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April, 2009
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Venue:
North San Diego County (Vista Court)
Responsible Attorney(s):
Jon H. Tisdale
Gilbert, Kelly, Crowley & Jennett LLP
Facts:
Plaintiffs were insured by a homeowners’ policy of insurance in north San Diego County. They were aware of a boundary dispute with a neighbor. When they brought in a tractor to excavate, Plaintiffs accidentally excavated on their neighbor's land, thereby committing a trespass and causing damages. The neighbor sued for trespass and negligence. Plaintiffs tendered the defense to Defendant; Defendant declined to defend or to indemnify them. Plaintiffs incurred approximately $50,000 in defense costs, then opted to pay $10,000 to settle the claim against them. Plaintiffs then sued Defendant for Breach of Contract and Bad Faith, seeking to recover the $60,000 they had paid plus punitive damages and attorneys’ fees. Plaintiffs contended that they did not intend to trespass and therefore their conduct was negligent and should be covered under the policy. Plaintiff also contended that since the suit filed against them alleged that they "negligently" caused the damages complained of, it was therefore an action for negligence and a covered claim.
Result:
On behalf of Defendant, we filed a Motion for Summary Judgment, contending that (a) what the complaint calls the conduct is immaterial and the court must look to the substance of the allegations to determine whether it is truly "negligence", (b) excavation is an intentional act and it is immaterial that plaintiffs did not intend to trespass and did not intend to cause damage because they intended to excavate and (c) since the act of excavating was intentional, it was not an "accident" as defined by the policy and therefore not covered as a matter of law. The Motion for Summary Judgment was granted and judgment was entered for Defendant.
Pretrial Demands/Offers:
Demand $60,000. No offer.
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