Law Review: If a tree falls in the forest … attorneys will hear the sound
Accidents happen. Or so they say. Attorneys tend to be a bit more skeptical about random happenstance. Give a bunch of attorneys the opportunity to refine and narrow the definition of “accident” and you are off to the races. In Maryam Ghukasian v. Aegis Security Insurance Company, the California Court of Appeal, Second Appellate District, considered whether mistakenly cutting trees on the property of a neighbor was an accident sufficient to trigger coverage under a homeowners insurance policy.
Back in 2018, Maryam Ghukasian desired to landscape her property in Glendale, California. To that end, she hired a contractor to perform soil grading and tree clearing services; and, based on all outward appearances, the contractor duly completed the job. There was, however, one slight problem: the dirt moved and trees removed were not on Ms. Ghukasian’s property. Ms. Ghukasian had mistakenly instructed the contractor to perform the work on a neighboring parcel. The neighbors – Vrej and George Aintablin – were none too pleased to discover a portion of their property deforested and sued Ms. Ghukasian for trespass and negligence.
In California, the unlawful removal of trees can have serious consequences. Pursuant to Civil Code section 3346 and Code of Civil Procedure section 733, double or triple monetary damages may be recovered from the offending tree cutter. Facing legal liability and potential financial detriment, Ms. Ghukasian tendered the lawsuit to her homeowner’s insurance company, Aegis Security Insurance Company, and demanded that Aegis provide defense and indemnification against the claims alleged by the Aintablins.
Aegis denied Ms. Ghukasian’s tender on several grounds. The main reason being that Ms. Ghukasian’s insurance policy only covered accidental – as opposed to intentional – property damage. Because Ms. Ghukasian deliberately had the trees cut down, Aegis concluded the damage suffered by the Aintablins was not the result of an accident. Ms. Ghukasian sued Aegis for breach of insurance contract, among other causes of action, to force Aegis to provide coverage and defend the Aintablin litigation. The trial court rejected Ms. Ghukasian’s claims on summary judgment and Ms. Ghukasian appealed the decision.
The court of appeal was tasked with determining whether Ms. Ghukasian’s conduct was an accident. If accidental conduct, Aegis would be obligated to cover the claim. If intentional conduct, Aegis could properly deny coverage.
The court ultimately concluded Ms. Ghukasian’s conduct (i.e., cutting trees) was not accidental, even if the resulting harm was unintended (i.e., trees felled on the Aintablin property). Relying on previous case law, the court reasoned that an “accident” “is never present when the insured performs a deliberate act unless some additional, unexpected, independent, and unforeseen happening occurs that produces damages.” In Ms. Ghukasian’s case, the cutting and grading was the “immediate cause of the injury” and “there was no additional, independent act that produced the damage.” The court also refused to consider Ms. Ghukasian’s subjective intent, holding the “mistaken belief about the boundaries of her property is irrelevant to determining whether the conduct itself – leveling land and cutting trees – was intentional.” Based on the above, the court of appeal upheld the trial court’s decision and barred Ms. Ghukasian from pursuing her lawsuit against Aegis – presumably leaving Ms. Ghukasian uninsured in her defense of the Aintablin litigation.
The Ghukasian case illustrates a general principle of insurance law – intentional conduct that causes harm or damage is rarely covered by a policy of liability insurance. The outcome of such principle is that harmed parties are often left with the personal assets of the wrongdoer as the only source of potential monetary recovery. In the absence of reachable assets, the aggrieved party may be left with little to no recourse. An unfair outcome, to be sure. So, if you plan on being the Once-ler, keep the cutting to your own backyard.
Ravn R. Whitington is a partner at Porter Simon licensed in California and Nevada. Ravn is a member of the firm’s Trial Practice Group where he focuses on all aspects of civil litigation. He has a diverse background in trial practice ranging from complex business disputes to personal injury to construction law, and all matters in between. He may be reached at email@example.com or http://www.portersimon.com. Like us on Facebook
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