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Albert v. Mid-Century Insurance Co. B257792 2015 DJDAR 5534 (2nd Dist.)

Lawsuit stemming from trimming of neighbor’s trees based on intentional, nonaccidental conduct is excluded from coverage under insurance policy.

Henri Baccouche sued his neighbor Shelly Albert after she erected an encroaching fence and pruned trees on his property. Albert did not believe the fence encroached on Baccouche’s property and trimmed the trees because the fire department instructed her to. Albert tendered defense of the lawsuit to her insurance company Mid-Century Insurance Company (Mid-Century). The homeowners insurance policy covered property damage resulting from an “occurrence,” which it defined as an “accident.” It excluded coverage for intentional acts. Mid-Century denied Albert’s claim. Albert sued Mid-Century for breach of the insurance policy and insurance bad faith. The court granted Mid-Century’s motion for summary judgment and denied Albert’s cross-motion for summary adjudication, finding that the claims against Albert arose from nonaccidental conduct outside the terms of the policy.

Affirmed. To prevail on the duty to defend issue on summary judgment, “the insured must prove the existence of a potential for coverage, while the insurer must establish the absence of any such potential. If an insurer seeks summary judgment on the ground the claim is excluded, it must prove the claim falls within an exclusion and the insured must prove the claim falls within the policy’s coverage. Here, Albert’s conduct was intentional because she intended the trees to be pruned, and it is irrelevant that she did not intend to damage them. There is no evidence that an unforeseen accident caused the damage. Thus, the conduct is excluded under the terms of the policy and the court was correct in granting Mid-Century’s motion. Opinion by Justice Grimes.