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...