Fire Insurance Exchange v. Superior Court

—Building a structure that encroaches onto another’s property is not an accident even if the owners acted in the good faith but mistaken belief that they were legally entitled to build where they did. Because their homeowners policy did not provide coverage for nonaccidental occurrences, the owners’ insurer had no duty to defend when the owners were sued by the adjoining landowner as a result of the encroachment. Accordingly, the owners’ insurer was entitled to summary judgment in the action for breach of contract and bad faith brought by the owners. We therefore grant the insurer’s petition for writ of mandate and direct that the superior court grant its motion.

FACTS

Real parties in interest, Kenneth and Dorothy Bourguignon, owned property in Big Bear adjoining the Leach property. In 1984, Louise Leach granted them an access easement over a five-and-one-half-foot-wide portion of her property that bordered theirs. After their property suffered earthquake damage, the Bourguignons wanted to renovate and rebuild their residence and obtained Leach’s signature on a “Lot Line Adjustment” application submitted to the City of Big Bear for the five-and-one-half-foot easement.…

I respectfully dissent. I would affirm the trial court’s denial of Fire Insurance Exchange’s (Fire Insurance) motion for summary judgment.

DISCUSSION

A. Standard of Review

The independent standard of review is applied to the trial court’s order denying Fire Insurance Exchange’s (Fire Insurance) motion for summary judgment. (Baroco West, Inc. v. Scottsdale Ins. Co. (2003) 110 Cal.App.4th 96, 99 [ 1 Cal.Rptr.3d 464 ] (Baroco) [Fourth Dist., Div. Two].) Specifically, the record is independently examined “ ‘in order to determine whether triable issues of fact exist to reinstate the action. [Citation.]’ [Citations.]” (Principal Life Ins. Co. v. Peterson (2007) 156 Cal.App.4th 676, 681 [ 67 Cal.Rptr.3d 584 ].) This court analyzes the record following the same three-step process as the trial court. First, the court identifies the issues raised by the pleadings. Second, the court determines whether Fire Insurance showed that the Bourguignons could not prevail on any theory raised by the pleadings. Third, if Fire Insurance has met its burden, then the court considers whether the Bourguignons have raised a triable issue of fact. {Ibid.) In reviewing the order, this court must strictly…

Cadden & Fuller, Thomas H. Cadden, Ignacio J. Lazo and Charlene A. Busch for Real Parties in Interest.

McKINSTER, Acting P. J. —

Building a structure that encroaches onto another's property is not an accident even if the owners acted in the good faith but mistaken belief that they were legally entitled to build where they did. Because their homeowners policy did not provide coverage for nonaccidental occurrences, the owners' insurer had no duty to defend when the owners were sued by the adjoining landowner as a result of the encroachment. Accordingly, the owners' insurer was entitled to summary judgment in the action for breach of contract and bad faith brought by the owners. We therefore grant the insurer's petition for writ of mandate and direct that the superior court grant its motion.

Real parties in interest, Kenneth and Dorothy Bourguignon, owned property in Big Bear adjoining the Leach property. In 1984, Louise Leach granted them an access easement over a five-and-one-half-foot-wide portion of her property that bordered theirs. After their property suffered earthquake damage, the Bourguignons wanted to renovate and rebuild their residence and obtained Leach's signature…