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Dilbert v. Hanover Insurance Co.4/27/2005
upp. 2d 1314, 1323 (S.D. Fla. 1998) (suggesting that wrongful eviction involves landlord, but wrongful entry is simply "by another in derogation of the plaintiff's ownership, tenancy, or easement"); Watson v. State, 63 Ala. 19, 20-21 (1879) (statute criminalizing trespass defined offense in terms of wrongful entry); Lewis v. State, 99 Ga. 692, 693 (1896) (unlawful or wrongful entry discussed interchangeably with trespass); James v. City of Kansas, 83 Mo. 567, 569 (1884) (claimed wrongful entry and construction of sewer was "action for trespass to real estate"); Buehrer v. Provident Mut. Life Ins. Co., 123 Ohio St. 264, 270-271 (1931). Similarly, Black's Law Dictionary primarily defines a trespass as " n unlawful act committed against the person or property of another; esp., wrongful entry on another's real property." Black's Law Dictionary 1541 (8th ed. 2004) (emphasis supplied).
Having determined that trespass equates to wrongful entry, we turn now to the facts as alleged in the underlying action against the insureds and known or readily knowable to the insurer. The allegations in Remsen's complaint meet the elements of trespass at common law. Remsen alleged that she was in possession of the parking space at the time the plaintiffs entered, that they occupied the space with their car, and that they failed to remove their car when instructed to do so. See New England Box Co. v. C & R Constr. Co., 313 Mass. 696, 707 (1943) (plaintiff must prove she is in possession of property); Gage v. Westfield, 26 Mass. App. Ct. 681, 695 n.8 (1988) (trespasser is one "who enters or remains upon land in the possession of another without a privilege to do so"), quoting from Restatement (Second) of Torts § 329 (1965); id. § 158 ("One is subject to liability to another for trespass, irrespective of whether he thereby causes harm to any legally protected interest of the other, if he intentionally enters land in the possession of the other, or causes a thing or a third person to do so, or remains on the land, or fails to remove from the land a thing which he is under a duty to remove").
Perhaps anticipating that this court would determine wrongful entry and trespass to be the same cause of action, Hanover further argues that Remsen's complaint could not have alleged trespass because Remsen was not in actual possession of the parking space. See Attorney Gen. v. Dime Sav. Bank of N.Y., FSB, 413 Mass. 284, 285, 288-289 (1992) (Dime Savings Bank) (plaintiff owner out of possession does not have constructive possession to bring action for trespass where actual possession is in another). Hanover's argument is unpersuasive for two reasons. First, possession does not require that the plaintiff physically occupy the property at the time of the alleged trespass. See Chesarone v. Pinewood Builders, Inc., 345 Mass. 236, 238-240 (1962) (owner of unoccupied land established claim for trespass). Second, this court looks to the possessor of the parking space at the time of the alleged wrongful entry. See Emerson v. Thompson, 2 Pick. 473, 484 (1824) (" n action of trespass, being a possessory action, cannot be maintained, unless the plaintiff had the actual or constructive possession of the property trespassed upon, at the time of the trespass" [emphasis supplied]).
At the time of the plaintiffs' entry, they did not have actual possession. (To the extent they had actual possession at any time, it was after they entered the space.) Unlike Dime Savings Bank, in which the dispute concerned a party without possession against a party with actual possession, the present case concerns one party with constructive possession (Remsen) against other parties without possession at the time of entry (the plaintiffs). Thus, Dime
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