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Dilbert v. Hanover Insurance Co.4/27/2005
Savings Bank does not control the present case.
c. "Occurrence" Requirement
The motion judge concluded that the circumstances could not trigger coverage because there was no "occurrence," defined in the policy as an "accident." Although "accident" is undefined in the policy, in the judge's view, the term "implies the unexpected, fortuitous event" and does not include the activity of the plaintiffs in "intentionally occup[ying] the parking space over a period of time."
We are obliged to harmonize the occurrence requirement with the later-added language of the policy endorsement, which, by its terms, and " or an additional premium," "change the policy." The endorsement purports to extend coverage to a number of claims that are generally considered intentional torts. See note 3 and accompanying text, supra. Specifically at issue here is wrongful entry, which we have concluded is a phrase used in our law analogously to trespass upon land. Among the varieties of actionable trespass to land, however, are intentional and negligent forms. Compare Edgarton v. H.P. Welch Co., 321 Mass. 603, 612 (1947); Restatement (Second) of Torts §§ 158, 163 comments b, c (1965) (intentional trespass), with DeSanctis v. Lynn Water & Sewer Commn., 423 Mass. 112, 118 (1996) (negligent trespass), citing Restatement (Second) of Torts § 165 (1965). Although as a matter of language a negligent trespass might conceivably be described as caused by an "accident," the language of the endorsement here, covering "wrongful entry" without further elaboration, fails to make any distinction between intentional and unintentional forms. We view the policy provisions on the whole as, at best, ambiguous or, at worst, in direct conflict on the question whether an intentional trespass is covered. " hen construing the language of an insurance policy, it is appropriate 'to consider [whether] an objectively reasonable insured, reading the relevant policy language, would expect to be covered.' Hazen Paper Co. v. United States Fidelity & Guar. Co., 407 Mass. 689, 700 (1990). Furthermore, we realize that an insured is entitled to the most favorable interpretation of the policy language . . . where the policy language is ambiguous." Nashua Corp. v. First State Ins. Co., 420 Mass. 196, 200 (1995). In the circumstances here, we conclude that a limiting construction of the "occurrence" requirement must give way in favor of coverage.
3. Conclusion
Hanover's argument that wrongful entry is a tort recognized only in landlord-tenant situations incorrectly states the law. Because Remsen's action against the plaintiffs alleged trespass and stated a claim for wrongful entry, Hanover had a duty to defend its insureds. See Boston Symphony Orchestra, Inc. v. Commercial Union Ins. Co., 406 Mass. 7, 10-11 (1989). The judgment is reversed and the matter is remanded for further proceedings consistent with this opinion, including a determination of the amount, if any, that Hanover must pay to indemnify the plaintiffs for the payment they made in settlement of the Remsen action. See Polaroid Corp. v. Travelers Indem. Co., 414 Mass. 747, 764-766 (1993).
So ordered.
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