Complaint Alleging Trespass But Not Physical Injury Does Not Trigger Duty To Defend
In Metropolitan Casualty Ins. Co. v. Birmingham, Case No., C09-726RAJ, 2010 U.S. Dist. LEXIS 82838 (W.D. Wash., August 13, 2010), the court found that the insurer had no duty to defend the insured because there were no allegations of property damage or personal injury. In the underlying case Birmingham requested a declaration regarding a property boundary. The defendant in that case brought a counterclaim asserting a right to an order to quite title, injunctive relief, breach of contract, trespass and interference with property rights. Birmingham tendered the defense of the counterclaims to its insurer. Metropolitan denied it had a duty to defend because there was no allegation of covered damage.
In the ensuing coverage action, Birmingham argued that the allegations of trespass created a duty to defend because they allege that “the trespasses have caused damage . . . in an amount to be proven at trial” and interference with the right to quiet enjoyment and use of the property. Birmingham argued that the complaint should be liberally construed to include to include a trespass that causes property damage. The court found that the argument “requires the court to go beyond liberal construction . . . because there are no allegations . . . suggesting that the Birminghams caused any physical injury or destruction to tangible property.” Only a bare allegation of trespass was not enough to trigger the definition of “property damage.” The court found that the allegations were not ambiguous simply because some types of trespass could cause property damage. Since there was no actual claim for physical injury, the court denied that there was any ambiguity to construe in favor of a defense. The court rejected the argument that coverage for personal injury applied because there was no allegation that an invasion of a property right was done by or on behalf of the land lord of the property.
