United States: Shelly Albert v. Truck Insurance Exchange

In Albert v. Truck Ins. Exch., 23 Cal.App.5th 367 (May 15, 2018), the California Second District Court of Appeal reversed the trial court's entry of summary judgment in favor of Truck Insurance Exchange ("Truck") and held that a duty to defend was triggered under Truck's umbrella policy in connection with an underlying lawsuit alleging abatement of private nuisance. The underlying lawsuit arose out of the insured, Shelly Albert's, interference with the plaintiff, Henri Baccouche's, right to use a private road to access his property. Albert erected a chain link fence across one-half of the road, reducing Baccouche's easement for accessing his property from 26 feet to 13 feet. Boccouche contended that Albert's active interference with his ability to use the road constituted a private nuisance which interfered with his right to enjoy and occupy his private property.

Albert tendered the defense of the Baccouche lawsuit to her primary insurer as well as Truck under the umbrella policy. Albert contended that the Baccouche lawsuit alleged facts triggering potential coverage under the primary policy as well as the Truck umbrella policy. The primary insurer declined coverage of the claim because it did not afford personal injury coverage under its policy to Albert. In response, Albert argued that a duty to defend was triggered under the Truck umbrella policy based on the personal injury coverage afforded by such policy. The Truck umbrella policy stated as follows in connection with personal injury coverage:

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." "[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."

Albert argued that the underlying Baccouche lawsuit alleged facts implicating potential "wrongful entry or invasion of the right of private occupancy" as those phrases are used in the definition of "personal injury" in the Truck umbrella policy.

Truck declined coverage of Albert's tender of the Baccouche lawsuit. Thereafter, Albert filed a complaint for declaratory relief, breach of contract and bad faith against Truck, arguing that it was obligated to defend Albert against the Baccouche lawsuit based on the personal injury coverage afforded under the Truck umbrella policy. In response, Truck filed a motion for summary judgment arguing that the underlying complaint did not allege facts implicating wrongful entry in that Albert could not have trespassed upon her own property. In addition, Truck argued that Baccouche did not retain a right to personal occupancy with respect to the easement. The trial court agreed with Truck and entered summary judgment in its favor.

In reversing the trial court's decision, the Court of Appeal noted that Baccouche's claim for nuisance did not allege facts supporting a claim for potential wrongful entry in that entry constitutes trespass. The Court of Appeal noted that trespass requires a "direct or indirect entry or intrusion upon the plaintiffs' lands." "The essence of the cause of action for trespass is an 'unauthorized entry' onto the land of another." Here, Albert could not have trespassed on her own property by erecting a chain link fence interfering with Baccouche's easement to access his property.

On the other hand, the Court of Appeal found that Baccouche's complaint alleged facts implicating the offense of "invasion of the right of private occupancy" as used in the definition of "personal injury" in the Truck umbrella policy. The Court of Appeal held that such phrase was ambiguous and could encompass Baccouche's claim that Albert's conduct interfered with his right to private occupancy of his property. As a result, the Court of Appeal held that Truck was obligated to defend Albert against the Baccouche lawsuit. The Court of Appeal reasoned as follows:

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 the property." (General Accident, at p. 104; cf. Stonelight Tile, supra, 1509 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. 40, 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 his property, or at least Albert reasonably believed it did. 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"].)

The Court of Appeal also noted that the phrase "invasion of the right of private occupancy" did not require physical intrusion on the part of the insured. Rather, a "non-invasive interference with the use and enjoyment of property may constitute an 'invasion of the right of private occupancy."'

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Sign Up
Gain free access to lawyers expertise from more than 250 countries.
Email Address
Company Name
Confirm Password
Mondaq Newsalert
Select Topics
Select Regions
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions