Accidents Will Happen? Judge Says Insurer Must Defend Builder Accused of Violating ‘Tree-Cutting Statute’ | Law.com Page Printed From:
https://www.law.com/2023/02/08/accidents-will-happen-judge-says-insurer-must-defend-builder-accused-of-violating-tree-cutting-statute/
U.S. District Court for the District of Massachusetts in Boston. Credit: Google.
“In the court’s view, the allegations here are broad enough to reasonably sketch a claim that Partington had a mistaken but reasonable belief that it was authorized to cut the trees,” the court said. “Such a claim would be for property damage arising out of an occurrence, meaning it would be a ‘loss [that] fits the expectation of protective insurance reasonably generated by the terms of the policy,’ thus triggering Nautilus’s duty to defend.”
February 08, 2023 at 01:51 PM
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What You Need to Know
- In an underlying state matter, Simone and Douglas Blowers allege that Partington Builders removed trees and dirt from their property without permission. The Blowers filed a claim under the Massachusetts tree-cutting statute for removing the privacy the trees created.
- Partington sought coverage under its commercial general liability policy by Nautilus. Nautilus denied coverage because the complaint did not allege property damage or bodily injury arising from an occurrence; the complaint alleges that Partington intentionally damaged the property; and the policy excludes coverage for damages arising from the movement of soil.
- A district judge said Nautilus has a duty to defend Partington, but concluded it does not have a duty to indemnify at this stage.
Whether a developer mistakenly believed it had the right to remove trees and dirt from a property was the deciding factor in a ruling requiring its insurer to defend it against a lawsuit brought by the property owners.
A federal judge in Massachusetts ruled that, while it was too soon to determine whether Nautilus Insurance Co. had a duty to indemnify Partington Builders in an underlying case, the insurer did have a duty to defend based on the possibility that its policyholder had accidentally removed trees and dirt from a property without permission.
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