By Al Haverkamp of Lucas & Haverkamp
1Shelly erected a fence on her property which partially blocked the only road leading to Mr. B’s property. Mr. B complained to Shelly that the fence was blocking his easement over the road, but Shelly refused to remove the fence. Mr. B sued Shelly for nuisance and sought damages and other relief. Shelly tendered her defense to her umbrella insurer, Truck Insurance. Shelly contended Truck had a duty to defend her under the “personal liability” section of her umbrella policy which provided coverage for “injury arising out of invasion of the right of private occupancy.” Shelly argued Mr. B’s allegations that the fence blocked his access was an invasion of his right to private occupancy. Truck denied coverage because the fence erected on Shelly’s land did not constitute a physical invasion of Mr. B’s property and the term “invasion” must involve a physical trespass or entry onto Mr. B’s property. Is there coverage?
Yes. The Court held the term “invasion of the right of private occupancy” was ambiguous and might include a non‐physical invasion, such as the one alleged by Mr. B, of the rights in real property. Here, Mr. B alleged Shelly blocked half of the only road to his property which interfered with his comfortable use and enjoyment of his property and thus constituted an alleged interference with and invasion of his right to private occupancy. Because there was just a potential for coverage under the policy the duty to defend was triggered. See Albert v Truck Ins. Exchange (2018) 23 Cal. App. 5th 367.