Porter v. Clarendon Nat'l Ins. Co. & Another, 09-P-964.

• Court: Appeals Court of Massachusetts
• Writing for the Court: KAFKER, J
• Citation: 925 N.E.2d 58,76 Mass.App.Ct. 655
• Parties: Ryan PORTER, trustee, & another v.CLARENDON NATIONAL INSURANCE COMPANY & another.
• Docket Number: No. 09-P-964.,09-P-964.
• Decision Date: 26 April 2010

76 Mass.App.Ct. 655
925 N.E.2d 58

Ryan PORTER, trustee,¹ & another ²
v.
CLARENDON NATIONAL INSURANCE COMPANY & another.³

No. 09-P-964.

Appeals Court of Massachusetts,
Norfolk.

Argued Jan. 12, 2010.
Decided April 26, 2010.

925 N.E.2d 59

Owen P. McGowan, Norwell, for the plaintiffs.

Samuel M. Furgang, Boston, for Clarendon National Insurance Company.

Steven J. Bolotin, Boston, for Greater New York Mutual Insurance Company.

Present: CYPHER, KAFKER, & TRAINOR, JJ.

KAFKER, J.

General liability insurers dispute which of them had a duty to defend the insured, 1915 Beacon Street Condominium Trust, in a 2004 lawsuit for trespass. The trespass claim arose out of a misplaced retaining wall and the construction of two parking spaces on property abutting the insured's. The defendant insurers argue that the complaint in that 2004 lawsuit limited the claim for damages to periods after their policies expired. Furthermore, they argue that various coverage exclusions apply. We conclude that the trespass complaint, broadly interpreted, sufficiently stated a claim for continuous trespass to trigger the defendants' duty to defend the lawsuit, and the exclusions were inapplicable. We therefore reverse the judgment of the Superior Court.

Background. The insured, 1915 Beacon Street Condominium Trust (trust), and the plaintiff in the underlying lawsuit, Circle Ventures, LLC (Circle Ventures), own neighboring properties in Brookline. At some point, before October 1, 2000,⁴ the trust constructed a retaining wall and two parking spaces on land owned by Circle Ventures. After constructing the retaining wall and parking spaces, the trust obtained insurance coverage from a series of

925 N.E.2d 60

general liability insurers. Greater New York Insurance Company (Greater New York) insured the trust from October 1, 2000, to October 1, 2001. Clarendon National Insurance Company (Clarendon) insured the trust from October 1, 2001, to October 1, 2003, and Vermont Mutual Insurance Company (Vermont Mutual) insured the trust from October 23, 2003, to at least October 24, 2007.

On September 13, 2004, Circle Ventures demanded, by letter, that the trust remove the retaining wall and parking spaces. The trust did not comply. On November 9, 2004, Circle Ventures filed the underlying lawsuit, alleging that the trust's refusal to remove the wall resulted in $25,000 in damages to Circle Ventures. The complaint went on to state, in paragraph eight,

“Accordingly, as a direct and proximate result of the 1915

Trust's continuing trespass and refusal to remove the existing retaining wall, Circle Ventures has suffered damages in excess of $25,000, including but not limited to, the cost of having to remove the trespassing retaining wall, and the wrongful use of the Circle Ventures Property for parking without just compensation to Circle Ventures.”

The trust filed an answer and counterclaim, alleging that it began occupying the property in 1983, thereby acquiring title by adverse possession. At some point during that underlying lawsuit, Vermont Mutual began defending the trust. ⁵

On March 2, 2006, Vermont Mutual sent letters to Greater New York and Clarendon, demanding that those insurers contribute to the defense of the underlying lawsuit. Greater New York and Clarendon refused to defend.

On March 21, 2007, Vermont Mutual and the trust sued Greater New York and Clarendon in the lawsuit that led to this appeal. The complaint sought, inter alia, a declaration that Greater New York and Clarendon had a duty to defend the trust in the underlying lawsuit, and the two insurers owed Vermont Mutual the value of the services it had rendered in defense of the trust. Shortly thereafter, in April, 2007, the trust settled the underlying lawsuit with a payment of $27,500 to Circle Ventures.⁶

Greater New York, Clarendon, and Vermont Mutual filed cross motions for summary judgment in this case. On February 19, 2009, a Superior Court judge granted summary judgment to Greater New York and Clarendon on all counts, and denied summary judgment to Vermont Mutual on the declaratory judgment counts. The motion judge read the underlying complaint as stating a claim only for trespass from September, 2004, forward, and ruled that the trespass therefore did not occur during the policy periods of the Greater New York or Clarendon policies. She further ruled that certain coverage exclusions applied to the underlying lawsuit. She concluded that Greater New York and Clarendon had neither a duty to defend nor a duty to indemnify the trust in the underlying lawsuit.⁷

925 N.E.2d 61

Discussion. This appeal presents us with a pure question of law. Mass.R.Civ.P. 56(c), 365 Mass. 824 (1974). The parties agree to the relevant facts, and the cross motions for summary judgment asked the motion judge to apply law to those facts. See Herbert A. Sullivan, Inc. v. Utica Mut. Ins. Co., 439 Mass. 387, 394, 788 N.E.2d 522 (2003). We therefore review the conclusions of law of the motion judge de novo, considering the same summary judgment record. Matthews v. Ocean Spray Cranberries, Inc., 426 Mass. 122, 123 n. 1, 686 N.E.2d 1303 (1997).

An insurer has a duty to defend an insured in third-party actions if “the allegations of the complaint are ‘reasonably susceptible’ of an interpretation that they state or adumbrate a claim covered by the policy terms.” Sterilite Corp. v. Continental Cas. Co., 17 Mass.App.Ct. 316, 318, 458 N.E.2d 338 (1983). See Continental Cas. Co. v. Gilbane Bldg. Co., 391 Mass. 143, 146-147, 461 N.E.2d 209 (1984) (adopting the Sterilite standard).

In interpreting the policy, we construe any ambiguity in the policy language against the insurer. Jefferson Ins. Co. of New York v. National Union Fire Ins. Co., 42 Mass.App.Ct. 94, 97-98 & 98 n. 11, 677 N.E.2d 225 (1997). Similarly, we interpret any exclusions from coverage strictly in favor of coverage for the insured. See Hakim v. Massachusetts Insurers' Insolvency Fund, 424 Mass. 275, 281, 675 N.E.2d 1161 (1997); Preferred Mut. Ins. Co. v. Gamache, 42 Mass.App.Ct. 194, 198, 675 N.E.2d 438, S.C., 426 Mass. 93, 686 N.E.2d 989 (1997). We consider the parties' claims in that context.

In defense of their decision not to defend the trust in the underlying lawsuit, Greater New York and Clarendon make three arguments.⁸ First, they argue that the property damage did not “occur” during their respective policy periods because the Circle Ventures complaint only sought damages for trespass after 2004. Second, they argue that the policies' “own, rent, or occupy” exclusion applies because the insured occupied the disputed land by trespassing. Third, they argue that the policies' “your work” exclusion applies because the insured built the retaining wall.⁹ We disagree with each of these contentions.

1. Continuous trespass. The Circle Ventures complaint, read broadly, reasonably stated a claim for negligent trespass during the policy periods of both Greater New York and Clarendon. See Sterilite, supra. The complaint alleged $25,000 in damages as a direct and proximate result of the trust's continuing trespass, and “refusal to remove the retaining wall, including the cost of removing the wall and the wrongful use of the Circle Ventures property.”

A trespass may occur continuously. See Silverleib v. Hebshie, 33 Mass.App.Ct. 911, 913, 596 N.E.2d 401 (1992). When a trespass is caused by the erection

925 N.E.2d 62

of a permanent structure, that trespass commences on a date certain, and the trespass continues as long as the offending structure remains. See Restatement (Second) of Torts § 161(1) (1965). See also Asiala v. Fitchburg, 24 Mass.App.Ct. 13, 19, 505 N.E.2d 575 (1987) (“where a continuing nuisance exists [because of a negligently constructed retaining wall], the invasion of the plaintiff's interest recurs...