue. An easement across Urquhart’s property provided access to the rear of the Getchells’ property from McBroom Street. A gate stood at the entrance to the easement from McBroom Street, and a chain link fence with another gate ran along the boundary between the Getchells’ property and the portion of Urquhart’s property subject to the easement. In August 2006, Urquhart hired workers to remove the entrance gate and relocate it 75 feet away from McBroom Street, and to replace the chain link fence and gate with a wooden fence and gate. On August 29, 2006, the Getchells filed an action against Urquhart for quiet title and injunctive relief.
Liberty Mutual issued a homeowner’s policy to Urquhart effective from August 7, 2005, through August 7, 2007. Urquhart tendered the defense of the Getchells’ action to Liberty Mutual under the personal liability provisions of her policy. Shortly thereafter, the Getchells filed their first amended complaint (FAC), which sought quiet title and injunctive relief, and asserted additional claims for trespass, nuisance, intentional infliction of emotional distress, and conversion. On November 14, 2006, Liberty Mutual declined to provide a defense in the Getchells’ action. After Urquhart’s counsel drew Liberty Mutual’s attention to the FAC, it again declined to provide a defense.
On November 29, 2006, Urquhart began the underlying action against Liberty Mutual, asserting claims for breach of insurance contract, bad faith, and declaratory relief. After the trial court granted Liberty Mutual’s motion for summary judgment, it entered judgment in Liberty Mutual’s favor on August 21, 2007.
DISCUSSION
Urquhart contends the trial court erred in granting Liberty Mutual’s motion for summary judgment. We disagree.
“Summary judgment is proper if there is no triable issue of material fact and the moving party is entitled to summary judgment as a matter of law. (Code Civ. Proc., § 437c.)” (National Auto. & Cas. Ins. Co. v. Underwood (1992) 9 Cal.App.4th 31, 36.) “‘Review of a summary judgment motion by an appellate court involves application of the same three-step process required of the trial court. [Citation.]’” (Bostrom v. County of San Bernardino (1995) 35 Cal.App.4th 1654, 1662.) The three steps are (1) identifying the issues framed by the complaint, (2) determining whether the moving party has made an adequate showing that negates the opponent’s claim, and (3) determining whether the opposing party has raised a triable issue of fact. (Ibid.)
A. Duty to Defend
The key issues presented on appeal concern an insurer’s duty to defend. “[I]t is firmly established [that] the duty to defend is broader than the obligation to indemnify. The former arises whenever an insurer ascertains facts that give rise to the possibility or the potential of liability to indemnify. Unlike the duty to indemnify which arises only when the insured’s underlying liability is established, the duty to defend must be assessed at the very outset of a case. . . . [¶] Equally established is that ‘when a suit against an insured alleges a claim that potentially or even possibly could subject the insured to liability for covered damages, an insurer must defend unless and until the insurer can demonstrate, by reference to undisputed facts, that the claim cannot be covered.’” (Pardee Construction Co. v. Insurance Co. of the West (2000) 77 Cal.App.4th 1340, 1350-1351, quoting Borg v. Transamerica Ins. Co. (1996) 47 Cal.App.4th 448, 455.) To establish the absence of a duty to defend on summary judgment, an insurer may show that “the underlying claim [could] not come within the policy coverage by virtue of the scope of the insuring clause or the breadth of an exclusion.” (Montrose Chemical Corp. v. Superior Court (1993) 6 Cal.4th 287, 301.)
B. Facts Known To Liberty Mutual
To determine whether Liberty Mutual properly declined to provide a defense to Urquhart, we identify the facts available to it at the time of its denial. Generally, “[t]he determination whether the insurer owes a duty to defend usually is made in the first instance by comparing the allegations of the complaint with the terms of the policy.” (Horace Mann Ins. Co. v. Barbara B. (1993)4 Cal.4th 1076, 1081.) Facts extrinsic to the complaint also trigger the duty to defend when they reveal a possibility that the claim may be covered by the policy (id. at p. 1081); alternatively, they establish the absence of the duty when they “‘conclusively eliminate a potential for liability’” (Montrose Chemical Corp., supra, 6 Cal.4th at p. 299).
Here, Urquhart’s policy provided personal liability coverage if a suit was brought against an insured “for damages because of ‘bodily injury’ or ‘property damage’ caused by an ‘occurrence’,” which the policy defined as “‘an accident[] including continuous or repeated exposure to substantially the same general harmful conditions.” The policy expressly excluded such coverage for bodily injury and property damage “expected or intended by the ‘insured’,” even if it was “of a different kind, quality, or degree than initially expected or intended.”
We focus on the Getchells’ FAC, which incorporated the allegations of their original complaint, and added other allegations in support of claims for trespass, nuisance, intentional infliction of emotional distress, and conversion. In connection with the claims for a quiet title, injunctive relief, and nuisance, the FAC described the recorded easement on Urquhart’s property, and alleged that she interfered with their easement rights by locking a gate to the easement, entering their property to remove their chain link fence and gate, and erecting a wooden “spite fence” that hinders access to their property The FAC further alleged that Urquhart had engaged in a trespass by entering their property, intentionally destroying their chain link fence and gate, and “leaving metal shards and sharp metal poles in [their] back lot”; in addition, it alleged that her removal of their fence constituted conversion. Finally, the FAC alleged that Urquhart’s conduct was “extreme and outrageous and intended to cause [the Getchells] severe emotional distress.”
Although the Getchells filed a second amended complaint in December 2006, Urquhart does not suggest that it is materially different from their first amended complaint.
In tendering the defense of the Getchells’ action, Urquhart also provided Liberty Mutual with extrinsic facts bearing on their claims. On September 19, 2006, she sent Liberty Mutual a letter, stating: “The main reason for the new gate configuration was Mrs. Getchell’s request to now [sic] not have to call us to open the top gate. So we have removed the top gate completely, giving them direct access to McBroom Street.” Urquhart also forwarded copies of a letter she had received from Fidelity National Title Company (Fidelity), and her response, which -- she informed Liberty Mutual -- “spell[ed] out the main ‘just’ [sic] of the story.” Fidelity’s letter, dated August 22, 2006, stated (1) that the Getchells had complained about Urquhart’s plans to hinder their access to the easement by erecting a wooden fence, and (2) that Fidelity had determined the Getchells “have a right to travel over the easement at anytime they wish without [Urquhart’s] prior consent or approval.” On August 31, 2006, Urquhart wrote Fidelity that for over seven years she had complied with the customary practice regarding the easement: upon a day’s notice from the Getchells, she had unlocked the McBroom Street gate. When Urquhart offered to leave the McBroom Street gate unlocked, Marsha Getchell insisted that it remain locked, and in June 2006, the Getchells asserted control over the gate by placing their own lock on it. According to Urquhart, she had moved the entrance gate and provided the Getchells with a new wooden gate only because they no longer wished to call her to open the McBroom Street gate.
C. Denial of Defense
The key question before us is whether Liberty Mutual correctly found no potential for coverage upon these allegations and extrinsic facts. In declining to provide a defense, Liberty Mutual stated that the Getchells’ allegations regarding Urquhart’s interference with their easement rights did not implicate property damage under the policy, that the Getchells alleged only intentional conduct by Urquhart, which did not constitute an “occurrence” under the policy, and that Insurance Code section 533 barred coverage for willful acts by an insured. Urquhart’s sole contention on appeal targets Liberty Mutual’s determination that the Getchells’ allegations and the extrinsic facts conclusively established the absence of an occurrence under the policy. We therefore limit our inquiry to this contention. (Christoff v. Union Pacific Railroad Co. (2005) 134 Cal.App.4th 118, 125-126 [Although review of summary judgment is de novo, review is limited to issues adequately raised in the appellant’s brief].)
Urquhart has thus forfeited any contention that the Getchells’ allegations regarding her interference with their easement rights and infliction of emotional distress trigger the potential for policy coverage. Moreover, any such contention would fail on its merits. (Kazi v. State Farm Fire & Casualty Co. (2001) 24 Cal.4th 871, 878-881 [interference with easement rights is not property damage under standard liability policies]; Aim Insurance Co. v. Culcasi (1991) 229 Cal.App.3d 209, 220 [emotional distress, absent physical injury and its consequences, is not bodily injury under standard liability policies].)
As explained above (see pt. B., ante), the term “occurrence,” as found in the policy’s coverage clause, is defined as “an accident.” Although the policy does not define the latter term, “courts have consistently defined the term to require unintentional acts or conduct. [Citations.] The plain meaning of the word ‘accident’ is an event occurring unexpectedly or by chance. [Citation.] [¶] ‘An accident . . . is never present when the insured performs a deliberate act . . . . [W]here the insured intended all of the acts that resulted in the victim’s injury, the event may not be deemed an “accident” merely because the insured did not intend to cause injury.’ [Citations.]” (Ray v. Valley Forge Ins. Co. (1999) 77 Cal.App.4th 1039, 1045-1046, quoting Merced Mutual Ins. Co. v. Mendez (1989) 213 Cal.App.3d 41, 50.)
As the court explained in Quan v. Truck Ins. Exchange (1998) 67 Cal.App.4th 583, 600 (Quan): “An intentional act is not an accident [citation] even if it causes unintended harm [citation]. An accident can flow from an intentional act only if ‘some additional, unexpected, independent, and unforeseen happening occurs that produces the damage.’” (Quoting Merced Mutual Ins. Co. v. Mendez, supra, 213 Cal.App.3d at p. 50.) In Collin v. American Empire Ins. Co. (1994) 21 Cal.App.4th 787, 811-812 (Collin), the court surveyed the then-extant case authority and located only one case that had departed from these principles, namely, Allstate Ins. Co. v. Vavasour (N.D. Cal. 1992) 797 F.Supp. 785 (Vavasour).
Three courts have interpreted the term “accident” in circumstances resembling those before us, including the court in Vavasour. In Allstate Ins. Co. v. Salahutdin (N.D.Cal. 1992) 815 F.Supp. 1309, 1310 (Salahutdin), the Salahutdins and their neighbors, the Alcantaras, disputed ownership of a strip of land between their respective properties. When the Alcantaras began to build a fence on the disputed land, they aligned the fence with a string tied to a post the Salahutdins believed they owned. (Ibid.) Mrs. Salahutdin, acting on the belief that the neighbors were erecting a fence on her land, removed the string. (Ibid.) The Salahutdins initiated an action against the Alcantaras, who cross-complained for trespass and intentional infliction of emotional distress. (Ibid.) The court rejected the Salahutdins’ contention that their conduct constituted an accident under their insurance policy because they believed they owned the disputed lands, and lacked any intention to cause property damage or emotional distress. (Id. at p. 1312.) It stated: “[T]he intentional act of Mrs. Salahutdin in removing the string remains the ‘crucial act’ in the present case. Mrs. Salahutdin intended her action. She claims that she didn’t intend to trespass because she thought it was her land. But, that doesn’t change the fact that the damage was the result of a deliberate and intentional act. Her motive or rationale for acting in this manner is irrelevant. Her action cannot be considered accidental merely because she did not intend to harm the Alcantaras.” (Salahutdin, supra, 815 F.Supp. at p. 1312.)
In Vavasour, the Vavasours and their neighbor owned adjoining properties with no boundary fences or markings. (Vavasour, supra, 797 F.Supp. at p. 786.) The parties fell into a dispute, and the neighbor erected a boundary fence across land the Vavasours had long used as a driveway. (Id. at pp. 786-788.) When the Vavasours sued their neighbor, he cross-complained for trespass, alleging the Vavasours had been driving on his land. (Ibid.) The court determined that this allegation triggered the possibility of coverage under the Vavasours’ policy, reasoning that the trespass claim rested on the Vavasours’ “routine use of their driveway over a period of years,” without “any inkling that [it] did not lie entirely on their own property,” and that under California law, trespass can occur through negligent conduct. (Id. at p. 788.) The court thus concluded that “an absence of intent to trespass . . . may render the alleged trespass ‘accidental.’” (Ibid.) In so concluding, it distinguished Salahutdin on the ground that the insured there had known there was a property dispute when she removed the string.
Although Salahutdin was published after Vavasour, the decision in Salahutdin predated Vavasour.
The same court that decided Vavasour reached an arguably different result shortly thereafter in Bailey v. State Farm Ins. Co. (N.D.Cal. 1992) 810 F.Supp. 267 (Bailey). There, the Baileys owned property subject to a nonexclusive easement for use as a roadway. When the Baileys tried to improve a portion of the roadway they believed they owned by dumping rock on it and edging it with railroad ties, parties claiming rights to the easement sued the Baileys, alleging that they had damaged the easement. (Ibid.) The court concluded that the Baileys’ conduct did not constitute an accident because they had acted intentionally, notwithstanding their innocent motive and their belief that they owned the affected parts of the roadway. (Id. at pp. 269-270.) On this matter, the court followed Salahutdin, rather than its own prior decision in Vavasour. (Ibid.)
The court in Bailey purported to distinguish Vavasour on the grounds that Vavasour, unlike Bailey, involved a trespass claim, and the Baileys, unlike the Vavasours, had adequate notice of a potential property dispute through the terms of their deed. (Bailey, supra, 810 F.Supp. at p. 270.)
While none of the above cases are binding on this court, we find the reasoning of Salahutdin and Bailey more persuasive than that of Vavasour. The Vavasour court’s suggestion that the harm occasioned by intentional conduct may constitute an accident when the person engaged in the conduct is unaware of its wrongful character is contrary to the holdings of our state courts. (See, e.g., Quan, supra, 67 Cal.App.4th at p. 599 [no accident alleged where “[t]he acts asserted to give rise to the underlying claimant’s injuries were deliberate, regardless of whether any harm was intended or expected to come of them.”])
Even were we to follow the reasoning of Vavasour, Urquhart could not prevail, as her own submissions made clear that, unlike the Vavasours, she was aware of a potential dispute arising from her conduct.
We conclude that neither the FAC nor the extrinsic facts available to Liberty Mutual suggested the existence of an accident. The FAC and extrinsic facts established that the Getchells had complained about the McBroom Street gate beginning in June 2006, and that Urquhart, in an attempt to resolve their complaints, deliberately moved the gate and replaced the chain link fence. That Urquhart believed in good faith that she owned the gates and fences, and acted without ill intent, does not suggest the possible existence of an accident. Accordingly, the Getchells’ claims for trespass and conversion, as well as any other claim potentially predicated on Urquhart’s intentional acts, do not trigger policy coverage. (See Salahutdin, supra, 815 F.Supp. at pp. 1310-1313 [trespass and intentional infliction of emotional distress]; Collin, supra, 21 Cal.App.4th at pp. 805-815 [conversion]; see also Bailey v. State Farm Ins. Co., supra, 810 F.Supp. at pp. 268-270.)
Urquhart contends that the FAC and extrinsic facts available to Liberty Mutual support a theory that established the potential for policy coverage. According to this theory, Urquhart owned the chain link fence, and the workers she hired “accidently” caused property damage to the Getchells by leaving debris on the Getchells’ property. In advancing this theory, Urquhart places special emphasis on the assertion that she owned the fence. She argues that her ownership of the fence entitled her to hire workers to remove it, and that their placement of debris on the Getchells’ adjoining property was accidental because she neither intended nor authorized them to do so.
Nothing in Salahutdin or Bailey supports Urquhart’s suggestion that her ownership of the fence is material to the determination of a potential for policy coverage. There, as here, the insureds believed they had acted on property they owned, yet the courts found that there was no duty to defend regardless of the resolution of the underlying dispute over property rights. Moreover, as explained below, even if Urquhart owned the fence, her contention that the placement of debris on the Getchells’ adjoining property constituted an accident fails in light of Gunderson v. Fire Ins. Exchange (1995) 37 Cal.App.4th 1106 (Gunderson) and ACS Systems, Inc. v. St. Paul Fire & Marine Ins. Co. (2007) 147 Cal.App.4th 137 (ACS Systems).
In Gunderson, the insureds, who were involved in a dispute with their neighbor regarding an easement, removed a portion of a fence that crossed the easement. (Gunderson, supra, 37 Cal.App.4th at p. 1109.) When the neighbor filed an action to quiet title to the easement, the insurer declined to provide a defense on the ground that the neighbor had failed to allege any property damage. (Id. at p. 1110.) On appeal, the insureds contended that the neighbor could have asserted a claim for property damage because the neighbor’s discovery responses had referred to the removal of the fence and “damage to shrubbery and trees.” (Id. at p. 1115.) The appellate court rejected this contention, reasoning that because the insureds had intentionally torn down the fence, “any anticipated property damage claims” arising from the destruction of the fence -- including, apparently, claims for ancillary damage to trees and shrubs -- fell outside the policy coverage. (Id. at p. 1116.)
In Gunderson, the applicable policy defined “occurrence” as “‘a sudden event . . . resulting in . . . property damage neither expected nor intended by the insured.’” (Gunderson, supra, 37 Cal.App.4th at p. 1115.)
In ACS Systems, the applicable policy limited coverage to damages caused by an “accident,” and also contained an exclusion for property damage “expected or intended” by the insured. (ACS Systems, supra, 147 Cal.App.4th at pp. 142-143, 155.) After the insured hired an advertising agency to send faxes describing the insured’s services, the agency sent faxes to numerous individuals who had declined to receive unsolicited faxes. (Id. at pp. 140-142.) When the insurer refused to provide a defense in the ensuing class action, the insured sought declaratory relief against the insurer, arguing that it had not authorized the agency to send unsolicited faxes, and -- at most -- was merely negligent in failing to supervise the agency. (Id. at pp. 143-144.)
The appellate court rejected the insured’s contention that the sending of unsolicited faxes constituted an accident, reasoning that the insured had intended the agency to send faxes. (ACS Systems, supra, 147 Cal.App.4th at pp. 154-155.) Additionally, in concluding that the use of ink and paper by fax machines receiving unsolicited faxes fell within the policy exclusion for “‘expected or intended’” property damage, the court stated: “The sender of a fax necessarily anticipates and intends the consequence that printing the faxed document will use the recipient’s ink and paper.” (Id. at p. 155.)
Here, it is undisputed that Urquhart intended her workers to tear down and replace the chain link fence, and nothing suggests that the nature and location of the debris, as described in the FAC, was anything other than the routine result of the workers’ intentional activities. Because Urquhart’s plan necessitated the generation of this debris, she is properly charged with an intent to create it, and thus the generation of the debris was not an accident. (ACS Systems, supra, 147 Cal.App.4th at p. 155.) In view of Gunderson and ACS Systems, the fact that she did not authorize or intend her workers to deposit or leave debris on the Getchells’ land does not, by itself, establish the existence of an accident.
Urquhart’s reliance on Meyer v. Pacific Employers Ins. Co. (1965) 233 Cal.App.2d 321 (Meyer) is misplaced, as that case is factually distinguishable. There, the applicable policy contained a broad coverage clause: the insurer was required to pay all damages owed by the insured as the result of “‘[i]njury or destruction of property, . . . arising out of’” activities not involving automobiles or products. (Id. at p. 324.) It also contained an exclusion that barred such coverage unless the injury or destruction of property was “‘caused by accident.’” (Ibid.) When the insured dug a well near his neighbor’s property, the drilling operations set off underground vibrations that damaged the neighbor’s buildings. (Id. at p. 323.) The court concluded that the property damage, though ultimately caused by intentional conduct -- namely, the drilling -- fell outside the exclusion because the vibrations themselves were neither expected nor intended. (Id. at pp. 327-328.)
Here, unlike Meyer, there was no unexpected and unintended intermediate event between the intentional destruction of the fence and the debris on the Getchells’ property. Assuming -- without deciding -- that the presence of the debris on the Getchells’ property could constitute property damage, the FAC alleges only that at Urquhart’s direction, the workers destroyed the fence and left debris on the Getchells’ property. Under Gunderson and ACS Systems, none of this conduct constitutes an accident, even it involved negligence by Urquhart or the workers. Nothing in the FAC suggests the existence of an unintended or unexpected event akin to the vibrations in Meyer which, in conjunction with the workers’ activities, propelled debris onto the Getchells’ property, and Urquhart points to no extrinsic facts that raise the possibility of such an event. Absent an “additional, unexpected, independent and unforeseen happening” of this sort, the presence of the debris on the Getchells’ property is not the result of an accident. (Merced Mutual Ins. Co. v. Mendez, supra, 213 Cal.App.3d at p. 50.) Summary judgment was therefore proper.
For the same reason, the case before us falls outside the scope of State Farm and Casualty Co. v. Superior Court (Wright) (2008) 164 Cal.App.4th 317, 320-321, to which Urquhart directed our attention after the completion of briefing. There, the insured picked up a man and tried to throw him into a swimming pool. (Id. at p. 320.) The man fell short of the pool and broke his clavicle. (Ibid.) The appellate court concluded that injury was caused by an accident, reasoning that “the act directly responsible for [the] injury, throwing too softly so as to miss the water, was an unforeseen or undesigned happening or consequence and was thus fortuitous.” (Id. at p. 329, italics omitted.) Here, the dispersal of debris in the course of removing a fence was wholly predictable, and nothing suggests that it was anything other than the foreseeable and routine result of the workers’ activities. As we have explained, the fact that Urquhart did not intend her workers to deposit debris on the Getchells’ property does not render its placement there an accident.
DISPOSITION
The judgment is affirmed.
We concur: EPSTEIN, P. J. WILLHITE, J.